Nesterczuk v Mortimore

Nesterczuk v Mortimore - [1965] HCA 60 - HCA 1965 case summary — Zoe

[15]

In concluding his judgment the learned Chief Justice said: "In the present case, it seems to me that a good way to test the effect of the evidence may be to consider how it would be summed up by a judge to a jury. I think that a suitable direction would be, more or less, in the following terms: "The undisputed facts are that these two vehicles were coming from opposite directions, and meeting on a straight stretch of level road, on which they had ample room to pass in safety. It was a dark night, but each of the drivers could see the lights of the other vehicle whilst they were still some distance apart. Each of the parties testifies that he was keeping well over on his own side of the road, and so was the other vehicle, but it is manifest that they must be mistaken in that, since the fact is that they collided. The damage to the vehicles is inconsistent with a head-on collision, or with either vehicle running into the side of the other. It suggests that the off-side of each vehicle brushed against the off-side of the other as they passed. These facts speak for themselves. In default of any other explanation - and there is none - the necessary conclusion is that the accident could not have happened without negligence upon the part of one or the other or both of the drivers. It will be for you to say which of these three possibilities is the most likely to be the truth, and for all practical purposes the question is, where, in relation to the centre of the road was the point of impact. If it was on the east - the plaintiff's side - of the road, the responsibility is on the defendant. If it was on the west - the defendant's side - the responsibility is on the plaintiff. But if (like the learned judge) you see no good reason for believing one of the parties and disbelieving the other, and, in default of any evidence (e.g. marks upon the road) to suggest that the point of impact was on one side or the other, you will, no doubt, turn to the third possibility as the obvious solution. That is to say that, when you have two diametrically opposed accounts (given in apparent honesty) experience shows - as common sense would suggest - that the truth is likely to be somewhere between the two extremes. On that view of the evidence the reasonable conclusion would appear to be, that the point of impact was somewhere towards the centre of the road, and the explanation for the collision would seem to be, that neither of the parties were keeping a proper look out. It is obvious that, if either of them had realized that the vehicles were passing in such dangerous proximity he could and should have avoided the collision by veering only a very little to his left". Accepting the view which the learned trial judge took of the witnesses, I have no doubt that the probabilities are that neither of the parties was keeping a proper look out, and that each was driving in dangerous proximity to the other vehicle. I think that the only possible finding was that each of the parties contributed to the result, and that there is no reason for differentiating between them. I would therefore allow the appeal".

[20]

The case of Hummerstone v. Leary [1] should, I think, be put aside as having decided no more than that where a plaintiff sues two defendants, alleging that he has sustained personal injuries by negligence on the part of one or other or both of them, the legislation which authorizes such a procedure, in that case Order III, r. 5 of the County Court Rules, contemplates a trial of the whole case as one case; and that accordingly, where the evidence adduced for the plaintiff raises a prima facie inference that the plaintiff's injuries resulted from negligence on the part of one or other or both of the defendants, it is an error to dismiss one defendant from the action at the close of the plaintiff's case on the ground that as the evidence stands it is more probably the other defendant who was negligent. The proper course is to await the conclusion of the whole of the evidence and then consider whether the collision was due to negligence on the part of one only or to negligence on the part of each. The judgment of Bray J. contains a passage which should not be misunderstood. His Lordship said: "If the learned judge was right, then if all that the plaintiffs could have proved was the collision itself, which under such circumstances as these would raise a presumption of carelessness on the part of one or both drivers, each defendant would be entitled to judgment because the plaintiffs would have failed to prove which driver was to blame" [2] . This is no more than a comment on the trial judge's view that it is proper in such a case to consider dismissing one defendant from the action before hearing the evidence by which the other defendant will endeavour to throw all or part of the responsibility for the collision upon him. All that can fairly be extracted from the passage is that if, in the case supposed, it were right to dismiss the action as against one defendant it must be right to dismiss it as against both. This must be rejected as absurd; it would defeat the whole purpose of the procedure. What Hummerstone v. Leary [1] did not decide, and no case cited to us has decided, is that negligence must, or even may, be inferred against both parties to a collision simply because one or other or both must have been negligent and the evidence does not appear to the tribunal of fact to exonerate either. In such a situation, the fact that the evidence does not make it more probable that both parties were negligent than that one alone was negligent positively precludes a finding that both were negligent.

[22]

Then there is the case of Bray v. Palmer [2] . The trial judge had described the story of each party to the collision as wildly improbable, but he had added: "Yet one of them happened"; and on that footing he had considered whether he could accept the one story or the other, and, finding neither more probable than the other, had held that neither party had discharged the onus of proof that lay upon him. He therefore dismissed both the action and the counterclaim. Where he erred was in failing to consider whether the truth lay somewhere between the two, so that each party was to some extent in the wrong. Some misunderstanding seems to have arisen upon the part of the judgment of Jenkins L.J. in which he said [3] , that the judge's decision meant that the parties to the case on one side or the other were deprived of relief to which they were entitled, and that it behoved the judge to form some conclusion one way or the other. These words were used in relation to a case in which, for all that appeared, a decision could have been reached if only the judge had first considered how in fact the accident had happened, instead of confining himself to a choice between complete acceptance of the one story and complete acceptance of the other. The learned Lord Justice was not addressing himself to the rare case in which the tribunal of fact does endeavour to form an opinion as to how the accident happened, but finds itself unable to do so. True it is that in such a case the tribunal is "not in a position to say that it (is) not a case in which both parties were partly to blame"; but neither is it in a position to say the opposite, namely that both were to blame. Therefore it is no more in a position to give a verdict against both than it is to give a verdict against one. The law does not compel a finding of fact to be made which a jury could not make without breach of its sworn duty to return a true verdict according to the evidence. A remark of Sir Owen Dixon's in Briginshaw v. Briginshaw [1] goes, if I may say so, to the heart of this matter: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" [2] . It is true, as his Honour added, that an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and in a civil case such as we have here it is enough if the tribunal, on a balance of probability, believes (or thinks, if one prefers that word for the sake of a clearer recognition that no high degree of persuasion is required) that the fact is as alleged. But if the tribunal finds itself unable to form any opinion at all as to whether an allegation of fact is true, a decision which depends upon proof of that allegation obviously cannot properly be given. Thus, where the question at issue is whether A or B or both have been guilty of negligence the law neither requires nor permits the tribunal of fact to hold that both A and B were negligent unless the evidence engenders a belief "at least in some low degree", a "feeling of probability", that that is the truth of the matter. (The quoted expressions I take from the paper by Professor William Trickett, a portion of which appears in Wigmore on Evidence, 3rd ed. (1940), art. 2498.) I agree in the comments of my brother Owen upon the dicta to the contrary which are attributed to Denning L.J. in the report of Baker v. Market Harborough Industrial Co-operative Society Ltd. and Wallace v. Richards (Leicester) Ltd. [3] .

[33]

If two motor vehicles collide in a public street, that fact, unexplained, must ordinarily furnish some evidence that one or other of their drivers was negligent or that both of them were. That is because vehicles do not in the ordinary course of things collide if both be carefully driven. And if two vehicles collide head-on, in broad daylight, in the centre of a flat stretch of open road, there being ample room for them to have passed one another safely, then, if nothing more at all be known, it may sometimes be legitimate to infer that both drivers were somewhat to blame. The learned Chief Justice of South Australia has pointed to the alteration in the law of contributory negligence that the Wrongs Act S.A. has made. But, of course, the Act has not affected in any way the inferences to which proved facts can give rise. It affects only the relevance of those inferences. Before the Act the question of contributory negligence, as a doctrine of the common law, was in many cases much involved with the so-called rule of last opportunity. The bare fact of a collision occurring in the middle of a road could ordinarily shed little if any light on that. And, as it was not permissible to apportion responsibility for damage, it was irrelevant to ask whether the facts gave rise to an inference that the drivers were equally to blame. It was never an inference that a plaintiff would invite a tribunal to draw. The change in the law has made it significant in some cases to ask whether such an inference can legitimately be drawn from primary facts proved. But the answer to that question must still depend upon exactly what facts were proved in a particular case. I do not think there could be many cases in which the only facts known were both so precise and so sparse as those I have postulated above. For this reason it seems to me that very seldom would the proper inference from the mere fact of a collision in the centre of a road be that the drivers were equally to blame. In every accident case the speed of the vehicles, the presence or absence of other traffic, the state of the road surface and of the weather, and a host of other matters all go to make up the totality of relevant circumstance. And while all the relevant circumstances may not be known, usually more is known, or can properly be inferred, than the mere fact that a collision occurred. Each case depends upon the whole of its facts.

[42]

It is plain that the collision would not have occurred had not one or other driver or both of them failed to exercise due care and it was contended that if in these circumstances Travers J. was unable to decide that the accident was wholly due to the negligence of one or other, he was bound to take the view that both were to blame and apportion the damages recoverable according to the degree of blame to be attached to each. Since he had not taken that course this Court must do so. I am unable to agree. The learned trial judge was unable to determine whether the collision had occurred on the northern or the southern side or in the centre of the road and no good reason has been shown why, on the meagre evidence, an appellate court should take a different view. In the circumstances of the case, to say that the probabilities favour the view that both drivers were to blame rather than that one or the other was wholly responsible would be a mere guess. Reliance was, however, placed upon a number of cases which, it was said, laid down some principle of law which supported the appellant's submission. In Hummerstone v. Leary [1] , the plaintiffs were passengers in a motor lorry owned by the defendant Leary. The lorry collided with a motor car driven by the other defendant, Foster, and each plaintiff sued them jointly and in the alternative. The plaintiffs' evidence, if accepted, made it probable that the driver of the car was to blame and at the close of their case the County Court judge who tried the action held that there was no evidence of negligence on the part of Leary and entered judgment in his favour. Foster then called evidence which pointed to the fact that the driver of Leary's lorry was wholly to blame. That evidence was accepted and the judge found in favour of Foster with the result that the plaintiffs filed against both defendants. On appeal it was held that the case should have been "tried out between all the parties". The learned County Court judge had treated the plaintiffs' claims as consisting of one against Leary alone and one against Foster alone "overlooking the fact that the plaintiffs, as they were entitled to do under Order III r. 5 of the County Court Rules, were alleging that either Leary or Foster or both were responsible for the accident". Accordingly a new trial was ordered. That case does not support the appellant's contention. In Bray v. Palmer [1] , the plaintiffs, the rider of a motor cycle and his pillion passenger, were riding along a main road. The defendant was driving in the opposite direction and the vehicles collided head-on in the middle of the road. Each party alleged that the driver of the other vehicle had been negligent. The learned trial judge found that one or the other was wholly to blame but was unable to say which it was and dismissed both the claim and the counterclaim. Notwithstanding the fact that the head-on collision had occurred in the centre of the road, the learned trial judge - to use the phrase of Lord Evershed M.R. - "put aside altogether the possibility of both having been to blame". The Court of Appeal took the view that that possibility should have been considered and for that reason ordered a new trial. The fact that the vehicles had collided head-on in the centre of the road justified an inference that both drivers had been negligent yet this issue of fact had not been considered by the learned trial judge. Here again I can find nothing to support the contention urged by counsel for the present appellant. There is, however, a passage in the judgment of Denning L.J. (as he then was) in Baker v. Market Harborough Industrial Co-operative Society Ltd. and Wallace v. Richards (Leicester) Ltd. [2] , which read apart from the evidence in those cases, appears to lend some support to the appellant's submission. It was there proved that a collision had taken place between two motor vehicles, the one a motor lorry, the other a motor van, being driven in opposite directions. The impact took place in the centre of the road and both drivers were killed. Two actions were brought, one by the widow of the driver of the lorry against the owner of the van, the other by the widow of the driver of the van against the owner of the lorry. The first of these actions was heard by Ormerod J. who was of opinion that the plaintiff had failed to prove negligence on the part of the driver of the van and accordingly gave judgment for the defendant. The other action was tried by Sellers J. who found that both drivers were equally to blame and gave judgment for the plaintiff. In each case the losing party appealed. The Court of Appeal considered that the proper inference to be drawn from the evidence, which was the same in both cases, was that each driver was "hugging the centre of the road and failing to give way to the other". Accordingly it upheld an appeal against the judgment of Ormerod J. and dismissed the appeal in the case tried by Sellers J. Here again it is clear that the inference that both drivers had been negligent arose from the fact that the collision was proved to have occurred in the centre of the road, the most probable explanation being that each driver had failed to keep to his correct side and had failed to keep a proper look out. In the course of his judgment, however, Denning L.J. said:

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