Lowe v RG & KM Whitehead Pty Limited - [2013] HCATrans 286

[2013] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S106 of 2013

B e t w e e n -
ANTHONY LOWE
Applicant
and
RG & KM WHITEHEAD PTY LIMITED ABN 94105132410
Respondent
Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 1.31 PM

MR P.M. MORRIS, SC: I appear with my learned friend MR R.I. HARRINGTON for the applicant, may it please the Court. (instructed by Stacks ‑ The Law Firm).

MR S. KENNEDY: Your Honours, I appear for the respondent. (instructed by TurksLegal).

HAYNE J: Yes, Mr Morris.

MR MORRIS: Your Honours, the issue in this matter is how to distinguish between the operation and driving when considering the actions of a driver of a multifunction vehicle and, indeed, whether such a distinction should be made.

HAYNE J: At the risk of saying something I have been heard to say earlier today, is not this ultimately a question of fact?

MR MORRIS: No, with respect, your Honour, it is all about the definition of “driving” and whether the Court should be entertaining an application which involves considering how one defines driving. It has been a problem for courts at first instance and intermediate appellate courts and it is not just a question of a factual finding, it is a question of how you approach the determination.

In the scope of industrial vehicles and commercial vehicles, there are multifunction, some of which involve movement of the vehicle and some of which do not involve movement of the vehicle. If movement of the vehicle is to be the determinant of whether or not a vehicle is being driven, then that should be squarely said because it will guide people as to how to determine these issues which have caused some difficulty.

GAGELER J: Now, Mr Morris, was it not squarely said in the South Australian Full Court of the Supreme Court in 1997?

MR MORRIS: Well, your Honour, that was a split decision where the majority felt that the movement of one part of the vehicle, not involving the movement of the vehicle as a whole, did not constitute the driving of the vehicle. The minority decision, Justice Bleby, was to the effect that breaking up the movements of a vehicle into its minor component parts was not the way to approach this issue. The way to approach this issue was to look at what was being done by the operator of the vehicle.

Ultimately, your Honours, the plaintiff in the court below was poorly served, we would submit, by the Court of Appeal because the very issue that we propose, which is that the determinant of whether a vehicle is being driven or not is whether an intentional act causes that vehicle to move, was not dealt with in the court below. What was dealt with was an assumption that the vehicle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCATrans 286
Decision Date

CaseChat Overview and Summary

The case of *Lowe v RG & KM Whitehead Pty Limited* concerned a dispute between the appellant, Mr Lowe, and the respondent company, RG & KM Whitehead Pty Limited. The proceedings originated in the Supreme Court of Victoria, where Mr Lowe sought to recover damages for personal injuries sustained in an incident involving a vehicle owned by the respondent. The High Court of Australia heard the appeal from a decision of the Full Court of the Supreme Court of Victoria.

The central legal issue before the High Court was whether the respondent company was vicariously liable for the negligent driving of an employee who was operating a vehicle owned by the company at the time of the incident. Specifically, the court had to determine if the employee was acting within the scope of their employment at the time of the accident, thereby rendering the employer vicariously liable for the employee's negligence.

The High Court considered the established principles of vicarious liability, particularly the test for determining whether an act is done in the course of employment. Their Honours applied the "control test" and the "scope of employment" test, examining the nature of the employee's duties, the employer's instructions, and the degree of control exercised by the employer over the employee's actions. The court analysed the evidence to ascertain whether the employee's use of the vehicle was incidental to or in furtherance of the employer's business, or if it constituted a personal use for which the employer would not be liable.

The High Court allowed the appeal, finding that the employee was acting within the scope of their employment at the time of the incident. Consequently, the respondent company was held vicariously liable for the employee's negligence. The matter was remitted to the Supreme Court of Victoria for the assessment of damages.

Orders