Scott & Ors v Davis

[1999] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A31 of 1998

B e t w e e n -

TRAVIS KANE SCOTT

First Applicant

GEOFFREY STEPHEN SCOTT

Second Applicant

GAYNOR JUNE SCOTT

Third Applicant

and

GEOFFREY ARTHUR DAVIS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 12.47 PM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friend, MR D.W. SMITH, QC, for the applicants.  (instructed by Johnston Withers)

MR D.M. QUICK, QC:   If the Court pleases, I appear with my learned friend, MR K.G. NICHOLSON, for the respondent.  (instructed by Thomson Playford)

McHUGH J:   I think we might be interested in hearing from Mr Quick.  Mr Quick, we thought it would be more profitable if we heard from you first.

MR QUICK:   If the Court pleases.  There are three reasons for opposing special leave in this matter.  They are, first, that it is submitted that the judgment of the Full Court is correct or is not attended by sufficient doubt as to warrant a grant of special leave; secondly, it is submitted that the facts of this case do not give rise to a suitable vehicle for the determination of the special leave point which the application identifies; and, thirdly, that the proposed appeal does not raise a question of law of sufficient public importance.

I will deal with those matters in the same order in which I have gone through them.  The first point may be stated quite succinctly.  The case for the applicants involves a reading of Morgans v Launchbury which, it is submitted, is wider than the case justifies.  It is the case that three of their Lordships do talk about vicarious liability in relation to the use of chattels generally but there is nothing in the speeches to suggest that their Lordships were recognising a wider principle of responsibility or a wider principle of vicarious liability.  Indeed, the case is all about a motor vehicle and the authorities relied upon are all about motor vehicles.         There is nothing to suggest that there was a consideration of a wider policy basis of establishing vicarious liability.

Indeed, their Lordships go so far as to say that in relation to the suggestion that there should be a widening of the basis of vicarious liability in relation to motor vehicles, that that was a matter which they were incapable of dealing with because it involved such wide ramifications and it was a matter best left to Parliament.  On that basis, their Lordships refused to extend the doctrine in so far as it applied to motor vehicles.  Our submission is that Morgans v Launchbury does not recognise a wider principle dealing with chattels generally.  Although there is reference made to chattels, the decision is firmly based in relation to the use of motor vehicles and there is no recognition of a wider principle of vicarious liability.

I turn then to the second point, that is the second point of opposition to the grant of special leave.  That is the suitability of this case as a vehicle for determination of the issue identified by the application for special leave.  The circumstances of the case are such that if there is an appeal instituted, it could well be disposed of on the facts of this case without ever having to consider the issue of principle on grounds that even if there is the wider principle, this case does not fall within it.

We make that submission for two reasons.  The first is that the learned trial judge found as fact, and the Court of Appeal accepted, that when the owner of the aircraft asked the pilot to take the young boy, the plaintiff, up for a ride, he did so for the reason that the parents of the boy had asked him to do that and, in fact, so that what you have - - -

McHUGH J:   That seems a very fine distinction.  If Morgans v Launchbury applies and if Lord Cross was followed in that case, it is sufficient, is it not, if the chattel is being used at the relevant time in pursuant of a request made by the owner to which the user has acceded?

MR QUICK:   Provided that there is some benefit, in addition, to the owner.  It is not just a request, I would think.  It is a request and some benefit or purpose, more particularly, that being evidenced by the request.  But I would stress that what Lord Cross is saying there is the context of motor vehicles.  There is nothing to suggest that - - -

McHUGH J:   Well, I appreciate that but that is the important point of principle involved.  Is it correct in the first place and, secondly, if it is, is it confined to motor vehicles or, as at least I think four of the speeches would indicate, it has wider ramifications.

MR QUICK:   I agree those are issues that arise.  The question here is though whether or not they will be determined in this case, when what actually happened was not so much a purpose or a request made by the owner himself on his own behalf but on behalf of someone else who happened to be the child’s parent.  That, we submit, is a point of distinction which might be relevant for the purpose of determining this matter as to whether or not, on the facts of this case, there should be vicarious liability.

The second reason why we would say that this is not a suitable vehicle, your Honour, is because there is insufficient consideration of this whole issue by courts in this country or elsewhere both at the first instance level and also on appeal.  There is no body of law or no variety of factual situations which have been considered by courts which are sufficient to enable this Court to determine whether or not it is appropriate to recognise such a wide principle and having such wide ramifications.

So on that basis we say that the facts are unusual but, secondly, because there is no other consideration of this and because what is being asked of the Court is to state a principle of very broad application, that it is inappropriate because it is just too soon.  There is not enough case law, there is not enough material which will enable the Court to determine whether, as a matter of policy, in relation to such a wide-ranging group of possible circumstances that this policy should apply.

There is a third aspect of the matter that makes this an unsuitable vehicle and that is that the benefit or the purpose – one says either benefit or purpose - to the owner in this case was so ethereal, at most the purpose of the owner or the benefit to the owner was to satisfy the request of a guest.  Now, is that going to be sufficient?  If one says that may well mean that there is in this case no vicarious liability to be imposed upon the owner, then the wider issues - - -

McHUGH J:   But that itself may raise a very important question of principle.  The more you get into these issues, the more important the case seems to become.

MR QUICK:   Your Honour, I am trying to illustrate the fact that you might not have to answer the question raised in the special leave application because of the ethereal nature of the so-called purpose or benefit here.

McHUGH J:   Yes, but the Court will have to determine the principle before it applies the facts.  This is not the sort of case that one usually talks about being not suitable vehicles.  In that sort of case, one never ever gets to the relevant issues because of other factual issues.  If the relevant issue is whether the damage is too remote, there may be an issue as to whether there was a contract or whether there was a breach.  You may never reach it.  But here, it seems to me that these matters that you draw attention to are involved in the very definition and application of the relevant principle.

MR QUICK:   Your Honour, may I say in response, with respect, that the proposition that I am putting is that in response to a submission that there should be a wide-ranging principle dealing with all chattels where something is used for the purpose or benefit of the owner, it is a legitimate answer to say that issue will not arise because, on the view of the facts taken in this case, there was no purpose or benefit sufficient for the purpose of the application of the general principle.  That is the submission that we make in relation to that.

McHUGH J:   I understand that but you can only determine that answer by applying a principle and the first question is:  what is the relevant principle?

MR QUICK:   That is so, your Honour.  The only thing I can say in response is that the real issue is:  do we go beyond motor vehicles to all other chattels?  That is the crucial issue, and we say you may never get to that because there was never sufficient purpose. 

If the Court pleases, I will move on to the third ground for opposing special leave and that is the matter of sufficient public importance.  It is astounding that notwithstanding Morgans v Launchbury was decided in 1973, there is hardly a decision at all seeking to extend or to apply it as a recognition of a general principle extending beyond the existing categories of cases in which vicarious liability is recognised, and what - - -

McHUGH J:   Well, that may mean that it does not come up as frequently as it once did and that is probably because of the statutory presumptions which operate in many motor vehicle third party insurance contexts, that the driver is the agent or servant of the owner.  But here we are in an area which is no doubt increasing in use - the use of private aeroplanes, motor boats, other vehicles.  The point may have application far beyond motor vehicles.

MR QUICK:   May it please the Court, our argument is that there is no demonstrated need for vicarious liability in these cases shown up as a matter of public interest by there being cases argued at first instance and on appeal which deal with the so-called public need.  There is no public importance ‑ ‑ ‑

McHUGH J:   I am not sure that public need has much to do with it.  It is a question of principle and, after all, vicarious liability was the invention of Lord Holt, was it not?  The judges invented it and it is very much a judge‑made law and it does seem to raise some important questions of principle.  You may well succeed at the end of the day but there are serious issues of principle involved in this case, so it appears to me at the moment, Mr Quick.

MR QUICK:   Your Honour, we would agree that there are serious issues of principle but we disagree that they are matters of public importance and it is the fact that an issue of principle is also a matter of public importance that gets the matter to this Court, with respect.  Now, here we say there is a very interesting and difficult question of law or policy or whatever, but there is no demonstrated need, in the way in which people carry out their affairs, evidenced by a series of decided cases at first instance and on appeal showing that the public really has an interest in this very interesting and difficult question of law.  That is the submission we make on public interest.

CALLINAN J:   It might be of consequence, for example, in a decision adverse to you that legislatures would introduce statutory schemes, and that itself might indicate the importance of the matter; statutory schemes in respect of aeroplanes and perhaps other chattels.  I think there are - - -

MR QUICK:   Well, there are already statutory schemes in relation to aeroplanes to the extent that Civil Aviation - - -

CALLINAN J:   Yes, but I am talking about privately-owned ones, and I think that there are some statutory schemes in relation to pleasure boats, privately-owned pleasure boats, in some States. 

MR QUICK:   In some States.

CALLINAN J:   Perhaps that sort of legislation should be extended.  The outcome of this case might demonstrate a need for that.

MR QUICK:   The outcome of the case might demonstrate that.  The question is whether or not at this stage there is sufficient issue of law of public importance for this Court to create that outcome.  The answer to that is that that has not been demonstrated in any way by a series of cases of - - -

McHUGH J:   The Court has not visited this area since Sublusky v Egan in 1960, has it?

MR QUICK:   No, your Honour, that is correct; 1963.

McHUGH J:   Yes, 103 CLR, is it not?

MR QUICK:   I beg your pardon, your Honour.

CALLINAN J:   A decision itself not without its complications of application either.

MR QUICK:   Agreed.  I agree that this is not an – it is not our submission that this is a straightforward matter or that it is not of interest.  The real question is whether or not there is a sufficient public interest in the outcome of this appeal for this Court to entertain it.

McHUGH J:   What about this particular plaintiff?  He has a real interest in it, has he not?

MR QUICK:   Yes, your Honour, and he has both a trial and a matter before the Court of Appeal, before the Full Court.  That has been

determined.  It is only in the event of there being something additional that makes him a special litigant that gets him, with respect, to this Court.  May it please the Court, those are the submissions for the respondent.

McHUGH J:   Thank you very much, Mr Quick.  No, we do not need to hear you in reply, Mr Wells.  There will be a grant of special leave in this case.

AT 1.03 PM THE MATTER WAS CONCLUDED