Shaw v Commonwealth of Australia, Department of the Army [1963] PGSC 49 (1 January 1963)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

Appeal No.3 of 1963.

JOSEPH SHAW
Plaintiff Appellant

-v-

COMMONWEALTH OF AUSTRALIA,
DEPARTMENT OF THE ARMY.
Defendant Respondent.

APPEAL.

This is an appeal from a decision of the Resident Magistrate at Port Moresby dismissing the appellant's claim in negligence for damages for damage to his motor vehicle and injuries to his children.

On the 10th December, 1962 Mr. Shaw's wife was driving his car at the intersection of Bava Street and Boroko Drive when it came into collision with a utility truck owned by the Department of the Army. Damage was caused to both vehicles and the Commonwealth of Australia filed a counter-claim in respect of the damage to its vehicle. At the time of the collision the Law Reform (Miscellaneous Provisions) Ordinance 1962 was not in operation and no provisions existed for the apportioning of liability in case of contributory negligence. The Magistrate found both drivers guilty of negligence, and taking the view that Mrs. Shaw was driving as agent of the complainant, he dismissed the claim and also the counter-claim. The appeal was brought to this Court by the complainant on the sole ground that the learned Magistrate was wrong in law and in fact in holding that Mrs. Shaw was such an agent.

The appeal is brought under the provisions of the Small Debts Ordinance 1912-1961 of the Territory of Papua. By that Ordinance the Supreme Court is given the widest powers on appeal but not very much guidance as to the method of their exercise. I suppose this is natural enough. When the Ordinance was originally enacted, the Territory was at an early stage of development, no particular qualifications were required for Resident Magistrates (See Justices Ordinance 1912-1961, Section 9), and a decision appealed from could be one given by a Resident Magistrate or an Acting Resident Magistrate or an Assistant Resident Magistrate (see Section 6). It probably seemed desirable to the Lieutenant-Governor of the Territory in 1912 that the Supreme Court should exercise the widest control over decisions which may be made or given by persons possibly not very qualified for the judicial task.

There is no limitation to the grounds of appeal. When an appeal is instituted, the Registrar of the Court of Petty Sessions in which the Order appealed against is made is enjoined to forward to the Supreme Court true copies of the Order made, the reasons given by the Court, (if any) the plaint, the depositions taken at the hearing, together with all other proceedings before the Court relating to the Order, and the original exhibits. No evidence other than the evidence of the proceedings before the Court by which the Order was made shall be received on the hearing of the appeal, except by consent of the parties or by order of the Supreme Court. See Section 67.

The Court is directed to inquire into the matter, and having so inquired, it may:-

(a) Adjourn the hearing from time to time.

(b) Affirm, quash or vary the order appealed from, or substitute or make any order which ought to have been made in the first instance.

(c) Remit the case for hearing or for further hearing before the Court which made the order or any other competent Court.

(d) Exercise any power which the Court which made the order might have exercised, and

(e) Make such further or other order as to costs or otherwise as the case required.

In my opinion I am at large not only to decide whether the Resident Magistrate was right in law but also to draw any inferences of fact that appear open to me on the evidence, subject of course where questions of credibility are involved to paying due regard to the advantage possessed by the Magistrate of seeing and hearing the witnesses. However, in this case, no such questions of credibility arise.

The learned Resident Magistrate dismissed the complainant's claim because, as he said, there was a strong presumption that his wife was driving as his agent, and he had not discharged the onus which was clearly on him to prove that there was no such agency.

Before deciding on the validity of these conclusions, it is necessary to look at the legal bases upon which they may be said to rest.

Both in contract and in tort a person is vicariously responsible for the acts of his servants or agents. But to make him so responsible, generally speaking, the relation of master and servant or principal and agent must be established by him who alleges that such a relationship exists. However, in the case of motor vehicles on the highway, the Courts have been hesitatingly extending the area of vicarious liability to an extent far wider than would have been regarded as valid at the turn of the century.

In Timaru Borough v. Squire [1919] NZGazLawRp 6; (1919) N.Z.L.R. 151 Sim J. held, it having been proved that a father was the owner of a car which had been negligently driven in a collision, that the fact of ownership appeared to be sufficient prima facie evidence that the negligence of the daughter driver was imputable to the father without proving affirmatively that the person in charge was his servant. His view was not followed by Reed J. in Wood v. Frevne [1930] NZGazLawRp 16; (1930) N.Z.L.R. 353 in circumstances not substantially different from those existing in the earlier case. Reed J. appears to think that the onus placed upon the owner of the car where a member of the owner's family is driving was stated too strongly. However, detailed evidence was given and he felt relieved of the necessity of definitely expressing an opinion on this matter, and he held that the appellant had discharged the onus if it lay upon him and no agency existed.

In New South Wales the Full Court in two cases in 1927 hold that mere proof of the defendant's ownership of a car was not of itself sufficient to establish a prima facie case of liability on his part, and neither case should have been left to the jury. Ferguson v. Wagner [1926] NSWStRp 80; (1927) 27 S.R. (N.S.W.) 9 and Goldman v. Barnfield [1927] NSWStRp 51; (1927) 27 S.R. (N.S.W.) 405.

However, in 1931 a strong Divisional Court in England held that the fact of ownership was some evidence fit to go the jury that at the material time the motor car was being driven by the owner or by his servant or agent, but it was evidence which was liable to be rebutted by proof of the actual facts. Barnard v. Sully (1931) 47 TLR 557.

In Victoria in 1933 Lowe J. in McKenzie v. McEwan [1933] VicLawRp 36; (1933) VLR 309 refused to follow Barnard v. Sully (supra) and said that even if he thought that from the mere fact of ownership there arose a presumption of the relationship of principal and agent or of master and servant between the owner and the driver of a private vehicle, he would have thought that would at most be prima facie evidence calling upon the defendant for an answer by reason of the fact that she, being the owner of the car, the facts were peculiarly within her knowledge.

In Hewitt v. Bonvin (1940) 1 KB 188 a son who was driving his father's car negligently killed a passenger in the car. The Court of Appeal held that the son was not driving as his father's servant or agent or for his purposes, and the father as consequently not liable for the son's tortuous act. Du Parcq L.J. approved of Barnard v. Sully (supra) in these terms: "It is true that if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner and the Court is left without further information, it is legitimate to draw the inference that the negligent driver was either the owner himself or some servant or agent of his." But he went on to say that in the instant case all the facts were ascertained and the Judge was not left to draw an inference from incomplete data. As he said at p. 196, "Ultimately the question is always one of fact, that is as to whether the driver was acting for and on behalf of the owner or whether there had been a mere loan or bailment of the car." McKinnon L.J. thought that to make the father liable the plaintiff must establish (1) that the son was employed to drive the car as his father's servant, and (2) that he was when the accident happened driving the car for the father and not merely for his own benefit and for his own concerns. In this case it was clear from the evidence that the son was driving his own friend for his own purpose and the father had no interest or concern in what he own doing.

Then in 1941 the question arose in New South Wales. In Christmas v. Nicol Bros. Pty. Ltd. (1941) 41 S.R. (N.S.W.) a Full Court consisting of Jordan C.J., Davidson and Street J.J. was inclined to the view that evidence of user was sufficient without more to justify the inference of user on behalf of the owner of both commercial and private vehicles. In Wiseman v. Harse (1948) 65 W.N. (N.S.W.) 159 the same Full Court, although dealing with a commercial vehicle, expressed the view that in the case of a private vehicle also evidence that it was being driven at a particular time is in the absence of evidence sufficient to justify a different conclusion, evidence that it was being driven by or on behalf of its owner. This view was based on the Court's statement that it was a matter of common knowledge that it is more usual than not for vehicles to be used by or on behalf of their owners.

In the latter case the Court delivered an ex tempore judgment, there is no report of the argument, and the only case cited is the earlier decision of the same Court.

In 1952 Gresson J. in Minihan v. B.A.L.M. (N.Z.) Limited [1952] NZGazLawRp 78; (1952) N.Z.L.R. 955 followed the view of the New South Wales Full Court in the cases last cited, and held that evidence that at a particular time a particular vehicle was being driven is in the absence of evidence sufficient to justify a different conclusion, evidence that it was being driven by or on behalf of its owners, since, as he said, it is a matter of common knowledge that it is more usual than not for a motor car to be used by or on behalf of its owner. However, as he said at p. 959, "A prima facie case based on the fragile foundation of mere ownership may be displaced by the circumstances; equally the prima facie case may be strengthened by the circumstances ..... Where it is the owner of the car whom it is sought to make liable and the use of the car was with the owner's authority or approval the situation calls for a careful examination of the facts to ascertain whether they warrant an inference that the driving was done on behalf of the owner or whether on the other hand they are such as to negative the prima facie presumption that the vehicle was at the relevant time being used in the owner's business. Whether the driver was truly engaged on the owner's affairs so that he can be regarded as having been acting on behalf of the owner is a question of fact and one which may be extremely difficult to answer."

In Ormrod v. Crosville Motor Services Ltd. Murphie. Third Party (1953) 1 All ER 711 the facts were that a car was being driven by a friend of the owner from Birkenhead to Monte Carlo with the intention that the friend, his wife (who was in the car) and the owner should all three later use the car for the purpose of a holiday in Switzerland

The car was involved in a collision soon after leaving Birkenhead which was due to the negligence of the driver. The owner at this time was already in Monto Carlo. Devlin J. (as he then was) held the owner liable. There was no question, he said, of the driver being a servant of the owner, but went on to deal with the question of agency. It was clear in his view that there must be something more than the granting of mere permission in order to create liability in the owner of a motor car for the negligence of the driver to whom it has been loaned. But he did not regard it as necessary to show a legal contract of agency. He thought it was a case where there was a social or moral obligation to drive the owner's car. It was driving at the owner's request and he who complies with such a request is the agent of the other, since he who makes the request has an interest in its being done. The owner had an interest in the arrival of the car so that the driving became an act for his benefit.

On appeal the decision of Devlin J. was affirmed ((1953) 2 All ER 753) Singleton L.J. holding that there was agency because the purpose for which the car was being taken down the road on the morning of the accident was either that it should be used by the owner or that it should be used for the joint purposes of the owner and the driver. Denning L.J. (as he then was) said that the owner is liable if the driver is his agent, that is to say, if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. He went on to say that the law puts an especial responsibility on the owner of a vehicle who allows it out on the road in charge of someone else no matter whether it is servant, his friend or anyone else. If the vehicle is being used wholly or partly on the owner's business or for the owner's purposes then he is liable for any negligence on the part of the driver. He only escapes liability when he lends it out or hires it out to a third person to be used for purposes in which the owner has no interest or concern. I should point out that in that case the presumption arising from the proof of ownership without more did not arise and was not adverted to.

The principle expressed in Ormrod's case was approved by another Court of Appeal in Norton v. Canadian Pacific Steamships Ltd. (1961) 1 W.L.R. 1057. As was said by Pearson L.J. at p. 1063, "The owner of a car, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road-users, and if any of them suffers damage from negligent driving of the car, whether by the owner himself or by an agent to whom he has delegated the driving, the owner is liable."

The authorities to which I have referred were considered in detail in Manawatu County v. Rowe (1956) N.Z.L.R. 78 by a Court of Appeal, in New Zealand and in that case the question of the burden of proof was squarely raised. The facts bear a remarkable resemblance to those of the instant case. The plaintiff claimed damages for damage done to his motor car which was being driven by his wife at the time of a collision between it and a road-grader at the intersection of two roads. At the trial it was held that the accident was caused in part by the negligence of each driver, although the plaintiff's wife bore a 75% share of the responsibility for the accident. In the circumstances of the case the trial Judge held that the wife was not acting as the agent of the plaintiff in performing any task or duty which had been delegated to her by him in driving his car at the time of the accident and consequently he was not vicariously liable for the damage caused to his car and so was entitled to judgment for the full amount of the damages proved. It was held by a majority of the Court that on the facts the appellant County had not discharged the onus of proof that the respondent's wife was his agent when she was driving the motor car at the time of the accident. Stanton J., who dissented, did so on the basis that the onus rested on the plaintiff husband to show that his wife was not his agent and that he had not discharged the onus. Hutchinson J. and McGregor J. took a different view, and with respect I agree with that view. The defence of agency was in that case, as it is in this, asserted by the Defendant, and he who asserts must prove. That is how I understand the law.

Four matters were urged from which it was argued that the Court should draw an inference that the car was being used for the joint purposes of the husband and wife and that the husband had an interest in the journey in which the wife was engaged. These were: -

(1) That the wife had done some personal shopping in Fielding.

(2) That the wife took with her her father, who lived with the respondent and wife.

(3) That the wife took with her their daughter.

(4) That the wife during the trip had been making some arrangements in connection with a social evening she was conducting on the same night at a country hall for some member of the family who had become engaged, of which proposed function the respondent was entirely ignorant.

Facts having been elicited during the hearing and the presumption alone not being relied upon, both Hutchinson J. and McGregor J. held that the onus of proving agency had not been discharged. Hutchinson J. stated that while he doubted whether if the onus of proof rested upon the husband to disprove his wife's agency he would hold that he had discharged it, he was clear that if the burden of proof rested upon the appellant (which he had already held to be the case) it had not discharged that burden and consequently he joined in dismissing the appeal. McGregor J. also at p. 93 decided that the onus of proof rested upon the party who alleged it. With that statement of principle I respectfully agree.

I agree also with the view expressed by McGregor J. when he says at p. 94, "It seems to me that when one looks at the matter realistically, although one may draw an inference from the mere fact that a husband gives to his wife general permission to use his car when she so desires, in the present state of emancipation of a married woman it seems to be almost equally probable that a wife may use her husband's car for purposes entirely unconnected with her husband's business, her husband's duties, social or otherwise, or the welfare of him or other members of the family, and the use may well be for the wife's own private purposes, her separate pleasures, or in some cases for a harmless frolic of her own." I would not be prepared in this day and age to draw the inference of agency from the mere fact that a wife was driving her husband's car, the less so if evidence were given that she had his general permission and authority to drive it whenever and wherever she pleased.

What then is the position in the order under appeal? The evidence is most unsatisfactory, but neither party has sought leave to adduce further evidence before me, and I do not think that this Court should conduct a commission of inquiry of its own motion where the hearing took place before an experienced Magistrate and both parties were represented.

That at the relevant time Mrs. Shaw was driving and that her husband was the owner of the car is clear. That she had his general permission and authority to use the car is equally clear. And if the evidence stood there I would (as I have already stated) not be prepared to draw the inference that Mrs. Shaw was driving as the agent of or in the interest of her husband. In cross-examination, O'Shea for the defendant, without objection, elicited information from the complainant that his wife was taking their children, together with other children, to the theatre. It was strenuously urged upon me by Mr. Dabb for the Commonwealth that this was some evidence that Mrs. Shaw was engaged in a purpose in which her husband had a joint interest – albeit she was also performing that was euphemistically described as an "errand of mercy." That a normal father has a general interest in the welfare of his children goes without saying but to conclude from the tenuous facts elicited that he had had an interest in this particular journey to the extent that he should be held to have retained the right to control the driving of the car is another matter. No evidence was elicited as to the ages of the children or whether Mr. Shaw approved of his children going to the theatre during what, for all I know, may have been school hours or whether he even knew that it was planned to take them there. Their presence in the car seems to me of the same colourless character as referred to by Hutchinson J. in Manawatu County v. Rowe (supra) at p. 90.

In my view the learned Magistrate misdirected himself in concluding that the onus was clearly on the complainant to prove that there was no agency. The onus was on the defendant to prove that there was, and in my judgment he has failed to discharge that onus. Accordingly, there being no appeal on the negligence issue, and that matter not having been argued before me, the complainant's appeal must succeed.

I have not found this an easy question to decide and if I am wrong, unfortunately as there is no Full Court in this Territory, there is no practical possibility of further appeal from my decision.

As there was no dispute as to the damage suffered or the amount claimed by the complainant, for the Order made by the Magistrate I substitute an Order for the complainant for £250 damages with costs. The complainant will also be entitled to the costs of this appeal.