Wheare v Clarke [1937] HCA 7;

Wheare v Clarke [1937] HCA 7; - HCA 1937 case summary — Zoe

[12]

The negligence of the defendant is not now contested. He turned on a wrong course so as to cut the corner, and he did not look ahead, as he should have done before he turned. In my opinion the negligence of the plaintiff is also clear. He saw the warning hand twenty yards before the turn commenced. He saw the actual turn of the defendant and saw that he was taking a wrong course which plainly created a situation of possible damage. The plaintiff however, went straight ahead, without changing his course or using his brakes, and took the chance of getting past in front of the defendant. He did this when he could have pulled up completely, thus avoiding any collision. He acted, as he said in evidence, "on the belief that I thought I had the right of way." In these circumstances there was, in my opinion, evidence to support the finding of contributory negligence. It is true that, as a general rule, a man is entitled to assume that others will act in a non-negligent manner (Toronto Railway v. King[1]). But, in any case where negligence is the issue, the real question is whether, in all the circumstances, the person charged with negligence exercised the degree of care which those circumstances required. In this case the plaintiff actually saw that the defendant was acting negligently. He saw that he was in fact cutting the corner and it was therefore impossible to assume, and quite wrong to act upon an assumption, that he would turn properly and not cut the corner. The plaintiff went straight ahead just as if the defendant was turning properly - in which event he would have been able to pass in front of him. The attempt to pass in front of him - an attempt voluntarily made by the plaintiff and not forced upon him by the defendant - was, in these circumstances, a negligent act, which amounted to contributory negligence. The plaintiff, being able to avoid the collision, took the risk of keeping on his course, and thereby brought about the collision. Thus the decision of the magistrate that the negligence of the plaintiff was the real cause of the collision is, in my opinion, justified upon consideration of the facts hitherto mentioned.

[15]

The problem may be illustrated by taking an extreme case. Let it be supposed that the defendant was driving with his eyes shut, though the plaintiff did not know that this was so. Let it be further supposed that the defendant kept his eyes shut up to the very moment of the collision. What is the position in such a case? There is negligence of the defendant up to the moment of the accident. But further facts may show that the plaintiff, notwithstanding the continuing negligence of the defendant could, having his own eyes open, have avoided the collision by taking due care. In such a case the plaintiff cannot succeed in his action. In my opinion, the magistrate has found facts which bring this case within this category. He has found that the plaintiff, after seeing a car crossing the road in an obviously negligent manner likely to bring the vehicles "into a dangerous position with regard to one another," deliberately kept his course, not using his brakes, ignoring the possible and perceived danger, though, after he perceived it, he could have avoided it. It may be assumed as true that, if the defendant had used his eyes properly, the vehicles would never have got into their dangerous position in relation to each other. But this does not show that the defendant was responsible for the accident in the sense which is relevant in cases founded upon negligence. It shows only that the defendant's negligence was a causa sine qua non (M'Lean v. Bell[4]). In finding that the plaintiff's negligence was the real cause of the accident, the magistrate excluded the proposition that the cause of the accident was the defendant's continued failure to keep a proper look out. This finding really means that, in spite of the defendant's failing to keep a proper look out up to the moment when eventually he did see the defendant, the plaintiff brought his misfortune upon himself. The defendant's negligence being clear, the crucial element in the case appears to me to be the finding by the magistrate that, after the fullest allowance has been made for all the negligence of the defendant, the plaintiff could, without any difficulty, have prevented any accident by stopping his motor cycle.

[16]

In every branch of the law it is important to avoid the error of taking the facts of one case, independently of principle, as a ground for the decision of another case. Caution is particularly necessary where questions of negligence arise - where each case must be decided on its own facts. But the principles of the law of negligence have been worked out, and necessarily so, with reference to the facts of particular cases, and sometimes great assistance can be obtained by considering the application of such principles to the facts of cases which are similar in the relevant particulars. Thus it appears to me that Loach's Case[5] is particularly valuable in relation to the present case. I preface my reference to that case by the observation that, if A and B both suffer injury as the result of an event in which both are concerned, and each alleges that the negligence of the other caused the accident, the decision as to the responsibility for injury should be the same whether A or B is the claimant seeking a remedy in legal proceedings. In Loach's Case[6] the claim was made on behalf of the man who did not look out. In the present case the claim is made against the man who did not look out. But the questions which arise in this case would have been the same if the defendant had sued the present plaintiff for damages in respect of the injury done to his motor car. The questions would have arisen in a different sequence, but the problem of determining the responsibility for the injury would have been the same question as arises in the present case. In Loach's Case[7] a man named Sands, keeping no look out until it was too late to avoid an accident, was run over and killed by a railway car. "There was no further negligence on the part of Sands after he looked and saw the car, and then there was nothing that he could do. There he was, in a position of extreme peril and by his own fault, but after that he was guilty of no fresh fault"[8]. This sentence accurately describes the position of the defendant in this case. The judgment further states: "It was the motorman's duty, on seeing the peril of Sands, to make a reasonable use of his brakes in order to avoid injuring him, although it was by his own negligence that Sands was in danger"[9]. This sentence accurately describes the plaintiff's duty in this case. The plaintiff saw the defendant in a position of danger created by the defendant himself. The plaintiff could have avoided a collision by applying his brakes, but he did not do so. In Loach's Case[10] the brakes were applied but were defective. The defect in the brakes was held to be due to negligence on the part of the railway company. It was held that this negligence was the sole cause of the accident, despite the negligence of the deceased Sands in not looking out until it was too late for him to do anything to avoid the accident. Thus the personal representative of Sands recovered damages in an action under an Act similar to Lord Campbell's Act.

[21]

This action arose out of a collision between a motor cycle and a motor car. The plaintiff - the respondent here - was riding his motor cycle along Payneham Road, near Adelaide, on his proper side, in an easterly direction, and the defendant - the appellant here - was driving his motor car along the same road, also on his proper side, in a westerly direction. The defendant turned across Payneham Road in a northerly direction to enter a street called Winchester Street, which was at a right angle to Payneham Road. His course took him across the plaintiff's track, but he kept no proper look out and he did not see the plaintiff until the rear wheels of his car were upon the northern tram lines - that is, the lines nearest Winchester Street. Further, he went across Payneham Road, so as to cut the corner of Payneham Road and Winchester Street, on his wrong side. The plaintiff, on the other hand, saw the defendant turning across Payneham Road to Winchester Street. But he kept on his way, without changing direction and without attempting to stop his motor cycle or to slacken its speed. The speed of the plaintiff was some twenty miles per hour, and that of the defendant, as he approached Winchester Street, some ten to fifteen miles per hour. The special magistrate who tried the action concluded, as I gather from his judgment, that the motor cycle and the motor car were crossing each other's tracks so as to involve risk of collision. It is difficult to disturb that conclusion: both the plaintiff and the defendant were in fault. But he found that the negligence of the plaintiff was the "real cause of the damage," because he had ample opportunity of pulling up his cycle short of the point where the impact occurred, or short of the motor car had it continued on in the direction it was taking into Winchester Street. Reed A.J. in the Supreme Court ordered a new trial. "I think," he said, "that the special magistrate, after finding the appellant" - the plaintiff - "guilty of negligence, came to the conclusion that that was the end of the matter, and did not consider the further question whether the respondent" - the defendant - "could by reasonable care, after the negligence of the appellant" - the plaintiff - "have avoided that negligence."

[24]

The manner in which the accident occurred is fixed by the findings made in the local court. But upon those findings I do not think that the course which the plaintiff took should be considered to amount to contributory negligence on his part. The conclusion of the local court that not only did his conduct amount to contributory negligence but it constituted the "real cause" of the accident, I cannot follow. The expression "real cause" appears to imply that the admitted negligence of the defendant was not concurrent with the conduct regarded as negligence in the plaintiff. I do not understand how the plaintiff had a later opportunity than the defendant of avoiding a collision. The plaintiff was riding his motor cycle at a moderate speed along a main road. He was on his correct side and near the kerb. As he approached a side street on his left running into the main road at right angles, he saw the defendant's motor car going in the opposite direction. It too was travelling at a moderate speed, and on its correct side. A double tramway line ran down the centre of the main road and the car, which was driven by the defendant, was travelling with its off wheels on the tram rails on the car's left hand side of the road. The defendant held out his hand to indicate that he was about to make a right hand turn into the side street. The side street was a chain wide and had a road surface from kerb to kerb forty-two feet in width. Thirty-five yards has been fixed as the distance of the car from the centre line of this street at the moment when the defendant held out his hand to signal that he was about to turn into it. The plaintiff saw his hand out when the defendant still had some distance to travel before reaching the point round which he ought to have turned. The plaintiff not unnaturally maintained his course and speed. A second or two later when the plaintiff was about level with the fence alignment of the side street, that is, about thirty-three feet from its centre line, he saw the defendant change his direction and cross over the middle of the main road on to the other tram rails. The defendant's car was then about fifty feet from the centre line of the side street. The plaintiff continued his course down the main road across the mouth of the side street. He says that he had sounded his horn, and there is no finding that he did not. In going on, he acted on the assumption that the right of way was his and that there was ample time to cross before the defendant completed his turn. But, although the plaintiff did not know it, the defendant had not seen him. The road was clear and open. There was little traffic and none to obstruct the defendant's view. The hour was ten in the morning, and, though it had been drizzling, no rain was falling at the moment. The defendant was a man of seventy years of age who did not drive a car often. His failure to see the plaintiff was due perhaps to fluster more than inattention. But there was nothing to excuse it and there was no reason why the plaintiff should suppose that in broad daylight the evident fact that he was crossing the mouth of the side road should be unseen by the defendant who was about to turn into it. If the plaintiff had pulled up when he saw the defendant change his direction to make the turn his bicycle would have come to a standstill across the mouth of the side street. Exactly where he would have brought up his bicycle depends on estimation and is a matter of some uncertainty. The finding of the local court is to the effect that it would have stopped at least before it reached within eight or nine feet of the opposite kerb line of the side road. Perhaps it might have pulled up sooner, notwithstanding the wet surface. It follows that, if the defendant's car had taken any course which would have brought it into the side street, not on its wrong side of that street, but on its left hand or proper side, then by attempting to pull up his motor cycle, the plaintiff would have placed himself somewhere across the defendant's path. This would have been so whether the defendant came into the street diagonally or described a curve which, although not amounting to a proper turn, was not so flagrant a violation of the rules of the road, provided, of course, that he directed his car towards his left hand side of the mouth of the street he was entering. As it was, by keeping straight on as he did, the plaintiff would probably have passed safely in front of the defendant's car, if it had not been for a further mistake made by the defendant. In crossing over from the tram track on his proper side to that on the other side, the defendant was in fact beginning his intended turn. By continuing his turn, he had reached approximately a position where his front wheels had left the tram rails, when his daughter, who was sitting next to him, cried out a warning to him. Suddenly seeing the plaintiff, the defendant made the mistake of turning to the right instead of to the left. The result was an impact between his right hand mudguard and the plaintiff's motor cycle. The front wheels of the car were within three feet of the footpath of the main road. The car faced down the footpath of the side street, the kerb line of which was two feet further on than the left hand side of the car. This meant that, owing to the defendant's turn to his right, his car did not get as far as the corner of the two roadways, that the plaintiff did succeed in crossing the mouth of the side street in front of the defendant, and that the defendant struck him after he had done so, and even then with the right hand or further mudguard of the car. The finding is that, if the defendant had not turned to the right, his course would have taken him into the side street within three or four feet of its kerb line, that is, on the wrong side. It seems probable that in that event the plaintiff would have passed safely in front of him. Thus the defendant was cutting into a side street on its wrong side from a point on the crown of the main road thirty feet before the alignment of the kerb which formed the nearest side of the mouth of the street. And he was doing so without seeing the oncoming traffic. Even so, he would not have collided with the motor cycle but for his further mistake in turning to the right. It is quite certain that if he had turned to the left and opened a way to the plaintiff, no accident would have occurred. If he had not changed his course at all, the plaintiff would have just cleared him, that is, supposing that the other conditions were the same. The local court found that the defendant, when he did see the plaintiff, did not act negligently in turning to his right, and that he did not have an opportunity at this stage of avoiding the collision. On the other facts found, I think it is certain that a turn to the left, instead of to the right, would have avoided the collision and in that sense the defendant did have such an opportunity. But, of course, if what the defendant then did is judged independently of his previous conduct and if, on the assumption that for the emergency in which he found himself he was in no way to blame, the question is asked, was it negligent on his part to do the wrong thing at that moment, the answer may be that such a failure to rise to an occasion is not negligence. But allowing this, what I cannot see is why the plaintiff should be blamed for the accident.

[27]

A misapprehension or misapplication of the standard of negligence appears to me to be contained in the second statement of the special magistrate, namely, that in the plaintiff's determination to take the right of way he did not pay that heed to the defendant's vehicle that he should have done. It imposes on the plaintiff the responsibility for the accident because he did not instantly perceive that the first movement of the defendant's car to its right meant that the defendant was about to commit the grossest violation of the rules which should have governed his movements. It does not suggest that he did perceive that the defendant threatened to cut directly across to the nearest corner of the street he intended to enter. It does not suggest that the plaintiff perceived that the defendant was unaware of his presence and intention to proceed. But it says, in effect, that because his faith was strong in the view that it was for him to go on, a view that was perfectly correct, he paid insufficient attention to the actual movements of the defendant's car and thus missed the early indications of the defendant's improper conduct. The decision of the plaintiff between the course of going on or pulling up had to be taken instantaneously. Once he began to cross the mouth of the side street, to go on was his only course. Indeed, for my part, I think it would be more reasonable to blame him for not increasing his speed rather than for failing to put on his brakes. But it appears to me that, under the view of the special magistrate, the defendant is, in effect, saying to the plaintiff: - "I was about to take a course highly dangerous, contrary to the practice of the road and wholly indefensible. I had begun to do it, at a time when, if you had divined my intention you could have avoided the accident. The movements of my car afforded indications of what I was about to do sufficient to enable you, if you had been more alive to their significance, to foresee what I might do. But you did not, because you relied too strongly upon the improbability of my not allowing you to pass, as the rules of the road required that I should." I do not agree that the facts would justify even this contention on the part of the defendant. But, however that may be, it goes without saying that the defendant cannot in such a manner transfer to the plaintiff the responsibility for avoiding the danger he was in course of creating.

[30]

This passage does not mean that, because the plaintiff considered the rules of the road were on his side, he proceeded to exercise his rights under them notwithstanding that he saw it had become dangerous to do so as a result of the defendant's disregard of his duty. It means the very contrary. It means that, as the situation presented itself to the plaintiff, he thought that his proper course and the course to avoid danger was to go on and that he did not anticipate, and considered that he had no reason to anticipate, that the defendant would be blind to his presence, and moreover, would cut into the side street in so reckless a manner. The plaintiff's evidence was that he had travelled beyond the fence alignment of the side street before he saw the defendant begin to cross from the other side of the tram rails. The special magistrate's finding of contributory negligence was, no doubt, also influenced by an answer made by the plaintiff to the effect that if he had been further back when he saw the commencement of the defendant's turn, he did not suppose he would have tried to pass in front. He said: "I had not thought of that aspect of it." This hypothetical reasoning on the part of the witness seems clearly to mean or imply that if he had seen, first, that he had room to pull up and allow the defendant to pass in front, and, secondly, that the defendant was about to pursue a course which would take him in front of the plaintiff, he (the plaintiff) would not have gone on. It also implies that neither of these conditions existed. In my opinion the findings involve the conclusion that the plaintiff was right in his view that neither of these conditions existed. As the picture must, on those findings, have presented itself to him, he had not room to pull up except in the path which at worst the defendant appeared so far to be about to take, namely, that diagonally over to the defendant's left-hand side of the street he was entering. It is unreasonable, in my opinion, to hold the plaintiff at fault because he did not earlier foresee that the defendant was about to take the exact course which, in the event, he pursued and because the plaintiff then did not endeavour to escape the consequences by himself taking measures which might have proved another source of disaster if the defendant's course had deviated a very small extent in the direction of propriety. But, even if I were able to regard the plaintiff's conduct as negligent, I should think the facts were altogether opposed to the view expressed by the special magistrate that the plaintiff's conduct was the "real cause" of the accident, a view which means that he would be liable to the defendant for any damage he suffered. The expression of this view by the special magistrate would, I think, justify an order for a new trial. But, in any case, I think a finding of contributory negligence ought not to be allowed to stand.

[71]

Whatever analysis of Pollock's illustration is attempted, it is established that, despite the fact that a person did not in fact possess the last clear chance of avoiding injury or damage, he can be adjudged liable for the whole of such injury or damage. Whether the law is to be regarded as an application of the doctrine of the "last clear chance" or as an exception upon it, as seems more logical, is immaterial. A valuable principle may be that the duty to take reasonable care in the operation of motor vehicles includes the ever-continuing duty of guarding against, and being prepared to guard against, the consequences of the negligence of other persons. It is impossible to state in advance the circumstances in which a person who has negligently incapacitated himself from taking care to avoid the consequences of the carelessness of others, will be deemed solely responsible for damages or injury. He may so incapacitate himself by negligently using a defective vehicle as in Loach's Case[35]; by falling asleep at the wheel, as in the example cited by Pollock; or by failing to keep any look out whatever, as appears from the facts found by the Local Court in the present case. In all such cases it will seldom be possible for such a person to prove that the plaintiff, being reasonably unaware that the defendant had a defective vehicle, or was asleep at the wheel, or had carelessly failed to keep any look out, and having acted upon the assumption that the defendant was not negligent in such a way, has acted unreasonably or negligently by proceeding upon the assumption that the defendant has not been guilty of any such negligence. Even if such a plaintiff is deemed guilty of some negligence, it will often be only "evidential or matter of narrative," and, on the authority of Loach's Case[36], it will be possible to impute to the defendant full legal responsibility for the damage or injury which he could reasonably have averted had he not unreasonably deprived himself of all opportunity of averting it.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Wheare v Clarke [1937] HCA 7; (1937) 56 CLR 715 (1 March 1937)

Parties

Legislation Cited (1)

Cases Cited (1)