Morrow v Kampf
[1995] QDC 39
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- Morrow v Kampf[1995] QDC 39
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Morrow v Kampf[1995] QDC 39
Morrow v Kampf[1995] QDC 39
DISTRICT COURT | Appeal No 129 of 1994 |
CIVIL JURISDICTION
JUDGE BOULTON
GARRY WILLIAM MORROW and LYNETTE OLIVE MORROW | Appellants |
and
MYRTLE OLGA KAMPF | First Respondent |
and
JOHN BRUNGS | Second Respondent |
BRISBANE
DATE 10/02/95
JUDGMENT
HIS HONOUR: This is an appeal against a decision of Mr Smith SM given on 1 September 1994. The Magistrate found for the plaintiff in the action giving judgment against the first and second defendants in the sum of $16,800.
The crucial finding of the Magistrate at paragraph 5 of his reasons is to the effect that the second defendant was towing the plaintiff's caravan as a casual employee of the first defendant.
It should be noted that the Magistrate made adverse findings of credit against the male first defendant and by implication against the female first defendant and mixed findings of credit concerning the second defendant.
Many of the limitations in the appeal became apparent when counsel for the appellant directed me to passages in the evidence of Mr or Mrs Morrow or Mr Brungs as being indicative of errors of fact on the part of the Magistrate.
One such instance said to be so important as to be capable of being determinative of the whole appeal was the evidence of Mr Morrow that Mr Brungs had the power to delegate his work to others. Reference was made to AMP v. Chaplin 1978 ALR 358 AT 391. I asked counsel for the appellants who had said this and I refer to page 17 of the transcript where I said:
“Did he say that he did or was it only the Morrows that said-----
MR BAKER: The evidence of Mr Morrow was that certainly he did and I asked Mr Brungs about it and he said, ‘Oh, I didn't know anyone who I could delegate to.’, but certainly the inference was there that he had that power if he so chose.”
I said:
“Obviously I don't know as much about the facts of this case as you do, but what about the suggestion that initially Mr Morrow raised with Mr Brungs the prospect of doing towing work because in Mr Morrow's opinion the vehicle that Mr Brungs had was suited? Doesn't that indicate on behalf of Mr Morrow that Mr Brungs' towing work was made acceptable subject to the suitability of the vehicle that he had and one might infer that someone else with a different vehicle might not have been acceptable at all?”
There was further evidence that Mr Morrow gave to Mr Brungs clear instructions as to what to do. Mr Baker for the Morrows put to Mr Brungs in cross-examination at pages 186-187 of the trial transcript:
“Now, I suggest to you Mr Morrow gave you quite a stern warning on this van-----?-- Yes, he-----
-----when he spoke to you. He said, ‘It's a big van’?-- Yes. He said, ‘Make sure that the people’ - Mrs Kampf and as I now know him to be Mr Spencer - ‘are happy that your vehicle is adequate for the job.’
Yes. In fact, he went further than that and said: “Look, if you start towing it or if you get a mile down the road and you're not happy with it, leave it there”?-- No, he didn't.”
There was evidence which the Magistrate accepted that Mrs Kampf had arranged with Mr Morrow the payment of the towing fee without reference to Mr Brungs. The Magistrate accepted that Mr Brungs used Mr Morrow's trade plates for towing. Mr Brungs did other casual work for Mr Morrow other than towing. Mr Brungs did commercial towing work only for the Morrows. The only other towing work performed by him was for himself personally or for friends and this occurred only rarely. Mr Bungs did other work as I have pointed out for the Morrows besides towing.
All of these matters were capable of supporting the finding of the Magistrate that the second defendant was a casual employee of the first defendant. That Mr Bungs said in his pleading that he was a casual employee was an admission on his part but clearly did not resolve the issue. The Magistrate had to look at all the relevant evidence and decide whether the contract was one of service or of services. As Mason J pointed in Stevens v. Brodribb 1985-1986 160 CLR 16 at 24:
“But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v. Federal Commissioner of Taxation (33); Zuijs' Case, Federal Commissioner of Taxation v. Barrett (34); Marshall v. Whittaker's Building Supply Co. (35). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
It has not been found that in arriving at the conclusion he did the Magistrate erred. The appeal on this crucial issue therefore fails.
Once this issue is resolved the issue as to whether the defendants were bailees is of no consequence. The first defendants are vicariously liable for the negligence of the second defendant. The Magistrate correctly gave judgment for the plaintiff in the full amount against both the first defendants and the second defendant.
Notice of indemnity and/or contribution had been delivered between the defendants. Despite the suggestion that the liability of the first defendants were secondary to that of the second defendant there were issues between the defendants to be resolved in the proceedings.
The Magistrate referred to the issue as between the defendants quite early in his reasons but then fails to address the issue when he has resolved the issues involving the plaintiff. This may have occurred because of the truncated submissions that were made through constraints of time. I am told that counsel were limited in the time that they had for oral submissions and that subsequent written submissions failed to address the issue of indemnity and/or contribution. Whether that explains the matter, the issue was plainly open on the pleadings and should have been resolved by the Magistrate.
The appellants here contend that pursuant to the decision of the Privy Council in Lister v. Romford, Ice and Cold Storage Company Limited 1957 A.C. 555, he should have proceeded to resolve the issues as between the defendants. This is based on the implied term of the contract of service that the employee will use reasonable skill and care and the provisions of the Law Reform Act as to contribution and indemnity between tortfeasors.
Lister's case is rarely applied, the majority of master servant cases being governed by various pieces of legislation or Awards which exclude its application. I note, however, that Connolly J in the Queensland Full Court in Kelly v. Alford 1988 1 QdR 404 at 412 discounted suggestions that Lister's case was somehow in doubt.
There is no complication in the present case concerning implied obligations to insure vehicles as was the case in Kelly v. Alford.
If the Magistrate had considered the issue of contribution and/or indemnity he might well have looked not only at the excessive speed, failure to keep a proper lookout and to exercise proper control and failure to fit stabiliser bars and a hand operated braking system. The male first defendant had inspected the caravan prior to sending the second defendant. He should have notified the second defendant of the absence of brackets for fitting the stabiliser bars. This was a most significant omission. The second defendant took stabiliser bars along and, because of the absence of brackets, found them to be useless.
If the failure to install a hand operated braking system was negligent on the part of the second defendants, the first defendant should also be held liable in this respect for failing to advise or to instruct him to do so.
If an employee is put in the position that he lacks necessary equipment, his election to continue with the job nonetheless, must be viewed to some extent as mere inadvertence on his part. The second defendant in the present instance merely put the stabiliser bars back on the truck. He did not even consider postponing the job until brackets could be obtained. Mr Devlin, for the second respondent, made no submissions on the issue of contribution or indemnity whatsoever. Mr Hack, who is really unaffected by the issue, as he appeared for the plaintiff, suggested that full indemnity is not appropriate and that a consideration of issues affecting both defendants was relevant to the question of contribution.
This is the view that I adopt and that I propose to give effect to. The employer should bear the bulk of responsibility. I take the view that liability should be apportioned 70 per cent/30 per cent between the first defendants and the second defendant.
To this extent the appeal succeeds although as I have indicated it only concerns the issue as between the defendants to which the Magistrate does not seem to have given any consideration. The judgments in favour of the plaintiff, of course, remain in place. There is the possibility that the appellant may be entitled to a certificate in respect of this limited issue.
However, the first defendant appellants have failed on the principal issue and they should pay the plaintiff/respondent's and second defendant/respondent's costs of and incidental to the appeal to be taxed.
I have only just raised the prospect that seeing the Magistrate really failed to come to grips with that issue of contribution that the appellants may be entitled here to a certificate under the Appeal Costs Funds Act.
MR BAKER: I would submit that that is appropriate, Your Honour. The Magistrate wasn't led into the error in this case. It really is just a failure by him to deal with the issue.
HIS HONOUR: Do you want to say anything on that. It really doesn't affect you, does it, Mr Hack.
MR HACK: No, I would simply point out that Your Honour does have power under section 17 of the Appeal Costs Fund Act. I brought the page out of the Act in the event that these sorts of issues arose.
HIS HONOUR: I certify for a certificate to the appellants in respect of that issue.
MR HACK: Your Honour, could I say this. I don't know that you can certify for a certificate in respect of issues. I think you can certify in respect of the costs of a particular event, that is, the costs of the appellant so far as it relates to the appeal against the second respondent/second defendant but I don't know that you can certify for a-----
HIS HONOUR: Well, it's very common in taxing for the Taxing Officer to tax costs in relation to specific issues so if there is any problem the Taxing Officer can send that back to me but I am inclined to think that the Taxing Officer would be quite able to segregate out the costs of that particular issue and that the certificate then could be restricted to that issue. I don't believe the appellants here are entitled to the entire costs of their appeal against the second defendant because really they failed on the major part of that.