Piening v Wanless

Piening v Wanless - [1968] HCA 7 - HCA 1968 case summary — Zoe

[17]

Their Honours who formed the majority thought that the question before them on the motion for a new trial was whether "a substantial wrong or miscarriage" had been occasioned. In relation to this question, Jacobs J., who formed one of the majority, said: "Will justice be done in this case, which is still current, if it is allowed to go off on a wrong basis as a result of no neglect or wrong choice of courses by the plaintiff's legal advisers but as a result of decisions of this" - the Supreme Court - "which bound the trial judge and dissuaded those legal advisers from taking the point, especially as one of those decisions has now been held to have been wrong?" [3] . His Honour also said: "The rule that points must be taken in the court below and grounds stated in the notice of appeal cannot be allowed to operate so inflexibly that instead of securing a just balance between the parties it would in the particular circumstances of this case result in injustice. A court cannot correct its errors once litigation is at an end so far as those particular litigants are concerned, but it can always correct its errors while the litigation is still on foot" [1] . The Supreme Court concluded that the evidence led at the trial of the action would have supported a case of negligence in the management of the car founded solely upon the circumstances of the accident itself. The view of the majority in this respect is perhaps best summed up in the following paragraph from the leading judgment of the majority: "The real question then is whether an unexplained failure in the steering of a car raises a case of res ipsa loquitur. In my view the doctrine is applicable. It may well be that in the case of a new car it is a sufficient explanation to say that it is new, and therefore the fault must be laid with the manufacturers. There is no such explanation when the car is old, particularly such an old car as that in the present case. I think that it could be regarded by a jury as being in the bounds of known experience that the failure of the steering of a car is more consistent with some hypothesis of negligence on the part of the defendant than with any other hypothesis. I think it is open to a jury to conclude that the steering, even in an old car, does not suddenly fail if it has been properly maintained and inspected and tested. The whole management and control and maintenance of the vehicle was under the control of the defendant and a jury would be entitled to say that he should give an explanation. It is not easy to elaborate further upon this. One calls on one's experience, one's knowledge of the modern world. Must it be said that steering is likely to fail just as much as the result of some unavoidable breakdown as through failure to maintain and lubricate that mechanism? We do not have to decide that it is just as likely. We only have to decide that it would be open to the jury so to determine. In my opinion it would be so open to a jury. It is easy to say that the steering suddenly failed. What must be considered are the events leading up to that failure" [2] . In the result, their Honours held that they had no "alternative but to allow this further point to be taken on the appeal, to uphold it, set aside the verdict, and order a new trial."

[23]

I have called attention elsewhere to the inappropriateness of referring to the undoubted fact that at times the circumstances of an occurrence are themselves sufficient to furnish evidence of negligence as a doctrine or principle. The respondent's "case" was negligence in the driving of the car, though it might be sought to be made out by the eloquence of the circumstances of the occurrence, without pinpointing the precise act or acts of negligence, and as well by evidence tending to establish such act or acts: see Nominal Defendant v. Haslbauer [2] . The respondent's pleadings were wide enough to permit the attempt at proof of negligence by both categories of evidentiary facts though, of the respondent's choice, the amended particulars did not. I emphasize "of the respondent's choice" because in truth nothing in the then current decisions of the Supreme Court "compelled" the respondent's counsel to make the choice. It is true that the then expressed opinion of the Supreme Court was that he must choose and could not endeavour to establish a case of negligence against the appellant by relying on the evidence which the occurrence itself provided, whilst at the same time relying on evidence of specific acts or omissions by the appellant. But the respondent was not obliged to accept that decision. He was entitled to press his claims to be lawfully entitled to endeavour to establish his case on the footing that the current decision of the Supreme Court was erroneous. It is true that the trial judge would have been bound to reject his submission: but the propriety in law as distinct from the propriety in point of precedent of that course on the part of the trial judge could then have been challenged. As the decisions of this Court have shown, it could have been successfully challenged. With great respect, I entirely disagree with the assertion of the majority of the Supreme Court that [3] : "It would have been quite improper for counsel to have canvassed the correctness of these decisions by raising matters during the course of the evidence which could have confused the jury and, to repeat what I said earlier, caused the trial to descend into chaos." On that basis, the correctness of many decisions of the Supreme Court may be placed beyond challenge. Of course, a litigant faced with a decision of a court which is not a final court of appeal which lies across the path he wants to follow, must make up his mind whether he desires to accept the burden and possible expense of challenging that decision. He may lack the courage or the means to do so, or both, or he may see advantage in accepting the current view. But the remedy for the erroneous decision is by way of such a challenge and not, as the majority of the Supreme Court seems to have thought, in the prolongation of litigation by affording a litigant a second opportunity after the error has been put right in other proceedings by other litigants. In this case, the choice of the respondent's counsel not to press the evidence of the occurrence in support of the respondent's case of negligence was, in my opinion, in every relevant sense voluntary, and ought to be attended with the same consequences of responsibility as other voluntary decisions in the conduct of litigation.

[27]

But the majority of the Supreme Court have said that the failure of the steering was the occurrence which bespoke negligence. To this there are, in my opinion, two answers. In the first place, the occurrence which had to be examined to ascertain whether it furnished evidence of negligence on the part of the driver was the accident, that is to say, the running off the road. The failure of the steering was, I think, the explanation of that occurrence, an explanation which had no need to be submitted to the jury for acceptance or rejection because it was unquestionably common ground between the parties at the trial that it was, in fact, the explanation of the loss of control, and the consequential running off the road. Indeed, I should observe in passing, that the issue of fact presented by the respondent to the jury depended on and began with the assumption that the vehicle was out of control due to steering failure. That issue was whether or not, realizing he could not control the car by steering it, the appellant had failed to counteract the effect of that loss of control by braking the car, either because, to his own knowledge, he had not provided himself with adequate braking capacity or, having that capacity, he had failed to use it. When the majority of the Supreme Court say that the failure of the steering mechanism bespeaks negligence on the part of the driver, it seems to me that their Honours are in reality although not formally asserting that it rests upon the appellant to show that he was not negligent. The explanation of the occurrence is not accepted by them as neutralizing the evidentiary value the occurrence, if unexplained, would have, but is treated as itself evidence of negligence and thus the source of an obligation on the appellant to negative his negligence: on this view, the Supreme Court were really deciding that only an explanation of the occurrence which negatived negligence in the driver would prevent the occurrence itself constituting evidence of negligence. Such a view runs counter to the decisions of this Court: see Mummery v. Irvings Pty. Ltd. [1] ; Anchor Products Ltd. v. Hedges [2] ; Nominal Defendant v. Haslbauer [3] .

[48]

If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent. But here much more was known than that the vehicle ran off the road. The occurrence was not unexplained. That the steering mechanism had suddenly failed was not in dispute. Both sides accepted it as the fact. Therefore the only way in which any place could be found for res ipsa loquitur would be if negligence on the part of the driver could be inferred from the unexpected failure of the steering mechanism. What went wrong, what part became loose or broken was not said. No attention was given to this at the trial. No one suggested then that the defendant was in any way responsible for the failure of the steering. But afterwards it was argued, and the argument found favour with the majority of the Supreme Court, that this was something for which the defendant could have been held responsible; and that, as this was not put to the jury, there should now be a new trial. It seems that, when the trial took place, the decision of the Supreme Court in Priest v. Arcos Enterprises Pty. Ltd. [1] was generally accepted in New South Wales as defining the scope of the doctrine of res ipsa loquitur in a way later shewn to have been mistaken. The misapprehension prevailed, it is said, until the decision of this Court in Anchor Products Ltd. v. Hedges [2] . The trial, it is said, had thus proceeded under a cloud and, the darkness having been now dispelled, there should be a new trial in the light. The proposition is quite remarkable if it means that the verdict of a jury on an issue of fact, submitted to them without objection by either side, is to be set aside because one party might have put his case differently from the way he chose to do. It is no less remarkable if it means a new trial can be had on a suggestion that the senior and experienced counsel who appeared for the plaintiff at the trial had refrained from asking the judge to put a matter to the jury because he thought he would decline to do so. It may be that the Supreme Court in banc could, and in some circumstances should, in the proper exercise of its discretion to control trials at nisi prius, order a new trial when a trial had been conducted in accordance with a ruling that Court had given which was later reversed on appeal. But there is much more to this case than that; and I think we need not make any general statement; for, with all respect to the Supreme Court, I cannot accept the initial proposition that, if the steering mechanism of a car - an old car, if you like - suddenly fails, that, without more, is evidence that the driver was negligent.

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Judgment (54 paragraphs)

Parties

Cited By (9)