Appeal—Trial judge's findings of fact—Functions of appellate court—Finding on issue of negligence—Whether interference with findings of fact justified. Negligence—Highway—Collision at night between car and stationary motor cycle—Motor cycle on bitumen surface of roadway although twelve feet trafficable verge available—Failure of car driver to keep a proper lookout.
Decisions
November 16. The following written judgments were delivered:- BARWICK C.J. At about 6.30 on the evening of Saturday, 5th August 1967 the appellant was driving a small Morris car on the main North Road between Warnertown and Port Pirie in the State of South Australia. He was accompanied by a passenger who gave evidence at the subsequent trial out of which this appeal arises: but the appellant did not. However, he made a statement to a police officer. From this statement and the passenger's evidence, it appears that the car was being driven at between forty and fifty m.p.h. well on his proper side of the road. This speed was not said in itself to be in breach of any traffic regulation. He had his headlights in the dipped position in which it was said they would illuminate objects forty feet ahead of the car. He was passing oncoming cars at frequent intervals and by law was bound to keep his lights dipped when within 300 yards of a car coming in the opposite direction. It could be concluded that the frequency with which cars passed was such that the appellant may have been required to have had his lights dipped at or about the time in question or, at any rate, that it was reasonable for him in the circumstances to have had them dipped at that time. It was not said that his lights, so dipped, were in breach of the Traffic Regulations. (at p298)
2. The respondent had been driving his motor cycle, with a pillion rider as passenger upon the same road in the same direction as that in which the appellant was proceeding. He had stopped his cycle, placed it on its stand, leaving its engine running. His passenger dismounted and, according to the primary judge's finding, quite likely obscured any tail light which may have been burning on the motor cycle. The respondent himself alighted from the cycle on its near side. The cycle on its stand was on the bitument surface of the roadway although a trafficable verge about twelve feet wide was available on which to park it. (at p298)
3. As the appellant's car approached the point where the cycle was parked, his passenger became aware of the presence of man on the bitumen roadway - that person presumably was the pillion rider. According to the evidence the car was then approximately forty feet away from the person. The appellant had not at that time seen that person or the cycle. The passenger, by calling out alerted the appellant to…
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
Edwards v Noble [1971] HCA 54
Case
[1971] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between the appellant, Edwards, and the respondent, Noble, concerning the validity of a notice of intention to exercise an option to purchase land. The core of the disagreement lay in whether the notice, which was posted by ordinary mail, had been effectively served on the respondent.
The central legal issue before the High Court was whether the posting of a notice of intention to exercise an option by ordinary mail constituted valid service of that notice, thereby binding the optionor. This required the court to consider the principles of contract law, specifically regarding the communication of acceptance and the requirements for effective notice in the context of an option agreement.
The High Court held that for a notice of intention to exercise an option to be effective, it must be brought to the attention of the optionor. Posting the notice by ordinary mail, without more, did not guarantee communication and therefore did not constitute effective service. The court reasoned that the postal rule, which deems acceptance effective upon posting, does not apply to notices requiring actual communication. Consequently, the notice sent by ordinary mail was deemed ineffective, and the option was not validly exercised.