Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd
46 CLR 41(Decision by: Gavan Duffy CJ and Starke J)
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd
Court:
Judges:
Gavan Duffy CJ and Starke JRich J
Dixon J
Evatt J
McTiernan J
Subject References:
Defamation
Slander
Master and servant
Vicarious responsibility
Judgment date: 23 December 1931;
SYDNEY
Decision by:
Gavan Duffy CJ and Starke J
This was an action for slander wherein judgment has been entered for the plaintiff, the Producers and Citizens Co-operative Assurance Co of Australia Ltd , for PD1,000 damages. An appeal has been brought to this Court by the defendant, the Colonial Mutual Life Assurance Society Ltd The question for determination is whether the defendant is liable for defamatory statements made by one Charles Ridley. It is undisputed that Ridley was employed by the defendant to secure proposals for insurance for it; he is what is known as a canvasser: his business was to visit members of the public and persuade them, in the usual manner, by arguments and statements, to effect insurances with the defendant. He had a written agreement with the defendant fixing the scale of his commission on business obtained, and providing that he would "not in any circumstances whatsoever use language or write anything respecting any person or institution which may have the effect of reflecting upon the character, integrity or conduct of such person or institution, or which may tend to bring the same into disrepute or discredit." But he did not observe this stipulation, and made defamatory statements of concerning the plaintiff, for which the defendant has been held responsible. It was said that the defendant reserved to itself no power of controlling or directing Ridley in the execution of the work he was employed to do or of dismissing him for disobedience of orders: in short, that Ridley was an agent of the defendant in the nature of an independent contractor, and not the servant of the defendant for whose tort in the course of his employment the defendant would be responsible.
The nature of Ridley's employment, however, gave the defendant a good deal more power of controlling and directing his action than was conceded by the argument addressed to us. Nothing in the agreement or the position of the parties denied the right of the plaintiff to control and direct Ridley when, where and whom he should canvass. In our opinion the judgment of the Judicial Committee in Citizens' Life Assurance Co v Brown [F1] really concludes the present case. But if it does not, still we apprehend that one is liable for another's tortious act "if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority." It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v English Joint Stock Bank [F2] ; Lloyd v Grace Smith & Co [F3] ). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. (Cf. Limpus v London General Omnibus Co [F4] .) The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction.
The appeal should be dismissed.