Insurance Commissioner v Joyce

Insurance Commissioner v Joyce - [1948] HCA 17 - HCA 1948 case summary — Zoe

[21]

The onus is upon the plaintiff to establish his case. The plaintiff was present at the trial, but did not give evidence. The facts proved are as consistent with (a) contributory negligence of the plaintiff, (b) voluntary acceptance of obvious risk by the plaintiff as with (c) negligence of Kettle causing the plaintiff's injuries. The principle of law which is applicable in such circumstances is established by the leading case of Wakelin v. London & Southwestern Railway Co. [1] : and see Mersey Docks & Harbour Board v. Procter [2] . In Wakelin's Case [3] the injured person was the husband of the plaintiff who sued for damages for negligence causing his death. Lord Halsbury L.C., after pointing out that it was incumbent upon the plaintiff to establish that her husband's death had been caused by some negligence of the defendants, so that if that fact were not proved the plaintiff failed, continued: "If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by - in this sense that it could not have occurred without - her husband's own negligence as by the negligence of the defendants, does not prove that it was caused by the defendants' negligence. She may indeed establish that the event has occurred through the joint negligence of both, but if that is the state of the evidence the plaintiff fails, because " in pari delicto potior est conditio defendentis ". It is true that the onus of proof may shift from time to time as matter of evidence, but still the question must ultimately arise whether the person who is bound to prove the affirmative of the issue, i.e., in this case the negligent act done, has discharged herself of that burden" [1] . In my opinion these observations apply to the present case. The plaintiff's case depends upon his affirmatively establishing the proposition that his injuries were caused by the negligence of the defendant Kettle. This conclusion, however, rests upon inference from all the proved facts, and the other inferences mentioned, namely contributory negligence on the part of the plaintiff and voluntary acceptance of an obvious risk, are equally consistent with those facts. Accordingly, it should be held that the plaintiff's claim has not been established. The appeal should be allowed and the judgment for the defendant should be restored.

[23]

From a legal point of view this case is somewhat out of the ordinary. So far as the facts are concerned, however, I imagine that it is not without precedent. Nevertheless the facts are of such a nature that they are better summarized in reverse chronological order. Beginning at the end or close to it we find the plaintiff seriously injured huddled up in a motor car which has penetrated a fence of a front garden facing the end of a road. He is sitting in the passenger's seat and smells of drink. The defendant Kettle has been the driver but he is not to be found. The hour is 7 o'clock. The ambulance arrives summoned, it is said, by the defendant Kettle. Next is his story told on the following day to the police who had on the previous night found him asleep but, as they assert, on a neighbouring allotment. Neither of these worthies gives evidence and their movements during the preceding two hours are not accounted for. Their journey commenced only two or three miles from the plaintiff's house. His wife says that they left in the defendant Kettle's car to pick up somebody and then proceed to the final stages of a wedding festivities. The ceremony had been performed in the morning. The police say that their investigations showed that before running through the fence the car had hit a standing truck. The on-side of the car had hit the off-side of the truck which was parked on its correct side. It will be seen that the facts so far are significant. To Philp J. they signify that the parties had been on a carousal and that the defendant Kettle while drunk had guided the car into a truck and thence to the fence at right angles with the street. He therefore found that a prima-facie case of negligence had been made out. The question remains whether a plea of volenti non fit injuria had also been made out. Obviously the question was one to be decided on circumstances. But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold. This is what Philp J. said: - "Whether the plaintiff was also drunk and whether he was so drunk as to be unaware of Kettle's drunkenness are matters upon which, of course, the plaintiff has failed to give evidence. All I know is that he smelt of alcohol after the accident. Upon the evidence I hold that the plaintiff knew of the risks incident to Kettle's state of drunkenness and voluntarily took those risks." I think his Honour sitting as a jury was entitled to draw this conclusion. Common sense tells us that the probability is that the passenger quite well knew that the driver was unfit for his task. All sorts of hypotheses may be suggested. It may be conceded that the plaintiff was more drunk than the defendant Kettle; that the defendant Kettle got worse when exposed to the evening air; that they might have got drunk separately and not in combination so that the plaintiff had insufficient time to realize his driver's state. But this is not a criminal case in which we are called upon to allow our imagination to play upon the facts and find reasonable hypotheses consistent with innocence. A balance of probability is enough. And when the greater probability is that both had enough consciousness to be aware of what they had been doing, although not enough judgment and discretion to drive, why should a judge hestitate to find accordingly against a plaintiff who gives no evidence. The appeal should be allowed.

[47]

The case of a passenger in a car differs from that of a pedestrian not in the kind or degree of danger which may come from any want of care or skill in driving but in the fact that the former has come into a more particular relation with the driver of the car. It is because that relation may vary that the standard of duty or of care is not necessarily the same in every case. At one extreme is the trespasser and at the other the passenger who has made an express contract containing terms regulating his rights in case of injury. But prima facie a gratuitous passenger is entitled to the ordinary care for his safety which may reasonably be expected in the management of the kind of conveyance in which he accepts a place. A man who obtains permission to ride upon a timber jinker is not entitled to any more care on his behalf than is included in the proper management of such a vehicle. But in a car intended as a conveyance, the gratuitous passenger may expect prima facie the same care and skill on the part of the driver as is ordinarily demanded in the management of a car. Unusual conditions may exist which are apparent to him or of which he may be informed and they may affect the application of the standard of care that is due. If a man accepts a lift from a car driver whom he knows to have lost a limb or an eye or to be deaf he cannot complain if he does not exhibit the skill and competence of a driver who suffers from no defect. It is perhaps not often of much practical importance whether the passenger is regarded as voluntarily assuming the risks which are involved and so absolving the car driver from a standard of duty to which otherwise he would be subject, or the passenger is considered primarily to be entitled only to that standard of duty or of care which arises from the relation that he has established, namely a passenger in a car driven by a defective driver. It would seem to be clear that in either case the burden of proving the special facts or unusual conditions would be upon the defendant. When it is said that the law of negligence assumes the principle of volenti non fit injuria not to be applicable, as it was said by Sir Frederick Pollock in a passage adopted by Asquith J. in Dann v. Hamilton [1] , no more is meant than that the duty of care persists beyond or outside the specific conduct or state of things which is not the subject of consent. A party may be disabled from complaining that a state of things or specific conduct implies actionable negligence, though otherwise he might have done so.

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Parties