Carruthers Bros Pty Ltd v Pennell

[1964] HCA 27

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

CARRUTHERS BROS. PTY. LTD. v. PENNELL

(1964) 110 CLR 459

11 May 1964

Negligence

Negligence—Contributory negligence—Direction—Qualification on usual direction where defendant master of situation—Conduct of plaintiff and defendant equally open to criticism—No occasion for giving of qualified direction.

Decisions

May 11.
The following written judgments were delivered: -
KITTO J. I need not recount the facts of this case. They are sufficiently stated in the judgments of my brethren, and in those judgments I substantially agree. In Alford v. Magee (1) the "fundamental idea" of the relevant decisions was expressed by saying that in some cases so substantial a difference may be seen between the position of the plaintiff and the position of the defendant that although the accident could not have happened if the plaintiff had not been negligent it would not be fair or reasonable to regard the plaintiff as in any real sense the author of his own harm. In the case now before us the jury was evidently satisfied that the accident was contributed to by negligence of both parties. Bearing in mind the evidence as to the conditions of visibility, I am unable to identify any view as to the defendant's conduct, open on the evidence, which, if taken, might fairly and reasonably have been considered by the jury as furnishing sufficient reason for putting out of account the plaintiff's carelessness for his own safety when they came to decide what negligence was, in a real sense, the cause of his injury. (at p460)

2. I therefore conclude, conformably with the concluding sentence of the Court's reasons in Alford v. Magee (1952) 85 CLR 437 , that the Judge was right in refusing to cumber his directions to the jury with a reference to the qualification upon the general rule as to contributory negligence. (at p460)

3. The appeal should be allowed and the verdict restored. (at p460)

TAYLOR J. I would allow this appeal for the reasons given by Menzies J. and Windeyer and Owen JJ. (at p460)

MENZIES J. This is an appeal by leave from a judgement of the Full Court of the Supreme Court of New South Wales (Herron C.J. and Macfarlan J., Collins J. dissenting) setting aside a verdict for the defendants and ordering the new trial of an action. The action was for damages for negligently driving a motor-car by which the plaintiff respondent was knocked down and injured. The ground for ordering a new trial was the refusal of the learned trial judge to add to his summing up about contributory negligence a direction presumably to the effect that, if the jury should find the plaintiff guilty of contributory negligence, that negligence would not be a defence if the jury should also find that, by taking reasonable care, the defendant could nevertheless have avoided the consequences of the plaintiff's negligence. The request for this direction was made somewhat cryptically as follows: "This is a case for the application of the rule in Alford v. Magee - the last opportunity". (at p461)

2. I agree with the learned trial judge and Collins J. that the evidence in the case afforded no basis for such a direction which, if it were to have been given, would of course have had to be given in precise terms. (at p461)

3. The collision occurred at night in Bridge Road, Glebe, while the plaintiff, a pedestrian, was crossing from east to west and the defendant Carruthers was driving a car in a southerly direction towards Parramatta. The car's headlights were burning on low beam and were visible without obstruction along Bridge Road for at least two hundred yards. Although it is stated in the judgment of the majority that in the case made by the plaintiff the defendant driver could have seen the plaintiff, if he had looked, at least sixty yards back from the point where the impact occurred, I have not found any evidence that this was the case. Their Honours' statement seems to have been based upon the evidence of a witness Bathgate who said he saw the defendant's car quite clearly when it was sixty yards away from him when he was near the place where the collision occurred. There was evidence upon which the jury could decide that the collision was caused by the negligence of the plaintiff and the car driver in that each failed to keep a proper look-out. There was, however, no basis for a conclusion that either of them became aware of the other before a collision was inevitable or that the negligence of either of them ceased, or ceased to be an effective cause of the collision, before that time. If both were found to be negligent there was, I think, nothing to justify the jury in laying the responsibility for the collision upon the defendant alone and accordingly there was no occasion for a direction as to any qualification upon the ordinary direction relating to contributory negligence. (at p462)

4. To deal with the four possibilities mentioned in Alford v. Magee (1952) 85 CLR 437, at p 461 , as possibly justifying absolving the plaintiff from blame, there was no evidence upon which it could be found (i) that the defendant had, and the plaintiff had not, a real opportunity of "avoiding the mischief" (that is, the collision which occurred); (ii) that the defendant's negligence was substantially later in time than the plaintiff's negligence; (iii) that the defendant was "master of the situation" and in choosing to run a risk caused the collision; or (iv) that the defendant was potentially "master of the situation" but unreasonably failed to take advantage of his superior position. The only way in which it could be suggested that the defendant was actually or potentially "master of the situation" was that he was driving a motor-car whereas the plaintiff was a pedestrian, but it would be a mistake to understand Alford v. Magee (1952) 85 CLR 437 as deciding that where a collision occurs between a motorist and a pedestrian it follows that the motorist is actually or potentially "master of the situation". All that is said is: "This position is likely to arise in many cases in which a pedestrian is injured by a motor vehicle" and "It is equally obvious that no rule can be laid down as to cases where a motor car has collided with a pedestrian or a bicycle or a horse-drawn vehicle. But this class of case is just as likely, as the other" (where there is a collision between two modern fast-moving vehicles) "is unlikely, to require that the jury should understand that the general rule as to contributory negligence is subject to an important qualification". Whether that requirement arises in a particular case is a question for the judge and his ruling must depend upon the evidence in the case before him. Moreover, in so ruling, the warnings given in Alford v. Magee (1952) 85 CLR 437 should be observed - viz. that a distinction should not be drawn "on light or trivial or dubious grounds" and "a judge should not put to the jury the qualification on the general rule as to contributory negligence unless he feels himself able to explain clearly to them exactly how the qualification can be fairly and reasonably applied by them to a view of the facts which it is open to them to entertain". Here it was a most material circumstance for the learned trial judge that the collision occurred at night and, from the position where the plaintiff was, the defendant's car lights were clearly visible during the time the car travelled two hundred yards or more. The plaintiff could have seen the defendant's car long before the defendant could have seen him. For every criticism of the defendant that is open there seems to me a countervailing criticism of the plaintiff. I cannot see how in the circumstances of this case it can be said that the defendant was in a better position than the plaintiff to avoid the collision, which is what I think would be the case were he actually or potentially "master of the situation". (at p463)

5. Since the argument in this case I have re-read what I wrote upon this particular subject in Wilson v. Murray (1962) 110 CLR 445 at the bottom of p. 455 and on the following pages and I adhere to it. It appears to me that in many cases where a direction is sought that the defendant may be found liable notwithstanding the plaintiff's contributory negligence, the very basis for the qualification is disregarded - i.e. that there is evidence upon which the jury can reasonably find that the defendant, by reason of a position of advantage over the plaintiff in time or other circumstances, could, by the exercise of reasonable care, have avoided the consequences of the plaintiff's negligence. (at p463)

6. In my opinion this appeal should be allowed. (at p463)

WINDEYER AND OWEN JJ. This is an appeal by leave from an order of the Full Supreme Court of New South Wales (Herron C.J. and Macfarlan J., Collins J. dissenting) setting aside a verdict found by the jury in favour of the present appellants, the defendants in the action, and ordering a new trial. The action was brought by the plaintiff to recover damages for personal injuries sustained by him when he came into collision with a motor car owned by the first-named defendant and being driven by the second-named defendant. The accident occurred soon after 11.15 p.m. on the night of 29th January 1959 in Bridge Road, Glebe, the carriageway of which was about thirty-six feet wide. It was a fine night but the evidence does not seem to disclose the nature or extent of the street lighting although in the majority judgment of the Full Court it was said that the street was "well lit". The plaintiff's case was that he left his house, which fronted Bridge Road, intending to cross to the other side of the street. He said that he looked to his right and to his left before leaving the pavement and saw no traffic approaching. He walked to the centre of the roadway and, he said, again looked to his left, saw no traffic approaching from that direction and proceeded on his way. When he was close to the curb line on the opposite side of the street, he was struck by a car coming from his left-hand side and driven by the second defendant. From the centre line of the road the plaintiff would have had an uninterrupted view along Bridge Road to his left for some hundreds of yards. Some evidence was given that the car was being driven at a fast rate, but it is rightly conceded that when the plaintiff was at the centre of the road and, according to his evidence, looked to his left, its headlights which were on low beam must have been in view. The defendant driver denied that he was driving at an excessive speed. He said that when he saw the plaintiff for the first time he was in front of the car and only about six feet from it and that at that stage it was impossible to avoid the accident. The negligence charged against the defendants was that the car was being driven at an unreasonably high speed and that the driver had failed to keep a proper look-out and these issues were put to the jury by the learned trial judge. In addition to denying negligence, the defendants contended that the plaintiff had himself failed to keep a proper look-out for traffic approaching from his left and had thereby failed to exercise reasonable care for his own safety and this issue of contributory negligence was rightly left to the jury. At the end of the summing up, counsel for the plaintiff asked his Honour to rule that "this is a case for the application of the rule in Alford v. Magee (1952) 85 CLR 437 - the last opportunity" but his Honour refused so to direct. On a motion by the plaintiff for a new trial the majority of the Full Court was of opinion that the direction sought should have been given and the jury told that, if they considered that the car driver had been negligent and that the plaintiff had failed to exercise reasonable care for his own safety, they could nonetheless find a verdict in his favour if they thought that the driver could have avoided the consequences of the plaintiff's negligence by the exercise of reasonable care and had failed to do so. Accordingly their Honours ordered a new trial of the action. Collins J., who dissented, considered that, on the facts of the case, there was no room for the application of this qualification. (at p464)

2. The conclusion to which we have come is that Collins J. was right and that, with all respect to the learned judges who took the opposite view, they fell into error. To adopt some of the phrases used in the judgment of this Court in Alford v. Magee (1952) 85 CLR 437 , there could be no question here of the car driver's negligence being "substantially later in point of time than the plaintiff's negligent conduct". The negligent conduct of each of them continued up to the point of collision. It is equally impossible to say that one rather than the other was "master of the situation" or that one rather than the other "ought to have been master of the situation but unreasonably failed to take advantage of his superior position". Whatever criticisms and arguments may be directed to or based upon the driver's failure to see the plaintiff in time to take avoiding action may be applied with at least equal force to the plaintiff's failure to see the approaching car and take action to avoid the collision. Indeed, at night the headlights of a car may be seen at a far greater distance than that at which a car driver might be expected to see a pedestrian crossing the road and, in circumstances such as here existed, a pedestrian can halt or change his course no less easily than a moving vehicle. (at p465)

3. For these reasons which are, in substance, those given by Collins J. the appeal should be allowed, the order of the Supreme Court set aside and the verdict of the jury restored. (at p465)

Orders

Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the appeal to the Full Court of the Supreme Court be dismissed with costs.