Allen v Redding [1934] HCA 2; (1934) 50 CLR 476 (14 March 1934)

HIGH COURT OF AUSTRALIA

Allen Plaintiff, Appellant; and Redding Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

14 March 1934

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Rogers Thomson for the appellant, opened the facts and was then stopped.

Winneke, for the respondent.

The following judgments were delivered:—

Rich J.

In this case the learned Judge of the County Court found in favour of the plaintiff. He found the defendant guilty of negligence in completely failing to see the plaintiff crossing the road before he hit him. He also found that the plaintiff had not been guilty of contributory negligence. The Full Court of Victoria reversed the learned Judge's decision on the ground that the plaintiff must be held guilty of contributory negligence continuing up to the impact, because, although he saw the motor car some distance away when he began to cross the road, he took his eyes off it when he got to the middle of the road, proceeding to cross the road in the belief that he would thus avoid it. The learned County Court Judge considered that this was not a want of reasonable care, and that in any case the defendant's negligence was the final cause of the accident. In my opinion there was abundant evidence on which he could so find. The plaintiff is entitled reasonably to suppose that in a good street light the motorist would see him, and at any rate would not go so close to the kerb as to make it impossible to reach it in safety in five paces—the required distance. If the plaintiff had pulled up and stood in the middle of the road waiting for the motor car, he might have been hit by it had the motorist been watching his course across the road and been confused by his sudden stop. There was no evidence in any view that the plaintiff had the last opportunity of averting the accident. The appeal should be allowed.

Starke J.

The question on which I have the most difficulty is whether the special leave to appeal should be rescinded. It is a mere question of fact whether the plaintiff was guilty of contributory negligence or not, and the learned County Court Judge, and the learned Judges of the Supreme Court, dealt with it as such. In my opinion, the plaintiff was not guilty of contributory negligence.

I agree that the appeal should be allowed, but special leave should not, I think, have been given.

Dixon J.

I agree that the appeal should be allowed. The circumstances attending the accident are no longer open to dispute. They were settled by the view which the trial Judge took of the evidence. The defendant did not see the plaintiff until his car struck the plaintiff, who then was within four or five feet of the kerb to which he was crossing. The defendant's failure to see him was due to negligence, as the trial Judge found, and as the Full Court conceded. The plaintiff, however, as he left the kerb on the opposite side, saw the defendant's car, or its lights. He judged it to be about one hundred yards away and proceeded to cross. He kept it under observation as he was crossing until he got to the middle of the road. He then had about five paces to walk to reach the footpath. He did not remember glancing again at the oncoming car, or seeing the gleam of its headlights on the roadway. He was struck by the left side of the front of the car, which was about to turn to the left. The Full Court decided that in these circumstances the plaintiff must be held guilty of contributory negligence, which continued until he was struck, and was the real cause of the accident. I do not agree in this conclusion, and I am unable to attribute the difference of opinion between this Court and the Full Court to nothing but a disagreement as to what were the facts, or to regard the case as of insufficient importance to make it a proper one for special leave. We are, I think, taking a different view of the operation of the standard of contributory negligence, and of the application of the rule which throws the responsibility upon the party, who, by exercising due care, might finally have averted the misfortune. It cannot be a matter of but small importance that the Full Court has given effect to a view opposed to that which we think correct in the application of rules so confused or confusing as those have become which relate to contributory negligence and final responsibility, and in relation to an occurrence of a class which at present supplies so much litigation.

I think that, in proceeding to cross the street in the manner in which he did, the plaintiff did not show a want of that care for his own safety which a reasonably prudent man would take. By averting his glance during the last five or six paces of his attempt to reach the kerb, he left himself without whatever opportunity of avoiding the car a close watch of its course and speed during the short time remaining might have given him. But it was his judgment at the moment that he would gain the kerb in safety, and this he would have done if it were not that the driver, through negligence, not only entirely failed to see him, but also crossed an intervening street at a greater speed than the plaintiff reasonably anticipated. But, in any event, the consequences of the conduct imputed to the plaintiff as contributory negligence, although persisting up to the moment of collision, might have been averted by the defendant by a slight deflection of the car up to a time later than that within which the plaintiff might have escaped by any endeavour of his own which it would have been negligence on his part to omit. In other words, the defendant's negligence continued as a reason for his failure to avoid the accident after the further continuance of the conduct imputed to the plaintiff as contributory negligence had ceased to be a material cause of the collision (McLean v. Bell[1]).

In my opinion, this was a proper case in which to give special leave.

The appeal should be allowed and the judgment of the trial Judge restored.

Evatt J.

I agree with the judgment which has just been delivered. But there are one or two matters which I desire to mention.

I disagree with the view that the case is of small importance, and that special leave to appeal should not have been granted. Although, in a general sense, the law of negligence is well settled, it appears clearly from such cases as Williams v. Commissioner for Road Transport and Tramways (N.S.W.)[2] and Joseph v. Swallow & Ariell Pty. Ltd.[3] that, not infrequently, the application of the law of negligence is attended with difficulty, especially in relation to the doctrine of the "last clear chance." Had I been a member of the Court to which the application for special leave was made, I should certainly have favoured the granting of special leave.

As it is, there is no need for the application of the doctrine of the "last clear chance" to the facts of the present case. The learned County Court Judge found that there was no negligence on the part of the plaintiff. Mr. Winneke has contended with great force that the plaintiff was negligent because, having crossed portion of the road, he should have foreseen that the continuance of his crossing would or might have brought him into collision with the on-coming car of the defendant. But, in considering whether there was any negligence on the part of the plaintiff, one has to pay regard to all the circumstances.

A reasonable person in the plaintiff's position would, I think, have assumed that the driver of the car was keeping a sharp look out so that he would be able to approach the corner carefully, and avoid, or try to avoid, the plaintiff if any situation of peril arose. Moreover, some risk of danger was involved if the plaintiff decided to remain standing in the middle of the road. Having regard to all the circumstances, the action of the plaintiff in continuing his crossing of the road was produced by what was, at the most, "a miscalculation which did not, in the circumstances, amount to such imprudence as to constitute carelessness or negligence at all" (Williams v. Commissioner for Road Transport and Tramways (N.S.W.)[4]).

I quite agree with Mr. Winneke's comment to the effect that a supposed "error of judgment" does not necessarily exclude the possibility of negligence on the part of a person who makes such an error. Everything depends upon whether the conduct caused by error or miscalculation is reasonable in all the circumstances. And that question can seldom be determined without considering what a reasonable person would, in the given circumstances, expect others to do.

I am therefore of opinion that the appeal should be allowed, and the judgment of the County Court Judge restored.

McTiernan J.

I agree with what has been said by my brother Dixon and do not wish to add anything.

The appeal should, in my opinion, be allowed.

Appeal allowed.

Solicitors for the appellant, Home & Wilkinson.

Solicitors for the respondent, Gair & Brahe.

[1] (1932) 147 L.T. 262.

[2] [1933] HCA 33; (1933) 50 C.L.R. 258.

[3] [1933] HCA 47; (1933) 49 C.L.R. 578.

[4] (1933) 50 C.L.R., at pp. 266, 267.