R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott

[1933] HCA 33

25S HIGH COURT

[1933.

[HIGH COURT OF AUSTRALIA.]

WILLIAMS .

A ppellant:

P l a in t if f ,

AND

THE COMMISSIONER FOR ROAD TRANS­

PORT AND TRAlVrVAAYS (NEW SOUTH

R espondent.

W A L E S )................................................

D e f e n d a n t , ‘

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

H C OF A

Negligence— Pedestrian crossing street— Injured by tram-car—Defendant’s negligem

](j3g

proved— Contributory negligence— Burden of proof.

S y d n e y , In an action for damages for negligence, once initial negligence on the part

of the defendant is established, the burden of proof is upon the defendant to

A u j .

10,11.

establish contributory negligence in the plaintiff, and th a t that contributory

Dixon, Evatt

and .Me lie/iiaii

negligence was a proximate cause of the accident.

S3.

A verdict for the plaintiff cannot be set aside on the ground that contributorj' negligence has been conclusively proved unless on the facts hi evidence there is no explanation of his conduct consistent with proper care on his part.

Commissioner of Railways v. Leahy, (1904) 2 C.L.R. 54, and Fraser v. Vic­ torian Railways Commissioners, (1909) 8 C.L.R. 54, discussed.

Decision of the Supreme Court of New South Wales (FuU Court); Com­ missioner for Road Transport and Tramways v. Williams, (1933) 33 S.R- (N.S.W.) 250; 50 N.S.W.W.N. 116, reversed.

A p p e a l from the Supreme Court of New South Wales.

An action was brought by Edith Rose Williams, under the provisions of the Compensation to Relatives Act 1897 (N.S.W.), against the Commissioner for Road Transport and Tramways, to

50 C.L.R.] OF AUSTRALIA.

259

recover damages for the loss which she had sustained by reason of C- of A.

the death of her husband, who was struck by a tram and killed in

George Street, Sydney. The plaintiff alleged that the accident was

W illiam s

due to the negligence of the driver of the tram, who was an employee

Commis-

of the defendant Commissioner. The accident occurred at about was about midway between two tramway stopping-places for south­ bound trams, and that the tram was travelling at a steady pace of about eight to ten miles per hour. He said ;—“ After I left the stopping-place before Martin Place and after crossing Martin Place almost near the Post Office, all of a sudden I saw a person step right on the fine in front of me, standing in front of me on the line within about three feet. I applied my emergency brake immediately and rang my bell. I had not seen that man before. . . . I do not know just exactly where he came from. I stopped my car within.

12-30 p.m. on 10th August, in George Street, opposite to the inter- T ransport

section with Barrack Street. The deceased, who was sixty-five T ramw ays

years of age, was described by the plaintiff as an active man in good ' " ' ’

health with unimpaired eyesight and hearing. He apparently

intended to cross over from the western side of George Street to the

eastern side, lea\’ing the western pavement at a point a little south

of the corner of Barrack Street and George Street. The weather

was fine, and the evidence established that there was not any traffic

in the vicinity at the time. A witness who gave evidence on behalf

of the plaintiff stated that he saw the deceased walking straight

across the road and watched him crossing practically until the

accident happened. At the last moment before the deceased was

struck by the tram the witness’s view became obscured by the

tram itself, but his evidence was that the deceased apparently

walked at a steady pace across the road until he was struck by the

tram. The witness further stated that he first saw the tram

approaching in a southerly direction towards King Street, when

deceased reached the first line of rails on the western side. He stated

that the tram was travelling “ pretty fast,” and it continued to

come on, maintaining the same speed all the time. The deceased

and the tram continued to approach one another until finally the

tram struck the deceased, knocked him down and he was killed.

260 HIGH COURT

[1933.

H.C. OF A.I suppose, about eight feet from the time I applied the emergency.”

1933. Under cross-examination the driver stated that he did not know in

W illiam swhich direction the deceased was walking, and in fact never had

V.

time to see whether he was walking or not.

He did not notice him

Com m is­

s io n e r

FOR

R oad

until the tram was only three feet away from the deceased, when

T ra nspok 'I’

ANDit was too late to take effective measures to prevent the accident.

T ramw aysThe jury found a verdict for the plaintiff, and awarded her the sum

(N.S.W.).

of £350 as damages.

The Full Court of the Supreme Court allowed an appeal, set aside the verdict, and in lieu thereof entered a verdict for the defendant. In the course of its judgment the Court said :—“ The plaintiff is only entitled to succeed, if there is evidence from which the jury might properly draw the inference that the negligent conduct of the defendant’s servant, that is the driver of the tram, was the effective cause of the accident which resulted in the death of the deceased. . . . On the facts of the present case there is nothing in the evidence which could leave the minds of the jury in other than a condition of perfect balance as to whose negligence was the effective cause of the accident, unless they resorted to speculation or conjec­ ture, and this they are not entitled to do ” : The Commissioner for Road Transport and Tramways v. Williams (1).

From this decision the plaintiff now appealed, in forma pav.feris, to the High Court.

Other material facts appear in the judgment of Dixon J. hereunder.

Piddington K.C. (with him Herron and Curlewis), for the appellant. AVhere a person has been injured through the negligence of the defen­ dant the question arises whether the conduct of the defendant induced or affected the conduct of the injured person {Coyle v. Great Northern Railway Co. of Ireland (2) ). The conduct of the defendant and of the plaintiff should be examined together. To consider them apart and, in the event of a perfect balance, to say that the defendant must, therefore, succeed is wrong (Smith v. South Eastern Railway Co. (3) ). The deceased wao not negligent if his conduct was induced

or affected by the conduct of the driver of the tram.

The deceased

(1) (1933) 33 S.R. (N.S.W.) 250:

(2) (1887) 20 L.R. Ir. 409.

50 N.S.W.W.N. 116.

(3) (1896) 1 Q.B. 178.

jO C.L.R.] OF AUSTRALIA.

261

was entitled to rely upon the driver having perfect control of the

H. C. or A.

1933.

tram, and also upon the customary soimding of the bell as a warning

of a threatening danger {The Commissioner of Railways v. Leahy

W illiam s

V.

(1) ). The evidence as to speed, the non-sounding of the bell, and the unsatisfactory look out shows that the driver did not exercise

COMMIS-

SIONEB FOB

R oad

T banspobt

that measure of prudence an ordinary man would use having regard

AND

to the vehicle of which he had charge. In considering whether the T bamw ays

(N.S.W.).,

deceased was negligent or not, consideration must be given to his state of mind, and how far his state of mind was confused. According to the evidence the deceased crossed the road in the ordinary and normal manner, and there was no suggestion of undue haste on his part. Even assuming that the deceased was negligent he was, nevertheless, entitled to be warned, and entitled to be guarded. [Counsel was stopped.]

Watt K.C. (with him Kinsella), for the respondent. There is no e\idence from which the conclusion can be drawni that the conduct of the driver was the cause of the accident. The evidence does not establish negligence on the part of the driver. I t is not reasonable to suggest that, whenever a driver sees a pedestrian crossing the street along which the tram is proceeding, he should sound the bell and apply the brakes. Such a suggestion is impracticable, and its apphcation would speedily result in a chaotic condition of affairs. Having regard to the usual practice of pedestrians when crossing busy thoroughfares, the driver was entitled to assume that the deceased, a normal person, would not, on his journey across the road, proceed beyond the ultimate margin of safety. Upon the evidence it is difficult to avoid the conclusion that the death of the deceased was due to his own negligence. I t does not necessarily follow that because the deceased was killed by the tram the tram- driver, or other servant of the defendant, was either wholly or partly to blame (Wakelin v. The London and South Western Railway Co. (2)). The deceased went on to the tram-lines by his own act.

It was the duty of the deceased to maintain a look out.

If he did

not look for approaching traffic he was negligent.

If he looked, he

(1) (1904) 2 C.L.R. .54.

(2) (1886) 12 App. Ca.s. 41 ; (1896) 1 Q.B. 189ra.

VOL L.

18

262 HIGH COURT

[1933.

H.C. OF A.must have seen the approaching tram, and if, having seen tbe tram,

1933. he continued to proceed he was negligent {The Commissioner of

W illiam sRailways v. Leahy (1) ; Fraser v. The Victorian Railways Commis­

V.

sioners (2) ; M ‘Lean v. Bell (3) ).

There is no suggestion that the

Comm is­

s io n e r FOE

R oad

tram was going at an unreasonable speed, and there is no evidence

T ransport

ANDwhatever to contradict the driver’s statement that at the time the

T ramw aysdeceased got on the tram-track it was impossible to avoid the

(N.S.W.).

accident. The decision in Swadling v. Cooper (4) depended upon the facts in evidence in that case. Although on the evidence before them their Lordships thought there could have been no time for the avoidance of the accident in that case evidence might have been tendered which would have made it a matter for the jury. This is not a case of continuing negligence {British Columbia Electric Raihoay Co. v. Loach (5) ).

[Dixon J. referred to Rodgerson v. J. B. Zander Pty. Ltd. (6).]

The mere failure of the driver to see the deceased sooner than he did did not entitle the jury to find that the driver was not keeping a sufficient look out. I t was as much the duty of the deceased as of the driver to keep a sufficient look out, and to take all proper care {Cotton v. Wood (7); Dublin, WicFlow, and Wexford Railway Co. V. Slattery (8) ).

[Dixon J. referred to Fraser v. The Victorian Railivays Commis­ sioners (9).]

At most, the accident was the result of joint action by the driver and the deceased; therefore, in the circumstances, the defendant was entitled to the verdict.

The following judgments w’ere delivered :—

D ix o n J. This is an appeal from a judgment of the Full Court

of New South Wales setting aside the verdict of the jury in favour

of the plaintiff and entering judgment for the defendant. The

action is one of negligence and arose out of a street accident in which

the plaintiff’s husband lost his life. The case for the plaintiS

(1) (1904) 2 C.L.R. 54.(6) (1921) V.L.R. 103 ; 42 A.L.T. 117

(2) (1909) 8 C.L.R. 54.

(7) (1860) 8 C.B.N.S. 568 ; 141 E.R.

(3) (1932) 48 T.L.R. 467.

1288.

(4) (1931) A.C. 1.

(8) (1878) 3 App. Cas. 1155, at p.

(5) (1916) 1 A.C. 719.

1166.

(9) (1909) 8 C.L.R. 54.

50 C.L.R.] OF AUSTRALIA.

263

necessarily rests upon the evidence of the bystanders and the real H. C. op A.

difficulty which has given rise to these proceedings arises from the

‘

inability to obtain any precise evidence of why it was that the W illiam .s

plaintiff’s husband w'as himself unable to avoid the casualty which

Comm is-

caused his death.

The accident occurred in George Street near the

place where Barrack Street runs into George Street. The tram-car T ransport which caused the death of the plaintiff’s husband was boimd in a T ramways southerly direction. The plaintiff’s husband was first seen by the * ' bystanders at or leaving the south-westerly corner of Barrack Street

and George Street. He proceeded to cross the road more or less at right angles towards the other side of George Street. The tram-car in question had left the stop near Angel Place, the other side of Martin Place, and was proceeding tow^ards King Street. It had gathered an even pace, but the evidence is not consistent as to what that pace was, various estimates having been given, as is not imusual, by the witnesses. The tram-car collided with the plaintiff’s husband, w'ho by that time had reached either the middle or the left band side of the tram-track upon wffiich the tram was proceeding. In the accident the glass destination indicator on the tram w'̂ as broken. There was some evidence that the near side of the tram-rail had been reached and the plaintiff’s husband was seen on that side, so that he must have reached a position in the middle where the glass w'as broken or a little further towards the George Street easterly side.

The first question for consideration is wffiether there is not sufficient evidence to justify the jury in finding that the Road Transport and Tramways Commissioner’s servant, the driver of the tram, was guilty of a want of care which w'as the effective or proximate cause of the accident. In my opinion there was abundant evidence. That evidence lies principally in the account which the driver himself gives of what he saw and did. He says that he did not see the plaintiff’s husband until he w'as within three feet, vmtil the accident was imminent and rmavoidable, and it was then he put on his brakes and sounded the bell and attempted to stop the tram. I t is said that this evidence is consistent with his having maintained an adequate general look out but having failed to observe, that is, take into his consciousness, the presence of the plaintiff’s husband. The

264 HIGH COURT

[1933.

H.G. OF A. jury took the other view, namely, that his failure to see the plaintiffs

1933.husband was accounted for by his attention being attracted or

W illiam sturned away and that he was negligent. That such negligence was

V.

Comm is­

a proximate cause of the accident could not be disputed if that

sio n e r

FOR

R oad

negligence were found. In the absence of a proper look out the

T ra nsportplaintiff’s husband was not seen ; in the presence of a proper look out

AND

T ramw ayshe would have been seen, and it is almost certain that, if he had

(N.S.W.).

been seen some distance away, the tram-driver would have been able

Dixon J.to reduce his pace and the plaintiff’s husband would have escaped

injury.

The next question that emerges in cases of this description is whether the plaintiff’s husband was himself guilty of a lack of care and thus contributed materially to the accident. That in substance means that he did not take reasonable care, and that if he had taken it, he wmuld have avoided the consequence of the negligence presupposed on the part of the defendant. I t is upon that question that the great difficulty in this case rests. The Full Court were of opinion that the circumstances of the accident establish that the plaintiff’s husband did neglect that precaution which, if taken, would have avoided the consequence of the defendant’s negligence, and that this neglect of precaution continued to such a stage that the accident was due to the joint negligence of the parties. The question for the Court is not whether in point of fact that is the correct solution of the casualty but what views the jury are at hberty to take of the matter. Once initial negligence is established on the part of the defendant, the burden of proof is upon the defendant to establish contributory negligence in the plaintiff’s husband. In examining the question whether the verdict of the jmy can be set aside on the gromid that contributory negligence was conclusively proved, one must beware of substituting one’s own opinion of the cause of the accident for those views which the jury are entitled to take. The verdict of the jury cannot be set aside and a contrary verdict substituted unless on the particular issues the party was entitled as a matter of law to have that verdict. The burden of proof being against the respondent, he must make out that there was no reasonable explanation of the conduct which the evidence shows consistent with the presence of due care on the part of the

50 C.L.R.] OF AUSTRALIA.

265

plaintiff’s husband.

In my opinion it was competent to the jury to H- C- of A.

refuse to find that he had been guilty of contributory negligence

’

which was a proximate cause of the accident. I t was open to them

W1LLIA.M.S

V.

to suppose it was possible that he was keeping a proper look out

Commis­

sio n er

FOR

in the street but that he miscalculated the speed of the tram and

R oad

committed a mere error of judgment in relation to the pace of the T ransport tram. It was open to them to suppose as another hypothesis that T ramways

he was distracted by the passage of the motor car in the opposite ̂

^

Dixon J.

direction and took his attention away from the tram-car for sufficient time to put himself in jeopardy. I am not suggesting that these are the views which I personally take. In those circumstances one of the ivitnesses’ views may have appealed to the jury and they may have thought that the driver, by retarding the tram, if he had seen the plaintiff’s husband crossing the road, might have avoided the accident, and that it was from first to last his lack of caution in not keeping a look out which led to the final result. If the jury had thought that at some stage the plaintiff’s husband had been guilty of contributory negligence, they still might have considered that that could have been avoided by due care on the part of the driver, if he had ceased to omit the precaution of looking out at some stage before it became impossible to diminish the speed of the tram. In those circumstances it appears to me that it is impossible to say that the jury was bound as a matter of law to find that contributory negligence was the effective cause of the accident, or the decisive cause of the accident if the rule of last opportunity is taken into account. The judgment of the Full Court proceeds upon reasoning, with which we are all familiar, which places the plaintiff’s husband in this dilemma ; either he did look and saw the tram, in which case to proceed would be negligent; or he did not look, in which case his failure to look was negligence. Passages were cited from Fraser v. The Victorian Railways Commissioners (1) and The Commissioner of Railways v. Leahy (2). I t must be remembered, in dealing with the observations of Sir Samuel Griffith C.J. in those cases, that they ŵ ere observations on facts and do not profess to be laying down principles of law. He was dealing with what were the necessary deductions of fact to be made in those cases from the

(1) (1909) 8 C.L.R. .54.

(2) (1904) 2 C.L.R. fj4.

266 HIGH COURT

[1933.

H. C. OF A. circumstances disclosed by the evidence.

I t will often be found

]933.

that the mode of reasoning employed is applicable in dealing with

W illiam squestions of fact \vhich must be submitted for decision by the jury.

V.

Com m is­

Less often wall it be found applicable when the jury’s verdict has

s io n e r

FOR

l lO A D

passed against the defendant and the question is whether the verdict

T banspop.tw’as open to the jury.

An apparent dilemma is often found imperfect,

AND

T ramw aysand it is so in this case, because it omits more than one possible

(N.S.W.).

explanation. I t omits, for instance, the view that the plaintiff’s

Dixon J.

husband did see the tram but made an error of judgment in seeking to cross in front of i t ; further, it leaves out of account the possibility that, even if the plaintiff’s husband ŵ as pursuing his w-ay across the road wnthout looking north at all, the tram-driver might have avoided the consequence of his proceeding in that way by the exercise of care if he had been keeping a look out. It is not a sufficient answ’er that the plaintiff’s husband’s negligence continued right up to the end, for this reason ; the jury were at liberty, though not bound, to form the impression that he ŵ as the first to see the danger and that the evidence which says that he seemed to stand a moment before the oncoming tram in a state of danger, as if he had become confused, meant that, although he was the first to see the danger, he failed in quickness of decision. If the danger had also been seen earlier by the tram-driver, in these circumstances he might just have averted the collision.

For these reasons I am unable to agree with the judgment appealed from, and think that the appeal should be allowed.

E v a t t J. I agree. I t seems to me that this case belongs rather to the class of case represented by McLean v. Bell (1) than to that of Swadling v. Cooper (2) and his Honor the trial Judge was quite entitled, and indeed bound, to leave the issues to the jury. Further, I agree that there is ample evidence of carelessness on the part of the tram-driver in relation, first to the speed of driving, secondly to the keeping of a proper look out, and thirdly in relation to not sounding his bell. With regard to the deceased, I think it was open on the evidence for the jury to find that, at the most, he was guilty of a miscalculation wffiich did not, m the circumstances,

(1) (1932) 48 T.L.R. 467.

(2) (1931) A.C. 1.

50 C.L.R.] OF AUSTRALIA.

267

amount to such imprudence as to constitute carelessness or negligence

H. C. OF A.

1933.

at all. But, assuming that the jury might have thought deceased careless or negligent, I also think the evidence entitled the jury to

W illiam s

V.

come to this conclusion, that although the deceased vas careless,

Commis­

s io n e r

FOB

the tram-driver, and he alone, had the opportunity, by driving

R oad

carefully, to avoid aU injury to the deceased. In these circumstances,

T ra nsport

AND

the conclusions of fact being open to the jury, they should not have T ramways

(N.S.W.).

been disturbed by the Full Court. I therefore think that the

appeal should be allowed.

Evatt J.

McT ie r n a n j .

I am of the same opinion.

Appeal allowed with costs appropriate to an appeal in forma pauperis. Judgment of the Supreme Court discharged. In lieu thereof, restore the verdict of the jury and enter judgment thereon for the plaintiff. Respon­ dent to pay the costs of the appeal to the Full Court of the Supreme Court.

Sohcitor for the appellant, G. N. Badham.

Solicitor for the respondent, F. IF. Bretnall, Solicitor for Trans­

port.

J. B.