Perpetual Trustees & National Executors of Tasmania Ltd v Graham
[1990] TASSC 125
•17 August 1990
Serial No B48/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Perpetual Trustees & National Executors of Tasmania Ltd v Graham [1990] TASSC 125; B48/1990
PARTIES:PERPETUAL TRUSTEES & NATIONAL EXECUTORS OF TASMANIA LTD
v
GRAHAM
FILE NO/S: 390/1988
DELIVERED ON: 17 August 1990
JUDGMENT OF: Cox J
Judgment Number: B48/1990
Number of paragraphs: 17
Serial No B48/1990
List "B"
File No 389/1988
PERPETUAL TRUSTEES & NATIONAL EXECUTORS OF TASMANIA LTD
& ANOR v GRAHAM & ANOR
REASONS FOR JUDGMENT COX J
17 August 1990
The plaintiffs trade as a farming partnership and have sued both defendants for damage caused to a vehicle owned by the partnership when a horse owned by the first–named defendant, and, until it bolted, ridden by the second–named defendant, collided with that vehicle. The collision occurred as follows: the plaintiffs' servant at about 6.50 pm on Saturday 17 October 1987 was driving northwards on the Midlands Highway on a sweeping left hand bend at Bridgewater just past the junction of that highway with the East Derwent Highway. It was almost dark and his lights were illuminated. He became aware of sparks just off the road surface about 500 metres ahead of him. He commenced to slow and move a little to the left and the sparks moved inward towards the middle of the road and forward in his direction. When he was about 150 metres away from it, he realised that the source of the sparks was a riderless horse running by now into his laneway. He braked harder and pulled further on to the verge of the bitumen. Notwithstanding his efforts to avoid any collision, the horse ran into his vehicle and was killed. Damage agreed at the sum of $5,950.00 was caused to the plaintiffs' vehicle. I find there was no fault on the part of the plaintiffs' driver and indeed none was pleaded against him.
The plaintiffs have a judgment by default against the second–named defendant but now seek recovery against the first–named defendant alleging that at all material times the second–named defendant was acting with her full knowledge, authority and consent and as her servant or agent, and that she was negligent in that she:
1permitted the second–named defendant to ride the horse on a highway where traffic was present when she knew that the horse was "traffic shy";
2permitted the second–named defendant to ride the horse on a highway when she knew or ought to have known that because of its temperament, an accident was likely to occur;
3failed to direct the second–named defendant not to ride the horse on the highway.
As against the second–named defendant, a number of particulars of negligence were pleaded which it is unnecessary to state here. Suffice it to say that on the evidence I have heard, admissible against the first–named defendant, I find that he was negligent in failing to control the horse and that this negligence caused the collision and damage to the plaintiffs.
I find that the first–named defendant's father purchased the horse for her about three weeks earlier, and that at the time of the purchase he was told by the vendor in her presence that the horse was very quiet and gentle and would have to be got used to traffic. He agisted it in a paddock in Sorell Street at Bridgewater in which township he lived. Prior to the accident he had asked his daughter to request a Mr Woolley to get the horse used to traffic. He was prepared to pay a fee for this service, but left it to the first–named defendant to make the necessary arrangements. She was 15 years of age at the time and a close friend of Mr Woolley's daughter, Miranda, who was about her own age and also had a horse in the same paddock.
On 17 October 1987, both girls went to the paddock in Sorell Street. What exact arrangements had been made with Mr Woolley and by whom it is not clear, but on the girls' arrival there were present Mr Woolley, Wayne Long, the second–named defendant Quinn and another man, Simon Butler. The men were unsuccessful in catching the horses, but the first–named defendant succeeded in catching both of them. She said, and I accept her evidence, that she assumed Mr Woolley was going to ride her horse, but once she had saddled it, Quinn took hold of the bridle and started to lead it down the road while Long led the other horse belonging to Miranda Woolley. The first–named defendant asked Mr Woolley who was going to ride her horse and get it used to traffic. He replied that he was too heavy for it and it was agreed between him and the first–named defendant that Long should ride it. Long was known to the first–named defendant as an experienced horse rider. By this stage, however, she found that Quinn had mounted her horse and Long the other, and they were riding up Cobbs Hill Road.
The first–named defendant waited in Long's car with Miranda while Mr Woolley and Mr Butler followed the horses in another car. About half to three–quarters of an hour later, they returned to the paddock and the riders said they were going to ride up to Brighton. According to her, before she could respond, they just turned around and started off. The girls joined the other two men in their car and followed. Long and Quinn rode the horses up to the Midlands Highway. As they rode, they were drinking from stubbies of beer. It took them about an hour to travel to the Brighton Hotel along the side of the main road, deviating a short distance to follow the disused track of the old main road to the north of the Bridgewater township. There were quite a number of cars and trucks using the road and the first–named defendant's horse behaved well ("as if it had been with traffic all its life"). As she was concerned at the time being taken, she called to the riders on one occasion to come back, but they ignored her and Mr Woolley, who made a like call to them.
Eventually they all got to the Brighton Hotel where the two riders passed the reins to the girls and all four men (all in their late 30's) went into the hotel and consumed about 5 drinks of beer. Long and Quinn again took the reins of the same mounts and told the girls to jump in the car. They rode the horses back down the road, followed by the party in the car. The occupants of the car returned to Bridgewater where the first–named defendant called into her home and collected some horse feed. Her father was not then home, but she spoke to her mother. The first–named defendant, Miranda Woolley and Butler then returned to the highway and saw Long and Quinn talking to some other people by the side of the road at a point about 1 kilometre north of the accident site. While the men talked, the girls rode their respective horses on the grass strip about 30 metres off the highway. Quinn was still drinking and the first–named defendant asked him to lead the horse from thereon, but he ignored her, mounted the horse and rode on with Long. Once again the remainder of the party followed in Mr Butler's car.
Exactly how the horse bolted is not clear. The first–named defendant in a statement to the police a few days later said (after describing how she and Miranda had ridden the horses at the side of the road):
"Greg and Wayne then got back on the horses and continued riding them down the road. We followed and I went to do up my shoe lace and I heard someone say something and looked up and saw Greg fall off the left side of my horse. I didn't see the horse rearing. She just moved to the side as if to look at what was coming. My horse then bolted and ran across the roadway diagonally at a canter, and a collision occurred with a car."
Mr Long, who was called by the plaintiffs, gave evidence that as he and Quinn came around the sweeping corner before the collision, a truck came up the highway and made a loud noise when it changed gears. The horse veered to the left, Quinn fell off and the horse bolted. In a statement to police a few days later and tendered by the plaintiffs without objection from the first–named defendant's counsel, Quinn said that at about 6.50 pm:
"(I) was about 300 or 400 metres from the intersection with the East Derwent Highway. At that time, a truck went past me and as it did so, it let its air brake go. This caused the horse to rear up and I couldn't stay on. I fell to the ground and knocked myself out. I believe the horse had bolted by that time."
The first–named defendant at the trial repeated the substance of her previous statement and said:
"Just prior to the accident, I saw Quinn wobbling all over the horse. He fell off the side of it. There was nothing else coming or going there. I did not see a big truck go past and scare the horse."
Miranda Woolley said, after speaking of riding the horses at the side of the road:
"Then (the two men) got back on them. We wanted them to lead them because it was getting a bit dark, but they rode them. Long went first and Quinn followed. Next minute Quinn fell off and the horse took off."
She mentioned the presence generally of traffic on the roadway during the whole journey, but made no mention of a large vehicle applying power brakes or changing gears noisily immediately prior to Quinn falling off. She was not cross–examined by the plaintiffs' counsel about such an occurrence. I think the witness best in a position to vouch for it, if it in fact occurred, is Mr Long, for the girls were in the car and would be less able to hear such a noise. The first–named defendant was, in any event, distracted by tying up her shoe lace. I think it likely that the horse was frightened by a traffic noise of this kind and that the second–named defendant was dislodged from the saddle by a sudden change in direction by the horse. The fact that he had been drinking may well explain his lack of attention and anticipation. Having lost its mount, the horse then bolted and the damage was done. I am not satisfied that there was negligence in permitting the horse to walk at that time on the side of the highway, even when its traffic shyness was known to exist. There is no evidence which enables me to conclude on the balance of probabilities that such a horse, under the control of a competent rider, would be likely to bolt on to the highway when startled by such reasonably foreseeable traffic noises, particularly as it had been exposed to the noise of a variety of passing vehicles throughout the journey and had not reacted in any untoward way.
On the other hand, having regard to the evidence of Quinn's drinking and of his wobbling and falling prior to the horse bolting, the inference is reasonably open and ought to be drawn that had he been paying more attention to the task in hand, he would have been able to maintain control of the horse and that in failing to do so he was negligent.
The plaintiffs claim personal negligence by the first–named defendant, and contend in any event that she is vicariously liable for the negligent conduct of the second–named defendant. Professor Flemming in his treatise on the Law of Torts 7th ed at p342 points out that:
"Vicarious liability is incident only to a relationship of controlled employment, traditionally described as that of 'master and servant'. Where this is absent, but one person engages another to accomplish a specified result, the relationship is that of principal and independent contractor. In such a case, the work although done at the employer's request and for his benefit, is considered an independent function of the person who undertakes it, and does not ordinarily involve the principal in responsibility for harm caused in the performance of the task."
He also says of agents:
"Some difficulty arises from the several meanings attached to the term 'agent'. It is frequently used either in the sense of a comprehensive category encompassing the two species of servant and independent contractor or to describe servants, properly so–called, whose employment is casual rather than more or less continuous.
At other times, the term 'agent' crops up to designate someone through whose instrumentality the defendant has committed a tort of his own, as when he has authorised an 'agent' to commit a tort or ratified it afterwards. It also includes situations 'where the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity.' On this basis, an insurance agent was held to have made his principal answerable for defaming a competing company in the course of soliciting proposals, because 'he was authorised to speak, and in fact spoke, with the voice of the defendant.' Whereas in the ordinary case, an independent contractor carries out his work, not as a representative but as principal, here the agent acts in a genuinely representative capacity for a principal who is accordingly treated as if he were conducting the transaction in person. The liability is therefore personal, not vicarious – a true instance of Qui facit per alium facit per se."
In my view, the plaintiffs have not made out a case of personal negligence by the first–named defendant. The negligent conduct which caused the accident was that of Quinn in failing to use the power he had to control the horse. I am not satisfied that the mere fact that he rode the horse beside the highway was in the circumstances negligent conduct causative of injury. In any event, I am satisfied, for the reasons I will detail later, that while the first–named defendant knew the horse was traffic shy, she did not permit him to ride the horse in the circumstances pleaded and that any failure by her to direct him not to ride the horse on the highway was not causative of the collision.
Is she then vicariously liable for the second–named defendant's negligence? In my view she is not. She was 15 years old at the time, and even now is of quite quiet and rather submissive demeanour so far as I can judge from my observation of her in the witness box. She did not authorise Quinn to ride her horse, although it appears she resigned herself to the fact that he had determined to ride it. She tried on several occasions to have her wishes that they should turn back and that the horse should be led carried out only to have them brushed aside by a man 20 years her senior bent on pursuing his interests and pleasures. It is abundantly clear, and I so find, that she had no effective control over the manner, direction or duration of Quinn's use of the horse. He and Long made their own decisions about where they would go. She was powerless to do anything but watch them do what they themselves chose to do as part of an afternoon's outing on horseback which they were fortuitously able to enjoy, very largely as the result of Mr Woolley's intervention.
The doctrine of vicarious liability has in some quarters been extended as a matter of policy. In some instances, due to the heavy toll on the roads and the need for compulsory insurance, there has been legislative intervention to attach liability as an incidence of ownership, and the inference of agency or of a master/servant relationship is often readily drawn from non–interference by the owner with the manner of driving of another person (see for example Hannon & Anor v Jennings (1969) 1 NSWR 260; Samson v Aitchison [1912] AC 844; and Soblusky v Egan (1959) 103 CLR 215). Nevertheless, where there is clear evidence that the person in actual possession and/or control of the vehicle or thing causing damage is acting in a way inconsistent with a delegation or relinquishment to him of control by the owner or inconsistent with there being any real measure of control by the owner as was the case here, vicarious liability does not attach.
There must be judgment for the first–named defendant against the plaintiffs.
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