Baramilis v Lucarelli & Anor [2008] QMC 4

MAGISTRATES COURTS OF QUEENSLAND CITATION: Baramilis v Lucarelli & Anor [2008] QMC 004 PARTIES: CAROLYN ANNE BARAMILIS (plaintiff) v MARIA KATHLENA LUCARELLI (first defendant) ZACHARIAH LUDWICK (second defendant) FILE NO/S: M667/06 DIVISION: Magistrates Courts PROCEEDING: Claim ORIGINATING COURT: Magistrates Court at Southport DELIVERED ON: 15 February 2008 DELIVERED AT: Brisbane HEARING DATE: 19 October 2007 MAGISTRATE: Lee G ORDER: Judgement for the plaintiff against the first defendant. Judgement for the second defendant against the plaintiff. Judgement for the second defendant against the first defendant in the third party proceedings. CATCHWORDS: TORTS - NEGLIGENCE – vicarious liability – property damage claim - whether owner of motor vehicle vicariously liable for negligence of driver – social context - whether use of motor vehicle for owner’s purpose Soblusky v. Egan (1960) 103 CLR 215 COUNSEL: SOLICITORS: -- 1 of 27 -- 2 [1] On 13th May 2005 at about 8.45 a.m. a motor vehicle accident occurred involving a Chrysler Grand Voyager owned and driven by Ms Carolyn Anne Baramilis (the plaintiff), a Holden Commodore driven by Ms Maria Kathlena Lucarelli (first defendant) and owned by Mr Zachariah Ludwick (the second defendant), and a third motor vehicle. The accident occurred within the jurisdiction of this court - Napper Road, Parkwood. [2] The plaintiff claims damages against the first defendant driver as principal tortfeasor and against the second defendant on the basis that he is vicariously liable for the negligent acts of the first defendant according to the principles set out in the High Court case of Soblusky v. Egan (1960) 103 C.L.R. 215. The driver or owner of the third motor vehicle is not a party in this action. [3] The damages claimed by the plaintiff total $17,991.67 comprising $17,048.43 for damage to the plaintiff’s vehicle and $943.24 for the plaintiff’s cost of hiring a replacement vehicle1. The plaintiff’s vehicle was uneconomical to repair2. In addition, interest is claimed at the statutory rate pursuant to section 47 of the Supreme Court Act 1995. At trial the second defendant admitted the quantum of the plaintiff’s claim as against him (page 8 line 10 transcript3). [4] In addition to filing his original defence on 23 May 2006 the second defendant commenced third party proceedings against the first defendant claiming $27,518.22 damages for the second defendant’s Holden Commodore which was damaged beyond economical repair4. In addition, the second defendant claims an indemnity or contribution from the first defendant in the event that the second defendant is found liable to the plaintiff in the principal cause of action. [5] The first defendant has failed to file a defence to the plaintiff’s claim against her. She has also failed to file a defence to the second defendant’s third party proceedings against her. The first defendant appeared at trial and, apart from intending to give evidence for the 1 Further Amended Statement of Claim filed 27 February 2007 at paragraphs 3(d), 3A & 11(a); 2 Ibid; paragraphs 3(c) & 9; 3 Future page and line references are to the transcript; 4 Third Party Notice filed 23 May 2006 at paragraph 6; -- 2 of 27 -- 3 plaintiff in response to a subpoena, said that she would not be otherwise participating in proceedings (page 3 line 40 to page 4 line 20). [6] The plaintiff seeks judgment against the first defendant on the basis of deemed admissions pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 together with formal proof of quantum in the form of an affidavit previously filed (page 2 line 45). Presumably this reference is to an affidavit of Assessment and Loss by Ron Connors filed 19 April 2006 in support of a previous default judgment application deposing to a total loss of $17,048.43 with respect to the plaintiff’s vehicle. I note that the amount of damages claimed by the plaintiff was subsequently increased to $17,991.67 to include hiring costs of a replacement vehicle5. At trial, an invoice from East Coast Car Rentals for $943.24 was tendered (exhibit 2)6. [7] Likewise, the second defendant seeks judgement in third party proceedings against the first defendant for damages in respect of the second defendant’s Holden Commodore. The second defendant’s claim seeking contribution or indemnity from the first defendant will depend upon a finding that the second defendant is vicariously liable for the first defendant’s negligence. [8] In those circumstances the case proceeded on the basis that negligence on the part of the first defendant was not in issue in the plaintiff’s claim against both defendants and in respect of the second defendant’s third party proceedings against the first defendant (page 7 lines 6 to 30). In any event I note that during her evidence the first defendant admitted negligence (page 25 line 42 et seq). Further, the quantum of the plaintiff’s claim as against the second defendant was not in issue. However, formal proof of quantum was required in respect of the plaintiff’s claim against the first defendant and in respect of the second defendant’s third party claim against the first defendant for damage caused to the second defendant’s Holden Commodore. [9] The prime contest in this case is whether the second defendant is vicariously liable for the first defendant’s negligence. The case proceeded on that basis. 5 Amended Statement of Claim filed 30 June 2006 at paragraph 3A & 11(a); 6 $17,048.43 + $943.24 = $17,991.67; -- 3 of 27 -- 4 [10] Ms Pointing of Counsel appeared for the plaintiff and Mr Woodford of Counsel appeared for the second defendant. As referred to earlier, the first defendant appeared in person in response to a subpoena to give evidence for the plaintiff but otherwise did not participate at the trial. The Plaintiff’s Case [11] The following witnesses were called for the plaintiff: The plaintiff Ms Carolyn Anne Baramilis The first defendant Ms Maria Lucarelli (the driver of the second defendant’s motor vehicle) Sergeant Gregory Mark Newman (the police officer attending the accident scene) [12] It is not intended to reiterate all aspects of the evidence but only those parts I consider to be more relevant to the contentious issue of vicarious liability. [13] The plaintiff gave evidence of events leading up to and including the collision and the fact that she had suffered damage as a result of the collision in the amount claimed. Her evidence was not contentious and she was not cross examined (page 12 line 45). [14] Apart from some evidence highlighted below Sergeant Newman’s evidence is also largely uncontroversial. There was very little cross examination. He was the only police officer who attended the scene. He performed a road side breath test on the first defendant who subsequently pleaded guilty to driving with a blood alcohol reading of 0.087 at the time of the accident. At the second defendant’s request, Sergeant Newman also breath tested him resulting in a reading of at least 0.12. [15] In evidence in chief Sergeant Newman was questioned at length about his conversation with the second defendant at the scene and when the second defendant gave a statement to police. On the issue about both defendants going on the journey to the shop Sergeant Newman said (page 33 lines 12 et seq) [references to “he” are to the second defendant]: Did he say why they were going to the shop? – Yes, he did. He said they were going to the shop because they wanted to get some smokes. -- 4 of 27 -- 5 Was there any reference about who was getting cigarettes? – It’s my understanding they were for Ms Lucarelli. Was there any reference about how it came to be that they were getting – going to drive to the shop? – Only that – my recollection of that was that they’d decided that they were going to get them the – it wasn’t very far from – from the house where they were staying to – to the residence – sorry – to the – it’s like an all night service station – so that they’d decided that they were going to drive down and that – and that Ms Lucarelli would drive the car because he thought he – he actually thought that he would be over the legal limit and – and as such, that she’d driven the car down [16] The second defendant provided a short statement to police dated 19 September 2005. It comprises six paragraphs. After hearing submissions the statement was tendered as exhibit 1. Only paragraphs 2 and 3 are of any potential substance. They state: 2. I recall the evens [sic] of the morning of the 13th day of May 2005. I recall that at approximately 8.45 a.m. on that morning Ms Lucarelli and I left from my house to go to the local 7-11 store to purchase some cigarettes. We left in my Holden Commodore ….to drive the distance of approximately half a kilometre to the shop. Ms Lucarelli was driving the vehicle back home when we approached the intersection of Napper Road and Daintree Drive when Ms Lucarelli lost control of the vehicle on the wet road and the vehicle traveled [sic] across the median strip and into the path of an oncoming vehicle resulting in contact being made between the two cars. 3. During the early hours of the morning and just prior to our departure for the shop Ms Lucarelli and I consumed an amount of alcohol in the form of a couple of glasses of wine. It was my opinion at [the] time that due to the amount of alcohol that she had consumed and the time between the drinks that she would not have been over the legal [limit] to drive the vehicle. [17] Sergeant Newman was questioned about the nature of the Holden Commodore and its handling attributes. Ms Pointing submitted that this evidence is relevant on the question of vicarious liability because it was incumbent on the second defendant to give the first defendant some instruction (page 42 line 49). [18] In my view the most crucial witness for the plaintiff in this case is the first defendant (pages 13 to 29). [19] In a nutshell, the first defendant met the second defendant and his nephew for the first time at a night club the previous evening. She had consumed a total of about five alcohol -- 5 of 27 -- 6 drinks all evening including a glass of wine at 6.00 p.m. with dinner and four vodka and sodas. They moved on to a second night club around midnight and, according to her evidence, she only consumed water thereafter (page 16 line 9) except for a half glass of wine at the second defendant’s house at about 5.00 a.m. or 6.00 a.m. (page 16 line 40; page 18 line 6)). They arrived at the second defendant’s house at about 3.00 a.m. [20] She initially said she bought a new packet of cigarettes at around midnight (page 19 line 55) but later said she bought them around 2.00 a...m. (page 27 line 57). She shared her cigarettes with all at the second defendant’s house and said that the second defendant had smoked some. They all had a rest at some point. Her evidence unfolds (page 16 line 58; page 17 lines 1 – 30): When did you have that rest? – I – I – we had a rest. I know it would have been late morning. Late morning. Because I had to get home. I mean, my mother would have thought it was quite strange for me to be out, you know. Okay? – Maybe 3, 4 o’clock in the morning, but not 7 o’clock in the morning, you know. It was getting to the point – I did wake up and I thought – well, you know, we didn’t have a sleep … but we had a rest. Put my head down, thought, well, I should get going. I knew I was out of cigarettes and basically decided, well, look, I might as well get cigarettes before we go. Zach was in no position to drive in his position. He – he believed that he was over the limit. ….. …. You say – so you woke up and you wanted to get cigarettes? – Yes. So what did you do? – Well, we didn’t have any cigarettes left ----- Mmm – hmm? -- -- and I’m a smoker and, you know, I – that’s what I do, I smoke cigarettes. Okay. What – what did you do then? – Well, I thought about going home. I thought about, look, it’s probably time I should go home, and – but then I thought, well maybe I should – maybe I’ll stay and I think Zach thought, well look, we can both get some cigarettes together. (my emphasis) [21] She continued by saying that they had been keeping company earlier that morning and that this was simply a continuation “I suppose” (page 17 line 35; see also page 25 line 31). This was her motivation to get cigarettes together as she could have caught a cab and got cigarettes on the way home. In cross examination she denied the second defendant’s version that she woke him up and asked to borrow his car but agreed that she -- 6 of 27 -- 7 wanted to get cigarettes because, if she was going to stay, “we needed cigarettes” (page 28 lines 15 - 20). [22] In evidence in chief the first defendant was specifically asked what discussion occurred between her and the second defendant prior to getting into the Holden Commodore (page 17 line 43). She said it was hard to remember and her evidence simply continued to the effect that “we” needed cigarettes, she did not know the area or where the shop was, and that the second defendant said that he was not in a position to drive. She thought she was alright to drive. Unlike the evidence of the second defendant, her evidence in response to the question was unsatisfactory. She provided no evidence as to the substance of the conversation between the first and second defendants prior to getting into the Holden Commodore as to the second defendant’s position regarding the precise purpose of the journey. The distinct impression I gained from the substance of her evidence and the vague way in which she gave it was that she was assuming many things where she said, for example “I think Zach thought” (page 17 line 28), “just a continuation I suppose” (page 17 line 35) and the use of the word “we” (for example page 17 line 19; page 19 line 27). [23] Despite saying “we” needed cigarettes, her earlier specific evidence was that she wanted to get the cigarettes (page 17 line 18) and that the main reason why the second defendant came with her in the car was because she didn’t know where the shop was (page 19 line30). The fact that the second defendant did not drive on that occasion because he was over the limit does not, in my view, affect the prime reason for the journey in the first place. It is not disputed that the first defendant drove to the shop, alighted from the car alone, purchased her brand of cigarettes and one drink for herself with her own money and that the second defendant remained in the car. He did not financially contribute to the purchase of those items nor were any other items purchased for him. The first defendant bought nothing discrete for him although she again gave evidence that, because she had been sharing her cigarettes earlier in the previous evening and earlier that morning, she was quite prepared to share the new packet of cigarettes just purchased. At best, this is simply a statement of intention on her behalf. She does not point to any statement made or action taken by the second defendant to support this contention. Her -- 7 of 27 -- 8 evidence as to any activities they had jointly intended to undertake had the accident not occurred is wanting. While it is somewhat speculative as there is no evidence on this point, she may well have caught a cab home at some stage in any event given her earlier concerns about her mother. [24] The first defendant also gave evidence that when she lost control of the Holden Commodore the second defendant advised her to just drive out of it. She gave a description of how the accident occurred. Unlike her evidence referred to above, the first defendant was quite firm in not agreeing with the plaintiff’s evidence in this respect (page 14 lines 1 – 20). No case to answer submission [25] After the close of the plaintiff’s case, the second defendant made a submission of no case to answer (page 46 et seq). [26] The principles of making such a submission in civil cases seem to be settled in Queensland. In citing the case of Bank of New South Wales v. Signorini; Ex parte Signorini [1966] Qd.R. 322 (FC), the loose leaf service of Cross on Evidence7 states: In Queensland it is possible to put a no case submission without election if it is based on the want of evidence in support of a material element, but the putting of a submission that there be judgement on the ground that, though there is evidence, it is so weak and unsatisfactory as not to be accepted is not possible unless the party putting it elects not to call evidence. [27] That statement reflects the comments of Stable J. at pages 325 and 326 in the report of Signorini with whom the others members of the court agreed8. In particular Stable J. relied on the statement of principle in Clyne v. MacDonald (1965) N.S.W.R. 161 per Isaacs J. in applying the decision of Tate v. Johnson (1953) 53 S.R. (N.S.W.) 492; (1954) 70 N.S.W. (W.N.) 302. [28] There are authorities from other Australian jurisdictions providing useful analysis on no case submissions in civil cases for example Protean (Holdings) Ltd (Receivers and 7 Cross on Evidence, Volume I, Butterworths at paragraph 11085 on page 11,042; 8 Sheehy A.C.J. & Wanstall J. (as he then was); -- 8 of 27 -- 9 Managers Appointed) & Others v. American Home Assurance Co [1985] V.R. 187 (Full Court) and Rasomen Pty Ltd (trading as Shell Fairview Park) v. The Shell Co of Australia Ltd, Full Federal Court 27 May 1997, 437. See also Tovehead Pty Ltd v. Freeman, a decision of the Northern Territory Court of Appeal dated 15 April 2003 at paragraph 44 per Mildren J. But the stating of the principle for Queensland above is sufficient for present purposes. In this case both Counsel agreed with it. [29] Mr Woodford made a no case submission on the ground that there was a want of evidence in support of a material element in the plaintiff’s case (page 46 line 26). In those circumstances he was not called on to elect not to call evidence. [30] The substance of the submission is that the principle in Soblusky v. Egan (1960) 103 C.L.R. 215 at 231 regarding vicarious liability of owners of motor vehicles for the negligent acts of drivers should be modified in view of a purported principle gleaned from comments of some members of the High Court in Scott v. Davis (2000) 175 A.L.R. 2179 in limiting the operation of the Soblusky principle by excluding social occasions (among other things) even though the High Court was not asked to revisit Soblusky on that occasion. As this was a social occasion, the Soblusky principle did not apply to make the second defendant vicariously liable. [31] At 231, the principle in Soblusky is expressed in the joint judgement10 as follows: 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. 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. ….. [32] The no case submission is to the effect that the principles expressed by Callinan J. at paragraphs 356 & 357 in Scott v. Davis11 is binding authority as they are supported by 9 (2000) 74 A.L.J.R. 1410; 204 C.L.R. 333; [2000] H.C.A. 52 (www.austlii.edu.au); 10 Dixon C.J., Kitto J. & Windeyer J.; -- 9 of 27 -- 10 comments made by other members of the High Court in that case. In referring to the Soblusky principle cited above, Callinan J. relevantly said : [356] ……The key words in the judgment are “… 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”. [357] The conditions necessary to establish liability of an owner of a motor car for the acts of its driver are these. First, there must be an appointment, engagement or request. That appointment, engagement or request needs to be a real appointment engagement or request. The request must be made in something other than a merely domestic or social context. It must be made in circumstances in which the owner will derive a real benefit. The benefit need not be a financial benefit but it must be more than, as here, the deriving of a sense of satisfaction from the bestowal of a social favour or kindness. Secondly, there must be the reality of an actual power of control. The existence of a power of control can be of no relevance unless its exercise is, or is likely to be effective. That is why so many of the early cases to which I have referred stressed the presence of the owner and his relationship with the person, usually a coachman or driver, who was actually managing the chattel, as relevant factors, even though any ability to exercise any effective control was probably a fiction, as it often would have been with horses, and, as indeed it will usually be, with a car or any other fast moving object, that may cause or suffer damage in a split second. The use of the word “always” by their Honours in Soblusky is therefore significant and important as implying the need for a real and continuing power of, and capacity for effective intervention. Furthermore, an owner not actually personally using or managing the car can hardly be expected to intervene to exercise effective control unless there become apparent circumstances which call for intervention of a kind which is likely to be effective. These are, in my opinion, the minimum conditions to be satisfied and should constitute the rules to apply to the liability of owners (or bailees) of motor cars being used or operated by others in a non-commercial context on a proper reading of Soblusky v. Egan. [33] It should be observed that, if those statements represented a majority view of the High Court as a general statement of principle and applied in this case, in my view, if the evidence of the plaintiff’s witnesses were accepted in full, the second defendant would not be held vicariously liable for the negligent acts of the first defendant. The no case submission would have succeeded. 11 (2000) 175 A.L.R. 217; (2000) 74 A.L.J.R. 1410; 204 C.L.R. 333; [2000] H.C.A. 52 (www.austlii.edu.au); -- 10 of 27 -- 11 [34] References were made in the no case submission to comments by Gleeson C.J. (paragraphs 18 & 19), Gummow J. (paragraphs 256, 257 & 258) and Haines J. (paragraphs 309 & 310) in Scott v. Davis which are said to provide a binding determination of law in confining the Soblusky principle to the conditions stated by Callinan J. [35] Analysing Scott v. Davis is not an easy task as the New South Wales Court of Appeal observed in Gutman v. McFall (2004) 61 NSWLR 599 at paragraph 51 per Giles J.A. with whom Mason P. and McColl J.A. agreed: Scott v. Davis is not an easy case. Arriving at what was held as to application of the Soblusky v. Egan principle beyond motor vehicles is complicated by the consideration of what some of their Honours, but others less plainly, regarded as the different basis of vicarious liability expressed in Morgans v. Launchbury, and by the potential for distinguishing Soblusky v. Egan (depending on what the principle required by way of control) on the ground that the owner did not have the control over the pilot’s management of the aeroplane.(my emphasis) [36] In Gutman, the primary question under consideration was whether the Soblusky principle applied to an aluminium dinghy with outboard motor. The New South Wales Court of Appeal identified a common determination of three of the five judges in Scott v. Davis (Gummow J., Hayne J. & Callinan J.) to the effect that the Soblusky principle should not be extended beyond motor vehicles and that an aluminium dinghy with outboard motor was not a motor vehicle for the purposes of the Soblusky principle. This was a determination of law which was binding on that court. [37] The present question is whether the confinement in the application of the Soblusky principle as stated by Callinan J. is also a determination of law by at least three of the five members of the High Court. [38] In this respect reference was made to the last two sentences in paragraph 19 (page 48 line 42) of Scott v. Davis per Gleeson C.J.: All that the pilot did was to render, on a social occasion, a voluntary service at the request of the respondent. He was not a representative or delegate of the respondent. -- 11 of 27 -- 12 [39] However, that comment was made in the context of considering Launchbury v. Morgans12 and the element of control. He has not expressly adopted the views of Callinan J. in this respect. Earlier in paragraph 19 Gleeson C.J. considered that there may be cases where a driver may be regarded as the representative of the owner who has no immediate control over the vehicle in circumstances which make the owner liable on the same principle as was applied to an independent contractor. In referring to a social context, in my view Gleeson C.J. was not stating as a general principle that Soblusky did not apply to a social setting. The owner of the aircraft in Scott v. Davis was not in it at the time of the negligent act so that he did not have the necessary degree of control. So, that statement of Gleeson C.J. does not assist in supporting the no case submission. [40] Next, reference was made to statements of Gummow J. at paragraph 257 of Scott v. Davis to the effect that he would not extend the Soblusky principle to create a more extensive liability. Launchbury v. Morgans was referred to. However, Gummow J. made it clear at paragraph 256 that the Soblusky principle would “continue to have a significant field of operation in respect of motor vehicle property claims” and that “Nothing said in these reasons should be taken to deny that proposition”. Gummow J. agreed with Hayne J. & Callinan J. in not extending the Soblusky principle beyond motor vehicles. He did not expressly (or by implication) adopt the principles stated by Callinan J. cited earlier in these reasons. In my view, the comments of Gummow J. do not assist in supporting the no case submission. [41] At paragraphs 309 & 310, Hayne J. expressed difficulties in applying the Soblusky principle in a social or domestic context but does not express a view on it. While expressing doubts about the Soblusky principle, he does not venture to confine it the way Callinan J. had. In my view, this does not assist the no case submission. [42] Some support for my conclusions outlined above can be found in the analysis of the judgements in Scott v. Davis by the New South Wales Court of Appeal in Gutman v. McFall at paragraph 54 under the heading “The determination of law in Scott v. Davis”: 12 [1973] A.C. 127at 135; -- 12 of 27 -- 13 For each of Gummow J, Hayne J. and Callinan J., that the Soblusky v. Egan principle should be confined to motor vehicles was not the only reason for dismissing the appeal. Gummow J. and Hayne J. also distinguished Soblusky v. Egan as to control (at 420 [258] and 440 [311] respectively), and Callinan J. considered it inapplicable for other reasons (at 459 [358]). But for Gummow J. and Hayne J. the primary reason for dismissing the appeal was that the principle should be confined to motor vehicles, and for Callinan J. that was an alternative reason sufficient in itself. ……. (my emphasis) [43] Further, the New South Wales Court of Appeal observed that Gleeson C.J. would not have confined the Soblusky principle to motor vehicles if it were good law and McHugh J. (in dissent) would not have confined it either: paragraph 53 of Gutman v. McFall. [44] In analysing the judgements in Scott v. Davis, the New South Wales Court of Appeal in Gutman v. McFall did not distil as a principle of law from a majority in Scott v. Davis that Soblusky did not apply in a mere social or domestic context. Gutman v. McFall was itself a “social context” case and one would have thought that if such a principle were gleaned from Scott v. Davis, then that court would have identified it. It should be noted that comments were made in the judgments in Scott v. Davis identifying the potential difficulties in determining the nature of the relationship between the owner and driver in the social context as opposed to a commercial one: see Hayne J. at paragraph 302. [45] In conclusion, I am of the view that the statements of principle outlined by Callinan J. do not constitute a majority view of the High Court despite trenchant criticism13 of Soblusky v. Egan generally. As a result, the no case submission fails. The Defendant’s Case [46] The second defendant then gave evidence to the effect that he had met the first defendant in a night club the previous evening for the first time. They eventually went back to his residence. Both he and the first defendant were smokers. He smoked menthols and she smoked some exotic brand that was not menthols. After a while they both rested in separate rooms for a period. This evidence is not contentious. [47] Then, he said he was woken up. His evidence is as follows (page 71 line 32 et seq): 13 See paragraph 52 Gutman v. McFall – Gummow J. was particularly critical; -- 13 of 27 -- 14 Okay. Well, nonetheless you were asleep, were you woken up? ---Yeah, I was by a knock on the door. Who – by a knock on the door? --- Mmm Who woke you up? --- Maria did. From that do I take it you weren’t sleeping in the same room? --- No. So she knocked on the door, did she come in to your room? --- She stood at the doorway as I remember. Was there a conversation? --- Yes. And what was the conversation? --- She asked if she could get some cigarettes and borrow my car. And what did you say to that? --- Initially, I said, no, and then I changed my mind and thought, “Oh, well”, after establishing that she could drive and she felt she was right to drive that I thought I might go with her. Now you said “after establishing”; how did you establish that? --- Oh, I asked her whether she had continued to drink, how much she had, how she felt, whether she thought she was safe to drive as in under the limit, under the legal limit and she reassured me that she was and so then on approach to the car in brief I asked her if she could drive a manual. Yes? --- She said yes. [48] In saying that the first defendant requested the use of his car, the second defendant remained firm in this respect and did not depart from that during quite intense cross examination (page 78 line 14; page 88 lines 10 – 15) as well as in re-examination (page 89 lines 8 – 10). [49] His evidence continued to the effect that the shop was only about 700 meters away and that the purpose for the journey was to enable the first defendant to purchase her own cigarettes from her own funds. He was dressed in a dressing gown. His evidence does not conflict with the first defendant’s evidence to the effect that the first defendant was the one who purchased cigarettes and a drink and did so with her own money. His reason for going in the car with the first defendant was because the first defendant did not know the area very well and he did not know her very well (page 73 line30). -- 14 of 27 -- 15 [50] During cross examination the second defendant could not recall smoking the first defendant’s cigarettes the previous evening whereas the first defendant said everyone in the household smoked her cigarettes. She had only bought a fresh packet of cigarettes at either midnight or 2.00 a.m.14 and would not have smoked them all herself within the timeframe. In my view, nothing much turns on this. The fact remains that she had run out of her special brand and wanted to purchase some more. There is no evidence as to what the first and second defendant had intended to do had the accident not occurred. Even the evidence of the first defendant was wanting in this respect [51] The second defendant was cross examined at length on his statement to police dated 19 September 2005 (exhibit 1)15. Attempts were made to discredit him because he did not expressly state that he was not purchasing cigarettes for himself. In other words, he is being criticised because he failed to assert a negative proposition. In the statement, he simply says they went to purchase cigarettes. That, as a general statement, is true. But Sergeant Newman gave evidence that it was his “understanding [the cigarettes] were for Ms Lucarelli” (page 33 line 17). The wording in the police statement is a general way of describing the circumstances which in my view is not an uncommon way of describing events in police statements. Further, the critical statement was not the focus of inquiry at the time as the first defendant was being charged with drink driving. It was suggested to him that the first defendant wanted to purchase her cigarettes to replace the ones the second defendant had smoked beforehand. If this were the case, then one would have thought that he would have financially contributed to that purchase. In my view, statements he made to the police do not detract from his evidence in court, namely that the purpose of the journey was to enable the first defendant to purchase her own cigarettes and this is supported by what actually occurred, namely that the first defendant purchased her own cigarettes and a drink with her own money without any financial contribution from the second defendant. [52] While both the first and second defendants were not good witnesses in various aspects of their evidence, I prefer the evidence of the second defendant on the critical issues on 14 As observed at paragraph 20 of these reasons her evidence varied on this; 15 Paragraphs 2 & 3 of the statement are cited in full at paragraph 16 of these reasons; -- 15 of 27 -- 16 vicarious liability. I accept that he was woken by the first defendant who requested the use of his car to enable her to purchase her cigarettes with her own money. I do not accept the proposition put to the second defendant in cross examination that there was a joint intention to return to his house and continue “keeping company” and to continue smoking her cigarettes. This may well have been the first defendant’s own subjective intention but she did not point to anything the second defendant said or did to support that proposition. Indeed, in my view the evidence of the first defendant does not even support such a joint intention. As previously mentioned at paragraphs 20 to 23 of these reasons she could not recall the substance of conversations with the second defendant prior to getting into the car and her evidence was phrased in terms of what her thought processes were and her generic use of the word “we”. Her express evidence hinges on what she thought the second defendant thought. Further, her evidence (cited at paragraph 20 of these reasons) conflicts with what actually occurred. In the last sentence she said, inter alia, “…well look, we can both get some cigarettes together”. The only purchase that took place was between the first defendant as purchaser and the shopkeeper as vendor. Discussion [53] In summary the second defendant’s case is that the Soblusky principle does not apply in a social context in line with statements of Callinan J. in Scott v. Davis cited at paragraph 32 of these reasons. For reasons already expressed under the “No case to answer submission”, this ground fails because that was not a general statement of principle by a majority of judges in the High Court. [54] The second defendant’s second ground is that as the purpose of the journey was for the first defendant to purchase her cigarettes, then it cannot be said that the first defendant drove the second defendant’s vehicle “on his behalf”. Further, if the evidence of the second defendant is accepted, then there has been no real appointment, engagement or request by the second defendant of the first defendant to drive his car. To the contrary, it was the first defendant who requested the use of the second defendant’s car. [55] In response the plaintiff’s case is that the phrase “on his behalf” referred to in the Soblusky principle is satisfied because the second defendant asked the first defendant to -- 16 of 27 -- 17 drive because he was unable to due to his level of intoxication. The evidence of the first defendant should be preferred to that of the second defendant. In this regard it was suggested that the second defendant was reconstructing events when he said he would have alighted from the car and purchased his own cigarettes if he had none of his own left (page 100 line 4). In isolation, that submission may have some merit. However, the fact is that he did not do so and at that point in time, the accident had not occurred. His contemporaneous actions prior to this issue arising, on balance lends weight to his version of events. [56] The plaintiff’s case continues to the effect that it was a joint decision to go to the shop and that it was a joint intention to return to the second defendant’s residence to share the cigarettes just purchased. He appointed her to do the manual work of managing the car for the purpose of going to the shop. [57] In reference to the Soblusky principle the plaintiff’s case is directed to the importance of control or an ability to control on the owner’s part. Here, this is satisfied because, unlike in Scott v. Davis, the second defendant was actually present in the car and was in a position of being able to say to the first defendant, for example, “Stop; I don’t want you to drive any more”. [58] Further, the plaintiff submits that there are many forms of benefit. The benefit for the owner in such circumstances does not have to be a financial one (page 107 line 30). This submission reflects in part comments made by Callinan J. in Scott on this point although no doubt the plaintiff here would not confine it as Callinan J. did when he said “The benefit ….must be more than …. the deriving of a sense of satisfaction from the social bestowal of a social favour or kindness”16. [59] During submissions, there was, understandably, a great deal of focus on the actual words used by the High Court in expressing the Soblusky principle cited at paragraph 31 of these reasons. As in all cases application of a principle of law depends on the facts as Gleeson C.J. observed in Scott v. Davis at paragraph 11: 16 From paragraph 357 in Scott cited at paragraph 32 of these reasons; -- 17 of 27 -- 18 The principle by which the existence of vicarious liability is to be determined is to be distinguished from evidentiary considerations concerning the facts relevant to the application of the principle. The nature of the chattel in question, or, if it be a motor vehicle, the nature of the motor vehicle, or the nature of the occasion of its use, may be significant for the purpose of drawing inferences as to the relationship between an owner or bailee and a person for whose negligence the owner or bailee is claimed to be responsible. ….. [60] The Soblusky principle has been criticised by the High Court not only in Scott v. Davis, but also subsequently in Sweeney v. Boylan Nominees Pty Ltd (2006) 226 C.L.R. 161 by a differently constituted High Court in discussing the general development of vicarious liability at paragraph 11 relevantly as follows17: ……. Thirdly, although important aspects of the law relating to vicarious liability are often traced to the judgement of Parke B. in Quarman v. Burnett [151 E.R. 509], neither in that decision, nor in other early decisions to which the development of the doctrine of vicarious liability may be traced, does there emerge any clear or stable principle which may be understood as underpinning the development of this area of the law. Indeed, as is demonstrated in Scott, the development of the law in this area has not always proceeded on a correct understanding of the basis of earlier decisions. (my emphasis) [61] The New South Wales Court of Appeal in Gutman has also noted the criticism of Soblusky in Scott and, among other things, commented at paragraphs 52 & 56 of the judgement of Giles J.A. (with whom Mason P. & McColl J.A. agreed): [52] The Soblusky v. Egan principle itself was doubted, and was trenchantly criticised by Gummow J. in particular…… [56] ……. It may be that the principle itself will not survive re-opening in the High Court – confinement to nil, rather than extension to all chattels, is equally an answer to the logical imperative. [62] While noting the criticisms of Soblusky referred to earlier and the fact that, as Gummow J. observed in Scott v. Davis at paragraph 125: It is important for an appreciation of Soblusky today that, at the time it was decided (in 1960), this court regarded itself as bound by decisions of the Privy 17 Joint judgement of Gummow, Kirby, Hayne, Heydon and Crennan JJ.; -- 18 of 27 -- 19 Council even in appeals to that body from other countries. Thus, the court was foreclosed from pursuing any line of inquiry as to the correctness of Samson v. Aichison, and was limited to seeking some basis upon which that case might be rationalised, the Soblusky principle binds this court in the current case. Having made that clear, nevertheless I respectfully agree with the comments in Scott v. Davis about the decision in Soblusky. [63] In arriving at its decision in Soblusky, the High Court applied Samson v. Aitchison [1912] A.C. 844. That was a decision of the Privy Council on appeal from a decision of the New Zealand Court of Appeal. After considering a line of English authorities18 the High Court in Soblusky said at page 231 just prior to the statement of principle previously cited: It is from this line of authority that Samson v. Aitchison proceeded. (footnote omitted) [64] The question is how the Soblusky principle should be applied in this particular case given the evidence which I have accepted. [65] Gutman does not particularly assist in that task as that court’s primary consideration was whether the Soblusky principle was confined to motor vehicles: see paragraph 11 of the judgement where Giles J.A. said: It is not necessary to explore the application of the principle, apart from its confinement to motor vehicles, to the hiring and operation of the dinghy. …. [66] As previously noted Scott v. Davis is not an easy case to analyse. Suffice it to say that the basis for the decision lay in doubts surrounding the Soblusky principle and as such, it should not be extended to aircraft. Further, that case was also decided on the basis of the lack of desired level of control the owner had over the pilot. In that case, the owner was not in the aircraft at the time of the negligent act. 18 Notably Chandler v. Broughton (1832) 149 E.R. 301; Booth v. Mister (1835) 173 E.R. 30; Wheatley v. Patrick (1837) 150 E.R. 917; see (1960) 103 C.L.R. 215 at pages 229 & 230; -- 19 of 27 -- 20 [67] Therefore, an examination of Soblusky v. Egan itself is warranted. The general statement of principle in Soblusky cited at paragraph 31 of these reasons should be put in context. [68] Soblusky was in possession of a Ford motor vehicle. He had taken over hire purchase instalments from the original hire purchaser and treated the car as his own. However, formal procedures had not been effected so that the original hire purchaser remained registered as the owner. Soblusky was not a young man, had a stiff neck and he preferred not to drive long distances.19 Soblusky was to attend a Buffalo Lodge meeting at Gayndah on 1 September 1956 and had arranged for a number of other members of the Order to travel in his car for this purpose each contributing £ 1 towards fuel. He had asked a number of people to drive for him in the past including one Lewis who was the driver on this particular occasion. An accident occurred while Soblusky was asleep seated in the front. The accident occurred due to the negligence of Lewis. Another occupant of the car who had attended the Lodge meeting in Gayndah sustained severe personal injuries as did Soblusky. These matters were not in issue in the appeal to the High Court. [69] So far as is relevant, Egan sued Soblusky alleging that he was the owner “in fact” of the vehicle20, that he had possession and control of it, and that Lewis drove as his servant or agent.21 Egan succeeded on this point at trial in that “when Lewis negligently drove the Ford sedan he did so as the agent of Soblusky acting within the scope of his authority”.22 That finding was challenged by Soblusky in the High Court in two ways only one of which is relevant for present purposes concerning the development of vicarious liability at common law.23 [70] In speaking of the first ground for appeal, it is important to set out the judgement on how this is expressed at page 228: 19 These facts are taken from (1960) 103 C.L.R. 215 at 225 – report of Soblusky v. Egan; 20 It was also alleged that Soblusky was owner within the meaning of The Motor Vehicles Insurance Acts 1936 to 1945; 21 Page 227 of Soblusky; 22 Page 228 Soblusky; 23 The other ground was based on a construction of The Motor Vehicles Insurance Acts 1936 to 1945 – see page 231 et.seq. of the report in Soblusky; -- 20 of 27 -- 21 First it is argued that in principle there can be no ground for holding that as Lewis drove at the wheel Soblusky, lying back in the corner dozing, was driving the car by his agent for whose negligence he was responsible in damages. [71] In stating the principle at page 231 the High Court rejected that ground of appeal. The judgement continues at page 228: 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. (my emphasis) [72] In this context reference was made in the joint judgement (at page 229) to The Law of Torts (1957) p. 376 by Dr. John Fleming in the following terms: ….the courts have imposed a special liability upon the owner of a vehicle who allows it to go on the road in charge of someone else, provided it is being used wholly or only partly on the owner’s business or for his purposes. (my emphasis) [73] While their Honours go on to state at page 229 that Fleming’s statement may explain but not justify a development in the law if indeed it involved a departure from principle, they did not cavil with the statement that the principle only applies when the vehicle is being used wholly or partly for the owner’s purposes. [74] Indeed, Soblusky was such a case. It was not disputed that Soblusky himself intended to attend the Lodge meeting. The ill fated journey was thus at least partly for his own purpose. In my view their Honours in Soblusky proceeded on that basis and the statement of principle at page 231 of the judgement is prefaced on the basis that the vehicle was used for Soblusky’s purpose. That is, when the owner appoints another to do the manual work of managing the vehicle and to do so on his behalf, the use of the vehicle must be for some purpose of the owner. [75] While McHugh J. was in dissent in Scott in allowing the appeal by concluding that the owner of the aircraft was in his view vicariously liable for the pilot’s negligence, in relation to Soblusky he observed at paragraph 99: -- 21 of 27 -- 22 …. Indeed, Soblusky can fairly be seen as a case of the “owner” of a vehicle delegating a task to the driver for the owner’s purposes. (my emphasis) [76] In concluding McHugh J. among other things said at paragraph 120: Not all the “motor car” cases have been correctly decided. But, properly understood, they do not depart from the basic principles of vicarious liability, as they have evolved, in holding an owner liable where negligent driving has occurred in the course of performing a task or duty which the owner has asked the driver to perform as the owner’s representative or delegate. ……(my emphasis) [77] Soblusky applied Samson v. Aitchison24 which is said to be the culmination of line of English authorities. In Samson too, the vehicle was being driven for the defendant owner’s purposes, namely, taking the vehicle on a test run in an attempt to sell it. Their Lordships said at page 849 of the report: I think that where the owner of an equipage, whether a carriage and horses or a motor, is riding in it while it is being driven, and has thus not only the right to possession, but the actual possession of it, he necessarily retains the power and the right of controlling the manner in which it is to be driven, unless he has in some way contracted himself out of his right or is shewn by conclusive evidence to have in some way abandoned his right. [78] Later their Lordships acknowledged at page 850: It was in the interest of the defendant that Collins should drive, in order that he might make a trial of the car. [79] In my view, the principle in Samson cited at paragraph 77 above is also prefaced on the basis that the vehicle was being used, wholly or partly, for the owner’s purposes. [80] Wheatley v. Patrick25, one of the English authorities considered in Soblusky at page 230 is also a case in which the horse and chaise was being driven for the defendant’s purposes. The defendant Wheatley had borrowed a horse and chaise from a company for a trip to the country. Wheatley allowed a friend to drive. An accident occurred due to the friend’s negligence. It was found that he was still possessed of the horse and chaise 24 [1912] A.C. 844; 25 (1837) 150 E.R. 917; -- 22 of 27 -- 23 under his care, management and direction26. Again, in my view, apart from noting the pleading issues raised by Gummow J. in Scott, this case too proceeded on the basis that although the horse and chaise remained in his control, they were being used for a purpose of his, namely, going on a trip in the country. [81] The reports of two other English cases considered in Soblusky, Chandler v. Broughton27 and Booth v. Mister,28 are rather brief. However, in Chandler the report indicates that the defendant was sitting next to his servant who was driving the gig. This lends support to the view that the gig was being driven for the defendant’s purposes. In Booth, the position is less clear in that the defendant’s servant was on the defendant’s “cart” but had allowed a stranger to drive. The defendant was not in the “cart” at the time of the negligent act. [82] Gutman v. McFall29 is also a case in which the purpose of the dinghy was partly for the use of the defendant bailee who was one of five 16 year old males and who had hired a dinghy for a pleasure cruise on Sydney Harbour. The defendant was in the dinghy but was not driving at the time of the negligent act. The New South Wales Court of Appeal however, was primarily concerned as to whether the Soblusky principle applied to a dinghy with outboard motor. [83] In the present case, I have accepted the evidence of the second defendant for the reasons previously outlined. I have accepted that he was woken up from his sleep by the first defendant who requested she borrow his car for her purpose in purchasing her own cigarettes. This is in fact what occurred – she bought her own brand of cigarettes and a drink with her own funds while the second defendant remained in the car. Any notion that the partying was to continue so as to imply some joint purpose in the journey in my view is pure speculation. The plaintiff bears the onus of proof. In this respect the evidence of the first defendant was most unsatisfactory on this issue and any such notion may well have been merely a subjective one on her part – a notion not acknowledged by anything the second defendant said according to the evidence. 26 In particular at p. 918 [paragraph 652] per Lord Abinger C.B; 27 (1832) 149 E.R. 301; 28 (1835) 173 E.R. 30; 29 (2004) 61 NSWLR 599 (22 October 2004); -- 23 of 27 -- 24 [84] The second defendant’s vehicle was not being used for any purpose of his. After satisfying himself that she could lawfully drive and being satisfied that he could not lawfully drive because he was well over the blood alcohol limit, he gave his permission for her to drive to the shop for her purposes. It does not automatically follow that because he accompanied her on the journey, the Soblusky principle applies because he has legal control of the car. In my view he did not appoint the first defendant to drive the car on his behalf. He simply gave her permission to use the car for her own purposes and the car was in fact used for her purposes. On this ground I conclude that the second defendant is not vicariously liable for the first defendant’s negligence. [85] On my view of the current law as stated in Soblusky, using a car for the owner’s purposes can arise in a variety of contexts ranging from social circumstances to more formal circumstances for example in a commercial or business context. In this case, which is a social context case, I have found on the evidence that the use of the second defendant’s car was not for his purpose. Consistent with comments made in the various judgements in Scott however this case does highlight the evidentiary difficulties that may arise in social cases as opposed to more formal associations in defining the parameters of association between owners and drivers and particularly in defining the respective roles and functions of drivers who are driving someone else’s car. [86] The other aspect of this case is that the Soblusky principle is couched in terms of “circumstances where he [the owner] can always assert his power of control”. In the absence of evidence to suggest otherwise, mere presence of an owner in the car may well point to the conclusion that the owner is in a position to exert control of the car in a legal sense although perhaps not always in a practical sense. Their Lordships in Samson recognised30: It does not follow because in any particular case it had not been found necessary [for the owner] to exercise a paramount authority, that such authority did not exist. 30 Per Lord Atkinson(with whom the other members of the court agreed) at page 850; -- 24 of 27 -- 25 [87] Their Lordships also recognised circumstances in which the owner can in some way abandon his right to control31 and that the owner merely requesting another to drive while the owner is present was not enough in itself to establish abandonment32. It will be recalled that Soblusky applied Samson. [88] In this case, it is uncontentious that the second defendant was well over the legal alcohol limit. Sergeant Newman said he ceased the road side breath test on the second defendant when the reading was 0.12%. But the reading was still increasing at that point. [89] There are two points about this. [90] First, the fact that the second defendant had that level of alcohol in his blood in addition to his evidence which is accepted including the fact that it was the first defendant who requested the use of the car, points to a conclusion that he had given up the right of controlling the manner of driving during the journey. The second defendant is an ambulance officer and would be well aware of the consequences of driving or being in charge of a car with an alcohol reading of at least 0.12%. The penalty for offences of this nature under the Transport Operations (Road Use Management) Act 199533 would include periods of disqualification from holding or obtaining a driver’s licence; consequences that would undoubtedly cause some detriment to his employment as an ambulance officer. It was also patently obvious to the first defendant that the second defendant was well over the alcohol limit. If he had made a comment to the first defendant about driving out of the roundabout (and that is doubtful on my view of the first defendant’s evidence), then, in my view, this amounted to mere gratuitous advice. I would conclude on this ground also that the second defendant is not vicariously liable for the first defendant’s negligence. [91] The second point about the level of the second defendant’s intoxication is whether, having regard to that level of intoxication, he was always in a position to exercise his power of actual control even if he had not abandoned his right of control. Apart from 31 [1912] A.C. 844 at 849; 32 [1912] A.C. 844 at 850; 33 Subsections 79(1) & (2) and section 86; -- 25 of 27 -- 26 being unable to lawfully drive or be in charge of the car himself on this occasion, his actual judgement would have been impaired to some extent. This case is, in a sense, distinguishable from Soblusky where the owner, Soblusky, was sitting next to the driver and dozed off. The High Court held that by dozing off, Soblusky completely delegated to the driver the management of the car. There was no suggestion in the report that Soblusky was intoxicated or otherwise cognitively incapacitated in some way during the complete journey. Indeed, it appears that Soblusky was awake for at least part of the journey during which period he would have had his normal faculties to exercise control if and when desired. Unlike this case, Soblusky asked Lewis to drive. In fact, during the journey and prior to going to sleep Soblusky asked the driver Lewis if he would mind if Soblusky went to sleep while he (Lewis) drove34. This may explain the High Court’s comment that upon going to sleep Soblusky simply made his delegation more complete. In the present case, the first defendant requested the use of the second defendant’s car and the second defendant had always been intoxicated during relevant times from start to finish. [92] However, there is a dearth of evidence as to the actual effects of an alcohol reading of at least 0.12% on the second defendant and in particular whether it affected his capacity on that occasion to exercise effective control over the car. Accordingly, I make no conclusions or findings on this point. Conclusion [93] I give judgement for the plaintiff against the first defendant in an amount to be determined after I hear further submissions. This is on the basis that the first defendant has failed to enter an appearance and defence together with formal proof of quantum. The first defendant is deemed to have admitted the plaintiff’s allegations pursuant to rule 166 of the Uniform Civil Procedure Rules 1999. 34 (1960) 103 C.L.R. 215 at 225 (at about point 7); -- 26 of 27 -- 27 [94] I give judgement for the second defendant against the plaintiff. Effectively, the plaintiff’s claim against the second defendant is dismissed on the ground that the second defendant is not vicariously liable for the negligent acts of the first defendant. [95] I give judgement for the second defendant against the first defendant in the third party proceedings in an amount to be determined after I hear further submissions. Again, this is on the basis that the first defendant has failed to enter an appearance and defence together with formal proof of quantum. The first defendant is deemed to have admitted the second defendant’s allegations in third party proceedings pursuant to rule 166 of the Uniform Civil Procedure Rules 1999. -- 27 of 27 --