Nickells v Melbourne Corporation - [1938] HCA 14

NICKELLS AND ANOTHER

THE MAYOR, ALDERMEN, COUNCILLORS

AND CITIZENS OF THE CITY OF MELBOURNE

ON APPEAL FROM THE SUPREME COURT OF Negtigence_Highway-User-Driving horse-drawn cart in narrow lane-Horse

startled Damage to adjacent property-Evidence of negligence.

The defendant's servant drove a wide horse-drawn cart up a narrow lane which was flanked by glass shop windows. The size of the cart was such that, in order to turn at the end of the lane, the cart had to be brought to within twelve or fifteen inches of one of the windows. While turning, the horse became startled and backed the cart through the window.

Held, by Latham C.J., Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that there was sufficient evidence to support a finding that the driving of the horse and cart in the lane in such circumstances constituted negligence on the part of the driver.

Decision of the Supreme Court of Victoria (Full Court) reversed.

APPEAL from the Supreme Court of Victoria.

An employee of the municipality of the city of Melbourne drove a garbage cart, which was eight feet wide, along the roadway of a lane. The width of the roadway was eight feet four inches. The footpath on the eastern side was two feet four inches wide. The

59 CLR 220

lane was lined with shops with glass windows. In turning the cart

round a corner at the end of the lane it was necessary to bring the back of the cart to within one foot or one foot three inches of the glass windows of the plaintiffs' shop, which was on the eastern side of the lane. As the horse was turning the corner, it became startled and backed into the plaintiffs' window, and damage resulted. The plain- tiffs, Donna Nickells and Doris Irene Richards, trading as " Le Rae," brought an action for negligence in the County Court at Melbourne against the Mayor, aldermen, councillors and citizens of the city of Melbourne. The County-Court judge found negligence on the part of the defendant's servant in taking a large horse-drawn vehicle into the narrow lane flanked by glassed-in windows and awarded the plaintiffs £59 12s. 7d. damages. The defendant appealed to the Supreme Court of Victoria, which allowed the appeal and ordered a new trial.

From that decision the plaintiffs appealed to the High Court. Joske, for the appellants. The County-Court judge's decision was correct. He laid down no new test. but, applying the ordinary principles of negligence to the facts of the case, he found that there was negligence. The County-Court judge found, not that it was negligent to take horses in traffic generally, but only that it was negligent to take the horse and cart up this narrow lane with glass windows along it.

Cohen K.C. (with him Pape), for the respondent. The County- Court judge found facts which do not amount to negligence but were merely circumstances which called for the exercise of more than ordinary care. The common-law rule is that…

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.

Continue reading Nickells v Melbourne Corporation

Details

AGLC: Nickells v Melbourne Corporation [1938] HCA 14
Case: [1938] HCA 14
Decision Date: 25 March 1938

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellants, Donna Nickells and Doris Irene Richards, trading as "Le Rae," had sued the Mayor, Aldermen, Councillors and Citizens of the City of Melbourne for damages resulting from a collision between a horse-drawn garbage cart and their shop window. The County Court had found the municipality negligent and awarded damages, but the Supreme Court ordered a new trial, finding the County Court judge's reasoning insufficient.

The central legal issue before the High Court was whether the act of driving a wide horse-drawn cart into a narrow lane, flanked by shop windows, constituted sufficient evidence of negligence, even if the driver exercised care in managing the horse and cart. Specifically, the court had to determine if the circumstances of the lane's width, the cart's size, and the proximity to glass shop fronts created an inherent risk that amounted to negligence, irrespective of the immediate cause of the horse becoming startled.

A majority of the High Court (Latham C.J., Dixon, Evatt, and McTiernan JJ.) held that there was sufficient evidence to support the finding of negligence. Their reasoning focused on the principle that while using a highway is a right, it must be exercised reasonably according to the character of the way. Driving a vehicle so large that it left minimal clearance to shop windows in a narrow lane, particularly when turning, was considered an unreasonable introduction of risk. The judges reasoned that the driver was bound not to cut the margin of safety so fine that an accident was almost inevitable if something untoward occurred, such as a horse becoming startled. The fact that the cart was lawfully in the lane did not absolve the driver from the duty to exercise reasonable care in the circumstances, which included considering the potential for damage to adjoining property due to the narrowness of the lane and the size of the vehicle.

The High Court allowed the appeal, setting aside the judgment of the Supreme Court and restoring the judgment of the County Court. The respondent municipality was ordered to pay the costs of the appeal to the High Court and the costs of the appeal to the Full Court of the Supreme Court.

Orders