Nesterczuk v Mortimore

The trial judge, Travers J., having summed up the evidence material to the issues of negligence found as follows: "I am thus left with two conflicting accounts of plaintiff and defendant, with nothing to support either of them. The story of either one could be true or it may be that both were travelling more in the middle of the road than they have claimed to have been. There has been nothing of significance in relation to the demeanour of any of the witnesses. I have no sufficient material on which to decide which party's story is true. I cannot find that the balance of probabilities is weighed down in favour of either the plaintiff or the defendant. In these circumstances, my finding is in the nature of a non-suit but under the Rules of Court I have no alternative but to enter a judgment for the party who stands in the position of defendant in respect of both claim and counterclaim".

The plaintiff brought an appeal to the Full Court of the Supreme Court against the judgment entered for the defendant. It was heard by Napier C.J., Chamberlain and Hogarth JJ. The argument for the plaintiff was to the effect that he was entitled to recover damages on the basis that the case fell within the provision of the Wrongs Act, quoted above. The argument for the defendant was to the effect that it would be a mere conjecture, not a proper inference, to find that the accident was partly caused by negligence on the part of the defendant. The Chief Justice agreed with the argument for the plaintiff. He considered that the damages recoverable by the plaintiff should be reduced to the extent of half. The majority of the Court agreed with the argument for the defendant. The appeal was therefore dismissed. The argument for the plaintiff in this appeal is the same as it was before the State Full Court.

Napier C.J. said in his reasons for judgment: "the case is, I think, of some considerable importance in so far as road accidents very commonly occur in circumstances that have to be inferred from circumstantial evidence, and the question is, as to the inference which the Court can and should draw, when - upon the undisputed facts - it seems to be manifest that the accident could not have occurred without negligence on the part of one or the other of the two drivers, but there is no evidence to show just how the thing happened, and it is impossible to fix the responsibility on either, with any degree of assurance". This statement aptly describes the problem which the Court has to solve in deciding the appeal. It is clear from the undisputed facts that the collision could not have occurred without negligence, and that it was not caused by the negligence of a third person. Having regard to the evidence and to the view of the learned trial judge that he could not reject the evidence of either party, this is not a case in which all the blame should be cast on one party to the exclusion of the other.

Denning L.J. (as he then was) said in Baker v. Market Harborough Industrial Co-operative Society Ltd. [1] :

In the absence of any evidence enabling the court to draw a distinction between them (the respective drivers of the vehicles involved), they must be held both to blame, and equally to blame

It is very different from a case where one or other only is to blame, but clearly not both. Then the judge ought to make up his mind between them, as this Court said recently in Bray v. Palmer [2] . But when both may be to blame, the judge is under no such compulsion and can cast the blame equally on each. So much seems so clear on principle that it is unnecessary to go further [3] .

1. [1953] 1 W.L.R. 1455. 2. [1953] 1 W.L.R., at pp. 1476, 1477.
   1. [1953] 1 W.L.R. 1472.
   2. [1953] 1 W.L.R. 1455.
   3. [1953] 1 W.L.R., at pp. 1476, 1477.

The present case is not one in which either the plaintiff or defendant only is to blame but clearly not both; it is rather one in which both may be to blame. In my opinion it is open on the evidence to apportion the blame equally between the plaintiff and the defendant. (Denning L.J. referred in Roe v. Minister of Health [4] to the statement which I have quoted above from his judgment in Baker v. Market Harborough Industrial Co-operative Society Ltd. [1] ). A statement by Jenkins L.J. in Bray v. Palmer [2] is of importance: "It seems to me that the explanation that both were in some measure to blame is, on the face of it, at least as likely as the explanation that one or other was wholly to blame, and that unless and until the judge had decided that the accident did happen in some particular way, he was not in a position to say that it was not a case in which both were partly to blame" [3] .

1. [1954] 2 Q.B. 66. 2. [1953] 1 W.L.R. 1472. 3. [1953] 1 W.L.R. 1455. 4. [1953] 1 W.L.R., at pp. 1459, 1460.

In my opinion it is not a proper solution of the present case to say that one of the vehicles swerved but it cannot be found which one did so. If in truth the plaintiff's vehicle swerved the defendant would have seen it do so and this is also the case with the plaintiff. However as has been said each party denied that he saw the other vehicle swerve towards him. It is probable on their evidence that if there was any such swerve they would have seen it. In these circumstances it is not, on the evidence, a probable hypothesis that the explanation of the collision is that either vehicle suddenly swerved or ran into the other.

The learned trial judge found that the vehicles were damaged only on their right sides. This fact is inconsistent with a head-on collision or with either vehicle having run into the side of the other. In view of the denial by each party that he saw the other's vehicle swerve I think that the most likely explanation of the accident is that the off-side of each vehicle came in contact with the off-side of the other "as they brushed past". Napier C.J. used the words "brushed past" to characterize what he inferred from the evidence was the nature of the collision. It is important to note that the learned trial judge was reluctant to believe that either vehicle was travelling as far from the middle of the road as its driver testified.

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".

I would, with respect, substitute the words "were about to pass" for the words "were passing". Subject to this I consider that what his Honour has said as to the probative force of the undisputed facts would be a good direction to the jury if the trial had been by jury. In the absence of any evidence of a swerve by either vehicle and in view of the proved damage to both vehicles which is consistent with their having brushed against each other it is, in my opinion, a probable inference that the vehicles were running on converging courses and the drivers failed to appreciate this state of affairs. If this view is right it is open to find that, in the circumstances, both parties were driving carelessly and without proper attention.

In my opinion such a conclusion can be drawn from the evidence not as a mere conjecture but as a proper inference.

I think that the appeal should be allowed and an order be made in the terms proposed by Napier C.J. which were that the judgment for the defendant be set aside and, in lieu thereof, judgment be entered for the plaintiff for half of the damages to be assessed.

I have had an opportunity of reading the judgment prepared by my brother Owen. I agree entirely in it, and can limit what I have to say to observations upon some of the cases most strongly relied upon as authorities in the Supreme Court and in the argument here.

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.

1. [1921] 2 K.B. 664. 2. [1921] 2 K.B., at p. 667. 3. [1921] 2 K.B. 664.

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] .

1. [1953] 1 W.L.R. 1455. 2. [1953] 1 W.L.R., at p. 1459. 3. (1938) 60 C.L.R. 336. 4. (1938) 60 C.L.R., at p. 361. 5. [1953] 1 W.L.R. 1472, at p. 1476.

The tribunal may of course reason from the material before it, drawing all logical inferences while refraining from speculation. In particular, by comparing that which is proved to have occurred with that which according to general experience is to be expected when a particular condition has been fulfilled, it may conclude that the condition was not fulfilled in the case before it - res ipsa loquitur. By this process of reasoning many a case is decided in which the fact sought to be proved is that in a particular situation a person did not conduct himself with reasonable care and skill; but the utility of the process in the present case has been exhausted when the conclusion has been reached that there was a lack of reasonable care on the part of one or other or both of the drivers. Because of the meagreness of the evidence, general experience provides no basis for a belief enabling a choice to be made between the three possibilities by a tribunal acting judicially.

I therefore agree with the majority of the Supreme Court that the trial judge took the correct course, and I would dismiss the appeal accordingly.

The appellant was injured in a collision at night between a motor cycle - with side-car attached - upon which he was riding in a southerly direction in Cavan Road, Cavan, and a car which the respondent was driving in a northerly direction in the same road. Little more is known than that upon a straight stretch of road with a sealed strip twenty-two feet wide the two vehicles, each of which was adequately lighted, came together as they were about to pass so that the off-side of each came into contact with the off-side of the other.

The rider and the driver had each seen the other vehicle as it approached. Each by his evidence put his own vehicle and the vehicle of the other upon their correct sides of the road. The explanation each offered to account for the accident was that the other must have swerved over the centre of the road at the last moment.

In the circumstances, the learned trial judge dismissed the claim by the appellant and a counterclaim by the respondent. His Honour said: "I am thus left with the two conflicting accounts of plaintiff and defendant, with nothing to support either of them. The story of either one could be true, or it may be that both were travelling more in the middle of the road than they have claimed to have been. There has been nothing of significance in relation to the demeanour of any of the witnesses. I have no sufficient material on which to decide which party's story is true. I cannot find that the balance of probabilities is weighed down in favour of either the plaintiff or the defendant. In these circumstances, my finding is in the nature of a non-suit but under the Rules of Court I have no alternative but to enter a judgment for the party who stands in the position of defendant in respect of both claim and counterclaim". The appellant appealed to the Full Court which by a majority (Chamberlain and Hogarth JJ., Napier C.J. dissenting) dismissed the appeal. A further appeal has been brought to this Court.

The appeal was supported by two contentions. The first was simply that, as this was a middle-of-the-road collision, it should, in the absence of anything more, be inferred that the parties thereto were equally careless. This argument fails because there was no finding that the two vehicles did collide in or near to the centre line of Cavan Road and, upon appeal, this Court should not, upon the evidence at the trial, infer that that is what happened. This argument was supported by reference to cases such as Bray v. Palmer [1] ; Baker v. Market Harborough Industrial Co-operative Society Ltd. [2] ; and France v. Parkinson [3] . These are all cases dealing with the inferences that might or were to be drawn from particular facts and I do not think they lay down any principle or rule of law of general application. For instance, I do not think that Denning L.J.'s statement in Baker's Case [4] , was intended to be, or should be regarded as, the statement of a proposition of law to the effect that, if there is a collision between two vehicles travelling in opposite directions near the centre of a road, the driver of the vehicle who keeps to his course upon his own side of the road is, in the absence of further evidence, both negligent and equally responsible with the driver of the other vehicle for the collision.

1. [1953] 1 W.L.R. 1455. 2. [1953] 1 W.L.R. 1472. 3. [1954] 1 W.L.R. 581. 4. [1953] 1 W.L.R., at p. 1477.

The second argument was more sophisticated. It started with the proposition that a plaintiff who sues two defendants is, upon evidence that he was injured by the negligence of one or other or both of them, entitled to have his case tried out against both defendants (Hummerstone v. Leary [5] ). The argument proceeded that in any case where the proper conclusion is that injury was caused by the negligence of one or other or both of two persons, each of them, having failed to disprove his own negligence, is to be regarded not only as having been guilty of negligence but, in the absence of any evidence upon which to apportion the blame between the two negligent persons, the conclusion must be drawn that they were equally responsible.

This argument fails because of the distinction that must be drawn between an action by a plaintiff against two defendants when there is evidence that one or other or both were negligent, and an action by a plaintiff against a defendant when all that can be said at the end of the case is that there was negligence on the part of one or other or both the parties. In the former case, the plaintiff is entitled to a determination because he has made out a prima facie case against defendants sued not merely jointly but in the alternative; in the latter case, the whole of the evidence leaves open the question whether the injury was caused by the plaintiff's own negligence without any negligence on the part of the defendant. Upon such evidence the plaintiff has not, I think, proved his case and is not entitled to any judgment against the defendant.

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.

In the present case the learned trial judge, having considered all the evidence, refused to draw any other inference than that the collision was caused by negligence on the part of the plaintiff or of the defendant or by the negligence of both of them. It is appropriate to quote what Lord Denning, then Denning L.J., said in Smithwick v. The National Coal Board [1] : "One often gets cases where the facts proved in evidence - the primary facts - are such that the tribunal of fact can legitimately draw from them an inference one way or the other, or, equally legitimately, refuse to draw any inference at all". And I may here recall too an earlier statement. In Cotton v. Wood [2] , Erle C.J. said: "Where it is a perfectly even balance upon the evidence whether the injury complained of has resulted from the want of proper care on the one side or on the other, the party who founds his claim upon the imputation of negligence fails to establish his case".

1. [1950] 2 K.B. 335, at p. 352. 2. (1860) 8 C.B. (N.S.) 568, at p. 571 [141 E.R. 1288, at p. 1289].

The argument for the appellant was based largely upon passages in the judgments in certain English road accident cases. But I cannot accept some of the statements, considered to be relevant to the facts of the particular cases in which they were uttered, as laying down compelling rules for other cases.

This case is not one in which nothing is known beyond the fact that the accident happened on a roadway. It is not a case where the drivers of the vehicles offered no explanation of the occurrence. Each gave evidence that his vehicle was on its proper side of the road and that the other vehicle, although apparently having room to pass, came in contact with his vehicle and must therefore, he said, have swerved on to the wrong side of the road. The learned trial judge was not persuaded that either account was more probable than the other. I can see no reason why his Honour, feeling unable to choose between them, was bound to conclude that both were false and find the drivers equally to blame on an hypothesis that neither had suggested, namely that both had been driving too close to the centre of the roadway. His Honour was not conducting an inquest to determine the cause of the accident. He was trying a case in which the plaintiff was asserting that the accident was caused by the defendant's negligence. If from the whole of the evidence his Honour had felt able to infer that each driver had misjudged the closeness of his vehicle to the other and had not allowed it room to pass, then he would have been justified in finding that the plaintiff had made out his case that the defendant was negligent, notwithstanding that his own negligence had contributed to the accident. But his Honour was not persuaded that this was so. For him to have said so would have been simply the utterance of a guess at a possibility not a conclusion of probability.

Cases of this sort may, as Hogarth J. suggests, show that, in an age when insurance is common and often compulsory, an injured person's right to compensation for a road accident ought not to remain dependent upon proof of blame. But so the law is: and as I see it the plaintiff here simply failed to prove that the defendant was blameworthy.

In the circumstances, I need not say anything further about some matters that were discussed by counsel on his assumption that a prima facie case against the defendant had been made out by the fact of the collision alone, throwing upon him the burden of giving an explanation. It is enough to refer to what has been often referred to, the discussion by this Court in Mummery v. Irvings Pty. Ltd. [1] . I have not thought it necessary to discuss the cases cited to us. My brother Owen has done so in the judgment that he is about to deliver and I agree in his observations.

Doubtless the facts spoke for themselves, and eloquently, of negligence: but of whose negligence they had nothing convincing to say. And when the parties themselves spoke, what they said left the learned trial judge still in doubt.

This is an appeal from an order of the Full Court of the Supreme Court of South Australia which by a majority (Chamberlain and Hogarth JJ., Napier C.J. dissenting) dismissed an appeal from Travers J. who had dismissed the claim and counterclaim in an action in which the plaintiff, the present appellant, sought to recover damages for personal injuries received when a collision occurred between a motor cycle and side-car ridden by him and a car driven by the defendant, the present respondent, who in turn counterclaimed for damage done to his car. The accident occurred at about 7 p.m. on 22nd July 1961. The plaintiff was riding in a southerly direction along a road named Cavan Road, the road being straight with a bitumen surface twenty-two feet wide. The defendant was driving in a northerly direction. Both vehicles had their lights on and each driver saw the other vehicle approaching. Each said in his evidence that he was on his correct side of the road and that as they approached one another the other vehicle was on its correct side. Each said that he held to his course on his correct side of the road and that the other vehicle must have swerved to its right although neither could say that he had seen the other swerve. The vehicles struck one another a glancing blow. Apart from the evidence of the parties, there was nothing to indicate whereabouts in the road the collision had occurred and, in these circumstances, the learned trial judge was unable to say that the account given by one party was more probably correct than that given by the other and for this reason held that neither had established his case that the other had been negligent. Accordingly he dismissed the appellant's claim and the respondent's counterclaim.

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:

It is pertinent to ask, what would have been the position if there had been a passenger in the back of one of the vehicles who was injured in the collision? He could have brought an action against both vehicles. On proof of the collision in the centre of the road, the natural inference would be that one or other or both were to blame. If there was no other evidence given in the case, because both drivers were killed, would the court, simply because it could not say whether it was only one vehicle that was to blame or both of them, refuse to give the passenger any compensation? The practice of the courts is to the contrary. Every day, proof of the collision is held to be sufficient to call on the two defendants for an answer. Never do they both escape liability. One or other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence, the result must be the same. In the absence of any evidence enabling the court to draw a distinction between them, they must be held both to blame, and equally to blame.

Now take this case where there is no passenger, but both drivers are killed. The natural inference, again, is that one or other was, or both were, to blame. The court will not wash its hands of the case simply because it cannot say whether it was only one vehicle which was to blame or both. In the absence of any evidence enabling the court to draw a distinction between them, it should hold them both to blame, and equally to blame.

It is very different from a case where one or other only is to blame, but clearly not both. Then the judge ought to make up his mind between them, as this court said recently in Bray v. Palmer [1] . But when both may be to blame, the judge is under no such compulsion and can cast the blame equally on each.

So much seems so clear on principle that it is unnecessary to go further [2] .

1. [1953] 1 W.L.R., at pp. 1476, 1477.
   1. [1921] 2 K.B. 664.
   2. [1953] 1 W.L.R. 1455.
   3. [1953] 1 W.L.R. 1472.
   4. [1953] 1 W.L.R. 1455.
   5. [1953] 1 W.L.R., at pp. 1476, 1477.

His Lordship did so, however, and went on to point out that the evidence showed that "each driver kept his course, with his off-side wheels on or over the centre line of the road. There was room for each of them to pull in to his near-side of the road, but neither did so. There was not the slightest trace of any avoiding action taken by either - no brake marks; no swerve; no hooter; nothing. Assume that one of the vehicles was over the centre line a few inches, and thus to blame, why did not the other one pull in more to its near-side? The absence of any avoiding action makes that vehicle also to blame. And once both are to blame, and there are no means of distinguishing between them, then the blame should be cast equally on each."

I agree, with respect, that where a collision between two vehicles travelling in opposite directions on an otherwise empty road is shown to have occurred in the centre of the road, then in the absence of some satisfactory explanation, it is reasonable to infer that both drivers were to blame. But I cannot accept the view that there is some principle of law which insists that both parties must be held to be blameworthy when that hypothesis is not a more probable one than that one or the other was wholly responsible. In my opinion the first of the passages above quoted from the judgment of Denning L.J. ought not to be accepted as sound in law, and if the practice of the courts is as his Lordship describes it is contrary to principle and should be replaced by a due recognition of the law as to onus of proof and an acceptance of the simple proposition that no court is entitled to make a finding which is not justified by the evidence.

I should add that I can find nothing in s. 27a (3) of the Wrongs Act of South Australia which affects the view that I have expressed. That sub-section provides that "where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". Its terms afford no justification for thinking that it has introduced any such rule as that for which the appellant contended.