Chapman v Hearse

In September 1958 a collision occurred near Adelaide between two vehicles one of which was driven by the appellant Chapman and the other by one Emery, who is not a party to these proceedings. The collision occurred at a point where Balcombe Avenue joins Tapley's Hill Road on the eastern side. Both vehicles were travelling along Tapley's Hill Road towards the north and that which Emery was driving was the leading car. Approaching the Balcombe Avenue junction Emery slowed down and indicated by a signal that he was about to turn to the right. As he was turning Chapman's car struck the near-side rear corner of Emery's car with the result that it overturned in the mouth of Balcombe Avenue. Apparently the door of Chapman's car swung open and he was deposited on the road whilst the car itself veered off to the left and came to rest on an adjacent golf course after breaking through a fence. After being thrown from his car Chapman remained unconscious on the roadway lying lengthwise along the road and about three feet to the west of the centre line. At the time of or almost immediately after the accident Dr. Cherry drove his car from the near-by golf course entrance. He stopped his vehicle and went to Chapman's assistance. At about the same time two other vehicles arrived at the scene of the accident from the north. The drivers of these cars, Simmons and Nolte, each saw Chapman lying on the road and stopped their cars a little further on. They both commenced to go to Chapman's assistance but they observed that another person, Dr. Cherry, had reached him first and then, hearing cries from the overturned car, they went to it and helped to extricate some of the occupants. Within a few minutes of the time when Dr. Cherry reached Chapman another car came along the road from the south and the driver of this vehicle, the respondent Hearse, failed to see either Dr. Cherry or the injured man until it was too late to avoid them. In the result his vehicle struck Dr. Cherry and caused him injuries as the result of which he died. It was dark and it was raining at the time and there seems little doubt that visibility was poor.

It was in these circumstances that the respondent company, as the sole executor of Dr. Cherry, instituted proceedings against Hearse pursuant to the Wrongs Act, 1936-1956 S.A. claiming damages for the benefit of Dr. Cherry's widow and children. By his statement of defence Hearse denied that he had been negligent and alleged contributory negligence on the part of Dr. Cherry. Then by a third party notice and statement of claim he claimed that, in the event of liability attaching to him, he was entitled to contribution from Chapman to such extent as to the Court should seem just and equitable. It should, perhaps, be mentioned that Dr. Cherry's widow was joined as a plaintiff in the original proceedings and that she sought to recover a solatium but no question is outstanding in respect of this matter and she is not a party to this appeal.

In the proceedings with which we are now concerned the learned Chief Justice, who presided at the trial, found that Hearse was negligent in the control and management of his vehicle and ordered that judgment should be entered for the respondent company against him in the sum of £16,584 11s. 0d. But he also found that the third party, Chapman, was liable to make a contribution to Hearse of one-fourth of that sum. A subsequent appeal by Chapman to the Full Court of the Supreme Court was, by majority, dismissed and this appeal is brought from the order of dismissal.

It is contended primarily on behalf of Chapman that no order for contribution should have been made and, alternatively, that the amount in which he was held liable to contribute should be reduced. But by a cross-appeal the respondent Hearse seeks an increase in the amount of Chapman's contribution and, further, asks us to reverse a finding by the learned Chief Justice that Dr. Cherry was not, himself, guilty of contributory negligence. No fault is, however, found with the original finding that Hearse was negligent in running Dr. Cherry down nor with the finding that Chapman was guilty of a prior act of negligence which had brought about the situation to which reference has already been made. The finding of negligence on Hearse's part was based upon the fact that the circumstances then prevailing required a high degree of caution on the part of a driver using the road and that, although he was not driving at a high speed, his speed was excessive in the prevailing conditions and that he had not kept a sufficiently careful look out. It is difficult to see why, upon the evidence, we should entertain the view that Dr. Cherry was guilty of contributory negligence. Even more difficult is it to discern any reason why we should interfere with an existing finding to the contrary but the submission was not pressed too far and it is convenient to dispose of it at once. This we may do by asking ourselves whether, in the unusual circumstances of the case, Dr. Cherry's conduct involved any departure from the standard which reasonable care for his own safety demanded. To our minds this question can be answered only in one way. He had, naturally enough, come to Chapman's assistance; in the course of attending to Chapman his attention must inevitably have been diverted from the road and if, by reason of this fact, he failed to see the oncoming car until it was too late to get out of its way it would be quite wrong to hold that he was guilty of contributory negligence. However, we do not know whether he did, in fact, fail to see Hearse's car for it is possible that, having seen it, he made some attempt, unseen by Hearse, to attract the latter's attention, in order to protect Chapman. However this may be we are of the opinion that no grounds exist for disturbing the finding of the learned Chief Justice on this point. That being so the principal question for examination is whether, having suffered judgment at the hands of Dr. Cherry's executor, Hearse became entitled to recover a contribution from Chapman.

The answer to this question depends upon whether Chapman would have been liable for the "same damage" at the suit of Dr. Cherry's executor (Wrongs Act, s. 25 (c)). This enquiry, the appellant somewhat emphatically asserts, must be answered in the negative. First of all, it is said, Chapman owed no duty of care to Dr. Cherry. Alternatively, it is asserted that, even if he did, Dr. Cherry's death was caused solely by the negligent driving of Hearse and not at all by any breach of duty on Chapman's part and, finally, the contention is raised that, on any view of the matter, the death of Dr. Cherry, considered as a consequence of Chapman's negligence, was too remote to fix him with responsibility.

In the unusual circumstances of the case the point which calls first for attention is the position which Dr. Cherry occupied vis-à-vis Chapman. At the time when Dr. Cherry was run down he was standing - or stooping - near the centre of the road. It was dark and wet and there seems no doubt that visibility was poor. As a consequence the task of attending to the injured man, with no one present to warn oncoming traffic, involved Dr. Cherry in a situation of some danger. But, says the appellant, this was quite fortuitous and not a situation reasonably foreseeable by Chapman at the time when, as the result of his negligence, his vehicle collided with that of Emery. Then to emphasize the contention that Chapman owed no duty of care to Dr. Cherry the appellant enlarged upon the sequence of events which led to the final result. None of these events, it was said, was reasonably foreseeable. It was not reasonably foreseeable that Chapman would be precipitated on to the roadway, that Dr. Cherry should at that moment be in the immediate vicinity, that he, as a doctor, should be first on the scene and proceed to render aid to Chapman with no other person present to warn oncoming traffic or, finally, that within a few minutes Dr. Cherry should be run down by a negligent driver. But this argument assumes as the test of the existence of a duty of care with respect to Dr. Cherry the reasonable foreseeability of the precise sequence of events which led to his death and it was rejected, and rightly rejected, by the Full Court. It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway. In pursuing this enquiry it is without significance that Dr. Cherry was a medical practitioner or that Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. As Greer L.J. said in Haynes v. Harwood [1] : "It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act" [2] . (See also Hyett v. Great Western Railway Co. [3] and Carmarthenshire County Council v. Lewis [4] ). Whether characterization after the event of its consequences as "reasonable and probable" precisely marks the full range of consequences which, before the event, were "reasonably foreseeable" may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. The test as we have stated it has been assumed in a multitude of cases both here and in England and is generally in accordance with the view entertained in the United States of America (cf. Marshall v. Nugent [1] and Boyd v. Terminal Railroad Association of St. Louis [2] ).

1. [1935] 1 K.B. 146. 2. [1935] 1 K.B., at p. 156. 3. [1948] 1 K.B. 345. 4. [1955] A.C. 549. 5. (1955) 58 Am.L.R. 2d. 251; 222 Fed. 2d. 604. 6. (1956) 58 Am.L.R. 2d. 1222.

These considerations make it clear to us that the appellant's first contention must fail. Applying the test as we have stated it there is, we think, no warrant for saying that, vis-à-vis Dr. Cherry, Chapman was not under a duty to exercise reasonable care in the management of his vehicle or for denying damages to the executor of Dr. Cherry if, in fact, Chapman's negligence can properly be said to have caused, or to have been a cause of, his death. As the learned Chief Justice observed it is, of course, manifest that the likelihood of such a happening as that which in fact occurred "will vary according to all the circumstances of the particular case" but when account is taken of the circumstances as they existed on the night in question there can be little doubt that it was reasonably foreseeable that subsequent injury by passing traffic to those rendering aid after a collision on the highway would be by no means unlikely. The prevailing conditions were notoriously such as to create danger to road users and it is impossible to regard the ultimate event as of an altogether exceptional character (cf. Bolton v. Stone [3] ). On the contrary some such event was by no means improbable and was, in our view, "reasonably foreseeable". We note that in not dissimilar circumstances American courts have, whilst confining liability to the foreseeable consequences of a negligent act, regarded the negligence of a person in control of a motor vehicle as the "proximate" cause of a plaintiff's injuries notwithstanding the later intervention of an act of a third person which has more immediately caused the injuries of which the plaintiff complains. Such intervening acts may, of course, be culpable or not and since reasonable foreseeability is the test the fact that a later act is culpable does not necessarily preclude the conclusion that the earlier act was a "proximate" or "legal" cause (see Marshall v. Nugent [1] ).

1. [1951] A.C. 850. 2. (1955) 58 Am.L.R. 2d. 251; 222 Fed. 2d. 604.

These observations do not, of course, conclude the question whether, as the learned Chief Justice decided, Chapman's negligence was in the proved circumstances of the case a cause of Dr. Cherry's death and this must now be considered. At the outset, however, it should be said that the approach to this question in the course of argument was, with some resulting confusion, overlaid by a discussion of the decision of the Judicial Committee in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [2] . In effect, the argument of the respondent proceeded upon the basis that if the ultimate damage was "reasonably foreseeable" that circumstance would conclude this aspect of the matter against the appellant. But what this argument overlooks is that when the question is whether damage ought to be attributed to one of several "causes" there is no occasion to consider reasonable foreseeability on the part of the particular wrongdoer unless and until it appears that the negligent act or omission alleged has, in fact, caused the damage complained of. As we understand the term "reasonably foreseeable" is not, in itself, a test of "causation"; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act. This distinction is of some importance in cases such as the present where there have been successive acts of negligence and where it is sought to establish, notwithstanding the fact that the ultimate consequence might have been reasonably foreseeable at the time of the earlier act of negligence, that the later negligent act was the sole cause of the damage complained of. This, of course, is what Chapman seeks to do in the present case. Dealing with this aspect as an independent matter he concedes the foreseeability of some event such as that which actually happened, but asserts that as a matter of practical fact, Dr. Cherry's death was caused solely by Hearse's negligent driving. It was, it is said, a case of novus actus interveniens, or that, otherwise, Hearse's negligent driving operated to break the chain of causation between the original negligent act and Dr. Cherry's death. Whether this was so or not must, we think, be very much a matter of circumstance and degree.

In support of the appellant's contention it was initially argued that it was sufficient to enable him to escape liability if, as was held to be the case, Hearse's intervening act was negligent. Some support for this proposition, it was said, was to be found in a consideration of the so called "last opportunity" rule and by way of illustration it was pointed out that if Chapman had also been injured by Hearse's driving he would have been in a position to recover his damages in full against Hearse. That being so it would be anomalous if, having recovered his own damages in full, he should then be held liable to make a contribution to Hearse in respect of his liability to Dr. Cherry's executor. The whole of the damage, it was said, would have resulted from the same cause and it would be curious indeed if, in the final result, one part of it should be borne by Hearse alone and another part by Hearse and Chapman jointly. But, even assuming that the circumstances were, in general, appropriate to invoke the last opportunity rule, the argument is superficially attractive only. It assumes that notwithstanding the provision for apportionment of liability made by s. 27a (3) of the Wrongs Act that rule retains full force and effect in South Australia. In terms, what that section requires is an apportionment of damages where a person has suffered damage as the result partly of his own fault and partly of the fault of any other person or persons. The appellant's argument must, therefore, be taken to assume that the last opportunity rule was devised as a test of causation so that whenever it was successfully called in aid by a plaintiff its effect was to brand the defendant's negligence as the sole cause of the plaintiff's injuries. The so-called rule as "authoritatively" stated in Tuff v. Warman [1] and as accepted by this Court in Alford v. Magee [2] was that a plaintiff's negligence would not disentitle him to recover "if the defendant might by the exercise of care on his part have avoided the consequences of the negligence or carelessness of the plaintiff". It was, of course, pointed out that the qualification so stated was applicable only in appropriate cases. The statement, however, can have reference only to negligence on the part of a plaintiff which, apart from the so-called rule, would disentitle him to recover, that is to say, negligence which was, in fact, a cause of the damage. This view seems to flow naturally from the history of the development of the rule to which reference is made in Alford v. Magee [2] and which is fully traced by Professor Glanville Williams in his work on Joint Torts and Contributory Negligence (1951) p. 260 et. seq. We think that the observations in Alford v. Magee [2] are conclusive against the appellant on this point. That case regarded as preferable the view that contributory negligence means "negligence on the part of the plaintiff which has been a cause of damage in the same sense in which it is necessary for the plaintiff himself to prove that negligence of the defendant was a cause of the damage" [1] and it then asserted that "it seems more natural and appropriate to use the term as meaning negligence of the plaintiff which has been a cause of the damage in the above sense and then [apropos of the last opportunity rule] to consider what circumstances will preclude such negligence from affording a good defence" [2] . No doubt, in many cases, the rule has been treated as if it had assumed the role of a test of causation but not, as far as we can see, on any occasion when it was of importance to distinguish between its real and what may, perhaps, be called its apparent character.

1. (1858) 5 C.B. (N.S.) 573 [141 E.R.231]. 2. (1952) 85 C.L.R. 437. 3. (1952) 85 C.L.R. 437. 4. (1952) 85 C.L.R. 437. 5. (1952) 85 C.L.R., at p. 451. 6. (1952) 85 C.L.R., at p. 452.

Notwithstanding this answer to the argument of the appellant on this point, he insists that the fact that Hearse's later act was wrongful operated to break the chain of causation between his negligence and Dr. Cherry's death. Why this should be so, however, does not clearly emerge but as far as we can see the submission rests solely upon the general proposition that there should not be imputed to a wrongdoer, as a reasonable man, foreseeability of subsequent intervening conduct which is, itself, wrongful. One illustration will suffice to show that as a proposition of law this is erroneous. Let it be assumed that X is a passenger in a vehicle driven by A and that he is injured when that vehicle comes into collision with a vehicle driven by B. It is established that A and B were successively negligent but, B, not otherwise negligent, could have avoided the consequence of A's negligence if he had used reasonable care. It would be no answer to a claim by X against A merely to assert that B's conduct which had intervened between the negligence of A and the injuries sustained by X was wrongful. A, of course, could not escape liability unless he established that B's negligence was the sole cause of X's injuries and in seeking to do this the last opportunity rule could be of no assistance to him. Nor, indeed, has it ever been suggested in such a case that because B's subsequent conduct was wrongful A's negligence should be excluded as a cause of X's injuries. From this it will be seen that, on principle, it is impossible to exclude from the realm of reasonable foresight subsequent intervening acts merely on the ground that those acts, when examined, are found to be wrongful. Indeed, that view is necessarily implicit in a multitude of street accident cases where passengers or pedestrians have sought damages. Of course, "where a clear line can be drawn the subsequent negligence is the only one to look to" (The Volute [3] ) but in the general run of cases of the type with which we are dealing no such clear line can be drawn. Marvin Sigurdson v. British Columbia Electric Railway Co. Ltd. [1] however, furnishes a recent example of circumstances in which it was thought permissible to draw the line though, it will be noticed, the line was drawn in a case which involved only the wrongdoers themselves. It is, we think, beyond doubt that once it be established that reasonable foreseeability is the criterion for measuring the extent of liability for damage the test must take into account all foreseeable intervening conduct whether it be wrongful or otherwise. Perhaps, much the same thing was said in Ferroggiaro v. Bowline [2] when it was observed that "the fact that the intervening act of a third person is a negligent one will not make it a superseding cause of harm to another for an injury which the original actor helped to bring about if the original actor at the time of his negligent conduct should have realized that a third person might so act".

1. [1922] 1 A.C., at p. 144. 2. [1953] A.C. 291. 3. (1957) 64 Am.L.R., 2d. 1355.

When these objections of the appellant are disposed of there remains little upon which it may be urged that his negligence was not a cause of Dr. Cherry's death. There can, we think, be no doubt that Dr. Cherry's presence in the roadway was, immediately, the result of Chapman's negligent driving and if any support for this conclusion should be thought to be necessary ample can be found in the analogous so-called "rescue cases". The degree of risk which his presence in the roadway entailed depended, of course, on the circumstances as they in fact existed and the circumstances were, in fact, such that the risk of injury from passing traffic was real and substantial and not, as would have been the case if the accident had happened in broad daylight, remote and fanciful. Perhaps, some confirmation for the proposition that the risk was substantial may be found in the fact that within a minute or two, or even less, Dr. Cherry was run down by a driver whose vision of the roadway must have been impeded to a great extent by the prevailing conditions. In these circumstances, we have no doubt that Chapman's negligence must be regarded as a cause of Dr. Cherry's death and since, for the reasons which we have given, some casualty of that character was within the realm of reasonable foreseeability the judgment against Chapman should stand.

In making an apportionment pursuant to the provisions of the Wrongs Act the learned Chief Justice thought it just and equitable to require the appellant to make a contribution of one-fourth of the amount awarded. It seemed to him "that it was the defendant who was directly and principally responsible for the fatality" and it was on this basis that he made his order for contribution. Upon the hearing of the appeal it was pressed upon us by counsel for Chapman that the amount of contribution was too large whilst, on the other hand, counsel for the respondent urged that the amount was too small. Upon consideration of the circumstances in which the accident happened we find ourselves in agreement with the view of the learned Chief Justice that it was the respondent who was "principally responsible" for the fatality and we can see no reason why we should interfere with the order which his Honour made.

In the result we are of the opinion that the appeal should be dismissed.

(Note: The Honourable Mr. Justice Menzies did not deliver a judgment in this appeal. - Ed.)