Anchor Products Ltd v Hedges

[1966] HCA 70

HIGH COURT OF AUSTRALIA

Taylor, Windeyer and Owen JJ.

ANCHOR PRODUCTS LTD. v. HEDGES

(1966) 115 CLR 493

16 November 1966

Negligence

Negligence—Accident causing personal injuries—Res ipsa loquitur—Evidence tendered by plaintiff of particular act of negligence by defendant—Evidence not accepted—Whether plaintiff entitled to rely upon principle of res ipsa loquitur—Onus of proof—Whether shifted to defendant.

Decisions

November 16.
The following written judgments were delivered: -
TAYLOR J. I agree with the observations of my brother Owen but, as one of the members of the Court which decided Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99 , I wish to add a few words for myself. (at p495)

2. The passage from that case which, in my view, has been misunderstood by the Supreme Court of New South Wales in Priest v. Arcos Enterprises Pty. Ltd. (1964) NSWR 648 , and properly applied by the learned trial judge from whom this appeal comes, appears towards the conclusion of a substantial judgment in which the operation of the so-called principle of res ipsa loquitur was extensively examined and it is taken from the concluding part of the judgment which was directed to exposing the absurdity which would result if it were held to be the law that, in cases where the principle is applicable, the onus of proof, in the primary sense of that expression, shifts from the plaintiff to the defendant. (at p495)

3. But the nature and application of the principle had already been examined. It was pointed out that "once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of the principle" (1956) 96 CLR, at p 115 . Then appear passages cited from the speeches of a number of their Lordships in Barkway v. South Wales Transport Co. Ltd. (1950) 1 All ER 392 which I do not repeat but which, I cannot forbear to point out, emphasize that "the doctrine is dependent on the absence of explanation" (1950) 1 All ER, at p 394 and that, "if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not" (1950) 1 All ER, at p 395 . The facts, of course, are "not sufficiently known" and are not established by evidence, whether called by the defendant or the plaintiff, which is not acceptable to the tribunal to whom the question of fact is committed. (at p496)

4. Thereafter the Court expressly directed its attention to the question whether it could properly be said that the application of the principle caused the onus of proof, in the primary sense, to shift from the plaintiff to the defendant. The passage in question appears in this section of the judgment and it merely sought to contrast the respective situations which, if an affirmative answer were given to this question, would arise if the defendant, or on the other hand the plaintiff, proved the cause of the accident. In one event the onus would be upon the defendant whilst in the other it would remain upon the plaintiff. We did not, as we said, think that the principle could produce such a capricious and anomalous result and the whole of this passage was intended to make it clear that it does not and that the same result will follow whether the actual cause is proved either by the plaintiff or the defendant. In the passage in question the situation that arises in a case where the plaintiff adduces evidence as to the cause of the accident as a result of which he has sustained his injuries if read literally and in isolation, is, perhaps, too widely stated but read in the context of what had already been said its meaning sufficiently appears. Additionally, the concluding portion of the passage, itself, makes it clear that "if his evidence is acceptable to the jury the question will be whether, upon that evidence, the jury is satisfied that he was negligent" (1956) 96 CLR, at p 122 . (at p496)

WINDEYER J. One thing can certainly be said of the phrase res ipsa loquitur. That is that it has not been allowed to speak for itself. It has not been left undisturbed as Erle C.J. stated it, simply, in Scott v. London and St. Katherine Docks Co. (1865) 3 H &C 596, at p 601 (159 ER 665, at p 667) . For years courts and commentators have been engaged in elaboration and exposition. I am reluctant to add anything to this; for I take the doctrine of this Court on the matter to be well settled. Yet in one respect what the Court has said has been misunderstood. I shall therefore say something beyond concurring in the decision that the appeal be dismissed. (at p497)

2. An accident may sometimes speak for itself of negligence on the part of someone; but not necessarily of the defendant. Evidence may be required to attribute to him the negligence of which it speaks. This was such a case. From the collapse of the pile of boxes an inference of negligence in their handling might, in the absence of explanation, reasonably be drawn. But not until the judge had reached the conclusion that the plaintiff had not touched the pile of boxes, and thus had not himself caused or contributed to the accident, could its occurrence provide evidence against the defendant. If a jury were being directed in such a case, a proper direction to them would be: "If you are satisfied that no act of the plaintiff was a cause of the pile of boxes collapsing, then you may, if you think fit to do so, infer from the unexplained fact that this happened that it was the result of some negligence on the part of the servants of the defendant". It is said, however, such an inference could not be drawn in this case because the plaintiff had sought to prove some particular acts and omissions in the handling of the goods by the defendant's servant and something in the condition of the premises as the actual cause of the accident. He had failed to establish these things. But if a happening, unexplained, speaks for itself, why is its voice stilled because the plaintiff sought to explain it but failed to do so? The appellant said that this was so because of a single remark in the judgment of the majority of this Court (Dixon C.J., Webb, Fullagar and Taylor JJ.) in Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99, at p 122 . Their Honours, in the course of some observations as to the onus of proof when a thing speaks for itself, said: "But what is the position where the plaintiff, instead of relying on mere proof of the occurence, himself adduces evidence of the cause of the accident? It is, of course, beyond doubt that the doctrine of res ipsa loquitur will have no place in the case". This it seems has been misunderstood. I find that surprising. Both the context of the remark and the sense of the matter make it quite clear to me, as it was to the learned trial judge in this case, that when their Honours spoke of a plaintiff adducing evidence of the cause of the accident they were referring to his adducing evidence which shewed what was the cause of the accident, that is to say which established what acts, omissions or events had caused it to happen. If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself. The question then becomes whether, having regard to the now known cause, the defendant was negligent. It matters not in such a case whether the cause be established by evidence led for the plaintiff or for the defendant. If, however, the evidence given does not establish to the satisfaction of the jury, or the judge of the fact, what was the cause of an occurrence which could speak for itself, then it can continue to do so, although if the evidence given has raised doubts it may now speak less loudly and less convincingly than before. (at p498)

3. Decisions elsewhere than in Australia on this very point show that law has not departed from logic and sound sense in the way that it was suggested that it has. I shall refer to some of these decisions, although it hardly seems to me necessary to do so. (at p498)

4. In New Zealand the question was raised in Voice v. Union Steam Ship Company of New Zealand Ltd. (1953) NZLR 176 . Gresson J. there took a view of the effect of the principle of res ipsa loquitur in relation to the onus of proof which has not been generally followed in New Zealand and which is contrary to the law accepted in this Court. But, putting that aspect aside, what his Honour said on the present topic is directly in point: " . . . the plaintiff's evidence may, though assigning causes, be inadequate to explain the accident and to displace the prima facie presumption raised by the happening, in which case the plaintiff may fall back upon the presumption which arose from the very fact of the accident itself occurring" (1953) NZLR, at p 191 . (at p498)

5. In Canada the matter was dealt with in Neal v. T. Eaton Co. Ltd. (1933) 3 DLR 306, at p 309 . There Riddell J.A., delivering the judgment of the Ontario Court of Appeal, said: "I think that it is wholly open to a plaintiff to allege an injury sustained while the defendant owes him the duty of care to avoid such injury, and under circumstances in which such occurrence would not normally happen, to say 'I think, and will try to prove, that the particular occurrence which caused my injury was due to certain specific acts or omissions of yours, but if I fail to prove these, I call upon you to show that it was not caused by your negligence'" (1933) 3 DLR, at pp 309-310 . (at p498)

6. In the United States substantially the same thing has frequently been said: see the numerous cases cited in the Corpus Juris Secundum, vol. 65 - under "Negligence", par. 220 (6). The following cases from federal jurisdictions will suffice as illustrations: Ramsouer v. Midland Valley Railway Co. (1942) 44 F Supp 523 ; Towers v. Massey-Harris Co. (1956) 302 P 2d 77 ; Armstrong v. Pacific Greyhound Lines (1946) 168 P 2d 457 ; Loketch v. Capital Transit Co. (1957) 248 F 2d 609 . (at p499)

7. No doubt, if a plaintiff builds his case entirely upon allegations in the pleadings of particular acts or omissions on the part of the defendant, he may be confined to the issue he has thus chosen, unless at the trial he be allowed to amend: cf. Esso Petroleum Co. Ltd. v. Southport Corporation, per Lord Radcliffe (1956) AC 218, at pp 243, 244 . On the other hand, if he has made a general allegation of negligence, his alleging particular faults does not necessarily prevent his relying upon an inference to be drawn from the fact that the accident happened. This also has been dealt with in the United States: see Prosser, Torts, 3rd ed. (1964), p. 236; The Restatement of the Law of Torts, 2nd ed., Negligence, and an enormous list of authorities in the majority judgment in Leet v. Union Pacific Railroad Company (1944) 158 ALR 1008 , a decision of the Supreme Court of California. In the present case the trial judge allowed, indeed suggested, an amendment of the plaintiff's statement of claim by the addition of a general allegation that the accident spoke for itself. This was, in the circumstances, a permissible course. The cause of action was negligence. The particulars of the acts or omissions which were relied on as constituting the negligence alleged could, at the discretion of the trial judge, be expanded by amendment to meet matters that emerged in the course of the trial. The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it. This has been stated more than once by this Court: see Doonan v. Beacham (1953) 87 CLR 346 ; Mummery's Case (1956) 96 CLR, at pp 110, 111 ; Vozza v. Tooth &Co. Ltd. (1964) 112 CLR 316, at p 323 . (at p499)

8. It was further argued for the appellant that some words used by the trial judge meant that not only did he rely upon the occurrence of the accident as evidence of negligence, but that he mistakenly thought that by it the legal onus of proof had been shifted from the plaintiff to the defendant. This is a topic on which there has been in the past some confusion of language, if not of thought. There may be some room still for debate about some aspects of it in England. The varying views which have been advanced are summarized by Professor Cross in his work Evidence, 2nd ed. (1963), pp. 128-131; and see the comments in Salmond on Torts, 14th ed. (1965), pp. 319-322 and Winfield on Torts, 7th ed. (1963), pp. 200-203. (at p500)

9. But, however the matter may stand in England, here it is settled. What Dixon J. said in Fitzpatrick v. Walter E. Cooper Pty. Ltd. (1935) 54 CLR 200, at pp 218, 219 , what Evatt J. said in Davis v. Bunn (1936) 56 CLR 246, at pp 267-269 , and now the definitive pronouncement in Mummery's Case (1956) 96 CLR 99 , make it abundantly clear that for Australian courts the phrase res ipsa loquitur denotes a fact from which, if it be unexplained, it is permissible to infer negligence: but that the onus in the primary sense - that is the burden of proving the case against the defendant - remains with the plaintiff. To say that an accident speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn, although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse, as du Parcq L.J. pointed out in Easson v. London and North Eastern Railway Co. (1944) 1 KB 421, at p 425 . But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident, if its cause remains unexplained. In Franklin v. Victorian Railways Commissioners (1959) 101 CLR 197, at p 201 Dixon C.J. said: "The three Latin words (res ipsa loquitur) merely describe a well known form of reasoning in matters of proof. Convenient as it is sometimes to use them to direct the mind along that channel of reasoning they must not be allowed to obscure the fact that it is a form of reasoning about proof leading to an affirmative conclusion of fact and that whenever the question is whether the proofs adduced suffice to establish an issue affirmatively all the circumstances must be taken into account and the evidence considered as a whole". (at p500)

10. As further emphasizing that we are concerned with a process of reasoning and inference from circumstantial evidence, and not with a doctrine of law, I add to this a passage from the judgment of the Supreme Court of the United States in Sweeney v. Erving (1913) 228 US 233, at p 240 (57 Law Ed 815, at p 819) : "In our opinion", said the Court, "res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff". (at p501)

11. That passage was quoted by Ogilvie Thompson J. A. in the course of his powerful judgment to the same effect in the Appellate Division of the Supreme Court of South Africa in Arthur v. Bezuidenhout and Mieny (1962) 2 SALR 566 . (at p501)

12. With these matters in mind I have considered the way in which in the case before us the learned trial judge expressed himself. The position being now so firmly established for Australian courts, and so well known, I do not think that his Honour when he referred to "onus of proof" was using that phrase in relation to the ultimate burden which is upon the plaintiff. I think that he was speaking rather of the absence of any explanation from the defendant negativing the inference which could be drawn from the occurrence. His Honour's careful judgment, read as a whole, does not show that he was under a misapprehension. His conclusion was that it was more likely than not that the cause of the accident was some act of negligence on the part of the defendant's servant. This conclusion was open to him on the evidence. (at p501)

13. Some questions of evidence which were raised were disposed of during the argument. (at p501)

14. I would dismiss the appeal. (at p501)

OWEN J. The principal question for decision in this appeal may be put in this way. A sues B for damages claiming to have been injured by B's negligence. A leads evidence of an act done by B which, if the evidence is accepted, would justify a finding that B had been guilty of negligence and thus caused A's injuries. But the tribunal of fact is not satisfied that B did conduct himself in the way which A has described. The happening as a result of which A was injured was, however, one which more probably than not would not have occurred if B had taken reasonable care for A's safety. Is it open to the tribunal, in these circumstances, to infer that B was negligent - although unable to determine what was the particular act of negligence - and find in favour of A? But for some of the authorities to which we were referred I would have no doubt at all that the answer is that the inference may be drawn and that it is not to the point to say that A offered evidence, which was not accepted, of some specific act of negligence on the part of B. In such circumstances it is as though that evidence had not been given and there is left the fact that A was injured by a happening which, in the ordinary course of events, would not have occurred if B had acted with reasonable care. A has made out a prima facie case and an inference that B was negligent may properly be drawn unless some satisfactory explanation of the happening is given which rebuts that inference. It was in this way, as it seems to me, that the learned trial judge approached the present case and decided it in favour of the plaintiff. (at p502)

2. The facts were that the plaintiff, an employee of a carrying company, was the driver of a motor truck which was being used to move goods from the defendant's warehouse. These consisted of boxes of semolina, each weighing about fifty pounds and measuring about seventeen inches by eleven inches by thirteen inches. The truck was standing alongside a platform in a loading bay at the warehouse and it was the task of a man named Fleming, an employee of the defendant, to bring the boxes to the platform so that the plaintiff might load them on to the truck. This Fleming did by stacking the cases, four at a time, on a two-wheeled hand trolley and wheeling them from inside the warehouse to the loading platform. There he would raise the handle of the trolley so as to tip it and the boxes on it in a slightly forward direction, keeping one hand on the uppermost box, in order to release the lip of the trolley and enable it to be withdrawn leaving the stack of boxes standing on the platform. The plaintiff's injury occurred when a stack which Fleming had wheeled to the platform fell forward when he was disengaging the trolley or immediately thereafter. They fell towards the plaintiff and this caused him to spring back and, in doing so, he injured his back. In the course of the plaintiff's evidence he said that on this occasion Fleming was wheeling the trolley faster than was usual and that while still moving forward he was elevating the handle of the trolley so as to deposit the boxes on the platform. At this stage one wheel of the trolley went, he said, into a depression in the floor and this caused the trolley to swing to one side and come to an immediate stop with the result that the stack of boxes fell towards him. Fleming's account of the happening was very different. He said that he had wheeled the trolley to the platform in a normal fashion, tipped it slightly forward and disengaged it from the boxes and left them stacked on the platform in a proper position. The plaintiff, he said, had then picked up the top box whereupon the remaining boxes fell forward, the inference being that the plaintiff in removing the top box had caused this to happen. (at p503)

3. The learned trial judge was not satisfied that Fleming was wheeling the boxes too fast or that a depression in the floor had played any part in the occurrence but he did not accept Fleming's evidence that the plaintiff had touched the stack before the boxes fell. He found that the plaintiff had not done so and that Fleming was the only person who was handling them when or immediately before they fell. Other evidence was led for the defendant that the same method of wheeling boxes to and placing them on the platform had been in use for many years and that during that period no similar case had occurred. In these circumstances his Honour said that, while he was "unable to find precisely what was Fleming's act of negligence", he thought "it more likely than not that the cause of the accident was some act of negligence on his part" and gave judgment for the plaintiff. (at p503)

4. At the trial and on this appeal counsel for the defendant submitted that, because the plaintiff had given evidence tending to show that the boxes had fallen because Fleming was in a hurry and inferentially had failed to take reasonable care in carrying out the operation, it was not open to him to contend that negligence could be inferred from the facts that Fleming had the sole control and management of the operation and that the happening would not, in the ordinary course of things, have occurred unless the latter had failed to exercise reasonable care. The fact that the plaintiff's evidence as to Fleming's actions was not accepted was, he said, irrelevant. It was sufficient that he had given evidence in an attempt to prove some specific act of negligence on the part of Fleming. I do not agree with this proposition. In my opinion the rejection of the plaintiff's explanation as to the reason why the boxes fell did not prevent the learned trial judge from concluding that the accident was of a kind which, in the ordinary course of events, would not have happened had due care been exercised by Fleming and from inferring from that state of affairs that he had been negligent. If the plaintiff's explanation had been accepted the position would have been a very different one. The facts which led up to the happening would have been proved and the only question would have been whether or not, on those facts, Fleming had failed to exercise reasonable care in wheeling and stacking the boxes. But when that explanation failed to obtain acceptance and Fleming's account of the happening was rejected, the case became one of an unexplained occurrence which the learned judge might properly have thought was unlikely to have happened had Fleming not acted negligently. (at p504)

5. Counsel referred us, however, to several cases which undoubtedly support the proposition for which he contended. But, with all respect, those decisions seem to me to have been based upon a misunderstanding of a passage in the joint judgment of Dixon C.J., Webb, Fullagar and Taylor JJ. in Mummery v. Irvings Pty. Ltd. (1956) 96 CLR 99 , in which their Honours said: "But what is the position where the plaintiff, instead of relying on mere proof of the occurrence, himself adduces evidence of the cause of the accident? It is, of course, beyond doubt that the doctrine of res ipsa loquitur will have no place in the case. This, of course, is precisely the same situation when the explanatory matter is proved by the defendant" (1956) 96 CLR, at p 122 . This passage appears to have been read in some of the later cases as laying down, as a proposition of law, that the mere fact that a plaintiff has led evidence to show how an accident came to occur prevents the application of the rule of commonsense which is expressed by the phrase res ipsa loquitur. But such an interpretation cannot, in my opinion, be supported and it seems to me to be plain enough when regard is had to the last sentence of the passage which refers to a case in which the explanatory matter is "proved" by the defendant that the words "adduces evidence" appearing earlier in the quotation were used in the sense of "proves" or "adduces evidence which is accepted". (at p504)

6. It is, I think, desirable to examine Mummery's Case (1956) 96 CLR 99 in some detail. It was one in which the plaintiff claimed that he had been struck and injured while on the defendant's premises as an invitee. He gave evidence that he had entered the premises in which, he said, a circular saw was being operated by the defendant's foreman and was immediately struck in the eye by a piece of flying wood. The fact that the piece of wood had been thrown out by the circular saw seems not to have been seriously questioned but, in any event, as Gavan Duffy J. said when the case was before the Victorian Full Court (1956) VLR 659 , there was "nothing from which an inference could be drawn that the plaintiff's injuries were caused in any other manner" (1956) VLR, at p 665 and the jury's answer to one of the questions asked of them clearly proceeded upon the basis that the flying piece of wood came from the saw. The plaintiff had put his case in several ways. He claimed that the defendant had failed to observe the duty of care owed by him to an invitee upon his premises and, in the alternative, that he had committed a breach of a provision of the Factories and Shops Act which required that all dangerous parts of the machinery in a factory should be guarded. At no stage before the jury retired did counsel for the plaintiff make any suggestion that the mere happening of the accident pointed to negligence on the part of the defendant and no evidence was called by the latter. After the jury had retired to consider its verdict, counsel for the plaintiff raised the point and asked for certain directions which the trial judge refused to give. A number of questions was asked of and answered by the jury but two of them only need be mentioned. The first was based upon the claim that the defendant had failed to take reasonable care to prevent injury to the plaintiff, as an invitee, from an unusual danger of which the defendant knew or ought to have known and this the jury answered in favour of the defendant. The second question was based upon the allegation that the defendant had failed to comply with the Factories and Shops Act and this raised the question whether the circular saw was a dangerous piece of machinery. The answer was in favour of the plaintiff and this, as it appears to me, necessarily involved a finding that the piece of wood came from the saw. The trial judge was then asked by counsel for the defendant, pursuant to leave reserved to do so, to rule that there was no evidence on which it could be found that there had been a failure to safeguard dangerous machinery. His Honour accepted the submission and entered judgment for the defendant. On a new trial motion made by the plaintiff to the Full Supreme Court, it was argued on his behalf that on the claim in negligence the trial judge should have directed the jury that the fact that the plaintiff had been struck by the piece of flying wood would itself justify them in concluding that the saw had been negligently operated. It was argued further that the fact that the circular saw had thrown out the piece of wood afforded evidence that it was a dangerous machine. As to both points, it was said, res ipsa loquitur. The Full Court, by a majority, dismissed the motion. From that decision the plaintiff appealed to this Court which dealt in the first place with the contention that the fact that the piece of wood was thrown off by the circular saw afforded evidence that it was a dangerous machine. Their Honours rejected this contention. They pointed out that there was no evidence as to the size of the piece of wood which struck the plaintiff or as to the size or characteristics of the saw, nor was there any evidence whether the ejection of a piece of wood of a size and at a speed sufficient to cause the plaintiff's injuries was a usual or unusual happening in the operation of the saw. It could not therefore be said that the mere fact that the piece of wood came from the saw gave rise to an inference that it was a dangerous machine. In any event, as they said, the obligation imposed by the provision in the Factories and Shops Act upon which the plaintiff relied was an obligation to provide a safeguard to prevent the body of the operator from coming into contact with dangerous machinery and not an obligation to provide protection against injury which might indirectly be caused by material thrown out by the machine. The statutory provision therefore could not be availed of by the plaintiff. Their Honours proceeded then to consider the other aspect of the appeal, namely whether there was any evidence of negligence to support the claim based upon the alleged breach by the defendant of the duty owed by it to an invitee. This submission could succeed only if the circumstances were such that negligence might be inferred from the mere occurrence of the accident. Their Honours had no doubt that such an inference would have been open if the evidence called by the plaintiff had "merely established" that upon entering the premises he had been struck by a piece of wood flying through the air. But the further fact had emerged that the wood was thrown from the circular saw and there was nothing to show that this was something that in the ordinary course of events would not have happened unless the operator had been negligent. No inference of negligence could therefore be drawn from the bare fact that the plaintiff had been injured by a piece of wood coming from the circular saw. So far, at least, there is nothing in the judgment to support the proposition upon which the appellant in the present case relied. On the contrary, what was said was that where the facts which resulted in an accident are known - that is to say are proved or admitted - it is on those facts that the issue of negligence must be considered and the case is not one for the application of the phrase res ipsa loquitur. If, however, they are not known - that is to say are not proved or admitted - the mere fact that the accident happened may in certain circumstances afford evidence of negligence. Their Honours passed on to discuss the onus of proof in a case in which the res ipsa loquitur rule applies. After pointing out that there is no room for its application where the defendant calls "credible evidence" which explains the cause of the accident, and by "credible evidence" is clearly meant "evidence which is believed", they added that there is equally no room for its application where the explanatory evidence called by the plaintiff produces "precisely the same situation" as that which is created "when the explanatory matter is proved by the defendant" (1956) 96 CLR, at p 122 . This clearly means that it matters not whether the explanatory evidence is proved by the plaintiff or by the defendant. If it is accepted and the cause of the accident is thus established, the fact that the accident happened no longer speaks for itself. Here again no support is to be found for the proposition urged by the appellant. (at p507)

7. In Priest v. Arcos Enterprises Pty. Ltd. (1964) NSWR 648 , however, it was held that the fact that a plaintiff has given evidence of the cause of a happening which resulted in injury to him prevents him from asking the tribunal of fact, in the event that it does not accept that evidence, to infer negligence from the fact that the happening occurred although that inference is one which would have been open if he had given no explanatory evidence. Herron C.J., with whom the other members of the Court agreed, expressed the view that to allow him to rely upon such an inference would be "opposed not only to the true concept of res ipsa loquitur" but "against the authorities" (1964) NSWR, at p 650 . For this his Honour cited Mummery's Case (1956) 96 CLR 99 and several earlier cases in the Supreme Court, and went on to say: "The situation is that the plaintiff cannot, as it were, have the best of both worlds. He cannot rely upon the rule of res ipsa loquitur and at the same time adduce evidence of the cause of the accident. If he does then the doctrine of res ipsa loquitur will have no place in the case. The res ceases to speak and the jury is to decide the case on the affirmative evidence" (1964) NSWR, at p 651 . With all respect to the learned Chief Justice, I am of opinion that he fell into error in thinking that this was laid down in Mummery's Case (1956) 96 CLR 99 . Nor do the other cases which he mentioned seem to me to lend support to the proposition. These were Turner v. Commissioner for Road Transport and Tramways (1951) 51 SR (NSW) 145; 68 WN 155 ; Hayes v. Griffith District Hospital (1961) SR (NSW) 504; 78 WN 230 ; and Jockel v. Jockel (1963) SR (NSW) 230; 80 WN 261 . In Turner's Case (1951) 51 SR (NSW) 145; 68 WN 155 it was proved that a bus being driven along a public street suddenly swerved to one side and struck an awning erected over the footpath. For the defendant evidence was given that the happening was due to the fact that a boy had run in front of the bus and the driver had swerved to avoid him. The trial judge thought that it was unnecessary to decide whether this had in fact happened. The prima facie case of negligence arising on the plaintiff's case was, he considered, rebutted if the explanation given by the defence might have been true. On appeal it was held that this was not enough. Maxwell J., with whom Dwyer J. agreed, said: "If that explanation for the cause of the swerve is not accepted because the Judge was not satisfied that it was so in fact, the cause of the swerve is completely unexplained. The presumption of negligence is not rebutted" (1951) 51 SR (NSW), at p 150; 68 WN, at p 159 . To the same effect, I think, were the reasons which I gave for holding that the trial judge had fallen into error. That was, of course, a case in which the defendant had offered the evidence as to the cause of the accident but what the Court held was that, unless the driver's explanation was accepted, an inference of negligence arising from the happening of the accident might still be drawn. The position would have been no different if the unacceptable explanation had come from the plaintiff and not from the defendant. In either case, the Court would have been left with an unexplained happening such as would not usually occur unless there had been negligence on the part of the defendant. Hayes v. Griffith District Hospital (1961) SR (NSW) 504; 78 WN 230 , the next authority to which the learned Chief Justice referred, was a case in which the plaintiff was injured when a heavy blind hanging on the outside wall of a hospital ward fell on her. No evidence was offered by either party to explain why it fell and the sole question was whether the mere fact that it did fall afforded evidence of negligence on the part of the hospital authorities. It was held, by a majority of the Court, that it did and the decision seems to me, with respect, to have had no bearing upon the question with which the Court was concerned in Priest's Case (1964) NSWR 648 . Finally his Honour referred to Jockel's Case (1963) SR (NSW) 230; 80 WN 261 . There, as Sugerman J. said, the undisputed facts were that the plaintiff was injured when the defendant's car, in which she was a passenger, came down a hill on the wrong side of the road at a speed of 40-50 miles an hour, not on the formed portion of the road but on the dirt shoulder, with the engine "roaring" and the car apparently out of control. It collided with a post on the side of the road, veered across the road and there collided with another car. The evidence for the defendant was that this had occurred because the foot brakes had suddenly and unexpectedly failed and the car had got out of control. The jury found for the defendant. It was not a case which at the trial was claimed to be one in which res ipsa loquitur. The plaintiff's case was that the defendant's car, travelling at a high speed on the wrong side of the road, had struck a post and then another car and each of these allegations was proved or conceded. The only issue in the case was whether or not, as the defendant had said, the brakes had failed and the question with which the Court was concerned was whether the trial judge had correctly directed the jury as to the onus of proof. The case certainly cannot be regarded as laying down, where a plaintiff has led evidence which is not accepted as to the cause of an accident, that an inference of negligence cannot be drawn, in an appropriate case, from the fact that the accident happened. The Court was not directing its mind to such a question. (at p509)

8. In a later case in the Supreme Court of New South Wales, Cafe v. Australian Portland Cement Pty. Ltd. (1965) NSWR 1364 , the Court felt bound to follow Priest's Case (1964) NSWR 648 but Wallace J., while agreeing that Priest's Case (1964) NSWR 648 should be followed, said that he found it difficult to understand "why the plaintiff cannot have the best of two worlds". I have found it impossible to do so. We were referred also to Waddell v. Ware (1957) VR 43 . There a car driven by the defendant, in which the plaintiff was travelling as a passenger, overturned when it skidded as it rounded a bend in the road. The plaintiff's evidence was to the effect that it was travelling at 50-55 miles per hour; that the bend was well banked and that at that speed he, an experienced driver, would have expected it to round the bend without difficulty. He said that he had often driven around the same bend at fifty miles per hour and considered it safe at that speed. He expressed the opinion that the skid was due to loose screenings or gravel on the road. No evidence was given by the defendant. The learned trial judge refused to direct the jury that the mere fact that the car had overturned gave rise to an inference that the defendant had driven it negligently. The Full Court was of opinion that his Honour rightly refused to give the direction, saying, "evidence was given by the plaintiff himself of the circumstances attendant upon the accident and it was then not a case of res ipsa loquitur, but a question for the jury whether, on consideration of all the evidence, including the fact that the car finished off the roadway, the plaintiff had shown, on a balance of probabilities, that the defendant had been negligent" (1957) VR, at p 48 . If by that passage their Honours meant that a plaintiff who has given evidence as to the cause of an accident cannot ask the tribunal of fact to act upon the rule expressed by res ipsa loquitur if it is not prepared to accept the explanation that he has given, I would respectfully disagree. But I do not think that their Honours were saying this. They were considering a submission which had been made on behalf of the plaintiff to the trial judge that "as the plaintiff swore the car had left the road, there was a presumption of negligence on the part of the driver and, since the defendant had given no explanation of the happening, they should return a verdict for the plaintiff". They rightly held that such a direction would have been wrong. The plaintiff had himself given evidence of circumstances surrounding the accident which would have entitled the jury to find that it had happened without negligence on the part of the driver. There was no room for a direction that a verdict should be given for the plaintiff. The whole of the circumstances deposed to by the plaintiff, including the fact that the car had left the road, were, as their Honours rightly said, to be considered in determing whether the driver had failed to exercise reasonable care. (at p510)

9. For these reasons I am of opinion that the appellant's principal submission fails. (at p510)

10. Two further matters were put to us in support of the appeal. The first of them is based upon a passage in the reasons of the learned trial judge in which he said: "In these circumstances I think a clear prima facie case of some negligent act on the part of Fleming has been established. A slight act of negligence on his part in tilting the stack of cases too far outwards with his hand or with the lip of the truck would cause the accident to happen as it did. There may be cause or reason other than his negligence, but I think the circumstances present the res ipsa loquitur situation. Whether this is strictly so or not, I think the circumstances place upon Fleming an onus of presenting an explanation which negatives negligence on his part. I have rejected the only explanation Fleming has given and I think, in the absence of some acceptable explanation from him (the last man to handle the stack of cases before they collapsed), an undischarged onus of proof rests upon him." This, it was submitted, amounted to a reversal of the onus of proof contrary to what was said by Dixon J. (as he then was) in Fitzpatrick v. Walter E. Copper Pty. Ltd. (1935) 54 CLR 200, at pp 218, 219 , which was approved in Mummery's Case (1956) 96 CLR 99 and more recently in Purkess v. Crittenden (1965) 114 CLR 164 . This contention cannot be sustained. I have no doubt that the learned trial judge was using the expression "onus of proof" in what was in Purkess v. Crittenden (1965) 114 CLR 164 called its secondary sense, that is to say as referring to the burden of introducing evidence for the purpose of displacing a prima facie case made by the opposing side. And I would add that it is in this sense that the phrase was used in Mummery's Case (1956) 96 CLR 99 . (at p511)

11. Finally it was submitted that it was unreasonable for his Honour to refuse to accept the evidence of Fleming that the plaintiff had picked up or was picking up the top box when the stack fell. I think it unnecessary to do more than say that the submission cannot be supported. (at p511)

12. I would dismiss the appeal. (at p511)

Orders

Appeal dismissed with costs.