Mountney v Smith [1904] HCA 7; (1904) 1 CLR 146 (17 March 1904)

HIGH COURT OF AUSTRALIA

Mountney Plaintiff, Appellant; and Smith Defendant. Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

17 March 1904

Griffith, C.J., Barton and O'Connor, JJ.

Armstrong, for the appellant.

Shand, for the defendant.

Armstrong, in reply.

17th March

Griffith, C.J.—

This is an appeal from an order of the Supreme Court of New South Wales making absolute a rule nisi for a new trial in an action for negligence. The negligence alleged was a breach of duty on the part of the defendant to take reasonable care of premises occupied by him and used for the purpose of an hotel business, by reason of which want of care the plaintiff, a customer of the defendant, was injured while using those premises. At the trial the plaintiff obtained a verdict for £300, and subsequently the defendant obtained a rule nisi for a new trial on the following grounds:—First, that there was no evidence that the part of the premises where the accident occurred was used in connection with the defendant's place of business; secondly that there was no evidence of negligence on the part of the defendant; thirdly, that the verdict was against evidence and the weight of evidence; and fourthly that the judge wrongly admitted certain evidence of a question asked by the plaintiff of a barmaid employed by the defendant and of her answer to that question.

[After stating the facts as above reported His Honor proceeded:]

The law dealing with such matters is not in dispute, but I will read a very clear statement of it from the judgment of Mr. Justice Willes in the case Indermaur v. Dames, L.R. 1 C.P., at p. 287. "We are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation express or implied. The common case is that of a customer in a shop; but it is obvious that this is only one of a class; for whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows or ought to know, such as a trap door, unfenced and unlighted." In the case of Heaven v. Pender, reported in 11 Q.B.D., Brett, M.R., says at p. 509:—"The proposition which these recognised cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." In the present case there can be no doubt that the plaintiff on entering the bar was entitled to expect from the defendant such reasonable care as is indicated in the passages that I have just read. While in the bar he became a customer of the defendant, and I apprehend that it is an ordinary incident of such a relationship that a customer in an hotel may desire to make use of a lavatory. If so, the plaintiff was as much entitled to expect from the defendant a reasonable care for his safety when he was using the lavatory as when he was in the bar. But it is not necessary that the plaintiff should rely upon this common law right, because by the law of New South Wales every hotelkeeper is bound to provide lavatories for the use of his customers. Sec. 24 of the Liquor Act (No. 18 of 1898) provides that "during the continuance of" an hotelkeeper's licence "every" licensed "house shall be provided with at least two decent places of convenience on or near the premises for the use of customers thereof, so as to prevent nuisances and offences against decency." The plaintiff, therefore, was entitled to expect that there would be such places provided by the defendant for the use of customers. In that expectation, he asked the barmaid, who, so far as it appeared from the evidence, was the only person at or near the bar representing the proprietor, where the lavatory was to be found, and she gave him the information. The learned Judges of the Supreme Court thought that her answer to this question ought not to have been admitted in evidence, on the ground that the defendant was not present at the time, and that the barmaid had no authority from him to give the information. I must confess that I have some difficulty in understanding on what ground her answer could be objected to. Some of their Honors seem to have thought that there was something unseemly in asking such a question of a woman, but I am quite unable to sympathise with that view. I can see nothing unseemly in asking the only person on the spot representing the proprietor, where the place was that the proprietor was bound to provide for the convenience of his customers. The proprietor was obliged to provide such a place, and the customer, who could not be expected to know where it was, was entitled to ask the question from the person who represented the proprietor in that part of his business. Giving such information seems to me to be within what I may call the scope of the barmaid's apparent authority. Although there is no actual decision on the point, we are justified in using our knowledge of what goes on in the world around us. And I take it that it is within the scope of the apparent authority of any person employed in a business to answer any question that might in the ordinary course of business be expected to be put to him. It was contended on behalf of the defendant that the evidence was wrongly received because the barmaid had not in fact authority to direct persons to the place to which she directed the plaintiff. On that point it is enough to say that although an agent exceeds the actual limits of his authority he will yet bind his principal as regards a third person if he acts within the scope of the authority that the principal has allowed him to appear to possess. She had, therefore, primâ facie, authority to answer all such questions as might be expected to be put to her by customers.

Again, it is said that she had no implied authority to bind the proprietor under the circumstances of this case, because the particular lavatories to which she intended to direct the plaintiff were not in fact used in connection with the defendant's business nor by his customers. This question of fact was specially raised by the third plea, and, as the jury found generally for the plaintiff, they must be taken to have found this specific fact in his favour. But even supposing that the jury had found that they were not the place provided by the proprietor in the performance of the duty imposed upon him by the Statute, that would not have excused him from liability if the plaintiff was on that part of the premises by his invitation. As I have already pointed out, if it was within the apparent scope of her authority to give the direction, the actual fact would make no difference on the question whether the plaintiff was in the vestibule by invitation of the defendant, though perhaps it might be material on the question of the extent of the duty owed by the defendant to the plaintiff in respect of that part of his premises. For these reasons I think that the barmaid had authority to answer the question, and that her answer was rightly received, and that consequently the learned Judges were wrong in making the rule absolute on this ground.

[His Honor then proceeded to deal with the other points taken by the rule nisi, and held that there was sufficient evidence to warrant the finding of the jury in plaintiff's favour.]

Barton, J., and

O'Connor, J.,

concurred.

Appeal allowed. Order of the Supreme Court making the Rule Nisi absolute discharged, and Rule Nisi discharged with costs. Respondent to pay the costs of the appeal.

On the application of Armstrong the cost of printing the Judge's notes for the purpose of the appeal was allowed.

Solicitors for appellant, Levy and Fulton.

Solicitors for respondent, C. Bull.