Scott v Davis [2000] HCA 52 5 October 2000 A16/1999
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of South Australia
Representation:
W J N Wells QC with A L Tokley for the appellants (instructed by Johnston Withers)
D M Quick QC with K G Nicholson for the respondent (instructed by Thomson Playford)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Scott v Davis
Negligence – Vicarious liability – Agency – Whether owner of aircraft vicariously liable for negligence of person who flew aircraft with owner's consent for a social purpose connected with owner.
Negligence – Vicarious liability – Aircraft – Motor vehicles – Negligent use of chattel of conveyance – Whether the principles in Launchbury v Morgans [1973] AC 127 apply – Non-delegable duties of care – Strict liability.
GLEESON CJ. The issue in this appeal is whether the respondent, the owner of a light aeroplane which crashed as a consequence of the negligence of the pilot, is vicariously liable for such negligence.
The pilot was killed in the crash. One of the appellants, who was a passenger, and who was being taken for a joy-ride, was seriously injured. The other appellants, the parents of the passenger, suffered nervous shock.
A claim that the respondent was personally negligent in relation to the circumstances surrounding the flight was unsuccessful at the trial, and was not pursued in this Court. The pilot was regarded by the respondent as competent. An allegation of carelessness in entrusting the control of the aeroplane to him was considered and rejected. The present appeal has been argued on the basis that the respondent was not personally at fault.
The facts are set out in the judgment of Gummow J. The principle upon which the appellants rely for their contention that those facts give rise to vicarious liability in the respondent is elusive. There are a number of reasons for that. They include the protean nature of the concept of agency, which bedevils this area of discourse. In the leading English case on the subject[1], Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.
It is not contended that the respondent was subject to a non-delegable duty of care, or that he authorised or ratified a negligent act of the pilot. Those possible grounds of liability may be put to one side.
A claim that an owner…
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
AGLC
Scott v Davis [2000] HCA 52
Case
[2000] HCA 52
Decision Date
CaseChat Overview and Summary
The case of *Scott v Davis* involved an appeal to the High Court of Australia concerning the vicarious liability of an aircraft owner for the negligence of a pilot flying the aircraft with the owner's consent for a social purpose. The dispute arose from a plane crash during a birthday celebration, which resulted in the death of the pilot and injury to a passenger, who was the son of the other appellants. The injured passenger and his parents sued the aircraft owner for negligence.
The High Court was required to determine whether the owner of an aircraft could be held vicariously liable for the negligent flying of that aircraft by a person permitted to fly it, even in the absence of a traditional master-servant or contractual agency relationship. Specifically, the court considered whether the principles of vicarious liability, particularly those developed in the context of motor vehicle accidents, should extend to aircraft, and whether such liability was confined to situations where the owner had specifically authorised, instigated, or ratified the wrongful act.
The High Court, by majority, dismissed the appeal. The court reasoned that the principles of vicarious liability in tort, particularly in the context of the negligent use of a chattel for conveyance, were not confined to motor vehicles. The court found that the owner had delegated a task to the pilot, the pilot was not acting as an independent principal but was subject to the owner's general direction and control, and the pilot was acting within the scope of the authority conferred by the owner. Therefore, the pilot was considered an agent for whose negligence the owner was responsible. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
In my opinion, the District Court was correct in finding that the owner was liable for the pilot's negligence. That is because the owner had delegated to the pilot a task which the owner had agreed to perform, the pilot was not acting as an independent principal but was subject to the owner's general direction and control, and the pilot was acting within the scope of the authority conferred on him by the owner. The pilot was therefore an agent for whose negligence the owner was responsible.The factual background The injury to the first appellant occurred in 1990 while the three appellants were at the respondent's property in the Barossa Valley to celebrate the birthday of the respondent's daughter. The first appellant is the son of the second and third appellants and the nephew of the respondent, who was the owner of the plane. On the property, the respondent had several planes and an airstrip. During the day in question, the second appellant and another man asked the respondent, an amateur pilot, whether their children could be flown in one of the respondent's planes. The respondent said that he would think about it. Later, he asked his wife to ask a Mr Bradford, another guest, if he would take the boys on a flight. Mr Bradford later took the first appellant up in a two seater Aeronca plane, owned by the respondent. After taking off, the plane crashed, killing Mr Bradford and injuring the first appellant. The first appellant sued the respondent in negligence and for breach of statutory duty in respect of the injuries that he suffered in the crash. The second and third appellants also sued the respondent for negligence and breach of statutory duty to recover the economic and non-economic losses they claimed to have suffered as a result of the crash. The decision of the trial judge The trial judge held that Mr Bradford was negligent and that his negligence caused the crash. His Honour made no findings in respect of the cause of action for breach of statutory duty. That cause of action is no longer relevant. In determining whether the respondent was liable for Mr Bradford's negligence, the trial judge held that "[n]either the relationship of master and servant, nor that of principal and agent on contractually agreed terms existed". However, the learned trial judge said that, in addition to the master/servant and principal/agent categories:"[T]here are a number of situations in which, in tort, one person may be liable for the acts of another, quite independently of any contract between them. Of present relevance are the so-called 'motor cases'." His Honour held that the present case was one where the owner was liable for the tort of the pilot because the pilot was his agent.The decision of the Full Court of the South Australian Supreme Court By majority[23], the Full Court of the South Australian Supreme Court allowed the appeal and set aside the judgment of the trial judge[24]. The majority judges accepted that, where the negligence of the driver of a motor vehicle causes damage, the owner will be liable for that negligence if two elements are present: (1) a request by the owner that the driver use the vehicle and (2) an interest by the owner in the purpose for which the vehicle is being driven[25]. However, their Honours thought that "the better approach is to confine the wider approach to vicarious liability to cases involving motor vehicles"[26]. As the negligence in this case involved the use of a plane, they held that the respondent was not liable for Mr Bradford's negligence. Millhouse J dissented on the ground that it was not logical to distinguish between liability for the negligent driving of a motor vehicle and liability for the negligent flying of an aeroplane[27].[23]Doyle CJ and Nyland J; Millhouse J dissented.[24]Davis v Scott (1998) 71 SASR 361 at 382-383.[25]Davis v Scott (1998) 71 SASR 361 at 375-376.[26]Davis v Scott (1998) 71 SASR 361 at 376.[27]Davis v Scott (1998) 71 SASR 361 at 386-387. The issues
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH J
(dissent)
His Honour held that the present case was one where the owner was liable for the tort of the pilot because the pilot was his agent.The decision of the Full Court of the South Australian Supreme Court By majority[23], the Full Court of the South Australian Supreme Court allowed the appeal and set aside the judgment of the trial judge[24]. The majority judges accepted that, where the negligence of the driver of a motor vehicle causes damage, the owner will be liable for that negligence if two elements are present: (1) a request by the owner that the driver use the vehicle and (2) an interest by the owner in the purpose for which the vehicle is being driven[25]. However, their Honours thought that "the better approach is to confine the wider approach to vicarious liability to cases involving motor vehicles"[26]. As the negligence in this case involved the use of a plane, they held that the respondent was not liable for Mr Bradford's negligence. Millhouse J dissented on the ground that it was not logical to distinguish between liability for the negligent driving of a motor vehicle and liability for the negligent flying of an aeroplane[27].[23]Doyle CJ and Nyland J; Millhouse J dissented.[24]Davis v Scott (1998) 71 SASR 361 at 382-383.[25]Davis v Scott (1998) 71 SASR 361 at 375-376.[26]Davis v Scott (1998) 71 SASR 361 at 376.[27]Davis v Scott (1998) 71 SASR 361 at 386-387. The issues Given the approach of the trial judge and the judges in the Full Court of the Supreme Court of South Australia, three principal issues arise. First, is a principal liable only for those wrongful acts of the agent which he or she has authorised, instigated or ratified? Second, if that is the general rule, is there an exception in respect of the liability of owners concerning the use of their motor vehicles? Third, if the exception exists, should it be confined to motor vehicles? Many modern writers on agency would contend that each of these three questions should be answered in the affirmative. Thus, the learned authors of Bowstead and Reynolds on Agency[28] summarise the law of vicarious liability as follows:"(1) If an agent is the servant of his principal, the principal is liable for loss or injury caused by the wrongful act of the agent when acting in the course of his employment.(2) A principal is liable for loss or injury caused by the tort of his agent, whether or not his servant, in the following cases:(a)if the wrongful act was specifically instigated, authorised or ratified by the principal; (b)if the wrongful act amounts to a breach by the principal of a duty personal to himself, liability for non-performance or non-observance of which cannot be avoided by delegation to another;(c)(perhaps) in the case of a statement made in the course of representing the principal made within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal." (emphasis added)[28]Reynolds, Bowstead and Reynolds on Agency, 16th ed (1996) at 502 (footnotes omitted).