If a passenger travelling by train allows his arm to project through a window beyond the line of the outer wall of the carriage, and is injured by contact with some object whose presence is due to the negligence of the railway servants, the question for the jury to decide, under the heading of contributory negligence, is whether in the given circumstances a man paying ordinary reasonable regard to his own safety would not have had his arm out; the question of contributory negligence is not necessarily to be concluded against the plaintiff by reference solely to the fact that his arm was projecting, or the distance to which it was projecting.

A passenger, seated next to an open window in a train, was struck a violent blow on his arm while a goods train was passing in the opposite direction. In an action for damages for negligence brought against the Commissioner for Railways of New South Wales, the trial judge summed up in a manner which in the view of Rich, Dixon and Evatt JJ. conveyed that the question of contributory negligence should be decided against the plaintiff if the plaintiff's elbow was projecting more than one or two inches from the edge of the carriage in which he was travelling and did not explain the considerations upon which the

60 CLR 306

question whether projecting the elbow amounted to contributory negligence should be decided, but which in the opinion of Latham C.J. and Starke J. amounted to a proper and adequate direction upon the question of contributory negligence.

Held, therefore, by Rich, Dixon and Evatt JJ. (Latham C.J. and Starke J. dissenting), that a new trial should be granted. (N.S.W.).

Decision of the Supreme Court of New South Wales (Full Court) reversed.

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court of New South Wales, William Edward Roeder claimed from the Commissioner for Railways of New South Wales the sum of £2,000 as damages for injuries sustained by the plaintiff whilst being carried as a passenger for reward in a carriage and on a railroad under the management and control of the defendant.

The accident out of which the claim arose occurred on an electric railway train which the plaintiff boarded at Hurstville, at about 9.40 o'clock p.m. on 3rd April 1936, to travel to Oatley. The plain- tiff was the holder of a workman's periodical ticket which entitled him to travel at all times. The train consisted of four carriages. Each carriage was comprised of three compartments, that is, one large compartment in the centre and a small compartment at each end of the carriage. The plaintiff was seated in the centre compart- ment of the last carriage and faced the way the train was going. He was seated next to an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Briginshaw v Briginshaw

Details

AGLC: Briginshaw v Briginshaw [1938] HCA 36
Case: [1938] HCA 36
Decision Date: 27 July 1938

CaseChat Overview and Summary

The appellant, William Edward Roeder, brought an action against the respondent, the Commissioner for Railways (New South Wales), seeking damages for personal injuries sustained while travelling as a passenger on a railway train. Roeder's arm was struck and fractured by an object as a goods train passed his carriage. The core of the dispute concerned whether the Commissioner was negligent and, if so, whether Roeder's own conduct in protruding his elbow from the train window constituted contributory negligence that barred his recovery. The case reached the High Court of Australia on appeal from the Supreme Court of New South Wales, which had dismissed Roeder's motion for a new trial.

The legal issues before the High Court were primarily concerned with the adequacy and accuracy of the trial judge's directions to the jury on the issue of contributory negligence. Specifically, the court had to determine whether the judge's summation adequately conveyed to the jury the principles governing contributory negligence in the context of a passenger projecting an arm from a moving train. This involved considering whether the judge's emphasis on the distance the elbow protruded, and the phrasing that the accident "could not have happened but for the plaintiff's own negligence," accurately reflected the legal standard and the jury's role in assessing all relevant circumstances.

A majority of the High Court, comprising Rich, Dixon, and Evatt JJ., held that the trial judge's directions were misleading and that a new trial should be granted. Their reasoning was that the judge's summation, particularly the emphasis on the plaintiff's arm protruding and the statement that if the accident "could not have happened but for the plaintiff's own negligence" the defendant would succeed, unduly narrowed the jury's focus. The majority considered that the question of contributory negligence required a broader assessment of all circumstances, including the defendant's duty of care and the common habits of passengers, rather than a simple determination based solely on the fact of protrusion. They relied on the principle that contributory negligence does not necessarily bar recovery if the defendant, despite the plaintiff's negligence, could have avoided the consequences of that negligence, or if the plaintiff's negligence was not the sole or effective cause of the accident. Latham C.J. and Starke J. dissented, finding the directions to be proper and adequate.

Consequently, by a majority decision, the High Court allowed the appeal, set aside the verdict for the defendant, and ordered a new trial. The appeal was allowed without costs due to the appellant having brought the appeal in forma pauperis.

Orders