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…

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.

Keep reading for free

Create a free CaseChat account to read Carruthers Bros Pty Ltd v Pennell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1964] HCA 27
Decision Date: 11 May 1964

CaseChat Overview and Summary

Carruthers Bros Pty Ltd (the appellant) and Pennell (the respondent) were parties to litigation concerning a dispute over the respondent's entitlement to a commission. The case was heard in the High Court of Australia.

The central legal issue before the High Court was whether the respondent, a real estate agent, had earned a commission on the sale of a property by the appellant. Specifically, the court had to determine if the respondent had introduced the ultimate purchaser to the vendor in circumstances that entitled him to commission, notwithstanding that the sale was ultimately effected by another agent.

The High Court considered the principles governing the entitlement of a real estate agent to commission. The court affirmed that an agent earns commission if they introduce a purchaser to the vendor who is ready, willing, and able to purchase the property on the vendor's terms. However, the court also noted that if the vendor, after being introduced to a purchaser by the agent, subsequently sells to that purchaser on different terms, the agent may still be entitled to commission if the introduction was the causa causans (the decisive cause) of the sale. In this instance, the court found that the respondent had not established that he was the effective cause of the sale, as the ultimate purchaser was introduced to the vendor by another agent, and the terms of the sale were significantly altered from those initially proposed.

The High Court allowed the appeal, setting aside the judgment of the lower court and ordering that the respondent's claim for commission be dismissed.

Orders