Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36

Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36 - HCA 1948 case summary — Zoe

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applies to him as it does to the defendant. In this case the case can be put in a much shorter compass even than that, and the final question which . . . you will have to determine is whether the plaintiff suffered his injuries by attempting to board a bus which was then stationary or whether he suffered those injuries by attempting to board a bus which was not stationary but which was moving. If the bus was stationary at the time that he attempted to board it . . . it is not disputed, or at any rate you may very well come to the conclusion, that the demi is liable by way of negligence. That, I emphasize, is on the assumption that the bus was stationary at the time that he attempted to board it. On the other hand, suppose the bus were moving at the time he attempted to board it, that does not neces- sarily mean that the plaintiff is debarred from recovering, because you may think that the defendant's driver, exercising proper care as I have described it to you as required of him by law, could nevertheless have so acted as to avoid the plaintiff receiving injury, and consequently, when you have made up your minds what the real facts are, I think that you will wisely put to yourselves this question : "Was the bus stationary when the plaintiff came to it or was it moving?' Ifit was stationary . . . you may well come to the conclusion that that imposes liability on the defendant for the injuries which the plaintiff has received. If it was moving, you have to ask yourselves a further question : ' Could the defendant's driver by the exercise of reasonable care have prevented the injuries which occurred to the plaintiff 7' And if you think he could, that again imposes liability on the defendant. But if you think that he could not have avoided the injury to the plaintiff when the plaintiff attempted to board a moving bus, then that would mean that there was no liability on the defendant. . . . Has the plaintiff satis- fied you that the driver of the bus did something in those cireum- stances which a reasonable man would not have done or that he failed to do something which a reasonable man would have done, and if you find that, then there is another question to ask, which I

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proved?" His Honour subsequently redirected the jury as follows : - '' Gentlemen, I want to add something as to one alterna- tive that I discussed with you in charging you. I want to deal with the alternative if you should arrive at it, that the plaintiff attempted to board the bus while it was moving. Counsel has drawn my attention to the fact that I have not mentioned to you one traffic regulation which is in evidence in this case and which provides : 'No person shall alight from or board or join a vehicle which is in motion." . . . Where there is a regulation made by a competent authority, which refers to traffic, that regulation is something which has to be taken into account by the tribunal which has to determine whether a person has been negligent. It does not follow that, because a person breaks that regulation and becomes subject to a penalty, necessarily you find that his act is the cause of his own injury. It is only one of all the incidents that you are to take into account. The other matter is this, that the driver of the bus is entitled to assume that other persons using the highway will obey the usages of traffic, and this prohibition against joining or boarding a vehicle in motion is one of those regulations in regard to traffic. It seems tome . . . that once you have found that the bus was in motion at the time that the plaintiff attempted to join it, then the allegation of negligence which is material in the plain- tiff's case is the one which charges that the defendant's driver failed to keep any or any proper look out, and that, applied to such facts, would mean that if, by keeping a proper look out at the entrance to his bus he could have seen that, notwithstanding that he was starting, the plaintiff was about to join it and might have been injured by his going on, and that a prudent man in those cireum- stances would not have started, then he should not have started. That seems to me the aspect in which that part of the plaintifi's case must be put. I should think, and it is for you to judge as a matter of fact, that if you think the bus actually was moving, and the bus driver, as an ordinary prudent bus driver would, was looking ahead and not to the side, it would not be a case in which you would decide against him. The regulation should be taken into account and you must also take into account the fact that the bus driver is entitled to assume that other users of traffic will be observing the ordinary usages of traffic. It seems to me that that part of the plaintiff's case must depend on his establishing to your satisfaction two propositions, that the bus driver failed to keep any or any proper look out, and that by reason of it the plaintiff was injured." Later the jury returned into court, and the following took place : - The foreman: " We are seeking further

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stop and then drew up. He stepped from the kerb and went forward to the door in order to board it. Another intending passenger came from the contrary direction diagonally across Barkly Street from the north-east and reached the step before him. The passenger who was a man of stoutish build stood in the door apparently paying his fare. The plaintiff grasped the two stanchions one in each hand and placed his left foot on the step and requested the passenger preceding him who blocked his way to move in. As the plaintiff raised his right foot to complete his mounting of the step, the bus moved off with a sharp jerk. He lost his balance, and slipped down until he fell on the ground, where the back wheel passed over his leg. A not unimportant point is the fixing of the distance by which the bus overshot the bus stop before it drew up to take on the passenger or passengers. Upon this point the plaintiff gave two versions. At the trial he said that the bus, which was twenty- eight feet long, passed the bus stop by two-thirds of its own length, But it appeared that at an earlier trial, a trial that proved abortive owing to the failure of the jury to agree on a verdict, the plaintiff had said that the bus had travelled about twenty-five yards beyond the stop before it came to a standstill. The plaintiff called three witnesses who had seen the accident from the street. One of them had been walking northward in Barkly Street some distance south of the bus stop, another had walked in the same direction past the bus stop and the bus as it pulled up, and the third had seen the accident from the south side of Fawkner Street. They supported the plaintiff's account of the accident in substance. But two of them placed the point at which the bus had become stationary at a distance measuring fifteen yards from the bus stop to the front of the bus. The third did not see the bus come to a standstill, and his attention was drawn to the bus by exclamations as the plaintiff slipped down the stanchions. It had then reached a position which, if the witness correctly described it, must have been thirty yards from the stop. He said that the bus was moving slowly. The explanation of the accident upon which the defendant relied rested upon the evidence given by the bus driver and by a bystander, a lady who saw it from the pavement of Barkly Street standing at a point about 140 feet to the north, the junction of Grey Street with Barkly Street intervening. She had a clear view notwithstanding the distance. Her account of the accident was that the bus drew up at the bus stop, that it then moved off and slowly crossed the mouth of Fawkner Street and that the plaintiff ran after it and

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In his charge to the jury the learned judge told them that the plaintifi's injuries had either been brought about by the plaintifi's own negligence or by the defendant's negligence or a combination of both. His Honour at once went on to say that the case could be put in a shorter compass, and he proceeded to put it as a question whether the plaintiff had been injured as he was trying to board a stationary bus by the driver's negligence in starting it or by his own act in attempting to board a moving bus. But the learned - judge did not leave the case as depending upon this simple issue, - He added that, supposing the bus was moving as the plaintiff - attempted to board it, that did not necessarily mean that the plaintiff could not recover, because the jury might think that the driver exercising proper care might nevertheless have avoided the injury to the plaintiff. His Honour said: "If it was moving, you have to ask yourself a further question: 'Could the defendant's driver by the exercise of reasonable care have prevented the injuries which occurred to the plaintiff ?' And if you think he could, that again imposes liability on the defendant. But if you think that he could not have avoided the injury to the plaintiff when the plaintiff attempted to board a moving bus, then that would mean there was no liability on the defendant." Now it is apparent that some difficulty exists in constructing from the evidence an hypo- thesis of fact which would imply negligence in the driver causing the injury, once it is found against the plaintiff that the bus had moved off before he boarded it and had resumed its journey. However the jury appear to have been equal to the task. After a retirement of about an hour and three-quarters they returned into court with a request for further guidance. The foreman read the following statement - ' We have agreed that the bus was moving when Mr. Burston (the plaintiff) attempted to board it and that owing to the driver's vision being obscured by the man who entered prior to Burston the driver was unable to see Mr. Burston's efforts - to board the bus." The foreman added : " That is as far as we have - got." The learned judge then gave them a short redirection and after retiring for another ten minutes the jury returned a verdict for the plaintiff for £1,000.

At a glance

Court

Decision date

Before

Source

Judgment (159 paragraphs)