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Bar Practice Course Bar Practice Course 204 CLR 333] SCOTT v DAVIS 333 SCOTT AND OTHERS ........................................... APPELLANTS; PLAINTIFFS, AND DAVIS ....................................................................... RESPONDENT. DEFENDANT, [2000] HCA 52 ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA Negligence — Vicarious liability — Aeroplane — Pilot asked by owner to take HC OF A temporary control without reward in owner’s absence — Injury to 2000 passenger — Whether owner of plane vicariously liable for pilot’s March 3; negligence. Oct 5 During a birthday party held at a country property, the owner of a two- 2000 seater aeroplane allowed it to be used for a joy-ride. The owner asked a Gleeson CJ, licensed pilot, who was a guest at the party, to fly the plane. There was McHugh, no relationship of master and servant or principal and agent between the Gummow, Hayne and owner and the pilot on contractually agreed terms. The plane crashed Callinan JJ through the negligence of the pilot, causing serious injury to a child who was a passenger in it and nervous shock to his parents. Held, by Gleeson CJ, Gummow, Hayne and Callinan JJ, McHugh J dissenting, that the owner was not vicariously liable for the pilot’s negligence, even though the pilot had taken the passenger on a joy-ride at the owner’s request, because the owner had not retained the direction and control of the plane. Soblusky v Egan (1960) 103 CLR 215, considered and distinguished. Morgans v Launchbury [1973] AC 127, distinguished. Decision of the Supreme Court of South Australia (Full Court): Davis v Scott (1998) 71 SASR 361, affirmed. APPEAL from the Supreme Court of South Australia. Geoffrey Arthur Davis owned a number of vintage aeroplanes, which he kept at his rural property in the Barossa Valley in South Australia. On 29 July 1990, Davis and his wife held a twenty-first birthday party for their daughter. Travis Kane Scott, who was then eleven years of age, attended with his parents. Travis’ father asked Davis whether Travis could have a joy-ride in one of the planes, a 1946 Aeronca. Davis replied that he would consider the request and later asked his wife to approach another guest to see whether he would take Travis on a joy-ride. The guest, who was a licensed pilot, agreed to do so. The pilot’s negligence caused him to lose control of the plane, which stalled and crashed while being turned at low speed. The Vol: 204. File: 1778. Start page 333 CLR 3rd run _ 12 Sep 2003 Last Footnote No: XXX 334 COMMONWEALTH LAW REPORTS [2000 pilot was killed and Travis was seriously injured. Travis’ parents, who witnessed the crash and attended the scene after Travis had been pulled free of the wreckage, suffered nervous shock. They commenced proceedings for negligence against Davis and his wife in the Magistrates’ Court. Those proceedings were transferred to the District Court of South Australia, where they were heard together with an action commenced by Travis (by his father as next friend) against Davis and his wife. It was alleged that Davis and his wife were vicariously liable for the negligence of the pilot. Judge Bright found no relationship of master and servant or of principal and agent on contractually agreed terms. However, he found that, having lent the plane to the pilot, Davis was responsible for his negligence. The claims against Mrs Davis were dismissed. The Full Court of the Supreme Court of South Australia (Doyle CJ and Nyland J, Millhouse J dissenting) allowed an appeal by Davis, set aside a judgment awarding damages and substituted a judgment dismissing the actions (1). The Scotts appealed to the High Court from the judgment of the Full Court by special leave granted by McHugh and Callinan JJ. The respondent filed a notice of contention based upon the ground that the Full Court erred in failing to determine that if the doctrine of vicarious liability discussed in Morgans v Launchbury (2) applied to aeroplanes, Davis was not liable having regard to the fact that the carriage of Travis in the plane was not performed for the purpose and/or benefit or sufficient purpose or benefit of Davis, or that the dominant purpose of the use of the plane, in carrying Travis, was to satisfy the request of his parents that he be taken for a pleasure flight. W J N Wells QC (with him A L Tokley), for the appellants. The owner of the plane is vicariously liable for the pilot’s negligence because he falls within the scope of Morgans v Launchbury (3),in which the vicarious liability of an owner of a chattel (there, a motor vehicle) for the negligence of a user acting for the owner’s purposes was recognised. The principle recognised in Morgans v Launchbury (4) has been applied in numerous common law jurisdictions (5). The (1) Davis v Scott (1998) 71 SASR 361. (2) [1973] AC 127. (3) [1973] AC 127. (4) [1973] AC 127. (5) eg, Mortess v Fry [1928] SASR 60; Hewitt v Bonvin [1940] 1 KB 188; Ormrod v Crosville Motors Services [1953] 1 WLR 1120; [1953] 2 All ER 753; Pennell v O’Callaghan [1954] VLR 320; Manawatu County v Rowe [1956] NZLR 78; Comino v Lynch and British Pharmaceuticals Pty Ltd (1960) 54 QJPR 16; Norton v Canadian Pacific Steamships Ltd [1961] 1 WLR 1057; [1961] 2 All ER 785; Gosson Industries Pty Ltd v Jordan [1965] NSWR 687; Fettke v Bogovic [1964] SASR 119; Pearce v Pignitter [1963] Tas SR 187; Doyle v Pick and Rickwood [1965] WAR 95; Carberry v Davies [1968] 1 WLR 1103; [1968] 2 All ER 817; Jennings v Hannon [No 2] (1969) 71 SR (NSW) 226; Rambarran v Gurrucharran [1970] 1 WLR 556; [1970] 1 All ER 749; Kirth v Tyrrell [1971] Qd R 453; Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311; Kelly v Vol: 204. File: 1778. Start page 333 CLR 3rd run _ 12 Sep 2003 Last Footnote No: XXX 204 CLR 333] SCOTT v DAVIS 335 relationship between a user of a chattel who commits a tort and the owner or bailee of that chattel attracts the same considerations that underlie the vicarious liability of an employer (6). Those consider- ations are first the ability to take control. [He referred to Atiyah, Vicarious Liability in the Law of Torts (7); Glass, McHugh & Douglas, The Liability of Employers in Damages for Personal Injury (8); Keeler, ‘‘Driving agents: to vicarious liability for (some) family and friendly assistance’’ (9); Chandler v Broughton (10); Booth v Mister (11); and Wheatley v Patrick (12).] Secondly, there must be an ability to direct management of the chattel (13). Where power is delegated, continued control is implied by the power or right to control the chattel (14).By virtue of a contract of employment, an employer has the right to direct and control the manner of the execution of tasks by an employee. The tortious acts of an employee for which an employer is liable are only those that are committed in furtherance of, or whilst going about, the employer’s business, or are facilitated by going about the employer’s business. [He referred to the Holmes-Pollock Letters 1874-1932 (15); Pollock, Essays in Jurisprudence & Ethics (16); Atiyah, Vicarious Liability in the Law of Torts (17); Holdsworth, History of English Law (18); Wigmore, ‘‘Responsibility for Tortious Acts: its History’’, Select Essays in Anglo-American Legal History (19); Cornish & Clark, Law and Society in England 1750-1950 (20); Blackstone, Commen- taries on the Law of England (21); Glass, McHugh & Douglas, The Liability of Employers in Damages for Personal Injury (22); and (5) cont Lombard Motor Co [1974] IR 142 at 144; Moynihan v Moynihan [1975] IR 192; Manawatu County v Rowe [1956] NZLR 78; Ansin v R & D Evans Ltd [1982] 1 NZLR 184; Harris v Van Spijk [1986] 1 NZLR 275; Gramak Ltd v O’Connor (1973) 41 DLR (3d) 14 at 20-21; Rand v Bomac Construction Ltd (1988) 55 DLR (4th) 467; Pawlak v Doucette [1985] 2 WWR 588. (6) Atiyah, Vicarious Liability in the Law of Torts (1967), pp 15-28; Wigmore, ‘‘Responsibility for Tortious Acts: its History’’, Select Essays in Anglo-American Legal History (1909), vol 3, p 474. (7) (1967), pp 125-126. (8) 2nd ed (1979), chs 5, 6. (9) Torts Law Journal, vol 8 (2000) 41, at p 43. (10) (1832) 1 C&M 29 [149 ER 301]. (11) (1835) 7 Car&P66[173 ER 30]. (12) (1837) 2M&W650;6LJEx193[150 ER 917]. (13) Samson v Aitchison [1912] AC 844. (14) Samson v Aitchison [1912] AC 844; Soblusky v Egan (1960) 103 CLR 215; Kondis v State Transport Authority (1984) 154 CLR 672 at 692. (15) (1941), vol 1, p 233. (16) (1882), Employer’s Liability, p 114 (17) (1967), Pts II, VII. (18) vol 8 (1966 rep), pp 472-482. (19) (1909), vol 3, p 474. (20) (1989), p 489. (21) (1844) vol I, p 429. (22) 2nd ed (1979), chs 5, 6. Vol: 204. File: 1778. Start page 333 CLR 3rd run _ 12 Sep 2003 Last Footnote No: XXX 336 COMMONWEALTH LAW REPORTS [2000 Keeler, ‘‘Driving agents: to vicarious liability for (some) family and friendly assistance’’ (23).] Finally, a bailment on terms gives rise to legal rights and obligations as does a contract (24). Vicarious liability arises when an owner or bailee surrenders possession of the chattel to a delegate to do the bidding of the owner or bailee, the owner or bailee exercising power of control over the chattel by dictating the terms on which the user is to have the use of the chattel.
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