July 5. The following written judgments were delivered:- DIXON C.J. The questions upon which this appeal depends are the admissibility of some opinion evidence in reference to the causes of a collision on the highway between two motor vehicles, and, if the evidence be inadmissible, the consequences upon the validity of the verdict of erroneously admitting it. (at p489)
2. The accident upon the highway occurred on 8th September, 1955. It was in broad daylight but on a drizzly day at a place called Piles Creek some miles south of Gosford on the Pacific Highway. Ryan, who is the plaintiff-respondent, was driving a panel-van northwards. Clark, the defendant-appellant, was driving a semi-trailer southwards. It was an articulated vehicle about six tons in weight unladen and forty-five feet in length. The prime-mover ran on two wheels at the front and two double wheels at the back and the trailer on two double wheels at the back. As the two vehicles approached the respective speeds as estimated in the evidence were thirty to thirty-five miles per hour for the semi-trailer and thirty miles per hour for the panel-van. At a bend in the road involving a left-hand swing for the semi-trailer and a right-hand movement for the panel-van, as they were nearing one another the semi-trailer "jack-knifed"; that is to say, instead of following the prime-mover round the bend in an apparent curve, it and the prime-mover took the form of a half-open clasp knife, the right-hand corner of the tray of the semi-trailer coming across the centre of the road well upon the wrong side of the road. Ryan in his panel-van in an attempt to avoid it ran off the bitumen into the channelling on his left; but the right-hand side of his van hit the right-hand corner of the semi-trailer and he was seriously injured. The plaintiff's case was that having regard to the nature of the defendant's vehicle, the wet roadway and the approach of the plaintiff's van, the defendant attempted to turn round the bend at an excessive speed. The defendant's case was that there had been a film of dust on the road surface at that place which became in consequence very slippery, once it was wet with the rain, causing him to go into a skid and that his speed was not excessive. The jury found for the plaintiff and the Supreme Court dismissed an application for a new trial by the defendant. From the order dismissing his application the defendant now appeals as of right to this Court. (at p490)
3. In the course of his charge to the jury Maguire J. before whom the action was tried, referred to the evidence given by a Mr. Foster Joy who was called on behalf of the plaintiff as an expert witness. His Honour…
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.
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Details
AGLC
Clark v Ryan [1960] HCA 42
Case
[1960] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between Clark and Ryan concerning the interpretation of a will. The primary issue before the Court was whether a specific bequest of shares in a company, which had undergone a capital reconstruction prior to the testator's death, should be construed as referring to the shares as they existed at the time of the will's execution or as they were constituted after the reconstruction.
The Court was required to determine the testator's intention regarding the subject matter of the bequest in light of the company's altered share structure. Specifically, the legal question was whether the bequest of "100 shares in the capital of the company" lapsed due to the original shares ceasing to exist, or if it should be interpreted as a gift of the new shares that replaced them following the capital reconstruction.
The majority of the High Court held that the bequest should be interpreted as referring to the shares as they existed at the time of the testator's death, not as they were constituted when the will was made. The Court reasoned that the testator's intention was to dispose of their interest in the company, and the capital reconstruction was a mere alteration in the form of that interest, not a fundamental change to its substance. Therefore, the bequest was not adeemed and was effective to pass the new shares to the beneficiary.