Negligence-Res ipsa loquitur-Plaintiff standing by motor car in roud--Van driven
by defendant getting out of control-Injury to plaintiff.
The plaintiff was standing beside his motor car on a road when he was MELBOURNE,
struck by a motor van driven by the defendant which was approaching from May 29:
the opposite direction. The plaintiff's car was drawn up near the side of the June 1,2;
van was about fifteen yards from the plaintiff the front off-side tyre and the rim of the wheel came off and there were marks on the road made by the wheel for about ten yards from the place where the plaintiff stood. Evidence was given for the defendant that he was travelling at about fifteen miles an hour on his correct side of the road and when he was seven or eight feet from the plaintiff the van suddenly swerved to the right and would not answer to the steering wheel; the defendant applied his brakes, but did not sound his horn. The van, after hitting the plaintiff and his car, ran through a fence on the that the steering arm of the van was broken, the front off-side tyre was inflated, and some of the bolts and clamps which fastened the rim to the wheel were bent back towards the centre of the wheel. The trial judge directed the jury that the plaintiff must satisfy it that the defendant had failed to do what a reasonable and prudent driver would have done in the circumstances, and that a reasonable person would see that his vehicle was roadworthy and properly equipped: the " main issue" was whether the van was negligently driven, and " if you think the defendant was negligent either in not applying his
brakes or by not calling out then the plaintiff is entitled to damages. The jury returned a verdict for the plaintiff. On appeal from a refusal to grant new trial the Supreme Court of Victoria directed that a new trial be had. On appeal to the High Court, Starke and Diron JJ. were of opinion that the decision of the Supreme Court should not be disturbed Evatt and McTiernan JJ. were of opinion that the verdict of the jury should stand. The court being equally divided, the decision of the Supreme Court was affirmed.
Per Starke J.: - The mere occurrence of an accident on a highway raises no presumption of negligence. It may happen from a variety of causes, some of which may be imputable to the fault of the person sought to be made liable, whilst others may be due to causes for which he is not responsible. It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from want of some precaution to which the defendant might and ought to have resorted.
Per Diron and McTiernan JJ.: It is not invariably true that 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.
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Details
AGLC
Davis v Bunn [1936] HCA 44
Case
[1936] HCA 44
Decision Date
CaseChat Overview and Summary
Edward Montgomery Davis (the plaintiff) brought an action against Ernest Walter Bunn (the defendant) in the County Court at Melbourne, claiming damages for injuries sustained when the defendant's motor van struck the plaintiff and his stationary motor car. The plaintiff was standing beside his car on the side of the road when the defendant's van, approaching from the opposite direction, veered across the road. Evidence indicated that the front off-side tyre and rim of the van came off shortly before the collision, and there were marks on the road consistent with the van losing control. The defendant testified that the steering arm of the van broke suddenly, causing him to lose control.
The legal issues before the High Court were whether the jury's verdict for the plaintiff was reasonably open on the evidence, and whether the Supreme Court of Victoria was correct in ordering a new trial. Specifically, the court had to consider the application of the doctrine of *res ipsa loquitur* in circumstances where the defendant provided an explanation for the accident, and whether the trial judge's directions to the jury adequately addressed the burden of proof and the various potential causes of the accident. The court also considered whether the defendant was negligent in the driving and management of the van, particularly in the moments leading up to and during the loss of control.
The High Court was divided. Starke J. was of the opinion that the mere occurrence of an accident on a highway does not raise a presumption of negligence and that the plaintiff must establish by evidence circumstances from which it can be inferred that the accident resulted from the defendant's want of care. He found the trial judge's directions to the jury to be inadequate and that the Supreme Court's order for a new trial should be upheld. Dixon and McTiernan JJ. were of the opinion that the verdict of the jury should stand, with Dixon J. noting that while the defendant's explanation of a broken steering arm was plausible, the facts were also open to an interpretation where the tyre and rim came off first due to looseness, which could indicate negligence. Evatt J. also believed the jury's verdict should stand, arguing that the jury was entitled to reject the defendant's explanation and infer negligence from the circumstances, particularly regarding the condition of the wheel, and that the jury system should not be unduly interfered with by appellate courts.
As the High Court was equally divided, the decision of the Supreme Court of Victoria was affirmed. This meant that a new trial was to be had between the parties.