Re Rose Meth v Robert Shaun Moore and the Nominal Defendant [1982] FCA 149; (1982) 63 FLR 309 (30 July 1982)

FEDERAL COURT OF AUSTRALIA

Re: ROSE METH
And: ROBERT SHAUN MOORE and THE NOMINAL DEFENDANT [1982] FCA 149; (1982) 63 FLR 309
No. NTG9 of 1981
Tort

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(2) and Sheppard(3) JJ.

CATCHWORDS

Tort - motor vehicle accident - mechanical defect - duty of care owed to gratuitous passenger - vehicle to be in safe condition to be driven - need for inspection.

Motor Vehicles Act (N.T.) s.82 (repealed)

Tort - Negligence - Motor vehicle accident - Mechanical defect in vehicle - Whether owner of vehicle was negligent - Whether owner owned duty of care to deceased - Whether owner owed duty of care to gratuitous passenger - Whether owner breached his duty of care - Motor Vehicles Act 1949 (N.T.), s. 82 - Compensation (Fatal Injuries) Act 1938 (N.T.), s. 5. In September 1972 M. paid sixty dollars for an old motor vehicle which was registered in Queensland. On 8th September, 1972, whilst being driven in the Northern Territory by an unidentified person, the vehicle was involved in an accident which caused the death of a passenger (the deceased). Later examination showed that the tail shaft at the forward end had become detached from the vehicle and expert evidence showed signs of wear and lack of lubrication in the vehicle, particularly in the universal joints, which would not have been apparent without a competent inspection. The appellant was the deceased's widow who had claimed damages against M., alleging that the owner was negligent in allowing the vehicle to be driven in an unsafe condition, and in failing to warn the deceased of the unsafe condition of the vehicle. As the vehicle was "uninsured" or "not an insured vehicle" in the Northern Territory at the time of the accident, the nominal defendant was joined as a party pursuant to the provisions of s. 82 (1) of the Motor Vehicles Act (now repealed).

A judge of the Supreme Court of the Northern Territory dismissed the widow's claim pursuant to s. 5 of the Compensation (Fatal Injuries) Act 1938 (N.T.) on the basis that the owner only owed a duty of care to warn a gratuitous passenger of any defect in the vehicle known to the driver but concealed from the passenger.

Held: Per curiam - (1) The owner or other person having the care of the motor vehicle owed a duty of care to the deceased to take reasonable care to ensure that the vehicle was roadworthy and in a safe condition to be driven.

(2) The appeal would be allowed and a new trial would be ordered in relation to the issues of liability and damage.

Piening v. Wanless [1968] HCA 7; (1967) 117 CLR 498; Wanless v. Piening (1967) 68 SR (NSW) 249; Henderson v. Henry E Jenkins & Sons (1970) AC 282, referred to with approval.

(3) The question of whether the evidence established that the owner of the vehicle had breached his duty of care to the deceased was a question of fact to be answered by the trial judge at the new trial.

Per McGregor J. - Canadian and United States references concerning "guest passenger" legislation discussed.

HEARING

Darwin, 1982, June 2-3; July 30. 30:7:1982
APPEAL

The facts appear in the judgment.

M.D.A. Maurice, for the appellant.

P. Newman Q.C. and K.J. Curnow, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Ward Keller.

Solicitors for the respondents: Mildren Sylvester & Partners.
J.D. WHITEHEAD
Appeal allowed and a new trial ordered.

DECISION

The appellant Mrs. Meth sued on her own behalf and on behalf of her youngest child to recover damages as a result of the death of her husband who was killed in a motor vehicle accident on 8 September 1972. Her claim was dismissed.

She sued three defendants. The first, Graham Sullivan, was joined on the basis that he was the driver of the motor vehicle in which the deceased was a passenger when it rolled over on the road leading from Tennant Creek to the Warrego Mine. The learned trial Judge held that there was no evidence that Sullivan was the driver at the relevant time; there was no appeal from that part of the judgment.

Robert Shaun Moore, the second defendant and now the first respondent, was sued as the owner of the motor vehicle. The case against him was that he was guilty of negligence in allowing the vehicle to be driven when he knew or ought to have known that it was in an unsafe condition and in failing to warn the first defendant or the deceased that it was in an unsafe condition. For reasons just mentioned, the reference to the first defendant is no longer relevant. There was evidence that at the time of the accident the vehicle was being driven by a man known only by his first name and who later disappeared. He was not joined as a defendant.

The nominal defendant (now the second respondent) was joined as third defendant, on the basis that although a policy of insurance complying with the provisions of the Motor Vehicles Insurance Act of Queensland was current in regard to the vehicle at the time of the accident, the vehicle was, in terms of the Motor Vehicles Act of the Northern Territory, uninsured. On that basis and pursuant to s.82 of the Act (now repealed) the nominal defendant was sued in the alternative.

After the hearing of the appeal had begun the Court was told by counsel for the two respondents that no distinction was made in regard to their positions and that if the appeal were allowed there should be judgment against the nominal defendant only. The appellant agreed with this approach.

The issues in the appeal may be stated quite shortly.

1. Did the owner of the motor vehicle owe to the deceased a duty to take reasonable care to ensure that the vehicle was in a safe condition to be driven?

2. If so, did he breach that duty?

The vehicle in question was an FC Holden sedan of the 1958-1959 series, with a current Queensland registration. The accident occurred on 8 September 1972 at about 11 p.m. Two or three days earlier Mr. Moore had bought the vehicle from Kelvin Keith Kingston who was also a passenger in it at the time of the accident. Kingston himself had only owned the vehicle about a week. He paid $130 or $180, he was not sure which, and sold it to Moore for $60.

About 15 miles before the accident occurred there was a change of drivers, Moore and another man having driven earlier. In Kingston's words - ". . . we were just driving along, and there was a bang, and all of a sudden the car just flipped over".

It was a straight stretch of road, the weather was fine, and the car was travelling at about 45 miles an hour at the time. Elaborating his description of what happened, Mr. Kingston said that the "bang" was like a rock hitting up underneath the floor, that the back of the car immediately reared up and that the car rolled over.

Evidence was given by Duncan Townsley, a plant inspector and motor mechanic, regarding the condition of the vehicle and the likely cause of the accident. His Honour's conclusion was in these terms. "The reasonable inference is that the accident was caused by the tail shaft becoming detached at the forward end, spearing into the ground and causing the vehicle to roll in a somersaulting fashion". This finding was accepted by the appellant and by the respondents.

The learned trial Judge held that the duty of care owed by the owner of a motor vehicle to a gratuitous passenger is one only to warn the passenger of a defect in the vehicle known to the driver but concealed from the passenger. As there was no evidence that the owner knew of the defective condition of the universal joint which caused the tail shaft to become detached from the gearbox at its forward end, his Honour dismissed the appellant's claim. He reached that view of the duty of care after a consideration of various authorities which it is necessary for this Court to review. His Honour went on to hold that there was no sufficient evidence to warrant a conclusion that the owner ought to have known of the defect, a conclusion which does not appear to have been necessary having regard to the principle he thought applicable and a conclusion which he did not elaborate.

In my opinion the duty of care owed by the owner of a motor vehicle to a passenger is not that propounded by his Honour.

A consideration of the relevant authorities usually begins with dicta of Goddard L.J. in Haseldine v. C.A. Daw & Son Ltd. (1941) 2 K.B. 343 at p.373: "If A agrees to drive B to the station in his car for reward, A owes a duty to B to take care that the car he provides for this purpose is safe. But, if B stops A in the street and asks for a lift, A is under no duty before acceding to his request to take care to see that some danger of which he is not then aware is not present in the condition of his car. In my opinion, a person who asks for and is given a gratuitous ride in a vehicle, whether in the horizontal or vertical plane, takes the vehicle as he finds it and is only entitled to warning of a danger of which the owner is aware".

That case concerned a lift in a block of flats which fell to the bottom of the lift well injuring the plaintiff. The action against the owner of the premises was dealt with as a case of occupier's liability and the references to vehicles were obiter.

Goddard L.J. commented that the "exact point arose in Moffatt v. Bateman (1869) L.R. 3 P.C. 115, where the plaintiff accepted a ride in a carriage, the kingbolt of which broke, and the defendant was held not to be liable for the injuries which the plaintiff sustained" (at p.373). But, with respect to his Lordship, that earlier decision of the Privy Council was explained by Jacobs J.A. in Wanless v. Piening (1976) SR (NSW) 249 at pp.256-257 as no such authority.

As Jacobs J.A. pointed out, the test applied by the Privy Council was whether there was any evidence that the carriage had not been properly maintained and held that there was no such evidence. The point was simply whether there had been a case to go to the jury and, there being evidence that the carriage was regularly examined by a blacksmith every three months, it was not negligence for the owner to fail to examine the state of its bolts and fastenings before going for a drive. There is mention of the need to establish "negligence of a gross description". In the words of Jacobs J.A. "Such a principle is not the law (see Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 C.L.R. 39) but that does not affect the point of present debate".

I respectfully adopt that analysis of Moffatt v. Bateman and agree that no principle can be drawn from it that the owner of a vehicle owes no general duty of care to a gratuitous passenger, so far as concerns the condition of the vehicle.

In Dolbel v. Dolbel (1963) S.R. (N.S.W.) 758 Sugerman J. (with whose judgment Hardie and Macfarlan JJ. agreed) referred with apparent approval to the dicta of Goddard L.J. in Haseldine v. C.A. Daw & Son Ltd., commenting that if the appellant, who had been injured as a result of a fall from a truck owned and driven by his father, was a gratuitous passenger, "then the respondent was guilty of no breach of duty to him on account only of the defect of the lock, since there is no evidence that the defect was actually known to the respondent" (at p.761). But again his Honour's remarks may have been no more than obiter for he went on to consider the obligation of a person who acquires a secondhand vehicle, noting that in the instant case there was no evidence before the jury of its apparent condition at the time of purchase or of its use; nor was there any evidence from which the jury might conclude that an inspection would have disclosed anything more than was in fact known to the respondent.

Wanless v. Piening concerned a claim by a gratuitous passenger in a car which ran off the road and overturned, seriously injuring him. He sued the defendant (owner and driver) for damages, alleging negligence in the care, control, maintenance and management of the vehicle. He relied primarily upon a failure of the brakes. The judgments were mainly concerned with the application of the doctrine of res ipsa loquitur.

In the course of his judgment Jacobs J.A. mentioned the dicta in Dolbel v. Dolbel and Haseldine v. C.A. Daw & Son Ltd., referred to earlier in these reasons. His Honour commented that there was no doubt that the law relating to occupier's liability was applicable in the case of injuries to a person arising when a vehicle is static. "There is then no difference between the licensee who enters a home and the licensee who enters a motor vehicle" (at p.256). But, his Honour pointed out, the act of a person driving a vehicle that has not been properly maintained cannot be equated with the liability of an occupier. "So long as he does not drive the vehicle he is under no obligation to an invitee or a licensee beyond that of an occupier. However, when he does drive the vehicle the nature of the case in my view completely changes. The driver of a motor vehicle owes a duty to all his passengers, gratuitous or otherwise, as he does to all users of the highway, not to drive them in his vehicle without having exercised reasonable care to see that it is in a mechanically safe condition to be driven. He does not warrant that it is safe but he must exercise reasonable care to see that it is safe to be driven" (at p.256).

Holmes J.A. concurred with Jacobs J.A.

Asprey J.A. took a different view. He accepted what was said by Goddard L.J. in Haseldine v. C.A. Daw & Son Ltd. as approved in Dolbel v. Dolbel, noting that both cases treated Moffatt v. Bateman as authority for the proposition that in the case of a gratuitous passenger the duty of the driver or owner is confined to warning of a known defect.

Wanless v. Piening was reversed on appeal (Piening v. Wanless (1967-1968) 111 C.L.R. 498), but on grounds not relevant to the present proceedings. However, in the course of his judgment, Windeyer J. referred to the remarks of Jacobs J.A. already mentioned and commented that although the matter was not free from difficulty, "because not free from authorities," he "would be inclined to think that a gratuitous passenger could be simply a 'neighbour' as Jacobs J.A. apparently thought" (at p.512). Windeyer J. added. "I do not doubt that the man who drives a motor vehicle when he knows that it is not roadworthy and is likely to get out of control, could be found . . . , and almost certainly would be found, to have been guilty of negligence . . . Similarly, the owner . . . might well be held to be negligent if he failed to take reasonable care that it was roadworthy and safe to drive before allowing anyone to take it upon the road". (at p.512).

In my view there is no authority binding upon this Court that holds the duty of the owner of a motor vehicle in motion to be confined to warning a gratuitous passenger of defects known to him but concealed from the passenger. I find the judgment of Jacobs J.A. in Wanless v. Piening, carrying as it does the apparent approval of Windeyer J., to be persuasive.

While it may be logical, if somewhat unreal, to equate a stationary motor vehicle with a house or other structure, it is not logical to continue the equation once the vehicle is in motion. If the duty owed by the owner of a static vehicle to a passenger is comparable to that of the occupier of premises, there is no reason in law or logic why a different and broader duty should not arise in respect of a moving vehicle, the same duty as is owed to other users of the road. For instance, Lamber v. Lewis (1980) 2 W.L.R. 299 was an action under the English Fatal Accidents Act where part of a towing hitch became detached, causing a trailer to career across the road into the path of a car. The plaintiff sued the owner of the vehicle, the owner's employee and driver, the manufacturer of the towing hitch, and the retailer who supplied and fitted it. It was simply taken for granted that there was a duty on the owner to take reasonable care to see that the towing hitch was safe to use. The only question, so far as the owner was concerned, was whether he had failed to take that care.

In an analagous way the duty owed by an occupier, for instance a builder of premises in the course of construction, is not the same duty owed in respect of activities being carried out on the premises, for instance building work. In the latter case a general duty of care arises. McArdle v. Andmac Roofing Co. (1967) 1 ALL E.R. 583, Blackman v. Bossie Pty. Ltd. (1968) W.A.R. 97.

In my opinion this Court should approach the matter before it on the basis that the first respondent, as owner of the motor vehicle involved in the accident, owed a duty of care to the deceased to take reasonable steps to see that the vehicle was in a safe condition to be driven.

As the first respondent had owned the vehicle for only two or three days before the accident it cannot be said that he was negligent in failing to have it regularly maintained. Nor is this a case of a purchaser being put on notice because a vehicle is unregistered. It carried a current Queensland registration. The evidence of Mr. Townsley was that a competent service of the vehicle would have included inspecting the universal joints and that a competent inspection would have revealed wear in both universal joints at the end of the tail shaft. But it was not suggested that any defect in the tail shaft would have been apparent without such an inspection. In particular there was no evidence that anyone driving the vehicle would have become aware of such a defect.

For the appellant to succeed in establishing negligence on the part of the owner of the motor vehicle it is necessary, in the circumstances, for her to establish that at the time of purchase the vehicle was in such an obviously bad state of general repair that no owner, exercising reasonable care, would have allowed it to be driven until it had undergone a competent inspection and service.

Mr. Townsley's report of 11 September shows that the right hand tyre had 50% wear, the right hand rear tyre was bald, the left hand front tyre was completely worn and the left hand rear tyre had only 20% wear. (In these references to the condition of the tyres and other parts of the vehicle I disregard anything that may have been brought about by the accident itself). One rear universal cup and clamp was missing; the other was in a worn state. The sub-frame of the vehicle had extensive rust damage - "all guards, floor pan, front and rear, all doors, front door pillars, boot floor, rear bumper overriders, body pillars at rear are eaten away with rust". The report concludes: "The general appearance of the vehicle shows neglect in all ways, mechanical faults found could have been the cause of the actual accident". A mechanical fault was held to be the cause of the accident.

Mr. Moore did not give evidence. Mr. Kingston was asked no questions about the condition of the car, either as to the time he owned it or thereafter. A month or so after the accident he took photographs of the damaged vehicle while it was in the police yard and those photographs were tendered in evidence. But no particular use appears to have been made of them in the Supreme Court and no particular use was made of them in this Court.

Both in examination in chief and in cross-examination Mr. Townsley was asked a number of questions about the condition of the vehicle as observed by him. Much of that evidence related to the condition of the drive shaft, with a description of the way in which it is linked to the gear box and to the differential, in each case with a universal joint. Mr. Townsley spoke of the need to grease each universal joint; if this is not done it is likely that one of the universal joints will give way causing an end of the tail shaft to fall to the ground. As already mentioned, the learned trial Judge held that this was the cause of the accident and as that finding was not challenged, it is unnecessary to spend more time on this aspect of the car's condition. Mr. Townsley did say that a competent service would include a check of the universal joints, and, in the case of this vehicle, would have shown them to be worn. In his opinion the vehicle had probably travelled 2,500 miles or thereabouts without a service.

That evidence certainly points up the defective condition of the vehicle, but in my view it does not of itself establish negligence on the part of Moore. As he had owned the vehicle only two or three days before the accident and as it was in running order, I do not think that it advances the appellant's case simply to say that had the vehicle been placed on a hoist or even if someone had got underneath and checked, the condition of the universal joints would have been apparent.

Even in the case of the door pillars, the body pillars and the lower channel rails, Mr. Townsley said that the rust damage was apparent to him because it was something he looked for, "but, to the average person if it is covered in a bit of oil, a bit of dust on top of that, they probably would not notice". He added that the sub-frame was covered in dirt and oil. Asked about the guards, floor pan, front door pillars, boot floor, rear bumper overriders and body pillars, Mr. Townsley said that they were all eaten away by rust, agreeing, somewhat confusingly in view of his earlier answer, that that would have been readily apparent even to a casual observer. The rust in the right hand lower channel rail could only be observed by getting underneath the car.

In cross-examination Mr. Townsley agreed that in order to see rust in the lower floor pan, it would be necessary to take up the floor covering or possibly view the car from underneath. He agreed that FC Holdens were notorious for doors rusting and that such rust did not necessarily say anything of the general condition of the car. But I understand his evidence to have been that the rust in the front door pillars was a more likely source of concern.

In my view the evidence led in the Supreme Court on behalf of the appellant to some extent failed to address itself to the real issue. It tended to focus on the lack of adequate maintenance of the vehicle over a time and on the defects that would have been apparent had the vehicle been serviced or inspected by a competent mechanic. A person who buys a motor vehicle is not negligent merely because he fails to have the vehicle serviced or inspected immediately after or within a few days of purchase. But if there is something in the appearance of the vehicle or the way in which it is driving that would alert a reasonably careful driver to the fact that it might be dangerous to allow the car on the road without a service or inspection, it may well be negligence for him to fail to take such a step.

In the present case there was no evidence of anything abnormal in the way in which the car drove; but if there was something in its general appearance to alert a reasonably careful driver to a possible defect, the first respondent may have been negligent in allowing the vehicle on the road.

Although the learned trial Judge held there was insufficient evidence that the first respondent ought to have known of the defective condition of the universal joint, it was a conclusion related to a finding that an inspection by the first respondent would not have disclosed that the universal joint which failed lacked lubrication. Having regard to the nature of the duty of care owed by the first respondent to the deceased, such a finding was not conclusive against the appellant. Again it was clearly coloured by his Honour's view of the duty of care owed by the owner of a motor vehicle to a gratuitous passenger, a view which in my respectful opinion was in error.

I have given careful consideration to whether this Court is in a position to apply the correct principle to the evidence adduced before the Supreme Court and to reach its own conclusion. I am of the opinion that it is not in such a position and ought not to do so. There are I think findings of fact that need to be made in the light of the correct principle to be applied. Those findings were not made because the learned trial Judge applied the wrong principle. His Honour should have approached the matter on the basis that the first respondent owed a duty of care to the deceased to take reasonable steps to ensure that the vehicle was in a safe condition to be driven.

The only satisfactory course is to allow the appeal and to order a new trial. Unless the parties agree that there need be only one defendant, the new trial should be of the appellant's action against the first respondent and second respondent. The parties should be heard orally or in writing as to the appropriate orders to be made including the question of costs.

This is an appeal by ROSE METH (plaintiff) against the dismissal by a judge of the Northern Territory Supreme Court of her action pursuant to s.5 of the Compensation (Fatal Injuries) Ordinance 1938 for damages allegedly sustained by reason of the death of her husband against the defendants including ROBERT SHAUN MOORE (owner) and THE NOMINAL DEFENDANT (collectively referred to as respondents) relying on the right of action provided by s.82(1) of the Motor Vehicles Act of the Northern Territory.

The facts are that the owner two or three days before 8 September 1972 and for $60 had purchased from Kelvin Keith Kingston (Kingston) a 1958/59 FC Holden sedan registered in Queensland. The vehicle, as his Honour found, had a general appearance of neglect and was extensively rusted, some areas of which may have been visible to an untrained eye. The left front and right rear tyres were completely without tread; the other tyres had only 50% and 20% tread. Evidence was that there had been no maintenance carried out on the vehicle for at least 2500 miles of travel. Lubrication was needed, in particular, at the universal joints including that at the forward end of the tail shaft. The owner and plaintiff's husband had been working in the Northern Territory at the Warrego mine. On the date mentioned the owner, the plaintiff's husband, Kingston, "Eddie" and two others had been into Tennant Creek for the evening. They entered the vehicle to drive back to their living quarters at the mine. When the journey commenced the driver was the former owner Kingston; but after travelling for three miles Eddie took over the driving until a point some 15 miles from Tennant Creek when another person took over the driving. This person has not been identified. The vehicle was travelling along a straight stretch of bitumen road at 45 miles per hour in fine weather conditions with no other traffic near when it rolled over. Thus was caused the death of plaintiff's husband (deceased).

After the accident it was found that the tail shaft at its forward end had become detached from the vehicle. An expert witness who examined the vehicle after the accident observed and gave evidence that this joint was showing signs of wear and lack of lubrication which lack and wear would not have been apparent unless there was competent inspection. The learned trial judge found, as counsel for all parties agreed, that the reasonable inference was that the tail shaft had broken loose at its forward end, spearing into the ground and causing the vehicle to roll in a somersaulting fashion. The learned trial judge also found that there was no inference of want of care (meaning in his driving) on the part of the driver or that the owner knew nor was there sufficient evidence that he ought to have known of the defective condition of the universal joint; that such condition would not have been obvious even on inspection to a person without mechanical qualifications or experience; that there was no evidence that the owner was so qualified or experienced. Further, he found that the deceased was a gratuitous passenger.

Facts and findings I have set out are not challenged.

In the proceedings before the Supreme Court, Grahame Sullivan was named as the first defendant whose negligent actions as driver had caused or contributed to the death of the deceased, but, as his Honour found, there was no evidence that he was the driver at the relevant time. The action against him failed. No appeal has been brought against that part of his Honour's order.

The contentions advanced on behalf of the plaintiff against the owner were that he was the owner in charge of the vehicle and, as such, guilty of the following acts of negligence: "(a) Allowing the vehicle to be driven when he knew or ought to have known it was in an unsafe condition.

(b) Failing to warn the first defendant and/or the deceased that the vehicle was in an unsafe condition." It was submitted that the owner failed to take reasonable care to ensure that the vehicle was roadworthy and safe to drive; that certain signs mentioned would have indicated the vehicle to be apparently unsafe on competent inspection.

The Nominal Defendant was sued, as I have said earlier, pursuant to the (then) Motor Vehicle Act s.82(1), on the basis that the vehicle was uninsured, not being an "insured motor vehicle" because there was not at the relevant time in force a policy which complied with Part V of the last mentioned Act. Being uninsured, the provisions of s.82(1) would require that if the death was caused by or arose out of the use of the vehicle, claims would have to be made to the Nominal Defendant and not against the owner or driver. His Honour concluded, on the evidence before him, that the vehicle was an uninsured motor vehicle or not an "insured motor vehicle"; so that the appropriate defendant was the Nominal Defendant.

His Honour's ultimate decision was influenced by his acceptance that the "preponderance of authority" favoured the proposition that a vehicle owner owes a duty of care to his gratuitous passenger (as was the deceased) to warn the passenger only of a defect in the vehicle known to the driver but concealed from the passenger. He was, as he said, therefore unable to find that the owner in the circumstances of this action owed a duty of care as had been alleged by the plaintiff to the deceased. He relied on Haseldine v. C.A. Daw and Son Limited (1941) 2 K.B. 343; Dolbel v. Dolbel (1963) S.R. (N.S.W.) 758; Jockel v. Jockel (1963) S.R. (N.S.W.) 230. The learned trial judge of the Supreme Court of the Northern Territory was not persuaded by contrary dicta by Jacobs J. (with whom Holmes J.A. agreed) in Wanless v. Piening (1967) 68 S.R. (N.S.W.) 249 and by Windeyer J. in Piening v. Wanless [1968] HCA 7; (1967-1968) 117 C.L.R. 498 at pp. 512,513. Windeyer J., in the last mentioned case, approved what Sugerman J. had said in Jockel v. Jockel (supra) but with a qualification, viz. - ". . . . leaving aside his Honour's allusion to the special position of a gratuitous passenger . . . ." Windeyer J. said at p.512 - "Similarly, the owner, or other person having the care of a motor vehicle, might well be held to be negligent if he failed to take reasonable care that it was roadworthy and safe to drive before allowing any one to take it upon the road."

Counsel for the appellant referred to the general duty of care which he found in Wyong Shire Council v. Shirt [1980] HCA 12; 29 ALR 217; Anns v. London Borough of Merton [1977] UKHL 4; (1977) 2 All ER 492; that to the extent that there may be dicta against his client's entitlement to recover, they have been overtaken by later development in the law. He relied upon the Motor Vehicles Act s.47 (consolidated to 1978) 4th schedule, as to requirement of the condition of a vehicle. He cited Henderson v. Henry E. Jenkins & Sons (1970) A.C. 282 (Henderson) (as imposing a general duty of care on an owner of a motor vehicle to see to the proper maintenance of his vehicle (before) it goes on to the highway); Wanless v. Piening (supra) at p.258; Piening v. Wanless (supra). Senior counsel for the respondents did not dispute that the owner of a motor vehicle had a general duty of care upon him in respect of other road users, meaning thereby other motorists or bystanders, to maintain his car in good condition; but submitted that there was an exception in the case of gratuitous passengers. He referred to Commissioner for Railways (N.S.W.) v. Anderson [1961] HCA 38; (1960-1961) 105 C.L.R. 42 at p.56 per Fullagar J. He contended that the gratuitous passenger was akin to a licensee. He relied on Wanless v. Piening (supra) per Asprey J.A.; and (as he interpreted it) to the earlier case of Moffit v. Bateman (1869) L.R. 3 P.C. 115. He argued further that even if the owner was, against his submission, under a general duty of care, there was no acceptable evidence here of a breach of that duty.

I have not attempted to recapture in detail the arguments so succinctly presented by counsel on both sides

In his acceptance of the duty of the driver as being to warn only against defects known to him, the learned trial judge was obviously more strongly persuaded by the judgment of Asprey J.A. in Wanless v. Piening (supra) than that of Jacobs J.A. Yet in his concurrence, to which I have referred above, Holmes J.A. said - ". . . . I concur in all that has been said by Jacobs J.A." In his judgment, Asprey J.A. found support from Pollock Law of Torts 12 ed. (1923) pp. 536-664; Clerk & Lindsell on Torts 3rd ed. p.431; Halsbury's Laws of England 1st ed. vol. 21 para. 699 note (p); 2nd ed. vol. 23 para. 901 note (u); Salmond on Torts 11th ed.

Some of the material relied upon by Asprey J.A. has been superseded by more recent writing. Fleming The Law of Torts in its 5th ed. p. 457 supports the majority view in Wanless v. Piening (supra) of which case the author wrote (note 50) - ". . . . rejecting a widely held contrary view based on dicta in Haseldine v. Daw . . . . and going back to Moffit v. Bateman" The author wrote - "According to the better view, this (duty) covers not only the actual mode of driving but also the mechanical condition of the vehicle (and therefore includes a duty of inspection) . . . . " There was no mention in the note referring specifically to the dicta in Piening v. Wanless (supra) of Windeyer J. (supra). Prosser on Law of Torts 4th ed. (1971) p.383 after discussion wrote - "Wisconsin, which originated the rule, has lately overthrown it, rejecting the analogy of the licensee on land as inappropriate to a moving, and highly dangerous instrumentality, as to which liability insurance is widely prevalent, and requiring that the driver exercise reasonable care for the protection of his guest in all respects, including inspection of the car. The decision has the appearance of being right, and no doubt may be expected to be followed."

The author of Charlesworth on Negligence (6th ed.) 1977 paras. 896 and 897 appears to support a general duty of care but some cases referred to by the author may be more related to the existence of a duty of a carrier for reward or of driving errors; but paragraph 848 supports the plaintiff's contention.

On my reading of Corpus Juris Secundum Vol. 60A (August 1969) sub nom "Motor Vehicles" at para.430, there is considered to be a duty on an owner to a passenger including a gratuitous passenger, stated thus - "An owner of a motor vehicle who knows, or by the exercise of reasonable care could have known, of its defective and unsafe condition, but permits another to operate it, without warning him of the defect, is liable for injuries resulting from the defective condition; but he is not liable if the vehicle was operated without his knowledge or consent." The duty enunciated is not restricted to known defects and is, I consider, more in line with a logical approach and approximates to the words of Sir Victor Windeyer (supra). The rest of the paragraph from which this quotation is derived does not relevantly qualify the duty it expresses. I would add that what Asprey J.A. in his cautious weighing of authority did was to express his view as to the obligation of a driver as he found it in Haseldine v. Daw (supra); whereas here we are concerned, as was the learned trial judge, with the obligation of an owner in relation to the condition of his vehicle. One would expect that an owner would ordinarily be in a better position than one who was merely a driver to know the condition of his vehicle; so it would not be unreasonable to expect more of an owner than of a driver - or in terms of duty, a higher duty; or one which did not exist in a mere driver.

In Henderson (supra) it was submitted to their Lordships in the House of Lords that an owner of a vehicle "as to road users owed a duty to the deceased not to permit a dangerous vehicle on the road." The deceased was one who had alighted from another vehicle and was killed by the owner's truck when its brakes failed. The duty was expressed at p.295 in terms by Viscount Dilhorne though he dissented (with Lord Guest) in the result - "The duty which rested on the defendants was to take all reasonable steps to ensure that their lorry was safe for use on the roads. Whether or not they had done that in the circumstances of this case, was a question of fact." The majority appears to have accepted that such a duty existed. So to hold here would be entirely consistent with Lord Atkin's statement in Donoghue v. Stevenson [1932] UKHL 100; (1932) A.C. 562, 580: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." which is concerned with foreseeability and not pecuniary interest. Thus it would be too late in the day for a surgeon to avoid liability to his patient upon the basis that the operation was performed without fee.

Without attempting to evaluate the present status of Cowper v. Studer (1951) 2 D.L.R. 81 (quoted in 38 Can. Bar Rev. 47 (1960)) the statement of duty there is wider than accepted by the learned judge of the Supreme Court of the Northern Territory; but it was not expressed at p.91 in a case concerned with driving errors.

In Canada there has been legislation in provincial statutes providing for accident compensation. Criticism has been made of it as ignoring or not providing for "guest passengers", said to be one third of those who are accidentally killed or injured by automobiles in Canada. See e.g. Guest Passenger Discrimination, Dale Gibson, Alberta Law Review 1967-68 Vol. 6 p. 211; Gross Negligence and the Guest Passenger, John R. Singleton, Alberta Law Review 1973 Vol. 11 p. 165. Reference to judicial decisions and legislation is also found in Report No. 32 of the Institute of Law Research and Reform Guest Passenger Legislation, The University of Alberta, Edmonton, Alberta. This report states, inter alia, at p.10 - "The arguments in favour of abolishing the discrimination against the guest passenger are almost too obvious to state. The most important function of the law of torts is to provide compensation for persons who are injured by the negligence of others. The guest passenger provision interferes with this important function. . . . " For further adverse criticism of the rationale of "guest passenger" legislation, see also Linden, Canadian Tort Law (1977) p.515.

A comprehensive summary of legislation in the United States relating to "guest passengers" is to be found in the Mercer Law Review 1980 Vol. 31 1061 "Treatment of Guest Passengers: Georgia Maintains its Minority Rule." In a note in that article (p.1064) it is said - "the court's abrogation of the guest rules started in 1962 when the Supreme Court of Wisconsin, in McConville v. State Farm Mutual Auto Ins. Co. 15 Wis. 2d. 374 113 N.W. 2d N.W. 525 (1921) renounced the judicially created guest rule of O'Shea v. Lavoy 175 Wis.456, 185 N.W. 525 (1921). The Court struck down the guest rule as being no longer consistent with sound policy and noted it was in conflict with Wisconsin's comparative negligence statute." I note that the McConville case was cited by Prosser in support of the passage cited therefrom above.

I do not assert that these articles and publication address themselves specifically to an injury from defective vehicles as opposed to careless driving; but implicit in them is, I consider, that there ought to be a consistent duty of care owed by a driver and an owner to gratuitous passengers. This duty would, I suggest, be adequately expressed in the words of Viscount Dilhorne and Sir Victor Windeyer.

One might ask rhetorically, why should there not be as there is to bystanders, a similar duty to one lawfully in a vehicle, possibly even by invitation from the owner? The possibility of injury to the passenger gratuitous or not by driving of an unsafe vehicle is more readily foreseeable by the owner than to a person who happens by chance to be at some point on the road at some critical time. Further, ordinarily, an owner has more opportunity to observe and maintain an interest in the condition of his vehicle than e.g. a casual driver.

This is not to say that the existence of defects which are hidden will not play some part overall in the determination of liability; the nature of the defects, the ease or difficulty with which they might be discovered or recognised, and that if they are hidden may well influence a court in deciding whether in all the circumstances the owner or driver was or was not in breach of the general duty.

In my opinion, if there was a preponderance of authority once to support the learned trial judge's statement of duty, the preponderance is now in favour of a duty on the owner or person having the care of or in charge of the vehicle not restricted to known defects and to be expressed in the sense quoted from the judgment of Windeyer J. in Piening v. Wanless (supra) and Viscount Dilhorne in Henderson i.e. a duty on the owner or other person having the care of a motor vehicle to take reasonable care that it is roadworthy and safe to drive before driving or allowing anyone to drive it.

The learned trial judge understandably did not attempt to decide on the evidence before him what would have been his verdict if the statement of duty was as I suggest. This court is at a disadvantage in trying to evaluate the evidence which now appears before us but only as cold print. I would propose there should be a new trial, the duty of care which I have suggested being applied to evidence the parties care to present. If the evidence remained the same as at present, the trial judge would have to decide whether, in all the circumstances related to the car e.g. age, price, patent dilapidation, condition of tyres, the owner had been shown to have been in breach of the duty propounded.

In my view there should be a new trial as to the issue of liability and damage.

In this matter I have had the advantage of reading the judgments to be delivered by Toohey and McGregor JJ. I agree generally in their reasons and conclusions and with the result they propose.

In particular I agree that the owner of a vehicle is under a general duty of care in relation to its condition and owes that duty, not only to other users of the road and to people on nearby property, but also to passengers, whether gratuitous or otherwise. I agree that the ambit of the duty is stated in the speech of Viscount Dilhorne in Henderson v. Henry E. Jenkins & Sons (1970) A.C.282 at p.295, and by Windeyer J. in Piening v. Wanless [1968] HCA 7; (1968) 117 C.L.R. 498 at p.512.

That was the duty under which the owner of the vehicle in the present case was to the deceased. I agree with Toohey and McGregor JJ. in thinking that the preferable course is for the case to go back for a new trial on all issues. The principal question which will arise for determination when the issue of liability is retried will be whether the evidence led establishes a breach on the part of the owner of the vehicle of the duty of care which he owed the deceased. That is a question of fact for the trial judge. The whole of the circumstances of the case will need to be taken into account. It would seem likely that amongst these will be the age and general appearance of the vehicle, the price paid for it and other circumstances surrounding its purchase and its behaviour when driven. The speeches of the various members of the House of Lords in Henderson's case indicate the sort of approach which it is appropriate to take. The fact that the vehicle had been registered at some unspecified point of time may not be thought to be of substantial significance if only for the reason that vehicles, once registered, continue to need maintenance and may be damaged in various ways whilst they are being driven. If, as would appear likely, the problem here was lack of lubrication of one of the universal joints, it may be that the fact that the vehicle was registered some time before has little to do with the case. However, I would not wish to trespass upon the course which the new trial will take or the conclusions which will be reached by the learned judge who hears the matter.

Before us some submissions were made which suggested that it was relevant to take into account in the owner's favour that he had purchased the vehicle, which was registered in Queensland, only a short time before the accident. The suggestion seemed to be made that it was not negligent of him not to have had the vehicle mechanically inspected by a trained mechanic before putting it on to the road. Despite its various problems, the vehicle seemed to be driving all right with the result that the owner was not on notice about any significant problem. All I say about this is that every case must depend upon its own facts and circumstances. If one purchases a new car, that may be one thing. The position may not be very different if one purchases a second hand car from a recognised dealer, particularly in places where legislation now requires the giving by the dealer of a guarantee of the condition of the vehicle. But where, as here, the sale is a private one, the position is not so straightforward. Particularly is that so where the vehicle is in a condition which would suggest that it may not be in a roadworthy condition. The purchase of this vehicle for the sum of $60 and the description of it in the evidence would suggest in lay, but nevertheless well understood language, that it was "a bit of a bomb", to say the least.

I have said what I have in order to give some assistance to the trial judge in the task he will have in determining whether there has been a breach of the duty of care which is owed, that is whether there has been negligence. I make it clear again that I am not intending to trespass on his function, particularly as he will have the task of looking at the case upon the basis of the whole of the evidence called before him.

For the reasons given I would allow the appeal and order that there be a new trial both in relation to liability and damage.