Hobbs v Petersham Transport Co Pty Ltd
124 CLR 220(Judgment by: Menzies J)
Between: Hobbs
And: Petersham Transport Co Pty Ltd
Judges:
Barwick CJ
McTiernan J
Menzies JWindeyer J
Owen J
Subject References:
Contract
Bailment
Carriage of goods
Due care
Failure to deliver
Onus of proof
Duty of bailee
Sub-contractor
Judgment date: 30 June 1971
Sydney
Judgment by:
Menzies J
I have had the advantage of reading the judgment of the Chief Justice in which the facts relevant to these appeals are fully set out.
The critical decision to be made here, as it seems to me, is whether the evidence established affirmatively that the fracture of the axle of the bogie of the trailer which caused the vehicle to overturn happened without any negligent act or omission of the defendant or any servant of the defendant.
It is common ground that the defendant was a bailee for reward of the equipment being carried. It was not under an absolute duty to deliver. It was a qualified duty and, to use the language of Starke, Dixon and McTiernan JJ. in John F. Goulding Pty Ltd v Victorian Railways Commissioners [F14] , "it would not be broken if the defendants were disabled from delivery through destruction or loss of the goods which reasonable care and skill on their part could not avoid". To escape liability for non-delivery the onus of proving that the non-delivery, however caused, was without fault on its part, rested upon it. A modern statement of the position is to be found in the judgment of Lord Denning M.R. in Morris v C.W. Martin & Sons Ltd, as follows [F15] :
"Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show-and the burden is on him to show-that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty."
These well-established rules, which I think should be accepted without qualification or gloss, do not constitute a carrier, such as the defendant, an insurer; he escapes liability if he can show that non-delivery of goods entrusted to him for carriage was not due to his fault, notwithstanding that he does not show how the loss actually occurred. In this, his obligation is less onerous than that imposed by law upon a common carrier who is, of course, responsible for the safety of the goods entrusted to him, except for loss arising solely from act of God or the Queen's enemies or inherent vice in the goods carried or from the fault of the consignor. If the defendant had been a common carrier he could not have hoped to escape from liability in the circumstances of this case.
His Honour the learned trial judge was not satisfied that the onus of disproving negligence had been discharged. The problem for this Court is whether he should have been so satisfied.
The defendant made a strong case but there was an omission, the significance of which is, I think, of critical importance. It did not prove that, in the course of servicing its vehicle, the axle which broke had been inspected periodically, or, indeed, at all. The driver's evidence was to the effect that he had not inspected the axles of the vehicle and that the checking of the axles was the duty of a mechanic in the defendant's employment at its Leichardt depot. This mechanic, one Looker, as the driver said, "did the checking of the axles if necessary-any services". Mr. Looker was not called.
Had there been anything in the appearance of the axle at the point of fracture to indicate that the fracture was otherwise than a completely new break, I would have thought that the defendant's attempted proof that it was free from blame would, by reason of the foregoing omission, have been incomplete. It is the convincing evidence that the fracture was clean and fresh-which it seems his Honour accepted-upon which the defendant had to rely to complete its case and to negative the existence of any prior defect in the axle which broke that reasonable inspection might have revealed.
Not without hesitation, I have come to the conclusion that the inference which the evidence required is that the fracture did happen all at once and without there being any prior fault, such as a hair-line crack, which reasonable examination of the axle might have revealed. The lack of evidence of inspection of the axle had, therefore, no significance because, had there been such an examination, it would have revealed nothing that could have contributed to the accident. The defendant did, I think, prove inter alia that the breaking of the axle of the bogie happened without any fault on its part or on the part of its servants.
I have therefore come to the conclusion that the learned trial judge should have found affirmatively that the non-delivery of the goods was not due to default on the part of the defendant.
It is for this reason that I am of the opinion that the defendant's appeal should be allowed.