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Decisions of the Superior Courts of New South Wales, 1788-1899

Jackson v Hart [1831] NSWSupC 62; sub nom. Hart v. Jackson (1831) NSW Sel Cas (Dowling) 442

vicarious liability - negligence - trespass to goods - maltreatment of animal - rule of the road - road accident - common carriers

Hart v. Jackson

Supreme Court of New South Wales

Stephen J., 26 September 1831

Source: Australian, 30 September 1831

Before Mr. Justice Stephen and Messrs. Walker and Ross Assessors - Jackson v. Hart.  This was an action of trespass to recover damages alleged to be sustained by defendant's coach driving against plaintiff's.  --- Both parties are coach proprietors, and run opposition coaches on the Liverpool road.  In a recent endeavour of the drivers of both coaches to get the lead, it was in evidence that defendant's driver whipped his rival "coachee's" horses, which brought the wheels of the vehicles of both into contact - and the plaintiff's coach had a spring broken.  Mr. S. Stephen stated the case for the plaintiff - Dr. Wardell, on the other hand, contended that the action being for a wilful injury by the defendant's driver, he was the proper party to the action, and not the defendant, who ought to be held liable for his servant's negligence, but not for his wilful acts of misconduct.  The only damage done also was estimated at the value of 7s., which made the case of too trumpery a nature even for the Court of Requests, as the action would very likely never have been thought of, had not the present defendant cause to bring an action previously against the plaintiff.  The learned Judge said, as the master's liability involved some nice points of law, he would let the case go on the facts in evidence to the Assessors, leaving the law objections for future consideration.  Verdict for the plaintiff, damages £1 7s.



Forbes C.J., 17 October 1831

Source: Australian, 21 October 1831

Hart v. Jackson.  This was an action to recover damages for trespass[.]  Both parties are coach-proprietors, and run coaches to and from Sydney and Liverpool.  It appeared, that as the plaintiff's coachee was driving his cattle pretty tolerably steadily along the Liverpool road, a short time ago, the defendan's wife drove past in a chaise-cart, and taking the left side of the road, just as the coachee was about swerving to the right, and pass or run her down, she smacked across in a diagonal to the right, by which the plaintiff's leaders broke the leading bar, and the near leader took the ground.  This was the injury.  It was in evidence that the plaintiff drove the horses for a fortnight after, but though worth £20 before the accident, yet he was not worth above half that sum after it.  Verdict for the plaintiff, damages £11 5s.  For the plaintiff, Dr. Wardell and Mr Chambers; for the defendant, Mr. Sydney Stephen.



Forbes C.J. and Dowling JJ, 31 October 1831

Source: Sydney Herald, 7 November 1831

Hart and another v. Jackson. - This was an action on the case for defendant's driving his carriage against plaintiff's carriage and horses, thereby causing him great loss and damage.  The second count laid the vehicle as a chaise cart. - Plea, the general issue.  A verdict was found for the plaintiff. - Damages, £10, subject to a point of representative liability on the part of defendant, as a man named Tuck drove his vehicle.  The case was tried in the present Term, by the Chief Justice and two Assessors.  Mr. S. Stephen now moved for a new trial, on the following grounds: - 1st, that the verdict was without evidence, as it was proved one William Tuck, who was not a servant or agent of defendants, drove the vehicle in question; 2nd, that since the trial they had discovered fresh evidence.  Dr. Wardell contended, that the verdict should not be disturbed, and that it was clear, from the evidence, that Tuck was the agent of Jackson.  The Judges would consider the point, and a nice legal point it was, whether under all the circumstances the plaintiff could be made liable.



Forbes C.J., Stephen and Dowling JJ, 19 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 95] Where the owner of a stage cart suffered a stranger to drive the Cart with the horse of the latter and by the negligent & careless driving of the stranger the Plaintiffs coach was injured:  Held that the owner of the stage cart [p. 96] was punicarily [sic] liable and that the stranger might be described as his servant.

Source: Dowling, Proceedings of the Supreme Court, Vol. 61, Archives Office of New South Wales, 2/3244

[p. 32]

Saturday 19th November 1831

In Banco

PresentForbes Chief Justice.
Stephen J.
Dowling J.

Hart et al

This was an action of trespass brought by the owner of a common stage coach against the owner of a common stage cart, for the negligent driving of the said cart by the Deft's servant, whereby a horse of the Plf, was injured. At the trial before the Chief Justice Forbes on the 17th October last, the Plf had a verdict for 10£ damages, being the amount of injury done  the horse.[1 ]

The case, upon the evidence, was to this effect: - The Plfs were the owners of a public stage coach plying from Sydney to Liverpool.  The Deft was also the owner of a similar vehicle, connected with which he had a common stage spring cart for the purpose [p. 33] of conveying passengers who could not be accommodated in the coach when it became full.  On the day when the injury complained of happened, the stage cart was travelling on the same road with the Defts stage Coach.  The cart was driven by a person named Tucker, with the consent  & permission of he Deft, but it was Tucker's own horse that was yoked to the cart and the injury was occasioned by the negligent driving of Tucker. The assessors found as a fact, which was distinctly put to them, that for the occasion, Tucker was the Defts servant or agent, though not ordinary employed in that capacity.  The cart attended the Deft's coach to take up any passenger in the road.  No passing passengers were taken up but one was taken up by Tucker without paying any fare.  The question under these circumstance [p. 34] is whether the deft is liable in the present action.

It appears to me that the finding of the Assessors puts an end to the question.  It must be collected from the evidence that the stage cart so driven by Tucker, was employed for the benefit and advantage of the Deft at the time the accident happened, it being then in attendance upon the stage coach of the Deft, in the course of its ordinary employment; and although in fact no paying passengers were taken up yet as it was plying for the purposes of carrying surplus passengers for whom there might be no room in the coach, there is no doubt that if any passengers had gone by it they would have been liable to pay the Deft the amount of the fares, he being the owner of the carriage.  In this point of view it appears to me that he w.d on his part be also liable for any injury done by the cart in the course of its [p. 35] journey, though it happened that the cart was drawn by another man's horse, or driven by a person not ordinary employed by him the character of servant or driver.  If the deft permits a careless person to drive his cart, in the ordinary course of its employ, must as a public conveyance for passengers for hire and reward, & which person so misconducts himself in the driving even of that persons own horse, for the defts benefit, the deft must in the eye of the law be considered as the meritorious cause of the injury & therefor liable to the part injured. The fact of this being a public stage cart and being so employed at the time of the accident, distinguished this case altogether from that class of cases, where the owner of a private carriage hired horses for the day, which were driven by the servants of the liveryman, & by whose negligence the injury complained of arose. In such cases the owners of the carriages [p. 36] were held not liable upon this principle the cases of Sammell v Wright 5 Esp 263 Sir Henry Houghton'scase cited by Abbott C.J in Loughon v Poniter 4 B & C. 550. Deane v Branthwaite & Croft vAllison 4 B & A 590 were decided.  In the latest case of Loughton v Pointer there was a division of the Judges of the King's Bench upon this point, but there the carriage was owned by a private gentleman who hired horses for the day.  On the broad ground that as this stage coach was employed on the day in question for the benefit of the def though drawn by another man's horse, and driven by a man, who is found but the Assessors to have been the Deft's servant or agent for the occasion in question, in consequence of his (the deft's) permission that he shd drive the cart on that day, it appears to me that public policy as well as the general principles [p. 37] to be collected from decided cases, authorize us in holding that the deft is primarily liable, & that a person sustaining an injury under the circumstances of this case, might not be driven to a circuity of action, or be compelled to resort to a person who may be in no condition to make amends for an injury of which he is the proximate cause.  It was by the Deft's authority, & for his benefit, if any should arise, that Tucker is permitted to drive the stage cart, & it appears to me, that he from whom authority is derived, must be liable for any consequences arising from the negligence of the person so authorized.  It was a well settled doctrine, that a principal or master is liable for the tortious acts of his servant, in all matters ``done by them in the exercise of the authority that he has given them, whether such servants be immediately retained by himself, or by those whom he has employed; & however remote the subagent may be whose unskilfulness [p. 38] or negligence was the cause of the injury, the liability may always be traced to the principal from whom the authority moved - Burk v Steiman 1 B & P . 404. 5 B & C 547.  2 H. Black. 442. 3 Wils. 317.  In a very recent case in this court of -- & Payne, where a person to whom the Deft was indebted, had authority from the Deft to sell a horse, and pay himself out of the proceeds, & the debtor by carelessly riding the horse ran over the Plf, it was held that the person riding the livery was the servant or agent of the owner, & that the latter was liable to the Plf for the injury.

On these grounds I think the verdict ought to stand.



[1 ] Marginal note in Justice Dowling's manuscript: "No point was made as to the form of action.Forbes C J concurred in my opinion.  Stephen J who was not present during the argument took no part in the judgmt."

Published by the Division of Law, Macquarie University