Fitzgerald v Penn

1. (1951) v L.R. 104. 2. (1951) v L.R., at p. 106.

The adequacy of that form of direction was not questioned on this appeal.

The jury in this case did not fully accept either the plaintiff's or the defendant's evidence, as they found both guilty of negligence after each had given evidence which, if accepted, would have cleared him of negligence and shown that the accident was solely caused by the negligence of the other. But that finding should have been foreseen as a reasonable possibility and such a direction given as to ensure that any negligence that might be found by the jury would be covered by the direction.

Now I am not prepared to hold that Barry J. did not give such a direction. His Honour told the jury that the negligence he spoke of in his summing up was that which had a relationship to the accident, "which operated to cause the accident", which operated as "a genuine factor", as "a contributing factor" to bring it about. He also told the jury that they had to apply their commonsense to a problem to be solved by commonsense, the problem of deciding what was the fair decision to come to on the evidence.

In the absence of any clear indication to the contrary in the summing up I think that this last direction to apply commonsense was intended by the learned trial judge to apply to all the questions of fact that the jury had to determine, although the contrary view appears to have been taken by one of their Honours in the Full Court. I find it difficult to hold that the trial judge conveyed to the jury that commonsense had to be applied only in the determination of a particular question. It may be that there is no need to direct a jury to use their commonsense, as it can be assumed that all juries are bent on doing that according to their understanding, which is not enlightened by a mere direction to apply commonsense, although they may not always succeed in applying it. However it is common enough to direct juries to that effect, and Gay's Case [1] expressly provides for it, as already appears.

I think the jury would have understood from what Barry J. told them that unimportant negligence, negligence not closely connected with the accident, could not properly be found to have operated as a cause of the accident, or to have been "a genuine factor" or "a contributing factor": they would, I think, have understood from his Honour's direction that they had to exclude trifling and remotely connected negligence as a cause. If so, the direction in Gay's Case [1] was really given, but in different words. At all events there was, in my opinion, no departure from it that could properly be said to have amounted to a substantial wrong or miscarriage of justice calling for a new trial: see Hoyt's Pty Ltd v O'Connor [2] .

1. (1951) v L.R. 104. 2. (1928) 40 C.L.R. 566, at p. 576.

I would allow the appeal, set aside the order for a new trial and restore the verdict of the jury and the judgment of Barry J.

This is an appeal by leave from an order of the Full Court of the Supreme Court of Victoria which, by majority, directed a new trial of an action in which the appellant was the defendant and the respondent was the plaintiff. Upon the trial the jury returned a verdict for the defendant and the order for a new trial was made upon the application of the present respondent.

The claim of the respondent in the action was to recover damages for injuries which, it was alleged, he sustained as the result of the appellant's negligence. Contributory negligence was alleged by the appellant and at the end of the trial the jury returned to court and, after having indicated that they had agreed upon a verdict, announced that they were unanimous that both the plaintiff and the defendant had contributed to the accident. The transcript records the following questions and answers relevant to this incident: "Associate: Mr. Foreman, have you all agreed upon your verdict? Foreman: Yes. Associate: Do you find for the plaintiff or for the defendant? Foreman: Well, Your Honour, we are unanimous that both plaintiff and defendant contributed to the accident. His Honour: You find that both plaintiff and defendant were negligent? Foreman: We do. His Honour: And that the negligence of each one of them operated to the cause of the accident? Foreman: We do. His Honour: That involves you returning a verdict for the defendant. Foreman: Yes. Associate: How say you, do you find a verdict for the plaintiff or for the defendant? Foreman: In view of what you said, your Honour, it must be for the defendant".

No objection was raised to the course which the matter took at this stage, nor was any objection thereto subsequently raised, the criticism advanced on the appeal being based upon the observations of the Full Court in State Electricity Commission of Victoria v Gay [1] . The point is made clear by reference to a short passage in the reasons of Gavan Duffy J. who constituted one of the majority of the court: "In a judgment of the Full Court (State Electricity Commission of Victoria v Gay [1] the question of the proper direction concerning contributory negligence was dealt with at some length, but it is sufficient to refer to the following passages: "In order to properly carry out their duty in considering a plea of contributory negligence, the jury must therefore understand that to make the plea good there must be negligence, that such negligence must be sufficiently important and closely connected with the accident to make it reasonable on a broad commonsense view to regard its author as responsible for it in law " "The charge to the jury to be adequate must therefore make this duty clear". I may add that, in order to assist judges presiding at jury trials, the Court went on to say that this duty would be satisfactorily carried out by telling the jury that the negligence must be a "substantial" or "material" cause of the accident, though of course it was not thereby intended to establish such words as the indispensable means of carrying out the duty, or to suggest that the jury should not be assisted by the trial judge in applying this principle to evidence. In my opinion the learned trial judge did not make this duty clear to the jury in the present case". Nothing, his Honour added at a later stage, could be found in the charge to the jury which amounted to a sufficient direction or warning that "in determining whether a negligent act or omission was such a cause of the collision as to create legal liability, it must be sufficiently important and closely connected with the accident to make it reasonable on a broad commonsense view to regard its author as responsible for it in law". Smith J. expressed the substance of the principle, which it was contended was violated by the learned trial judge's charge, in the following manner: "In State Electricity Commission of Victoria v Gay [1] it was laid down by the Full Court that to make good a defence of contributory negligence in a collision case the negligence of the plaintiff "must not be a cause of the accident so remote from it or so trifling in its effect that commonsense would reject it as a ground for liability"; and that in order properly to carry out their duty in considering such a defence, the jury must understand that to make good the defence the plaintiff's negligence "must be sufficiently important and closely connected with the accident to make it reasonable on a broad commonsense view to regard its author as responsible for it in law". The Court further held that it followed from these principles that "the charge to the jury, to be adequate, must make this duty clear" ".

1. (1951) v L.R. 104. 2. (1951) v L.R. 104. 3. (1951) v L.R. 104.

All members of the court agreed that it would be wrong to treat Gay's Case [1] as requiring a trial judge, when instructing a jury on an issue of contributory negligence, to use the words "substantial" or "material" to explain the distinction between those negligent acts or omissions which on the one hand will, and on the other will not, disentitle a plaintiff to relief. They thought it sufficient if other appropriate words were used to exclude from the consideration of the jury negligent acts which were not "sufficiently important and closely connected with the accident to make it reasonable on a broad commonsense view to regard its author as responsible for it in law" and acts "so remote from the accident or so trifling in their effect that commonsense would reject them as a ground for liability".

There is, I should think, little doubt that if, in a case of the kind under consideration, a jury found that a plaintiff had been negligent or careless in some respect they would not find against him on an issue of contributory negligence if they were of opinion that his negligence was "not sufficiently important and closely connected with the accident to make it reasonable on a broad commonsense view to regard its author as responsible for it" or "so remote from the accident or so trifling in its effect that commonsense would reject it as a ground for liability". It may, perhaps, safely be said that if the plaintiff's negligence was so remote or trivial that a broad commonsense approach to the problem would require its rejection as a ground of liability no reasonable jury would be likely to regard it as a cause of the accident. But the adoption of the words "substantial" or "material" to make the duty of the jury clear in this respect is open to question for those words, in cases of this type, may well be taken to exclude a wider category of negligent acts than those which may fairly be said to be remote or trivial in the sense already mentioned. The word "substantial" may be understood to exclude negligence which is neither remote nor trivial in that sense, whilst the word "material" does not, of itself, provide a test at all and merely avoids the necessity of saying what is and what is not material negligence. The words were, of course, used by Lord Wright for a particular purpose in Caswell v Powell Duffryn Associated Collieries [1] where, in speaking of the facts of that case, he said: - "If the defendants' negligence or breach of duty is established as causing the death, the onus is on the defendants to establish that the plaintiff's contributory negligence was a substantial or material co-operating cause" [2] . It is clear that his Lordship, in using the words "substantial" and "material" had in mind that inadvertence and thoughtlessness is of necessity a common and persistent feature of work in industrial occupations and he sought to distinguish between acts or omissions emanating from these sources - and in respect of which it was a purpose of the relevant statutory requirements to make provision - and acts of negligence which themselves constitute either the sole or a contributing cause of an injury to a workman. That this is so is clear from his Lordship's observations that: "The circumstances under which men working in a mine or a factory are exposed to risk when machinery is unfenced in breach of statutory duty have general characteristics of their own. These have to be carefully considered when the question is whether a man was negligent. I think the importance of the ruling of Lawrence J. is that he drew attention to these general conditions of work and thereby gave a good practical direction and definition to help in deciding the issue of fact in any particular case. The learned judge did not mean that there are grades or degrees of negligence or that the plaintiff is not prevented from recovering by "mild" negligence but only by "gross" negligence. Generally speaking in civil cases "gross" negligence has no more effect than negligence without an opprobrious epithet. Negligence is the breach of that duty to take care, which the law requires, either in regard to another's person or his property, or where contributory negligence is in question, of the man's own person or property. The degree of want of care which constitutes negligence must vary with the circumstances. What that degree is, is a question for the jury or the Court in lieu of a jury. It is not a matter of uniform standard. It may vary according to the circumstances from man to man, from place to place, from time to time. It may vary even in the case of the same man. Thus a surgeon doing an emergency operation on a cottage table with the light of a candle might not properly be held guilty of negligence in respect of an act or omission which would be negligence if he were performing the same operation with all the advantages of the serene atmosphere of his operating theatre; the same holds good of the workman. It must be a question of degree. The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins" [1] . There is nothing in his Lordship's reasons to suggest that if it be shown that a plaintiff's negligence was an effective cause of his injuries it can in any circumstances be disregarded merely because it was negligence of a minor degree or, as his Lordship said, merely "mild" and not "gross" negligence. On the contrary his Lordship was clearly of the opinion that the issue of contributory negligence must be found against a plaintiff if negligence on his part is established and it is shown that that negligence was an effective cause of his injuries. Lord Atkin, with whom Lord Macmillan agreed, found it impossible to divorce any theory of contributory negligence from the concept of causation. After so expressing himself his Lordship went on: "It is negligence which "contributes to cause" the injury, a phrase which I take from the opinion of Lord Penzance in Radley v London & North Western Rly. Co. [2] . And whether you ask whose negligence was responsible for the injury, or from whose negligence did the injury result, or adopt any other phrase you please, you must in the ultimate analysis be asking who "caused" the injury; and you must not be deterred because the word "cause" has in philosophy given rise to embarrassments which in this connection should not affect the judge" [3] .

1. (1940) A.C. 152. 2. (1940) A.C., at p. 172. 3. (1940) A.C., at pp. 175-176. 4. (1876) 1 App. Cas. 754. 5. (1940) A.C., at p. 165.

But in determining whether or not a defence of contributory negligence should succeed or fail it is not sufficient merely to pose the question whether the plaintiff's negligence contributed to the accident which caused his injuries. (See Alford v Magee [4] ). Accordingly expressions such as "effective cause", "direct cause", "real cause", "decisive cause" and "proximate cause", amongst others, have been seized upon, not for the purpose of excluding factors which might be thought to constitute causes in the widest philosophical sense, but for the purpose of placing the defendant's ultimate responsibility upon a practical commonsense basis. No doubt the words "substantial" and "material" as used in Gay's Case [1] were intended to serve the same purpose. But it is impossible, satisfactorily, to express in the terms of a formula any test which will be appropriate to the infinite variety of accidents in which human beings may suffer injury and to the infinite causes which may operate to produce those accidents. This being so, it is obvious that in negligence cases the charge to a jury must be framed in the light of the issues which arise in the case. (See Alford v Magee [2] ), and when this is done much of the difficulty experienced in attempting to frame formulae of universal application will disappear. No doubt difficulties will still be experienced in cases where the facts are open to a number of conclusions of various combinations but, nevertheless, they will be minimised by some reference to the issues and the findings which are open to the jury.

1. (1952) 85 C.L.R. 437, at p. 451. 2. (1951) v L.R. 104. 3. (1952) 85 C.L.R., at p. 466.

In the present instance the case made by the respondent on the trial was that he was driving a small car at about thirty to thirty-five m.p.h. along a country road at about 8 p.m. at night when he sighted the appellant's vehicle approaching him some 100 to 130 yards away. The approaching vehicle, however, was said by him to be showing only one headlight and that was on the near side of the vehicle. The appellant's vehicle was in fact a large lorry carrying a heavy load but this was not known to the respondent who, in the darkness, took it to be a motor cycle approaching him. The road surface consisted of a bitumen strip approximately twenty feet wide and on either side of this strip a gravel surface extended from four to six feet. The respondent maintained that he was well on his correct side of the road and that it was not until the moment of impact that he was able to perceive that the oncoming vehicle was a large lorry and that its unilluminated side extended well over the centre of the road. These facts, if believed, made out a clear case of negligence on the part of the appellant. But there was a sharp conflict of fact between the parties. The appellant alleged that both of his headlights were functioning at the time of the accident and that, additionally, his vehicle carried a small light, called a width light, on each side of the driver's cabin. All of these lights were said to be illuminated at the time of the accident and considerable support for this evidence is to be found in the testimony of a police officer who found that all of the lights were in good working condition shortly after the accident. Additionally, the appellant's case was that immediately before the accident he was travelling on the extreme left hand side of the road and that the collision was caused by the respondent being on his incorrect side. It is, perhaps, unnecessary to say that if both parties were speaking the truth concerning the courses of their respective vehicles the collision is inexplicable. But it is possible to say upon the evidence that each vehicle was in full view of the other for some considerable distance before the collision though, as already appears, the respondent claims that he was misled by the appellant's negligence into believing that the approaching vehicle was a motor cycle on its correct side of the road.

Upon consideration of the evidence it seems probable, as was suggested in argument, that the jury did not believe that one of the headlights of the lorry was extinguished or that the width lights were not illuminated and, if this was so, it is difficult to imagine that the jury's finding of contributory negligence could have been based on some act or acts of the respondent which were so remote from the accident or so trifling in their effect that they should have excluded them from their consideration.

The question on this appeal is not, however, susceptible of determination by speculating as to the probable basis of the finding of the jury; the real question is whether, having regard to the facts of the case and the issues which arose, the jury could consistently with the directions of the learned trial judge, have rejected the plaintiff's claim because of some negligent or careless omission on his part which, though it might in a remote sense, be regarded as one of the causes of the accident, was so remote from it or so trivial in its effect that it should not be regarded as a "substantial" or "material" factor. I use the words "substantial" and "material" because of the approval given by Gay's Case [1] to their use for the purpose of making the duty of a jury in this respect clear to them and because no suggestion was made in the course of argument that the use of these words would not adequately serve this purpose. The question then is did the learned trial judge in the circumstances of this case sufficiently instruct the jury that if they considered the plaintiff had been negligent in some respect they should not find against him on the issue of contributory negligence unless they also formed the view that such negligence substantially or materially contributed to the accident, or, in other words, unless that negligence was a substantial or material cause of the accident? In my opinion the instruction given by the learned trial judge was sufficient for this purpose. To quote at length from the charge to the jury would be merely to repeat what his Honour said and it is sufficient, I think, to say that a reading of the charge leaves me with the firm conviction that it sufficiently indicated to them that the issue of contributory negligence should not be found against the respondent in the absence of negligence on his part which, in their opinion, was a substantial cause of the accident as distinct from some conduct on his part which was so remote from it or so trifling in its effect that commonsense would reject it as a ground for liability. If the jury found that the collision was "a consequence of the negligence of the plaintiff and the defendant operating together", and that the negligence of the respondent "operated as one of the factors to bring about the collision" or, in other words, "was a genuine factor in bringing about the collision" and, if in so finding, they applied their commonsense in considering the evidence before them, as they were instructed to do, they could not have based their verdict on some negligent act of the respondent which was so remote from the accident or so trifling in its effect that commonsense would reject it as a ground for liability. I should add, perhaps, that I agree with the analysis of the charge which was made by Dean J. in his dissenting judgment in the Full Court. Also, with Dean J., I feel fortified in this view by the fact that no objection to the directions of the learned trial judge on this aspect of the case were taken at the trial by counsel for the appellant. Contemporary knowledge of the course which the trial had taken and of the matters placed before the jury for their consideration by the respective parties did not then suggest that any further or other direction should be given. In the circumstances I am of the opinion that the appeal should be allowed and the verdict of the jury restored.