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Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498 (8 March 1968)

CATCHWORDS

New Trial - Miscarriage of justice - Case conducted by party in accordance with prevailing decision of Supreme Court - Decision subsequently overruled by High Court.

Negligence - Res ipsa loquitur - Inference from fact of occurrence - Circumstances of accident to be considered, not explanation - Motor vehicle leaving road because of steering failure.

HEARING

DECISION

2. The plaintiff, the now respondent, was a passenger in a car being driven by the appellant, his brother-in-law, on a highway in the northern part of New South Wales. The appellant apparently lost control of the car because, as it is said, its steering failed to respond and it ran off the road and turned over. As a result the respondent was severely injured. (at p499)

3. The present action was commenced by writ of summons issued out of the Supreme Court on 3rd March 1964, just short of six years after the accident which took place on 24th December 1958. An earlier writ issued in 1963 had been allowed to lapse for the reason, as the solicitor who issued it said in evidence, that extensive investigation into "the aspect of mechanical damage" was still proceeding and endeavours were on foot to locate "two independent witnesses". The declaration in the action alleged that the appellant had been "so careless, negligent and unskilful in and about the care control and maintenance and management of the said motor vehicle, that same was forced and driven through a fence and rolled over whereby" the respondent was injured. When particulars of the negligence alleged were sought, the appellant's solicitors were informed by the respondent's solicitor that "the plaintiff will be relying on the res ipsa loquitur principle". When the hearing of the action was reached on the day specially fixed for it, the respondent's senior counsel successfully applied for its adjournment on the basis "that the particulars as to negligence were to be enlarged". On that same day, the respondent's solicitor, pursuant to the leave given so to do, amended the particulars of negligence, so that they read as follows:

". . . .
The plaintiff alleges negligent maintenance by the defendant
in allowing the said motor vehicle to become in an
unroadworthy
condition and, in particular, in not maintaining both
brakes and steering in an efficient working condition.
It will be further alleged that the defendant was negligent
in: -
(a) taking and/or driving the said vehicle upon a highway
in an unroadworthy condition, and
(b) in driving the said vehicle at an excessive speed having
regard to its defective condition.
The plaintiff will also rely on a breach by the defendant of
reg. 92 (1) (d) of the Regulations under the Motor Traffic Act,
1909." (at p500)

4. Subsequently, these particulars were filed in the Court as "Supplementary particulars under O. XIII, r. 15". Nothing turned in the case or turns in this appeal upon the particular as to breach of a Motor Traffic Regulation. (at p500)

5. The case was heard at the outset upon these amended, or rather substituted, particulars and conducted throughout upon the assumption made and accepted by both parties that before the appellant's car became out of control there had been a sudden failure of the steering mechanism. The car was an old model Chevrolet which had been purchased by the appellant in a sale yard in September 1958. It was unregistered when the appellant agreed to buy it but registered when it was delivered to him. There was no evidence that the appellant had had any prior experience of failure or fault in its steering mechanism. But the respondent gave evidence that earlier on the day of the accident, the appellant had found that the brakes were inefficient and not adequate to stop the car "in a hurry". Also, a solicitor gave evidence that shortly after the accident the appellant, who was at the time instructing him on behalf of the respondent, told him that his brakes "were not too good" and that "he knew they were not too good from some point a little south of Armidale" which would be some time before the accident. (at p501)

6. The case firstly made by the respondent at the trial was that he had observed the appellant, after the car became out of control, endeavour to apply the brakes to bring it to a halt but that "there were just no brakes there and then the car ran off the road". However, having obtained from the appellant in evidence a statement that his brakes were in good order, as well as a denial of the respondent's assertions of earlier trouble with them, and an admission that he did not apply them at all after realizing his vehicle was out of control, the respondent's counsel, with the leave of the learned trial judge, further amended the particulars of negligence to add, as a particular, "the failure to apply the brakes". The trial judge without objection left the respondent's case to the jury in these terms:

"He says that the defendant did not take reasonable care
to keep his vehicle in proper condition so that proper care
could be exercised. Specifically, he says that the accident
happened and he suffered the injury because the defendant
failed to take reasonable care of the condition of his vehicle
in that he drove it and continued to drive it knowing that it
had defective brakes. That is the simple issue, gentlemen,
and it is for you to decide whether the plaintiff has satisfied
you, in the way that I have indicated, that that was the cause
of this accident."

"That claim is made by the plaintiff as an alternative claim
which the plaintiff asks you to consider - that, even if you
accept the defendant's story that the brakes of the car were
good, then he was negligent in failing to apply them ; that he
had a reasonable chance to apply them and he did not do so." (at p501)

7. The respondent asked the Supreme Court to set aside the verdict for the defendant which the jury returned and for a new trial upon a number of grounds, none of which found favour with the Supreme Court. However, in the course of discussion in that Court, a further ground emerged and, as the majority of the Court have founded themselves upon it, I must take it that leave was given to amend the notice of appeal to raise the matter. The ground taken was that the now respondent should have a new trial in which to try against the now appellant, a case in which the evidence of negligence should be found in the occurrence itself, the occurrence being the running of the vehicle off the road, without any concession on the part of the now respondent that there had been a prior failure of the steering mechanism. The majority of the Supreme Court accepted this ground, set aside the verdict, and ordered a new trial of the action. The reason advanced for the making of so unusual an order - unusual having regard to the course of the trial and the resultant verdict - was that, at the date of the trial, this Court had not decided Anchor Products Ltd. v. Hedges [1966] HCA 70; (1966) 115 CLR 493 and that, thinking the relevant law to be settled by the decision of the Supreme Court in Priest v. Arcos Enterprises Pty. Ltd. (1964) NSWR 648 , the respondent's counsel had elected not to seek to put before the jury a case based upon the so-called principle or doctrine of res ipsa loquitur, and to confine the respondent's case to evidencing the respondent's amended and further amended particulars of negligence. It was said that such an election had been "forced upon" the respondent's counsel, and that, having regard to this Court's later decision, he had been wrongfully compelled to exclude from the jury's consideration a case which otherwise would have been available to the respondent. (at p502)

8. 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?" (1967) 68 SR (NSW) 249, at p 261 ; 86 WN (Pt 2) 73, at p 84 . 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" (1967) 68 SR (NSW), at p 262 ; 86 WN (Pt 2), at p 85 . 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 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" (1967) 68 SR (NSW), at p 258; 86 WN, at p 81 . 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." (at p503)

9. These orders, of course, set the matter at large, the now respondent being free to relitigate all the issues upon which the jury had found - and found as the Supreme Court thought and as I think without maintainable objection - as well as what was regarded by the Supreme Court as a separate case based solely upon the occurrence itself. There are, it seems to me, with great respect to their Honours of the Supreme Court, several fundamental errors in the approach they have made to the problem whether or not a new trial should be ordered and in the decision to make such an order. (at p504)

10. Their Honours seemed to deduce the proposition that the question for them was whether a substantial wrong or miscarriage had been occasioned principally from the terms of r. 10 (2) of the Court of Appeal Rules, which provides:

"A new trial shall not be ordered on the ground of
misdirection,
or of the improper admission or rejection of evidence,
or because the verdict of the jury was not taken upon a question
which the Judge at the trial was not asked to leave to them,
unless in the opinion of the Court of Appeal some substantial
wrong or miscarriage has been thereby occasioned."

11. In the present case, as the Full Court viewed, and as I respectfully think, rightly viewed the trial of the issues presented to the jury by the respondent, that trial had not miscarried in any respect. There was therefore no ground for using the quoted rule. The application for a new trial was not sought to be based upon the discovery of any fresh evidence relating to the issues which had been so presented and tried. But, having, as I think, posed for itself the wrong question, the majority of the Supreme Court found a substantial wrong or miscarriage in the combination of the fact that in their opinion there was evidence produced at the trial which, if the relevant law had then been properly understood, could have been presented to the jury along with the other evidence which had been pressed on the jury in support of the respondent's case, that the appellant was negligent in his driving of his car, and the fact that there had supervened upon the trial the reversal of the Supreme Court's decision in Priest v. Arcos Enterprises Pty. Ltd. (1964) NSWR 648 . (at p505)

12. 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 [1967] HCA 14; (1967) 117 CLR 448 . 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 (1967) 68 SR (NSW), at p 261 ; 86 WN (Pt 2), at p 84 : "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 though, 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. (at p506)

13. There is, however, a further reason why, in my opinion, the course of the Supreme Court in setting aside the verdict and ordering a new trial was erroneous. It was said that the sudden failure of the steering mechanism of the old - in the sense of a not new - car itself afforded evidence of negligence on the part of the driver whose car it was and who was responsible for its care and maintenance. It is to be observed that it is not said by the Supreme Court that the circumstance that the car ran off the road whilst being driven by the appellant afforded such evidence. No doubt in some circumstances such an occurrence may provide evidence of lack of care in the management of the car. But in that case, as I pointed out in Haslbauer's Case [1967] HCA 14; [1967] HCA 14; (1967) 117 CLR 448 , if the failure of the steering mechanism is accepted as the cause of that occurrence, it would not rest upon the defendant to establish that that failure was not due to his negligence in the maintenance of the car and its mechanisms. As was also pointed out in that case, this Court has not accepted the doctrine which has found favour with the English courts and which is relevantly exampled in the dictum of Lord Radcliffe in the report of Esso Petroleum Co. Ltd. v. Southport Corporation (1956) AC 218, at pp 242, 243 . (at p506)

14. 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. [1956] HCA 45; (1956) 96 CLR 99 ; Anchor Products Ltd. v. Hedges [1966] HCA 70; (1966) 115 CLR 493 ; Nominal Defendant v. Haslbauer [1967] HCA 14; (1967) 117 CLR 448 . (at p507)

15. In the second place, however, if the failure of the steering mechanism of the car be regarded as the occurrence, it does not, in my opinion, furnish any evidence of negligence. With every respect to their Honours of the Supreme Court, neither judge nor juror, as of common knowledge or experience, knows anything of the causes of failure of the steering mechanism of a car. It is of course not a usual occurrence. But that does not, in my opinion, mean that when it does occur, it is more likely than not that it results from a lack of care in maintenance and particularly in that class of maintenance which the average driver ought reasonably to make or to procure. I would repeat in relation to the failure of a steering mechanism the substance of what I said in a case recently heard by this Court. Speaking of a commercial washing machine, a part of which for some unexplained reason began unexpectedly to move so that the machine's operator was injured, I said, with the concurrence of my brothers McTiernan and Owen : "An accident will itself provide evidence of negligence where in the ordinary affairs of mankind such an incident is unlikely to occur without the want of care on the part of the person sued. What happens in the ordinary course of mankind is either the subject of evidence or of common knowledge. Here there was no evidence whatever beyond the fact that in four years' operations nothing of the kind had manifested itself in the operation of this machine. It seems to me that neither a jury nor a judge has of common knowledge any information which would warrant the inference that, when an accident of the present kind occurs in the use of a complicated piece of machinery energized partly by electricity and partly by compressed air, having various components for the merest understanding of which some mechanical knowledge or expert explanation is necessary, the accident is more likely than not to have occurred due to the want of care on the part of the respondent." (at p508)

16. If the occurrence is to provide evidence, it can only be that, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence on the part of the party sued. By that very statement, the occurrence is unlikely to provide evidence except in connexion with machines or machinery of whose working and use the ordinary man has knowledge and experience. I do not think that the mechanical make-up of, and the forces operating on or with, the steering mechanism of a car are within such knowledge or experience. (at p508)

17. I have not dealt specifically with a number of grounds of appeals which the respondent argued before the Supreme Court and before this Court. It is sufficient to say that all these grounds were sufficiently disposed of in argument and call for no further treatment in these reasons. (at p508)

18. In my opinion, this appeal should be allowed. The appeal to the Supreme Court should be dismissed. That will result in the restoration of the verdict for the defendant, which, in my opinion, ought not to have been disturbed. (at p508)

McTIERNAN J. I agree in the reasons of the Chief Justice. For these reasons I would allow the appeal. (at p509)

KITTO J. I agree and have nothing to add. (at p509)

MENZIES J. The motor accident in which the appellant was injured occurred in December 1958 when a 22 or 23-year old car in which he was a passenger, and which was driven by the defendant, ran off a country road and turned over after the defendant had lost control of it while driving it upon an open road in broad daylight. (at p509)

2. Of course, in the circumstances, the plaintiff could have made a case merely by proving what had happened, res ipsa loquitur. (at p509)

3. The plaintiff however did no such thing, and with his aquiescence the issue that was submitted to the jury - after a trial lasting ten days - was stated by the learned trial judge as follows :

"He says that the defendant did not take reasonable care
to keep his vehicle in proper condition so that proper care
could be exercised. Specifically, he says that the accident
happened and he suffered the injury because the defendant
failed to take reasonable care of the condition of his vehicle
in that he drove it and continued to drive it knowing that
it had defective brakes. That is the simple issue, gentlemen,
and it is for you to decide whether the plaintiff has satisfied
you, in the way that I have indicated, that that was the
cause of this accident." (at p509)

4. The verdict was for the defendant and judgment followed. (at p509)

5. The Court of Appeal (Jacobs J.A. and Holmes J.A., Asprey J.A. dissenting) (1967) 68 SR (NSW) 249 ; 86 WN 73 set aside the verdict and have ordered a new trial seemingly on the basis that the counsel for the plaintiff must have been constrained by a decision of the Full Court of the Supreme Court of New South Wales, Priest v. Aros Enterprises Pty. Ltd. (1964) NSWR 648 , which was subsequently overruled by this Court in Anchor Products Ltd. v. Hedges [1966] HCA 70; (1966) 115 CLR 493 to conduct the case as he did unsuccessfully. The earlier case had decided that a plaintiff may not rely on the doctrine of res ipsa loquitur and at the same time adduce evidence of the cause of the accident. (at p509)

6. In my opinion the verdict in the trial which was conducted upon one basis cannot be set aside merely because the decision, upon which counsel presumably relied in determining how he would conduct his case, has been overruled subsequently. It is for counsel to determine whether or not he will challenge or accept a decision which stands in his way, and, having accepted it, his mistaken acceptance cannot be made the basis for setting aside any verdict which is returned by the jury upon the case submitted to them in order that a new, and in some ways, an inconsistent case - as the course of argument would seem to indicate - can be submitted to another jury. I do not find it necessary to speculate whether or not different tactics would have produced a different result upon the evidence that was given at the trial which was had. The tactics which might be adopted, and the evidence which might be given upon a new trial, if it were to be had, is, of course, hidden in the darkness of what I consider should remain an unrealized future. It could of course be that the plaintiff would be content to rely simply upon a case of res ipsa loquitur, a course that was open to him in the first place. (at p510)

7. Other points were argued but there is nothing in them. (at p510)

8. In my opinion this appeal should be allowed and the verdict and judgment restored. (at p510)

WINDEYER J. In my opinion this appeal should be allowed and the verdict of the jury restored. (at p510)

2. The plaintiff in the action, the present respondent, was a passenger in a motor car driven by the defendant, the present appellant. The car was being driven at a moderate and reasonable speed on an open road with a good surface. It was broad daylight. The car swerved suddenly from one side of the road to the other, then ran off the road and overturned. The plaintiff was seriously hurt. He brought an action alleging that the driver, the defendant, was negligent. The case made for the plaintiff at the trial was that the car had swerved because of a sudden failure of the steering mechanism : that in the situation thus created the driver had been unable to control the car or to arrest its movement because the brakes were defective : that he had known them to be defective and was negligent because, knowing this, he drove the car with passengers in it. Alternatively it was said that he had negligently failed to apply the brakes promptly when the steering failed. The jury found a verdict for the defendant. (at p510)

3. The Court of Appeal of the Supreme Court by a majority (Jacobs J.A. and Holmes J.A., Asprey J.A. dissenting) set the verdict aside and ordered a new trial. I do not find it necessary to go into all the matters which are, with a wealth of learning, discussed in the judgments of their Honours. On all matters critical for the decision of this case I agree with the reasoning of Asprey J.A. (at p510)

4. Jacobs J.A., with whose judgment Holmes J.A. agreed, considered that it would have been open to the plaintiff to go to the jury saying that the occurrence spoke for itself and to invite a verdict for the plaintiff even if the jury did not accept the evidence about the brakes. But that would have been quite inconsistent with the case made at the trial. By the pleadings and the final form of the particulars and the conduct of the trial, the plaintiff's case was hung entirely upon allegations of the state of the brakes, of the defendant's knowledge of their condition ; alternatively, upon his failure to apply the brakes promptly. (at p511)

5. 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. (1964) NSWR 648 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 [1966] HCA 70; ; (1966) 115 CLR 493 . 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. (at p512)

6. That proposition was put by Jacobs J.A. as follows (1967) 68 SR (NSW), at p 256 ; 86 WN (Pt 2), at p 79 : ". . . that the driver of a motor vehicle owes a duty of care in relation to the mechanical condition of his vehicle if he drives that vehicle upon a public highway, and that he owes that duty not only to a passenger for reward, but also to other drivers on the highway, and to pedestrians on the highway, and to all passengers in his vehicle even if they are gratuitous". I say nothing as to the measure of care in relation to the condition of his vehicle that a driver owes to a gratuitous passenger. That question is not free from difficulty, because not free from authorities. For myself, I would be inclined to think that a gratuitous passenger could be simply a "neighbour", as Jacobs J.A. apparently thought. But I need not pursue this topic here. His Honour amplified his statement that a driver has a duty of care in relation to the mechanical condition of his vehicle. He thought that it would be "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" (1967) 68 SR (NSW), at p 258 ; 86 WN (Pt 2), at p 81 . (at p512)

7. I do not doubt that a man who drives a motor vehicle when he knows it is not roadworthy and is likely to get out of control, could be found by a jury, or a judge of fact, and almost certainly would be found, to have been guilty of negligence and liable in damages for the consequences of an accident caused by his vehicle's defects. Similarly, the owner, or other person having the care of a motor vehicle, might well be held to be negligent if he failed to take reasonable care that it was roadworthy and safe to drive before allowing any one to take it upon the road. But to say that is very far from saying that whenever the steering mechanism of a motor vehicle fails and nothing more than that is proved, the thing speaks for itself and that a jury, or a judge of fact, could find that the driver was negligent. I do not think that common experience supports such an inference. (at p512)

8. I would only add, because the case in some respects resembles this case, that what Sugerman J. said in Jockel v. Jockel (1963) SR (NSW) 230 was in my opinion - leaving aside his Honour's allusion to the special position of a gratuitous passenger - correct in principle. I have not understood why his Honour's decision in that case was invoked in the judgment in Priest v. Arcos Enterprises Pty. Ltd. (1964) NSWR 648 in support of mistaken doctrine. (at p513)

9. I would allow this appeal. (at p513)

ORDER