Henwood v Municipal Tramways Trust (SA) [1938] HCA 35

Henwood v Municipal Tramways Trust (SA) [1938] HCA 35 - HCA 1938 case summary — Zoe

[16]

Hicks, for the appellants. The tram should have been made safe, Mere warning to passengers of danger is not sufficient. The fact that there was a by-law forbidding passengers leaning out of trams did not prevent the plaintiffs from recovering on the ground of negligence on the part of the defendant, nor is breach of the by-law any evidence of contributory negligence. There is no finding as to contributory negligence, and the by-law imposes no duty on the passenger towards the defendant. The tramway trust is under an obligation to carry any member of the public, and as a common carrier it is bound to carry the passengers safely. Hillen and Pettigrew vy. I.C.1. (Alkali) Ltd. (1) was the case of a person going on to a prohibited part of a ship and thus becoming a trespasser - (Salmond on Torts, 9th ed. (1936), p. 219; Hickman v. Maisey (2) ). The mere fact that a person breaks a by-law is no criterion of negli- gence (Grand Trunk Railway Co. of Canada v. Barnett (3); Cashmore : v. Chief Commissioner for Railways and Tramways (N.S.W.) (4)). The mere fact that the deceased knew of the regulation did not limit - his right to recover (Wilkinson v. Lancashire and Yorkshire Railway Co. (5) ). The tramway trust can take advantage of particular conditions only if it expresses them as part of the contract (Leslie on The Law of Transport by Railway, 1st ed. (1920), pp. 399, 433; | Jennings v. Great Northern Railway Co. (6); Grand Trunk Railway Co. of Canada v. Robinson (7) ; Hood v. Anchor Line (Henderson Bros.) Ltd. (8) ). Breach of a statutory duty does not necessarily constitute : contributory negligence. It must be shown to be wilful or negligent - (Hutehinson and Shillington on Motor Law (1925), pp. 81-83 ; Grand Trunk Railway v. McAlpine (9) ; Bailey v. Geddes (10) ; Weld-Blundell - v. Stephens (11) ). Where there is a breach of a statutory provision or by-law the maximum position is put in Bailey v. Geddes (12), that you have an absolute duty that a man transgresses at his peril (Flower v. Ebbw Vale Steel Iron and Coal Oo. Ltd. (13) ), but if the -

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This is an interesting and important question upon which there is not very much authority in English law. There is much to be 'said for the view that, where a provision of the law is directed towards securing the safety of persons by penalizing acts of carelessness, no person can recover damages when the injury of which he complains was directly brought about by his own act in breach of the law. A by-law is a law in every sense, binding upon all persons to whom it applies (Hopkins v. Mayor &c. of Swansea (1); see also London Association of Shipowners and Brokers v. London and India Docks Joint Committee (2) ). This by-law was made in order to secure the safety of passengers (of whom the deceased was one), and it established a standard of conduct to which he was bound by law to conform. It imposed upon passengers a duty, in their own interests, to take care. Negligence may consist in the failure of a person to take due care of himself (Symons v. Stacey (3) ). Passengers cannot be heard to say that a precaution prescribed by law is unneces- sary and that it is open to a court or jury to disagree with the standard of conduct set up by law. The act of the deceased in leaning over the guard rail wasa voluntary act dictated by a natural 'impulse. The fact that a person obeys a natural impulse in com- mitting an act does not deprive that act of its voluntary character. Thus, the deceased committed a breach of a by-law which was made in order to protect him and which established a standard of conduct which he was bound by law to observe. Further, the act which constituted the breach of the by-law was the direct cause of the injury which brought about his death. In circumstances which, in the particulars mentioned, were substantially identical with those in the present case, Salmond J. held in Canning v. The King (4) that a defendant was not liable in damages. All these considera- tions unite to constitute an impressive argument to support the ecision of the learned judge.

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own conduct as a disqualification from recovery for tort. But there is much case law upon the subject in the United States, and from it the directness of the connection between the illegality and the injury seems to have emerged as the discrimen more generally adopted. If the immediate cause of the injury is the unlawful act of the plain- tiff, he cannot recover ; but, if the unlawful act does no more than create a prior state of affairs upon which the defendant's negligence operates, he may recover. In Massachusetts the rule against recovery by a plaintiff himself acting unlawfully was carried to great extremes in the application of a law forbidding the driving of vehicles on Sunday. The decisions were not all consistent, but, for the most part, the plaintiff was held to have suffered no actionable wrong where, but for his driving on Sunday, the injury would not. have occurred. Thus, a plaintiff who was injured by a defective highway was held disentitled to recover from the highway authority, because the injury arose from his driving upon the highway on Sunday (Bosworth v. Swansey (1) ). A plaintifi who had ridden his horse on Sunday and tied it up at the edge of the road was held disentitled to recover from a defendant who negligently drove into the standing horse (Lyons v. Desotelle (2) ). These decisions have been disap- proved in other States, but a learned writer has supported the first, though denying the correctness of the second : - "In Bosworth v. Swansey (1), as has been seen, the defendant's negligent act served only to create a dangerous passive condition ; the plaintiff's unlawful act of driving was the active agency which finally produced the result. In Lyons v. Desotelle (2), on the other hand, the unlawful act served only to create a passive antecedent condition, from which damage could result only when some further act was done. Thus it. would appear that the unlawful act of driving to the place where the horse was hitched was but a remote cause, whereas the defen- dant's act of driving negligently was the efficient immediate cause " (Harold S. Davis, Harvard Law Review, vol. 18, at p. 513). This serves to illustrate the point of distinction adopted. The doctrine which he maintains is that, if the plaintifi's unlawful act does no more than create a condition upon which the defendant's wrongful

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against street accidents, penalizes an owner of a motor car who permits an unlicensed person to drive it, should the provision be understood to intend that such an owner may not recover damages if he or his car is injured in a street accident through the negligence or unskilfulness of an unlicensed driver to whom he has entrusted the car? If a regulation as to hoists and scaffolding were to forbid anyone to stand beneath a lifting hoist, does it ipso facto or ipso jure relieve: a master who provides defective tackle from liability in damages toa. servant who in breach of the regulation is beneath the hoist when the. tackle fails? In each example it may have been the legislative inten- tion to disqualify the person offending from complaining of an injury" to which he contributed by acting in breach of the regulation. If so, the intention is operative. But it may have been intended to do no more than add another expedient to lessen the risk of accident. Whichever be the intention, the same result would ensue if a general rule be adopted by which no one can complain of an injury although brought about by the negligence of the defendant if the injury was. also the consequence of the plaintiff's own breach of a statutory provision introduced for the purpose of lessening the risk of such an_ accident. This appears to us to be unsound. It involves a corollary to the established rule that the contributory negligence of the plain- tiff affords an answer to a cause of action based upon the defendant's. negligence unless, notwithstanding the plaintifi's negligence, the peril might have been further avoided by the exercise of reasonable care on the part of the defendant. One statement of the corollary would be that the failure to observe any precaution required by or under statute amounts to contributory negligence, or has the same legal consequence. In our opinion, neither recognized principle nor' English authority requires the adoption of such doctrine. It is true that part of the substantive law of contracts invalidates agreements. to do an illegal act or to achieve an illegal purpose. When an act or purpose is made unlawful by statute it at once follows that contracts involving the doing of the act or tending to effect the: unlawful end are invalidated. But there is no rule denying to a person who is doing an unlawful thing the protection of the general law imposing upon others duties of care for his safety. As the consideration the subject has received in America and by Sir John-

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Before

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Judgment (135 paragraphs)