Date: Sat, 6 Nov 2004 23:30:02 +1100

From: Harold Luntz

Subject: Vicarious liability; loss of chance

In response to a question from Jason on vicarious liability a few weeks ago, I mentioned the High Court of Australia case of Soblusky v Egan and criticism of it. The NSW CA has now held that the principle of the case has been confined by the decision in Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 to motor vehicles. Accordingly, since a dinghy with outboard motor is not a motor vehicle, the schoolboy who signed a form for the hire of the boat, though present in the boat, is not vicariously liable for the negligent operation of the boat by his school friend: Gutman v McFall [2004] NSWCA 378 (22 October 2004).

While awaiting the decision of the House of Lords in Gregg v Scott, colleagues may like to read another decision of the NSW CA, Rufo v Hosking [2004] NSWCA 391 (1 November 2004). This held that a doctor whose negligence deprived the patient of the chance of a better outcome was liable for the loss of that chance, even though it was more probable than not that the adverse outcome would have occurred anyway.

Regards,
Harold.

Harold Luntz,
Professorial Fellow,
Law School,
The University of Melbourne,
Victoria, 3010,
AUSTRALIA.

Home address: 191 Amess St,
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Vic 3054

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