Williams v Smith

The Full Court by a majority decided that on his own case the plaintiff ought to have been found guilty of contributory negligence and that the defendant was entitled to such a finding as a matter of law. We are not prepared to concur in that view.

In New South Wales the jurisdiction to enter a verdict contrary to that of a jury is not exactly the same as it is in the States where the Judicature Act prevails. As long ago as 1931 I stated what I conceived to be the position in this State, in a passage I shall read from Shepherd v. Felt and Textiles of Australia Ltd. [1] : "Without statutory authority the Court could not enter a verdict in lieu of that set aside, unless empowered to do so by a reservation made at the trial with the consent of the parties actual or implied. The statutory power of the Supreme Court of New South Wales to enter a verdict is much less extensive than that conferred upon the Court of Appeal in England by Order LVIII, r. 4, and is confined by the terms of s. 7 of the Supreme Court Procedure Act 1900 to cases in which upon the evidence the party is, as a matter of law, entitled to a verdict. Such a case arises when a party upon whom the burden lies of proving an issue fails to adduce evidence sufficient to discharge the onus. For the insufficiency of evidence to support an issue is a matter of law, upon which the Court must direct the jury. But it is not always a question of law whether evidence adduced in support of an issue is not only sufficient to discharge the burden of proof but so conclusively establishes the issue that a finding to the contrary should be set aside. Indeed, more often than not, it is a question whether, having regard to the great probative force of the evidence, the Court in Banco, in the exercise of its control, ought to set aside the verdict as perverse. But sometimes the facts from which a legal conclusion arises in favour of the party who has the onus of proof appear in a manner which entitles or requires the Court to notice and act upon them. This may be because facts are admitted or undisputed, or because the question turns upon the interpretation or effect of documents" [2] In the well-known case of Packham v. Commissioner for Railways [3] the late Chief Justice Sir Frederick Jordan dealt with the effect of that doctrine which the foregoing passage attempts to state as it applies in cases where there is a defence of contributory negligence. His Honour used language perhaps admitting of a less exact application than the law may require and it may be that it has been in some cases interpreted in too wide a sense.

1. (1931) 45 C.L.R. 359. 2. (1931) 45 C.L.R., at pp. 379, 380. 3. (1941) 41 S.R. (N.S.W.) 146; 58 W.N. 143.

The majority of the Full Court in the present case relied upon the views which are there expressed in deciding the present case and it is necessary for me to state very shortly the facts which arise to say why we are not able to concur with the conclusion of the majority.

The day of the accident was Sunday and the young man was riding his motor-cycle, as I have already said, in an easterly direction. At that point the road runs a little downhill but is fairly straight. As he was proceeding he would come to a curve to the right and it was from that curve that the defendant's car came. The car however speedily reached a straight piece of road. Unfortunately, however, there was a heavy fog; it was six o'clock in the evening, or thereabouts, upon a summer day, and notwithstanding the fact that it was full daylight visibility was very low. One of the questions in the case is how low, and upon that the plaintiff and the defendant differed very widely. The plaintiff's view was that visibility was very bad; the plaintiff's view was that the defendant actually had his lights on. The defendant's view was that visibility was much better and that he did not have his lights on.

The plaintiff's account of the accident began with the statement that he was riding on his correct side of the road about three feet from the yellow line. The defendant's account was that he was on his correct side of the road and that the plaintiff was on his incorrect side of the road. It will therefore be seen the two views of the case were almost opposite; at all events they were completely diverse.

The majority of the Full Court took the view that the plaintiff's case must have been accepted in full by the jury and it was on the plaintiff's case that the plea of contributory negligence became vital, or perhaps I should say, fatal.

The case was, of course, fully gone into on both sides. We are not dealing with a case where the verdict was taken on the plaintiff's case only, the defendant not going into evidence, so that the question is what is the effect of the plaintiff's own case considered independently of evidence for the defendant.

The view adopted in the Full Court by the majority of the judges can be put very simply. It is that the plaintiff, riding a motor-cycle fairly close to the centre of the road, although completely on his correct side, was going through a fog in which, according to his own account, he could see a very short distance ahead, at too great a speed and therefore was conclusively guilty of contributory negligence. His speed was given by him at twenty or twenty-five miles per hour. That is to say he stated it in different points of his evidence at twenty miles per hour and at twenty-five miles per hour. The speed which the defendant said he was keeping was only eighteen miles an hour.

The accident occurred opposite a quarry by the roadside. According to the plaintiff, as he came down opposite the quarry, at the speed he stated, keeping sufficiently on his side of the yellow line, he suddenly saw the defendant's car, a panel-van containing a number of people, come along the road, over the broken yellow line, by which I mean that on its right-hand side it was two, or possibly three, feet on the wrong side of the yellow line. The plaintiff was unable to avoid it, and the left-hand side of his motor cycle hit the body - that is to say the van part - of the vehicle. He was drawn, so to speak, somewhat under the van, which would mean, if he were right, that perhaps the wheels of his motor-cycle came nearer to the yellow line than the exact point upon which they had been travelling before the impact. His left-hand pedal came down and made a score mark which was afterwards discovered to be within two feet of the yellow line, going out to three feet, and travelling along more or less parallel to the yellow line.

The view of the Full Court was that those facts conclusively established that he was guilty of contributory negligence leading to the accident.

We think that that view cannot be sustained. We are of opinion that the jury were at liberty to take the view that the plaintiff's conduct did not amount to contributory negligence, and they so found. The issue was put to them, and their verdict necessarily involved an opinion on their part that he was not guilty of contributory negligence.

To show that they were not merely wrong but that the contrary view must conclusively have been taken, it would be necessary to have an incontrovertible state of facts whether by admission or otherwise which, on themselves, were as a matter of law equivalent to contributory negligence, and facts which also connected themselves with the accident so that they were the cause, or an effective cause, of the accident.

In the present case, the jury could take the view that in the circumstances the plaintiff was on his correct side, that his speed was not excessive for a motor-cycle, and that he was travelling in circumstances where, although his view was limited, it nevertheless would be sufficient to avoid any emergencies for which he ought to maintain a vigilance and for the avoidance of which he should be considered responsible. The jury further could take the view, by looking at the whole case, that perhaps his statement of the degree of visibility was an underestimate, that he was merely giving his notion of figures to represent a short distance and that he had really a better opportunity of seeing an object in front of him than, perhaps, the very small distance he named would allow.

It was indeed a case in which the very divergent views of the parties might be compared by the jury and they might work out for themselves a view of the case which did not exactly represent what either party said. That is a possibility in such cases as this which every court of appeal must contemplate, and although there is no reason to suppose that is what they did in this case, it should not be excluded from the general view of the court.

At all events, this is not a case where one could say, in obedience to the rule of law which I have attempted to describe, that there were facts of which there could be no doubt, against which the jury could not in any way find, and which, as a matter of law, amounted to contributory negligence and, as a matter of law, constituted a cause of the accident.

There is still another ground that the Full Court did not act upon on which a new trial is sought. Evidence was admitted that almost opposite the place where the quarry commenced on the Wollongong side, there was shortly after the accident a car drawn up to which something was being done; it had been jacked-up and it was evidently undergoing some piece of repair or attention. That evidence was tendered by the plaintiff with a view to showing that the defendant must be wrong when he said that he had maintained his position on his course over on the correct side of the road and the plaintiff had run into him while he was on the correct side of the road.

The evidence could be effective only if the car under attention had been there at the time when the defendant passed him; but the evidence actually tendered could not take the point of time at which it was seen closer than within ten minutes of the accident. In those circumstances it was objected that the evidence was not shown to be relevant.

So far as the actual case made by the plaintiff, as distinguished from the defendant's, went, possibly the presence of the car might have operated slightly in favour of the defendant and not the plaintiff; but on the defendant's own case, the presence of the car under repair was, of course, a not unimportant fact.

The judge left the matter to the jury as one in which he recommended them strongly not to act on the view that it had been shown that the car under attention was there before the accident; but he did not direct the jury to exclude it from their consideration.

We think that it is not a point on which any precise rule could be laid down as to admissibility: it depended on a matter of degree. It was a fact, the relevance of which depended upon time, place and circumstances and whilst the judge was no doubt right in thinking that the safe course for the jury to take was to treat it as not proved that the car was there at the relevant time, we do not think that he was bound to exclude it from the consideration of the jury absolutely and imperatively. It was a factor which they might take into their minds in considering the whole case.

For those reasons we think the appeal should be allowed and the judgment of the Full Court discharged and the verdict of the jury established.

The order of the Supreme Court will be discharged and in lieu thereof the appeal to the Full Court will be dismissed with costs.