Bugg v Day

[1949] HCA 59

High Court of Australia|1949-07-01|Before: Webb JJ, Owen JJ

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Source facts

Court

High Court of Australia

Decision date

1949-07-01

Before

Webb JJ, Owen JJ

Source

Original judgment source is linked above.

Judgment (84 paragraphs)

[1]

High Court of Australia Latham C.J. Dixon, McTiernan, Williams and Webb JJ. Bugg v Day [1949] HCA 59

[2]

ORDER Appeal allowed with costs. Order of Full Court set aside. In lieu thereof dismiss motion for new trial with costs. Restore verdict of jury and judgment for plaintiff for £2,928 with costs.

[3]

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales directing a new trial (Maxwell and Owen JJ., Jordan C.J. dissenting) in an action of negligence in which James Bugg sued James V. Day for damages in respect of injuries suffered as the result of a collision between a taxi-cab driven by the defendant and a motor cycle ridden by the plaintiff. The jury gave a verdict for the plaintiff for £2,928. The defendant successfully applied to the Full Court for a new trial. The grounds of the application were: - (1) That the summing up as a whole was unfair to the defendant in that it did not properly put his case to the jury. (2) That the learned trial judge did not clearly tell the jury that there was only one issue between the parties, namely as to the direction in which the plaintiff was travelling along Yaralla Street on the motor cycle when the accident happened at the intersection of that street and Mackenzie Street, that is, whether he was travelling east as he said or west as the defendant said. The defendant was travelling south along Mackenzie Street. If the plaintiff was travelling in an easterly direction he was on the defendant's right and it was the duty of the defendant to give way to him under a regulation made under the Motor Traffic Act 1909-1937 N.S.W., which provides that a driver must give way to another driver on his right-hand side if the circumstances are such that both vehicles are approaching so that if one or other does not give way there will be a collision. If the plaintiff was riding in a westerly direction he should have given way to the taxi-cab. It was said that the judge did not put it clearly to the jury that this was the sole issue in the action, with the result that, even if the jury found that the plaintiff was, contrary to his own case, travelling west, the jury might have given him a verdict because there was some evidence that the taxi-cab was being driven at a high rate of speed. If such a case had been made by the plaintiff it would have been open to the defendant to seek to make a case against the plaintiff on contributory negligence. But nothing was said about contributory negligence in the course of the trial or in the summing up. (3) That evidence of one Carroll that he concluded from an inspection of the motor cycle after the accident that the taxi-cab was travelling at forty miles an hour was wrongly admitted. (4) That evidence of convictions of the defendant for offences in relation to motor cars was wrongly admitted. (5) That there should be a new trial because fresh evidence had been discovered which was not available to the plaintiff, with the exercise of reasonable diligence, at the time of the trial.

[8]

(3) A witness Carroll called by the plaintiff had had experience as a repairer of damaged motor vehicles. He described the state of the damaged motor cycle after the accident. There is no question as to his qualification to give such evidence. But he also said that in his opinion the taxi-cab must have been travelling at forty miles an hour. It is submitted for the defendant that Carroll was not an expert upon speed and that his opinion ought not to have been admitted as evidence. It is true that, even if Carroll had been qualified to give an opinion as to the speed of one vehicle which had collided with another vehicle when he had only seen the second vehicle, he had not been provided with data which would have been necessary to enable any person to form even an approximate estimate of the speed of either vehicle at the moment of the collision. He was not informed as to the weight of the taxi-cab or as to the distances, after the accident, of the two vehicles from the point of collision. The effect of his evidence was completely destroyed in cross-examination and the learned trial judge paid no attention to it in his summing up except to refer to the criticism of it and to say that the jury should consider that criticism and give such weight to it as they thought proper. No request was made for any further direction on this subject, and rule 151B of the Rules of the Supreme Court provides that no direction or omission to direct given by a judge presiding at a trial shall without the leave of a court be allowed as a ground for a notice of motion for a new trial unless objection was taken at the trial to the direction or omission by the party on whose behalf the notice of motion has been filed. If objection had been taken at the trial it would have been a simple matter to point out to the jury more strongly that little or no weight should be given to Carroll's evidence. But the necessary objection was not taken and in my opinion the defendant cannot rely upon this omission to direct as a ground for a new trial.

[11]

One of the commonest methods of seeking to destroy the evidence given by a witness by cross-examination is to show that because of convictions for breaches of the law he is a person who should not be believed upon his oath. There are special rules which limit such cross-examination in the case of persons charged with criminal offences. But the court was not referred to any authority showing that questions as to convictions were not admissible in cross-examination in civil proceedings. It is true that such questions may in a particular case unfairly prejudice a witness or a party. There are two safe-guards against this danger. In the first place, s. 56 of the Evidence Act 1898 N.S.W. provides as follows: - "When any question put to a witness in cross-examination is not relevant to the cause or proceeding, except so far as the truth of the matter suggested by the question affects the credit of the witness by injuring his character, the Court shall have a discretion to disallow the question, if in its opinion the matter is so remote in time, or of such a nature that an admission of its truth would not materially affect the credibility of the witness." In the present case the learned trial judge allowed the question only as to recent convictions and excluded evidence of "remote" convictions. The fact that the witness had been warned that if he broke the traffic regulations again he might lose his licence was a special circumstance which could fairly be used to show that the defendant was, even more than in the case of an ordinary defendant, vitally interested in the result of the proceedings, and that such an interest might affect his veracity. In the second place, the danger of which mention has been made may be avoided in a case where there is a jury by the trial judge expressly telling the jury that the fact that (if, e.g., it is a negligence case) a person had been convicted of negligence on some prior occasion or occasions does not help, or even begin, to establish the truth of an allegation that he has been negligent on the particular occasion which is in question. It was upon the failure of the learned trial judge to follow this course that Owen J. based his decision that by reason of the admission of evidence of convictions of the defendant it was proper to order a new trial. But the trial judge was not asked to direct the jury in the manner stated. The summing up as a whole was objected to, but no application was made for a direction as to the purpose for which the evidence of the convictions might be used by the jury, and in my opinion rule 151B, to which reference has already been made, provides a complete answer to this objection on behalf of the defendant.

[68]

The only issue of negligence which was in contest was: - Who broke the rule requiring a driver to give way to a vehicle on his right? This issue is clearly put in the summing up. The language of the summing up does not give any room for a real doubt that the jury would not have thought that such issue was the only issue for them to decide. The contrary view is that the references to speed could have led the jury into thinking that it was not the only issue; and that these references might have led them to decide the issue of negligence apart from the question whose duty it was to give way. The jury could not properly decide the case in that way without a direction on contributory negligence. No such direction was given. The direction may have been necessary to provide for the event of their rejecting the evidence adduced on behalf of the plaintiff that his direction was east. If his direction were west, it would have been his duty to give way; and it may have been contributory negligence on his part not to do so. Having regard to the issue put to the jury, a direction on contributory negligence was not necessary. The case which the summing up put to them as the plaintiff's case was the only case which he made. It was that the accident was caused by the defendant's neglect of the rule about giving way, not by negligence consisting in driving at an excessive speed across the intersection. If the jury proceeded to their verdict according to the express directions in the summing up, it seems almost certain that they found the plaintiff was driving east, the defendant, who was driving south, failed to observe the rule requiring him to give way to the plaintiff, his failure was negligence and was the cause of the plaintiff's injuries. The criticism that the summing up invited the jury to consider any other issue of negligence attributes more to the references which the trial judge made to speed than they can fairly bear. The speed at which the defendant was travelling was one of the facts of the case and it was not necessary for the trial judge to refrain from referring to it. There is nothing in the summing up to support the suggestion that the jury gave their verdict upon any other issue of fact than the issue whether the plaintiff was driving east or west at the time the collision occurred. There is no defect in the directions given to the jury about that issue of negligence.

[72]

In the present case there are special circumstances. The defendant said in evidence in answer to his counsel that he had been driving since 1914 and in cross-examination he said that he meant the jury to understand by this evidence that he was "a careful driver." A jury would think that a characteristic of a careful driver is a strict adherence to rules designed to promote the safety of drivers, their passengers and pedestrians. The defendant gave this favourable testimony of himself to impress them and to assist his case, which was a denial of the plaintiff's allegation that he violated an important traffic rule by failing to give way to the plaintiff. The questions to which objection was taken were whether the defendant had been convicted of exceeding the speed limit, disobeying traffic lights and failing to give way to a vehicle coming on his right. The objections to these questions were rightly overruled. The defendant admitted these convictions. It was right to allow the questions, even if nothing more could be said to justify the asking of them, than that the fair trial of the action required that if the jury took into consideration the evidence which the defendant gave as to his experience as a driver, they ought not to be left in ignorance about the facts that these questions were asked to elicit. Jordan C.J. put the matter this way - "The facts that the defendant had had experience in driving since 1914, and had been driving motor vehicles practically continuously from 1914 to the present time, had no relevancy whatever to the question whether the plaintiff's motor cycle was being ridden in an easterly or a westerly direction along Yaralla Street. But they might well incline a jury to think that such a seasoned veteran as the defendant would be likely to be both experienced and careful, and therefore as unlikely to commit a breach of an elementary rule of the road as an old salt would be to commit a breach of the collision regulations. Learned counsel may not have realized that he was taking a risk in asking the questions, he almost certainly did not know of the convictions or counsel of his experience would have been scrupulously careful to do nothing which would make evidence of them admissible. However, he did ask them, presumably because he thought that they would be of some advantage to his case, and, in my opinion, this made it legitimate for counsel for the plaintiff to use all legitimate "means to prevent such advantage. In the circumstances, I think that the evidence complained of was properly admitted." I entirely agree with this statement."

[82]

It was also contended that his Honour should not have allowed the defendant to be cross-examined about convictions for previous traffic offences. Jordan C.J. and Owen J. considered that this line of cross-examination would not have been admissible but for the fact that the defendant's counsel commenced his examination in chief by eliciting from the defendant the fact that he had been driving motor vehicles since 1914. Owen J. added that where such evidence is given it is essential that the presiding judge should be at pains to explain to the jury, either at the time the evidence is given or in the course of his summing up, the legitimate purpose for which such evidence can be used and the unfairness and impropriety of treating it as going to the issue of liability. Maxwell J. considered that the evidence was inadmissible. He said that no authority is needed for the proposition that where negligence is charged on a particular occasion it is not permissible to set up a general propensity for careless driving by reference to earlier acts of negligence or cognate matters such as convictions for or warnings in respect of traffic offences. We were assured by Mr. Jenkyn that in an experience of twenty years in running-down cases, he had never known this class of evidence to be admitted. In face of such a " communis opinio " I hesitate to say such evidence is admissible without it being opened up in some particular manner (Hollington v. F. Hewthorn & Co. Ltd. [3] ). But after consulting many learned text books on the law of evidence, I am satisfied that it was always permissible at common law to seek to impeach the credit of a witness in civil cases by cross-examining him as to previous convictions for felonies and misdemeanours. If the witness denied the conviction, and the evidence was not relevant to any issue, he could not, as in the case of other irrelevant matters, be contradicted. The law in this respect has been altered in England by statute for nearly a century and there, if the witness denies or does not admit the conviction or refuses to answer, the cross-examining party may prove the conviction, but there is no corresponding statute in New South Wales. Accordingly in New South Wales counsel is entitled to cross-examine a witness in civil cases as to previous convictions in order to impeach his credit but on irrelevant matters the witness cannot be contradicted and his answers will be conclusive. But the court has a discretion under s. 56 of the Evidence Act 1898 N.S.W. to disallow such questions in the circumstances therein mentioned. I am therefore of opinion that the questions as to convictions for previous traffic offences which the defendant was asked in cross-examination were admissible subject to the discretion of the learned trial judge to disallow them. If such questions are usually not asked in the cross-examination of witnesses in New South Wales in running-down cases, it must be because the court in the exercise of its discretion will usually disallow them. The defendant was entitled to the direction to the jury to which Owen J. referred if his counsel had asked for it, but this was not done, and in view of the terms of rule 151B a new trial should not, in my opinion, be granted on this ground.