Soblusky v Egan [1960] HCA 9; (1960) 103 CLR 215 (25 February 1960)

HIGH COURT OF AUSTRALIA

SOBLUSKY v. EGAN [1960] HCA 9; (1960) 103 CLR 215

Negligence

High Court of Australia
Dixon C.J.(1), Kitto(1) and Windeyer(1) JJ.

CATCHWORDS

Negligence - Motor Vehicle - Injury to passenger - Negligence of driver - Car driven at request of bailee of car - Bailee seated beside driver - Liability of bailee - Liability of registered owner - Contribution between bailee and registered owner - The Main Roads Acts 1920 to 1952 (Q.) - The Motor Vehicles Insurance Acts 1936 to 1945 (Q.), ss. 2,* 3 (2)* - The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 (Q.), Pt. II, ss. 5 (c), 6.

HEARING

Brisbane, 1959, June 17, 19, 22;
Melbourne, 1960, February 25. 25:2:1960
APPEAL from the Supreme Court of Queensland.

DECISION

1960, February 25.
THE COURT delivered the following written judgment: -
Soblusky, who is the appellant in this Court, was in the year 1956 the owner and was living at Maryborough. Behrendorff, who is one of the respondents and also lived in Maryborough, had obtained from a company of motor and machinery agents at Bundaberg a used Ford V8 sedan motor car 1938 model. He obtained it under a hire purchase agreement and he had paid 80 pounds down and was to pay 98 pounds by instalments of 7 pounds. His liability for third party risks was insured with the Insurance Commissioner. Behrendorff was duly registered as the owner of the vehicle under The Main Roads Acts 1920 to 1952 (Q.) and the regulations under that Statute. In June 1956 or perhaps a little earlier Soblusky agreed with Behrendorff to take over the Ford sedan and to continue the payments of hire purchase instalments to the motor and machinery agents. In respect of the amount which Behrendorff had already paid under the hire purchase agreement Soblusky transferred to him the Pontiac panel van which was accepted as the consideration for the benefit of the hire purchase agreement under which the Ford sedan was held. Behrendorff took the registration papers of the van and presumably the registration passed into his name. Soblusky took possession of the Ford sedan and used it for his ordinary purposes. He paid instalments of hire to the motor and machinery agents who were informed of the taking over of the sedan by Soblusky and gave receipts in his name. But Behrendorff did not give the Commissioner of Main Roads a notice in writing in pursuance of the Main Roads Regulations of the transfer of the Ford sedan and he remained registered as the owner. The insurance of course remained on foot and Behrendorff's responsibility as owner to insure against liability for damages in respect of such motor vehicle for accidental bodily injury done by it was thus fulfilled: see s. 3 of The Motor Vehicles Insurance Acts 1936 to 1945 (Q.). (at p225)

2. Soblusky of course thought no more about Behrendorff or his liability. In point of law he had not replaced Behrendorff as the hire purchaser of the car. He had not replaced him because there was no new hire purchase agreement in which he was named as hirer. Section 9 of The Hire-purchase Agreement Act of 1933 (Q.) requires a writing and if a novation could be spelled out of the facts there was no such writing. He was at best a bailee. But of course he treated the car as his and drove it about as his own. The statement that he drove it about may need qualification. He was not young, he had a stiff neck and he preferred not to drive long distances. Among those he sometimes asked to drive was one Lewis, who was a defendant in the action out of which this appeal arises but is not a party to the appeal. Soblusky was a member of the Buffalo Order, so was Lewis. On 1st September 1956 there was to be a Buffalo lodge meeting at Gayndah which is some distance from Maryborough. Egan, who is a respondent in the appeal and plaintiff in the action, was also a member of the Order. Soblusky arranged that Egan, another member named Anderson and Lewis should be driven in his car to the lodge meeting at Gayndah and that Lewis should drive. He asked that the others should put in some money to pay for the petrol, probably 1 pounds each. The journey took them through Biggenden and there they picked up another passenger, named Smith. They left Biggenden about half-past eight in the evening. After a time Soblusky who was sitting next to Lewis asked him if he minded if he went to sleep. According to Soblusky he went to sleep and while he was asleep the car crashed. How it happened was a matter of dispute but in fact the car ran into a guide post on the right-hand side of the road. It has been found to be due to some negligence of Lewis and there is no purpose in going further into the question of the cause of the accident. It is enough to say that Anderson was killed and the others injured. Egan was severely injured and for that matter Soblusky's injuries were sufficiently serious. It is with the responsibility of Soblusky and of Behrendorff in respect of Egan's injuries that we are concerned in this appeal. But the narrative must begin with Soblusky's injuries. Section 3 (2) of The Motor Vehicles Insurance Acts 1936 to 1945 (Q.) contains a provision which governs the situation of Behrendorff both in relation to Soblusky and in relation to Egan and indeed on which much turns in this appeal. The sub-section opens with limiting words, words describing the purposes for which the operating provision is to have effect. It is for the purposes of any contract of insurance with the Insurance Commissioner or a licensed insurer by the owner of a motor vehicle indemnifying him against all sums for which he should become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non fatal) to any person through or in connexion with such motor vehicle and for the purposes of every claim for such accidental bodily injury. The operating provision which follows is that every person, other than the owner, who at any time is in charge of such motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorized agent of the owner and to be acting in relation thereto within the scope of his authority as such agent. On the footing that the accident was due to the negligence of Lewis as driver, Soblusky claimed damages from Behrendorff as the owner whom the statute made liable as Lewis's principal. It will be noted that what sub-s. (2) of s. 3 says is that every person . . . in charge of such motor vehicle shall be deemed to be the authorized agent of the owner. Soblusky's claim depended on two assertions, viz. that Lewis was the person, or if you like, a person, in charge of the Ford sedan and Behrendorff was the owner. Behrendorff, he said, was within the definition of "owner" contained in s. 2 of The Motor Vehicles Insurance Acts, 1936 to 1945, because he was registered with the Commissioner of Main Roads as owner and had given no notice to the Commissioner of the transfer of the motor vehicle. Assuming the negligence of Lewis, the statute, so Soblusky said, did the rest. That of course meant that the liability fell on the Insurance Commissioner as the insurer of the motor vehicle in Behrendorff's name and the Insurance Commissioner under reg. 10 of the Motor Vehicles Insurance Regulations came in to defend the action: see Vol. 9 of Acts of Queensland, p. 534, and Queensland Government Gazette No. 8, May 10th 1956, p. 114. In the result Soblusky obtained a judgment against the Insurance Commissioner for 800 pounds damages before Sheehy J.; the judgment was affirmed by the Full Court of the Supreme Court on appeal and from the order dismissing the appeal an application to this Court for special leave to appeal was refused. The proceedings are reported at (1958) Qd R 127 and [1957] HCA 84; (1957) 98 CLR 619 . If it matters, judgment for the damages was also recovered against Lewis as a co-defendant and against Behrendorff. The defence made by the Insurance Commissioner for himself and Behrendorff was that Lewis drove as Soblusky's agent for whose acts Soblusky was responsible and that, conceding the operation of s. 3 (2) of The Motor Vehicles Insurance Acts, Behrendorff had a right of indemnity under the general law and also under s. 6 of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952. These contentions were negatived upon grounds appearing in the report [1957] HCA 84; (1958) Qd R 127; (1957) 98 CLR 619 . At a late stage the point was taken that it was Soblusky, not Lewis driving beside him under his authority, who was the "person in charge of" the motor vehicle at the time of the accident. The point was raised for the first time on the application for special leave to appeal; this Court thought it was too late and moreover that at best it involved a question of fact. It does not seem to have been suggested that what had occurred between the motor agents, Soblusky and Behrendorff, resulted in a novation of the hire purchase agreement so that Soblusky might fall under the latter part of the definition of "owner" as a person who had the vehicle under a hire purchase agreement. Because of the absence of writing doubtless such a suggestion could not have been maintained. (at p227)

3. Those proceedings having been brought to an end, Egan, who had been much more seriously injured than Soblusky, prosecuted his claim for damages. He had issued his writ on 23rd August 1957, three months or so before the application to this Court for special leave in Soblusky's action. In his action Egan joined Behrendorff, Soblusky and Lewis as defendants. Lewis of course he sued as the driver of the car personally guilty of negligence. Behrendorff was sued as the person who was owner of the motor vehicle because he was registered as owner and had not given notice of transfer. See Main Roads Regulations, Queensland Government Gazette 1933, No. 69, p. 1191 and 1939, No. 10, p. 125, particularly amended reg. 14 cll. 1, 2 and 8 (c) and reg. 4. As to Soblusky, it was alleged that he was owner within the meaning of The Motor Vehicles Insurance Acts. It was also alleged that he was owner in fact and that he had the possession and control of the car, and further that Lewis drove as his servant or agent. Egan's statement of claim also alleged that there was a subsisting registration of the Ford sedan and that it was insured under a contract of insurance of the type referred to in s. 3 of The Motor Vehicles Insurance Acts. Apart from the negligence of Lewis, all this was admitted on the pleadings by Behrendorff but Soblusky denied that he was owner within the statute or in fact and denied that Lewis drove as his servant or agent. Behrendorff gave a third party notice to Soblusky, claiming in the event of his being held liable to Egan, a complete indemnity or an indemnity to the extent that was found just and equitable on the ground that the negligence of Lewis as Soblusky's servant or agent contributed to the collision (sc. the collision with the post). Egan gave a similar third party notice to Lewis but that was treated as otiose. The action was tried by Sheehy J. who fixed the damages for personal injuries at 6,082 pounds 4s. 0d. and awarded them against all three defendants. As between Soblusky and Behrendorff, Sheehy J. fixed the proportions to be borne as fifty per cent each. His Honour found that the accident was due to the negligence of Lewis whom he held was the person in charge of the motor vehicle within the meaning of s. 3 (2) of The Motor Vehicles Insurance Acts. He held that Behrendorff was liable as owner because he had given no notice of transfer but that Soblusky was in general control as bailee of the car and Lewis drove as his agent at common law. His Honour said: "I cannot see that Behrendorff's liability as the statutory principal destroys Soblusky's liability as common law principal and vice versa." Neither being in personal fault or under personal blame an equal apportionment of the amount of damages was made between them. (at p228)

4. From the judgment Soblusky now appeals. He seeks primarily that judgment should be entered for him as defendant against the plaintiff Egan. Alternatively, he seeks against Behrendorff that the latter should be ordered to indemnify him to the extent of one hundred per cent. By a notice of cross appeal Behrendorff seeks on the contrary an order that Soblusky should indemnify him to the extent of one hundred per cent. Finally, by a notice of cross appeal Egan seeks to have the assessment of damages increased as against all three defendants. (at p228)

5. Soblusky has been held liable in respect of the damages awarded to Egan on the ground that when Lewis negligently drove the Ford sedan he did so as the agent of Soblusky acting within the scope of his authority. This conclusion is contested by Soblusky in the present appeal; its correctness is attacked on his behalf in two ways. 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. 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. After describing what has been done as a departure from principle, that is the principle governing the responsibility of a principal for the tortious acts of his agent in the execution of his agency, Dr. John G. Fleming in his work on the law of torts ascribes it to the pressure of finding a means to reach financially responsible defendants, a pressure under which, he says, 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: The Law of Torts (1957) p. 376 by Dr. John G. Fleming. This perhaps recalls the cynical conclusion of the late Dr. Baty concerning the ethical justification for the master's liability for the wrongs committed by his servant, namely that the real reason is that the damages are taken from a deep pocket: Vicarious Liability (1916) p. 152 by Dr. T. Baty. In Queensland the pressure of which Dr. Fleming speaks was removed by s. 3 (2) of The Motor Vehicles Insurance Acts. The considerations to which the two learned text writers respectively advert may explain but they do not justify a development of the law if it really involves a departure from principle. It is no doubt true that the development particularly in England of the branch of the law relating to the responsibility of the owner of a motor vehicle for the negligence of a person driving under his authority or consent has gone far. It is perhaps true also that it is easier to see the direction in which the branch grows than to understand the support it obtains from the main trunk of traditional doctrine governing vicarious responsibility. Perhaps the discovery of the true principle of the decisions will be ex post facto. Not a little use was made in the argument of the difficulties which the more extreme decisions bring into the law of principal and agent or of liability for fault whichever it may be. The cases are collected by Mr. B. J. Brooke-Smith in his article Liability for the Negligence of Another - Servant or Agent? (1954) 70 L.Q.R. 253 and by Dr. Fleming in his Law of Torts (1957) pp. 375- 379: see further Mako v. Land (1956) NZLR, at pp 625, 627 . But when all is said and done, the present case does not involve any new doctrine or any new application of old doctrine. Motor cars from their very nature do not lend themselves in point of fact to analogies to the horse and buggy but it was in horse and buggy days that the law governing such a case as this was settled. In Chandler v. Broughton (1832) 1 C & M 29; [1832] EngR 43; (149 ER 301) the defendant's gig was driven against "the church in Langham Place" doubtless All Souls, built by Nash. The defendant was sued in trespass. His servant was driving and that meant that if the action was to be supported upon the ordinary doctrine denoted by the maxim respondent superior the action should have been in case. But the master had been sitting in the gig beside his servant. It was objected at the trial that trespass would not lie. There was a verdict for the plaintiff but leave was reserved to move for a nonsuit. On a motion to the Court of Exchequer for a nonsuit Bayley B. said: "Is there any case which militates against this position; that if the owner is in the carriage, sitting by the driver, the act of driving by the servant is the act of the master? The reason is that the master has the immediate control over the servant." (1832) 1 C & M 29 [1832] EngR 43; (149 ER 301) The judgment of the Court which was given by the learned Baron reiterated the doctrine defined in the question. It will be seen that the point lay in the immediate capacity to direct and control and not in the status of the driver as a servant. In Booth v. Mister [1835] EngR 859; (1835) 7 Car & P 66 (173 ER 30) the action was in case; the defendant had not been present; the difficulty however was that the defendant's vehicle which did the damage had been driven not by the defendant's servant but by a third person to whom he had given the reins. Lord Abinger C.B. overruled the point. He said: "As the defendant's servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself." (2) (It is true that in Harris v. Fiat Motors Ltd. (1906) 22 TLR 556 , Ridley J. treats the case as wrong in so far as it means that the servant could delegate his authority but that is another matter and in any case seems to misunderstand the decision.) In the same year in Wheatley v. Patrick [1837] EngR 338; (1837) 2 M & W 650 (150 ER 917) the question was whether an allegation that the defendant drove a gig was made out by proof that he had hired the gig and sat in it beside a friend, one Nicholls, who was actually driving it. The action was brought in case but the allegation in the declaration was that the defendant was possessed of the horse and chaise which horse and chaise was under the care, management, government and direction of the defendant who was driving the same; yet that the defendant negligently and improperly drove and directed the said chaise etc. Lord Abinger said: "As against all the world but" (the owner hiring out the horse and chaise) "he is the party in possession: he is present, he has the actual control and he permits another person to drive. I think an action might have lain against him, alleging that Nicholls, by his consent, had driven improperly and thereby occasioned the injury." (1837) 2 M & W, at p 652 (150 ER, at p 918) Alderson B. said: ". . . the only question is, whether there was negligent driving by the defendant, which I think is made out by the proof that he allowed Nicholls to drive, and that the injury was occasioned by his mismanagement. He is liable under the circumstances, for the act of Nicholls." (1837) 2 M & W, at p 652 (150 ER, at p 918) It is from this line of authority that Samson v. Aitchison (1912) AC 844 proceeded. (at p231)

6. 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. This therefore must be regarded as an obvious case. (at p231)

7. The second way in which it was sought on behalf of Soblusky to establish that he could not be liable to Egan in damages for Lewis's negligence in driving was by invoking s. 3 (2) of The Motor Vehicles Insurance Acts 1936 to 1945, and treating it as an exhaustive statutory declaration of who should be considered the principal of the person actually driving the car. Adopting the view in which Behrendorff has been held liable to Soblusky in the earlier action and to Egan in this action, namely that Lewis was the person in charge of such motor vehicle and so must be deemed to be the authorized agent of Behrendorff as owner, counsel for Soblusky argued that the provision says who is to be the principal of the person in charge and leaves no room for the operation of the principles of the common law just discussed. In the words of sub-s. (2) of s. 3 Lewis "shall be deemed to be the authorized agent of the owner" Behrendorff and that, so it was contended, means that Lewis cannot also be regarded as driving as the authorized agent of a person in the situation of Soblusky or for that matter of any other person. The contention gives a meaning to the sub-section which it does not appear to possess. Its purpose is to impose liability, not to relieve from liability. The statutory relationship of principal and agent which it creates is introduced for the purpose of making certain that the negligence of the person in charge of a motor vehicle exposes the insured owner and through him the insurer to liability. Moreover, s. 6 provides that nothing in the Act shall affect any civil liability of the owner at common law or affect the right of any person to sue for and recover damages at common law. There seems to be no adequate reason for construing the second part of this provision as referring only to suing the owner or for restricting its meaning in any other way. In itself s. 6 is enough to negative the argument which however is based on a construction of s. 3 (2) which in any case it does not bear. The truth is that there is no reason why Soblusky should not be liable for the negligent driving of Lewis while Behrendorff incurs liability for his want of care by statute as owner. (at p232)

8. From the foregoing it follows that Soblusky was rightly held liable to Egan in damages in respect of the injuries the latter sustained. (at p232)

9. It is now necessary to turn to Soblusky's complaint, in one sense an alternative complaint, in this appeal, namely that which he makes against the order fixing at fifty per cent each the proportion in which the burden of the liability for damages to Egan should be borne by Soblusky and Behrendorff as between themselves. Soblusky seeks, in lieu of that order, an order that Behrendorff should indemnify him to the full extent of the liability to Egan for damages. In fixing the proportion of fifty per cent each Sheehy J. appears to have been guided only by the consideration that each was equally innocent of any fault. That of course takes no account of any consideration which may arise from the transaction between Behrendorff and Soblusky in the exchange of the two motor vehicles. The basis of that transaction may fairly be said to be that Soblusky should stand in Behrendorff's place with respect to the Ford V8 sedan. Why Behrendorff did not give notice of a transfer of ownership to the Main Roads Commission does not appear. He seems to have retained the papers for the purpose. The definition of owner in s. 2 of The Motor Vehicles Insurance Acts makes the word "owner" mean the person registered in the records of the Commissioner of Main Roads unless such person has given to the Commissioner a notice in writing in accordance with the Main Roads Regulations advising the transfer of the motor car. The definition goes on to include as an owner any person who has given notice of purchase in accordance with the regulations. It may be that Behrendorff could not persuade the motor agents to substitute Soblusky for him as the person liable for the further instalments under the hire purchase agreement of the Ford V8 sedan, or perhaps he did not try to do so. Whether his reason lay in this or not Behrendorff did not give a notice of transfer. Had he given an effective notice he would have been under no liability and with the passing of liability to Soblusky so would the insurance have passed. Section 4 of The Motor Vehicles Insurance Acts provides that every contract of insurance entered into for the purposes of the Act shall insure in favour of the owner for the time being and his estate notwithstanding any change in the ownership of such motor vehicle. We have not the advantage of knowing with any precision on what terms as between himself and Soblusky Behrendorff held the registration of the car and the insurance. One may guess that the real intention was that Soblusky should become a bailee of the car on terms that he should become entitled to the property in the car when the instalments having been paid up by Soblusky the property in the car would pass to Behrendorff and from him to Soblusky. But Behrendorff could not be considered simply as a trustee for Soblusky of the hire purchase agreement and the insurance policy. As to the hire purchase agreement Behrendorff remained the debtor to the motor agents, indeed more than the debtor for he was the party liable on all the obligations of the hirer expressed in the clauses of the agreement. As to the insurance while Behrendorff remained on the records of the Main Roads Commissioner as owner Behrendorff was the party liable as statutory principal for all negligent management of the car by any person in charge of it whomsoever. It may be important to point out the difference between the compulsory insurance provisions of Queensland law and those of other States. In Queensland the insurance which the statute requires the owner to effect covers only the liability of the owner but that liability is extended by the provision that every person in charge of the car shall be deemed the agent of the owner for whose negligence the owner is liable. In Victoria to take that as an example of another State the risk covered by the policy which must be effected as a condition of annual registration extends, subject to certain qualifications which need not here concern us, to any person who drives the car whether with or without the owner's authority: and the liability of every such person is covered by the insurance: see s. 46 of the Motor Car Act 1958 (No. 6325) (Vict.). There might not be much practical importance in the difference were it not for the legislation providing for contribution among joint tortfeasors. For supposing that Soblusky can be regarded as a driver (the Victorian definition includes a person in charge of the car) his liability would be covered by the same insurance as Behrendorff's and it is not easy to see how contribution between them would matter. But in Queensland it may matter because the liability of Soblusky is not covered by the policy covering the registered owner. The conclusion therefore that Behrendorff could not be considered a trustee for Soblusky of the insurance is therefore an analysis of the situation as between these two parties. No doubt equities might arise out of the transaction but one equity could not exist namely an equity by which the insurance of the liability of Behrendorff as registered owner became equivalent to an insurance of the liabilities of Soblusky arising from his possession and use of the car. Both on the terms of s. 3 (1) of the statute and of the prescribed form of policy (see Regulations, 3rd schedule Queensland Government Gazette 1941, p. 160) the indemnity given by the insurance could not cover the liability of Soblusky. At the time of the accident he was not "an owner for the time being" within s. 4. It was on this footing that he recovered damages in the litigation reported [1957] HCA 84; (1958) QdR 127; (1957) 98 CLR 619 , namely as a person entitled to sue Behrendorff as the insured statutory principal of Lewis, in other words as a stranger to the insurance indemnity of Behrendorff. Now Soblusky is called upon to pay damages to Egan as a tortfeasor because he is responsible at common law for the actual negligent management of the car by Lewis. But the liability is for the same damages as are awarded by the judgment against Behrendorff, the damages in respect of which the judgment provides that the burden shall be borne between Soblusky and Behrendorff in the proportions of fifty per cent each. So to provide is in reality to relieve the Insurance Commissioner of half the burden of indemnifying the owner for the time being which the insurance casts upon him. The existence of the insurance is admitted on the pleadings and it may be assumed that the Insurance Commissioner has exercised his right of defending the action in Behrendorff's name, a course which for the purposes of the present question, clearly enough, is wiser than stepping in as he did in the first action, that brought by Soblusky, and defending the action in his own name as a party. Under s. 6 of Pt. II of The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act of 1952 (Q.) the court is to find what contribution by a tortfeasor is just and equitable having regard to the extent of that person's responsibility for the damage; and the court is to have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. The question to be considered is whether in the peculiar circumstances of this case there is ground for making any other order with respect to contribution than that made by Sheehy J. His Honour's order was based on the simple view that two persons had become liable vicariously without individual fault and the presumption of equality of burden could alone be applied. There is no doubt a question whether the words "just and equitable having regard to the extent of that person's responsibility for the damage", permit the court to take into account other considerations than responsibility for the damage. The power to exempt or on the other hand to direct a full indemnity perhaps suggests that other considerations, all considerations relevant to justice and equity, may be taken into account. It is a point however that need not now be decided. For after full examination of all the elements of the situation, it seems impossible to say that there is any sound ground for disturbing the order of Sheehy J. However the matter is looked at it all comes back to the fact that the liability of Soblusky is not covered by the insurance which, so to speak, is inseparable from the registration and that Behrendorff is so covered. Possibly Pt. II of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 was adopted without sufficient account being taken of its complicated interaction with sub-s. (2) of s. 3 of The Motor Vehicles Insurance Acts 1936 to 1945, but as the law stands it does not seem possible to allow the fact that Soblusky's liability is not covered and Behrendorff's is covered by the insurance of the registered owner to affect the order for contribution. (at p235)

10. There is however a question which remains for consideration. It is whether Behrendorff is a "tortfeasor" within the meaning of s. 6, that is, within the meaning of Pt. II of the Act. Behrendorff is made by statute vicariously liable for a tort. The statute creates the liability by directing that the actual wrongdoer shall be the authorized agent of a person in Behrendorff's position. The expression "tortfeasor" is used in law to include a person vicariously responsible for a tort and the fact that the vicarious responsibility arises from statute cannot, in a classification of liabilities, take it out of the category: cf. Chadwick v. Bridge [1951] HCA 11; (1951) 83 CLR 314, at p 319 ; Glanville Williams' Joint Torts and Contributory Negligence, s. 4, n. 15. There is, consequently, no reason why s. 5 (c) and s. 6 of The Law Reform (Tortfeasors Contribution etc.) Act should not apply. (at p235)

11. It follows that the order for contribution to the damages assessed by Sheehy J. at 6,082 pounds 4s. 0d. should not be disturbed. But Egan cross appeals against the assessment of damages and in effect asks that it should be doubled. The sum was made up of 5,000 pounds general damages and 1,082 pounds 4s. 0d. special damages consisting mostly of loss of wages. Egan, who was nearing twenty-eight years of age at the time of the accident, suffered head injuries which were severe and have left unfortunate consequences. The cranial nerves have apparently been damaged, affecting hearing to some extent, sense of smell and in some degree the control of vision. He has some head noises and is less tolerant to alcohol than he was before the accident. The frontal lobes are said to have been damaged and a deterioration was deposed to of his alertness, intelligence and responses. He is moody and so on. Sheehy J. who examined in his judgment the evidence concerning damages with care, formed a low estimate of Egan's capacity for work. He had had no training to do anything but labouring work and the learned judge did not think that he was fit to do that now. If ever he was fit for work requiring mental effort he was not now fit. The evidence included an account of the work which Egan had tried and of the time he did it and why he relinquished it. His mother and brother but not his wife gave evidence of the observable changes in him and of his behaviour. Factors elicited in cross-examination perhaps pointed in different directions and possibly there were grounds for suspecting that present temperament and outlook rather than actual disability form the chief impediment to his finding some kind of remunerative work at which he could settle. But Sheehy J. accepted the evidence for the plaintiff and in all the circumstances 5,000 pounds must be regarded as a very moderate assessment of damages. The question, however, is whether this Court should interfere with the amount. On the whole the case does not appear to be one in which we ought to do so. A very important factor is that the assessment in a case of this special character must be governed very much by the judge's estimate of the man and there can be no doubt that the opportunity of observing his behaviour as a witness gave the learned judge a great advantage. Sheehy J. does not appear to have left out of his consideration any of the elements of damage involved and even though the amount may appear to this Court to be low, there is no ground which would warrant our interfering with the estimate of the judge at the trial. (at p236)

12. There are two further matters to be mentioned. The first is simply to note that for the appellant Soblusky an argument was advanced that an issue estoppel arose between him and Behrendorff out of the determination of the former action and that it precluded for the purpose of apportioning the burden of the damages in the present case the question whether Soblusky was responsible for Lewis' negligence because it was then found that Lewis was in charge of the car as Behrendorff's statutory agent. It was said that that meant that as between those parties Soblusky must be taken to be exonerated and that must determine that as between them Soblusky should bear none of the burden of the damages recovered by Egan. The argument is not tenable for the reason that in the present proceedings both Soblusky and Behrendorff have been held liable in solidum and it is from that fact the question of contribution proceeds; the question of what is just and equitable having regard to the extent of their respective responsibilities for the damage so found could not be controlled by an allegedly inconsistent issue estoppel founded on the former conclusion, on a matter which moreover could be evidentiary only. The other matter is the manner in which the costs of the proceedings should be dealt with. It is obvious that the plaintiff Egan is entitled to the judgment he has obtained against all the defendants for his costs of the action. Further, as between himself and the other defendants, Lewis should remain unrelieved of any burden that may fall upon him. (The judgment of the Supreme Court does not refer to any contribution or indemnity by or to Lewis in respect either of damages or costs and he is not a party to this appeal.) As between Soblusky and Behrendorff the burden of the costs payable to the plaintiff Egan stands apportioned fifty per cent each. There is no reason why this should be altered. It is of course based on the same considerations as the similar apportionment of damages made by the judgment of the Supreme Court. It goes without saying that Soblusky as appellant must pay Egan's costs of the appeal. The order of the Supreme Court is drawn up in a manner which would make it appear that the assessed damages were awarded cumulatively against each defendant. It is better therefore to discharge that order and to substitute one in a different form. (at p237)

13. To give effect to the foregoing conclusions the order should be as follows: Dismiss appeal as against the respondent Egan with costs. Dismiss the cross appeal of the respondent Egan with costs so far as they are referable to the cross appeal. Costs payable by and to the respondent Egan to and by the appellant Soblusky to be set off. Dismiss with costs both the appeal of the appellant Soblusky and the cross appeal of the respondent Behrendorff against so much of the judgment of the Supreme Court as determines the respective indemnities inter se of the defendant Soblusky and the defendant Behrendorff. Dismiss with costs the respondent Behrendorff's cross appeal against so much of the said judgment as determines that the plaintiff is entitled to recover from the defendants the sum of 6,082 pounds 4s. 0d. as damages. Costs payable to the respondent Egan by the respondent Behrendorff to be set off with costs payable by respondent Egan to respondent Behrendorff. Discharge the whole of the judgment of the Supreme Court and substitute the following: Order that judgment in the action be entered for the plaintiff for 6,082 pounds 4s. 0d. damages against all the defendants with costs and judgment be entered for the plaintiff against the defendant Lewis and the defendant Soblusky for an additional sum of 10 pounds 15s. 0d. damages. Order that to the extent of half the amount the defendant Behrendorff and the defendant Soblusky respectively indemnify one another against their liability to the plaintiff under the foregoing judgment for 6,082 pounds 4s. 0d. Order that the defendant Soblusky and the defendant Behrendorff indemnify one another respectively to the extent of one-half the costs of the action awarded to the plaintiff in the action under the foregoing judgment. (at p238)

ORDER

Dismiss appeal as against the respondent Egan with costs. Dismiss the cross-appeal of the respondent Egan with costs so far as they are referable to the cross-appeal. Costs payable by and to the respondent Egan to and by the appellant Soblusky to be set off.

Dismiss with costs both the appeal of the appellant Soblusky and the cross-appeal of the respondent Behrendorff against so much of the judgment of the Supreme Court as determines the respective indemnities inter se of the defendant Soblusky and the defendant Behrendorff.

Dismiss with costs the respondent Behrendorff's cross appeal against so much of the said judgment as determines that the plaintiff is entitled to recover from the defendants the sum of 6,082 pounds 4s. 0d. as damages. Costs payable to the respondent Egan by the respondent Behrendorff to be set off with costs payable by respondent Egan to respondent Behrendorff.

Discharge the whole of the judgment of the Supreme Court and substitute the following: Order that judgment in the action be entered for the plaintiff for 6,082 pounds 4s. 0d. damages against all the defendants with costs and judgment be entered for the plaintiff against the defendant Lewis and the defendant Soblusky for an additional sum of 10 pounds 15s. 0d. damages. Order that to the extent of half the amount the defendant Behrendorff and the defendant Soblusky respectively indemnify one another against their liability to the plaintiff under the foregoing judgment for 6,082 pounds 4s. 0d. Order that the defendant Soblusky and the defendant Behrendorff indemnify one another respectively to the extent of one-half the costs of the action awarded to the plaintiff in the action under the foregoing judgment.