Nominal Defendant v Haslbauer

The damage to the two vehicles was slight. The driver of the Morris described the impact as follows: "I noticed that my car started to move and then I felt a bump from the back and I realized that my car was not moving from its own motor but from the impact on the back. Q. What did you do? A. I put my foot on the clutch and on the brake. Q. You stopped? A. Stopped."

Another passenger in the Morris, however, said that the impact was more severe and that the Morris was pushed forward some six or seven feet. A constable of police who came on the scene inspected the Holden after its driver had informed him that its brakes had failed. He found that the foot-brake " went to the floor There was no foot-brake It was not working. It just went to the floor."

No evidence was called on behalf of the plaintiff in her case in chief on the question of liability other than evidence describing the impact I have so far related, and the constable's inspection of the Holden vehicle.

The driver of the Holden gave evidence at the trial, on behalf of the defendant, denying any knowledge of the condition of the brakes, and stating that they had failed suddenly as she applied them when the Morris Oxford stopped at the pedestrian crossing.

A trained mechanic called on behalf of the defendant, who examined the Holden after the accident, described its hydraulic braking system and the condition of the piping carrying brake fluid in that system. At a point where a flexible hose was connected to a steel pipe, he found the steel pipe fractured half-way round. He said that, with that fracture present, sudden application of the brakes could so increase the pressure in the system that the fracture would open up, the fluid of the system would spurt out and the brakes would completely fail. He also said that the existence of the fracture was not likely to be detected by a driver until the pedal faded on application of pressure by the foot. On the other hand, he said that had the fluid been leaking out slowly beforehand, a softening of the pedal would have been observable, and the brakes would have progressively become less effective. There was evidence, however, that the hand-brake of the Holden was in good order. The driver of the Holden had driven it on this occasion because of an emergency created by the mechanical failure of another vehicle which otherwise she would have been driving. Due to an oversight on the part of its owner, who was the husband of its driver on this occasion, the Holden utility was unregistered. Hence this action against the nominal defendant.

The learned trial judge summed up, as I read his directions to the jury, upon specific allegations of negligence placing the appellant's case before the jury as a claim that the driver of the Holden knew of the defective condition of the brakes, that she drove it at an excessive speed, and that she failed to keep a proper look out.

Referring to the mechanic's evidence as to the condition of the braking system on the Holden, his Honour said: "As I understand his evidence, he does say, however, that a fracture like this can happen suddenly without any prior indication to the driver of the car that there was anything amiss. So I suppose on this aspect of the matter it all boils down to this: what do you think of the evidence of Mr. Nicholas; what do you think of the evidence of Mrs. Nicholas; are you prepared to accept it in the light of all the surrounding circumstances, or are you not? At any rate, those, I think, are the matters of negligence which the plaintiff alleges against the nominal defendant through Mrs. Nicholas, really. She must establish negligence on the part of the lady; she must establish it to your satisfaction on a balance of probabilities otherwise she fails."

At the conclusion of the summing up, counsel for the defendant submitted that there was no evidence that the defendant was driving the Holden at an excessive speed or that she had prior knowledge of the faulty condition of the hydraulic braking system. The trial judge, though with some doubt as to the second of them, rejected both submissions.

The jury returned a verdict for the plaintiff for £10,271 17s. By majority, the Supreme Court (Court of Appeal Division) dismissed an appeal by the nominal defendant.

Upon the appeal to this Court, the appellant asked for a new trial upon the ground that there was no evidence before the jury that the driver of the Holden had any knowledge prior to the accident that the braking system of the utility was faulty and likely to fail, and that consequently there had been a substantial misdirection. The respondent's counsel ultimately accepted the position that there was no such evidence as indeed, as an examination of the transcript of evidence shows, there was not.

But the respondent sought to avoid the consequence of a new trial by submitting that there was evidence of negligence on the part of the driver, derived inferentially from the fact of the occurrence; as it is said, if one must continue to regard the English language as inadequate - res ipsa loquitur. It therefore rested with the appellant, so it was submitted, to account for the occurrence by an explanation which negatived any negligence on the part of the driver of the Holden. To complete the argument it was said that upon the summing up, the jury must have disbelieved that driver in her denial of prior knowledge of the condition of the brakes. Therefore there was no ground for disturbing the verdict, the defendant not having negatived the inference of negligence which the fact of the accident itself provided.

Before dealing with the foundation of this submission, I ought to say that, in my opinion, it does not at all follow that had the trial judge not instructed the jury that there was some evidence that the driver of the Holden had prior knowledge of the faultiness of the braking system - which, in my opinion, he did - the jury would have taken the same view of that driver's evidence as the submission suggests they must have done. Thus, it seems to me that even on the arguments of the respondent a new trial is inescapable.

However, as the other elements of the respondent's submission have been much debated and as the trial judge upon a new trial will need to give appropriate directions as to negligence, I should deal with the fundamental proposition on which these submissions were sought to be built.

In this country the relevant law as to the consequence in a trial of an inference of negligence being capable of being drawn from the fact of an occurrence as evidenced by a plaintiff in his case in chief is authoritatively dealt with by decisions of this Court with which, if I may say so, I respectfully and fully agree: see Fitzpatrick v. Walter E. Cooper Pty. Ltd. [1] ; Mummery v. Irvings Pty. Ltd. [1] ; and Anchor Products Ltd. v. Hedges [2] . Applying the principles of those cases, the respondent's basic submission that in such a case the defendant by his account of the accident must establish that in relation to the occurrence he was not negligent, in my opinion, is clearly untenable. But a statement of the application of those principles may not be out of place.

1. (1935) 54 C.L.R. 200. 2. (1956) 96 C.L.R. 99. 3. (1966) 115 C.L.R. 493.

To make a prima facie case in a claim based on the defendant's negligence, a plaintiff may be content to rely upon such inferences as can be drawn from the fact of the occurrence which he claims to be due to the defendant's negligence. An inference of such negligence may be drawn where, in the ordinary course of human affairs, such an occurrence is unlikely without want of care on the part of a person in the situation of the defendant. In such a case, the occurrence itself may be said to bespeak the lack of care. Or if his pleadings are wide enough, a plaintiff may rely both upon such an inference and upon evidence, beyond that of the occurrence itself, of specific acts or omissions of the defendant indicating a want of care. If at the end of his case in chief the occurrence as then evidenced does itself warrant an inference of negligence on the part of the defendant, whether or not the evidence, if there be any, of the specific acts or omissions does so, the defendant is faced with a choice. He may choose not to call any evidence, and take the chance that, although at liberty so to do, the jury will refuse to draw the inference of want of care on his part from the fact that the incident occurred. Or he may call evidence. In the sense that a defendant so placed must at that point in the course of the trial choose his course, it may be said in what to my mind is a loose and inexact sense that the burden of the case for the moment passes to the defendant. But in precise terms, the situation imports no onus upon him. Nor, on the other hand, does the fact that the plaintiff has made a prima facie case of negligence on the part of the defendant, whether by no more than the evidence of the occurrence itself or by that and other evidence, place the plaintiff in an entrenched position. Although hallowed by much distinguished usage, I myself incline against the use of the expression "presumption of negligence" describing what arises from the circumstance that, as the plaintiff evidences it in his case in chief, the occurrence will of itself support an inference of want of care on the part of the defendant. Nothing to my mind is presumed. No more, in my opinion, has occurred than this, that if the evidence remains in the same state as the plaintiff has left it at the close of his case in chief, the tribunal of fact will be justified in inferring negligence in the defendant causing the event. Whether or not that inference will be drawn remains an open question for that tribunal.

If the defendant calls evidence as to the occurrence, which if accepted by the tribunal of fact, and read with the plaintiff's evidence as to the occurrence, would no longer allow an inference of negligence on his part to be drawn from the fact of the occurrence as it is then known, the plaintiff, if relying only upon the inference sought to be drawn from the occurrence, will fail in the action if that evidence of the defendant is accepted. He will have no evidence of negligence on the part of the defendant and will not satisfy the onus which remains with him throughout to establish that negligence.

The instant case to my mind is a good example of the operation of the principles set out in this Court's decisions to which I have referred. The plaintiff in chief established that a vehicle being driven on the roadway ran into the rear of a vehicle stationary on that roadway. I put on one side, as to my mind irrelevant for my immediate purpose, the constable's evidence given in the plaintiff's case in chief as to the condition of the foot-brake on the Holden utility which he found at the time of his inspection. Such an occurrence as the contact of these two vehicles in the circumstances described in the plaintiff's case in chief would support the inference that the driver of the Holden was either not keeping a proper look out or was driving beyond that speed at which in the circumstances she ought reasonably to have been driving. In order to support a verdict for the plaintiff if no more were known, there would be no need to determine which of these or, perhaps, other possible negligent causes of the impact was the correct one.

But the defendant called evidence that immediately before the accident the braking system of the car was defective and likely to fail on a sudden application of the foot-brake. If that evidence were accepted, the occurrence would cease to be one in which a car capable of being stopped if driven at a proper speed and with a proper look out ran into the preceding vehicle. Once it was accepted that the car had become incapable of being stopped even with a proper look out and though driven at what in the circumstances was a reasonable speed, in my opinion, no inference of want of care on the part of the driver was available from the occurrence itself. If the jury believed that the brakes immediately before the impact were in the condition described by the mechanic, the occurrence changed its complexion. The driver of the Holden was not the person responsible for the maintenance of the car; nor was she shown to be in a position where it was incumbent upon her to inspect it before she used it. Nor was there any evidence to justify the inference that, by the earlier performance of the foot-brake or otherwise, she had been alerted to the existence of the faultiness of the hydraulic braking system. Indeed there was no evidence that the foot-brake had exhibited any weakness prior to its ultimate failure. The occurrence, in my opinion, no longer supported an inference of want of care on her part.

It is consistent with principle that if the facts accepted by the tribunal of fact are equivocal on the question of negligence on the part of the defendant, the plaintiff must fail. It is equally true that when those facts support an inference of that negligence, the plaintiff will succeed if the tribunal of fact is prepared to draw that inference or if the defendant does not prevent that result by accepted evidence of his own blamelessness.

Thus, in default of other evidence, the question for the jury in this case would be first whether they accepted the view that the steel pipe in the hydraulic system was fractured before the impact with the Morris Oxford and thus likely to allow a failure of the braking system if the foot-brake were suddenly applied. Of course, if they believed the evidence of the driver of the Holden that the brakes did suddenly fail when applied immediately before the impact, it would justify the conclusion as to the state of the braking system at that time. But, to my mind, the critical matter in strictness would be their view as to the condition of the hydraulic braking system and not the credit they would give to the whole of the Holden driver's evidence. Whilst it was for the jury to say whether the fracture in the piping of the hydraulic braking system had occurred before the impact, there was in truth, in my opinion, no evidence that the impact caused the fracture.

The second question for the jury if they were not prepared to conclude that the fracture of the pipe had occurred before the impact would be whether they were prepared to draw an inference of negligence on the part of the defendant from the fact of the impact in the circumstances, there being no dispute as to that fact. In my opinion, they should be instructed, subject to what I shall say later as to the proximity with which the Holden was following the Morris and the non-use of the hand-brake, that if they concluded that the fracture of the pipe preceded the accident, they should find a verdict for the defendant. The plaintiff at the close of all the evidence in the case would not then have evidenced an occurrence which could bespeak the defendant's negligence.

Of course, the fact that the brakes failed through the fracture in the steel pipe may not negative the proposition that the driver of the Holden was negligent. None the less, of course, she may have been inattentive or driving too fast, or, having enough time - if that be the fact, she may have failed to use the hand-brake. But the occurrence itself no longer provided evidence of any of these things. The plaintiff would have needed to have had other evidence of them or of one of them beyond the mere fact of the occurrence, as that fact was known at the close of the evidence, always assuming that the suggested antecedent condition of the hydraulic braking system was accepted by the jury.

Incidentally, a plaintiff who has relied in chief solely on the occurrence as providing the evidence of the defendant's negligence would be splitting his case in what would generally be regarded as an unacceptable way if he sought in reply to adduce evidence of specific acts of negligence. But if his pleadings had a wide enough base, and he had called other evidence in chief or could obtain it from the defendant's case, he would not be entirely defeated by the changed complexion of the occurrence which acceptance of the defendant's account of the condition of the braking system would produce.

In my respectful opinion, it is in this general area that misconception has arisen in some of the reported cases. Whilst during the course of the trial there may be a stage at which the evidence of the occurrence called by the plaintiff up to that time would support an inference of the defendant's negligence, the critical time is at the close of the evidence. If then all the evidence as to the occurrence (if accepted) would itself support an inference of want of care on the defendant's part, it can properly be said that the defendant must negative that inference. By hypothesis he will not have given such an explanation of the occurrence as has rendered the inference of his negligence unavailable. But, if he has given evidence as to the occurrence, which if accepted, and taken with the plaintiff's evidence, does not logically warrant an inference of his negligence, it is, in my opinion, quite erroneous to say that none the less he must go further and show that the occurrence was without want of care on his part. So to conclude would be to reverse the onus, placing it on the defendant whereas in truth and unquestionably it remains throughout with the plaintiff. With great respect to the noble Lords whose decisions are said to support the submission of the respondent, a sufficient distinction has not been made, in my opinion, between "the circumstances which in any given case do, in truth, give rise" to an inference of negligence on the part of a defendant and "the consequences which properly flow when a case" for drawing such an inference has been made by the plaintiff - that is to say, made by a plaintiff upon all the evidence in the case and not merely upon the evidence called by him in chief. My quotation - with adjustments to express myself without resort to the Latin tag which has, I think, been at least in part the cause of elevating a reason for logical inference, grounded on the common experience of mankind, into a principle or doctrine - is taken from the judgment of the Master of the Rolls, Lord Evershed, in Moore v. R. Fox & Sons [1] . In my respectful opinion, Lord Dunedin in Ballard v. North British Railway Co. [1] correctly stated the position as to the consequence of a defendant complementing the evidence of the plaintiff as to the fact of the occurrence and thereby bringing into equipoise the question whether upon the whole of the evidence the occurrence itself warranted an inference of the defendant's negligence. If on the whole evidence as to the fact of the occurrence, as the tribunal of fact accepts it, an inference of the defendant's negligence is not open, a plaintiff, without other evidence than that as to the fact of the occurrence, has no evidence of the defendant's negligence. But, if on the whole evidence as to the fact of the occurrence, as the tribunal accepts that evidence, it does support such an inference, the plaintiff can succeed, unless the defendant by his evidence as to matters beyond the fact of the occurrence establishes to the satisfaction of the tribunal of fact that he was not negligent in relation to it.

1. [1956] 1 Q.B. 596, at p. 614. 2. [1923] S.C. (H.L.) 43.

I should notice in passing that in some of the reported cases, e.g. Barkway v. South Wales Transport Co. Ltd. (in the Court of Appeal) [1] and Swan v. Salisbury Construction Co. [1] , where a plaintiff upon his evidence in chief has available an inference of the defendant's negligence from the fact of the occurrence, the defendant, in seeking to give an explanation of that occurrence, has exposed some act or acts of his or for which he is responsible which were negligent and causally related to the result of which the plaintiff has complained. In such cases, in my respectful opinion, the plaintiff ought to have succeeded not upon the negligence to be inferred from the fact of the occurrence but upon the specific acts of negligence of which the defendant provided evidence. Whether or not the plaintiff's pleadings in these cases were wide enough to permit of such a case being made need not be examined or considered. But, although the result of such cases may thus be accommodated to the decisions of this Court, it is clear enough that not all of the relevant decisions of the English Courts can be so regarded. These must remain in conflict with the now settled views of this Court.

In this case the pleadings are wide enough to permit of a case being made of specific acts of negligence along with a case based upon unspecified negligence to be inferred from the fact of the occurrence. It was suggested that the admitted proximity of the Holden to the Morris Oxford whilst both were in motion, and the failure of the driver of the Holden to use the hand-brake, provided evidence of negligence on the part of the driver of the Holden. As the evidence at the new trial which, in my opinion, must take place, may be different from that which has already been given, I should say no more than that personally I should need to be persuaded that to drive at ten to fifteen miles per hour a car's length or so behind another car in a line of city traffic, in a car with a foot-brake in working order itself affords evidence of negligence. But, in my opinion, as the facts emerged at the trial, there was no evidence on which it could have been concluded that it was negligent not to have used the hand-brake in the interval between the realization of the failure of the foot-brake and that point of time at which use of the hand-brake could have averted the impact - a point of time as to which there is no evidence. Or put another way, there was no evidence, in my opinion, on which a jury could find that use of the hand-brake in the circumstances could have avoided the collision of the vehicles.

If the evidence stands as it does at present, in my opinion, the only substantial question for the jury on the question of liability will be whether or not they accept the view that immediately before the impact the steel pipe of the Holden's hydraulic braking system was fractured so as to be likely to cause a failure of that braking system upon sudden pressure being placed on the foot-brake.

The misdirection as to existence of pre-knowledge on the part of the driver of the Holden utility of the faulty condition of the hydraulic braking system is sufficient to require a new trial of the action.

This is an appeal against an order of the Supreme Court of New South Wales (Court of Appeal) refusing, by a majority, an application for a new trial of an action in which the plaintiff, the present respondent, was awarded damages for personal injuries sustained in a collision between two motor cars on a public street. The respondent had been a passenger in one of the cars, and the defendant, now the appellant, was sued as being liable by statute for damages in respect of bodily injury caused by the use of the other car on a public street, since the other car was not registered at the time. The car in which the respondent was travelling stopped at a pedestrian crossing, and while stationary it was run into from behind by the other car, which was then being driven by a Mrs. Nicholas. There was evidence that after the accident the hydraulic brakes of her car were found to be unusable because a brake fluid line had become fractured by metal fatigue and the fluid had escaped.

The jury having found the issue of negligence in favour of the respondent and awarded her damages accordingly, the appellant sought a new trial on the ground of misdirection by the trial judge. In the course of a clear and careful summing up the learned judge told the jury that what was alleged against Mrs. Nicholas was that she had been negligent in the manner of controlling the car or in taking it on the road knowing it to be in a defective condition. He pointed out that under ordinary circumstances the fact that a car runs into another from behind is suggestive of negligence as indicating that the driver of the colliding car had not been keeping a proper look out or had been driving it at a speed that was inappropriate in the circumstances or had been driving too close to the vehicle in front to be able to stop if it should become necessary to do so in order to avoid a collision. He made it clear to the jury that it was a question for them whether anything like that had been established that was inconsistent with reasonable care on the part of Mrs. Nicholas. So far the summing up was unexceptionable; but the learned judge proceeded to put to the jury, as a question which it was open to them on the evidence to decide against the appellant, whether it had been established that Mrs. Nicholas had taken her car on the road knowing that it was in a defective condition and so was likely to be a source of danger, and by so doing had failed to exercise reasonable care. He left it to them, if they accepted certain evidence that had been given to the effect that the car was unregistered and that Mrs. Nicholas had not at first intended to use it and had resorted to it only when another vehicle had broken down, to infer, if they saw fit, that the brakes were defective and that she knew it when she took the car on the road. Both she and her husband had given evidence directed to establishing that she had no antecedent knowledge of any defect in the brakes. Expert evidence had been given to the effect that where a fracture through metal fatigue occurs the fluid may escape gradually - in which case the driver becomes aware that the brakes are progressively becoming less useful - but that it may escape without warning, upon a sudden and violent application of the brakes. His Honour said: "On this aspect of the matter it all boils down to this: what do you think of the evidence of Mr. Nicholas; what do you think of the evidence of Mrs. Nicholas; are you prepared to accept it in the light of all the circumstances, or are you not?"

The judge immediately reminded the jury that the plaintiff must fail unless she established negligence on the part of Mrs. Nicholas to their satisfaction on a balance of probabilities; but the whole tenor of his charge with respect to the matter of the brake failure was that if the jury did not conclude that Mrs. Nicholas had failed to keep a proper look out or had driven too fast or too close to the vehicle in front they would still be entitled to find that she had caused the accident by negligence, because unless they believed the evidence of her husband and herself to the effect that she had no knowledge of any defect in the brakes before commencing to drive the car on the morning of the accident they would be entitled to infer, from the fact of the non-registration of the car and of its being only her second choice of vehicle that morning, that she in fact had such knowledge.

His Honour with some hesitation rejected an application by counsel for the defendant for a direction that there was no evidence to support such an inference. There was, however, no such evidence. There was no evidence that the non-registration of the car was due to any defect in the car, or that in making another car her first choice for the occasion Mrs. Nicholas had been influenced by any knowledge or suspicion that anything was wrong in the car she ultimately took. There was no evidence that as she drove towards what proved to be the scene of the accident the brakes were progressively deteriorating or giving any sign of trouble. It is hardly necessary to add that disbelief of Mr. and Mrs. Nicholas would not by itself justify an affirmative finding to the contrary of their evidence. The direction was therefore erroneous, and the error necessarily vitiated the verdict, assuming that the burden of proving negligence in respect of the brakes remained throughout upon the plaintiff.

Neither of the learned judges who formed the majority in the Court of Appeal supported the trial judge's direction on the matter of the brake failure, but they upheld the verdict nevertheless. Their reasons did not coincide. The learned President thought that the misdirection was immaterial, because even if the jury believed that Mrs. Nicholas had not known of any defect in the brakes they would have been justified in finding negligence on her part because of certain evidence in the defendant's case that she had been driving only a car's length behind the other and at a speed between ten and fifteen miles an hour. So, no doubt, they would; but equally they would have been entitled to conclude, and may have concluded for all that can be known, that it was not negligent for Mrs. Nicholas to drive in that manner in the circumstances. They may thus have come to the question of knowledge that the brakes were defective as the critical question in the case, and may have acted upon the judge's direction that on that aspect of the matter it all boiled down to whether they were prepared to accept the evidence of Mr. and Mrs. Nicholas.

The other learned member of the majority also regarded the misdirection as immaterial, but for a different reason. His view was, in effect, that even if the jury found no negligence in respect of look out, speed or distance from the car in front, they were entitled to find for the plaintiff unless the defendant had satisfied them, by the evidence of Mr. and Mrs. Nicholas, that Mrs. Nicholas had not been guilty of negligence with respect to the brakes - that is to say unless the defendant had proved that Mrs. Nicholas did not know (and, presumably, ought not reasonably to have known) of a defect in the braking system in time to avoid the accident. This conclusion the learned judge reached because of the view that he took about what he described, and is often described, as the "principle" of res ipsa loquitur. His Honour's reasoning, if I interpret his judgment correctly, proceeded by steps which may be summarized as follows. (1) On the evidence upon which the plaintiff primarily relied no specific negligent act or omission on the part of Mrs. Nicholas was identified; but, since the collision would not have happened in the ordinary course of events if she had been driving with due care as regards look out, speed and distance from the car in front, a prima facie inference was warranted that in some respect or other she had been negligent. (2) The case was accordingly put by the plaintiff as within the res ipsa loquitur principle. (3) The evidence as to the brake failure might have been regarded by the jury as disproving negligence in respect of look out, speed and distance from the car in front, but even so the fact of the brake failure warranted in its turn, on the res ipsa loquitur principle, an inference of negligence on the part of Mrs. Nicholas. (4) The case therefore remained to the end a case within that principle, and the trial judge's misdirection (as to the effect of not accepting the evidence of Mr. and Mrs. Nicholas on the matter of the brakes) was immaterial because the principle placed upon the defendant one or other of two burdens (his Honour considered it unnecessary to decide which), viz. (a) the burden of showing that the cause of the accident, being identified as the failure of the brakes, did not involve any negligence on the part of Mrs. Nicholas, or (b) that the cause of the accident, being so identified, was not more compatible with a hypothesis of negligence than with one of no negligence on her part.

This Court in Mummery v. Irvings Pty. Ltd. [1] made it clear that res ipsa loquitur is not a principle of a law. The learned Judge of Appeal, however, described res ipsa loquitur as "a legal principle capable of precise definition in nature and application", and accordingly sought to resolve the case before him by the process of defining and applying a rule, as being a part of or necessitated by the principle.

With great respect, I think that this was not a correct approach to the matter. Res ipsa loquitur is often called a principle or a doctrine, and no harm is done provided that one keeps steadily in mind the full implications of the truth that there is only one principle of law which applies to negligence cases generally, and that is that the burden of proof lies throughout on the party who alleges the negligence. All discussion of res ipsa loquitur is a discussion of evidence and inferences from evidence, in relation to the question whether that party has discharged the burden; and it is a mistake to suppose that what the party charged must prove in order to rebut an inference of negligence which particular evidence, considered by itself, would raise against him is a question to be decided by the application of a legal rule. In the nature of things, his proofs must be such that, when the whole of the proved facts are taken together, not only is it true that no specific negligent act or omission on his part has been proved as a cause of the damage, but it is no longer logical to infer that some unidentified negligence on his part was such a cause.

Res ipsa loquitur is a statement which achieves the beauty of conciseness at the cost of leaving to be understood what it is that the res says. For many purposes there is no need to expand the statement further than by saying that the res suggests that the cause of the damage was probably some negligence for which the defendant is responsible; but when the question is, what must the defendant prove in order that the facts finally established, when considered as a whole, shall not carry that suggestion, the first necessity is to be clear about what is meant by a suggestion of "negligence". The concept of negligence is always relative to a particular factual situation. The definition of negligence, as Willes J. said in Vaughan v. The Taff Vale Railway Co. [1] is the absence of care according to the circumstances. More explicitly, it is the omission to exercise the care and skill which was reasonable, according to the standard of the ordinary person, in the circumstances in which the person who is said to have been negligent found himself at the material time. Accordingly what the res suggests, if res ipsa loquitur, is only that the person charged probably caused the damage complained of by a failure to exercise the care and skill which a reasonable person would have exercised in the situation which is proved to have existed at the time. The circumstances, of course, included the fact, if it be proved, that the person charged had some special information affecting what a reasonable person would have had in contemplation in the particular case: Glasgow Corporation v. Muir [1] ; for (as I tried to make clear in McHale v. Watson [2] ) when it is said that the standard of negligence is objective the meaning is only that the circumstances to be considered do not extend to special idiosyncrasies affecting the individual's capacity for foresight or prudence. But if there be no proof that a person alleged to have been negligent possessed any relevant special information, the res suggests no larger prima facie inference than that a probable cause of the damage was a failure on his part to exercise the care and skill which a reasonable man not possessing any such special knowledge would have exercised.

1. (1860) 5 H. & N. 679, at p. 688 [157 E.R. 1351, at p. 1355]. 2. [1943] A.C. 448, at p. 457. 3. (1966) 115 C.L.R. 199, at p. 215.

From this it follows that to rebut the prima facie inference no more need be proved than that the person charged did in fact exercise that degree of care and skill: it is not necessary to prove that he had no such special information. Accordingly, in the present case the defendant would succeed in displacing the prima facie inference that arose from the happening of the accident by satisfying the jury that at all material times Mrs. Nicholas kept a proper look out and drove her car no faster and no closer to the car in front than would have been reasonable for an ordinary person having no cause to suspect the condition of her brakes. If it had been proved that in fact Mrs. Nicholas had reason to be suspicious of her brakes it would have been necessary for the jury to take that into account as an additional factor in the situation, and to decide whether she showed less care or skill than an ordinary person possessing that reason for suspicion would have shown; but the law placed upon the plaintiff the burden of proving what the situation was, as part of her proof of negligence. The law placed no burden of proof on the defendant.

At first sight this may seem inconsistent with such statements as that of Lord Simonds in Woods v. Duncan [1] which the Privy Council has recently quoted with approval in Swan v. Salisbury Construction Co. Ltd. [1] . (Indeed the learned President spoke of the latter case, mistakenly if I may respectfully say so, as being inconsistent with Mummery v. Irvings Pty. Ltd. [2] .) Lord Simonds' statement, as converted to a generalization in the Privy Council's judgment, was: "But to apply this principle (of res ipsa loquitur) is to do no more than to shift the burden of proof. A prima facie case is assumed to be made out which throws upon him (that is, the defendant) the task of proving that he was not negligent." But "negligent" there of necessity means negligent in relation to the circumstances ultimately proved. If the word be so understood the statement accords with what I have said. Needless to say, it was not made, either by Lord Simonds or by the Privy Council, as a statement of law. It ascribes no legal operation to res ipsa loquitur. It simply describes the position in which a defendant finds himself in fact, when confronted by evidence which, if it stands alone at the end of the case, will raise an inference of negligence against him and so will discharge the plaintiff's burden of proof. The position is that the defendant will lose the case unless he adduces evidence which persuades the jury not to infer one of the facts which would be wrapped up in an inference of negligence, namely that the situation of the defendant at the material time possessed particular features and that his conduct in relation to it was less careful and skilful than that which an ordinary person would have considered reasonable in view of those features.

1. [1946] A.C. 401, at p. 439. 2. [1966] 1 W.L.R., at p. 212. 3. (1956) 96 C.L.R. 99.

The result in the present case, in my opinion, is that if the jury were satisfied that a failure of the brakes of the car driven by Mrs. Nicholas caused the collision, and consequently (the evidence being what it was) were not satisfied that she had failed to exercise all reasonable care and skill as regards look out, speed and distance from the car ahead, there was no basis for a verdict for the plaintiff. I should think it clear that a brake failure by itself affords no ground for an inference of negligence on the part of a driver who is only the driver; for in my opinion it would not be open to a jury to proceed upon the basis that a car driver, not shown to have or to have had any other function with respect to the car than that of driving it, takes less than reasonable care if he omits to ascertain the state of the brakes before taking the car on a public street. I am therefore of opinion that the burden of proof which the law placed upon the plaintiff throughout the case necessitated her proving, if she wished to succeed by making a case of negligence with respect to the brakes even though failing to make a case of negligence in any other respect, that before the collision Mrs. Nicholas acquired some information which would have led a reasonable person who had acquired it to take some precaution which Mrs. Nicholas omitted to take, and that her omission to take that precaution was a proximate cause of the collision.

For these reasons I am of opinion that the misdirection was such that the verdict cannot be sustained. I would allow the appeal and order a new trial of the action.

In an action instituted against the nominal defendant pursuant to the Motor Vehicles (Third Party Insurance) Act, 1942 the respondent obtained a verdict at the hands of a jury in the sum of £10,271 17s. The only question in the case was whether Florence Queen Nicholas, the driver of an uninsured car which belonged to her husband, had been negligent in the management and control of the vehicle when it came into collision with another car and the respondent, who was a passenger in the latter car, suffered personal injury. Subsequently to the verdict a motion for a new trial was, by majority, dismissed by the Court of Appeal.

The respondent's case at the trial was that whilst the car in which she was driving was stationary at an intersection the vehicle driven by Mrs. Nicholas ran into the rear of it. The collision does not appear to have been very severe but there was evidence that its consequences to the respondent were serious. From these bare facts the respondent contended that it could be inferred that Mrs. Nicholas was driving too quickly immediately before the collision or that she had not been keeping a proper look out or that she had, in some other way, been negligent.

There can, in my view, be no doubt that the case as presented was a classic one for the application of the principle of res ipsa loquitur and its application remained unaffected by the evidence of Constable Hall, adduced on behalf of the plaintiff in the action, to the effect that Mrs. Nicholas had told him after the collision that the brakes of her vehicle had failed and that he had thereupon tested the foot-brakes and found that they were completely ineffective. But the appellant contends that when Mrs. Nicholas, in the course of the defendant's case, testified that the brakes had failed immediately before the collision on the vehicle which she was driving, there was evidence which, if believed, was sufficient to rebut the inference which was open upon the bare facts of the case as deposed to in the plaintiff's case. In my view this submission is sound for the prima facie inference that might have been drawn on the plaintiff's case rested, necessarily, upon the assumption that the brakes on the vehicle which Mrs. Nicholas was driving were operating effectively immediately before the collision.

However the evidence called at the trial went beyond a mere assertion that the brakes had failed; it established, if accepted, the cause of the brake failure.

In Mummery v. Irvings Pty. Ltd. [1] this Court had occasion to consider the principle of res ipsa loquitur and the effects which the application of the principle in any particular case had on the course of the trial. That case and the more recent cases of Franklin v. Victorian Railways Commissioners [1] , and Anchor Products Ltd. v. Hedges [2] , make it abundantly clear that "once the cause of an accident has been established and the relevant circumstances proved, there is no further room for the operation of the principle". In the present case there was evidence which showed that the brakes on the vehicle which Mrs. Nicholas was driving were hydraulically operated and that the failure was due to a fracture or rupture of an oil line carrying fluid to the brake. There was also evidence that a fracture of this kind can and does sometimes happen suddenly and without warning and that the fracture in this case was due to metal fatigue. There was no evidence that Mrs. Nicholas knew of what I shall call the latent defect in the oil line or that she had any warning of imminent brake failure. In these circumstances the primary question for the jury was, therefore, whether the fracture was the cause of the collision or whether, perhaps, the collision was the cause of the fracture. The jury should, therefore, have been instructed that if they should be satisfied that the fracture was the cause of the collision they should return a verdict for the defendant but that, if they should reject this explanation concerning the cause of the collision, it was open to them to find a verdict for the plaintiff on the basis of negligence to be inferred from the plaintiff's evidence as to the circumstances in which the collision was said to have occurred. A further subsidiary question might possibly have arisen as to whether a prudent driver having suddenly experienced a failure of the foot-brakes could, in the circumstances of this case, reasonably be expected to avoid the accident by the operation of the hand-brake. But once the evidence that the brake failure was the real cause of the accident was accepted there was no room for the inference that Mrs. Nicholas was driving unduly fast or not keeping a proper look out.

1. (1956) 96 C.L.R. 99. 2. (1959) 101 C.L.R. 197. 3. (1966) 115 C.L.R. 493.

In dealing with the situation that thus arose the summing up was, in my opinion, defective to such an extent that there should be a new trial. Furthermore, it was left to the jury to say whether Mrs. Nicholas had taken the vehicle "on the road, knowing that it was in a defective condition and so was likely to be a source of danger to other people using the highway". The learned judge subsequently added: "As I understand the plaintiff's case on this aspect of the matter you are asked to infer that this defective condition was pre-existing and did not happen on that morning whilst Mrs. Nicholas was driving the vehicle. That, I think, is how the plaintiff puts her case on this aspect of the matter. You are asked to infer that." In my view there was no evidence which could justify a finding adverse to the appellant on any such issue. Accordingly, the appeal should be allowed and a new trial ordered.

The appellant has appealed from a judgment of the Court of Appeal of the Supreme Court of New South Wales (Wallace P. and Jacobs J.A.; Asprey J.A. dissenting) dismissing an appeal from a judgment of £10,271 17s. based upon the verdict of a jury in an action for personal injuries caused to the respondent in a collision between two motor vehicles on 16th January 1963. The plaintiff was on that day a passenger in a Morris utility which came to a stop at the intersection of two roads and, while standing there, a Holden utility driven by a Mrs. Nicholas ran into the back of it. The vehicle driven by Mrs. Nicholas was owned by her husband and was unregistered and uninsured under the Motor Vehicles (Third Party Insurance) Act, 1942. In these circumstances, the plaintiff sued the nominal defendant pursuant to s. 30 of the said Act.

In the course of the plaintiff's case, there was evidence that the Morris utility was stationary at an intersection when the Holden utility driven by Mrs. Nicholas ran into the back of it. The following evidence was also given by a witness called on behalf of the plaintiff, Constable Hall:

Q. I think you did make an inspection of Mrs. Nicholas' car? A. Yes. I walked across from the police station after she told me that the brakes had failed. I opened the door and tested the pedal and it went to the floor. Q. What did you notice about the brakes? A. There was no foot-brake. Q. Do you mean it was not working? A. It was not working. It just went to the floor. In cross-examination, Constable Hall gave further evidence about the brakes of the car. That evidence was as follows: Q. Didn't you look at it later after you tested the foot-brake? A. I do not recall; I may have. Q. I suggest you did and found a broken brake line? A. Yes, there was a broken brake line. Q. It was down somewhere near the offside front suspension on the driver's side? A. Yes, the driver's side front suspension. Q. The vehicle had no foot-brake at all? A. That is correct.

At the close of the plaintiff's case there was, I think, a prima facie case of negligence on the part of Mrs. Nicholas. No submission to the contrary was made on behalf of the defendant. Proof of the happening of the collision in the circumstances stated told the story of her negligence res ipsa loquitur. This I think was so, taking into consideration the evidence in the plaintiff's own case that after the collision there was a broken brake line in the Holden utility and that the foot-brake was not working.

In the course of the defendant's case, evidence was given by Mrs. Nicholas to the effect that the brakes of the Holden had been working satisfactorily while she was driving from her home some distance from the point of collision but that when just prior to the collision and while travelling slowly at about fifteen miles per hour, she saw a vehicle travelling about a car's length in front of her come to a stop, she applied the foot-brake but ran into the back of the then stationary vehicle. In cross-examination she said that the foot-brake did not work. Her husband, the owner of the Holden utility, gave evidence that he had between 24th December 1962 and 16th January 1963 driven it while touring and that the foot-brake gave no trouble. A motor mechanic gave evidence that on or about 22nd December 1962 he had tested the Holden, had done some repairs to the king pins and the hand-brake, and on 24th December 1962 had delivered it to Mr. Nicholas with a certificate of roadworthiness. A garage proprietor, Mr. McGrath, with a lot of experience in the repair of cars, gave evidence that he had inspected the Holden in question on 23rd January 1963 and had found that the steel pipe forming part of the brake line had fractured about half way round and had let out all the brake fluid. His evidence was that with such a fracture a sudden application of the brakes would force the fluid out so that the brake pedal would go straight to the floor and "you would have no brakes at all". This was said in examination in chief:

Q. With a fracture such as was in this line - if you were sitting holding it or even braking fairly frequently in traffic - A. You would get it all the time if it had a fracture there, if it was leaking; the brakes would go soft every time you used them until they ran out of oil. Q. Because you would be pushing oil out through the fracture every time you applied the brakes? A. Yes. In cross-examination, the following evidence was given: Q. Apparently from what you say the fractures begin slowly and give some sort of warning to the drivers? A. It is generally known through our trade as metal fatigue that sets up in the steel pipe with the vibration. There is vibration that sets up - Q. There is some sort of warning given to the drivers of this metal fatigue in the sense that the pedals give an indication of softness? A. Yes that is right; if the brake was leaking it would definitely give you warning. Q. If the fracture was leaking before you would have some warning? A. Yes. Q. That would be by the pedal being soft? A. It would gradually go away from under your foot, instead of being hard. Q. That would be an indication to the driver to hurry up and take the car to the garage to be fixed up? A. I would think you would just pull up immediately to find out what was happening to your brakes. That would be the wisest thing. Q. You say there would probably be no warning to the driver if the brake was pressed down violently in a sudden emergency? Mr. Leslie: He did not say "violently". Mr. Evatt: Q. Do you say that? A. Yes definitely. If it was not giving any warning before and it just let it go, the pedal would immediately go to the floor. Q. Such as in some unexpected emergency? A. That is right. Q. But with the normal rate of use you would expect the driver to have some warning of the leak, of the fatigue? A. If the oil was leaking, yes, definitely. In re-examination, the following evidence was given: Q. With normal road use and without sudden violent braking or anything of that sort on the brakes, what do you say as to the possibility of the fracture just suddenly occurring and the brake letting go? A. I would say a fracture would be taking place over a period of time but it would not show up a leak necessarily until you put that terrific pressure on your brakes; then it would let go. Q. But it could be there without going? A. There could be a break forming there with the vibration. Q. Forming in the metal? A. That is right. Q. But not showing any outward sign? A. That is right. Q. Is the formation of the fracture detectable? A. Only if it leaked oil. His Honour: Q. I am not too sure I understand these things, but is this correct: It can happen by a gradual process that a fracture develops and then by repeated use of the brakes a certain amount of oil would be forced out each time you used the brakes? A. Yes. Q. Consequently, the next time you wanted to use them there would be less and less pressure? A. Yes. Q. But is this also correct, if I understand you properly, that you can have a fracture but no perceptible results so far as pressure goes? A. The metal fatigue has to start but it may not show up, but then all at once with a sudden terrific pressure it will snap and that break will appear immediately. Q. Then at that time there would be a good deal of oil escape? A. It would squirt out, yes; it would immediately squirt out on to the chassis and run on to the ground.

At the conclusion of the defendant's case, there was, I think, a case to go to the jury and no submission to the contrary was made.

In a case in reply, a witness who was another passenger in the vehicle in which the plaintiff was a passenger, was called upon on behalf of the plaintiff and said that the bump which the Morris received from the back was violent and pushed it half way out into the intersection. This evidence was no doubt intended to suggest that the Holden driven by Mrs. Nicholas was travelling at speed at the time of the collision.

With the action in this state, I consider that the learned trial judge should have directed the jury somewhat as follows: That they should award damages to the plaintiff only if they found on the evidence that it was more likely than not that the Holden ran into the back of the stationary Morris through some lack of care on the part of the driver. That they would no doubt think that in the ordinary course one car does not run into the back of another which pulls up normally at an intersection unless there is some negligence on the part of the driver of the second car. In this case they had heard the explanation proffered on behalf of the defendant of how it came about that Mrs. Nicholas ran into the back of the stationary vehicle and they would have to consider that explanation. As a first step they would have to consider whether to accept the evidence called by the defendant that the collision was caused by brake failure. If they did not, the facts would still speak for themselves of negligence on the part of the driver. If, however, they reached the point of concluding that Mrs. Nicholas did apply the brakes immediately before the collision but they then failed, they could still infer negligence from the circumstances themselves, because for one vehicle to run into the back of a stationary vehicle without some negligence on the part of the driver is sufficiently unlikely as to require some explanation beyond the mere fact of brake failure. If, however, they accepted the evidence of Mrs. Nicholas that there was such a failure and that she had no reason to foresee it, then, provided they did not find that she was travelling at too great a speed in the circumstances, there would be no basis for finding that she had been negligent.

It is to be observed that the direction which I consider ought to have been given is based upon a particular view of the law, viz. that when a case of res ipsa loquitur has been made by a plaintiff, a tribunal of fact can, at the conclusion of the whole case, find for the plaintiff unless it finds facts additional to the mere happening of the accident, and the accepted facts as a whole do not warrant an inference of negligence. This view of the law does, of course, involve the conclusion that there is some onus upon a defendant against whom a case of res ipsa loquitur is made. It is not an onus, however, which would be accurately expressed by saying that the onus of disproving negligence has passed from the plaintiff to the defendant. My understanding of the law is that a case against a defendant based upon res ipsa loquitur may succeed unless the defendant disposes of the prima facie case made against him by satisfying the tribunal of further facts and that then the facts as a whole do not afford a sound basis for inferring negligence on the part of the defendant. A case based upon facts which, without proving negligence on the part of the defendant in any particular, do afford a basis for a finding of negligence simply because the probable explanation of their occurrence is that there was some negligence on the part of the defendant, would not disappear with the acceptance of the defendant's evidence that the accident happened in a way which was consistent with his negligence. This is what I understand Lord Radcliffe to have meant in Esso Petroleum Co. Ltd. v. Southport Corporation [1] , when, at pp. 242-243, his Lordship said: - "Running a ship on to the training wall of a channel in the conditions of weather which prevailed at the time of the accident is at any rate not the same thing as running into a stationary vessel in the Mersey. But, assuming that the event was itself prima facie evidence of negligence and that the respondents had so framed their case, I do not doubt that the majority of the Court of Appeal were right in saying that the appellants would not have displaced that evidence by merely showing that their failure in navigation was due to a failure in the steering apparatus of the ship. They would have had to go further and show that they had not omitted any reasonable precaution to ensure that failures did not occur in their steering apparatus or in their control of the steering." Lord Porter expressed the law similarly in Barkway v. South Wales Transport Co. Ltd. [1] , when he said: - "The doctrine" (viz. res ipsa loquitur) "is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not." When in the same case in the Court of Appeal [2] , Asquith L.J., at p. 471, spoke of rebutting the presumption of negligence arising from the proof of facts from which it could be inferred that the negligence of the defendant was probable and pointed out that proof of a "neutral" event (that is, one consistent with negligence) would not displace the presumption of negligence, he was, I think, affirming the same view. I read the judgment of the Privy Council in Swan v. Salisbury Construction Co. Ltd. [1] as not expressing a different view of the law. When reference was made [1] to the burden upon the respondents there of showing that they had not been negligent, no more was intended, I think, than that unless the respondents did destroy the prima facie case made against them arising from proof of the falling of the crane, the appellant would have been entitled to succeed upon a case of res ipsa loquitur. I would, with respect, express my agreement with the judgment of MacKenna J. in Richley (Henderson) v. Faull (Richley, Third Party) [2] , where a claim against a third party failed because a prima facie case of negligence based upon a finding that a collision occurred on the defendant's wrong side of the road was not displaced simply by proof that the defendant's car skidded. His Lordship said: - "I, of course, agree that where the respondents' lorry strikes the plaintiff on the pavement or, as in the present case, moves on to the wrong side of the road into the plaintiff's path, there is a prima facie case of negligence, and that this case is not displaced merely by proof that the defendant's car skidded. It must be proved that the skid happened without the defendant's default. But I respectfully disagree with the statement that the skid by itself is neutral. I think that the unexplained and violent skid is in itself evidence of negligence" [3] .

1. [1956] A.C. 218. 2. [1950] 1 All E.R. 392, at pp. 394-395. 3. [1948] 2 All E.R. 460. 4. [1966] 1 W.L.R. 204. 5. [1966] 1 W.L.R., at p. 212. 6. [1965] 3 All E.R. 109; [1965] 1 W.L.R. 1454. 7. [1965] 3 All E.R., at p. 110; [1965] 1 W.L.R., at p. 1457.

Turning to authorities in this Court, I would first refer to what was said about the doctrine of res ipsa loquitur in Mummery v. Irvings Pty. Ltd. [4] , where a number of the English cases are discussed. The Court first of all agreed that the happening of some accidents does raise a presumption of negligence - that is, the happening affords prima facie evidence of negligence. Then, referring to Scott v. London and St. Katherine Docks Co. [5] , the Court accepted "as a classical statement in general terms of the circumstances which will call the doctrine of res ipsa loquitur into operation" the following passage from the judgment of the Court of Exchequer: - "There must be reasonable evidence of negligence. But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." With reference to this statement, the Court made the following observation: "Nor was it stated as a rule the operation of which is designed to shift the onus of proof to the defendant in the sense that, once invoked, the onus lies upon the defendant to prove the absence of negligence." Later, the Court, having examined some observations made in the House of Lords in Woods v. Duncan; Duncan v. Cammell Laird & Co. Ltd. [1] , and Barkway v. South Wales Transport Co. Ltd. [1] , concluded that the statements there made do not compel acceptance of the view that once a case of res ipsa loquitur has been made out, the onus shifts to the defendant to disprove negligence. This, of course, I fully accept. There is, however, nothing in the judgment of the Court to suggest that the explanation which the prima facie case of negligence arising from the accident itself calls for from the defendant is less than an explanation by reason of which the happening of the event in the ascertained circumstances no longer makes it more probable than not that the defendant was negligent.

1. (1956) 96 C.L.R. 99, at pp. 112-122. 2. (1865) 3 H. & C. 596, at p. 601 [159 E.R. 665, at p. 667]. 3. [1946] A.C. 401. 4. [1950] 1 All E.R. 392; [1950] A.C. 185.

Mummery v. Irvings Pty. Ltd. [2] was explained and distinguished in Anchor Products Ltd. v. Hedges [3] . There, in a case where a plaintiff A has given evidence of a happening causing him injury which more probably than not would not have occurred if the defendant B had taken care for A's safety, Owen J., with the concurrence of Taylor J., said [4] : "A has made out a prima facie case and an inference that B was negligent may properly be drawn unless some satisfactory explanation of the happening is given which rebuts that inference." Windeyer J. said [5] : "If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself." Here, simply to accept that the brakes upon the Holden failed upon application just before the collision does not, I think, fully reveal the cause of the collision.

1. (1956) 96 C.L.R. 99. 2. (1966) 115 C.L.R. 493. 3. (1966) 115 C.L.R., at p. 502. 4. (1966) 115 C.L.R., at p. 498.

The last authority to which I want to refer is Davis v. Bunn [6] , which I regard as of great importance here. There, Dixon J. said [7] : - "In the present case, unless and until the cause of the vehicle's change of direction was explained, I think mere proof that it suddenly swerved from one side of the road to the other and hit the plaintiff's stationary car would constitute sufficient evidence of negligence. It is true that such a thing is consistent with more than one cause not implying negligence. For example, the driver might have fainted, or the steering gear have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise a probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of its mechanical efficiency. In the absence of all explanation, the probability would be high enough to justify an inference in the plaintiff's favour. The legal burden of proof would not be thrown over to the defendant's side. No more than a presumption of fact would arise and its strength would be a matter for the jury to estimate, in whose province it would be to draw or refuse to draw the inference. But if facts appear which reasonably explain the accident in a manner involving no negligence for which the defendant is responsible, the foundation for the inference is excluded." His Honour then referred to what he regarded as the peculiarity of that case, namely, that the facts which did appear affording an explanation of the accident were susceptible of two interpretations. One explanation of this was that the rim and tyre of a vehicle came off. As to this, his Honour said that if this were to be accepted as the explanation, "the reason for the rim and tyre coming off still needs explaining. Such things do not commonly happen in the absence of some fault in adjustment. If the accepted facts were that the rim came off first, then, in my opinion, it would remain open to the jury to find negligence" [1] . The competing explanation was that the steering arm of the vehicle broke through an innate or a developing weakness and the turning of the wheel following this forced the rim and tyre off. As to this, his Honour said [1] : - "On the other hand, if the view that the steering arm broke first be accepted as the correct account of the accident, it appears to me that the plaintiff's case would necessarily fail. The broken arm was produced. No defect antecedently visible is disclosed by its present appearance. The circumstances do not, in my opinion, enable a jury to find that the accident was due to any want of reasonable care in inspection, examination, or otherwise, in consequence of which the condition of the arm was not discovered." From this it appears (1) that a case of res ipsa loquitur can arise and persist, notwithstanding that the occurrence may have occurred without negligence of the defendant, for it is sufficient that it probably did not; and (2) that if the defendant's explanation of such an occurrence, notwithstanding its acceptance, leaves something still requiring explanation, a case of res ipsa loquitur still stands.

1. (1936) 56 C.L.R. 246. 2. (1936) 56 C.L.R., at p. 260. 3. (1936) 56 C.L.R., at p. 261. 4. (1936) 56 C.L.R., at p. 261.

Having regard to the foregoing authorities, it can, I think, be said that in a case where a plaintiff gives evidence of the happening of an accident which in the ordinary course of events would not have happened without the negligence of the defendant, a finding of negligence is open and remains open where the defendant does no more than give an explanation of the accident which, although accepted, is consistent both with negligence and the absence of negligence on the part of the defendant.

It is now necessary to examine the direction given by the learned trial judge for the purpose of determining its sufficiency.

As I understand his direction, the learned trial judge did not really put the case to the jury as one of res ipsa loquitur, notwithstanding that he said: - "Under ordinary circumstances, I suppose if one runs into another vehicle from behind when that other vehicle is stationary the facts are suggestive of some negligence. The facts in such a situation might normally indicate that the driver of the vehicle which brought about a collision could not have been keeping a proper look out or must have been driving at a speed which was inappropriate in the circumstances, or maybe was driving too close to a vehicle in front of him so as to deprive himself of an opportunity to bring his own vehicle to a halt if it should become necessary to do so in order to avoid a collision. Ordinarily these are the sorts of inferences that might be drawn by a tribunal of fact from the occurrence where, as I say, one vehicle has run into a stationary vehicle from behind." His Honour told the jury that, to succeed, the plaintiff must have proved negligence on the part of Mrs. Nicholas and he told them that the case made was that she was negligent (1) in not keeping a proper look out, or (2) in driving too fast, or (3) in following the other vehicle too closely, or (4) in taking the vehicle upon the road knowing it to be in a defective condition. As to the first three of these matters, his Honour simply said that the jury had heard all the evidence in argument and that they must make up their minds on what they heard. As to the fourth, his Honour referred to the evidence that the foot-brake would not work after the accident and said that this was apparently due to a fracture of a pipe forming part of the brake line. He continued: - "You might drive a car on the road with defective brakes but you may not know that and if that is the situation I suppose you could scarcely be called negligent for using it, if the defect was unknown to you. As I understand the plaintiff's case on this aspect of the matter you are asked to infer that this defective condition was pre-existing and did not happen on that morning whilst Mrs. Nicholas was driving the vehicle. That, I think, is how the plaintiff puts her case on this aspect of the matter. You are asked to infer that. It was unregistered, the plaintiff says; it was in the yard and Mrs. Nicholas herself did not intend to use it on this particular morning initially; she only resorted to using it when another vehicle broke down and she turned to some other source of transport. She says, and you will have to evaluate her evidence, that she was quite unaware that there was anything wrong with the brakes." He concluded on this aspect of the case by saying: - "So I suppose on this aspect of the matter it all boils down to this: what do you think of the evidence of Mr. Nicholas; what do you think of the evidence of Mrs. Nicholas; are you prepared to accept it in the light of all the surrounding circumstances, or are you not?" When his Honour had finished his summing up, he was asked by counsel for the defendant to direct the jury that there was no evidence that Mrs. Nicholas drove negligently knowing the brakes to be defective. His Honour, after saying that he had been doubtful about this, said to the jury: - "I hesitated about that a little and I finally put it as being the plaintiff's case that you ought to infer that she knew. That involved, of course, a decision on my part that there was some evidence from which such inference could be drawn. I do not think I will alter what I said."

Having considered the evidence to which I have referred earlier, I have come to the conclusion that his Honour was wrong in directing the jury that there was evidence from which an inference that Mrs. Nicholas knew that the brakes of the vehicle were defective could be drawn. Furthermore, for the reasons I have already given, it cannot be said that the onus was upon the defendant to prove that Mrs. Nicholas did not know that the brakes were defective. If that were the case, the misdirection might be regarded as immaterial. There was, therefore, a substantial misdirection because the jury were given a wrong basis upon which to find in favour of the plaintiff. The jury could, however, have been told that unless they found both that the collision occurred because of a brake failure, and the brake failure was something which Mrs. Nicholas had no reason to foresee, they could, without being bound to do so, find for the plaintiff on the ground that the occurrence itself afforded an inference of negligence on the part of Mrs. Nicholas. That, however, would have been a different direction from that which was actually given.

For the foregoing reasons, I consider that the appeal from the Court of Appeal should be allowed.

Other members of the Court have set out in some detail the evidence relating to the accident in which the plaintiff claimed to have been injured and I need not repeat it. The case was one in which counsel for the plaintiff, I gather, opened his case to the jury on the basis that the fact that the car driven by Mrs. Nicholas ran into the back of the stationary car in which the plaintiff was a passenger was more consistent with negligence on the part of Mrs. Nicholas, either in driving too fast or too close behind the other car or in failing to keep a proper look out or a combination of these matters, than with the hypothesis that she had been driving with due care. This he was in my opinion entitled to do. In the course of the case, however, evidence emerged to the effect that, when Mrs. Nicholas was approaching the scene of the collision and applied the foot-brake in order to halt behind the stationary car, the brake failed to act and that this was caused by a fracture of the oil line due to metal fatigue. This defect, according to the evidence, may have been developing over a considerable period, in which case it should soon have become apparent to a careful driver, or it may have happened when the brake was applied to pull the car up immediately prior to the collision.

In his final address to the jury it seems plain that counsel for the plaintiff put to them, as being one of the matters upon which he relied, that Mrs. Nicholas had taken out the car on the morning of the accident and driven it with knowledge that its foot-brake was defective and that for this reason she had been guilty of negligence, and it is with this aspect of the case and with this only that the appeal is concerned. In dealing with this contention in his summing up the learned trial judge said:

Has it been established that she took this vehicle on the road, knowing that it was in a defective condition and so was likely to be a source of danger to other people using the highway - because, just as, when you are driving a vehicle, the exercise of reasonable care requires that you should keep a proper look out, should drive at a proper speed, so also the exercise of reasonable care in relation to motor vehicles, you might think, would require that a vehicle in a dangerous condition, to your knowledge, ought not to be taken on to the roadway and used.

Now what is the situation? We know how it happened. I will not say any more on the question of whether there was an excessive speed or a failure to keep a proper look out or whether she was travelling too closely behind the other vehicle; you have heard all the evidence and the arguments. We know that after the accident, at any rate, the vehicle was in a defective condition in that the foot-brake would not work at all and this was due, apparently, to a fracture of a pipe in part of the brake line. You might drive a car on the road with defective brakes but you may not know that and if that is the situation I suppose you could scarcely be called negligent for using it, if the defect was unknown to you. As I understand the plaintiff's case on this aspect of the matter you are asked to infer that this defective condition was pre-existing and did not happen on that morning whilst Mrs. Nicholas was driving the vehicle. That, I think, is how the plaintiff puts her case on this aspect of the matter. You are asked to infer that. It was unregistered, the plaintiff says; it was in the yard and Mrs. Nicholas herself did not intend to use it on this particular morning initially; she only resorted to using it when another vehicle broke down and she turned to some other source of transport. She says, and you will have to evaluate her evidence, that she was quite unaware that there was anything wrong with the brakes. She said she had driven along the Woodville Road and certain other streets on this particular morning; there was nothing to indicate that the brakes were defective. She said she had no knowledge of any prior difficulty about the brakes or defect in the brakes. She relies on her husband's evidence, if you care to accept that, that it had been taken to Terrigal over the period of the holidays that she and her husband took around about Christmas time. He says it was driven up there and there was nothing wrong with the brakes that he was aware of. It was driven not only to and from Terrigal but around about that district during the course of the holidays.

The jury were thus told that the fact that the car was unregistered and that Mrs. Nicholas had used it only when another car in which she had first set off had broken down would justify an inference that she had taken the car out knowing that its foot-brake was defective, that they should set against that evidence Mrs. Nicholas' denial that she had any such knowledge and that, having done so, they should consider whether or not to accept what she had said. But, with all respect to the learned trial judge, I am of opinion that the facts that the car was unregistered and that on the day in question it was Mrs. Nicholas' second choice of the cars available afforded no evidence from which it could reasonably be inferred that the brake was defective when she took the car out or that she then knew it to be defective or discovered it to be defective before reaching the place where the accident happened. For all that appears, the jury may have decided to reject Mrs. Nicholas' statement that she had no knowledge that the brake was defective until a fraction of time before the accident because of the direction that they could infer her prior knowledge from the facts which his Honour had said would justify such an inference and which were not in dispute, and I should add that when, at the end of the summing up and in the presence of the jury, counsel for the defendant asked his Honour to rule that there was no evidence that Mrs. Nicholas had any prior knowledge of the defective brake, the learned judge replied that, although he felt some doubt about the matter, he thought that there was evidence from which an inference of knowledge could be drawn. In this respect, therefore, his Honour's summing up seems to me to have been open to serious objection. On appeal, however, it was argued for the respondent that even if his Honour's direction that there was evidence of Mrs. Nicholas' knowledge before the accident happened that the brake was defective was wrong, a new trial should not be granted because, so it was said, if the jury - on this aspect of the case - took the view that the brake had failed to work and that this had caused or contributed to the happening of the accident, this in itself would justify an inference of negligence on the part of the driver. In such a case, it was submitted, res ipsa loquitur and unless the defendant proved that Mrs. Nicholas had no prior knowledge of any defect in the braking system, an inference that she had been negligent, based upon the fact that the brake had failed, might still be drawn. In that case, so the argument ran, the passage I have quoted from the summing up was too favourable to the defendant since it had placed upon the plaintiff the onus of proving that Mrs. Nicholas had driven the car with knowledge that its brake was defective. I do not agree with this line of reasoning. To begin with, I am of opinion that if the braking system of a car suddenly fails because of a fracture of the oil line due to metal fatigue that happening does not, in itself, afford any evidence that the driver of the car was negligent. Such an occurrence cannot, in my opinion, be said to be more consistent with negligence on his part than with the hypothesis that he was not negligent.

In the second place, it seems plain to me that on this aspect of the case the plaintiff was not, at the close of the evidence, seeking to say that the fact that the brake was defective itself spoke of negligence. What he was urging was that the jury should find affirmatively that Mrs. Nicholas had driven the car knowing that its brake was defective and in support of this argument relying upon the fact that the car was unregistered and that Mrs. Nicholas had at first sought to use another car and not the one she was driving at the time of the collision. It was in this way that his Honour left this particular issue to the jury and, with all respect, I think he fell into error in doing so.

In these circumstances I am of opinion that there should be a new trial. A jury would not be bound to accept the view that the accident was caused by the failure of the brake and if they did not do so, the case would have been one of an unexplained happening which they might think would not ordinarily have occurred unless there had been some failure by Mrs. Nicholas to take reasonable care when approaching the scene of the collision. If, however, they reached the conclusion that the accident was caused by the brake failure there would, in my opinion, be no evidence upon which a finding of negligence could properly be based.