Collins v R

[1980] FCA 82

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

8’ GENERAL DIVISION

No. NTG 21 of 1979	ON APPEAL FROM THE SUPREME
COURT OF T U NOR THERN
m I T O R Y OF AU
-. ST2AL IA
No. 274 of 1977
Between -

DANIEL NOEL JACKSON

Appellant

- and -

NEIL WINDAHL

Respondent

CORAM: Toohey, McGregor and Sheppard JJ.

JUDGMENT

This is an appeal from a Judgment of the Supreme Court

of the Northern Territory awardlng the appellant the sum o f

$23,473.64 damages for personal 1nJuries sustalned 1x1 a road

accident.

The appellant challenges the Judgment In two respects.

He contends that the learned trial judge was In error In

holding that he was guilty of contributory negligence. He

also challenges the award of general damages. Initially

the appellant confined his argument to the proposltion that

a sum of $11,000 for what might broadly be d scribed as

non-economic loss, fo rming pa r t of g e n e r a l damages of

$28,200 was man i fe s t ly i nadequa te . Pa r t way through

t h e h e a r i n g c o u n s e l s a i d t h a t h e i n t e n d e d t o a t t a c k , a s

well, t h e award of $15,000 for economlc loss.

On 26 September 1971 t h e a p p e l l a n t was r l d i n g h l s

motor cyc le , a l i g h t powered Yamaha, eas t a long Wel ls

S t r ee t , Ludmi l l a . The a c c i d e n t o c c u r r e d a t h e I n t e r -

section of Wells St ree t wl th Lovegrove S t ree t . Lovegrove

S t r e e t was on t h e a p p e l l a n t ' s l e f t , it l e a d l n g away f rom

W e l l s S t r e e t i n a n o r t h e r l y d l r e c t i o n t h u s f o r m l n g a IST"

i n t e r s e c t i o n w l t h W e l l s S t r e e t . The e v i d e n c e e s t a b l l s h e s

t h a t t h e r e s p o n d e n t , who had been t rave l l ing wes t In Wells

S t r e e t , i n t e n d e d t o make a r i g h t hand turn in to Lovegrove

S t r e e t . The i n t e r s e c t i o n is a dangerous one. I t 1s

made dangerous by t h e e x i s t e n c e o f a c r e s t i n Wells S t r e e t

15 metres t o the wes t o f t h e j u n c t i o n of t h a t s t r e e t w l t h

Lovegrove S t ree t . To the r i d e r of a m o t o r c y c l e t r a v e l l i n g

e a s t , a s was t h e a p p e l l a n t , t h e r e 1 s no view of the

I n t e r s e c t i o n , or f o r t h a t m a t t e r o f t h e r o a d a h e a d , u n t i l

t h e c r e s t i s surmounted. To t h e d r i v e r o f a motor

v e h i c l e t r a v e l l i n g w e s t a n d i n t e n d i n g t o t u r n r l g h t i n t o

Lovegrove S t r ee t , a s was t h e r e s p o n d e n t , t h e r e 1s no vlew

o f t r a f f i c coming I n t h e o p p o s i t e d i r e c t i o n u n t i l t h a t

t r a f f i c r e a c h e s t h e c r e s t o n l y 15 metres away.

Thus g r e a t c a u t l o n is r e q u i r e d b o t h of t r a f f i c

t r a v e l l i n g e a s t and west bound t r a f f i c i n t e n d i n g t o t u r n

2.

right into Lovegrove Street. In a sense greater cautlon

might be thought t o be called for from traffic travelllng

west and intending t o turn into Lovegrove Street because

of the obligatlon which such traffic has to give way to

traffic emerglng over the crest. Rut substantlal cautlon

1s also required on the part of trafflc travelling east

because to turning traffic the road might appear to be

clear and a turn commenced,yet the drlver of the turnlng

vehicle when partway through his turn might flnd trafflc

bearing down upon hlm.

The evldence establlshed that the respondent falled

to make the turn lnto Lovegrove Street wlth due care.

Hls Honour found negligence on hls part; no challenee 1s

made to that finding. Amongst a multiplicity of acts of

negligence that which was the most helnous was the respondent's

travelling on his incorrect side of the road as he approached

the intersection. To the appellant as he came over the

crest the respondent presented his vehicle as one proceedlng

in the opposite direction on the lncorrect slde of the road. There can be no questlon but that that was the sltuatlon with which the appellant was confronted. His evldcnce was

plainly to that effect. He was not shaken ln hls cross-

examination. The respondent was not called to glve

evldence. No explanation for hls absence from the wltness

box was offered. There was no othpr evldence or: the polnt.

We refer to Jones v. Dunkel 101 C . L . R . 298.

3.

The respondent's gross negligence In drlvlng on hls

incorrect side of the road was compounded by the fact that

he did not disclose his intention to turn right into

Lovegrove Street by any turning slgnal. That was the

appellant's plain and uncontradicted evidence.

The appellant's account of what he did In an endeavour

to cope with the emergency with whlch he was faced emerges

In a rather confused way from the transcript. nut In

essence It seems that he decided that to apply hls brakes

hard would have led to a head-on collislon and that to g

to his rlght would probably have taken h m under the car.

Wlth a gap of about 4 feet or 5 feet between the car and

the northern kerb of Wells Street, the appellant touched

hls brakes and trled to negotlate the gap. He failed, no

doubt because, a s he tried to pass to the left of the car,

It began to turn to its rlght lnto Lovegrove Street. The

motor cycle struck the car on the nearside front guard

just behind the headlight.

When police officer Crowell arrived shortly afterwards,

the front of the car was in Lovegrove Street, on Its

incorrect side and about seven feet lnto that street. The

motor cycle was in Wells Street, Just east of the Inter-

section and just off the road. The polnt of impact,

ascertained from the position of debris, paint nd dirt on

the road, was on the north side of Wells Street, close to

the eastern edge of the Intersection.

Constable Crowell interviewed the respondent a the

4.

scene . I t a p p e a r s t h a t h e d l d n o t a t o n c e s p e a k t o t h e

a p p e l l a n t who presumably was in shock, but he must have

spoken t o hlm a t some time because his w r i t t e n r e p o r t of

22 October 1971 r e f e r s t o s t a t e m e n t s made by b o t h d r l v e r s .

The respondent said he J u s t d i d n o t s e e t h e a p p e l l a n t and

t h a t he was t u r n i n g r i g h t when the acc ident happened . He

d i d n o t c l a i m t o h a v e g l v e n a n y w a r n l n g o f i n t e n t l o n t o

t u r n o u t o f W e l l s S t r e e t .

I t was n o t p u t t o him t h a t h e was on the wrong s l d e

o f t h e r o a d b u t t h e a p p e l l a n t d o e s n o t seem t o h a v e s a i d

t h i s a t t h e t i m e . A c c o r d i n g t o t h e p o l i c e o f f i c e r ' s b r i e f

n o t e s , t h e a p p e l l a n t s a i d t h a t a s t h e c a r was approachlng

t h e c r e s t i t t u r n e d r i g h t i n f ron t o f t he moto r cyc le

w l t h o u t a n y p r i o r i n d i c a t i o n o f i n t e n t i o n t o do so.

As h a s b e e n s a i d t h e e v i d e n c e p l a i n l y e s t a b l i s h e d t h a t

when t h e a p p e l l a n t came o v e r t h e c r e s t he was confronted

w i t h t h e r e s p o n d e n t ' s v e h i c l e w h l c h was proceedlng towards

hlm on i t s i n c o r r e c t s i d e o f t h e r o a d . A t t h a t p o m t of

t i m e t h e r e was no i n d i c a t i o n t h a t it in t ended t o t u r r , . The

a p p e l l a n t was t h u s f a c e d w l t h a c r l s l s r e q u l r l n g lrnmedlate

a c t i o n . He d e c i d e d t o a t t e m p t t o p a s s t h e v e h l c l e on h l s

l e f t hand s i d e b u t f a i l e d b e c a u s e by the t ime of the lmpact

i t had commenced t o make i t s t u r n . Some c r i t i c i s m was

made o f t h e a p p e l l a n t f o r n o t a t t e m p t l n g t o p a s s t h e v e h l c l e

on h i s r i g h t hand side. But i f t h e r e were no more, t h a t

c i rcumstance could not found cont r lbu tory negl igence because

5.

the appellant was guilty Of no more than an error of

Judgment, in the emergency in whlch he found himself,

In going to hls left rather than to his rlght. In the

instant he had to make a decislon the respondent's

vehlcle did not present itself as one which was about

to turn. Rather it was a vehicle proceedlng townrds

the appellant on Its incorrect slde of the road.

The more fundamental criticism of the appellant's

conduct made both by the respondent and by his Honour in

his judgment was that the appellant must have been

travelling at a speed of more than the 25 to 30 miles per

hour to which he deposed. Such a speed was said to be

excessive by reason of the fact that he appellant had no

view of the road ahead until he surmounted the crest. The

respondent also said that even if the appellant's speed

was 30 miles per hour, it was excessive in the clrcumstances

His Honour's flndings, being based upon an Inference

from accepted facts, are open to revlew by thls Court whlch

may, if it conslders it proper, draw different lnferences

If they ought to be drawn.

In our view there was nothing Inherently lmprobable

In the appellant's evidence that he was travellmg at

25/30 miles per hour. His cycle was not hlgh powered and

he had had to ascend a not unsubstantial lncline to reach

the crest. The appellant was under an obligation to take

care as he came over the crest of the hill, but he ought

6 .

not to have been expected to drive at such a speed as to

be able to avoid a vehicle coming towards him on its

wrong side of the road. In our oplnion, a speed of 30

miles per hour was not excessive in the circumstances.

His Honour should not have inferred that the appellant

was travelling in excess of it. Really, there 1s little

or no evldence to support such an inference. And the

appellant's uncontradicted evidence is to tne contrary.

In our opinion the lnference whlch should be drawn 1s that

the appellant, travelling at a not unreasonable speed In

all the clrcumstances judged, wisely o r not, but certainly

excusably, that the best course m the emergency was to

pass the respondent's vehicle in the space at the left

remaining to him; and that his manceuvre failed not because of

excessive speed on his part but because, after he flrst observed

the respondent's car, it also turned in that directlon, s o -

narrowing the space as to cut off the escape route.

The remalning criticism of the appellant was that he

failed to keep a proper look out. In our vlew there was

no evidence o r matter of inference to support such a flnding.

He saw the respondent's vehicle as soon as he came over the

crest. There was no evideme to suggest that he should

have o r could have seen it earlier.

Contributory negligence 1s not a treach of duty t o

another (Pennlngton v. Norris (1956) 96 C.L.R. 10). It

is a failure to have sufficient regard for one's safety.

7.

In our view, the appellant was not shown so to have falled;

he was placed In an impoasible position by the respondent's

driving towards him on the incorrect side of the road and

his sudden turn right. In our opinlon the finding of

contributory negligence was not Justified. The	appellantfs
damages ought not o have been reduced.

We turn to the questlon of damages. The total amount

of damages which the learned trlal Zudge found was	$25,342.05
made up as follows:

damages Special 1,142.05

Loss of wages to Aprll 1972 1,700.00

Cost of speclal shoes and possible future medical expenses	500.00
Damages €or future economic

loss 15,000.00

General damages for pain and

suffering, the effects of

the injury and loss of

amenities of life 11,000.00

The appellant challenged the adequacy of the amounts

awarded both for future economic l o s s and general damages.

It will be useful first to mention somethlng of the

appellantls hlstory. He was born on 25 May 1951 and

attended school untll approximately the age of 16 yeers

completing, It seems, Grade 10 o r , as It 1 s described in

evidence, "the Junior Certificatet' In Uueensland. up 1.c

the time of trlal, he had acquired no other educatloxal

qualifications. He had had vilrlous Jobs after leavlrl;:

school including worklng a s a clerk, storeman, stockman

8.

and labourer . This work had been done In var lous par ts

of Queensland, i n New South Wales and i n Darwln.

A a s a postman i n Darwin. t t h e t i m e h e r e c e i v e d h i s i n j u r i e s h e was working

The i n j u r i e s r e c e i v e d by t h e a p p e l l a n t were seve re .

They lnc luded a head in ju ry invo lv ing a l a c e r a t i o n t o t h e

back of the sca lp , a compound f r a c t u r e o f t h e r l g h t femur,

a n d l a c e r a t i o n s of t h e r i g h t l e g . Hls t r ea tmen t I n

h o s p l t a l and otherwise is s e t o u t i n t h e r e p o r t of Dr. Gray

who a l s o was c a l l e d t o g i v e e v i d e n c e . He was ob l l sed t o

remaln l n h o s p i t a l f o r some f i v e months durlng whlch perJod

he was I n t r a c t l o n f o r a p p r o x i m a t e l y 43 months. He was n o t

a b l e t o wa lk wl thou t c ru t ches un t l l abou t 12 months a f t e r

t h e I n j u r y . In Apr l l 1972 a bone fragment was removed by

o p e r a t i o n from h l s r l g h t h i g h . T h e r e a f t e r t r e a t m e n t

i n c l u d e d p h y s i o t h e r a p y t o t h e r l g h t l l m b 1 n c l u d i r . g t h i g h ,

knee and ankle. The two l a s t ment ioned Jolnts bad become

stiff a f t e r t h e p r o l o n g e d i m m o b l l i z a t l o n . The medical

ev idence is t h a t t h e a p p e l l a n t w i l l s u f f e r o s t e o a r t h r l t l s

i n bo th jo in t s soone r than o the rwlse would have been the case.

The f i n d l n g s a s t o his r e s l d u a l d l s a b l l i t i e s w e r e n o t

t h e s u b j e c t o f cha l l enge be fo re u s . They a r e summed U:> by

t h e l e a r n e d t r l a l Judge i n t h i s way:

l e g 1s s h o r t e r t n a n

11 The p l a i n t l f f l s r l g h t

h i s l e f t b u t he has n o t accepted medical advice

t o wear a s p e c l a l s h o e t o m i t l g a t e t h i s t o a c e r t r . l n

e x t e n t . He walks with a marked l l m p and t h e s h o r t n e s s

of h i s l eg has caused a p e l v i c tllt. His l eg f e e ? ?

t i r e d and aches l f he walks a l o n g d l s t a n c e o r s t a n d s

on it f o r too long and he a150 h a s Lnln In h l s r ~ g h t

5 .

" h i p a r e a and upper rll-:ht t h i g h . The p l a i n t l f f

cannot bend h i s r i g h t k n e e f u l l y , t h e r e b e i n g

a 20% l o s s o f f l e x i o n a n d h i s r i g h t a n k l e move-

ment i s somet imes r e s t r i c t ed and the ank le t ends

t o tilt.''

F o l l o w i n g t h e a c c i d e n t t h e a p p e l l a n t was o f f work f o r

30 weeks. A t t h e time he was a temporary postman earning

about $63 a week. The l e a r n e d t r i a l j u d g e a l l o w e d $1,700

f o r loss of wages and t h e r e is no compla in t about tha t .

Indeed, upon t h e b a s i s o f some c a l c u l a t l o n s done by coucse l

du r ing the a rgumen t , t he amount may be somewhat t o o h l g b .

But it 1s t h e sum of $15,000 awarded f o r economlc l o s s

s u f f e r e d a f t e r t h e c o n c l u s i o n o f t h e p e r i o d of 30 weeks

t h a t t h e a p p e l l a n t was o f f work t h a t 1 s s a l d t o be 7Ian l fes t ly

t o o low. The a p p e l l a n t d i d n o t r e t u r n t o h l s prc - inJu ry work.

I t 1s common ground t h a t h e was co t t he r . f i t and IS L o t now

f l t t o do t h e work of a postman. Instead he obtained

employment a s a bookmaker 's c lerk, employment whlch he has

had ever s l n c e .

I t 1 s t o be o b s e r v e d t h a t t h e r e was a s u b s t a n t i a l d e l a y

I n b r ing ing t he p roceed ings . The a p p e l l a n t commenced wcrk

a s a bookmaker 's clerk i n 1972. Hls damages were n o t

a s s e s s e d u n t l l 2 1 September 1979. Tbe f lKure o f T i 5 , C l K l

1s ln tended to compensa te the appel lan t for h l s d l n l r l i s q e d

e a r n i n g c a p a c l t y f o r t he seven yea r s up t o t h e d a t e of

t r l a l and t h e r e a f t e r . A t t h e t m e of t r l a l t h e a p p e l l m t

was 28 y e a r s of age.

An mxplanatlon for what a t i l r s t s l g h t seens r? ro t r , e r

meagre sum 1s t h e f i n d l n g by h l s Ycnour =n3t th? ~ppe1la: : t .

10.

was an unambitlous young man content o drlft alon,; a s

a bookmaker's clerk wlthout attemptlng to find better

pald work wlthln hls capacity. Tn thls respect therc

can be no question but that, notwithstandlng that hls

lnJuries have rendered him unfit for a variety o f

occupations,he has left to him a not lnsubstantlal earnlng

capaclty. Counsel for the appellant submltted that h l S Honour@s vlew of the appellant was unfair. He sald that

hls remalnlng a bookmaker's clerk was not the result cjf

lack of ambitlon or drive, but a sens~ble course havm;;

regard to the dlfflculty the appellant mi[:ht t.ave o o t - 1 1 n -

lng alternatlve employment partlcularly lr? r?arw:n .+,here ? E

wishes to remaln. If the appellant were to flnd arother

Job, glve up hls employment as a bookvaker's clerk z?d fitxi

that the new Job was not withln h l s capaclty or that te dld

not suit hls enployer It would Ge unllkely that he WCII:~-C be

able to get hls old Job back wlth the result th::t nc .;IlErt

well be unemployed. Counsel referred us to ?,hp ::::pelikn t f s

evldence whlch was along these llnes and alsc to ev~o~rlcc

g~ven by an offlcer from the Commonwealth Employment Ser;-~ce

who deposed to the dlfflculty a person witk alssblllt~ee

such as the appellant would have In obtaining employment.

Ne thlnk that there 1s f o r c e lr tr 0 1 subm2ss:ons w.13cn

were made to us. On the other hand , t c s Honour k.3~ thct

opportunity to observe the appellant An the .rrltrlcL:. ;-ox. 21s

lmpresslon of t'r.e appellant 1 s state,; l n thr. f l ; ,d .ng +h:!.

-~

he made d r d we do not Chink that th 2 t flrlci-ny C:II :,~!IIJ,!-, ne

pu t a s ide . Fu r the rmore , t he re a r e o t n e r ma t t c r s whlcl:

must be taken Into account .

F l r s t l y , h i s Honour 's assessment was m a c b e f o r e t h e

Hlgh Court overruled I ts d e c i s i o n I n A t l a s T i l e s L l m l t e d

v. B r i e r s 52 A.L.J.R. 707; see Cu l l en v . Trappe l l (1 May

1980 - a s y e t u n r e p o r t e d ) . Such amount a s was lnc luded

I n t h e sum of $15,000 f o r f u t u r e economlc l o s s ( t h a t I S l o s s

of e a r n i n g c a p a c l t y a f t e r t h e d a t e o f t r i a l ) o u d h t , a 5 t%lngs

now s t a n d , b e a r r i v e d a t a f t e r t h e taf.inC; Into accollnr d f

lncome tax. As t he l aw s tood when ! u s Fon,2cr oel lvered

Judgment he was o b l l g e d t o d e a l I n g r o s s f l g u r e s .

Secondly, and more Impor t an t ly , t he ev ldence a l sc lo , ; e s

t h a t t h e c a s e 1 s more d l f f l c u l t t o q m n t l f y t h a n other5

where c l a i m a n t s h a v e h a d , p r i m t o i n J u r y , c c n t i c u o u s and

s t e a d y employment. The a p p e l l a n t had only beer. a ~bnt ; . ' an

f o r 10 d a y s p r i o r t o h i s b e i n g I n J u r e d . F r i q r t o %.:at

employment he had had, as has been mentioned, a cumber of

Jobs of the labouring type I n a v a r i e t y of y lace- . %L 5

evldence was t h a t h l s intention was t o remaln a 7gstlran Tor

two y e a r s . T h e r e a f t e r h l s p l a n s w e r e $0 l eave Lxrwlz and

t o t r ave l abou t Aus t r a l i a and pe rhaps overseas, . A J ~ L L S G kere

a n d t h e r e a s he d l d so. He t h o u g h t t h a t h e woula event~olly

have r e tu rned to Darwln t o s e t t l e , b,dt, t n l c was r ~ o k ccrt-:-lr'.

That beln,: th.e evidence one could not ? : I ~ . P . I S J L,L::I'L: I;! '

p o l n t t h e n e t e a r n l n g s	of	a	Postman	a t v::rious	rlrltts	L L I w e n
a postmarl t o r two years .

t h e r e a f t e r \*.:.m he was n o t

n o t a s ;:rea'. a s those 0 ' d

12.

A f l n a l m a t t e r t o be I n e r t toned 1s t b a t h ' le~r t h e

a p p e l l a n t commenced work a s a bookmarkerls c1ei-K . ? f t e r

h l s r ecove ry , h i s ea rn ings were then somewhat n igher

t han t hose of a postman. They have s lnce f a l l en we l l

behlnd.

Havlng re f lec ted on the mat te r , we a r e rloL persuadcd

a f t e r t a k l n g a l l r e l e v a n t c o n s i d e r a t i o n s i n t c ; ,AcCouct

t h a t t h e amount awarded f o r economlc loss was rranlfe-, t ly

low. We a r e n o t d l s p o s e d t o d i s t u r b t b a t ? a r t 3f t h e

award. We would say, however , that he award cod ld r o t

b e d e s c r l b e d a s more than modest ?kat . w i l l 3c :I re2evar.t

m a t t e r t o whlch t o have recar6 -her- we ~ 9 % - T.? r:?.c25c wp,-s

the outcome o f the appea l on darna,Tec, s%ula !?E.

We h a v e a l r e a d y r e f e r r e d t o t h e apnel;nr. t , ls res;dI,:=:

disabilities. T h e i r e f f e c t or: h l s s o r l d l :lie ?.r!d g c n e r k l

s t anda rd o f l i v i n g was desc r lbed bq t h p Lcarrlcd i r ~ a l ,JL>:!;;~

I n t h e s e terms:

If The p l a l n t l f f 1s ? lo t a b l e t o run c: t o ,w71n Cas:,.

prior t o t h e a c c i d e n t h e wr?s ar, act l \ .e c ;yr?zn- , ; .

He was a promlsing rugby l e ? p e p l a y c r a x ! r,;.ot,.dl-ly

would have played In A Grade lr, t h e yeGr l i t o r ' b e

a c c l d e n t . He was also a s u c c e s s f u l t a b l c tr:nn,;

p l a y e r . He played squash and w3ter s k i e n . Tic c;?nr:ot

c a r r y on any of t h e s e s p o r t s now e x c e p t t h z t k e does

p l ay a l i t t l e social t a b l e t e m l s . ComFet1t:ve t a k l r

t e n n l s a t which he had been -1:ccessful 1 5 now "*.;;and

him. F r l o r to t h e a c c l d e n t t h e p l a l n t l f f was = ,Clt

younE sportsman and he 1 s r.r3 Io,nger.f1

The l n J u r l e s s u f f e r e d by tt-e a p p e l l a n t were :,e3verc artc

have l e f t the a p p e l l a n t w l t h a n o t ~ ~ r d b ~ t a n t l a : dc;:re: 1 2

l n c a p a c l t y . PIS. Honour tnou+;ht, ar.1 W ?Free, 1.: r;t t ; ! l s

c o n d l t i o n of h i s l e g would be 1n:Frovea W w e r ~ t , ~ &:t;-r

b u l l t up shoe. I t would a l s o t a k e awc~y much o < h:' p+!.v~c

tllt and, w l t h It, pa ln he s u f f e r s l n h i s low back. Ne

a g r e e w i t h h l s Honour t h a t h i s f a l l u r e t o wear a b u l l t up

shoe and the consequences tha t f o l l o w from t h a t f a l l u r e

o u g h t n o t t o be v l s i t e d upon the respondent . nu t so much

h a v l n g b e e n s a i d , t h e f a c t r e m a l n s t h a t t h e a p p ~ l l a n t e t

t he age of 19 was se r lous ly 1nJu red . The efffsct.: of t n a t

l n J u r y w l l l be wlth hlm f o r the remnlncer o f ',.ld 1:f.c. 'de

cannot regard the sum of $11,000 awarded f o r , y m e r a l de.r.?j,-es

a s a s u f f l c i e n t award. In rezchln.5 o u r c o n c l ~ s 1 ~ ~ W E n3ve

t a k e n l n t o c o n s l d e r a t l o n a m a t t e r e x p r e s s l y 1 c f t a u t o f

account by h l s Honour. That mat te r W'S pernlnncn: sc '? r r~n , :

s u f f e r e d by the appe113nt or. EIS ne?(! 2<.?: L,:. mi- ,,.c' rc ' rrJ n:

is described, a l though no t I n d e t s l i , 11' t n . w d ~ c s i ev- i lwce.

I t was omltted from cons1deraz:or: by h.: H C - C U J ~ 'ZCC'ILIS: !;h?

a p p e l l a n t c l d not complaln oi' :car: t2 n m . ;-c canTot

t h l n k t h a t t h a t was a c o r r e r t c o u r s e f o r h i s ' - , - I I~?W t o fr ,?lcw.

We should mention d submlsslor, made 9y tilt. ~-e::~or~~!e;,:, 1 - r ~ ; ~

the evldf .nce d l d no t establish t h a t t h t . s c a r s w r t . c:.:..' ,,j

by t h e accident. T h a t ~ ~ ~ b m i z s l o n 1-5 rczec ten .

Altnougtl 'we h a v e t a k e n t h e s c l r r i n ; l n t o ac! S m t , -de

have not been able by reason o f t h e -:er!l:rallzy G J rc..',:c~I

evidence arc! t h e a b s e n c e o f e v l d e x e fmn; the ? ~ I . ~ ! J ^ I ? - - , 1.7

g i v e I t any s ~ b s t a r t i a l pl:lce I n t b r a w p i v r . ~ c n :I. J "1.

sbould nave	w r n made.	Our	pr lnc i7 ,11 rec :Gn	1 :.I-	c,.;r.,>: ::<L,-,	.
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.4.

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