Hale v Victorian Railways Commissioners

[1953] HCA 26

87 C.L.R.] OF AUSTRALIA.

529

[H IG H COURT OF AUSTRALIA.]

HALE .A p p e l l a n t

;

P l a i n t i f f ,

AND

VICTORIAN RAILWAYS COMMISSIONERS'

R e s p o n d e n t s .

AND OTHERS

.............................................

D e f e n d a n t s .

FORBES AND ANOTHER. \ p p e l l a n t s

;

D e f e n d a n t s ,

ANU

HALE AND ANOTHER . .

R e s p o n d e n t s .

P l a i n t i f f a n d

D e f e n d a n t .

ON APJ>EAL FRO-M T H E SU PREM E COURT OF

VICTORIA.

New Trial— Mucarriage of justice— Misdirection— Action for negligence— Accident

H. C. 01? A.

at level crossing— Three heads of negligence relied on— Whether summing up

19.53.

defective with reference to matters of fact and evidence as to one hejid.

J I e l b o u r k k .

In an action for damages for injuries sustained in a collision a t a level crossing between a m otor bus and a tra in controlled by the servants of the Vietoi’ian

Feb. 16, 17 ;

S y d n e y .

Railways Commissioners, H. claimed th a t the commissioners were guilty of

M ay

8.

negligence on the ground, (1) because of the character and arrangem ent of

Dixon C.J., Williinns,

the crossing; (2) because the ti-ain failed to whistle or whistle adequately ;

(3) because the fireman on the tra in failed to e.xcrcise due care in the cir­

Webb,

Kitto and

cumstances. It was conceded tha t the ju ry might ])roj)erly have based

Taylor ,),I.

its verdict for the ])laintift' upon either the first or second of these heads of negligence. Ujjon the thii-d the evidence showed th a t by reason of the existence of a dwelling in the angle contained by the res[)ectivc lines of approach of the tra in and the bus, they did not become visible to each other until the tra in was about forty yards from the crossing and the bus about six ty yards from this point. The fireman gave evidence to the effect

VOL.

L.XXXVII.— 34

530 HIGH COURT

[1953.

H. 0 . OK A.tlia i he saw Uie bu.y when it was alioiit sixty yards from the crossing, travelling about twenty-five miles per hour when it commenced to reduce speed, and lie assumed th a t the bus would not a ttem p t to cross in front of the train

H alkbut would stof) as it came to the crossing.

'I’he driver of the bus did not,

V.

V ic t o r ia n however, hear or see the train until it got so close th a t an accident could not

R a il w a y s be avoided. In the course of his direction on this head of negligence, the trial

C o m m is ­

sion HRS.judge directed the jury th a t the cpiestion whether the fireman was negligent

was a m atter lor their consideration on the whole of the circumstances of the case, and in his concluding words, pointed out th a t the fireman did not have much time to act but added th a t if the jury nevertheless thought th a t a reason­ able man in the circumstances should have concluded th a t there was a danger, and th a t a, catastrophe threatened, they might th ink he ought to have acted a t once. The trial judge referred to a contradiction between the evidence of the fireman and the tra in guard as to the slackening down of the bus, but told the ju ry th a t the difference in the two accounts might have been due to the fact th a t the guard was considerably further back on the train than the fireman was. The jury returned a verdict for H. On appeal, the Full Court of the Supreme Court of Victoria set aside the verdict and ordered a new trial on the ground th a t the trial judge’s direction was wrong in so far as it created a real likelihood of the ju ry supposing th a t simply because the fireman .saw th a t upon the road a bus was approaching he ought to have taken measures to stop the train le.st the bus should not pull up to let the tra in pass, and tha t this, combined with the misdirection as to the contradiction of the evirlence of the fireman by the guard, revealed a miscarriage of justice warranting a new trial.

Held, a new trial should not be granted on the ground of misdirection. Per Dixon C.J., Williams and Kitto J.J. The Court will not set aside a verdict based upon one count of negligence supported by three heads of negligence because in respect of one of these heads, the judge’s charge is alleged to be unsatisfactory although it contains no misdirection in law, unless a strong case is made to show' th a t a danger extsts of the trial having miscarried which is so great th a t the demands of justice would not otherwise

be satisfied.

•

Decision of the Supreme Court of Victoria (Full Court) (1953) V.L.R. 477, allow'ing an appeal from the judgm ent of Gavan Duffy J . on the verdict of a jury, reversed.

A p p e a l from the Supreme Court of Victoria.

Eveline Hale brought an action in the Supreme Court of Victoria, against the Victorian Railways Commissioners, Reginald Oliver Forbes and Bond’s Motor Services Limited, claiming damages for personal injury. The claim arose from a collision, on 24th February 1951, at a level crossing on the outskirts of Horsham, Victoria, between a steam train, driven by a servant of the defendants, the Victorian Railways Commissioners, and a bus, in which the

87 C.L.R.] OF AUSTRALIA.

531

plaintiff was a passenger, and which was owned by the defendant,

H. C. OF A,

Bond’s Motor Services Limited, and driven by the defendant Forbes. 1953.

The facts relating to the collision and the evidence adduced at the

H ale

trial appear in the judgments hereunder.

V.

V ictorian

The trial judge {Gavan Duffy J.), in directing the jury on the third head of negligence relied on, viz., the failure of the fireman to use

R ailw ays

Commis­

s io n e r s .

reasonable care in the circumstances, outlined the evidence of the fireman, and said : “ That is his story and you are asked to find that there was negligence on the part of the guard and the fireman because they were both looking out. The guard tells somewhat the same story but I think I am correct in saying he does not say anything about noticing the bus slowing down. Of course he saw it from one hundred yards further back and you may think that would account for any difference in what they saw. Well that is the evidence of the fireman and the guard and in so far as that is concerned the fireman is contradicted by the guard. Then it is put that this was negligence, because a reasonable man, or, if they had been acting as reasonable men, they, ought to have seen that there was a danger existing of a collision between the bus and the train. I t did not matter whether they could see the bus driver was acting with gross carelessness, because being aware of the danger existing they were under an obligation to do what a reasonable man would do to avoid a collision . . . When the fireman looked out and saw the bus was approaching the crossing it did not matter whether the bus driver was as negligent as possible, whether he was regardless of his own safety—it did not matter whether the fireman recognised that or not, his duty was plain, if having seen the danger, or rather if he saw the danger, if he was to act as a reasonable man to prevent that danger his duty was clear and he should have done everything possible to avoid it, or to minimise the danger. . . . Well Mr. Smithers, and I rather think Mr. Alderman, but at any rate Mr. Smithers put it in this way—he said first of all the fireman looked out and he saw this bus coming at about twenty-five miles an hour and it was going up an incline and even if it slackened speed a reasonable man would not have taken that as a sign that it was going to stop. A reasonable man would not have taken that attitude at all. A reasonable man would have said to himself ‘ Here it is coming along at twenty-five miles an hour, it is a danger spot, I must do something at once ’, and he would then have told the driver ‘ Danger—red light ’, and the driver, I suppose, would have put on his emergency brakes at some time sooner than he did. Of course, it is plain that that would not have resulted—everybody

532 HIGH COURT

[1953.

H. ( ' . OK A. is a,or('('(t about, that - tliat would not have resulted in stopping

lilf):!.tiu' train before it rea,(;hed the crossing, but it is said the principal

II ALU resuli would have b(;en that it would have sufficiently delayed it

V.to mak(' it miss tin', bus, because you will remember it only hit the

V' l r i ' OKI AN

bus about the rc'ar, about the rear wheel.

Well, then it is said,

RAIL\S■A^ S

( ’O.MAIIS- lirsf of all, tha.t was migligcmt, it is no good him saying he saw the

•SION KHS.

bus going to stop. Going at twenty-five miles an hour and where it was, a r(‘asona.bl(! man would have taken action there and then, he would have seen the danger and acted ; there was something he could do and he should have done it.

Then Mr. Sinitliers said ‘ Hut that is not all ’. He said there is another bit of negligence, and that depends on something that was said by the fireman. You will remember the fireman said, first of all, that after seeing the bus apparently stopping he made up his mind it was going to stop and he took no further notice of it until lie saw it twenty-five yards from the crossing suddenly dashing, increasing speed, and running in front of the train. It is true he did say that. Afterwards, he said he did not mean it but what he meant was that he did not do anything, he was satisfied it was going to stop, and that he kept looking at it but he took no real notice of it because he thought it was going to stop, and it was only when it made this sudden dash—howevmr, that is a matter for you, and Mr. SwitJiers invites you to say that the true position is that he ‘ let the cat out of the bag ’ when he said he took no further notice and that that is what he actually did and that was a most negligent thing to do, to allow that time between the time it was sixty yards away and the time it was twenty-five yards away to roll on without doing anything at all, while if he had kept looking he ought immediately to have recognised he was wrong .in his first impression that it was going to stop and he should have done something at once that, though it would not have stopped the train before it got on the crossing, probably it would have stopped it in time to save the collision, would have allowed the bus to get safely over, and it is true enough that if you found these facts, if you agreed with these submissions, there would be a breach of duty, there would be negligence on the part of the fireman, for which the commissioners Avould be liable, and that negligence would have been, perhaps you would find, a substantial cause of the accident. However, that is all for you, biit what I want to get into your heads here is the way you must look at it or the cpiestions you ought to ask yourselves what the fireman did—was it something a reasonable man in the circumstances would have done or did he omit to do something a reasonal)le man in the circumstances would have done.

87 C.L.R.] OF AUSTRALIA.

583

If you say ‘ Yes ’ to that, well, was that act of his or omission of his

H . 0. OF A.

19.53.

a substantial cause of the accident ?

If you find all that, you have

found negligence, and that would be sufficient to establish the

H ale

claim that the plaintiff makes against the railway commissioners.

V.

V ictorian

As I say, I do not propose to go into the details of this evidence. You have heard it, you have heard it commented on and if you

R a ilw a y -s

Commis­

want to hear any more of it I will have it read again to you, but

s io n e r s .

that is the way to look at it, and I would finally say this : Do not forget that what you have to decide is what would a reasonable man have done in the circumstances. I think it is only fair to the fireman and to the guard, so far as he is concerned in the matter, to say the thing did not take place in two or three days as it was discussed here ; it took place in a train that was going at fifteen miles an hour, and that means substantially seven yards a second, and according to the fireman—I do not know—I think the first time he could have seen the bus—though that you will decide for yourself—the train was only about forty yards from the crossing. Well, he had not much time ; everything was pretty quick. Still, if you think that a reasonable man under the circumstances should have concluded that there was danger and that a catastrophe threatened, you may well think he should have done something at once, should have called the driver’s attention so as to at least minimise the chance of the accident happening, and the fact that he did not do so brought about the collision or at any rate was a substantial cause for bringing about the collision.”

On 27th June, 1952, the jury brought in a general verdict for £16,213 2s. 3d. damages against the defendants the Victorian Railways Commissioners and Bond’s Motor Services Limited, (the jury having been invited to treat Bond’s Motor Services Limited and Forbes as one defendant) and the jury fixed contribution as between the Victorian Railways Commissioners and Bond’s Motor Services Limited at one third and two thirds respectively. After amendment of the amount of damages claimed in the writ, judgment was entered in accordance with the verdict.

Against this verdict and judgment, the defendants, the Victorian Railways Commissioners, appealed to the Full Court of the Supreme Court of Victoria {Herring C.J., Lowe and Sholl JJ.) which, on 21st October, 1952, allowed the appeal and directed that there be a new trial between the plaintiff and the defendants the Victorian Railways Commissioners, with liberty to the defendants Forbes and Bond’s Motor Services Limited to take such part in the new trial as the trial judge might think fit, and that the new trial be limited to the question of the liability of the defendants, the

rvM

HIGH COURT

[1953.

H. 0. OF A.

Victorian Railways Commissioners. The Court was of opinion that

1953.the direction of the trial judge as to the duties of the train crew in

Halerelation to the ([uestion of slowing up or attempting to stop the train

r.

on ajiproaching the level crossing from the time when the motor

\'unH)iUANr

R a il w a y s bus heca.me visible to the fireman was wrong, and that this, combined

(Co m m is ­with the misdirection as to the contradiction of the evidence of the

sion Eiis.

fireman by the guard, revealed a miscarriage of justice warranting

a new trial.

On 31st October 1952, the plaintiff applied for, and was granted, special leave to appeal to the High Court of Australia against the decision of the Full Court of the Supreme Court of Victoria. The respondents to this appeal were the Victorian Railways Commis­ sioners, Forbes, and Bond’s Motor Services Limited.

On 27th November 1952 the dependants Forbes and Bond’s Motor Services Limited applied for, and were granted, the like leave. The plaintiff and the defendants, the Victorian Railways Commis­ sioners, were the respondents to this appeal.

R. A. Smithers Q.C. (with him H. Ball), for Hale. The Full Court of the Supreme Court of Victoria relied upon Baker v. Victorian Railways Commissioners (1). That case decides that a train driver approaching a level crossing is under no duty to do anything, on seeing a user of the highway who could pull up short of the crossing. He should in every case assess the chances of whether the vehicle will pull up. He is required to make a decision on every occasion. [He referred to Baker v. Victorian Railways Co7nmissioners (1) ; Alehin v. Commissioner for Railways (2).] The learned trial judge

summed up without reference to any presumptions of fact. This

was correct. [He was stopped.]

H. G. Alderman Q.C. (with him E. 0. Moodie-Heddle), for Forbes and Bond’s Motor Services Limited. The verdict of the jury should stand. In the circumstances a new trial should not be granted. [He referred to liolford v. Melbourne Tramway and Omnibus Co. Ltd. (3) ; Farrands v. Melbourne Corporation (4-).] The only questions involved here are of fact. Baker v. Victorian Railways Commissioners (1) may be right on its own facts, but it should not be taken as laying down a universal rule.

[T a y l o r J.

In any case in Baker v. Victorian Railways Commis­

sioners (1) there was an adequate warning. That means adequate

having regard to all the circumstances.]

(1) (1949) V.L.R, 85.(3) (1909) V.L.R. 497.

(2) (1935) 35 H.R. (N.S.VV.) 498 ; 52

(4) (1909) V.L.R. .531.

W . N , 1 5 0 .

87 C.L.R.] OF AUSTRALIA.

535

N. E. Burbank Q.C. (with him G. H. Lush), for the Victorian H . C. OF A.

Railways Commissioners. When the bus was first seen it was 1953.

behaving reasonably and the fireman was entitled to, and did,

H ale

assume that it would continue to do so. [He referred to

V.

Baker v.

V ictoria n

Victorian Railways Commissioners (1) ; R. v. Broad, per Lord R ailw ays

Sumner (2).] Although the duty owed is the same, its content Com m is­

may be different, having regard to the nature of the vehicles.

s io n e r s .

The weight of a train renders it more difficult to pull up than any other vehicle. This is all that R. v. Broad (3) lays’ down. [He referred to Toronto Railivay Co. v. King (4) ; Note on Huxtable v. \Villiamson (5) ; Trom.pp v. Riddle (6) ; Wheare v. Clarke, per Latham C.J. (7) ; per Dixon J. (8) ; per Evatt J. (9) ; Tamke v. McKenzie (10) ; London Passenger Transport Board v. Upson, per Lord Uthicatt (11) ; Bolton v. Stone (12).] There was a miscarriage of justice. [He referred to Holford v. Melbourne Tramway and Omnibus Co. Ltd. (13) ; Alford v. Magee (14) ; Braddock v. Bevins

(15)

.]

R. A. Smithers Q.C., in reply.

I t does not matter how probable

or improbable a catastrophe may be. The question is whether it was a possibility of which, having regard to inherent probabilities, a reasonable man would say “ I think that it is unlikely to happen, but having regard to its magnitude if it does happen, I should take steps to prevent it.” [He referred to Pardon v. Harcourt-Rivington

( 16)

.]

Cur. adv. vult.

The following written judgments were delivered.

May 8.

D ix o n C.J. The circumstances of this case and the critical passages in the summing up of the learned judge who presided at the trial are described in the judgments delivered in the Supreme Court of Victoria and in the judgment prepared by Taylor J. which I have had the advantage of reading and with which, subject to certain additional observations I shall make, I agree.

The case appears to me to turn entirely on the cjuestion whether, having regard to the manner in which the jury was directed as to the alleged negligence of the fireman and guard and as to the con­ siderations affecting that question, such a substantial wrong or

(1) (1949) V.L.R. 85.(8) (1937) 56 C .L .R ., a t pp. 732, 7.33.

(2) (1915) A.C. 1110, a t pp. 1114,

(9) (1937) ,56 C.L.R., a t p. 744.

1115.(10) (1952) A.L.R. 925.

(3) (1915) A.C. 1110.(11) (1949) A.C. 155, a t p. 173.

(4) (1908) A.C. 260, a t p. 269.(12) (1951) A.C. 850.

(5) (1947) V.L.R. .341.(13) (1909) V.L.R. 497.

(6) (1941) 41 S.R. (N.S.W.) 108 ; 58

(14) (19,52) 85 C.L.R. 437.

W.N. 124.

(15) (1948) 1 K .B. 580, a t pp. 594, 600.

(7) (1937) 56 C.L.R. 7L5, a t p. 723.

(16) (1932) 146 L.T. 391.

HIGH COURT

[1953.

H. ('. Oil' A. niiscjuTia.^(' has Ixmmi (Kaaisioned in tlie trial as to make it necessary

195;).to set iiisidc' tlu ̂ vc'.rdict for the plaintiff and order a new trial,

ddierc' does not a-i)i)('a,r to me to he any disputed (juestion of law

I I I ; H

r. involved, ddu' comphdnts made against the direction relate to

\ ' I CTO I! LAN

niiiittcM'S of fiu;t iuid of (‘

.videne.e. and although it is suggested that the

K a i i a v a a '.s

( ' O M M I S - jury may hiiv(‘ la'cn niish'd into a misapprehension or a misapplica-

S I ON lOKS.

lion of th(' l('ga,l e-rit(‘rion, the jury were correctly directed as to Dixon C..I.vvhi>,t is th(' h'.giil criterion itself. The (piestion whether it is a case for ii lu'vv tri;d is, however, one of difliculty. To begin with, there can he little doubt that there is no evidence of negligence on the paaf of the guard <jf the train and that the possibility of his being negligent ought not to have been left to the jury. Yet it was mentioned in such a way and so little was made of it that it seems to be agreed on all hands that in the particular circumstances the possibility of the jury having based their verdict upon it may be put aside. The real cpiestion relates to the possible negligence of the fireman. The evidence of negligence on his part was slight and I am not sure that the true ground of the complaint of the defendant commissioners is not that this item of negligence ought to have been withdrawn from the jury. But that is not the ground upon which the Supreme Court of Victoria proceeded and on the whole I think that it was open to the jury to infer, if they thought proper, that at a time when the disaster might have been avoided by quick action, the fireman either did, or ought to have, become aware that Forbes was about to drive the motor bus across the line in front of the approaching train, whether because he did not see it or because he thought he had time to get across and that the fireman was negligent because he delayed calling out “ red light ” to the engine driver.

An important matter to bear in mind is that if the brakes of the train had been applied a very little earlier, the bus would have cleared the train and not been hit. I t is for this reason that quick action might have avoided the disaster. The sufficiency of the evidence upon this item of negligence thus depends upon its being open to the jury to conclude that the fireman who kept a lookout on the right hand side and marked the approach of the bus ought in the exercise of due care, to have called out earlier. The jury were not of course bound to accept the fireman’s evidence as accurate in all particulars. Having regard to what he did say and to the materials which the rest of the evidence supplied, I think that it was reasonably possible for the jury to infer that he did perceive or ought to have perceived that the bus was not going to pull up to allow the train to pass and failed to act as promptly as he ought.

87 C.L.R.] OF AUSTRALIA.

537

H. C. OF A.

Another inference reasonably open was that the fireman ought to have acted upon the assumption that the bus driver was unconscious

1953.

of the approach of the train, because no sufficient warning whistle

H ale

had been given, the bus driver’s view of the changing lines of

V.

.

V ictoria n

vision was obstructed and a train would on that afternoon be un­

R ailw ays

expected. In his charge to the jury the learned judge did not deal

Com m is­

with the question for the jury which thus arose in a manner that s io n e r s .

can be regarded as altogether satisfactory, but I do not think that

Dixon C.J.

there was such a misdirection as to require that the verdict should be set aside. I am unable to agree with the view taken in the Supreme Court that there was a real likelihood, created by the direction, of the jury’s supposing that simply because the fireman saw that upon the road a bus was approaching, he ought to have taken measures to stop the train lest the bus should not pull up to let the train pass. I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warnings of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the neces­ sity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass. I do not think that the jury would misconstrue his direction and treat the train crew as under a duty of care at variance with common practice. ' At one point in the direction the learned judge pointed out that the fireman had not much time to act but added that if the jury nevertheless thought that a reasonable man in the circumstances should have concluded that there was a danger and that a catastrophe threatened, they might think he ought to have acted at once. The expression “ a catastrophe threatened ” seems apt enough to convey the point. In other places more equivocal references to “ seeing the danger ” occur. But I repeat that I am unable to think that the probability of the jury being led to adopt the view suggested in the Full Court was so real as to call for a new trial. There is no express affirmative statement contained in the summing up which has such a meaning.

In comparing the evidence of the guard with that of the fireman who said he saw a slackening down of the bus, his Honour spoke of a contradiction between them because the guard did not see it. The difference could be accounted for by the respective opportunities the lines of vision from the engine and the van gave. The reference

5:}8 HIGH COURT

[1953.

H.C.OF A.to a conti'adiction was nothing but an observation on evidence, and

1953.thougli erroiu'ous could in itself form no ground for destroying the verdict.

H ai .h

V.The defendant commissioners have some reason to complain that

V icto rian

K a ilw A V.S

their a.nswer on the facts to this item of negligence might have been

C o m m is­put by his Honour more fully and more favourably. But this was

sion lOHs.

a civil trial and the defeated party is not entitled to have a verdict

Uixon C.J.set aside bce.ause his points might have been more adequately put

to the jury by the judge.

Lowe J. in his judgment states the considerations which weighed with him for some time before he came to the view that the criticisms made of the learned judge’s charge should lead to the setting aside of the verdict. The considerations to which he refers must be taken into account and I think they do strengthen the view I take, namely that a new trial ought not to be ordered.

It must be borne in mind that the examination which on this appeal must of necessity be given to the question of the negligence of the engine driver and its treatment in the charge lifts it out of its context.

A very definite case was made for the plaintiff again.st the commissioners of negligence in maintaining a level crossing without better warning signals in its present position Avith the obstructions to vision that exist. Further, another definite case was made that the train did not whistle or whistle adequately. These cases were elaborated at the trial and there is no dispute that the evidence supports a verdict for the plaintiff based on either of those grounds. Indeed Lowe J. said in his reasons “ If I were at liberty to guess (and of course I am not) I should think that the jury’s verdict was based on some negligence in what Sholl J. has termed the ‘ set up ’ and of such negligence there was evidence before the

W J ”

What the defendants have asked the Court to do is to set aside a verdict based upon one count of negligence supported by three heads of negligence because in respect of one of the three heads the judge’s charge is alleged to be unsatisfactory although it contains no positive misdirection in laAV. A strong case indeed must be made to justify such a course, a case in which it is shown that a danger exists of the trial having miscarried which is so great that the demands of justice would not otherwise be satisfied. It is true that when a general verdict on two counts is found and a verdict on one of them cannot be supported the verdict must be set aside ; Cutts v. Buckley (1) ; Lamb y . West (2). So prima facie

(1) (1933) 49 C.L.R. 189.

(2) (1894) 16 N.S.W .L.R. 120.

87 C.L.R.] OF AUSTRALIA.

539

with a general verdict for the defendant referable to either of two

H. C.OF A.

pleas one of which cannot be supported ; Grigg v. Consolidated

1953.

Press Ltd. (1). But that is a somewhat different thing from treating

H a l e

the verdict as vitiated because the summing up as to one of three

V.

V ictoria n

grounds which would sustain a verdict on one count is not entirely E ailw ays

satisfactory, and even then only with reference to what are really Commis­

matters of fact and evidence. New trials should not be ordered

s io n e r s .

unless the court is satisfied that it is necessary in order to do justice. In the present case I do not think that any substantial wrong or miscarriage of justice has been occasioned.

I am therefore of opinion that the appeal should be allowed.

W il l ia m s J. I agree with the reasons of the Chief Justice and Taylor J. In my opinion this appeal and also the appeal in Forbes and Bond’s Motor Services Limited v. Hale and the Victorian Railways Commissioners should be allowed.

W e b b J. This is one of three appeals to this Court arising out of an order for a new trial of a limited character made by the Full Court of the Supreme Court of Victoria on an appeal to that Court against the verdict of a jury in an action for damages for negligence brought by Mrs. Eveline Hale against the Victorian Railways Commissioners, Bond’s Motor Services Limited and Forbes. The jury found the defendants guilty of negligence and awarded Mrs. Hale £16,213 2s. 3d. damages, to be contributed to by Bond’s Motor Services Limited to the extent of two-thirds, that company .having taken the responsibility for Forbes who was its bus driver. I t is common ground that Forbes was guilty of negligence, and Bond’s Motor Services Limited support the verdict more particu­ larly because of the contribution the commissioners are to make to the damages if the verdict is restored.

The action arose out of a collision that took place early in the afternoon of 24th February, 1951, between the commissioners’ train and the company’s motor bus at an open level railway crossing at Horsham. The plaintiff was a passenger in the motor bus and suffered severe injuries. No question is raised on this appeal as to the quantum of damages, although it was unsuccessfully contended before the Full Court that they were excessive.

The Full Court thought there was a miscarriage of justice calling for a new trial—limited to the questions of liability and contribution —because in their Honours’ opinion the learned trial judge had not sufficiently directed the jury on an issue that arose as to whether

(1) {1!)4.5) 45 S.R. (N.S.W.) 247 ; 62 W.N. 113.

r>4() h k ;h c o u i r r

[19.'):}.

H . C . OK A .

t li(‘ fircmun oftlu ' Iraiii liud Ikh'ii guilty of negligence ; and further,

1 !»■):!.

b('ea,use the judge luul wrongly told the jury tliat the train guard

1 1 AI ,H had coni ra,dieted the (Irenian. The Full (,'ourt thought that the

r.

trial judge’s direciion a,s to tin; duti(!S of the train crew in relation

\ ' l ( ' T ( I H I A N

K a I i .w ' a v s to tIu' (|ueK(ion of slowing u[) or attempting to stop the train on

C o m m i s ­approaching the h'vel crossing from the time when the motor bus

s i o n lOKS.

becaane visible to Ihe lireman was wrong, and that this, combined Wi'bh ,1.with 1 lu' misdirection as to the contradiction of the fireman by the guard, rev(‘a,led a, miscarriage of justice warranting a new trial. Ther(' was evidence; on which the jury could have found the commissioners guilty of negligence apart from any negligent act or onussion of the fireman ; but they were not asked specific (piestions tJie answers to which could have indicated on what evidence they based their finding of negligence against the commis­ sioners. Then for all that is known this finding might have rested on the conduct of the fireman ; and so it is material to determine whether the trial judge properly directed the jury in relation to the fireman’s conduct. If he failed to do so then it is not contested that the order for a new trial must stand.

As to the misdirection that the guard contradicted the fireman, evidence was given by the fireman that shortly after he first saw the bus it slowed down as if it were going to stop. The guard said that the motor bus appeared to speed up quickly ; but he also said that the speed of the bus was such that he expected it to stop. I t is true that the learned trial judge did tell the jury that there was a contradiction of the fireman by the guard ; but at the same time he also told them that the difference in their accounts of what they saw of the movements of the motor bus might have been due to the fact that the guard was considerably further back on the train than the fireman. In that position the guard did not have the bus in view as long as the fireman had. I think his Honour sufficiently conveyed to the jury that the contradiction might have been more apparent than real. After all the jury must be taken to have heard and to have recollected all the evidence and to have understood what his Honour meant. His Honour was not asked by counsel to further elucidate his summing up on this matter. In the circumstances I do not think that his Honour’s observations on the evidence of the fireman and the guard alone called for a new trial. Nor would the Full Court have granted a new trial on this misdirection alone.

Then as to his Honour’s direction as to what the fireman’s duty was on seeing the motor bus approaching the crossing, his Honour dealt with this at some length, but their Honours in the Full Court

87 C.L.R.] OF AUSTRALIA.

541

thought that he had left the jury with the impression that “ as

H. C. o r A.

soozi as the fireman perceived the bus approaching the crossing at 1953.

a speed which if continued would bring it there at approxinrately

H.\le

the same time as the train, there was, independently of any other

V.

V ictorian

circumstances, a duty upon him to cause the brakes to be applied, R a ilw a y s

simply becanse there was a possibility (not a probability) of the Com m is­

bus not stopping, and accordingly a ‘ danger ’ which it was negli­s io n e r s .

gence not at once to guard against ” ; or with the impression that

Webb ,T.

independently of airy other circumstances, and even if the bus did reduce speed in a manner in which reasonably led ” (the fireman) “ to suppose that it was going to stop, it was negligence not to guard against the possibility and so against the supposed ‘ danger ’ that the bus might be slowing down for some other reason, without seeing the train and without intending to stop, or, having seen it, might thereafter foolishly try to race it against the crossing ” .

1 do not think that either impression was conveyed by his Honour to the jury. His Honour in his concluding words to the jury on this aspect of the case said, referring to the fireman ;—“ Well he had not much time ; everything was pretty quick. Still, if you think a reasonable man under the circumstances should have concluded that there was danger, and that a catastrophe threatened, you may well think that he should have done something at once, should have called the driver’s attention so as to at least minimise

the chance of the accident happening ”.

.

Whether his Honour laid emphasis on the words which I have italicised we do not know ; but in any event they show that he intimated to the jury that a catastrophe should have been threatened before it became the duty of the fireman to take steps to have the train slowed down or stopped. I do think he was not called upon to say more in justice to the defendant commissioners in stating what the hreman’s duty was as the train approached this crossing and the. motor !)us appeared also heading for the crossing. Nothing his Honour had already said was in conflict with this final statement on that particular aspect of the case.

It was not necessary for his Honour to state what would be the presumjztions of fact that might arise from time to time according to changes in the situation which the jury might find, having regard among other things to variations in the movements and speeds of the train and the bus and the changes in their relative positions as they approached the crossing. His Honour might have done so without encroaching on the jury’s province. But there is no limit to the number of presumptions that might arise in that way, and

542 HIGH COURT

[1953.

H . C. OF .A.it would he asking too much of a judge—it would in fact place an

impossible burden upon him—to require him to assume the succes­

K.u.ksive factual situations that the jury might find on the evidence and

V. to stute th(i prcsum])tions of fact that might arise from them. That

V h . 'TOIUAN

R a i i a v .w sis not the judge’s responsibility. To make presumptions of fact

where they are warranted is part of the ordinary process of reasoning

S I O N E R S .

which a jury is expected to employ without guidance from the Webb J.Bench. Even if there is no contest about particular facts and a presumption of fact arises from them it is not necessarily the judge’s duty to state the presumption. I t might greatly assist the jury if he did, but the mere failure to do so would render the summing up inadequate.

However, their Honours in the Full Court thought that the presumption of fact made by the Full Court in Baker v. Victorian Railways Commissioners (1) in determining whether a jury’s verdict was unreasonable should have been brought to the notice of this jury. I t might have proved helpful to the jury if it were. I t might even have induced them not to find negligence against the commissioners. But it does not follow that the summing up was defective. The soundness of a charge to a jury is not so tested. I t may be capable of much improvement without being for that reason so defective as to amount to a miscarriage of justice. The extent of a summing up and its value depend among other things on the time the judge has to consider what he is going to say. A judge should always endeavour to explain to the jury how the law applies to the facts as the jury might find them, but he can do that without having to anticipate and pursue throughout the course the jury might follow in reconstructing events to determine responsibility. A slight change in the factual situation, that gave rise to one presumption of fact, say that in Baker’s Case (1), might have given rise to a different presumption equally important although not made by a court of appeal in a reported case.

I woiild allow the appeal against the order for a new trial and restore the verdict of the jury and the judgment thereon of Gavan

Duffy J. ̂ . .

.

I t becomes unnecessary to deal with other questions raised in the appeals, except that of costs.

K it t o J.

I have had the advantage of reading the reasons for

judgment of Dixon C.J. and Taylor J. I agree with their Honours,

and have nothing to add.

(1) (1949) V.L.R. 85.

87 C.L.R.] OF AUSTRALIA.

543

Taylor J. The first appeal is from an order of the Supreme Court of Victoria setting aside a judgment and verdict in an action

1953.

in which the appellant Eveline Hale sued the Victorian Railways

H ale

Commissioners, Reginald Oliver Forbes and Bond’s Motor Services

V.

V ictorian

Limited for damages for injuries sustained by her in a collision at a R ailw ays

level crossing near Horsham between a motor omnibus owned by Com m is­

Bond’s Motor Services Limited and driven by their servant or

s io n e r s .

agent Forbes, and a train controlled by the servants or agents of

the commissioners.

The trial, which took place before a jury of twelve, occupied some twelve days and resulted in a verdict for the appellant for £16,213, and the jury assessed the respective contributions of Forbes and the company at two-thirds of the amount of the verdict and of the commissioners at one-third of that sum. For the purpose of assessing these contributions, the jury was invited to treat Forbes and the company as being in the position of a single defendant. From the judgment entered pursuant to this verdict the commis­ sioners appealed to the Full Court of the Supreme Court and in the result that appeal was substantially successful. In effect, the appeal was in part allowed and a new trial ordered on the issue of the commissioners’ liability, the verdict as to quantum being allowed to stand. The verdict against the company and Forbes, who had not appealed, of course, stood and by the order of the Full Court there was left for determination in a new trial the issues whether the commissioners were liable to pay damages and, if so, in what proportions the respective contributions of the company and the commissioners should be assessed.

A good deal of discussion took place on the hearing of this appeal both as to the effect and appropriateness of the Full Court’s order, but, on the view which I have taken of the questions raised on the appeal, it is unnecessary to discuss these matters.

The accident took place about 4 p.m. on Saturday, 24th February, 1951, when the motor bus in which the appellant was one of a number of passengers collided with a goods train at the crossing in question. There was abundant evidence upon which the jury was entitled to find that the driver of the bus was negligent and that his negligence materially contributed to the collision. The jury so found and this finding is not attacked in any way. The appellant’s case against the commissioners was based on a great number of allegations of negligence but during the hearing of the case they were resolved, in the main, into three main categories which Herring C.J. has classified as follows:—“ (1) The failure by the appellants them­ selves to exercise due care in the management and control of their

544 HIGH COURT

[1953.

H. C.OF A.undertaking and particularly tlie failure to provide at the crossing

a proper view of the line on either side, gates or warning devices

H a l freasonahl}’ sidllcient in the circumstances to secure the safety of

i ' .

persons crossing the line ;

(2) The failure of the engine driver to give

V i ctori an

R a i l w a y sadeipiate wa.rning of tlm apjiroach of the train by whistling; and

COMMIS-(3) The failure of the fireman to exercise due care in the circum­

SIONIOKS.

stance's

Taylor J.i t was concech'd by counsel for the commissioners, both in the

Supreme Court and upon this appeal, that the evidence was such that the jury might properly have found either way upon the issues raised by the allegations contained in pars. (1) and (2) above. But it was claimed that the issues raised by the allegation contained in par. (3) were, in the circumstances, of such a special character that they should only have been allowed to go to the jury subject to very definite and precise directions. I t was not contended that such issues should have been taken from the jury, but that the directions concerning them were erroneous and, the matter having been submitted to the jury for their general verdict, may well have resulted in a miscarriage of justice. The Supreme Court, after a detailed examination of the learned trial judge’s charge to the jury accepted this contention with the result to which I have already referred.

For a proper understanding of the argument advanced on behalf of the commissioners, it is necessary to refer to some of the facts of the case. The Dimboola Road, at a point Yvhere it runs approxi­ mately from the south-east to the north-west, crosses the railway line on the western outskirts of Horsham. In the vicinity of the crossing, the railway line runs approximately from south-west to north-east and shortly after crossing the road it joins another railway line as it approaches Horsham Railway Station. Immediately before the accident the bus was travelling along the road towards the north-west and the train, travelling to the north-east, was approaching from the left-hand side of the bus. But, by reason of the existence of a dwelling in the angle contained by their respective lines of approach, they did not become visible to one another until the locomoti\m was about forty yards from the crossing and the bus about sixty yards away from that point. The driver of the bus did not see or hear the train until they were so close together that the accident could not be avoided. Then, by accelerating, the driver of the bus endeaYmured to get clear of the train. The train, however, struck the bus towards the rear and grave injuries were caused to the appellant. The fireman who was keeping a look out on the right-hand side of the locomotive gave

87 C.L.R.] OF AUSTRALIA.

545

evidence to the effect that he saw the bus when it was about sixty yards away from the crossing. He said that when he first observed the bus it was travelling at about twenty-ffve miles per hour but

H.̂lb

it commenced to reduce speed and he assumed that it would not

V.

V l C T O l U A N

attem pt to cross in front of the train but would stop as it came to

R a i l w a y s

the crossing. There is some corroboration of the fireman’s evidence C o m m is ­

s io n BKS.

that there was some reduction in the speed of the bus at or about

this point. This witness then went on to say that having observed

Xa> lor J .

the bus slacken speed he did not pay a great deal of attention to it until it was about twenty-five yards from the crossing when it began to increase its speed. At this stage he called out to the driver, who was stationed on the other side of the locomotive, and the emergency brakes were then applied. In the circumstances as they existed at that point of time a collision was inevitable and took place with the consequences to which I have briefly referred.

The basis of the criticism of the learned trial judge’s charge to the jury is made clear by a passage in the reasons of Sholl J., who felt that if it had not Ijeen for certain answers given by the fireman in cross-examination as to the dangerous character of the crossing, he would have been of the opinion that there was no evidence to go to the jury of negligence on the part of the fireman at all. But, in view of those answers, he was of the opinion that the plaintiff was entitled to have the ([uestion of the fireman’s negligence left to the jury upon the basis specified by him. In his Honour’s view the ultimate question for the jury on this question was whether there was when or after he first saw the bus and at such an appreci­ able interval of time before he acted that his earlier action would probably have avoided the accident such a reasonable chance that the bus would go on to the. crossing at the same time as, and in spite of the approach of, tlie train that a reasonable fireman would have preferred to call for the brakes rather than risk the catastrophe of a collision. In the view of Herring C.J. “ the duty the fireman owed to road users approaching the crossing . . . should be no more than to keep a proper look out and to call on the engine driver to take action when the possibility of danger became or should have become reasonably apparent to him ” .

While I agree that the duty of the fireman was no higher than these passages indicate, it is, I think, not unimportant to point out that, upon the evidence, it was for the jury to determine this issue in the light of all the circumstances. No doubt negligence could not be imputed to a person in the position of the fireman for assuming that the driver of a motor vehicle proceeding at a reason­ able pace and who is aware of the presence of a train in the

VOL.

L x x x v i r .— 35

r)4() HTGH COURT

f]953.

H. (1. OK A.iimruHliiite vicinity of a level crossing will not act foolishly, and it would he (|uito wrong on such a set of facts and imiependenUy of H a i . h(my oilier cvrcMniNlanceH to treat as negligent an omission on the

V.]>art of su(;li a person to act immediately. Hut in rny view the

Vl OTOKI AN

l l A l l . WA YS

learned trial judge’s charge to the jury did not leave this course

C o m m i s ­open to tlu'm. In my opinion tliere was no misdirection or failure

s i o n HUS.

to direct on this f)oint ; the difficulty, if there he one, is concerned

'I’i i y l c r ,1.with the cpiestion whether in tin; circurnstancais of this (;ase the fire­

man was entitled to continue to make, this assumption after he first ohserved the hus approaching the c,rossing. The cpiestion of the point of time at which a reasonahle man, finding himself in the position of the fireman, should have apprehended that a dangerous situation had arisen, did not fall to be determined solely upon the evidence of what occurred or what was observed by the fireman after the train and bus came into the view of eac;h other. No doubt if adecjuate warning of the train’s approach had been given, the fireman would have been justified in assuming that Forbes was aware of its presence in the vicinity. Hut whether circumstances justifying such an assumption existed was itself a question for the jury. Again, Forbes claimed that his view of the approaching train, an event quite unusual at this crossing on Saturday afternoons, was impeded by the afternoon sun and there was some evidence to the effect that a locomotive whistle sounded some distance back from the crossing might easily be confused with whistles sounded near Horsham Station or on other railway lines approaching that point. I feel that all of this evidence was relevant to a consideration of what course a reasonable man in the position of the fireman would have adopted upon seeing the bus approaching. In these circum­ stances, I am of the opinion that the jury might well have concluded that the whistle should have been sounded at this point or that the brakes should have been applied in an endeavour to avoid the accident or minimise its conserpiences.

The learned trial judge instructed the jury that the question whether the fireman was negligent or not was a matter for their consideration in the whole of the circumstances of the case. Upon a reading of his charge to the jury as a whole and particularly upon consideration of the additional directions given after a request had been made by counsel for the defendant comtnissioners, I am satisfied that the various relevant possibilities were sufficiently put to the jury. Accordingly I am of the opinion that the appeal should be allowed and the verdict of the jury restored.

From what I have already said it follows also that I am of the opinion that the appeal in Forbes and Bond's Motor Services Limited

87 C.L.R.] OF AUSTRALIA.

547

V. Hale and the Victorian Railivays Commissioners should also

be allowed. 1953.

H ale

Both appeals allowed, with costs.

V.

Order of the Full Court of the Supreme Court

V ictorian R ailw ays

of Victoria discharged.

Com m is­

In lieu thereof order that appeal of the Victorian

s io n e r s .

Railways Commissioners to that Court he dismissed ivith costs.

Order that the verdict of the fury he restored.

Solicitors for Hale, Russell, Kennedy (V Cook.

Solicitors for Forbes and Bond’s Motor Services Limited, Morgan,

Fyffe & Midkearns.

Solicitors for the Victorian Railways Commissioners, Frank G.

Menzies, Crown Solicitor for the State of Victoria.

R. D. B.