Sungravure Pty Ltd v Meani

[1964] HCA 16

HIGH COURT OF AUSTRALIA

McTiernan, Kitto, Menzies, Windeyer and Owen JJ.

SUNGRAVURE PTY. LTD. v. MEANI

(1964) 110 CLR 24

19 March 1964

Negligence

Negligence—Contributory negligence—Evidence—Heedless or inadvertent act—May amount to negligent act.

Decisions

1964, March 19.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal by the defendant from an order of the Full Court of the Supreme Court of New South Wales made on a motion by the plaintiff for a new trial of the action. The motion was allowed as to the first count and dismissed as to the second count. The counts were respectively for negligence and breach of statutory duty. The jury found for the defendant on both counts. The defendant brought the present appeal by leave of this Court against the order for a new trial of the first count and the appeal is concerned only with that count. The jury found against the defendant on the issue of negligence but also found that the plaintiff was guilty of such negligence as to disentitle him to recover damages. The judges who constituted the Full Court of the Supreme Court were of the opinion that the evidence was insufficient to afford prima facie proof of negligence. This decision is contested in this appeal by the defendant. (at p25)

2. The plaintiff claimed damages from the defendant in respect of a broken forearm suffered at work in the defendant's printing works. When the accident happened he had for some time been carrying out an order of the foreman to "hold" a "bumpy reel" of newsprint which was being unwound on a spindle in a machine called a spider. The reel was heavy and it was rotating rapidly: the newsprint was breaking from time to time because the condition of the reel made the mechanical tension straps somewhat ineffective. The reel was set in a horizontal position. There was not much clearance from the floor and one end of it was about ten inches from a vertical stanchion, which was opposite the near end of the reel of newsprint. To "hold" the reel meant to apply manual pressure to it while it revolved in order to steady its motion, a rag being held in the hand against the reel. The foreman gave no directions to the plaintiff how to carry out his order. It was the practice in the printing works to leave the men called brake hands, of whom the plaintiff was one, to their own devices as to how and at what place to apply manual pressure when called upon to hold a revolving reel of newsprint: they were expected to apply the pressure where it would be effective. When the accident happened the plaintiff was pressing his right hand against the lower sector of the reel he was ordered to "hold" and keeping his elbow against the inner side of the stanchion: with his arm in that position he could press effectively on the reel. The rag which he was holding against the side of the reel became caught in it and as the motion of the reel was towards him his hand was carried up with the result that his arm was jammed against the stanchion. The accident happened some time after the plaintiff was ordered to hold the reel. When it happened the foreman was himself applying manual pressure on the top of the reel. He was close to the plaintiff and if he looked down he could have seen what the plaintiff was doing. He did not do so because it was his duty to keep his eyes on the newsprint running off the reel up to the printing press. Apparently after the operation of applying manual pressure began the newsprint ran off the reel satisfactorily. It appeared from the plaintiff's evidence that this was the first time he had been called upon to hold a bumpy reel by manual pressure: that he had held reels by that means while braking as the printing press slowed down and then only for about a minute. According to his evidence he had been operating on the bumpy reel which he was ordered to "hold" for two hours before the accident happened, applying pressure to it on top and then at the side. The foreman said he did not do so continuously. It was attempted in cross-examination of the plaintiff to prove by admission that the engineer strictly forbade applying manual pressure on the side of a reel. The plaintiff said in reply that the engineer forbade it only after the accident. The engineer was not called as a witness. However, the foreman said in evidence that it was normal practice to apply manual pressure to bumpy reels and a permitted procedure to do this at the side of a bumpy reel, including the lower half sector of it, if the brake hand chose, it being a matter for him and no danger having ever been noticed before. It was elicited from the foreman by cross-examination that on the afternoon when the accident happened the only way a proof could be got was to apply "pretty hard manual pressure" to the reel and that to apply pressure at the bottom, the rotations being towards the plaintiff, was the most effective way to retard the reel. A passage in the evidence of the plaintiff reads thus: (at p27)

3. "Q. You said to my friend that you were on one side and then on the other side of the reel? A. Yes. (at p27)

4. Q. Would you mind explaining, was that during the course of the two hours? A. That was during the course of the two hours. Mr. Smith was holding the reel where I had my accident and he went upstairs for a considerable time and I went round there because I could get a better grip that side than what I could the other side. (at p27)

5. Q. When Mr. Smith was at the place where you had your accident did you see him? A. He was the other side where I was originally. (at p27)

6. Q. Did you see him? A. Yes. (at p27)

7. Q. What was he holding the reel with, a piece of rag also in the same way as you? A. No, because you couldn't -- he couldn't get in to hold the reel at the end where he was. (at p27)

8. Q. When he was in the position where you were injured did you see how was he holding the reel? A. Well, that I could not say. All I know he was holding the reel with a piece of rag. (at p27)

9. Q. When you changed over did you go round while he was there and take over? A. No. He left and I went straight round to the other side there to put more pressure on from that side". (at p27)

10. In the course of the foreman's evidence he said: "Q. You knew that afternoon, did you not, that Mr. Meani was putting pressure on at the bottom of the reel? A. I knew he was going to put pressure on the reel but which exactly which spot I could not say because he could put it on anywhere. (at p27)

11. Q. So far as you were concerned you did not mind where he put it on? A. He knew his job. He knew where to do it much better than me". (at p27)

12. The plaintiff called a witness who is a consulting engineer with experience in the field of industrial safety. This witness said that there was a risk of injury in holding the hand against the upper portion of the side of the reel next to the stanchion since there the motion of the reel was away from the workman applying manual pressure, and if his hand or sleeve were caught by the reel the momentum would be great enough to draw him between the reel and the spider. The witness also said it was not dangerous to apply pressure against the motion of the reel, that is on its lower sector if the arm was clear of the stanchion that is free to swing back towards the workman. The witness in answer to a leading question said that to place the elbow against the stanchion while pressing the hand against the side of the reel below its centre line was a dangerous thing to do -- indeed to him a very dangerous and a silly thing, although not necessarily silly to the plaintiff. The evidence negatives that the plaintiff was aware that such an accident as happened was likely: and it is clear upon the evidence that he chose to operate at the side of the reel as he did in the employer's interest and to do what he considered best to cope with the emergency in which the foreman gave him the order. (at p28)

13. In summing up the trial judge said: "In regard to the count for negligence it is said that the employer did not show reasonable care for this employee's safety, particularly because of the instruction given to the employee, the plaintiff, to use manual pressure on the reel, which was a bumpy reel, and to use pressure at a part of the reel close to the stanchion. It is said that there were other systems which might have been employed, because it is the duty of the employer to work out a safe system of work. He does not have to work out every detail of his employee's conduct, but the general system has to be reasonably safe -- he must take reasonable care to have a safe system. It is said that the system was not safe and that there were safer systems. It is said that there could be some foot control implement which would keep the man's hands away from the reel. It is said that there should be a system which did not involve the placing of the hands on the ends of the reel. You have heard of those matters; you have heard evidence of what has occurred since, for instance, evidence of an instruction not to put the hands on the end of the reel. That is not any admission on the part of the defendant that there was anything wrong with the old system and should not be taken by you in that way. It is only evidence that the machine can operate under a system which does not involve the employee in the allegedly dangerous course of placing his hand on the end of the reel. If you think that there was no evidence of negligence then you would decide for the defendant on that count. If you think that there was evidence that the defendant was negligent, then you would find for the plaintiff unless you thought that the plaintiff was guilty of contributory negligence". The jury found against the defendant on the matters of alleged negligence constituting the plaintiff's case. The result is that the negligence of the defendant created a situation of danger for brake hands ordered to hold a bumpy reel. The alleged contributory negligence was that the plaintiff was careless of his own safety in not choosing a method of applying manual pressure at the side of the reel which would avoid the danger arising from the proximity of the stanchion. In summing up on the question of contributory negligence the trial judge said: "What is alleged to be contributory negligence in this case is the act of the plaintiff in placing his hand against the end of the reel and using his forearm and elbow as a support against the rigid stanchion so that as the reel turned it depended on the free movement of his hand with the pad of cotton in it to prevent a crushing of the forearm as the angle of the hand to the reel diminished, the elbow being stationary against the stanchion. The defendant says that in choosing to do that the plaintiff was guilty of contributory negligence and a lack of reasonable care for his own safety. You have to bear in mind when considering the position of the plaintiff that he was an employee and the fact that he is not free to decide whether he will do an operation at all or not, although he may have an area of choice as to how he should do it. So far as the choice lies within his area then he must take reasonable care for his own safety. But so far as doing the job that he is going to do is concerned, he is bound to do that job. So, you should bear in mind that it is not every act that an employee does which may be dangerous to him which involves contributory negligence. His work may be dangerous of its nature and if he does it he must only show in the particular circumstances of his employment reasonable care for his own safety." (at p29)

14. The area of choice which the foreman allowed the plaintiff was not on the evidence as between a safe and a dangerous place and manner in which to apply manual pressure on the side of the reel. The order required the plaintiff, as it would appear from the foreman's evidence, to apply manual pressure at a place on the reel including the side and in a manner which in the plaintiff's judgment would be most effective to control the reel so that an unbroken supply of newsprint would be maintained to the printing press until the urgent job which was being done was completed. There was no evidence that it would have been practical to press manually with the requisite power on the lower sector of the side of the reel to steady it down without taking a risk of injury arising from the proximity of the stanchion. The manner in which the plaintiff was pressing his hand against the side of the reel when he was injured was not on the evidence something which the foreman could not have expected him to do in carrying out the order. It was not negligence on the part of the plaintiff to do what in the circumstances it was reasonable for him to believe the foreman might have expected him to do. It was risky for the plaintiff to adopt the procedure which resulted in the accident. But it does not for that reason in the circumstances permit of an imputation of carelessness for his own safety. The jury would have been entitled to find that the substantial cause of the accident was the negligence which they found against the defendant. In my opinion the evidence cannot support the finding that the plaintiff was so careless of his own safety that he was in fact the author of the injury or that the conduct alleged as contributory in part caused the injury. (at p30)

15. I think that the passage which the learned judges who constituted the Full Court of the Supreme Court quoted from the reasons of Dixon J., as he then was, in Davies v. Adelaide Chemical and Fertiliser Co. Ltd., (1946) 74 CLR 541 , is of assistance in deciding the present case: "At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long-standing practice for which he had the apparent, and, as I think, actual approval of the factory management who treated it as part of his ordinary work". (1946) 74 CLR, at pp 551, 552 I agree with the statement of their Honours that, subject to a qualification not impairing the applicability of this observation, it is important here. "The qualification" they said "is that the approval here was not necessarily of a prior habitual and longstanding practice but an anticipatory one of whatever mode of holding the reel the plaintiff, with his competence and experience, should elect to adopt as the most efficacious mode of steadying it to the end that the press should be kept running". I think that there was no evidence on which it was open to the jury to find contributory negligence in the present case. (at p30)

16. The appeal should be dismissed. (at p30)

KITTO, MENZIES AND OWEN JJ. The appellant company was the defendant in an action for damages for personal injuries brought against it by the plaintiff, the respondent to this appeal. The action arose out of an occurrence at the appellant's printing works where the respondent was employed as a brake hand. His duty was to attend to a machine called a "spider" upon which was mounted a large heavy reel of newsprint. The paper is drawn from the "spider" by mechanical means to a printing press on the floor above and in the process the reel rotates at a high speed. It is necessary that an even tension be kept on it during this process so that the paper will not tear or break while it is being drawn off and this is normally applied by tension straps which exert a braking effect on the revolutions of the reel but these straps are not always effective if the reel has lost its cylindrical shape by rough handling. The reel which was in the "spider" when the respondent received his injuries was in this condition with the result that braking pressure, in addition to that being exerted by the tension straps, was necessary to steady its revolutions and this could only be done by applying manual pressure to it as it revolved. A charge hand named Smith was exercising a general supervision over the work and, at the time of the accident, was standing on one side of the reel pressing his hand against its upper portion to maintain the tension. At the point where he had his hand, the reel was rotating towards him. The respondent, who was standing on the other side of the machine, was asked by Smith to "hold the reel" so that he, Smith, might attend to some other work. The respondent, holding a piece of rag in his right hand, thereupon placed it on the lower part of the end or butt of the reel, which at that spot was rotating towards him and upwards. He could not have placed it on the top portion of the reel which would have been revolving away from him since it was from that portion that the paper was being drawn off by the printing press. Close to the butt of the reel and ten inches from it was an upright stanchion and, to put his hand on to the butt, the respondent had to put his forearm into this ten-inch space with his hand pointing downwards and inwards towards the revolving butt. In order to increase the pressure of his hand on the butt he braced his elbow against the stanchion. The piece of rag which he was using as a pad became caught in it in some way and this pulled his hand and the lower part of his forearm towards the horizontal position. Since his elbow was braced against the stanchion, it was impossible for his forearm to be pushed out or pulled clear of the gap between the butt and the stanchion and his arm was fractured by being compressed between the revolving reel and the stanchion. (at p31)

2. The declaration contained two counts, the first based upon negligence and the second alleging a breach of the Factories and Shops Act in failing to fence dangerous machinery. One of the defences raised to the first count was that the respondent had been guilty of contributory negligence, not because he had placed his hand on the butt of the reel to brake its movement but because he had braced his elbow against the stanchion thus making it impossible for his forearm to be thrown clear or pulled away if his hand or the cloth which he held in it was thrust upwards by the rotation of the reel. The defence to the second count was a denial that the part of the machine concerned was dangerous. (at p32)

3. The learned trial judge was of opinion that there was evidence of contributory negligence and accordingly left that issue to the jury on the first count. They returned a verdict on it for the appellant, stating that they found that there had been negligence on the part of the appellant and that the respondent had been guilty of contributory negligence. They also found a verdict for the appellant on the second count. (at p32)

4. On appeal to the Full Court, a new trial was ordered on the first count upon the ground that there was no evidence on which a finding of contributory negligence could be made and that his Honour had erred in leaving that question to the jury. From that decision, this appeal was brought by the appellant by leave of this Court. (at p32)

5. In the judgment of the Full Court their Honours referred to evidence given by Smith that the respondent was a man of long experience in working these machines, and that no directions had been given to him to apply pressure to the butt of the reel rather than to some other part of it or to brace his elbow against the stanchion in applying pressure. It was, Smith had said, "a common practice to hold the reel and each brake hand has his own slightly different method of holding it". "Holding the reel" was a "permitted practice" and it could be done by the brake hand applying pressure "wherever he chose to put his hands". "They all have slightly different ways of holding these reels. One will hold it at a bit of an angle this way or that way, or one will hold it with this hand or one will put it over the top and one will put it on the side. They just use different little techniques and I cannot get everybody to do exactly the same technique on everything". He said too that the plaintiff "knew where to do it much better than me". We refer to this evidence because although their Honours took the view that on the evidence "there was more than one way in which the reel might have been held, some involving an element of danger to the person holding it and the others not" and that "the mode in which the reel was to be held was left entirely to the plaintiff's judgment", the area of choice left to the respondent was a limited one and, in these circumstances, he must be regarded as having been directed by Smith "to hold the reel in the dangerous manner which he adopted". In such case, they said, it was not open to the jury to find that he had been guilty of contributory negligence because he had merely obeyed his instructions. But, with respect, it is not possible in the present case to say that in bracing his elbow against the stanchion in order to exert pressure on the reel the respondent was merely acting in accordance with instructions. The instruction given by Smith was to "hold the reel" - not to do so in any particular way. Had there been no method of applying pressure other than that which the respondent adopted, different considerations might have applied but, notwithstanding the arguments that were addressed to us on his behalf, we think it was open to the jury to take the view that he could have applied pressure to the butt of the reel without placing his elbow in such a position that, if the rotating reel forced his hand upwards, his arm could not be thrown or pulled free. In these circumstances, it was a matter for the jury to consider whether, in acting as he did, he showed a lack of care for his own safety and the question of contributory negligence was therefore rightly left to them. (at p33)

6. In support of the Full Court's decision counsel for the respondent made the further submission that the evidence was equally consistent with the view that the respondent had merely acted thoughtlessly or inadvertently and not negligently and that, in these circumstances, a finding of contributory negligence could not be made. The argument seemed to proceed upon the basis that there was a clear line of distinction to be drawn between an act done without reasonable regard for one's own safety on the one hand and an act done inadvertently or without thought on the other. But we are unable to agree that this is so. An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact. (at p33)

7. Finally it was submitted that the order of the Full Court granting a new trial should stand because the learned trial judge had, in two respects, failed adequately to direct the jury on the question of contributory negligence. It was said that he had failed to tell them that they should not find that the respondent had been guilty of contributory negligence unless they also found that there was some method of applying pressure to the reel other than by placing his elbow against the stanchion. No such direction was sought at the trial nor does there appear to be any ground of appeal directed to the point and the submission cannot therefore be sustained. It should be added, however, that, while his Honour did not direct the jury in those terms, he told them that they must "bear in mind when considering the position of the plaintiff that he was an employee and the fact that he is not free to decide whether he will do an operation at all or not, although he may have an area of choice as to how he should do it. So far as the choice lies within his area then he must take reasonable care for his own safety. But so far as doing the job that he is going to do is concerned, he is bound to do that job". (at p34)

8. It was said also that his Honour had fallen into error in a direction which he gave to the jury in response to a request by counsel for the respondent. Counsel asked him "to direct the jury that a heedless or inadvertent act is not necessarily negligent". To this his Honour replied "Yes, I will give that direction" and proceeded to tell the jury that "A heedless or inadvertent act, which was what I attempted to put before, is not negligent. It has to show a lack of reasonable care for his own safety. It is a question for you whether you think a heedless or inadvertent act shows a lack of reasonable care for his own safety". The only criticism that might be made of this direction is that it omitted the word "necessarily" an omission of which the respondent cannot complain. We would add that we agree with the discussion of the authorities in the judgment of Windeyer J. (at p34)

9. The appeal should be allowed. (at p34)

WINDEYER J. The plaintiff in the action, the respondent in the appeal, sued the defendant on two counts: the first in common law negligence; the second for damages caused by breach of an obligation, under the Factories and Shops Act (N.S.W.), to fence dangerous machinery. That a failure to fence such machinery in the manner prescribed by that Act can, when harm thereby ensues give rise to a civil liability is not disputed. It is one of the cases - and they are not, in my opinion, as numerous as has sometimes been supposed - when a failure to observe precautions prescribed to ensure safe working conditions is not merely evidence of negligence, but of itself provides a cause of action, an absolute liability which, in New South Wales, is unaffected by conduct amounting to contributory negligence on the part of the plaintiff. (at p34)

2. In the present case the jury found that there had been no breach of the statutory duty to fence the machinery. Apparently they thought that, unfenced, it was not dangerous, and that conclusion was clearly open and is quite unchallengeable. On the count in negligence the jury found the defendant, the appellant, to have been negligent. There was ample material on which they could so find, having regard in particular to the failure of the defendant to provide effective braking straps to prevent uncontrolled overrunning of the spool of the machine, making it necessary to resort to retarding it by hand. But the jury also found that the plaintiff's conduct amounted to contributory negligence. Therefore, in accordance with the law of New South Wales, where the common law has not been altered to allow apportionment of responsibility, they found a verdict for the defendant and judgment was entered accordingly. This verdict was set aside by the Full Court, substantially on the ground that there was no evidence of contributory negligence. (at p35)

3. If we had to consider for ourselves whether the jury's finding was correct, I might perhaps think that it was not. I see little in the evidence, so far as its effect is revealed by the written transcript, that would make me think that the respondent was, in any relevant sense, careless of his own safety. I would be inclined to recall the words used by Lord Keith of Avonholm in John Summers &Sons Ltd. v. Frost (1955) AC 740 : "There is no question here of disobedience to orders, or of reckless disregard by a workman of his own safety. At most there was a mere error of judgment by the plaintiff as to how the work on which he was engaged could best be carried out, and possibly only a mere momentary inadvertence" (1955) AC, at p 777 . It is said that the respondent's negligence lay in choosing to perform the task he was directed to perform in an unreasonable and imprudent manner. He adopted an attitude and method for manually retarding the rotation of the machine that led to his arm being broken. It may be that some other method should have presented itself to his mind as being sufficiently efficacious, free from danger or less risky than the one he adopted. The jury apparently thought that was so. And it cannot, I think, be said that there was no evidence on which they could so find. The question was for them to decide. I think, therefore, that their verdict should not have been disturbed, notwithstanding that it is not clearly apparent to me that the harm that ensued was anything other than an unexpected and untoward result of what, in the course of his duties, the plaintiff did, or that there was some way of doing it that was obviously satisfactory, and less risky. (at p35)

4. The Full Court, in deciding that there should be a new trial of the negligence count, was largely influenced, as their Honours' judgment shows, by passages in the speeches in the House of Lords in Caswell v. Powell Duffryn Associated Collieries Ltd. (1940) AC 152 . And counsel for the respondent pressed upon us what Lord Wright said there. That case turned upon the availability of contributory negligence as a defence in an action based on a breach of a statutory duty. That question does not arise in this case; first because here the jury found there was no breach of a statutory duty; secondly because in New South Wales the legislature has provided that contributory negligence shall not be a defence to an action for damages founded on breach of a statutory duty (Statutory Duties (Contributory Negligence) Act, 1945 (N.S.W.)). In considering Caswell's Case (1940) AC 152 it should therefore be remembered that much that was said there was directed to a cause of action based upon a statute, and to contributory negligence in such a case: see Staveley Iron and Chemical Co. Ltd. v. Jones (1956) AC 627, at pp 642, 647 . Of course, in considering whether there was contributory negligence by a workman in a case in which his employer is sued for negligently failing to provide a safe system of work, the circumstances and conditions in which he had to do his work must be borne in mind. A safe system of work is one that is safe for an average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders. It is probably true that the attitude of courts to what amounts to contributory negligence has varied with changes in the law. It has depended somewhat upon whether contributory negligence provides a complete defence, preventing the plaintiff from recovering at all, or merely leads to an apportionment of damages: see Stapley v. Gypsum Mines Ltd. (1953) AC 663 , per Lord Porter (1953) AC, at p 677 . But whether in a particular case there was negligence, whether primary negligence or contributory negligence, is a question of fact. It depends upon all the facts of the particular case. But it was argued for the respondent that Caswell's Case (1940) AC 152 had laid down some special rule of law as to the nature of negligence when the matter sued upon was an occurrence in a factory; and also that it established or recognized a rigid distinction in law between a heedless or inadvertent act and negligence. In my view that case gives no support to either of these remarkable propositions. (at p36)

5. Nothing said since 1856 has made less true the simple statement of Alderson B. in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch 781 (156 ER 1047) : "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" (1856) 11 Exch, at p 784 (156 ER, at p 1049) . Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances. When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man. But I quite fail to see how considerations of setting and circumstances can produce any rule of law or any general principle applicable to activities in factories that is not applicable to activities elsewhere, in a coal-mine, a musterers' camp, a shearing shed, upon a highway or anywhere else. In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care. These things were for the consideration and evaluation of the jury. Negligence is, in every case, a question of fact. In no case can the answer to that question be found in words, however eloquent, uttered by judges, however eminent, about the facts of some other case. I adhere to what I said on this matter in Teubner v. Humble (1963) 108 CLR 491, at pp 503, 504 . (at p37)

6. The second proposition which it was sought to extract from Caswell's Case (1940) AC 152 is in my view still more erroneous. Seizing upon the sentence in Lord Wright's speech - "The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins" (1940) AC, at p 176 - counsel argued that this meant there was a distinction between thoughtlessness, inadvertence, forgetfulness and negligence. He said that the first three on the one hand, and negligence on the other, were mutually exclusive concepts. There is obviously no objection to describing conduct which briefly falls short of the highest standard of care as inadvertent; and, if it does not amount in all the circumstances to negligence it is not negligence. The two terms were used in that sense not only in Caswell's Case (1940) AC 152 but following it in Cummings v. Richard Thomas &Baldwins Ltd. (1953) 2 QB 95; on appeal (1955) AC 321 where Lord Porter said: "I am inclined to agree with the courts below that it was inadvertence rather than negligence on the respondent's part which led to the accident" (1955) AC, at p 331 . But, whereas the law knows what is meant by negligence, it has no precise definition of inadvertence which would make it a distinct legal concept. Counsel offered us no definitions in support of his proposition. And the field is one in which the use of abstract words, imprecise and undefined, descriptive of states of mind, is never helpful and can be misleading. The propositions that we heard would surely be surprising to a student of analytical jurisprudence - to anyone who remembered, for example, Austin's statement that "The states of mind which are styled 'Negligence' and 'Heedlessness', are precisely alike. In either case the party is inadvertent." (Jurisprudence, 4th ed. (1873) p. 440), or who was acquainted with Hearn's adoption of Austin's categories (Legal Rights and Duties, pp. 104-106), or with Salmond's use of the term "inadvertent negligence" (Jurisprudence, 6th ed. (1913) p. 35), to say nothing of more modern writers and of the terminology of psychology to-day. Moreover, in ordinary parlance, a thoughtless act when a reasonably prudent man would take thought, an inadvertent act when he would be vigilant, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on his part. What Lord Wright said was that mere thoughtlessness or inadvertence is not necessarily negligence. That is indisputable. The mental processes of the plaintiff and of the defendant in a negligence action, although relevant in so far as they were related to their actual knowledge of the risks of what they were doing, are not decisive of the question whether there was negligence or contributory negligence, for that has to be judged by external and objective standards. The law of negligence is concerned with acts, with conduct that is negligent rather than states of mind. The accompanying mental processes of the individual are circumstances, not the fact in issue. As Tindal C.J. put it, "Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual . . . we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe": Vaughan v. Menlove (1837) 3 Bing (NC) 468, at p 475 (132 ER 490, at p 493) . Counsel for the plaintiff asked the learned trial judge at the end of his summing up to direct the jury that "a heedless or inadvertent act is not necessarily negligent". His Honour assented, saying simply: "A heedless or inadvertent act, which was what I attempted to put before, is not negligent. It has to show a lack of reasonable care for his own safety. It is a question for you whether you think a heedless or inadvertent act shows a lack of reasonable care for his own safety". That, taken with the summing up as a whole, could have left the jury under no misapprehension as to the question they had to decide. It certainly was not unfavourable to the plaintiff. (at p39)

7. I would allow the appeal and restore the verdict of the jury. (at p39)

Orders

Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that appeal to that Court be dismissed with costs.