Hudson v Venderheld

[1968] HCA 17

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

HUDSON v. VENDERHELD

(1968) 118 CLR 171

26 April 1968

Local Government (N.S.W.)

Local Government (N.S.W.)—Action against council or employee—Notice of action—Time for institution of action—Anything "done under this Act"—Employee in course of employment doing something lawful apart from provisions of Act—Local Government Act, 1919 (N.S.W.), s. 580 (1), (6).*

Decisions

April 26.
The following written judgments were delivered:-
BARWICK C.J., KITTO, TAYLOR AND OWEN JJ. The plaintiff, now the appellant, suffered personal injuries on 1st February 1960 as the result of a collision between a car driven by her husband in which she was a passenger and a truck belonging to the Blue Mountains City Council which was being driven by the defendant. The defendant was an employee of that Council, and earlier on the day in question he had been called upon by one of his superior officers to drive the truck from the Council's depot to a place where some high-tension wires, which were under the control and management of the Council, had fallen down, and to assist in carrying out the necessary repairs. This work having been done, he was driving the truck back to the depot when the collision in which the plaintiff was injured took place. In July 1963 the plaintiff instituted proceedings against the defendant in the District Court alleging that her injuries had been caused by the latter's negligent driving. The learned District Court judge found in the plaintiff's favour on the issue of negligence and assessed her damages at 1,500 pounds. He was of opinion, however, that the case was one to which s. 580 of the Local Government Act, 1919 (N.S.W.) applied, and since no notice of action had been given under that section, nor had the action been commenced within twelve months of the happening of the accident, he found for the defendant. (at p174)

2. Section 580 (1) is in these terms:

"A writ or other process in respect of any damage or injury to person or property shall not be sued out or served upon the council or any member thereof, or any servant of the council or any person acting in his aid for anything done or intended to be done or omitted to be done under this Act, until the expiration of one month after notice in writing has been served on the council or the member servant or person as provided in this section." (1961) 109 CLR 105

And by sub-s. (6), it is provided that:

"Every such action shall be commenced within the period of twelve months next after the occurring of the cause of action. . . ."

An appeal by the plaintiff to the Court of Appeal was dismissed (1967) 67 SR (NSW) 332; 85 WN (Pt 2) 104; 14 LGRA 64 and from that order of dismissal an appeal was brought to this Court. (at p175)

3. The question for decision is then whether the defendant, in driving the truck along a public highway in the course of his employment with the Council, was doing so "under" the Local Government Act. With all respect to their Honours in the Court of Appeal, we are unable to accept the view that what the defendant did was "done under" that Act. There is no doubt, of course, that the Act expressly empowered the Council to supply electricity and to maintain electric wires erected in connexion therewith, and this would carry with it by necessary implication a statutory authority to do all those incidental acts necessary to the exercise of that power which the Council and its employees could not lawfully perform without such an authority. But as Kitto J. pointed out in Board of Fire Commissioners (N.S.W.) v. Ardouin (1961) 109 CLR 105, at p 118 , such an implication ". . . arising as it does from necessity, must be limited by the extent of the need. There can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful." To the same effect are passages in the judgments of Taylor J. (1961) 109 CLR, at p 124 and Windeyer J. (1961) 109 CLR, at p 127 . There the Court was dealing with a section in the Fire Brigades Act, 1909-1956 (N.S.W.) which provided that the Board of Fire Commissioners, the Chief Officer or an officer of the Board exercising any powers conferred by the Act or the by-laws should not be liable for any damage caused in the bona fide exercise of such powers. That provision differs substantially in its language from that contained in s. 580 (1) of the Local Government Act but the principle stated by Kitto J. is one of general application. (at p175)

4. In driving along a public highway the defendant was doing something which the law - apart altogether from the Local Government Act - gave him a right to do. It is true that he was acting on the instructions of an officer of the Council and in the course of his employment, but that does not mean that what he was doing was being "done under" the Local Government Act. (at p175)

5. We would therefore allow the appeal. (at p176)

McTIERNAN J. I am of opinion the appeal should be dismissed. It turns upon the use by the legislature of the words "under this Act" - s. 580, Local Government Act, 1919 (N.S.W.). I think the words should be taken to mean as follows: within the range or bounds determined by the scope of this Act and in conformity with it. This interpretation does not exclude acts which are lawful apart from the Act. There is, I think, no room for an implication excluding such acts. Why exclude any act which is intra vires the Council, under the Act ? The driving of a motor vehicle on a highway by a servant of a council in his capacity as servant may have the character of an act done under this Act even though it is a lawful act apart from it. The evidence shows that the defendant, a servant of the Blue Mountains City Council, was driving its motor vehicle which injured the plaintiff in execution of provisions of the Act relating to the supply of electricity by councils. A summary of the evidence is to be found in the reasons of Wallace P. and Holmes J.A. I am of opinion that the analysis of the facts which Bankes and Scrutton L.JJ. made in Edwards v. Metropolitan Water Board (1922) 1 KB 291 of the facts of that case throws light on the problem in the instant case. Taking the facts to which s. 580, sub-s. (1), is to be applied here to determine this appeal, I think the defendant was driving "under this Act" and entitled to the protection of this provision when the accident occurred. Section 580 differs substantially from s. 46 of the Fire Brigades Act, 1909-1956 (N.S.W.), which was under consideration in Ardouin's Case (1961) 109 CLR 105 . I agree with the reasons of the Supreme Court for distinguishing that case. It is not, I think, a precedent governing the present case. (at p176)

Orders

Appeal allowed with costs. Order of the Supreme Court set aside. In lieu thereof order
(1) that the appeal to that Court be allowed with costs,
(2) that the judgment of the District Court of the Central and North Western District holden at Penrith given in this action on 28th March, 1965, be set aside, and
(3) that in lieu of the said judgment verdict and judgment in the action be entered for the appellant for the sum of $3,000.

Solicitors for the appellant, P. F. Mooney &Co.

Solicitors for the defendant, Gibson, Macphillamy &Corish.

R. A. H.