Government Insurance Office (NSW) v Fredrichberg - [1968] HCA 54 - HCA 1968 case summary — Zoe

CTHHCA

Government Insurance Office (NSW) v Fredrichberg

[1968] HCA 54

High Court of Australia|1968-07-01|Before: Owen JJ

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Source facts

Court

High Court of Australia

Decision date

1968-07-01

Before

Owen JJ

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

High Court of Australia Barwick C.J. Kitto, Menzies, Windeyer and Owen JJ. Government Insurance Office (NSW) v Fredrichberg [1968] HCA 54

[2]

ORDER Appeal allowed with costs. Judgment and order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

[3]

The appellant is the authorized insurer of the third party liability under the Motor Vehicles (Third Party Insurance) Act, 1942-1965 N.S.W. of one Hannon who died in an impact between his car and a semi-trailer upon the Hume Highway, near Gunning, in New South Wales. A verdict was returned for the defendant (the now appellant) in an action brought against it by virtue of the provisions of s. 15 (2) of that Act by the respondent under the Compensation to Relatives Act, 1897-1953 N.S.W. in respect of the death of her husband, who was a passenger in that car at the time of that collision. The Supreme Court (Court of Appeal Division) upon the respondent's motion set aside that verdict and ordered a new trial of the action. This decision was taken upon two grounds which are not completely independent of each other. The first ground was that the trial judge in summing up did not expressly tell the jury that the case before them was a case to which, as it was said, the "maxim or rule of res ipsa loquitur" applied and the second ground was that the trial judge had unduly restricted the area of the respondent's counsel's address to the jury in that he did not allow counsel to address them upon that "doctrine" and upon its relation to the facts of the case.

[4]

The respondent's husband was one of a number of people travelling along the Hume Highway from Melbourne to Sydney by night in the car. They had stopped to drink hard liquor at one point along the way and they had run into fog not long before the accident and in any case the length of the journey could be said to have induced fatigue which called for a halt to rest. Near Gunning on the Southern Highlands of New South Wales the car was being driven upon its own side of the pavement where the road curved to the car's left when an articulated vehicle approached from the opposite direction. It was said in evidence that the car suddenly without warning or apparent cause swerved to its right bringing itself on to its wrong side of the road and that the truck at about the same time veered to its right. The near side of the car came into contact with the nearside of the truck, the impact apparently taking place at or near a petrol tank on the truck, causing the tank to burst and its contents to ignite. In the result, some of the occupants of the car were not merely killed but incinerated: these included Hannon, who was said to be driving the car at the time, and the respondent's husband. A small car was following so close behind the car involved in the collision that it also collided with the truck and was in turn destroyed by fire. The evidence as to the circumstances of the collision was given by the driver of the truck and by the driver of the small car. Those occupants of the car who survived were asleep at the time of the impact and unable to speak of what had happened. There was no direct evidence as to who was driving the car at the time of its impact with the truck but there was evidence which, if it were accepted, would support the view that Hannon was then driving. It was possible from the evidence to take either the view that the movement of the car from its correct to its incorrect side of the road was caused by an antecedent movement of the truck across the road or the view that the movement of the truck was consequential upon the sudden swerve of the car across the road: and it was possible that neither possibility preponderated over the other.

[11]

The transcript of the proceedings at the trial showed that at the close of the evidence the appellant's counsel moved for a verdict by direction upon the footing that there was no evidence fit to be submitted to the jury of negligence on the part of the driver of the car. The case was tried after the decision of the Supreme Court in Priest v. Arcos Enterprises Pty. Ltd. [1] and before the decision of this Court in Anchor Products Ltd. v. Hedges [1] . It appeared in the course of discussion with counsel that the trial judge felt himself bound to hold that the respondent's counsel could not present the respondent's case to the jury in the alternative depending on the one hand upon establishing negligence by the occurrence itself and, on the other hand, by proof of specific acts of negligence: see Piening v. Wanless [2] . It is important in this connexion to identify what the trial judge understood counsel to be indicating as the "occurrence" and to this aspect I will return later. For the moment it is enough to mention that counsel for the respondent submitted that the occurrence which he had in mind did indicate negligence on the part of the driver of the car and that a presumption of fact in favour of the respondent had arisen which it was for the appellant to displace by some explanation of the impact which did not show his negligence. This of course was a view which would conform to the decisions of the English Courts to which reference has been made in Mummery v. Irvings Pty. Ltd. [3] and Nominal Defendant v. Haslbauer [4] . But the trial judge would not accept the view that there was any presumption arising in favour of the respondent: and on this he was, in my opinion, plainly right. He rejected the appellant's application for a verdict by direction and in ruling formally that there was evidence to go to the jury gave reasons for his opinion. It is proper, I think, having regard to what has happened in this case that I set out what his Honour then said and the responses which counsel gave to his inquiry as to whether he had made himself plain.

[29]

Out of these cases emerge, it seems to me, as decisions of the Court, the following relevant propositions binding upon the Courts in Australia. First, that the so-called "doctrine" is no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where, in the opinion of the judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person. Second, that a case in which this can properly be said should be allowed to go to the jury whether or not there is evidence of specific acts or occurrences which could be found to be negligent but that no presumption of any kind in favour of the plaintiff thereby arises. That the occurrence affords evidence of negligence does not merely not alter the onus which rests on the plaintiff to establish his case on the probabilities to the satisfaction of the jury, but does not give the plaintiff any entrenched or preferred position in relation to the decision by the jury of that question. I quite realize that it may be attractive to the mind to conclude that, because the jury is allowed to draw an inference of negligence from the occurrence for the reason that they are at liberty to think that it was not likely to occur without a want of care on the part of the defendant, the inference of negligence must be drawn by them if the ground upon which it may be drawn is not displaced by other evidence explaining the occurrence. That line of thought seems to me to have found favour with English Courts and to have resulted in the creation by the decisions of those Courts of a presumption of fact in favour of a plaintiff in such circumstances. But this Court has been unable to accept such reasoning and the law is otherwise in Australia. In my opinion, the jury are not bound either to conclude that such an occurrence was unlikely to occur without negligence on the part of a person in the defendant's position or to draw the inference that it did in fact occur in the case before them because of the negligence of the defendant. All that has happened, in my opinion, at the point in the hearing of a case at which the judge rules that there is evidence of negligence on the part of the defendant furnished by the occurrence itself is that the judge is satisfied that a jury would be entitled to conclude that such an occurrence in the ordinary affairs of mankind is not likely to occur without negligence on the part of a person in the situation of the defendant. For the rest, it is a question for the jury whether they think the occurrence unlikely in this sense and, if so, whether in the particular case they will be satisfied that there was in fact relevant negligence.

[38]

The essential question of fact in this case was whether the driver of the vehicle in which the plaintiff's husband was killed was negligent, and whether that negligence caused the collision. That question was to be decided by the jury. If the jury were properly directed and nothing occurred which vitiated the trial, their verdict ought not to be disturbed. That they were correctly directed is I think indisputable. But it is said that the case for the plaintiff was in some way hampered, because, as it was put, counsel did not address the jury on "the doctrine of res ipsa loquitur". It is said that had he not been prevented by the learned trial judge, he would have urged that from the "mere fact of the collision" the jury might infer negligence on the part of the driver of the car in which the deceased man was. To support this criticism of the course and events of the trial a memorandum, as it was called, prepared and verified by the solicitor for the respondent was produced to the Court. I share the misgivings which have been expressed by the Chief Justice and by my brother Owen as to our considering this document. My doubts have been aggravated by my reading the remarks of the Court of Appeal in Thompson v. Andrews [1] . However we did receive the document; and I have given careful attention to it. It suggests to me that either it is a somewhat garbled account of what occurred at the trial or that counsel's submissions to his Honour were based on some misapprehensions of law and fact. The memorandum must, of course, be read with the shorthand writer's transcript of what occurred. In so far as counsel put to his Honour that what was called the "doctrine of res ipsa loquitur" shifted the onus of proof, his Honour rightly refused to accept this proposition. In so far as the submission was that the mere fact of a collision without more could found an inference of negligence on the part of the driver of one vehicle rather than the other, the proposition is obviously untenable. There was however more in this case. There was evidence that the car in which the deceased man was travelling swerved, without warning, across the road and into the path of the oncoming vehicle. It was for the jury to consider how far they accepted this evidence, and what inference they would draw from the facts as they found them. His Honour's remarks to counsel during the course of the trial amounted, it seems, only to this: that there was evidence that the collision occurred because the car suddenly swerved in its course; and that, that being so, the jury were not left with the mere fact of a collision; that they had evidence that it occurred because of the swerving of the car; that, if they accepted that as the fact, they must consider whether in all the circumstances they should infer from it negligence on the part of Hannon. His Honour's summing up to the jury put their task clearly before them. Some questions that they asked shewed that they had appreciated their task, and were considering the evidence which they took to bear on the issues they had to try, including matters indicative of the course of the vehicles. They would not, I think, have been aided in their task by being further told by counsel, either in a Latin phrase or in English, that they must consider what inference they should draw from the facts of the occurrence as they found them, and that one view of them would support an inference of negligence on the part of the driver of the car. It was for the jury to consider the evidence, and having come to a conclusion as to the facts to ask themselves what inferences they should draw from them. That they could draw an inference of negligence had been made clear to them. That they were not bound to do so, and that they must determine the issue on the whole of the evidence, was made equally clear. Their verdict was open to them on the evidence. Whether they arrived at it because they were not satisfied that Hannon was in fact the driver of the car, or because they found that he was, but were not satisfied that the collision was the result of negligence on his part, we do not know and need not, indeed must not, speculate. In my opinion the jury's verdict must stand. I have read what has been written by the Chief Justice and Owen J. I have added my remarks only to emphasize my concurrence.

[42]

Now the second issue on this question of liability is whether the car was driven by Hannon negligently in the manner I have defined. In other words, is it shown that Hannon in the circumstances of that night drove the car in a manner in which it would not have been driven by a reasonable man? Now this presents some more general problems, and I will mention them. In many cases the parties go about the determination of this issue by nominating some specific ground of alleged negligence. They might say for example the speed was too high or that there was no proper lookout being kept because the defendant may have admitted that at the time he was not looking or he was talking to somebody beside him, or something like that; and there can be seen in some specific respect a failure to do something which a reasonable man would have done or the doing of something which a reasonable man would not have done in the circumstances, and that that caused for example his car to run across the road and into another, run across the road in front of some other vehicle. The position here is not quite on those lines. The allegation made here is that the car left its correct side of the road and went on to its incorrect side of the road so as to come into collision with the truck coming from the other direction. The allegation is made that in the circumstances of this case that establishes on the balance of probabilities negligence on the part of Hannon. After referring to the evidence of the driver of the car which was following the Holden car and of the driver of the semi-trailer concerning the course taken by the Holden car, his Honour went on: Submissions were made to you on liability primarily on this basis; that all that can be established upon the material available to the parties is as much as you find established from this evidence. Hannon of course did not survive and nor did Fredrichberg, and Gunderson and Simpson know nothing of the circumstances of the accident. You are asked to say whether or not upon that evidence it is established that Hannon drove negligently. To enable you to make that determination you must be in a position to say, and you are asked to say, accordingly whether or not of all the possible explanations that might be given for that movement of the car it is more likely than not that that movement of the car was caused by some failure in care on the part of Hannon. In making that determination you are asked to bring here your own knowledge and experience of the roads and traffic on the roads and so on. It is a question left to four men selected at random from the community to make the decision and you will find negligence established if you consider upon this evidence that that movement of the car is more likely than not to be explained by some act or motion on the part of Hannon which can be called in the circumstances negligence. It is not necessary in these cases for the plaintiff to prove some specific act of negligence or that the evidence should carry it that far. It is sufficient if, and of course only if, you find upon this evidence that negligence is the more probable explanation for this manoeuvre of the car. I cannot say much more than that without putting the arguments put to you by each counsel so fully this morning and that would only be trespassing on your time and mine. So let me say in conclusion upon this issue of liability the plaintiff succeeds if she shows upon the balance of probabilities that Hannon was the driver and that he was negligent in his driving and that that was the cause of the injury and death of Fredrichberg. If those two issues of fact are proved by the plaintiff, she succeeds. Unless they are proved, she fails. They are issues of fact for your determination. You will observe that I am analysing this question out in accordance with the material that is here and the principles of law applicable. You are required to consider the material that is here, determine what you find proved, both as to whether Hannon was the driver and if he was, whether he drove negligently and that form of driving caused this accident. I should add that in the course of the case some question had been raised whether Hannon was driving the car at the relevant time but on this appeal it is unnecessary to consider that issue.

[46]

I should make two additional observations. The first is this: the application for a verdict by direction made by the defendant and my decision rejecting it, are not matters for discussion by counsel with the jury. The second observation I make arises from comments made by counsel in the opening of the plaintiff's case to the jury when discussing the law relating to negligence that there is a presumption that a vehicle is not being carefully driven if it goes on to its wrong side of the road and if such is proved there is imposed upon the defendant an obligation to explain this accident. I do not regard these as a correct statement of the law. There is no presumption in law that negligence is established from any limited circumstances in this case and there is no onus or obligation cast by the law upon the defendant of proving any fact or specifically rebutting any such alleged presumption. Do I make myself clear? A question to which both counsel replied "Yes". No criticism can be made of these observations. The submissions of counsel for the plaintiff that a presumption of negligence arose from the fact that the car had gone across the road to its incorrect side and that this placed upon the defendant the onus of disproving negligence were entirely unsound and his Honour rightly ruled that they were not to be repeated to the jury. It is said, however, that the transcript does not give a full account of what occurred during the argument on the question whether the jury should be directed to find for the defendant, and an affidavit by the solicitors for the plaintiff was put before us which annexed a memorandum prepared by the deponent in which he set out his recollection of what had taken place and which was said also to be in accord with what counsel who appeared for the plaintiff at the trial remembered of the matter. It does not disclose when the memorandum was prepared; all that is said is that it was sometime between October 1966 when the trial took place and the hearing of the appeal by the Court of Appeal in December 1967. It states that, in the course of the argument, The trial judge stated that plaintiff's counsel could not address the jury in the alternative, that is by submitting that the jury was entitled to conclude that the driver had been negligent by means of applying the res ipsa loquitur doctrine, or that if it was not prepared to do this the jury could find that there was some evidence, apart from the mere collision, from which negligence could be inferred. He ruled that the plaintiff's counsel was not entitled to address in the alternative and that he was entitled to address only either on the basis of res ipsa loquitur or on the basis that there was evidence of facts from which specific negligence could be inferred.