Nominal Defendant v Haslbauer

Nominal Defendant v Haslbauer - [1967] HCA 14 - HCA 1967 case summary — Zoe

[19]

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.

[28]

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.

[35]

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?"

[39]

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.

[42]

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.

[53]

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.

[61]

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.

[65]

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] .

[67]

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.

[71]

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.

[75]

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."

[81]

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.

[82]

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.

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Judgment (84 paragraphs)

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