Municipal Tramways Trust v Buckley - [1912] HCA 39

THE MUNICIPAL TRAMWAYS TRUST

APPELLANTS: DEFENDANTS, BUCKLEY

ON APPEAL FROM THE SUPREME COURT OF

Negligence-Contributory regligence-Evidence. The plaintiff's husband at about 10.30 p.m. on a dark, windy and rainy night was driving a heavy waggon drawn by four horses along a country road near Adelaide, on which was a tramway. The wheels on the off-side of the waggon were between the tram rails. An electric tramear driven by a ADELAIDE, servant of the defendants at the rate of about 20 miles an hour coming up behind the waggon struck and overturned it and the plaintiff's husband was killed. The driver of the tramcar gave no warning of the approach of the car. In an action by the plaintiff against the defendants,

Held, that there was evidence of negligence on the part of the defendants' Held, also, that, assuming there was contributory negligence on the part of the plaintiff's husband which continued up to the time of the accident, there was evidence upon which a jury might find that the driver of the tramcar could, with ordinary care and diligence and notwithstanding that contribu- tory negligence, have avoided the accident.

Decision of the Supreme Court of South Australia affirmed.

APPEAL from the Supreme Court of South Australia.

An action was brought in the Supreme Court by Isabella Amelia Buckley, administratrix of the estate of her husband George Alfred Buckley, deceased, against the Municipal Tram-

14 CLR 732

ways Trust, to recover damages in respect of the death of intestate which she alleged was caused by the negligence of the defendants' servants. The defendants by their defence denied the negligence and alleged contributory negligence.

The action was heard before Gordon J. and a jury. At the conclusion of the plaintiff's case the learned Judge withdrew the case from the jury and directed judgment for the defendants with costs. On motion by the plaintiff to the Full Court a new trial was ordered.

From this decision the defendants now appealed to the High Court.

The facts are sufficiently stated in the judgments hereunder. Sir Josiah Symon K.C. (with him O'Hallorun), for the appellants. On the plaintiff's evidence the cause of the accident was the joint negligence of her husband and the driver of the tramcar and the case was properly withdrawn from the jury. The plaintiff"s husband was not entitled to act without taking the due precautions which under the circumstances an ordinary person would take on the chance that the driver of a tramcar coming up behind him would be careful: Fraser v. Victorian Railways Commissioners 1; Wakelin v. London and South Western Railway Co. 2. The jury could not reasonably have found that the plaintiff's husband was absolved from taking those precautions which he might have taken. The duties of a person going on a tram track are the same as those of a person going on a level crossing, that is to say, he must be careful. Under the Municipal Tramways Trust Act 1906, although…

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

Case: [1912] HCA 39
Decision Date: 7 June 1912

CaseChat Overview and Summary

The Municipal Tramways Trust appealed to the High Court of Australia from a decision of the Supreme Court of South Australia, which had ordered a new trial in an action brought by Isabella Amelia Buckley, as administratrix of her deceased husband's estate. Mrs. Buckley alleged that her husband's death was caused by the negligence of the Trust's tramcar driver. The Trust denied negligence and pleaded contributory negligence on the part of the deceased. The case arose from a collision on a dark, rainy night where a tramcar travelling at approximately 20 miles per hour struck a heavy waggon, killing its driver.

The High Court was required to determine two primary legal issues. Firstly, whether there was sufficient evidence of negligence on the part of the tramcar driver to be left to a jury. Secondly, assuming there was contributory negligence on the part of the deceased, whether the tramcar driver could, by the exercise of ordinary care and diligence, have avoided the accident notwithstanding such contributory negligence.

The Court reasoned that the circumstances of the accident, including the speed of the tramcar on a dark and inclement night and the failure to sound a warning, provided ample evidence of negligence on the part of the tramcar driver for a jury to consider. Regarding contributory negligence, the Court held that while driving on the tram tracks might be considered by a jury, it was not necessarily negligence as a matter of law, given the public's right to use the road. Crucially, the Court affirmed the principle that even if the plaintiff was contributorily negligent, the defendant could still be liable if they could have avoided the accident with ordinary care and diligence. This principle, derived from cases such as *Radley v. London and North Western Railway Co.* and *Davies v. Mann*, meant that the deceased's potential negligence would not necessarily bar recovery if the tramcar driver's negligence was a proximate cause of the accident and could have been avoided.

The High Court dismissed the appeal with costs, affirming the decision of the Supreme Court of South Australia to order a new trial. The Court concluded that the questions of negligence and contributory negligence, and whether the accident could have been avoided by the exercise of ordinary care, were matters of fact for a jury to determine.

Orders