Scott & Ors v Davis A16/1999 [2000] HCATrans 61 (3 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A16 of 1999

B e t w e e n -

TRAVIS KANE SCOTT

GEOFFREY STEPHEN SCOTT GAYNOR JUNE SCOTT

Appellants

and

GEOFFREY ARTHUR DAVIS

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 MARCH 2000, AT 10.18 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC: If the Court pleases, I appear with my learned friend, MR A.L. TOKLEY, for the appellants. (instructed by Johnston Withers)

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

GLEESON CJ: Yes Mr Wells.

MR WELLS: If the Court pleases. Can I ask the Court to take up, if they would, volume 3 of the appeal book, and I propose to start by identifying what we submit are the important facts as found, and we do this, particularly, having regard to some matters that have been raised in response but we do - - -

GLEESON CJ: Is the statement made in the first sentence on page 669 accurate?

MR WELLS: That, "The defendants do not challenge the judge's findings of fact"? We understand that the defendants do challenge a finding of fact, not in their notice of contention but in their submissions.

GLEESON CJ: I mean, did they challenge the judge's findings of fact before the Court of Appeal or the Full Court in South Australia?

MR WELLS: It appears that in their written submission they raised an issue. I do not know to what extent it was pursued in argument. It was, I think, the issue about a finding of benefit to Mr Davis in the flying of the aircraft in the circumstances in which it was flown, a matter which, as we will submit, is really not to the point anyway. Can I take the Court to page 620 in the judgment of the learned trial judge for the purpose of simply noting some findings. Page 620 in the first paragraph identifies the occasion on which the flight took place. There was a birthday celebration on the Davis' property and the Scotts had been invited to lunch and they arrived late in the morning.

Mr Bradford, the second paragraph, is introduced. He was a fellow enthusiast in veteran aircraft and had some considerable experience with respect to them, not only in restoration but also in certifying them. He had been involved, from time to time previously, in assisting Mr Davis and, of course, having the advantage of flying some of Mr Davis' planes which were hangared on the property. At line 45 we find that the way in which Mr Bradford came to the property on the day in question was that he asked "himself up". He was not in any real sense a guest as the others were guests at the Davis' property for the purpose of celebrating the birthday, but he had it in mind to come there with an associate who had been building another veteran aircraft called a Corby Starlet.

The aircraft that we are concerned with was an Aeronca. The purpose of Mr Bradford's coming there, as is recorded in the second to last paragraph on that page, was to observe his associate, Mr Fraser's, flying of his plane, and he was proposing to do that by borrowing the Aeronca plane and flying behind it to make those observations. If your Honours turn the page, I pass over some of the detail on that page. What can be said is that Mr Bradford duly went to the property with his associate and he did during the course of the day fly the Aeronca plane and so did Mr Davis also fly some of the planes that were there, Mr Davis being the property owner, the host, but clearly being also such an enthusiast that in the circumstances it was difficult to drag him into lunch even in the end, his interest being with the planes in the hangar.

Your Honours will see at line 50 that Mr Bradford and Mr Fraser, who was an associate, took off in the Aeronca and the Corby Starlet and they took off in the particular direction allowing Mr Davis to fly one of the other planes in another area. Your Honours will see in the last paragraph of page 621 that Mr Davis had another visitor that day, a veteran pilot who was very keen to fly with him and whom Mr Davis had offered to fly, a Mr Heydrich. It was proposed that the Stearman, one of the aircraft there, be used for that purpose.

At 622 the learned trial judge records, at the top of the page, that before Mr Davis took off with his guest, Mr Heydrich, in the Stearman, he:

Mr Davis asked his wife to ask Mr. Bradford -

who had been flying the Aeronca -

if he would be prepared to take the boys -

including Travis Scott, one of the appellants -

for a ride.

Mr Davis then went off and your Honours will also see it recorded as a finding on page 622 at line 20 that Mrs Davis, in response to the request from her husband, went out to meet the Aeronca when it landed. Mrs Davis' evidence was that Mr Bradford had been flying the Aeronca and doing what they call touch and go flights, where the plane comes down onto the airstrip to land but does not finally land, takes off again, and she was starting to get a little impatient because he was doing a number of those. But he eventually landed, and before he taxied the Aeronca back into the hangar, Mr Bradford having concluded his flying, she intercepted him and conveyed to him Mr Davis' request to take the boys up.

Now, the Aeronca, in fact, was a two seater so it could only take one at a time, and so it came about that Travis was chosen as the first of the boys who had visited the property that day to be taken up by Mr Bradford.

I take your Honours on to page 633 in which his Honour the trial judge tracked back in the history to record the way in which it came about that the request was made to Mr Davis, the owner of the plane. It came about, line 20, because, as his Honour found, there was a conversation in the kitchen, either at or just before lunch, with Mr Davis, and present at that time was one of the appellants, Mr Scott, the father, and a Mr Beeching who was also a guest, and they had asked Mr Davis if there was a chance of the boys having a ride.

It is to be noted that there was not specified anything about who was to be the pilot or which plane. The request from Mr Scott was simply, "Is there any chance of the boys having a ride?" Mr Davis' immediate response was, "Well, I will think about it." But, as the learned trial judge then goes on to find at line 27 or thereabouts, Mr Davis, in fact, acceded to the request by asking his wife to ask Mr Bradford when he came in on the Aeronca if he would take the boys up, and your Honours will see that counsel had sought to make the point that Mr Davis' admitted subsequent request to Mrs Davis to ask Mr Bradford if he would take the boys up and her asking Mr Bradford was:

merely reflecting Mr Davis being a conduit for a request from, in particular, Mr Scott to the pilot.

That was a view that the learned trial judge rejected in the next paragraph and he made the further findings, which I do not think were disputed anyway, that Mr Davis was the owner of the plane and of the airstrip and:

was obviously in a position to agree to or refuse any such request.

And just at the last part of that same paragraph:

Mr Davis clearly exercised his own powers of decision making to grant permission for the boys to fly and in implementing that decision by arranging for his wife to ask Mr Bradford to do it. He was not merely a conduit.

Then in the last paragraph on page 633, his Honour, the trial judge says:

There is no evidence of any direct interaction or relationship between Mr Bradford -

who was the pilot -

and any of the plaintiffs -

who were the guests -

which might suggest that he acted independently of Mr Davis in taking Travis up.

He goes on to say, what was undoubtedly the case, that Mr Bradford, as pilot, clearly had independent responsibilities as a pilot in the sense of complying with appropriate safety regulations and the like. But having agreed to fly and to take Travis up, that was an accomplishment, or at least an undertaking given to a request made by the owner of the aircraft.

I take your Honours on to page 634 just to note three matters. The third paragraph in at about line 19:

Mr Davis did not have, or seek, total control. He did not have a radio, or other means of communicating to Mr Bradford while he flew the Aeronca.....He did not seek to dictate his every move.

In the next paragraph, the learned trial judge made a finding about what one might call "general control":

He did retain general control. It was his plane. It was his airstrip.....He had control over the use, in general terms, to which the plane would be put, and where it would be used.

The last matter, which is a matter, I think that the respondents seek to make something of, line 34, speaking of Mr Davis, the owner:

Whether or not the joyrides occurred was of small moment to him. He organised them as a favour to the boys and to their families. It was part of providing a good day for guests at the party he and Mrs Davis were giving their daughter. If one searches for benefit to him, it goes no further than giving himself the satisfaction of being a kind host in giving pleasure to his guests. There was no obligation or profit motive on his part.

It can be added, if the Court pleases, however, that the evidence also makes it clear that Mr Davis, enthusiast as he was, was also keen about flying and proposed to, and did, at the same time, fly one of the other machines. In that sense - - -

CALLINAN J: Can you tell me what tangible benefit, if any, Mr Davis derived or could derive from this flight? Was there any?

MR WELLS: Apart from what the learned trial judge says here, and apart from the matter I was about to point out, your Honour, namely, that it provided him with the opportunity to do his own flying because he did not have to fly the boys, and he went off and flew another of the planes, I do not think there is any other - your Honour says "tangible benefit". There may not be any other tangible benefit but it is our contention that that is not relevant to the principle.

CALLINAN J: But we can take it that there was, in fact, no tangible benefit at all. Mr Davis could have flown his other aeroplane at any other time if he wished. Is that not right?

MR WELLS: One may assume so. That is no doubt correct, but as we propose to submit, benefit and interest, which is the other notion that is used, is not an element of the principle. It may be evidentiary and evidentiary as to the purpose, the purpose for which the chattel was entrusted to, in this case, the pilot.

McHUGH J: That is one of the things that intrigues me about the case, and whether or not the Morgans v Launchbury Case is really apt. In one sense, this is just a pure agency case, is it not, in the sense that Bradford is doing something, in effect, on behalf of Davis?

MR WELLS: Yes.

McHUGH J: If I sent somebody down to the shop to buy something for me, the person is my agent. If they do something in the course of that agency, either which is an improper mode of carrying it out or which I expressly authorises them to do, I am responsible for them. Why can you not see this case in those terms, that Davis was asked for the ride? He had the planes, they were his planes and he simply delegated the task to Bradford and Bradford was acting as his agent.

GLEESON CJ: And, I would add, it would not make any difference on that basis if he regarded the whole thing as a nuisance.

MR WELLS: That is right. That is quite right, and, indeed, some point is sought to be made by the respondents that it was an irritation and a nuisance to him but that is not the principle that is attracted here. Whether we are talking here about a special example of agency in our submission does not matter because we fall within any particular special example of it. The important perspective that in our submission needs to be kept on this, though, is not that we are here dealing with, if you like, the law about agents, the law of principal and agency, we are really talking here about vicarious liability and they may not always be the same thing.

It has not hitherto been suggested that there is a general principle of vicarious liability for all principals, for all agents, for every wrongful act that they commit. It is sufficient for our purposes to isolate and identify one important feature which is both historical and realistic and that is that Mr Davis owned a plane and because he owned the plane he had certain rights to it, rights which could be exercised by dictating its destiny and by choosing who should or should not have it and by determining for what purpose his plane could be used.

GLEESON CJ: What is the difference between an agent and an independent contractor?

MR WELLS: There may not be - there is no clear difference between an agent and an independent contractor in this sense, that it would be wrong, as it were, to identify some category called "an independent contractor" or some category called "an agent".

GLEESON CJ: Would it have made a difference to the outcome of the present case if Mr Davis had said to Mr Bradford, "It is a frightful pest but these boys want a ride in that aeroplane and I will pay you $100 if you will take them up".

MR WELLS: No difference. It would make no difference, if your Honour pleases. This is, in a sense, the point that Justice Dixon, as he then was, was making in the CML Case, that you can no doubt have some general notion of independent function such as might be ascribed to an independent contractor but for certain purposes and in certain circumstances it matters not whether you are going to call somebody an independent contractor, it is a question of whether, in the function that they perform, they might also come into another relationship as well; in this case, come into the relationship of delegate under a mandate, a mandate relating to the dispensation of a chattel.

GLEESON CJ: Does this mean, then, that there are some circumstances in which a person is vicariously liable for the negligence of an independent contractor in addition to the exceptions generally referred to?

MR WELLS: Yes, it does.

GLEESON CJ: What is the additional circumstance?

MR WELLS: The additional circumstance, which is as far as we need to go for our purposes, is where the relationship between what for present purposes we will call the independent contractor, although that is begging the question, but the person who is said to be the independent contractor, and the person said to be the principal, for want of a better term, where that relationship is a relationship with respect to a chattel owned by the principal which has been put to the principal's use through the agency of the other person.

GLEESON CJ: So this principle is limited to the use of chattels?

MR WELLS: For our purposes, your Honour, yes.

GLEESON CJ: What about for our purposes? It might be enough to get you home in this case, but we have to state a principle of more general application.

MR WELLS: We respectfully question whether that is so, if the Court pleases. It may not be necessary for this Court to state any broader principle than the vicarious relationship that arises out of the relationship with a chattel and nothing further. There may be other relationships that would give rise to vicarious liability notwithstanding that a person might for some other purpose be said to have an independent function.

McHUGH J: But usually independent contractors use their own equipment. When they do not, it is often powerful evidence that they are in fact an employee rather than employer. But even outside the employment situation, the fact that somebody is using the principal's machinery or equipment may itself suggest an agency relationship as opposed to a pure independent contractual situation. I think there is a real distinction between the two situations. For example, the agent has fiduciary relationships. I do not think the independent contractor ever has.

MR WELLS: Indeed, your Honour. But again, at the risk of creating irritation, we would draw back from the need to pronounce any general principle about vicarious liability for someone called "agent". It is not necessary for the purpose of resolving this case to do it and there may be some danger in trying to find some general principle that might be applied beyond the relationship that exists in this case which clearly, in our submission, does attract vicarious liability. Your Honours will notice that I am not altogether embracing this case as being a simple one of principal and agent. The intervention of the chattel is what historically has created what I call the vicarious relationship.

McHUGH J: This seems like a jurisprudence of categories almost rather than of principles.

MR WELLS: Not at all, your Honour. On the contrary. The approach that we take is very realistic. What it does is to examine what, on the ground, as it were, if you will pardon the expression in a case like this, is the consequence of the owner having a chattel and making it available to somebody else. What legal consequences flow from that? For instance, we know that historically this principle has developed, the principle of vicarious liability, in relation to the use of a chattel has developed from something called the notion of control and the right to control or, as this Court said in Soblusky v Egan, the power of control.

McHUGH J: But supposing in this particular case Bradford had said, "I want to take my friend Fraser for a spin in one of your planes. Would you let me do it?" Now, would you go so far as to submit the respondent would be liable for injury to Fraser in those circumstances?

MR WELLS: No, we would not.

McHUGH J: Why not? Now, what is the distinction?

MR WELLS: Well, the distinction which is made is this: in the case your Honour puts, the aeroplane, assuming it to be Mr Davis' aeroplane, has been allowed to be used but it has not been entrusted to Mr Bradford in those circumstances to discharge a purpose of Mr Davis. It has not been used, therefore, in a way which would create - the cases talk about delegation - the relationship between the owner and the pilot which would identify the pilot with the owner.

HAYNE J: Well, does not that suggest that ownership is a red herring? May it not be tested against the case where the person with primary custody of the aircraft has it under a leasing contract with a financier, no ownership, treated by most people as if in the position of owner? What then would be the circumstance if there had been such a financing arrangement intruded into this set of facts?

MR WELLS: Your Honour, with respect, rightly corrects me. The true relationship is not ownership but right to possession and, indeed, Soblusky v Egan was exactly a case of the kind that your Honour mentions. In that case Soblusky had agreed to take over the hire purchase agreement from the owner but there had been no transfer of title. He just took over the payments and the owner continued to be the registered owner and to be the insured owner, if it comes to that, but notwithstanding that, this Court in Soblusky v Egan was happy to analyse the matter by reference to Mr Soblusky's position as bailee in possession and having full authority to exercise and assert control over the chattel.

GLEESON CJ: Is this principle limited to chattels; does it not extend to real estate?

MR WELLS: Your Honour, it has to be said that having regard to the basis upon which the Full Court reached its decision, our focus has been on asserting and supporting the proposition that the principle is not confined to a particular kind of chattel but applies to all chattels and at least applies to chattels of conveyance.

GLEESON CJ: Why is it limited to chattels?

MR WELLS: It may not be, your Honour.

GLEESON CJ: Suppose what was involved here was not an aeroplane but a horse and the owner or bailee of the horse said to a person who was riding it, "Will you take this little boy on the horse with you? Give him some fun.", would the owner of the horse be responsible for negligent riding of the person?

MR WELLS: Putting aside any special principles that apply to animals, our answer would be the principle would apply. The owner would be liable, because the relationship which evolves or is derived from the right to possession is a relationship in which - in that case - the horse has been entrusted to another in order to effect a purpose of the owner's.

GLEESON CJ: The case that is usually regarded as the source of this principle, as I understand it, was a case about a motor vehicle, but it traced the route of title of the principle back to a case about a horse and gig.

MR WELLS: Your Honour is referring to Soblusky v Egan?

GLEESON CJ: No, Hewitt v Bonvin.

MR WELLS: Well, your Honour will also have seen in that case, I think Lord Justice MacKinnon also put as an example of the application of the principle, the use of a gun. But there are any number of cases, in our contention, where the principle that we are contending for has been either applied or, more particularly, discussed, in a broader context, even though it might have been - - -

GLEESON CJ: The later English cases, as I understand them, all said the leading judgment on this subject is that of Lord Justice du Parcq.

MR WELLS: That is right.

GLEESON CJ: Lord Justice du Parcq said:

It has long been settled law that where the owner of a carriage or other chattel confides it to another person -

et cetera. Then he said:

The liability of the agent depends not on ownership, but on the delegation of a task or duty. Thus, in Wheatley v Patrick -

which was a case of 1837 -

the defendant who had borrowed a horse and gig for an excursion to the country, permitted a friend to drive on the way home -

and so forth.

MR WELLS: Yes. With one slight qualification, we, of course, with respect, adopt exactly that approach. We say that the principle that we are speaking about was never a motor vehicle principle and, indeed, on the contrary, has been until recently universally rejected as being a motor vehicle principle. It was rejected by this Court in Soblusky v Egan, it was rejected by the House of Lords in Morgans v Launchbury, and the discussion of the principle in its evolving phase has never been confined to a motor vehicle. It has always been talking about chattels, sometimes talking about chattels of carriage.

In Samson v Aitchison, a decision of the House of Lords earlier in the century, the trial judge whose judgment was entirely supported in the Privy Council, I beg your pardon, spoke about "equipage" as being the subject matter of this principle, "equipage", as I understand it, meaning that, chattels of carriage. The learned judge in that case did not find it necessary to express himself any wider than that, but it is sufficient for our purposes to point to these examples as showing that the principle, whatever it is and however it is formulated in the end, is a principle which derives its force from the use of a chattel.

It may well be that there is a vicarious liability principle which is broader than that based on a notion of agency, but we say that it is not necessary for our purposes to even seek to develop such a principle. There exists already an ample resource and ample principles which would determine the case in our favour upon sound principle.

GLEESON CJ: But whatever the principle is, it has to be related to and consistent with the learning in relation to independent contractors because many independent contractors are agents, although not all agents are independent contractors.

MR WELLS: Your Honour, no doubt, is right and, of course, the first thing that needs to be said here is that we are not talking in this case about an independent contractor, if we can identify such a category, inevitably because the relationship between Mr Bradford and Mr Davis was not a contractual relationship. But it might be said that, nevertheless, there may be in some circumstances an independent function, even if it is not a relationship which is bound up in contract.

Our submission, your Honour, is this, that there is no absolute rule that in some way says, "For all purposes, a principal", to search for a term - "For all purposes, a principal is never vicariously liable for the acts of something called an independent contractor".

A person might be identified as an independent contractor for some purposes, and yet for other purposes, by reason of the creation of another kind of relationship, that relationship may give rise to this precarious liability. That was exactly what happened in the CML Case. It might be useful if I were to take the Court to the CML Case.

CALLINAN J: If we do, Mr Wells, do you say that a mere request by the owner or bailee is sufficient to found liability on the part of the owner or bailee?

MR WELLS: Your Honour, the answer that I give to your Honour is both yes and no, and for this reason.

HAYNE J: That is fairly safe, Mr Wells.

MR WELLS: It is a good springboard, your Honour. Yes, because if that request is agreed to in circumstances where the use of the chattel is able to be identified as an owner's use and not a user's use, then the request will have been sufficient to constitute the necessary delegation of the task and entrusting of the chattel.

McHUGH J: Does not what you are saying come to anything more than "the agent" is acting for and on behalf of the principal?

MR WELLS: It may, your Honour.

McHUGH J: Which is a pure agency situation.

MR WELLS: Can I answer the question by taking your Honour to CML [1931] HCA 53; 46 CLR 41? I hope I can answer the question in that way.. Your Honours will see that in the CML Case, the issue that arose was as to who was liable for a slander which was uttered by the canvasser, the insurance agent, who had gone out in order to sell CML products. In the course of doing that, to put it colloquially, he sledged the opposition, and that was the matter of the slander. The opposition sued.

GLEESON CJ: Some talkback radio commentators are independent contractors, not servants.

MR WELLS: Indeed, your Honour. The insurance agent, however, your Honour, was under contract. The terms of the contract are set out in page 42 and 43. There was, in fact, a prohibition on the insurance agent uttering derogatory remarks about opposition and express prohibition. But this case was argued on the basis that the insurance agent was not an employee. He was engaged by CML as its agent under the terms of the contract. And the question arose whether CML was, nevertheless, vicariously liable for the slander uttered by the agent in the course of canvassing and seeking to sell products.

A passage most often referred to and cited from this case come from the reasons for judgment of Justice Dixon, as he then was, at page 48. If I can take your Honours to the second main paragraph on that page:

Little evidence was given of the relations which in fact subsisted between him and the appellant in the actual conduct of his agency; and, I think, no sufficient reason appears for supposing that the appellant assumed such a control over the manner in which he executed his work as to constitute him its servant. In my opinion, the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the "agent" in the course of his attempts to obtain proposals.

In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort.

Your Honours will see that starts, "In most cases". I read on:

The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.

McHUGH J: And that theme runs right through his Honour's judgment in that case. That is the notion of representation.

MR WELLS: Yes, and that is what then follows in the next passage.

CALLINAN J: But, Mr Wells, you cannot overlook the fact that the agent there or the - I call him the agent - was soliciting and had authority, as his Honour said at the top of page 49, to receive premiums, and as his Honour said at page 50, about halfway down the page, he:

represented the Company in soliciting proposals -

You cannot ignore the significant financial benefit, I would have thought, to the company and it is that context that the case is decided. I do not, with all due respect, think that it necessarily applies to situations in which there is not a tangible benefit, a real and tangible benefit to the, and I use the word loosely, to the principal, or the owner, if you like. It is the whole context of the case, is it not? His Honour discusses at length the arrangements.

MR WELLS: No. No, with great respect, your Honour. We would say, along, I suspect, with many others, that the core of the case comes from the passage at the bottom of page 48 where his Honour says:

But a difficult arises when 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.

A person can be an independent contractor and yet for some purposes may stand - I use it only as a label - in a representative capacity.

GLEESON CJ: Look at the passage in the middle of page 49:

there is, I believe, no case which distinctly decides that a principal is liable generally for wrongful acts which he did not directly authorize, committed in the course of carrying out his agency by an agent who is not the principal's servant or partner - - -

MR WELLS: But the critical word, your Honour, there is "generally". His Honour is not saying that, as it were, there is a principle of non-responsibility. He is saying that there is a principle which does not admit of a general liability for the wrongful acts of someone who is not a servant. That does not mean to say - and, indeed, his Honour goes on to say as much - that they may be special relationships that are nevertheless created which do give rise.

GLEESON CJ: Well, what is the test for determining whether a principal is vicariously responsible for the negligent act of an agent? You do not suggest that a principal is always vicariously responsible, do you?

MR WELLS: We do not need to, your Honour, and, therefore, we do not.

GLEESON CJ: No. What is the test?

CALLINAN J: "Scope and course" is the usual statement, is it not? "In the scope and course of his agency or his duty or his work"?

MR WELLS: Yes.

CALLINAN J: Is that right?

MR WELLS: Well, that would not necessarily, your Honour, provide a sufficient answer to the proposition that a principal is not generally liable for wrongful acts. It is of some significance, if the Court pleases, that in that same passage - and I will answer your Honour the Chief Justice's question - Justice Dixon notes that:

The rule which imposes liability upon a master a master for the wrongs of his servant committed in the course of his employment is commonly regarded as part of the law of agency -

and there is some real historical justification for that.

GUMMOW J: Agents to do what?

MR WELLS: I beg your pardon, your Honour?

GUMMOW J: Agents to do what?

MR WELLS: Well, your Honour, with respect, that - - -

GUMMOW J: Agents to bring about some legal relationship between the principal and a third party?

MR WELLS: There is no doubt that in this case that was the context, but there is nothing to suggest that simply because that was the context here that the - - -

GUMMOW J: Well, what else does the word "agent" mean? It just seems to be some slogan that is uttered in these cases.

MR WELLS: Justice Dixon himself mentioned and made the point of mentioning - - -

GUMMOW J: I mean, it is clearly seen in.....case he was an agent all right. He was going to bring about contracts between the people he visited and the company.

MR WELLS: Yes. The agency of which we are speaking in this case, however, your Honour, is not an agent to effect a relationship between the principal and a third party. It is an agent and we do not really put our proposition on the basis of agency as such, but he is an agent in the sense that the owner is carrying out a particular act through the agency of someone else by means of someone else.

GUMMOW J: Well, how does that help? How does that help?

MR WELLS: Well, your Honour, it does not say anything about what "agent" means there - your Honour is right - but what it does do is to emphasise the notion of vicarious liability perhaps rest here unusually and in contrast to some other areas of vicarious liability on the notion of identification.

GLEESON CJ: Bearing in mind what Lord Justice du Parcq said was the basis of this liability, would it make any difference to your argument if for the word "agency" there was substituted the word "delegate"?

MR WELLS: We would be happier with the word "delegate" simply because it emphasises that what is being done - and this is much easier to see when you are doing something with a chattel - is an owner's function, an owner's task, an owner's purpose, however one wants to describe it.

GUMMOW J: It is an exercise of what goes with the right to possession, I suppose.

MR WELLS: Yes, and that is why, although Lord Justice du Parcq says - - -

GUMMOW J: For this gentleman who actually flew the plane to have done so other than with the permission of the owner would have been a conversion, I suppose? There would have been some tort against his rights in relation to the chattel, I suppose? Some sort of permission is involved.

MR WELLS: Yes. Probably in as closer terms of analysis as one can undertake on the basis of Coggs v Bernard, he would be a mandate; it would be mandatum. It is a case where, in this case, there has been a bailment of a chattel.

GUMMOW J: I wonder if the principle at root has not something to do with the dangerous nature of a chattel.

MR WELLS: That might, your Honour, identify the limits of the principle. It might be a basis for identifying the limits of the principle here and there is no doubt that in the United States there is a quite separate document about dangerous instrumentalities under which both motor vehicles and aircraft fall. There is vicarious liability - - -

GUMMOW J: But why can we not be let into that secret? Why do we only worry about the House of Lords?

MR WELLS: Indeed.

GLEESON CJ: One of the difficulties about getting away from the concept of agency at this stage is that an entire system of statutory compulsory third party insurance in relation to motor vehicles in most Australian jurisdictions is built on a concept of deemed agency. The Motor Accidents Act 1988 of New South Wales, for example, presumes in certain circumstances a driver, even if the driver is a thief, to be the agent of the owner acting within his authority. It does not presume the owner to be vicariously liable. The presumption is agency and everything is understood to follow from that.

MR WELLS: It is not universal, your Honour, that that is the way in which compulsory third party insurance is provided for the use of motor vehicles. In some jurisdictions it simply says that anybody who drives is encompassed within the insurance.

GLEESON CJ: Yes, but just take section 53 of the Motor Accidents Act 1988 of New South Wales. It does not say the owner is vicariously responsible for the driver. What is says is the driver is presumed "to be the agent of the owner acting within the scope of" the owner's authority. It is thought to follow from that that the owner is vicariously liable. So, if we start interfering with that principle or that understanding, there may be some consequences that extend way beyond this case.

MR WELLS: Your Honour, those two answers can be made to that. If the correct principle is a principle of vicarious liability and not a general principle of agency, then that is what this Court should say, and if it has those kind of consequences, then no doubt very quickly - but as your Honours know, parliaments have in the recent past been able to act very quickly in response to decisions of the Court, and no doubt that could happen there, and it would mistake, in our respectful submission, to distort a principle, if distortion is what it is, in order to preserve the mechanism by which compulsory third party insurance is provided.

GLEESON CJ: Well, at least in relation to motor vehicles - and I am not suggesting for a moment the principle is limited, that is what this case is about - but at least in relation to motor vehicles, that statutory insurance scheme is based upon an assumption that at common law, there is vicarious liability of an owner for the negligence of an agent acting within the scope of his authority.

MR WELLS: Well, your Honour, one needs to add this, that the Hewitt v Bonvin principle - that is 1940 - is a principle that, in fact, predates that in Australia. There are decisions, for instance, in the South Australia Supreme Court in the 1920s, Mortess v Fry is such an example, which develops quite separately from the notion of right to control the notion of agency in this sense, that where the chattel, the motor vehicle, is being used for the owner's purpose, even if it is simply doing a kindness to a guest, then vicarious liability follows. If that be the background of this legislation, it may be open to conclude that when the legislature is talking about deemed agency, it is talking about a deemed agency of the kind that at common law would produce vicarious liability. So when one talks about deemed agent, we are not simply talking about any agent. We are talking about a deemed - I would prefer to use the word "delegate" - I mean that still is an agent, but an agent who is, in effect, using the chattel for the owner's purposes, and therefore, in a sense, is standing in the shoes of the owner and it is that kind of agency.

McHUGH J: That seems a departure from an important distinction at common law. From the earliest times, the common law made the owner of land responsible for things that happened, but it never made the owner of a chattel, as such, liable. It goes back to the cases like Laugher v Pointer back in the last century. Now, is this some new development in relation to chattels, or are these chattelled cases really exemplifications of a principle of agency law?

MR WELLS: Yes. Your Honour, the history is a gnarled history, as in a gnarled tree. It starts with notions of control, that is, a chattel principle, but it has developed into more than that. Can I take a moment, perhaps, to answer the question the long way round? I will give the short answer first. The short answer that we would give is that it is a principle that derives from the presence and use of a chattel, but it is not necessarily a principle about control of a chattel; it is a principle about use of a chattel and, to that extent is a principle about agency.

McHUGH J: Can I interrupt you just to say this, that once you concede, as you did earlier, that there is just not an absolute vicarious liability for the ownership of chattels that must be done for some purpose or for some benefit, it does seem that you do bring in these notions of agency and that you just cannot look at it in terms of a chattel-type principle.

MR WELLS: I do not think, with respect, we are saying that. But we are saying that if there are actions of a user which are to be seen as actions as agent of an owner - actions as agent of a principal, who is the owner - that relationship nevertheless only becomes what it is because of the relationship with the chattel. It does not meant to say that the controlling elements - sorry, I will not use the word "control" - it does not mean to say that the elements of the principal are tied up with possession of the chattel. But it does mean to say that the nature of the agency that we are talking about derives from the right to possess the chattel.

McHUGH J: But does it amount to anything more than from the fact that somebody is put in possession of a chattel, one can draw the inference that the owner has put the person in that position to use it for the owner's purpose?

MR WELLS: There is much authority on the question of what prima facie inferences can be drawn from proof of ownership of the chattel and use of the chattel by somebody else. There are New South Wales decisions, which I think we have referred to in our list: Gosson v Jordan Industries, a decision of the Full Court as it then was in New South Wales; Christmas v McNicol, Chief Justice Jordan, where that proposition is put that, certainly in relation to motor vehicles, and in relation also to - Chief Justice Jordan speaks about ships, trains, barges. Evidence of ownership with evidence of use by somebody else can be prima facie evidence that the use is as servant or agent.

HAYNE J: But are those cases about a major premise or are they cases about a minor premise of proof?

MR WELLS: They focus, your Honour, on what is to be inferred from proof of ownership. But they commence with some statements of principle.

HAYNE J: But the inference that is sought to be drawn is one about use for the owner's benefit?

MR WELLS: The answer to that, your Honour, I think is no. I think in the three cases that I have in mind the inference is of a use of the chattel for or on behalf of the owner, either a servant or agent, and it is stated simply in those terms, without adding the further requirement that it is evidence that it is being used for the owner's purposes. But the principal inference, and the principal evidentiary proposition arose in consideration of the use of commercial vehicles, and that is what Christmas v McNicol, for example, is about. Where there is a commercial vehicle, the inference that is drawn from use by somebody else is that it is being used for the commercial enterprise, either as servant or as agent.

An issue arose which was determined by the Court of Appeal in Jennings v Hannan as to whether that same inference arose in relation to the use of a private vehicle. They were both vehicle cases, it has to be said. And their Honours then said, "Well, the law has now developed to the point really where there is a Morgans v Launchbury principle", although it was before Morgans v Launchbury was decided, "therefore we think we should draw the same inference about `agency' or `service' from a separation of ownership and use".

GLEESON CJ: Mr Wells, I am sure you have read Professor Atiyah's book on this subject and his criticism of Sir Owen Dixon's judgment, and we have to face up to the problem that he raises and that is, whether or not what has developed in cases such as - the case of Morgans was decided after him - but in cases such as Hewitt v Bonvin, is an anomalous exception in relation to motor vehicles introduced by courts as a matter of policy because of the danger constituted by motor vehicles, or whether there is some general principle that can explain them. Now, we have to face up to that. What do you say about that?

MR WELLS: Well, your Honour, not only do the authorities reject the suggestion of a special rule for motor vehicles brought about by a particular policy but, in our respectful submission, as a matter of principle, such a limitation cannot be justified and I am happy to answer your Honour's question and your Honour Justice McHugh's question in one go by taking a step back. It is probably only necessary to go back as far as the decision of this Court in Soblusky v Egan 103 CLR 216, and can I invite the Court to turn to that.

Can I just take a moment to set the scene for this case, your Honours, because this case marks, we respectfully submit, a watershed. It is a case that both looks back and looks forward and, in that respect, in our respectful submission, the principles that follow it are simply a development of what was decided here.

The short facts can be taken up from page 224 of the judgment and your Honours will see that the principal players were these: Soblusky, who was the appellant and who was at the relevant time the person who had the right to possession of the car; Behrendorff was the registered owner of the vehicle but as the judgment goes on to point out, Behrendorff had agreed to sell the relevant vehicle to Soblusky. He had done it by, in effect, handing the vehicle over and informally requiring Soblusky to pay the hire purchase instalments on the vehicle because it was a vehicle held by Behrendorff under a hire purchase agreement of the kind that operated in the early 1960s. Soblusky in return provided his vehicle to Behrendorff as part payment for the transaction and it was in those circumstances that Soblusky came to be in the vehicle. He treated it as his.

On page 225, for instance, your Honours will see that at about point 3 their Honours in the joint judgment say that he, Soblusky:

was at best a bailee. But of course he treated the car as his and drove it about as his own.

And then it turns out that a particular journey was embarked upon. They were all going to attend a meeting of the Buffalo Lodge, of which they were members. A person by the name of Lewis was the driver and Egan was one of the other passengers. Now, your Honours, apart from reciting the facts which led to this journey in which everyone put in some money to contribute the petrol, nothing is as such said about whether this was for exclusively or partially for Soblusky's purposes, but what is clear and that is in this case Soblusky was present in the car, and just after the middle of page 225 it is recorded that:

After a time Soblusky who was sitting next to Lewis asked him if he minded if he went to sleep. According to Soblusky he went to sleep and while he was asleep the car crashed.

Now, there were a number of issues that arose in the case and, in fact, there was another action altogether involving some of the same parties, but for present purposes the issue was whether Soblusky was liable, vicariously liable, to Egan, the passenger, for Egan's injuries suffered in that crash at the time.

GLEESON CJ: At the bottom of the 228 and the top of 229 you will see references to text writers commenting on this and treating it as a special rule in relation to motor vehicles.

MR WELLS: Yes, but their Honours did not and, indeed, they recite - both the passage, or at least the work from Dr Fleming in his earlier editions, but subsequent editions have maintained the same views, in which Dr Fleming suggested that what was at work here was a pressure to find somebody who could be financially responsible.

GLEESON CJ: But part of the point is that the reason they are saying that about motor vehicles is because it is different from what they regard as the ordinary rule concerning the liability of a principal for an agent.

MR WELLS: Yes, that is why they are saying it, your Honour, and, indeed, as the Court went on to observe, that Dr Baty was even more pungent in his remarks when he talked about the real reason being that one needed to find a deep pocket, but the Court rejected that as being the basis of the rule and they made two comments about it, if the Court pleases. The first is a comment about what was then a developing principle in England at that time, although, as we would say, it had actually started developing in Australia already, even at the time of Soblusky, which they identify as the branch of the law - perhaps I will read the whole sentence:

It is no doubt true that the development particularly in England of the branch of the law relating to the responsibility of the owner of a motor vehicle for the negligence of a person driving under his authority or consent has gone far.

GLEESON CJ: Now, the next sentence is of some importance too.

MR WELLS: Yes:

It is perhaps true also that it is easier to see the direction in which the branch grows than to understand the support it obtains from the main trunk of traditional doctrine governing vicarious responsibility.

Hence my reference to the gnarled tree and it needs to be said that there had been cited to the Court by counsel the English decisions, including Hewitt v Bonvin and Ormrod v Crossville Motors in 1953 in which the Court of Appeal held that a use of a vehicle for a purpose which was partially the purpose of the owner was sufficient to attract vicarious liability.

But, their Honours put that to one side. Their Honours took the view that it was not necessary to examine that particular development because, as they say at point 8, point 9:

But when all is said and done, the present case does not involve any new doctrine or any new application of old doctrine. Motor cars from their very nature do not lend themselves in point of fact to analogies to the horse and buggy but it was in horse and buggy days that the law governing such a case as this was settled.

Two things can be noted about that, if the Court pleases. The first is that their Honours, notwithstanding that statement, did not have any difficulty in taking a step from horse and buggy to motor vehicles, notwithstanding that by 1960 motor vehicles had become a social phenomenon of the century, well and truly, and overwhelming social intercourse in a way that the horse and buggy never did, but despite that and despite the fact that the horse and buggy principles is what their Honours were content to rest with, they applied it to motor cars.

GLEESON CJ: Their discussion from the middle of page 230 to the top of 231 of the cases of Wheatley v Patrick and Samson v Aitchison appears to be taken almost directly from what Lord Justice du Parcq had said in 1939 in Hewitt v Bonvin. Did they refer to Hewitt v Bonvin or comment on whether they agreed with it?

MR WELLS: It is cited to them, but so far as we can see it is not referred to in the judgment but there is no doubt at all that as their Honours in fact record on page 228 at point 9:

A bold but well conceived attack was made upon the validity as well as upon the application to the given case of the modern attempt always to fix liability for the negligent management of a motor vehicle upon the owner whoever may be the driver so long as he drives with the owner's consent and for some purpose in which the owner has some concern.

They recorded the attack and the attack was embarked upon.

GUMMOW J: By Mr Connolly, by the look of it.

MR WELLS: By Mr Connolly, as he then was, if the Court pleases, including a reference to what was said to be the modern English authorities. Your Honours will see, for example, at the top of page 220 there is a reference to Ormrod. Ormrod, itself, refers to Hewitt v Bonvin, and 221 - at the commencement of the responding argument there is a reference to Hewitt v Bonvin, Ormrod v Crossville, Samson v Aitchison.

GLEESON CJ: What do you say is the principle for which Soblusky stands as authority?

MR WELLS: It is a principle of vicarious liability which their Honours identified as actually having been traced from a principle of direct proprietorial liability which is what the discussion on page 230 is directed towards, namely, that where you have a horse and gig and you have the owner, in effect, sitting right next to the driver, that there is a reality of control such that the owner can be regarded as effectively being the driver sufficient to bring the action in trespass rather than case. Those cases being a discussion, in effect, of forms of action, and whether allegations in the declarations were sufficient to attract trespass rather than case.

But the principle that their Honours applied was not a principle of direct proprietorial liability, but that which was derived from it by reason of, as they say, the "line of authority from which Samson v Aitchison proceeded", where control was then converted into right to control.

GUMMOW J: What is the significance of the action being in trespass rather than case?

MR WELLS: Apparently the learning was, your Honour, as I understand it, that in trespass, one had to allege, in effect, a direct action and if an action was being done, for instance, through a servant, for example, the action had to be brought in case. That is why, for instance, Booth v Mister in the middle of page 230, is of particular significance. It was an action brought in case and not in trespass, that is, it was an action brought on the special case and not in trespass, although there the participants on the horse and gig were a servant of the owner and a third person, and the effect of that decision was that the owner was vicariously liable for the actions of the servant, the actions of the servant being conducted through the person who was holding the reins and sitting next to them.

McHUGH J: It is interesting that, in a well known case of Deatons v Flew, the case of the barmaid throwing the glass, in this Court, I have always thought that they sued in trespass when they should have sued in case - in negligence in that particular case.

MR WELLS: The discussion on this page really points up that difference and identifies that, initially, in the horse and buggy context, where by and large the owner, if they were present, was actually realistically in a position to seize the reins, whereas an owner in a motor vehicle is not realistically in a position to grab hold of the wheel.

McHUGH J: The principle is stated on 231, is it not, in the joint judgment?

MR WELLS: It is. It is the passage that follows immediately after the reference to Samson v Aitchison.

McHUGH J: Yes.

MR WELLS: I have to say, if the Court pleases, that precise as it is, as one would expect from a court, particularly a court consisting of those members, it nevertheless has some enigmatic aspects to it. It starts:

It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his powers of control. Thus it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control. This therefore must be regarded as an obvious case.

GLEESON CJ: Where does that leave the owner or bailee in possession of an aeroplane who is back on the ground?

MR WELLS: One thing is clear, I think we would say, your Honour, and that is that the owner is not in possession. The owner in the - - -

GLEESON CJ: But the question is whether he is in control in the sense there referred to. As you pointed out, it is all very well to say that the owner sitting next to the driver who can seize the reins at any time is in control.

McHUGH J: I would have thought he was in possession. He does not have the custody of the plane.

MR WELLS: There are difficulties, your Honour, about that. Of course, we know that a servant is said to have custody and not possession of an owner's chattel, but there is a danger that one might end up by begging the question and working backwards, saying someone is in custody and therefore they are an agent or in the nature of a servant.

GLEESON CJ: The law in relation to motor vehicles at least has gone way beyond the necessity to have the owner sitting in the back seat dozing or seating in the front seat able to grab the steering wheel.

MR WELLS: Yes, your Honour, and this is why this is a watershed case because, on the one hand, the person with the right to possession and therefore having the power of control is present.

GLEESON CJ: But what do you mean by power of control? What degree of control is necessary?

MR WELLS: That is part of the enigma of this proposition, your Honour.

GLEESON CJ: Would it have made a difference to the result of the present case if the reason why Mr Davis had asked Mr Bradford to do it was that he had to go to a neighbouring farm and, having asked Mr Bradford to do it, he then drove off in his car leaving Mr Bradford and the aeroplane and the young boy on the ground?

MR WELLS: Your Honour, from the analysis that we would propound, it would not make a difference. It is difficult for us - and perhaps I am missing an opportunity - to justify, I think, a proposition that when Mr Bradford took off in the Aeronca with Travis in the rear compartment and Mr Davis remained initially on the ground but ultimately in another plane and was concentrating on the other plane, that he in a sense retained a power of control that is being spoken about here. It is not a power of actual control that is being spoken about here. It is noteworthy that what their Honours talk about is circumstances where he can always assert his power of control, not necessarily exercise it.

GLEESON CJ: If control is a test, then the whole system of compulsory insurance in New South Wales is based upon a misapprehension, because all that is deemed is that the driver is the agent of the owner and acting with the owner's authority. It does not deem the owner to be in control of the vehicle.

MR WELLS: No, and we do not put a proposition that rests on the kind of control that their Honours were talking about here. Their Honours found the circumstance of this case sufficient for them to decide it without determining whether there is a principle giving rise to vicarious liability that applies where the owner or the person with the right to possession exercises that right or that control by surrendering possession, by bailing the chattel to somebody else upon terms.

McHUGH J: I think you are putting too much emphasis on the question of control, whereas perhaps the emphasis of that passage on 231 should be on his doing it on his behalf.

MR WELLS: Yes, your Honour.

HAYNE J: That is that the distinction drawn is between the owner that says, "Please ferry my aircraft for me from airport A to airport B", and the owner who says, as an act of pure generosity, "Go and use the aircraft as you will for the day, the week. Have a joy flight yourself".

MR WELLS: And enjoy yourself, that is right, your Honour. That is the distinction that not only appears to be drawn, but it is a distinction which is justifiable.

GLEESON CJ: It is a distinction on which the decision of the House of Lords in Morgans actually turned.

MR WELLS: It did, and that is because, although in terminology a distinction was drawn between permission on the one hand and request on the other, the substance of it was exactly that, that permission was not enough unless it constituted an authority to use the chattel on behalf of and for the owner's purposes.

GAUDRON J: For a purpose of the owner.

MR WELLS: Yes.

McHUGH J: And that is the emphasis that Sir Frederick Jordan put on it in Christmas v McNicol Bros, which I always regarded as standard doctrine in New South Wales, 41 SR(NSW) at 321, Sir Frederick said:

In the case both of commercial and of private vehicles, the rulings that user may be inferred to be user on behalf of the owner, in the absence of evidence to the contrary which ought to be accepted, are based on a view that, as a matter of common knowledge, it is more usual than not for vehicles to be used by or for their owners.

The Motor Vehicles Third Party Insurance Act and its equivalents, was a departure from principle, in that sense, as Sir Owen Dixon recognises in Soblusky. They were not concerned whether it was.....behalf or not, they just said if you were driving you were deemed to be the agent. Many cases, no question of control and, very frequently, no question of using it on behalf of the owner, but liability was to flow.

MR WELLS: Your Honour, in fact if we stay with that page, page 320 of Christmas v McNicol, 41 SR(NSW), we can note some other aspects. In fact, we can go back a page to 319 where his Honour actually starts off with a negative proposition:

If a person sustains physical injury to himself or his property through the negligent use of an article by another person, it is the user of the article who is liable in tort. Its owner is not liable as such; but he too incurs liability if, for example, it is established that the user was his employee, and that the use was in the course of his employment.

It refers there to Hewitt v Bonvin. I think I am right in saying - I have not checked this, but he might be referring to Lord Justice MacKinnon, who was inclined to deal with the analysis much more closely on an analogy with master and servant, even if an unpaid gratuitous servant. But then he says, after noting an exception to the general rule:

But, save, in this special case, in order to fix with vicarious liability a person other than the negligent driver himself, it is necessary to show that the driver was at the time an agent of his, acting for him and with his authority in some matter in respect of which he had the right to direct and control his course of action.

A very important different expression, in our respectful submission. Not actually there talking about exercising power of control, but actually saying "the right to direct" a course of action. If one takes, for example, this case, Mr Davis had the right to direct the course of action by, as he did, we say in law, saying, "You, Mr Bradford, use this plane under my authority, but on these conditions".

GLEESON CJ: It is interesting, you know, Hewitt v Bonvin was decided only two years before that case and Sir Frederick Jordan had it in front of him. He has added something to the statement of principle of Lord Justice du Parcq. Lord Justice du Parcq in (1940) 1 KB 188 at the top of page 195 states a proposition that is the same as Sir Frederick Jordan, if you stop what Sir Frederick Jordan said at the word "authority". But Sir Frederick Jordan has added a qualification about the right to direct and control, which I do not think you find in Hewitt v Bonvin.

MR WELLS: No, that is correct. It is not. And if your Honour is referring to the top two lines of page 195 of Hewitt v Bonvin, it is not expressed in exactly the same terms. And the part that Lord Justice du Parcq adds is "driving on the owner's behalf" which is already part of the proposition that exists in Sir Frederick Jordan's formulation of it.

The reference to control, no doubt, is an acknowledgment that, for instance, in Samson v Aitchison, right to control was said to be the element that determined the case, although no one ever explained whether that actually meant the right of the salesman in that case, because he was sitting next to the driver, to wrest the wheel from him.

GLEESON CJ: Once you start introducing a consideration of right to direct and control, you raise a question as to what degree of immediacy of control needs to exist.

MR WELLS: Yes. Well, our contention, your Honour.

HAYNE J: And is not "right to control" something that flows out of doing on owner's behalf plus fact of ownership?

MR WELLS: Yes, your Honour.

HAYNE J: That is, "You are doing it for me and I will tell you how to do it and I can tell you how to do it because I own it or I have immediate right to possess it."

MR WELLS: The way we put it is mandate. What has happened in these circumstances is that the owner, having the right of control, if we want to do that, exercises it by saying, "I authorise you to either use or even take possession of my chattel to do something for me but not otherwise". That creates a legal relation between the two, particularly in the case of bailment because rights and obligations flow from a bailment on terms.

McHUGH J: I think Sir Frederick Jordan may have had in mind, in particular, when he added those words, the special case of people like ship's pilots, other people, policemen and people like that, perhaps ambulance drivers who, in special situations, cannot be controlled. They may be using your vehicle. They may be doing it for you and yet the law vests in them an independent discretion.

MR WELLS: They cannot be bound by the terms of a bailment is what it would amount to.

GLEESON CJ: At the time Sir Frederick Jordan wrote this, was the control test dominant in relation to vicarious liability for a servant?

MR WELLS: Well, your Honour, it is difficult to determine but can I answer it by taking your Honours to a humble decision of a single judge in 1928 in South Australia, Mortess v Fry, and can I just set the scene. Samson v Aitchison was decided by the Privy Council in 1912. It was a case of an owner or bailee with a right to possession being present in the vehicle and it was determined upon that basis, namely that whatever this means, that person, although they were there trying to sell the car to the other two people in the car, one of whom was driving, nevertheless retained the right to control the car, and therefore the driver, and had not surrendered that control, 1912.

In 1926 the Court of Appeal in England decided Parker v Miller. It is not on your Honours' lists of authorities because it is referred to both in this case and in Hewitt v Bonvin. That was one of the first cases where the issue arose where there was an absent owner. The owner was not in the vehicle. It had been lent to a friend in order to take another friend home and then to bring the car back. Now, in 1928 Mr Justice Richards decides Mortess v Fry.

GLEESON CJ: Well, the point you make is on page 64, three-quarters of the way down the page.

GUMMOW J: Lord Justice Scrutton started them off.

MR WELLS: Yes. Lord Justice Scrutton called in aid Carmen v Burnett in order to determine Parker v Miller and your Honours will see two things, that, first of all, even Mr Justice Richards felt very reluctant about adopting that case as deciding the case before him, which was the case of an absent owner in circumstances where the driver was driving it for the purpose of the owner, namely to, as it was put, do a kindness to the owner's guest. His Honour, without citing authority, but definitely seeing this as being the primary solution, determined it on the purpose for which the car was being used, page 63, middle of the page:

The test appears to me to be this: Whose affair was the son engage in; was it his own or his father's?

And, importantly for our purposes, without reading all of that analysis, about the middle of the way down that paragraph, which is two-thirds the way down the page, his Honour says:

It makes no difference, I think, that the matter was merely an act of kindness to a guest, unconnected with any business transaction.

It was the owner's purpose for which the car was being used and that created the necessary relationship. His Honour's reference to Parker v Miller was an additional ground but it was, with respect, applied, it would seem, with some reluctance. It was simply cited. No analysis was undertaken of it. His Honour says:

From some observations reported in the recent case of Parker v Miller.....it seems that the liability of the defendant in the present case might be put also on another ground.

GLEESON CJ: Unless I am overlooking something, that test applied by the South Australian judge is precisely the test that was applied by the House of Lords in Morgans.

MR WELLS: Yes, exactly, your Honour. I think I am right in saying that there are some New Zealand cases that even pre-date Mortess v Fry where that same notion was under discussion. I regret that I have not included them on the list, your Honours, but one has to draw a line somewhere. Historically we find in England a notion of right to control which, in my respectful submission, not very clearly worked out because no one says exactly why it is important that someone should have the right of control until Parker v Miller expressed in relation to an owner who is present. Then when we get to the absent owner cases, although Parker v Miller tries to squeeze the Samson v Aitchison analysis into the circumstances of an absent owner, it does not work. Lord Justice du Parcq says that in Hewitt v Bonvin (1940) 1 KB. If I can take your Honours to that for a moment, his Honour says at page 195, point 7, having referred to the owner's purpose principle:

The decision in this Court in Parker v Miller, which has troubled some text book writers is, I think, merely another illustration of the same principle. In Parker v Miller this Court differed from a Divisional Court as to the effect of the evidence, but not, apparently, as to the law. The report is meagre, but it would seem that the defendant, who had been taking a friend and the friend's daughter for a drive, got out of the car and permitted or requested the friend to drive himself and his daughter home. The county court judge, whose decision on questions of fact was of course not open to review, must, I think, have drawn the inference that the defendant had delegated the tasks of conveying the female passenger to her destination and of looking after the car to his friend, who was therefore in charge of the car as his agent, and not merely as a bailee.

Bailee is not enough but bailee may be the important context in which the further element of, for want of a better word, agent arises.

If I could just stay with this case for one moment longer, if the Court pleases, at page 196, two-thirds of the way down, his Lordship offers this example:

If, for instance, a father consents to his young son inviting a guest to the family home, and then permits him to use the father's car for the entertainment or convenience of the guest, it may well be a justifiable conclusion that the son is driving for and on behalf of the father. Ultimately the question is always one of fact.

We would say as to purpose in the case at Bar, the fact is resolved in the appellant's favour and it is sufficient. The important point again is we are not talking here about benefit, we are not talking about an interest that the owner might have in the use of the car; we are talking about owner's purpose. It is not to the point therefore to suggest, as it has been suggested, that in this case Mr Davis obtained no benefit from authorising Mr Bradford to take Mr Davis' nephew for a ride in the plane.

McHUGH J: Your argument seems to be becoming somewhat more refined. It seems to be coming more round to the agency view.

MR WELLS: Your Honour will understand that I am keeping one foot well and truly planted on the chattel, and for good reason, in my submission, because the nature of, whatever we call it, agency is derived from the use of the chattel. It may be that Lord Justice du Parcq is right when he says liability depends not on ownership but on the delegation of a task or duty, but the delegation of a task or duty arises from the relationship that the owner has with his chattel and the user has with the chattel. So we come full circle on having to talk about - - -

GLEESON CJ: You need to hang on to the chattel because this principle is treated by all the commentators as an exception, some think an anomalous exception, to the general rule relating to the absence of vicarious liability of a principle for the negligence of an agent.

MR WELLS: Let us accept the general principle for a moment. It does not mean that what we are propounding here is an anomalous exception.

GLEESON CJ: Well, subject to whatever this qualification or exception amounts to, the general principle is, is it not, that unless you actually engage the services of an agent to go out and commit a tort for you, such as to go out and assault somebody, you are not vicariously responsible for the action of the agent in the same way as you are responsible for the action of the servant.

MR WELLS: That appears to be a statement of a general principle, a general position, but that is not to say that there are not particular instances of a vicarious relationship. That is why the presence of the chattel is so important, because one can still live with some general statement about vicarious liability of principles for agents and nevertheless identify, in circumstances like this case where the agency is derived from a relationship with a chattel, particular vicarious relationships; and that is the principle we contend for.

I am happy to talk about control or right of control, as long as it does not hide bound. In one sense it is strange, with great respect to their Honours in Soblusky v Egan, to talk about a sleeping passenger having a power of control. There is a sense in which, if one digs down, what is being said there probably does not need to be said because it is implicit, is that because the person is there, that car is being driven for his purpose. That is what the journey is about. We can have debates about - - -

McHUGH J: You have to bear in mind that there is quite a sea change in the liability of employers for the actions of people in the 1950s, starting with what I could call the hospital cases. The general theory was that because the hospital could not control the doctors, it could never be vicariously responsible for them. But that was exploded by Cassidy and other cases. In this Court in Zuijs' Case, the trapeze artist in 1956, he had failed at first instance on the basis he could not possibly be an employee because the circus owner could not control him on the trapeze, but this Court denied that.

MR WELLS: Yes, saying that it is enough that there is a right of control so far as one can.

McHUGH J: Yes.

MR WELLS: But that is not to say that although in our written submission we have identified some, we submit, very fair and justifiable analogies with what is important about the master/servant relationship, as it applies to this case, that is not to say that right of control is the determinant of master/servant either.

GLEESON CJ: Am I right in thinking that the Full Court in South Australia decided this case against you on the basis that they accepted the principle of Hewitt v Bonvin, but said it is limited to motor vehicles?

MR WELLS: Yes, that is correct and I would be happy to take the Court - - -

GLEESON CJ: I think we understand that.

MR WELLS: Yes, but it might be important to address the reasons why they should be so limited.

GLEESON CJ: Yes.

MR WELLS: If I could invite the Court to take out volume 3 of the appeal books again and come to, first of all, page 669, just to pause long enough to note that their Honours in the majority spent a little while working their way through Morgans Case, and at the end of it, page 671, line 5, their Honours concluded:

If these are the principles to be applied, the decision by the judge appears to be correct. Mr Bradford had completed the flight that he wished to make. He undertook a further flight in Mr Davis' aircraft, at the request of Mr Davis. Mr Bradford had no particular interest in the flight, whereas by undertaking the flight Mr Bradford satisfied the wish of Mr Davis to give pleasure to his guests.

Owner's purpose. Although, curiously, their Honours, when they formulate the principle that they decide ultimately not to apply, do not formulate it by reference to owner's purpose. If I can take your Honours on to that, that is to be found at page 679 which comes at the end of a careful survey of the Australian cases, including CML, which their Honours did not find helpful for their purpose. Page 679, line 25:

It can be seen from this brief survey of the cases, that an approach similar to that taken by the House of Lords in Morgans is fairly well entrenched in Australia, in cases dealing with the use of motor vehicles. While the cases are not entirely consistent, we consider that they support the view that the owner of a vehicle is vicariously responsible for the negligence of a driver if the owner has requested the driver to drive the vehicle, and if the vehicle is driven for a purpose in which the owner has an interest.

GUMMOW J: Now, what is meant by "an interest"?

MR WELLS: We, with respect to their Honours, would not entirely adopt that as the correct proposition. As can be seen from passages in Morgans Case, the existence of an interest or even a benefit is evidentiary only as to whether, in this case, the car was being driven for the owner's purpose, but it is not part of the principle and we do not, with great respect, support it as part of the principle itself. The principle is, and we would express it in this way, if I can just pause a moment - we would put it in this way in its application to this case, that the owner of an aircraft is vicariously liable for the pilot's negligent use and management of it where three elements exist.

The first is that the owner has entrusted the aircraft or its management --we are there combining both Soblusky and Morgans - entrusted the aircraft or its management to the pilot for the purpose of carrying out a task or function of the owners. The reference, by the way, to task or duty is not a reference to legal duty which might, otherwise, invite all sorts of considerations about non-delegable duty, it is simply duty, social or moral, the first element. The second element, the pilot has agreed to carry out that task or function upon the conditions specified by the owner as to the use of the aircraft, that is, he has accepted a mandate. Third, the damage or injury was caused by the pilot's negligent use or management of the aircraft in the course of carrying out the requested or delegated task for which purpose the aircraft or its management was entrusted to him.

GLEESON CJ: The principle cannot be limited to aircraft.

MR WELLS: No.

GLEESON CJ: So you substitute "chattel" for "aircraft"?

MR WELLS: We would. Again, your Honour, we do not have to for our purposes because we would say the principle must at least cover chattels of conveyance.

CALLINAN J: What about the example given by the Full Court, the gas barbecue was a chattel? Do you go so far as that? I mean, it is a serious inhibitor on ordinary social intercourse, is it not, if it applies to every chattel?

MR WELLS: Not necessarily, your Honour.

CALLINAN J: You would be very wary about asking anybody to touch any object that you owned.

MR WELLS: That might be a good thing, your Honour.

CALLINAN J: Well, it might be. It might also be the end of all social intercourse.

MR WELLS: Your Honour, the example suffers for want of facts. It is not possible to give an answer to an example that just talks about - - -

GUMMOW J: No, but it suggests that the principle and so forth has no root.

MR WELLS: Well, your Honour, says it suggests that. We would say on the contrary, with great respect.

GUMMOW J: In other words, it is just at a level of fact.

MR WELLS: I am not sure that we are at odds, your Honour.

GUMMOW J: Well, that is not a very acceptable principle really.

MR WELLS: I am sorry, your Honour?

GUMMOW J: That is not a very acceptable principle. There is not one and you just look at the facts and say, "It is a fair thing."

MR WELLS: No, we do not say that. What we say is the principle is one that is capable of being applied with discrimination to a variety of facts.

GUMMOW J: Well, it is chattels of conveyance? Is it limited to that?

MR WELLS: Your Honour, for our purposes it would be sufficient if it were limited to that, but it is a principle which is capable of being applied to chattels.

GUMMOW J: Okay. Well, why just chattels of conveyance? You may be right, but what would support that limitation?

MR WELLS: Only the kind of consideration which has waxed and waned in favour over the years, namely that it might be limited to chattels which in their ordinary use have a risk of causing injuring.

GLEESON CJ: What, like bottles of wine when you pull the cork out of them?

MR WELLS: That is why it is not, your Honour, particularly satisfactory.

GLEESON CJ: Perhaps it is limited to sparkling wine.

CALLINAN J: Judges have always been totally uninfluenced, of course, by the fact of insurance.

MR WELLS: So we are told.

GUMMOW J: But what is the situation here? Is there any insurance required under the licensing structure for these aircraft?

MR WELLS: Your Honour, I think I can say this, that there was a third party claim in this case, an action brought by Mr Davis against his insurer which was discontinued at trial.

GUMMOW J: Well, is it federal legislation or is it State legislation that controls the licensing of these aircraft operations?

MR WELLS: It is both, your Honour.

CALLINAN J: It is mirror legislation.

MR WELLS: It depends on whether it is interstate - - -

CALLINAN J: It is mirror legislation, I think, is it not?

MR WELLS: Yes.

CALLINAN J: The States have adopted the - - -

GUMMOW J: But this is just intrastate, is it not?

MR WELLS: Yes.

GUMMOW J: Is there any requirement of compulsory insurance - - -

MR WELLS: We do not believe so.

GUMMOW J: - - - under the legislation?

MR WELLS: Not under the legislation.

GUMMOW J: That is all I want to know. There is no legislative requirement?

MR WELLS: No.

HAYNE J: Can I take you back to the gas bottle example. What facts are missing? Do you say it is an insufficient example because insufficient facts are given? What kinds of fact do you say are missing from the example?

MR WELLS: There is an initial problem because this is an activity on the owner's land. But if we put that aside because it invites - I will not say - - -

HAYNE J: So they have gone for a picnic, right?

MR WELLS: Yes.

HAYNE J: We get rid of that. What facts are missing?

MR WELLS: I am much happier with that, your Honour.

CALLINAN J: And the owner is going to eat the sausages when they are cooked.

HAYNE J: If he can.

MR WELLS: They might be a bit charred by then.

HAYNE J: All that is missing is the specification of how this guest was negligent, is it not? Let it be assumed the guest turns every tap available on and waits a time before igniting the blue touchpaper without retiring. Now, if this principle that you assert applies beyond chattels of conveyance, is the owner of the barbecue liable for the negligence of the guest who has lit it in this way?

MR WELLS: We must first identify some other facts. The first is, is the owner present? If the owner is present, is the owner actually involved in any way with the barbecue or anything to do with it, or is the owner somewhere else?

HAYNE J: The owner is busy off stage left, opening the sparkling wine in such a way as to point the ejected cork at the eye of another guest.

MR WELLS: One hopes towards the creek. So we can have an absent owner. That is one thing that is important to establish. The next thing that we need to establish is, in what way has the barbecue been entrusted to this guest and for what purpose? Is it for the purpose of operating it and cooking the meat on the barbecue, or is there some other instruction or request that has been made? If what has happened is that the owner has entrusted this task to the guest, then assuming that we are still talking about a relationship of host and guest, even when we are down at the local reserve and not at home, assuming we are talking about host and guest, and assuming that what we can see is an entrusting of a host's task to the guest and the guest accepts it on those conditions, then the principle would apply.

GLEESON CJ: Take another example referred to, I think, in one of the cases or one of the textbooks on this subject involving a chattel of conveyance but not involving driving it. Suppose that the owner is at the wheel of a motor car and a number of passengers get in to be given a lift by the owner, and the owner says to one of the passengers, "It's too much trouble for me to undo my seat belt and get out, would you mind shutting the door behind the other passengers?", and the passenger shuts the door negligently and damages the fingers of one of the other passengers. Is the owner vicariously responsible for that negligence?

MR WELLS: Probably not.

GLEESON CJ: Why not?

MR WELLS: Because one has to go back to this issue of what is the task, if there is one, that is to be performed? Is it an owner's task?

McHUGH J: Well, that is the question. I do not know why you do not take these cases on? Why should not the victim of this negligence have a remedy against the owner? After all, the owner has the contribution remedy against the actual perpetrator of the wrongdoing and if the perpetrator has no money, well, why should the victim be deprived of an action against the owner whose task it was and who, on your argument, has delegated somebody else to do it?

MR WELLS: Your Honour, we are happy to - - -

McHUGH J: Distributive justice requires no less.

MR WELLS: Your Honour, we are happy to take these cases on but we do not want to stretch our supply line. We need to do it ensuring that we nevertheless have a solid principle behind us if, in fact - - -

CALLINAN J: I think he is somewhere near Moscow already.

McHUGH J: But if you go back to Chief Justice Holt who started all this running back in the 17^th century, he would have held the owner liable in those circumstances. But some time in the last century they put a gloss on it.

MR WELLS: In 1840.

McHUGH J: Yes, they started to put a gloss on it. That great common lawyer, Justice Willis in Bailey's Case, if you look at what he had to say, although it was directed to a servant's case, it can apply quite fully to these agency cases just as well as it could to a servant's case.

MR WELLS: And had been, before that time, had commonly been applied. Before the principle became solidified, more or less, into employer/employee relationships, it was a principle that was applied without regard to that relationship at all. We have referred, in our written submission, to a passage from Professor Cornish and Dr Clark's work.

GUMMOW J: Whereabouts is that? Where is that reference in your submission?

McHUGH J: It is in your submissions, I think.

MR WELLS: Yes, it is in our written submission.

McHUGH J: It is "Law and Society in England" - that is the name of it.

MR WELLS: Yes. With great respect to the authors, that few pages - - -

McHUGH J: It is at note 35.

MR WELLS: Thank you, your Honour; I am obliged. Those few pages, of which we only refer to one, under the heading "Vicarious Liability" - there are a number of pages that are dealt with here - really advert to that very point, that the notion of employment, for instance, for a cash wage was a very modern notion, emerging with industrial capitalism.

McHUGH J: Blackstone supported this, that the agent would be liable. There was a gloss put on by the Victorian judges in the last century.

MR WELLS: Lord Brougham, to the same effect, a passage which is quoted from that section of the book, in fact, which is well known. It is Duncan v Findlater - probably pronounced quite differently from that - where his Lordship says:

The reason I am liable is this, that by employing him -

we could say "engaging him" -

I set the whole thing in motion: and what he does, being done for my benefit -

he talks about benefit -

and under my direction, I am responsible for the consequences of doing it.

Again, simply stated justifications, or themes, but equally applicable, whether we are talking about employees or whether we are talking about people in other relationships; in this case, other relationships with the owner of a chattel.

GUMMOW J: The Victorians got up to all sorts of tricks with employment.

MR WELLS: There was certainly, it would seem, an anxiety to advance the cause of certainty, sometimes over the cause of principle.

GUMMOW J: Advance the cause of capital.

McHUGH J: Yes, industry. Lord Abinger invented the doctrine of the common employment.

MR WELLS: Indeed. As I say, and perhaps I am repeating myself, it is not in fact necessary for us to tackle that big task in order for us to justify where we are and how this case - - -

GLEESON CJ: Where do we find the Full Court giving the precise reason for their decision?

MR WELLS: It is on the next page, 680. When your Honour says "the precise reason", it is really - - -

GLEESON CJ: The third paragraph contains internal evidence of a change of authorship. "We" becomes "I".

MR WELLS: Yes, it does, your Honour. We noticed that but we chose to ignore it.

HAYNE J: It has even persisted into the report in the South Australian State Reports

MR WELLS: It has not been corrected.

GLEESON CJ: That shows the importance of proofing.

MR WELLS: Can we note some conclusions. There are a number of conclusions. In fact, there is a smorgasbord of conclusions in this and the next page. First, their Honours do not feel bound by Soblusky to come to any narrow view about the principle. Secondly, they accept that what I would call the Morgans or the Hewitt principle has been adopted in most States and regularly applied. Thirdly, their Honours note what they call a striking feature of the cases, namely, that they are confined to the use of motor vehicles. There are several comments that need to be made about that. It is not apparent from any case that the principle is expressed to be confined to motor vehicles.

GLEESON CJ: I thought the whole point of the decision in Morgans overturning the decision of the Court of Appeal in that case was that, whatever the relevant principle was, it could not be confined to motor vehicles.

MR WELLS: Indeed, your Honour, the notion of a motor vehicle rule was rejected.

GLEESON CJ: Lord Denning wanted to develop a principle about family cars. The reason why the House of Lords would not go along with the wider principle enunciated by the majority in the Court of Appeal was that they could not confine whatever was the relevant principle to motor cars.

MR WELLS: Indeed, your Honour. With respect, exactly. Indeed, in none of the Australian cases could it be said that the case confined the decision to the use of a motor vehicle. What their Honours are really noting here is that most of the cases have involved as the relevant chattel a motor vehicle. That happens to be the relevant chattel and one can understand why. As I said before, motor vehicles happen to be one of the social phenomena of the 20th century and it is inevitable therefore that they will throw up more than other chattels the issue as to what is the principle to be applied. But that does not mean that it is a motor vehicle principle and it is, with great respect to their Honours, wrong to say that these cases are confined to the use of motor vehicles. They are just cases that decide issues in which a motor vehicle was involved; no more, no less.

Their Honours would, with respect, have been justified in only saying that these cases are cases that involved in fact motor vehicles, but there is no expression of principle in any of those cases that suggests that it is a motor vehicle principle. Perhaps I should qualify this in one way only and that is in Jennings v Hannan, Mr Justice Walsh offered the remark that it seemed as though the principle of vicarious liability had been extended to motor vehicles.

GLEESON CJ: What is the reference to that?

MR WELLS: That, your Honour, is reported in the Court of Appeal in 71 SR(NSW) 227. It needs to be said, your Honours, that it was a case about evidentiary inferences.

GLEESON CJ: That is the page at which the remark was made, is it, 227?

MR WELLS: No, your Honour. The page at which the remark was made, I beg your pardon, was at page 229.

GLEESON CJ: Thank you.

MR WELLS: He says:

But however that may be, it seems to be clear that the extension has occurred and that liability is no longer confined to cases where the driver is a servant in the ordinary sense of the term -

and so forth, but those musings apart, there has never been a hint in the cases of a motor vehicle principle. So that is the first comment that can be made about their Honours' observations. At line 12 their Honours then go on to express what they call "The underlying principle" and they accept that it:

appears to be that if an owner requests another to use the owner's chattel, and the other agrees, and the task is one in which the owner has an interest, the owner will be responsible -

Now, the only qualification, again, that we would make about that expression "the principle" is the reference to "interest". The task must be the onus. If the evidence is that he had an interest in that task or there is a benefit to the owner from the task, that may be evidence that it is an owner's purpose and two members of the House of Lords made that point very clear. Can I pause just to invite your Honours' attention to that. If we can go to Morgans [1972] UKHL 5; (1973) AC 127 briefly and quickly, if the Court pleases, particularly at page 139G in the speech of Viscount Dilhorne where his Lordship refers to Barnard v Sully, a case referred to by Chief Justice Jordan in Christmas v McNicol:

Just as the inference may be drawn, from proof that the vehicle was owned by another, that the driver was driving as servant or agent of the owner, so may a presumption arise, where it is proved that the driver at the time of the negligence was doing something which was in the interest of the owner or for his benefit, that the driver was then acting as a servant or agent of the owner.

Similarly, in - - -

HAYNE J: But, again, that is about the minor premise of proof rather than the major premise of principle, is it not?

MR WELLS: Yes, with respect, your Honour, and that is why we take respectful issue with the way in which it is expressed by the Full Court. It has mistaken the minor premise for a major premise. Similarly, in the speech of Lord Cross at page 144 starting at C where his Lordship expresses the principle very simply in terms of ownership of the chattel. It goes on to say at D:

In deciding whether or not the user was or was not the agent of the owner it may no doubt be relevant to consider whether the owner had any interest in the chattel being used for the purpose for which it was being used. If he had no such interest that fact would tell against the view that the user was his agent while conversely the fact that the owner had an interest might lend support to the contention that the user was acting as the owner's agent.

Evidentiary matters. The principle is purpose.

GLEESON CJ: Could I just invite your comment on the first sentence on the page 135.

MR WELLS: Yes, your Honour.

GLEESON CJ: The first two sentences. Lord Wilberforce said he would be "surprised" if "special principles applied to motor cars".

MR WELLS: Yes.

GLEESON CJ: It is a little difficult in the face of that to say that Morgans is a case about motor cars, is it not?

MR WELLS: It would be, your Honour, and, indeed, the whole of that page, and not just the first two lines, is directed towards determining the case before the House on principles relating to chattels and expressly so. The next page, page 136, is where his Lordship turns to the Court of Appeal view. He says:

This is not the end of the case. The respondents submitted that we should depart from accepted principle and introduce a new rule or set of rules, applicable to the use of motor vehicles, which would make the appellant liable as owner.

His Lordship then goes on in the next two pages to give reasons why he could not accept that invitation. The other members of - the Lords took a similar view.

GUMMOW J: Yes, in paragraph D on 135, the point I was trying to make earlier this morning, his Lordship says:

I accept entirely that "agency" in contexts such as these is merely a concept, the meaning and purpose of which is to say "is vicariously liable," - - -

MR WELLS: Yes, your Honour. A point which was similarly - - -

GUMMOW J:

and that either expression reflects a judgment of value - - -

MR WELLS: Then his Lordship goes on to say that there are various ways in which you can identify the vicarious relationship, and he puts it in different ways: authorising the act, requesting it, "carrying out a task or duty delegated, or because he is in control of the actor's conduct." He does not identify any one of those as being the test, only identifying them as vicarious relationships. In a similar view about the use of the word "agency" is to be found in the judgment of Justice Dixon in - - -

GUMMOW J: But those matters his Lordship details around letter E, are they evidentiary or principle?

MR WELLS: It would not appear so, your Honour, because he goes on to say:

These rules have stood the test of time remarkably well. They provide, if there is nothing more, a complete answer to the respondents' claim against the appellant.

For them to be evidentiary, one would then have to have a principle to which the evidence was relevant, and what his Lordship is saying there, in our respectful submission, is simply that there is ample principle available to determine this on its facts.

CALLINAN J: It sounds a little like the passage that Justice McHugh referred to in the New South Wales case of Jordan where the Full Court there seemed to be speaking about it as a kind of rebuttable evidentiary presumption. "Fit to go to the jury", do you remember that expression?

MR WELLS: Yes. We would submit that his Lordship was not addressing that particular issue in this passage. He was concerned to confirm the view that no new principle was involved here, and that there was ample principle already available, however it was expressed.

HAYNE J: Of the various expressions given by his Lordship in that passage, which do you say applies here, or apply if there be more than one?

MR WELLS: Well, your Honour, we would like to collect a few. We would say the owner ought to pay because it depends what we mean by "requested it". If it means the tortious act, we could rely on that, but the one we would rely on is because the actor is carrying out a task or duty delegated, and "delegated" carries within it the notion of owner's purpose. That is why the word "delegation" is used.

HAYNE J: In particular, do you read his Lordship, when he refers to "authorising the act or requesting it", as referring to the act which is itself tortious?

MR WELLS: Yes, I do. So there are particular instances which his Lordship collects together.

GUMMOW J: They would support a principle going beyond chattels, surely, chattels of conveyance, would they not?

MR WELLS: Yes, they would, and it would appear that most of their Lordships were content to express the principle in terms of chattels generally, Lord Wilberforce, for one, and your Honours will find the same thing in the speech of Viscount Dilhorne.

GLEESON CJ: Some judges and commentators have described this as a principle relating to chattels and Professor Fleming, at least, calls it a principle relating to motor cars.

MR WELLS: Yes.

GLEESON CJ: Has anybody ever described it as a principle relating to chattels of conveyance?

MR WELLS: I think it was in one of the Canadian cases that it was so described.

GLEESON CJ: Thank you.

HAYNE J: If we fasten upon task or duty delegated how is that to be related, if at all, to the independent contractor circumstance?

MR WELLS: Simply that the two can coexist, your Honour.

HAYNE J: Yes. My question is, how do you say they coexist? Where lies the boundary between them?

MR WELLS: I can only answer that by examples. One example is the CML example. Another example is where there intrudes upon the independent contractor status another relationship which attracts, for other reasons, vicarious liability. If that sounds unhelpful to your Honour it is because we do not submit that it is necessary in any way to find a joining point between independent contractors on the one hand and - - -

HAYNE J: But what is it that is taking the independent contractor out of the notion of task or duty delegated by the person engaging the contractor?

MR WELLS: Two things, your Honour. The delegation that we are speaking about is as to the use of a chattel. So, we must first posit for the independent contractor the use of a chattel. We must then also posit that in relation to the use of the chattel he is constrained by the terms upon which it has been entrusted to him.

GLEESON CJ: But, suppose that every week during summer a man comes to my house to mow my lawn and in the course of doing that he negligently injures a child playing in my yard, does the question whether I am vicariously liable for his negligence depend on whether he is using his own lawn-mower or mine?

MR WELLS: It may depend in good part on that, yes. If he is using the owner's lawn-mower and if he is confined by the terms of a bailment to him which is to use the lawn-mower for the purpose of mowing the lawn, then a relationship - a vicarious relationship may indeed arise.

HAYNE J: Because it indicates he is not an agent but an independent contractor. I think there is a real distinction between the two, certainly in this area.

MR WELLS: Yes. The ownership of the chattel involved is likely to be, if not a decisive pointer, then a very significant pointer to whether there is an independent function, as Mr Justice Dixon would describe it, or whether what is being done is being done under a delegation or the entrusting of a chattel for the owner's purpose.

McHUGH J: Leave aside the Third Party Insurance Act, is there a distinction between me getting a person to take my furniture to another place using my truck or using his truck?

MR WELLS: Are we talking, your Honour, in relation to the use of the truck or in relation to the transport of the furniture?

McHUGH J: Yes, the truck. Well, the furniture - during the course of the journey there is an accident.

MR WELLS: Yes, there would be a distinction.

HAYNE J: Can I come back to the gardening example. It matters then, on your contention, whether the gardener happens to injure somebody using the mower supplied by the owner, as opposed to half an hour later negligently lopping the tree using his own saw, which he happens to be able to fit into the boot of his car, and if he happens to do both acts on the one day, it really is a bad hair day that day. The liability of the owner is different.

MR WELLS: The answer is maybe yes. We are making one assumption in the example that perhaps we need to pull out, and that is, is this person here as a friend or do we have some other relationship with that person, contractual or otherwise?

If we are talking about someone who comes around, the odd-job man, for example, who comes around and you pay them, then an issue may arise, which is not - I do not suggest that these are easily resolved. I am concerned only with putting the principle and seeing how it might be applied. It may be an issue as to, because you have engaged that person but supplied the implement, whether, nevertheless, there is such an independent function with respect to it that the owner of the chattel, who is also the principal, is not liable. That will depend - - -

GLEESON CJ: I would have thought a possible answer to the question is that the person concerned is an independent contractor who is carrying on his own business of earning money from me by mowing my lawn.

McHUGH J: Yes, the distinction is between doing your acts as principal or doing acts for you.

MR WELLS: No, I do not think we would - - -

GLEESON CJ: He is providing me with services for reward to him.

MR WELLS: Yes, and that is why it may matter very much as to what the nature of the relationship is, whether it is contractual as well, because it may well be that if it is contractual in that sense, then, although in one sense the use of the lawn-mower is for the owner's purpose, its use is not confined in that way. The terms of the bailment may be very different by implication in those circumstances. Can I vary the example. Supposing it is a friend who comes around. Supposing the owner is either disabled or is a single mother with children and in need of help and a friend comes round to mow the lawn. One recoils of course straight away from a social context of thinking the single mother or the disabled person must bear some vicarious liability for what is done, but if in those circumstances the friend is helping out, the lawn-mower is entrusted to the friend for the purpose of mowing the lawn for the owner, single mother or otherwise, there is every reason to think that in those circumstances there would be a vicarious relationship. One can test it this way. Injury happens. The friend is sued. The friend might well be justified in saying, "Why just me? I was doing this to help out whoever it was and I was using this chattel to help them out. Why shouldn't the liability that I have be shared?".

There is every reason, in my respectful submission, for saying that that question is rightly asked. You put yourself in the position of the friend and not always in the position of the owner. One can identify immediately why, in those circumstances, there is every good reason for a vicarious relationship to exist.

McHUGH J: The doctrine, I think, is Kish (1924) P that decides that they are joint and several tortfeasors.

MR WELLS: Joint and several, yes. Can I bring the Court back to the Full Court's reasons? One or two comments need to be - - -

GLEESON CJ: How long do you expect to require to complete your argument?

MR WELLS: I might need - I did agree with my learned that I would finish by lunchtime and I have not quite.

GLEESON CJ: If that agreement is honoured, you will finish in the afternoon, will you, Mr Quick?

MR QUICK: Certainly, your Honour.

GLEESON CJ: Yes. The only reason I asked the question was I was thinking of whether we needed to sit extended hours but it does not appear that we do need to do that.

MR WELLS: I would hope not, your Honour. Even if I completely fail and can prevail upon my friend to grant an indulgence, I would not be longer than 10 minutes more after lunch anyway. Your Honours will see at page 680, line 16, that the next reason given is that to apply the principle which the majority had just identified as applying to chattels generally would have an "unsettling affect" - I think they mean effect - "on the law", and the example of the gas barbecue is given in that respect. In our respectful submission, there can never be an unsettling effect on the law if the decision is a principle decision. It is more likely to be unsettling if one makes special rules which are justifiable only by judicial or other policy of one sort and another.

Our contention here is not that we are dealing with a principle that has been extended to motor vehicles, but we are dealing with a principle which applies to chattels including motor vehicles. If one looks at it in that way, it is difficult to identify what is thought to be the unsettling effect. The suggestion that we are dealing here with the extension of a principle is a suggestion which is not accepted by the House of Lords in Morgans and, indeed, in our respectful submission, would not have been accepted by this Court in Soblusky v Egan, if it comes to that. So, their Honours then go on to say, line 21:

that the Court is confronted with a choice that it must make on an issue of principle -

Our respectful submission is that the choice that their Honours made was not made on principle. It was manifestly a choice made by reference to other considerations which their Honours then went on to deal with. The first being the Fleming view about the extension of a principle to deal with what was said to be an "alarming carnage of motor traffic", their Honours, making the comment at line 28, "That the observation may well be correct", and as a result of that their Honours say, in the next paragraph, it would be "better.....to confine" what they called the "wider approach" to:

cases involving motor vehicles. It is the use of motor vehicles that gave rise to the wider approach.

Well, there is a problem with that, if the Court pleases. No doubt, it was in the context of the social phenomenon called motor vehicles that the principle came to be explored and developed.

But that is quite different from saying that the motor vehicle, as it were, is at the core of the principle and the suggestion here is that the principle should be confined because it was the motor vehicle that gave rise to the wider approach. Not so, we respectfully submit.

GLEESON CJ: Well, it seems to have been the horse and buggy.

MR WELLS: Yes.

CALLINAN J: Like the locomotive when it was also introduced in Victorian England and there was a huge number of cases - - -

MR WELLS: Yes, all to do with railways. That is the social phenomenon that provided the nursery for exploring and developing the principle, but it does not mean that they are principles about railways or locomotives, for that matter.

Their Honours go on to say in the same paragraph that the principle as it applies now - and it is difficult to know on what evidentiary material their Honours came to this conclusion, but they say that the narrow approach is "well settled" and:

has, presumably, been accommodated by insurers and others affected by it. The broad reach of indemnity.....probably explains how the wider approach to vicarious liability has been accommodated.

They mean in the area of motor vehicles. Well, your Honours, this, in our respectful submission, is not an appropriate source for the development of legal principle. It is not, in our respectful submission, appropriate to have regard to the comfort and convenience of the insurance industry as a ground on which to determine the scope of the principle. The principle comes first. It is true that there will be the rare case, as, for example, your Honour Justice McHugh discussed in the Esanda decision, where the scope of the common law principle may be affected by the limitations of the insurance industry, but ordinarily it is the other way round: the insurance responds to the nature and scope of the principle and the liability that arises from it.

There is no evidence here to suggest that insurance for vicarious liability for aircraft owners will be hard to procure or costly. On the contrary, there is no reason to think that the risk that we are talking about here cannot be absorbed relatively easily anyway or risk is really not very different, in kind, from motor vehicle risk, and one can undertake a comparison of motor vehicles and aircraft to identify the similarity of the risks involved in each.

If there is any unsettling effect on the insurance industry and if that is thought in some way to be a relevant consideration, then the present relative infrequency of aircraft accidents, that is by comparison to motor vehicles, provides the best opportunity to confirm the reach of vicarious liability for pilots without rocking the insurance boat. Aircraft use in Australia, although it is increasing, is not yet of such a frequency as to affect significantly insurers currently on risk.

GLEESON CJ: Is that a convenient time?

MR WELLS: If your Honour pleases.

GLEESON CJ: Well, we will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ: Yes, Mr Wells.

MR WELLS: Can I invite the Court to note that there is a convenient summary of the statutory regime for aeroplanes in the soon to be published article of Professor Keeler, I understand, to be published in volume 8 of the Torts Law Journal at page 46.

Could I invite the Court to take up volume 3 of the appeal book again and - - -

GUMMOW J: What will Professor Keller's article tell us?

MR WELLS: His article, your Honour, is actually rather a full case note on this case.

GUMMOW J: But what will it tell us about insurance?

MR WELLS: It simply summarised the legislative position and the interlocking of Commonwealth and State legislation with respect to aviation. It is on page 46. It is a useful reference.

GUMMOW J: Page 46?

MR WELLS: Page 46. Yes, your Honour.

GUMMOW J: It is only 45 pages long.

MR WELLS: I beg your pardon. Page 46 at point three. It is only a few pages from the end of the article, your Honour.

GLEESON CJ: That sounded like a fairly limiting basis on which to put this article before us, Mr Wells.

MR WELLS: At page 681, volume 3, their Honours in the majority in the Full Court took their final steps in the process of reasoning for confining the principle by acknowledging, first of all, that it was a relatively small step from motor cars to aircraft, but then turning to what they called the "problem of providing compensation" at line 10, the suggestion being that:

The problem of providing compensation for those suffering injury as a result of the use of an aircraft is not as acute -

as for motor cars, but they said:

not the same pressing need to extend vicarious liability -

Now, if the Court pleases, first of all, again, this is a consideration which, in our submission, has already been rejected as a consideration by the House of Lords and by this Court. It is, we respectfully submit, a curious approach for withholding the logical and natural application of a principle of the kind we are discussing until the volume of aircraft injury is great enough. That is something the legislature might think about in determining whether to intervene in some particular way, but it is not an approach which ought to commend itself to the common law. One might say, how is the court to determine when the time is ripe? How is one to explain to those who just miss out on the cut when the courts decide that the time is ripe to move into the area of aircraft? How is the court, on that basis, to explain itself to the appellant in this case? It seems a curious thing to say that the principle should not be applied because there are not enough plane crashes yet.

I mentioned before lunch that there is a good deal of similarity in the kind of risks involved with use of aircraft and motor vehicles and I mentioned 94. It is said, for instance, that motor vehicles are more frequently used as part of everyday life in Australia. Well, that is no doubt a matter of degree, but it needs to be recognised that light aircraft, anyway, are an increasing means of travel, particularly in a country like Australia.

GLEESON CJ: I am not sure why you would concentrate on aircraft. You are not trying to persuade us that the principle applies to motor cars and aircraft, are you?

MR WELLS: What we are putting to the Court is that it is a chattel principle but if it is thought that it is something less than that then it incorporates aircraft and we are tackling in particular, if your Honour pleases, the approach that the Full Court took, which, in effect, said, "We are stopping at motor vehicles. We are not going any further, even though we accept that the underlying principle is a chattel principle, even though." But I can deal with this I think shortly, your Honours.

It is said that there is a difference between motor vehicles and aircraft and the frequency of injury and death. On the other hand, if that is so, then it is also the case that invariably, in aircraft, accidents will result in serious injury or death. It is said - and this was a matter that is specifically mentioned in the majority reasons - that there is a modest standard of skill and training required for somebody to drive a motor vehicle and no doubt up to a point that is true, but in the case of aircraft the consequences of even minor departures from proper standards of skill are very serious. So there is an offsetting and it is not possible to say, we respectfully submit, that there is anything to be made of the consideration that motor vehicles are often driven by people other than owners and that that is not the case with aircraft.

It would be surprising if there were an aircraft which was piloted only by an owner and nothing more. But your Honour the Chief Justice is quite right, what we are tackling is an intermediate position there, if, contrary to our submission, we are not talking about a chattel principal anyway.

Can I put this observation to the Court, finally. If we are to see something in the development of the law over the course of this century, thinking back to Samson v Aitchison and Soblusky and then on to Morgans, it may be that it can be approached in this way that there has been a shifting of focus. Whereas the focus in Soblusky was upon the control of the chattel and by reason of being able to control the chattel, controlling the user, the focus has shifted to control of the user in which the historical control of the chattel plays a very important part because it is by virtue of that that the terms of bailment can be fixed but ultimately the focus has shifted to control of the user. Those are our submissions, if the Court pleases.

GLEESON CJ: Thank you, Mr Wells. Yes, Mr Quick.

MR QUICK: May it please the Court. We accept, as the Full Court accepted, that Morgans v Launchbury recognises a principle of liability of an owner of a chattel and we recognise that the principle recognised in that cases is as stated by the Full Court at page 680 of the appeal books, lines 12 to 15, namely:

The underlying principle appears to be that if an owner requests another to use the owner's chattel, and the other agrees, and the task is one in which the owner has an interest, the owner will be responsible for damage caused by the negligence of the person using the chattel.

But, from there we go on and we accept and submit it was the correct approach but having recognised the principle, the court went on to consider whether or not it was the right thing to do, in the circumstances, to apply that principle beyond the motor vehicle situation and that emerges from what the court said at page 680, at line 17:

We consider that if this principle were to be applied generally to chattels, it has the potential to have an unsettling effect on the law.

This focuses on what we submit is the situation. There may be a general principle as recognised in Morgans v Launchbury which is capable of being supported by various dicta in various cases.

The question in each case is, however, whether or not that principle ought to be applied to particular types of chattel. Thus far, with two exceptions to which I will come shortly, the application of the principle has been limited to motor vehicles. The question for this Court is whether or not this principle will be applied in this country to chattels other than motor vehicles, and in the instant case, to an aeroplane.

The Court is being asked by the appellants in this case, first of all to recognise a principle, and then, secondly, to apply it to the facts of the case. Not much attention has been focused so far on the facts of the case. It is our submission that that is where the inquiry of the Court really ought to begin, because it is only in the facts of the case that we can actually face up to what I concede is a problem for the argument that I am putting, that is the decision of the Court of Appeal, in particular, the reasons of Lord du Parcq in Hewitt v Bonvin.

If I could come to the findings of fact, I take the Court first of all to page 633 of the appeal book, in the second paragraph on that page. The majority of the Court said this:

For what use it may be -

turning to the use of the evidence -

I find that there was a conversation in the kitchen in which Mr Davis was asked by Messrs Scott and Beeching -

Mr Scott being one of the appellants, the father of the lad who was injured and Mr Beeching, who was another guest there -

whether there would be a chance of the boys having a ride, to which Mr Davis replied that he would think about it.

Two paragraphs further on down the page, having rejected an argument in connection with principal and agent, the learned trial judge says this:

Mr Davis, as owner of the plane and of the strip, was obviously in a position to agree to or refuse any such request. There is no evidence of a request that the rides be in any particular plane, or with any named pilot.

Then if we turn over the page to page 634, in the third complete paragraph on the page the learned trial judge deals first with control. Speaking of Mr Davis he says:

He did retain general control. It was his plane. It was his airstrip. He acknowledged that, had he seen reason to do so, he would have "grounded" Mr Bradford. He had control over the use, in general terms, to which the plane would be put, and where it would be used. He could, instead of asking Mr Bradford, have ejected Mr Bradford from the plane and flown the joyrides himself.

GLEESON CJ: In particular, he had control over whether this young boy would be permitted to go on the plane at all.

MR QUICK: That is true, your Honour, that is so. The learned trial judge then continues:

Whether or not the joyrides occurred was of small moment to him.

So it is a small benefit we are dealing with. Then the next sentence is very important:

He organised them as a favour to the boys and to their families.

If I could just pause there. In the arguments that have been put to the Court this morning, the focus in so far as it deals with purpose has been on looking at the purpose of the person driving the plane or the purpose of the person using the chattel and the purpose of the owner. The situation that we have here is one where a third person or group of persons has to be considered. There was, if there was a purpose of the owner, also a purpose to be served of someone else: the parents and the boy. This is an important factor, because at the end of the day the whole case put forward on behalf of the appellants is that the purpose is the purpose of the owner.

The question that we ask is, is that a test that can be usefully applied - and this will be one of the difficulties that I will refer to in a moment - is that a test that is useful to apply when there is another purpose and, in this case, probably a more dominant purpose, the more direct purpose, a purpose by someone who stood in a close relationship to the injured boy.

HAYNE J: But is this not to attempt to apply concepts that might find a home in business transactions to what is an entirely social and gratuitous set of events? To search for purpose invites attention to whether the host was generous, the host was an ingrate, the host was being nagged by his or her partner. Why are those inquiries relevant at all in a social and voluntary context?

MR QUICK: Your Honour, they are relevant for the appellants because it is only by making those inquiries, and only by answering them on the basis that there is some benefit to the owner, can one get to liability. Without them, there is no purpose of the owner, and that is the first plank - - -

McHUGH J: But the owner could have a purpose without there being any benefit to him. It may be a source of irritation. It could even be a source of detriment to him. After all, he has to pay for the costs of the plane, the transport. But what has benefit got to do with it?

MR QUICK: Your Honour, if I said "benefit", that was a word that I withdraw. It is benefit or detriment, some purpose, not benefit. And the point that I am making is that there has to be a purpose - that is the first of the three planks upon which this doctrine is said to depend. If there has to be a purpose, one has to ask the types of questions that your Honour Justice Hayne puts to me, namely, because they are the only source of purpose and one must ask, as I will illustrate in a moment, one of the difficulties with this whole doctrine will be in the application of it. Does one look for one purpose only? What does one do if there is a multiple number of purposes? These are difficulties of applications to which I will come. But it is very difficult to justify liability in circumstances where the only purpose can be of the type that your Honour has mentioned to me.

McHUGH J: But is this an attack on - this seems to be an attack on the whole doctrine, the doctrine at 680, you said the Full Court recognised. I mean, these problems you talk about would equally applicable to a car.

MR QUICK: Yes, your Honour, and I have to face up to that. This is an attack on the doctrine. We say that it is a doctrine that, if one examines the way in which it extends to other chattels, leads to a nightmare. That is our argument. That is one of our arguments and it leads to - well, I will be asking four questions in relation to whether or not it should happen.

McHUGH J: Can I just tell you what exercises my mind. The common law extends the content of a principle by applying it to analogous situations where the material facts are not different. Now, it would be one thing, for example, if you were going to say, "We are extending ownership of cars to running water on your land," or something of that sort, but here the material facts seem to be exactly the same whether one is talking about aeroplanes, motorboats or cars. What is the difference in materiality that would say, "Well, if the principle applies it one, it should not apply in the other or it cannot apply in the other"?

MR QUICK: Your Honour, there is no difference in respect of the way in which the law develops and goes from situation to situation applying the same principle, but our submission is that each time the law looks to go to another situation, be it analogous, there is still the inquiry, "Is this application an application which we would want to make," having regard to certain things to which I will briefly address the Court.

GLEESON CJ: Mr Quick, the common law never applies with the degree of particularity that would permit you to say, "This is a rule about motor vehicles," does it? That is pure legislation. When you start drawing a line between motor vehicles and aeroplanes or motorboats, Parliament can do that, but the common law has to enunciate a principle of some kind. There is not a special common law rule about motor cars, is there?

MR QUICK: No, there is not, but, your Honour, we face up to that. We recognise that as stated and accepted by the House of Lords there is a principle of application to chattels. It has some problems. It does not sit comfortably with doctrines in relation to independent contractors. There are difficulties of application of it in connection with the limited liability of agents.

McHUGH J: So this is an attack on the whole principle of Morgans, on the dictum of Lord Justice du Parcq in Hewitt v Bonvin, the New South Wales cases and the other cases. You are really attacking the principle, are you?

MR QUICK: Not quite, your Honour. If the Court - - -

HAYNE J: You are only doing it root, not root and branch.

MR QUICK: In Morgans v Launchbury, the court was dealing with a situation which involved a motor car. There is no evidence in the speeches of their Lordships that they considered the ramifications of the application of the principle that they were stating in relation to other chattels. They certainly stated the principle widely enough to cover other chattels, but there is no suggestion that they considered the ramifications generally of stating a rule as widely as appears from the speeches. It is that that the Full Court declined to do here. The Full Court said, "We recognise the existence of the principle, we note that it has been applied to motor vehicles, we do not interfere or suggest that there should be interference with it in the way in which it does apply to motor vehicles. But in so far as it applies to aeroplanes and to other chattels, there are these difficulties. We decline, therefore, to apply the principle to those situations."

McHUGH J: But is it part of the judicial function to refuse to apply a principle? In McLaughlin's Case, the nervous shock case in the House of Lords, Lord Scarman said that if the principle applies to the facts of a new situation, then it is the duty of the judge to apply it and leave it to Parliament to correct the application of a principle, if it thinks fit. Is that not the way that the judges operate?

MR QUICK: Well, your Honour, I would have thought that whilst that does happen, judges also operate in the other way as well, and that is to say, "We will not extend the principle that applies in this situation". One example that comes to mind would be Chester v The Waverley Corporation. It is ultimately reversed in Jaensch v Coffey, but there was a case in which the Court said, "We are not going to extend the area of liability based upon foreseeability and a relationship to nervous shock in these circumstances". That would be an example of the converse of what your Honour suggests.

McHUGH J: But is that not - it is the principle, the way the principle is framed? But if the principle is expressed in sufficiently general terms to apply to a particular situation, does one not apply them to those situations? Indeed, that has been said to be the genius of the common law.

MR QUICK: Well, that could be so. Perhaps, your Honour, I would be on stronger grounds by saying one would look to see how the principle emerges and whether or not, although it eventually becomes stated in such a wide way, if one looks at the fact situations in which it emerges, the principle should, in fact, be read down, and it is just language that has been lacking in precision. I hesitate to say that about the House of Lords, but I submit it - - -

GLEESON CJ: But having a common law rule about motor cars is like having a common law rule about people with grey hair. The common law does not operate at that level of particularity, does it?

MR QUICK: No, your Honour, it need not - I am trying to think of an example in which there is such particularity.

GLEESON CJ: Well, you could have a common law rule about dangerous chattels, but surely you could not have a common law rule about guns?

MR QUICK: There are common law rules, for example, about particular heads of damage. There are common law rules about nervous shock, as opposed to mere emotional hurt or harm of a different kind, a transient kind. There are always limits to the application of a principle, even though the principle might be stated in very wide terms.

McHUGH J: I appreciate the distinction between principles and rules as not an easy distinction, and it is often difficult to say what is a rule and what is a principle, but whether one expresses it as a rule or a principle, it is usually done at a degree of generality which is above particular applications of it. A rule or principle is capable of applying to a wide category of cases. But you want to confine this to motor cars which is essentially a very narrow - I cannot think of any other - - -

MR QUICK: That is the first leg of our submission that it should be confined to motor vehicles or, at least it should be extended from motor vehicles, where it has been applied, to other situations, examining each situation as it arises and looking at the problems which apply in relation to each of those situations, asking these types of questions: does the application of this principle, with respect to a particular kind of chattel, lead to undesirable social consequences? Does it lead to fine distinctions? Is it capable of ready application by courts at first instance?

GLEESON CJ: So that, it would be a proper exercise of the judicial function for judges seriously to sit down and decide whether this principle applies to hot air balloons?

MR QUICK: More a function for this Court rather than - - -

GLEESON CJ: I can understand why you say that.

MR QUICK: Your Honour, judges at first instance would be - sorry, I have leapt ahead a step. It would be the function of this Court to say whether or not this is a principle of general application and then whether or not its application ought to be extended to different situations as they occur. It would be appropriate for a judge at first instance to say, "Well, in relation to a hot air balloon, should I extend this principle? Are there good reasons for doing so?". I would have to face that.

GUMMOW J: What is your fourth matter? You said there were four, you have got to three.

MR QUICK: Yes. But does it sit comfortably with other doctrines of law, and in this case, does it sit comfortably with the doctrines in so far as they concern liability for the acts of independent contractors, liability for the torts of agents save where the particular act in question has been authorised?

GUMMOW J: What are you taking as being the principle here?

MR QUICK: The principle as stated by the Full Court emerging from Morgans v Launchbury as stated by the Full Court on page 680, lines 12 to 15.

GLEESON CJ: Do you accept that principle, or are you saying, "Yes, I accept that principle, but only in so far as it applies to motor vehicles."?

MR QUICK: We accept that principle only in so far as it applies to motor vehicles because if one looks at the principle, it has emerged through cases dealing first of all with horses and buggies and then in motor vehicles. One does not find it anywhere else. It just happens to be stated in wide language as applying to chattels generally. But the decided cases, going through them, are all horse and buggy cases, then cases dealing with motor vehicles.

HAYNE J: And that tells you the predominant cause of injury at any time in society. That is all the frequency or the range of cases is telling you, that the motor car causes havoc on the roads.

MR QUICK: Your Honour, I would have thought, with respect, that if there had been a generally recognised principle applying to chattels generally, one would find cases dealing with other types of chattel.

GLEESON CJ: Has the principle ceased to apply to horses and buggies?

MR QUICK: I know of no authority to say that it does.

McHUGH J: One reason why there may not have been many applications outside conveyances is that at one stage there was a doctrine of dangerous chattels - very strong at one stage. The doctrine of dangerous chattels really was the foundation of Chief Judge Cardozo's famous judgment in Buick v McPherson, which was ahead of Donoghue and Stevenson. He used those cases to extend, to get around the doctrine of privity of contract.

MR QUICK: There is no doubt that a motor vehicle is a dangerous object if not used properly, that it is prevalent, that it can give rise to personal injury and property damage. All of those things explain why there are so many of those cases, but it is the absence of other cases with respect to every other kind of chattel that there is, dangerous or not dangerous, that we submit is the basis for saying that the principle is a principle which emerges in connection with motor vehicles or horse and cart.

GLEESON CJ: That is right. We have now got you to two applications. It applies to motor vehicles and it applies to horse-drawn vehicles still.

MR QUICK: Yes, your Honour. We know of no case that extends beyond that in the facts of what was before a court and what was decided and forms part of the decisions of a court. If one wants to look at the genesis of the doctrine and trace it all the way through to the present, that is the factual situation in which it is stated. It is then stated in Morgans v Launchbury that it applies to chattels generally but that is the genesis and the development of it.

GLEESON CJ: Does it apply to bullock trains?

MR QUICK: Well, at least by analogy, but I cannot think of a case in which that was decided. By analogy, I would think that it would. I would say that the motor vehicle, although different from a horse and cart, is substituted for it in that it is the popular mode of transport, at least on roadways. So our submission is - - -

GLEESON CJ: Rickshaws?

MR QUICK: It depends upon the location, your Honour. In Australia I would say probably not, but perhaps in parts of Asia it may well be.

CALLINAN J: I am more worried about rollerbladers myself.

MR QUICK: They are a worry to us all, your Honour. I have largely dealt with the question but I have gone very quickly through the matter of extension. Our first submission is that if there is a principle, it is a limited principle evidenced by the way in which it has developed and the cases in which it has been applied. The second thing is that we submit there is always a function of a court, particularly a court at this level, to ask the questions that I have submitted ought to be asked. Does this lead to undesirable consequences? In this case it is clear that it does. It leads to social consequences of a major kind.

Your Honours, I have just thought of an example which does throw up exactly the type of situation of limiting a principle which otherwise might extend to a particular situation. It is in connection with the liability of parents for injury to their children. If general principles apply, parents would be liable for injuries to their children caused by their negligent act or conduct in and around the home. There would be the relationship of proximity, foreseeability of damage and the like.

But, in fact, parents are not held liable for injury to their children, in most circumstances, notwithstanding foreseeability, notwithstanding the relationship, and the reason that they are not held liable is because of the effect that this would have on the relationship between a parent and child.

McHUGH J: But, in terms of what really you might think is an abandoned doctrine, proximity. It is dealt with, really, under proximity, is it not? I mean, this Court dealt with it in Smith v Leurs, the shanghai case, it was held that the parents were not liable, if I remember rightly, but that is because it was just regarded as no proximity, there was no duty of care owed to the third party, no duty to control, but the Court did recognise that in certain circumstances there would be a duty to control, just as in the Dorset Yacht Case the gaolers at Borstal owned a duty of care to the yacht owners. You see, it all depends on the circumstances.

MR QUICK: It does depend upon the circumstances but - - -

McHUGH J: That is a question as to whether there is a breach of duty. It does not say the duty did not exist, it is a question of whether the breach is there. In most of those parents cases it is not that a duty is not owed, it is that there is no evidence of a breach.

MR QUICK: I would submit that in the parent cases, the modern parent cases - I think that they are on our list of authorities. If I could just briefly refer to Laws of Australia volume 33. I am not sure if it is on the list of authorities but there is a detailed discussion of the liability of parents in Laws of Australia volume 33, paragraphs 43 to 45. At paragraph 44 - and it is dealt with under the heading of "duty" rather than "breach".

McHUGH J: Yes, that is what I said earlier about duty, there was no duty owed in that paragraph 43.

MR QUICK: That is right. I would submit that this is an example of the type of situation to which your Honour the Chief Justice was directing my attention. Here is a situation in which there would be liability, save for the undesirability of that in social consequences. A decision of the Full Court of the Supreme Court of South Australia in Robertson v Swincer is a case in point. If I might just deal for a moment with the undesirable social consequences. The example that has been accepted in the court below and cited in their judgment in connection with the barbecue is just one of numerous examples.

That is the type of thing, in our submission, that needs to be considered before extending a principle which developed out of horses and cars and motor vehicles into other chattels.

CALLINAN J: I suppose misfeasance and nonfeasance on the part of local authorities is - - -

MR QUICK: I beg your pardon, your Honours?

CALLINAN J: The distinction between misfeasance and nonfeasance is hard to justify except on grounds of social consequences.

MR QUICK: Certainly in the case of local council authorities, yes, unquestionably.

McHUGH J: No, is it not really on the question of affirmative obligations as opposed to positive acts? The common law has always turned its face against imposing affirmative obligations on anybody.

MR QUICK: There is that reluctance.

McHUGH J: That is why the - - -

MR QUICK: I agree there is that reluctance but, in addition, there is the reason in relation to local authorities not to visit liability on them because their decisions are made in relation to matters over which they might have limited funds and because there are policy considerations to be taken into consideration, but I adopt the example your Honour Justice Callinan gives me.

CALLINAN J: And also the law in relation to liability for independent contractors is hardly a seamless quilt. I mean, it is a law that is bedevilled with exceptions. For example, it is only certain circumstances that the principal will be liable for the nuisance of the independent contractor and in some cases he will be and in some other cases he will not be, but you could hardly say it involves the application of seamless principle.

MR QUICK: I agree, your Honour.

CALLINAN J: Some people have even said that what this Court has said in Perre v Apand does not involve the application of clear principle, the statement and application of clear principle.

MR QUICK: In the time allocated to me I would hate to get into that, your Honour.

CALLINAN J: Yes, you would need a lot of time.

GUMMOW J: But the line that had been drawn around economic loss is an example of the drawing of an arbitrary line really - - -

MR QUICK: I would agree, your Honour.

GUMMOW J: - - - given the nature of human affairs. It looks like a pretty arbitrary line to me.

MR QUICK: Well, I think that now in the course of the discussions in my submissions this afternoon it can be seen that there are a number of circumstances in which the law says, "Notwithstanding this is the path down which I should go if I adhered strictly to principle, there are circumstances in which I will not go down that path because of, amongst other things, undesirable social consequences."

GUMMOW J: But the defect, if it is a defect, in the common law of the 19th century is that they did not articulate it.

MR QUICK: The principle?

GUMMOW J: No, your point 1, it was not really articulated.

MR QUICK: I think that is probably right, your Honour.

GUMMOW J: You can read Priestley v Fowler on the doctrine of common employment and it is all some strange world but you know something else was happening out there in the industrial revolution. It was not being articulated though as the reason.

MR QUICK: Your Honour, we would submit that there is nothing wrong with articulating a social consequence as a reason for not extending liability. If that is the case, then the principle can be acknowledged and the exception stated with its reason. The second reason why we would submit that the Court should hold back from applying this principle which developed, in relation to the particular types of vehicles to which I have referred, is that it leads to fine distinctions which produce absurd results and which could only bring the law into disrepute. Now, a couple of examples were given this morning, the first being the lawn-mower situation. The lawn-mower used by an independent contractor, there may be no liability, but if it is used by a friend then there is liability.

McHUGH J: But that distinction happens all the time with independent contractors and servants, does it not? I employ my houseboy to do the work. I am liable for his acts. I go and employ a tradesman and I am not.

MR QUICK: I agree, your Honour, but my submission is that that is an undesirable thing to happen, that there should be these type of distinctions which really are absurd. Because if the basis of this whole vicarious liability doctrine is based on - it is certainly not based on fault. But if it is based upon the capacity to spread loss, or something of that kind, who is to say - the friend has probably has less capacity to bear the loss than an independent contractor would? But the friend is held liable but the independent contractor not liable. In my submission, that is an absurdity.

McHUGH J: Well, the independent contractor is always liable, so is the friend always liable. The question is whether the person behind them is liable.

MR QUICK: I am sorry, your Honour. I agree. I have jumped a step. But the person behind the independent contractor may not be in any better position to meet the loss than the independent contractor, even more so in the case of a friend.

The third distinction, or the third difficulty, or the third reason for holding back from extending the principle is the difficulty of application. It is our submission that there should not be an extension of principle if it is going to lead to the recognition of a wider ranging principle which is difficult to apply and, in our submission, there are difficulties of application. The best example of that is - and it is recognised by the reasons of Lord du Parcq in Hewitt v Bonvin where his Lordship says that "it all depends upon the facts", ultimately, it is a factual matter, and one has great difficulty of application. May I go quickly to what was said by Lord du Parcq in Hewitt v Bonvin.

GUMMOW J: Was Hewitt v Bonvin tried by a jury?

MR QUICK: No, it was judge alone, I think. Can I just take the Court to Hewitt v Bonvin (1940) 1 KB 188. The particular passages to which I refer are commencing at page 194, through to page 195. But if I can take the Court to the passage which is directly against us in terms of principle, but illustrates the difficulty of application. At page 196, his Lordship says this, midway down the page. On the right-hand side of the page there is a sentence commencing with the words "Before us". If I read on from there:

Before us counsel for the respondent relied on the fact that the driver of the car was the son of the appellant. Although it would be absurd to say that such a relationship is of itself evidence of agency ,I agree that when considered in combination with other circumstances it may be in some cases both relevant and significant. If, for instance, a father consents to his young son inviting a guest to the family home, and then permits him to use the father's car for the entertainment or convenience of the guest, it may well be a justifiable conclusion that the son is driving for and on behalf of the father. Ultimately the question is always one of fact.

GUMMOW J: What does that mean? The question is: what facts would one have to plead as a plaintiff to avoid a demurrer? If one had avoided that hazard, it would go to a jury obviously. It does not help me to be told it is always a question of fact. Most cases are.

MR QUICK: That is so.

GUMMOW J: If he is saying that the principle has no general content and it is invariably fragmented case by case, it is not a very satisfactory thing. If he is saying the application of the principle in the light of the evidence will throw up issues of fact, I understand, but I do not know what is really being said.

MR QUICK: Your Honour, what his Lordship is directing attention to is the proposition which is stated, but implicit in it is an inquiry, at lines 7 and 8, was the appellant's son:

acting for and on behalf of the appellant.

That is the fact of inquiry. Then his Lordship says towards the bottom of the page that the conclusion that he was might be justified in the instance of a father consenting to his young son inviting a guest to the family home and then permitting him to use the family car for the entertainment. His Honour does not say that it would justify a conclusion; he said it may well be justified - not concluding the issue:

it may well be a justifiable conclusion that the son is driving for and on behalf of the father. Ultimately the question is always one of fact.

His Lordship then deals with the facts of the present case:

In the present case, if the girls concerned had been the guests of the appellant, or if it had been established that Madame Bonvin had allowed her son to take the car because she felt that she and her husband were under some social or moral duty to convey them to their home, I should have thought that the finding of the learned judge ought not to be disturbed.

One can ask here, in relation to the facts of this case, is this the same as what his Lordship was considering? There is no suggestion of there being a social or moral duty, no suggestion of that. The only thing is whether or not there was permission granted after a request made by the parents. In respect of that, acceding to any request always involves a benefit to the person granting the request. It must, because there is always that prospect of somehow enhancing one with the person who is the subject of the request or who is going to carry out the request.

McHUGH J: The critical question in Hewitt was one of agency.

MR QUICK: Agreed, your Honour.

McHUGH J: In the middle of 196, his Lordship says:

In my opinion agency was not proved.

If one looked at it in terms of the old style of pleading, you would allege that the defendant by his servant or agent had the care, control and management of the motor vehicle and so negligently drove, controlled or managed it, whereupon the plaintiff was injured. So you could not demur to that. But at the trial there would be an issue whether there was a case to go to the jury and that would depend upon whether or not there was evidence that the son was acting for and on behalf of the father. If the trial judge said there was some evidence on which the jury could find that it was, it would go to the jury, otherwise verdict for the defendant; otherwise a matter for the jury.

MR QUICK: And the matter of ownership is, prima facie, some evidence of agency. That is as far as it goes.

McHUGH J: That is what Christmas v McNichol - - -

MR QUICK: That is right, I agree. But one has real difficulties of application of this principle if it is as broad as is suggested. There are always going to be difficulties with question, "Is this done for the purpose of the owner?". One might have to ask questions of degree, "What type of purpose?"

CALLINAN J: Have you looked at what Lord Justice MacKinnon said in Hewitt v Bonvin? At page 193 he speaks of what Mr Justice Bennett said in the course of the argument down below, "Suppose a son says to his father", do you see that?

MR QUICK: I am just trying to find the passage, your Honour.

CALLINAN J: About halfway down.

MR QUICK: Yes, I do have it, your Honour.

CALLINAN J: He makes no distinction between a gun lent by the father to the son and a motor car. So he would seem to say that the principle is, as it has been put to you, really, that you cannot make any distinction between the type of chattel.

MR QUICK: That is the way the argument is put here, that all chattels - - -

CALLINAN J: I know, I know, it seems to find support in what Lord Justice MacKinnon says.

MR QUICK: In so far as his Honour is repeating the statements of the - - -

CALLINAN J: Yes, and he says he can see no distinction.

MR QUICK: But, ultimately, liability is not found.

CALLINAN J: No.

MR QUICK: I should submit that in relation to fine distinctions, and in relation to the difficulty of application, give the Court another example to which I am indebted to my learned junior. The suggestion is this: even accepted, for the purpose of better entertaining guests, an owner invites a juggler into the house to entertain and amuse the children with some juggling acts. The juggler is to use plates. He uses some plates of his own and some of the owner's - - -

GLEESON CJ: The juggler sounds to me like an independent contractor.

MR QUICK: If the juggler was doing it for a fee and pursuant to a contract, that would be so, your Honour; but let us assume it is a gratuitous juggler in this situation - - -

GLEESON CJ: An amateur juggler.

MR QUICK: - - - an amateur juggler, another friend, but just like Mr Bradford, not a contractor, just someone who happens to be there who has a certain capacity. So the juggler uses plates, some of his own, some of the owner's. They all fall and all injure a child, some are the owner's plates. Is the owner liable only for the damage done by his own plates, or is he liable for them all? The distinctions that this type of principle, if applied generally to chattels, will require courts to make provides a very good reason for limiting the application of the principle on a case-by-case basis, and not the recognition of a wider principle that applies to all chattels, and that is what is being suggested here by the appellants.

One final point in relation to the question of whether or not the Court ought to accede to the application of the principle in this case to other than motor vehicles. I hesitate to make such a broad submission, but it seems to me to be a relevant one. It is the question of justice and the propositions that your Honour Justice McHugh put to my learned friend this morning. When the person who is at fault says, "Why only me, why am I the only one who is liable, why not the person for whom I am doing something?" The answer to that question is, "Because you are blameworthy", and the owner, the person who stands behind, has no blame because if there was blame, there would not be vicarious liability, there would be personal liability and directly liability. The whole concept of vicarious liability is based upon something other than justice. It must be because there is no fairness at all or justice at all in holding a person who is blameless guilty in those circumstances.

McHUGH J: Well, the 19^th century cases tended to go on the basis that you attributed the acts of the agent to the principal. The more modern version of vicarious liability is you attribute the tort, not the acts. That distinction comes out very clearly in a case in this Court in Darling Island v Long 97 CLR where the judgment of Justices Kitto and Taylor proceed on the basis that you attribute the acts to the principal, whereas Justice Fullagar proceeds on the basis that you attribute the tort. So, that was the way that common law looked at it - the situation you are talking about - they attributed the acts to the principal. It was a fiction, in effect.

MR QUICK: I must ask the question, why?

McHUGH J: Because you having asked somebody to do something on your behalf, then his or her acts were attributed to you.

MR QUICK: That leads directly into the conflict with the principle applying to independent contractors where, as was stated in the CML v Producers & Citizens, that person is considered to be the principal, an independent principal, rather than the agent. The same thing is true - - -

McHUGH J: I am not sure that is right. I know that Mr Wells rejected this proposition that I put to him before lunch, but is it not a distinction between, in effect, doing your acts or having acts done for you, which may be a fine distinction, but nevertheless is the way you reconcile them? You are vicariously liable because the person is your representative, but in the case of the independent contractor, they are his acts and his acts alone. That was why I think the common law, in the last century, was so keen to develop this doctrine about to whom you attributed the acts.

MR QUICK: Your Honour, if one takes that as being the appropriate test for vicarious liability, then we would say, looking at the facts of this case, you cannot say that the acts of the pilot are our acts. The only connection with us are one, ownership, and two, conveying a request made by the parent in circumstances where we might have said no.

McHUGH J: I do not think it depends on that any more. That is 19^th century learning.

MR QUICK: The submission that I have just made in answer to your Honour's question - I know, as your Honour says, it applies to old law, but that really ought to be the end of this case on the facts, that what was done here was done - the only connection that can be said to constitute the acts of the pilot or the fault of the pilot, or whatever, are the fact of ownership, the fact that we might have said, "No, you are not to use it", and the fact that we conveyed a request by the parents to the pilot in circumstances where we could have said no.

McHUGH J: You see Sir Frederick Jordan was too great a lawyer to have put in those additional words in his judgment in Christmas for no reason at all and the reason he no doubt put the question of control in was to distinguish the case of the true agent from that of the independent contractor. That is what marked the difference, this issue of control, the right to control, as opposed to a right - you have got no right to control the independent contractor.

MR QUICK: Your Honour, we would submit that control is a relevant factor and its absence is telling against the appellants in this case and we would submit that it is not simply the right to control. It is the fact of the ability to control.

McHUGH J: Well, that may well be an important distinction and Soblusky, of course, is a case of the physical right to control except to the extent he was asleep but - - -

MR QUICK: Your Honour, I would like briefly to deal with Soblusky [1960] HCA 9; 103 CLR 215 and it might be a convenient time to do that right now in response to the question that your Honour put.

GUMMOW J: Just before you do that, does it matter that your client was or was not himself a pilot?

MR QUICK: I would have thought not, your Honour, because once the plane has left the ground his expertise as a pilot becomes useless. There is no means of communicating with the person who is in charge whatever skills he has as a pilot. The learned trial judge rejected liability on the basis of the personal liability of Mr Davis, holding that there was no negligence in his choice of or permission for Bradford to fly. So the answer to your question is no.

GUMMOW J: This notion of control, it is all very well when it is motor cars. It is another when it requires some particular skill that will not necessarily be possessed by an ordinary owner.

MR QUICK: That is true.

GUMMOW J: It does not help you because your client had the skill, but in formulating a principle it may be a relevant matter.

MR QUICK: A principle may not necessarily apply to situations in which special skills are being exercised.

GUMMOW J: Yes. This is a very special skill.

MR QUICK: It is.

GUMMOW J: It is not just that it is a dangerous chattel. It is a chattel that can only be dealt with by other than the manual activities the Court talked about in Soblusky v Egan.

MR QUICK: That is so but the capacity physically to control is treated as being - I am not sorry, not physically. The capacity to control the physical activity of someone else with the mental ability of a person in control is, in fact, the situation which existed in Kondis v State Transport Authority. There the ganger, the person who is in charge of the gang, had the capacity to control the person in the crane by using his brain, that is the controller using his brain and giving instructions as to what was to be done. The control was mental rather than physical.

GUMMOW J: But plenty of rich people own planes and not all of them can fly them.

MR QUICK: I suppose that is right.

GUMMOW J: Particularly in the United States and if they are flying in the plane with their pilot they have not really got control in any meaningful sense at all.

MR QUICK: That is true.

GUMMOW J: I can say, "I want to go to Pittsburgh, I do not want to go to Philadelphia", I suppose, but that is not what we are talking about.

MR QUICK: No, but if I can just go back to the horse and buggy situations. In the horse and buggy situation the person who is sitting next to the person with the reins could actually grab them and do something with it. It would probably be a much more dangerous activity doing that with a motor vehicle, grabbing the wheel. You would not be in a proper position to control it, but less likelihood of doing it successfully. But in the case of an aeroplane out of radio contact, there is neither physical control nor the capacity to control through giving instructions.

CALLINAN J: Why do you use the word "capacity"? I thought you would have been better with the word that is used in Soblusky v Egan at page 231, "power" of control. It seems to me to be a better word for you. He might have had, in a sense, capacity to control by telling him not to go up but "power of control" seems to me to have a shaded meaning that suggests more - if I can use the words - hands-on supervision.

MR QUICK: Indeed it does. The passage at page 231 is one on which I particularly rely and if I can take the Court and emphasise - - -

GUMMOW J: It is all about manual work. That is the phrase you use, is it not:

appoints another to do the manual work of managing it - - -

MR QUICK: Yes, and then, if one reads on:

and to do this on his behalf in circumstances where he can always assert his power of control.

GUMMOW J: They seem to be treating the driving of a motor car as manual work interchangeably, I think.

McHUGH J: It may be that their Honours had very much in mind the old 19th century notion of, "It's the master's act". If you look across at 230, about six lines down, they cite from Chandler's Case:

"Is there any case which militates against this position; that if the owner is in the carriage, sitting by the driver, the act of driving by the servant is the act of the master?

GLEESON CJ: What they were saying in Soblusky was that this was an easy case. They said, "This is an obvious case".

MR QUICK: Yes.

GLEESON CJ: I cannot quite understand where your argument is going, Mr Quick. I thought you accepted, at least in its application to motor vehicles, the principle referred to on page 680 of the appeal book.

MR QUICK: The first part of the argument was to accept it and then to criticise its - - -

GLEESON CJ: I just wanted to draw your attention to the fact that it makes no reference to control. The principle accepted by the Full Court as applying to motor vehicles makes no reference to control.

MR QUICK: I agree, your Honour.

GLEESON CJ: And, as was pointed out this morning, section 53 of the Motor Accidents Act of New South Wales which deems the driver of a motor vehicle to be the agent of the owner and acting with the authority of the owner operates upon the assumption that when you relate that deeming by a statute to a certain common law principle, the owner will be made vicariously liable. But there is nothing in the statute that deems the owner to be in control.

MR QUICK: That is so, your Honour.

GLEESON CJ: Now, if control is a necessary element of this principle in its application to motor vehicles, that would appear to produce the result that section 53 of the Motor Accidents Act does not have the effect that everybody has thought it does have.

MR QUICK: That would be so and, your Honour, that is one good reason for saying that this principle might be a valid principle in relation to motor vehicles, but it would not be a good reason for saying that it ought to apply more generally.

GLEESON CJ: Yes, but do you say that in its application to motor vehicles an element of the principle is control?

MR QUICK: Soblusky does not go that far. I am sorry, I have not answered your Honour's question directly.

GLEESON CJ: People in New South Wales assume, and have assumed for a long time, that the owner of a motor vehicle is vicariously responsible for the negligence of a thief who steals the vehicle. That is the way the law works.

MR QUICK: Yes, I understand that.

GLEESON CJ: Although the owner, in the example that I have given, does not have much chance to control the thief. Section 53 of the Motor Accidents Act only deems the thief "to be the agent of the owner acting within the.....agent's authority. It does not deem the owner to be in control of the thief. If the principle, in its application to motor vehicles, requires control, how does that statutory provision make the owner vicariously liable?

MR QUICK: Your Honour, we would have to say that in the case of agency principles in relation to motor vehicles, there is no essential element of control.

HAYNE J: No, no, Mr Quick. Surely the resolution of the conundrum put to you lies in this fact: the New South Wales statute, as I understand it, presumes agent with authority. The case that we now consider is one where there is undoubted authority to have possession. The question is, is the person the agent of the owner? Now, questions of control may, they may not, I do not know for the moment, intrude into the inquiry about agency, but not as some separate and additional feature to be added to a conclusion of agent with authority. Now, if that is so, control bears on agency as opposed to independence.

MR QUICK: If I might deal with both of those matters, the matters falling from your Honour the Chief Justice and Justice Hayne at the same time. There will be some situations in which a person acts as agent, although not within the immediate control of the principal. There might be some measure of control, for example, in the CML v Producers Case by means of the issuing of instructions. That will be some element of control. But control may not be necessary at all in order to establish agency. It depends upon the particular type of agency.

HAYNE J: But the contrast that might be drawn is: take my car for a week and do with it what you will - no question of agency, perhaps, intrudes; or, take my car and convey my children to yet another sporting venue at some uncivil hour on a Saturday morning. That might connote questions of agency and it may also involve questions of control. You will take them to the sporting venue by this route, not exceeding 60 kilometres an hour, though you are on the public highway, et cetera, et cetera.

MR QUICK: Your Honour, I agree that those two situations are markedly different. The first situation is one in which there is no control other than permission to use or not use the vehicle. In the second there is a situation of control as to purpose , namely, take the children to sport, and implied in that might be a prohibition against using the vehicle for any other purpose.

GLEESON CJ: But control in this context does not mean the capacity to seize the reins or grab the steering wheel of the vehicle, does it?

MR QUICK: It cannot.

GLEESON CJ: Control in this context means the capacity to say, for example, to the pilot, "Don't fly too slowly at a speed that might cause the plane to stall. Don't fly the plane near those trees where the windshear effect might cause you to get into trouble". That is what is meant by control in this context, is it not?

MR QUICK: Except, your Honour, that - Soblusky v Egan is not one of those situations. The factual situation is quite different. I agree that the situation your Honour puts to me is a situation of some form of control.

GLEESON CJ: I thought we were shown this morning - I forget now where we saw it, but there was some case we were shown this morning that actually said, I thought, control in this context refers to the right to control, not the immediate physical capacity to take charge of the chattel.

MR QUICK: Your Honour, I cannot put my hand on the particular case, but I have seen that in one of the - my learned friend says it is Mortess v Fry.

CALLINAN J: You have the temporal reference though in Soblusky which is rather perhaps against that where their Honours said, "in circumstances where he can always assert his power of control". That might be capable of being read as from second to second, that a direction in advance not to fly in a certain way might not answer the description in that passage. It is a possibility. It depends how one reads it.

GLEESON CJ: Maybe that is why they said, "This therefore must be regarded as an obvious case".

MR QUICK: May I deal with the statements in order. First of all, the word "always" is to be given meaning and, as the Chief Justice puts to me, that might well be what makes it an obvious case. But in fact, what their Honours are saying there in the first sentence does not appear to be limited to the facts of this particular case. The principle is stated widely:

It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control.

It seems to be widely stated. Then they go on to say:

This therefore must be regarded as an obvious case.

GLEESON CJ: The case I was thinking of was the reference to Lord Justice Scrutton that was made by the South Australian judge, Mr Justice Richards, in Mortess v Fry [1928] SAStRp 7; (1928) SASR 60 at page 64.

MR QUICK: That is actually a case that the Full Court criticised - that is in this case - for the subtlety and difficulty of making distinctions. It pre-dates, of course, Morgans v Launchbury.

GLEESON CJ: I do not think we were actually taken to Parker v Miller, but are those words in inverted commas on page 64 an actual quotation from Lord Justice Scrutton?

MR QUICK: I will have to look that up, your Honour. I have page 64 in front of me but I am trying to find the exact passage, your Honour.

GLEESON CJ: About eight-tenths of the way down page 64:

the test of agency is....."not physical control, but right to control."

It sounds pretty close to the point that - - -

MR QUICK: Well, it is a quotation from something and his Honour is referring to Parker v Miller. I would assume that it is from that. We can have that checked. If I could go back to the example that your Honour the Chief Justice put as to the capacity to control, that is by giving verbal instructions to say, "Once you leave the ground, I want you to do this and do that." That is inconsistent, we would submit, with what is said by the Court in Soblusky in the passage to which Justice Callinan referred and, in particular, in the use of the word "always". I would submit - - -

GLEESON CJ: That is a reference to the facts of the case, not a statement of principle.

MR QUICK: Your Honour, might I respectfully draw attention to the fact that in that paragraph there appears to be discussion of principle first and then a reference to the fact. I draw attention to the fact that the second-last sentence is referring to the principles of cases and the first two sentences -the first sentence appears to be a statement of principle. The second sentence appears to be a statement of principle. Then there is a reference to the facts of the particular case and I could say no more about that.

GLEESON CJ: But that is a rather good example of the difference between the right to control and actual physical control. This man was unconscious. The man in control was at the relevant time unconscious. That throws some light on the meaning of the word "control", does it not?

MR QUICK: He was in a position where he could immediately assert his control if he woke up. If one then looks at the position of Mr Davis on the ground, if he had failed to give the instruction before the plane took off, he was no longer in a position whereby he could give the instruction later. That would distinguish it from Soblusky v Egan. Your Honour, I have gone through that very quickly. I do not know whether or not the distinction is appreciated.

McHUGH J: It may be that the notion of control is what rationalises all the cases and makes this particular doctrine conform with the law of independent contractor, as the law of master and servant, because the control test still is the hallmark of the employer/employee relationship and it may be this case could have been pleaded as an employee.

There are many cases - not many, but there are quite a number of cases where although somebody is in the general employment of somebody, nevertheless for some temporary purpose is regarded as the employee for the time being of somebody else who has control over that person and it may be a truck driver who takes things to a warehouse and in the unloading phase is under the control of the warehouse owner. Now, he is an employee for those purposes. Here you have the chattel owned by the respondent and you have Bradford doing tasks on behalf of the respondent. I am not so sure that you could not have made out a case as an employee in the common law sense.

MR QUICK: Your Honour, we would say that that case could not be made out for two reasons. First, there was no capacity of Davis to demand that Bradford would take the plane up - - -

McHUGH J: It does not have to. You do not have to.

MR QUICK: Well, I would have thought - - -

McHUGH J: Once he agreed to do it.

MR QUICK: There was no right to control him in the sense of saying, "You are to fly this plane". There was no right to do that. There was no contract existing between them.

McHUGH J: You do not have to have a contract to be an employee. You do not have to have a contract to be an employee for the purpose of tort law.

MR QUICK: I beg your pardon, your Honour?

McHUGH J: For the purpose of tort law you do not have to have a contract in any sense, there need not be any payment. I mean, it is a strong indicia of employment, but he may be an employee for the time being.

MR QUICK: A gratuitous employee, I suppose, that is a possibility.

McHUGH J: Well, there is more to it. There is a case in New South Wales, I think called McDonald v the Commonwealth, I think it is in 45 SR(NSW), 46 SR(NSW). I think it is an illustration of that situation. There are a number of cases.

MR QUICK: The case was not put that way.

MR MEADOWS: No, but perhaps it indicates that the true distinction within the agency cases themselves for vicarious responsibility is this notion of control and the fact that one is using the principal's chattel is powerful evidence of that capacity to control. Add to that that you are entrusted to carry out some task, then liability is complete, and it rationalises the cases of no liability for the independent contractor. Why is that not a solution?

MR QUICK: Your Honour, we would submit that control is a rationalising factor. I understood my learned friend this morning to be trying to get as far away from control as he possibly could. The nature of the argument - - -

McHUGH J: He never mentioned it in his formulation of the relevant principle - - -

MR QUICK: It is not there.

McHUGH J: It is there by implication because of the use of the chattel. That itself - - -

MR QUICK: The only form of control is the ability not to allow the chattel to be used. The extent - - -

McHUGH J: He can lay down the conditions and can revoke them at any particular time. He could have said on this particular occasion, if there had been a radio, for example, "Come back".

MR QUICK: That is the difference, your Honour, there was no radio.

McHUGH J: I appreciate there was no radio in that case, but we are testing this as a matter of general principle.

MR QUICK: Your Honour, in the type of situation that your Honour put to me, I would agree there is a much stronger case to be made out because there is continuous control through continuous contact. But this is not such a case; it does not get anywhere near it.

McHUGH J: The hospital board cannot control the surgeon who is carrying out the operation. Frequently many occupations can only be carried out by licensed persons. Electricians have to be qualified and registered, certificated, but their employer has no right of control in any relevant sense, in any real sense, but nevertheless for the purpose of the law they are said to have control over them.

MR QUICK: I cannot do much better than to draw attention to what Lord Justice du Parcq said. Each case is going to depend on its own facts. If you look at the facts of this case, once the plane departed Mr Davis could not even say, "Come back". He could not say, "Don't do this" or "Don't do that". There was nothing he could do. He had to rely upon the fact that there was a sensible pilot using the plane. In that he was not negligent, otherwise there would be personal liability.

GLEESON CJ: Suppose that next week we get a case in which we have to consider whether to apply this principle to motorboats. How would we go about doing that?

MR QUICK: Your Honour, one of the things that you would do first is, I would submit, to look at the element of control. In other words, to say, "Is there agency in this case, arising from control?". One of the cases where there has been liability for a motor boat is Pawlak v Doucette, the Canadian case.

GLEESON CJ: We would not solve the problem by setting about asking "Do you have to have much skill to drive a motor boat? Are many motor boat owners insured? How many motor boats are there? How often do people who own motor boats take other people out as passengers?" We would not get into that area at all.

MR QUICK: No, I do not think your Honour would.

GLEESON CJ: But is that the way the Full Court decided this case?

MR QUICK: No, your Honour, in my submission, they said, first of all, "The rules appear to have emanated from motor vehicles. There is a reason for restricting this case to motor vehicles, and that is the uncertainty that it will create in relation to other areas of the law", unstated what they are. They referred to the undesirable social consequences, the barbecue example, and there was a third factor - which escapes me for the moment - but I agree they were not decided on economic basis as to sharing of responsibility and cost bearing, as your Honour put to me. I am sorry, the last of the factors mentioned by the Full Court was that the insurance industry has actually accommodated for this form of liability. It is not quite the same as what your Honour was putting to me.

Our submission is that one need not go that far. Some time back, your Honour the Chief Justice asked me to state where the argument was going. The first plank of it was to accept the principle and to say it should not be applied. The second leg of the argument is to say the principle is one that emanates from and should be contained to the area from which it emerged: vehicles, that is, road vehicles, and it ought not to be applied any further. One of the confusing factors - the third leg of the argument is to say that at the end of the day each of these cases is to be determined on whether or not the person whose conduct is negligent is acting for and on behalf of the owner. That is part of the principle.

Now, in determining whether or not they are acting for and on behalf of the owner, one will look at a variety of factors. Here the only factors are ownership, acceding to the request of a guest - so there is a duality of purpose. There is no control. The benefit is of a very limited kind, not tangible of any kind. In those circumstances, we would submit, that on the facts, it would not be a case of saying that the person was acting for and on behalf of the owner of the plane.

Now, the learned trial judge does not appear to have asked himself that question, namely, was the deceased pilot acting for and on behalf of? The learned trial judge went straight to Morgans v Launchbury and said, "If there is benefit and a request that is enough". With respect, that was wrong. The correct application of Morgans v Launchbury really goes back to what was said by Lord Justice du Parcq in Hewitt v Bonvin, namely, was he acting for and on behalf of? That is where the principle really extends.

I must say I have nearly finished my submissions - Before I leave Soblusky v Egan there are a couple of points that I should make about it. The first is that, in relation to the matter of principle, my learned friend submitted that Soblusky v Egan rejects the principle or rejects the proposition that as a matter of principle, there is liability in the circumstances accepted by Morgans v Launchbury. In Soblusky v Egan at page 228 at the foot of the page, about eight lines from the bottom of the page, the Court describes the argument which limits the doctrine to motor vehicles as "a bold but well conceived attack". That is about eight lines from the bottom of the page:

A bold but well conceived attack was made upon the validity as well as upon the application to the given case of the modern attempt always to fix liability for the negligent management of a motor vehicle upon the owner -

so it is described as "a bold but well conceived attack", and they then go into the discussion by the commentators. Then, on the next page, at page 229, the Court goes a long way to saying there is no wide principle. There are two passages to which I refer, in the middle of the page, immediately after the reference to the Motor Vehicles Insurance Act, the Court says:

The considerations to which the two learned text writers respectively advert may explain but they do not justify a development of the law if it really involves a departure from principle.

and then, about eight lines further down:

Perhaps the discovery of the true principle of the decisions will be ex post facto.

I think it is fair to say that that passage, and commencing from the bottom of page 228, and I submit this is the case, Justices Dixon, Kitto and Windeyer could not find a principle. They talk about the branch and the root but they cannot find the principle.

It is perhaps true also that it is easier to see the direction in which the branch grows than to understand the support it obtains from the main trunk -

And they describe the attack as being both bold and well conceived.

GLEESON CJ: But at the bottom of 229, they say:

when all is said and done, the present case does not involve any new doctrine or any new application of old doctrine.

and they go on to say it is not limited to motor cars.

MR QUICK: That is so, your Honour. But it does not really help to discover where the principle or what the principle is, if there is a general principle, which their Honours say that "the discovery of the true principle will have to be ex post facto". In our submission, Soblusky v Egan cannot be taken as a rejection of there being only a more limited principle, that is limited to the situation of people who drive with authority as authorised or requested, and with actual control.

I referred very briefly to the criticisms made of the decision in Mortess v Fry. That is at page 677 of the appeal books. I do not think there is any point in going back to it.

There is nothing further that I wish to submit to the Court, may it please the Court.

GLEESON CJ: Thank you, Mr Quick. Yes, Mr Wells.

MR WELLS: If the Court pleases, there is a written reply which was filed this morning and I am not sure whether the Court has the advantage of it.

GLEESON CJ: Yes, thank you.

MR WELLS: In that case I have little else to add. I would simply invite the Court's attention particularly to the submissions that we make under the heading paragraph 5 Benefit at the bottom of page 2, which deals with the irrelevance of benefit as operating as part of a test, and also under that heading dealing with the submission made by my learned friend that in some way the fact that the Scotts made a request of Mr Davis for Travis to fly constitutes some material fact in contrast to what we would put, namely that that simply is the reason why Mr Davis decided to provide authority to Mr Bradford.

GLEESON CJ: Would you just permit me to interrupt you for a second, please, and ask Mr Quick something?

MR WELLS: Not at all, if your Honour pleases.

GLEESON CJ: Mr Quick, I do not think in your oral submissions you mentioned the notice of contention. Had you intended what you said to cover the notice?

MR QUICK: Your Honour, the point in the notice is so close to what I said there is nothing further really that I would want to submit.

GLEESON CJ: All right, thank you. Yes, I am sorry to interrupt you, Mr Wells.

MR WELLS: And may I invite the Court also to note that on page 3 against the first dot point that appears there we have provided a reference to three of the cases in which hospitality to a guest constituted a relevant purpose for the principle. Your Honours will also see under paragraph 6, Argued Limitation to Motor Vehicles, that we have referred to a number of cases, including Australian cases, where there is an acknowledgment of the principle applying to other than motor vehicles, including Kondis v State Transport Authority, which was dealing with a mobile crane, and also a decision of the Privy Council which we have not, I am sorry to say, given the Court a reference to.

I think it is in our written submissions, but I perhaps ought to provide that as well. It is a case called The Trust Company Limited v de Silva (1956) 1 WLR 376, where in the advice of a Judicial Committee it is said at page 380:

It is now well settled that the person in control of a carriage or motor vehicle - though not actually driving - is liable for the negligence of the driver over whom he has the right to exercise control.

Referring to Wheatley v Patrick and Samson v Aitchison. Which leads me, apart from inviting the Court to notice the second dot point under paragraph 6 in our reply as well, to one final matter and that is my learned friend has submitted to the Court that this notion of control does not form part of the proposition for which we contend and with that we respectfully disagree.

Our written submission at paragraph 4.10 dealing with what we called the third stage of the development of this principle, scope of delegation, puts it that where a liability arises by reason of the owner or bailee surrendering possession of a chattel to a delegate, what we call a mandate, so that the delegate can use the chattel to do the owner/bailee's bidding, the owner/bailee exercises the power of control over the chattel by dictating the terms on which the user is to have the use of the chattel and that, we respectfully submit, achieves the reconciliation between notions of agency and notions of control.

GLEESON CJ: If control meant actual physical control then everything that the House of Lords said in Morgans was beside the point because the lady who owned the vehicle in that case stayed at home while her husband went off on a pub crawl.

MR WELLS: It was an absent owner case. Interestingly enough, your Honour, the widow was sued in two capacities. She was sued in her capacity, it being alleged that she was vicariously liable. She was also sued in her capacity as adminstratrix of her late husband's estate. Her late husband was present in the vehicle at the time it crashed, but he was asleep. Although it is not clear, one might be forgiven for thinking that in his case, in which he was held liable, a principle somewhat similar to Soblusky might well have been enough.

GLEESON CJ: But, if one of Mr Quick's arguments is right, the whole case could have been disposed of on the simple and obvious basis that the owner of the vehicle was nowhere near it at the time of the accident.

MR WELLS: But the whole purpose of the principle is to deal with the case of the absent owner and control is exercised by the mandate. Now, in that respect, finally, if I could just give your Honours the reference to Parker v Miller (1926) TLR 408. It is somewhat shortly reported and has provided difficulty in understanding what the basis of it was, as Lord Justice du Parcq observed in Hewitt v Bonvin, but the words reported from Lord Justice Scrutton are three lines and they are as follows - Lord Justice Scrutton who observed:

that the test of agency in cases of negligence had ever since Quarman v Burnett been, not physical control, but right to control."

delivered judgment to the same effect. So, that is where that phrase came from, although Samson v Aitchison was decided on that same ground.

Similarly, Chief Justice Jordan in Christmas v McNicol in the proposition that appears at the top of page 320, refers to an agent:

acting for him and with his authority in some matter in respect of which he had the right to direct and control his course of action.

Those are our submissions.

GLEESON CJ: Thank you, Mr Wells. We will reserve our decision in this matter.

AT 3.56 PM THE MATTER WAS CONCLUDED