Hodges v Brett
[2012] QCATA 107
•20 June 2012
| CITATION: | Hodges v Brett [2012] QCATA 107 |
| PARTIES: | John Charles Hodges |
| v | |
| Ronald Matthew Brett |
| APPLICATION NUMBER: | APL008-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 20 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | Minor civil dispute – damage to property caused by, or arising out of the use of a vehicle – vicarious liability – whether employee driver acting within his scope of employment – no error of law or fact finding shown – leave to appeal refused Queensland Civil and Administrative Tribunal Act2009, ss 32, 142(3)(a)(i) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This an application for leave to appeal an award of $1,336.32 to Ronald Matthew Brett (the present Respondent) against John Charles Hodges (the Appellant) for damage caused to the Respondent’s motor car by the negligence of the Appellant’s employee Mark Brett (Mark). At the relevant time Mark was employed as a delivery man by the Appellant, a proprietor of pharmacies on Bribie Island.
On or about 4 April 2011, an ordinary working day, Mark was making deliveries on behalf of his employer. He went home for lunch, parking the Appellant’s vehicle in the back yard of his parents’ residence, where he also lived. As he left to continue deliveries, the delivery vehicle collided with the Respondent (Brett senior’s) car, then stationary and unoccupied, causing damage to the tune of $1,244.32. That amount is evidenced by two repairers’ quotations and is not now in dispute.
Shorn of such irrelevancies as a heated confrontation between employer and employee, the employee’s allegedly poor employment record, and aspects of his medical history, the question is whether the Adjudicator erred in finding that the Appellant Hodges was vicariously liable for Mark’s undisputed negligence. There is no evidence that Mark was unfit to drive at the time.
It is undisputed that Mark was permitted to retain the Appellant’s car overnight, and to use it to travel to and from work. The issue is whether taking it home at lunchtime was sufficiently connected with his employment, or whether – in a well worn lawyers’ phrase – Mark was “on a frolic of his own”.
On the Appellant’s own story, it is clear that, if the subject accident had occurred while Mark was driving to work in the morning, or driving home from work at night, it would have occurred when he was acting with the Appellant’s authority. But the Appellant says that Mark had no such authority to take the car home for lunch, even on a working day. The Adjudicator rejected that submission.
The fact that Mark lunched at home, instead of a cafe or sandwich bar, is, I think, a distraction. We may safely assume that the Appellant would not deny his employee’s right to a lunch break, and if, instead of going home where he was clearly entitled to park at night, he had stopped at a cafe, parked there, and had a similar accident, it would be reasonable to treat it as an incident, albeit unhappy, of his normal working day.
Mark testifies that, when he reported the incident to the Appellant, he was not challenged about going home for lunch.[1] That evidence is uncontradicted. Nevertheless, the Appellant says that “a clear explanation would be given[2] that the vehicle was for work use only, not for private use, including taking it home for morning tea or lunch or at any other time.” Apart from inconsistency with the clear permission to retain the vehicle overnight[3], the reference to “lunch ... time” might reasonably be seen as an afterthought.
[1] Affidavit of Mark Brett, filed 15 November 2011.
[2] Not “was given”.
[3] Appellant’s statement 14 October 2011 and notice of appeal, 4 January 2012.
The Appellant places considerable emphasis upon offers by Mark and his father (the Respondent) to contribute to the cost of repairs, presumably on the basis that they are admissions by conduct. According to Mark, his offer was made under duress, for fear of losing his job. But be that as it may, any admission by Mark would be evidence against him or (improbably[4]) against the Appellant, not against the Respondent (Brett senior). There can be no suggestion that Mark was acting for him. The similar gesture by the Respondent could hardly be treated as an admission by him, because no question of negligence on his part can arise.[5]
[4]Vicarious admissions, as distinct from vicarious negligence, are relatively difficult to prove: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; Smith v Joyce (1954) 89 CLR 529; Clark v C A Kruger & Sons Pty Ltd [1946] St R Qd 206.
[5] His car was stationary in his own back yard.
The law does not allow me, even if so disposed, to conduct a fresh trial of this matter, or to substitute my opinion for the Adjudicator’s where reasonable minds may differ. There is no right of appeal in cases of this kind[6]. Leave is not to be given where a party simply desires to re-argue the case; a clear purpose of a “leave” requirement is to preclude a retrial on the merits.[7] It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done. It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the evidence of witness “B”. Findings of fact will not be disturbed if, as here, they have rational support in the evidence.[8] I consider that the learned Adjudicator was entitled to conclude, on the balance of probabilities, that Mark was acting within the scope of his employment, or, in non-technical terms, that the driving complained of was part and parcel of his day’s work. Of course Mark was not authorised to cause negligent damage, but on an issue of vicarious liability that is quite beside the point; if it were not, very many claims that now succeed against employers would inevitably fail. Before leave to appeal is given it must appear that the decision in question is affected, arguably at least, by an error of law, or an egregious error of fact, that resulted in a substantial injustice,[9] or that a question of general importance is involved.[10] Those requirements are not satisfied here.
[6] QCAT Act, s 142(3)(a)(i).
[7] Contrast QCAT Act, s 20 (review jurisdiction).
[8] Fox v Percy (2003) 214 CLR 118 at 125-126.
[9]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359 at [19].
[10]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Leave to appeal must be refused.
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