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

This is an appeal from the judgment of Reed A.J. allowing an appeal from a decision of a special magistrate in an action in which the plaintiff claimed damages for injury resulting from the negligence of the defendant. The defendant satisfied the magistrate that there was contributory negligence on the part of the plaintiff and that this was "the real cause of the damage." He therefore gave judgment for the defendant. Reed A.J. was of opinion that the special magistrate arrived at his conclusion without considering the question whether the defendant, by the exercise of ordinary care and diligence in the circumstances, could have avoided the consequences of the plaintiff's negligence. He therefore ordered a new trial. Under the Local Courts Act 1926 S.A. the Supreme Court has power, upon an appeal from a Local Court, to draw all inferences of fact which might have been drawn by the Local Court and also power to order a new trial.

The plaintiff was riding a motor cycle in an easterly direction along Payneham Road. He was travelling at about twenty miles per hour and was well on his left hand side of the road. He was approaching the junction of Winchester Street with Payneham Road. The defendant was driving a motor car in the opposite direction along Payneham Road at a speed of about twenty miles per hour. He also was driving on his proper side of the road. The plaintiff saw the defendant hold out his hand, as a warning that he was about to turn, for some twenty yards before defendant commenced to turn. The defendant began to turn his car to the right across Payneham Road and into Winchester Street across plaintiff's line of travel. The defendant began the actual turn at least ten yards before he was opposite to the kerb alignment of Winchester Street which was nearest to him and drove so as to cut the corner. The defendant, obviously not keeping a proper look out, did not see the plaintiff until his car had almost crossed the tram lines in Payneham Road. The plaintiff went straight on without changing his direction or putting on his brakes. The defendant, at last seeing the plaintiff, sought to avoid an accident by turning away from the plaintiff towards the right, but at this stage nothing that either party could do could avoid an accident, and a collision took place in which the plaintiff was seriously injured.

The customary estimates of speeds and calculations of distances were made. The magistrate found that at the moment of impact the plaintiff was travelling at about fifteen miles per hour and that the defendant's car was travelling very slowly indeed. The magistrate reached the conclusion that the plaintiff, having seen the warning hand held out, commenced to cross Winchester Street, which is sixty-six feet wide, at a speed of approximately twenty miles per hour. The magistrate accepted expert evidence that at this speed the plaintiff's motor cycle could pull up in eighteen to twenty feet. The actual collision took place on the north east kerb corner of the two streets—at least fifty feet from the other side of Winchester Street—the eastern footpath of Winchester Street being twelve feet six inches wide.

The magistrate reached the following conclusions as to the negligence of the parties:—

The action was accordingly dismissed. The plaintiff appealed to the Supreme Court and Reed A.J. upheld the appeal and ordered a new trial on the ground mentioned.

The defendant has appealed to this court, contending that upon the findings of fact made by the magistrate, his decision was right, and that, in such circumstances as exist in this case, the further question as to the possibility of the defendant avoiding the consequences of the plaintiff's negligence did not arise. He further contends that, if this further question did arise, there is no evidence that the defendant had a later chance than the plaintiff of exercising care so as to avoid the accident. On the other hand the plaintiff contends first, that there was no evidence of contributory negligence on his part, and secondly, that if there was such evidence, there was evidence of continuing negligence on the part of the defendant which was really the cause of the accident.

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.

But it is contended for the plaintiff that before reaching such a conclusion the magistrate should have directed his mind to a further question, namely, whether the defendant could, by the exercise of reasonable care and diligence, have avoided the consequences of the plaintiff's negligence. If there was evidence from which it might have been inferred that, though the plaintiff got in the way of defendant's car by his negligence, the defendant could and ought to have avoided the consequences of that negligence, then there was a miscarriage of justice justifying a new trial if that evidence was not duly considered in relation to the issue of what I may call defendant's further (as distinguished from his original) negligence (British Columbia Electric Railway Co. Ltd. v. Loach[2]; M'Lean v. Bell[3]).

The case for the plaintiff on this point may be put in the following way:—It is true that the magistrate found that when the defendant at last saw the plaintiff, he could not, at that stage, have avoided the collision: but the reason why he could not avoid the collision is to be found in the fact that he did not see the plaintiff sooner—as he would have done if he had kept a proper look out. Thus his original negligence in not looking out was a continuing act of negligence which itself prevented the defendant from avoiding the consequences of the plaintiff's contributory negligence.

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.

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.

In this case the negligence of the plaintiff consisted not in having defective brakes which were in fact, though uselessly, applied, but in not using his brakes at all and in going straight ahead upon the assumption that he had the right of way notwithstanding the position created by the negligence of the defendant. There was, accordingly, as in Loach's Case[11], ample evidence upon which the magistrate could hold, as he did hold, that the negligence of the plaintiff was the real cause of the accident. He might properly have held, in the language of Loach's Case[12], that the plaintiff's negligence was the sole cause of the accident, and this is, I think, the actual meaning of his finding.

The contrary view, attributing the cause of the accident to the negligence of the defendant, must rest upon the proposition that the cause of the accident was the fact that the defendant did not look out properly as he was turning. As I have already said, it appears to me to involve a failure to distinguish between a causa sine qua non and responsibility for the accident—the distinction between which is explained in M'Lean v. Bell[13]. Thus, in my opinion, the decision of the magistrate should stand.

The magistrate might, upon the facts proved, have taken the view that plaintiff and defendant negligently ran into one another, everything happening so quickly that it was not possible to allocate blame as between the parties (See Swadling v. Cooper[14]). In that event the plaintiff would fail. But the magistrate did not deal with the case upon such a ground and did not make the necessary findings of fact to bring the case within the class mentioned in the case cited. His findings show an initial and continued act of negligence by the defendant and opportunity for the plaintiff to avoid the consequences of that act of negligence. He did not find that the negligence of the parties was "so nearly contemporaneous as to make it impossible to say that either could have avoided the consequences of the other's negligence" (Swadling v. Cooper[15] and Admiralty Commissioners v. S.S. Volute[16]). Thus, in my opinion, these cases cannot be relied upon for the decision of this appeal.

The appeal from the Supreme Court should, in my opinion, be allowed, the order of the Supreme Court should be set aside and the order of the magistrate restored.

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."

I should have thought that the finding of the special magistrate explicitly stated that the real—the substantial and decisive—cause of the accident was the negligence of the plaintiff: in other words, that the plaintiff was solely responsible for the accident. The defendant could not, by his own neglect or default, be in any better position as regards the plaintiff than if he had acted with due care. And the plaintiff, I apprehend, was entitled to rely upon the defendant acting with due care unless and until his want of care or negligence were manifest. The motor cycle and the motor car were approaching each other on courses and at speeds that involved risk of collision: action was necessary, and urgent, if it were to be avoided. The plaintiff saw the danger, but did not act, and the defendant, by his own neglect, deprived himself of the opportunity of acting until it was too late to avoid the collision. In these circumstances, both the plaintiff and the defendant appear to me to have been equally responsible for the collision; they had equal opportunities of avoiding it. But the question is one of fact and degree, and the special magistrate found that the plaintiff's negligence was the real and decisive cause of the collision—which means that the plaintiff, acting reasonably, could and ought to have avoided it. That finding, I think, is open on the evidence, and should not have been disturbed, though, as already indicated, I should have preferred to say that the plaintiff and the defendant were equally responsible. But judgment follows for the defendant whether the responsibility be attributed solely to the plaintiff or to the plaintiff as well as to the defendant.

This court, I think, would have been better advised in this case had special leave to appeal been refused, and I should be content if it were rescinded. Otherwise, in my opinion, the appeal should be allowed.

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.

The special magistrate, who constituted the local court, said:—"I believe the plaintiff considered that he had the right of way and in his determination to take it did not pay that heed to the defendant's vehicle that he should have done. I consider that the plaintiff should, when he first saw the defendant commence his turn, have slackened his speed to such an extent as to have been in a position to avoid a collision with the defendant's vehicle and I find that he was guilty of negligence in not having done so. I find that this negligence was the real cause of the damage."

The first statement is merely a dyslogistic expression of the truth that the plaintiff rightly thought that, according to the rules of the road, it was for him to proceed and for the defendant to allow him to pass and that he did not suppose that the defendant was about to do otherwise.

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.

The cross-examination of the plaintiff contains the following passage which appears to be the source of the special magistrate's decision:—

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.

In the foregoing discussion of the case I have accepted the findings of the local court as to the detailed manner in which the accident occurred. Those findings reconstruct relative speeds, times and distances in a very careful and painstaking way. But the difficulty and uncertainty of such a reconstruction in a collision case is only too evident. The ground upon which the plaintiff failed in that court rests entirely on an inference that he was no further than the fence alignment of the side street when the plaintiff moved over the first tram rails. The inference is based upon calculations from factors which are themselves most uncertain. The points which are really clear and indisputable in the case are that the defendant tried to cut the corner in a grossly improper manner and did not see the plaintiff, and that the plaintiff did see the defendant at an early stage and was not deterred by what he saw from attempting to cross. I fail to see why it should be inferred that the plaintiff went on in the face of a danger already existing which was, or ought to have been, obvious to him. Such a conclusion looks like an assimilation of contributory negligence to constructive notice. The truth is that the plaintiff in fact did not foresee what the defendant would do and had his wits about him. Admittedly he was not hurrying; indeed the speed ascribed to him by the special magistrate is almost incredibly low. He saw the defendant and had him in full view. His judgment may or may not have been at fault. But the assumption seems to me to be gratuitous that he formed it and committed himself to crossing the mouth of the side street after and not before it became evident that the defendant was cutting the corner in front of him so as to make it impossible for the plaintiff to get across, or dangerous for him to attempt to do so.

This is an appeal from a decision of the Supreme Court of South Australia (Reed A.J.), which set aside a judgment in the Local Court of Adelaide in an action for damages caused by negligent driving brought by a motor cyclist against the driver of a motor car. The defendant was proposing to turn his car to the right into a street running at right angles from that in which he and the plaintiff were travelling in opposite directions. The Local Court found that the defendant was negligent, not only in "cutting the corner" to his right, but also in failing to keep a look out before and in attempting to "cut the corner"; and it found further that, had the defendant been keeping a proper look out, he could not have failed to see the motor bicycle of the plaintiff. The Local Court also found that the defendant did not see the plaintiff until a very short time before the actual impact.

On the findings already mentioned, a judgment for the plaintiff might be confidently expected. But the Local Court also found that, when the defendant commenced his turn into the street at right angles, the plaintiff had an opportunity of pulling up his cycle short of the point of impact, and that he also was negligent in not slackening his speed so as to avoid colliding with the defendant. It then proceeded to find that this negligence of the plaintiff "was the real cause of the damage," and entered judgment for the defendant.

On appeal, this judgment was set aside by Reed A.J., who pointed out that there was no evidence that the plaintiff was aware that the defendant was turning to the right without keeping a look out. He thought that the magistrate should also have considered the question "whether the defendant could, by reasonable care, after the negligence of the plaintiff, have avoided that negligence." He rejected the argument that as a matter of law the doctrine of the "last clear chance" was rendered inapplicable by the fact that the defendant, because he negligently failed to keep a proper look out, did not in fact see the plaintiff until it was too late to avoid the collision. Consequently, Reed A.J. held that there should be a new trial, the Local Court not having really considered the application to the case of the doctrine of the "last clear chance."

In December 1876, in the well-known case of Radley v. London and North Western Railway Co.[17], Lord Penzance stated that the law as to contributory negligence was "perfectly well settled and beyond dispute" (at p. 758). Forty years later, in Loach's Case[18], Lord Sumner, for the Privy Council, repeated this view, declaring that the whole law of negligence in accident cases "is now very well settled, and, beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough" (at p. 727).

With these opinions should be contrasted more recent references. In 1923, Sir John Salmond said that

In Loach's Case[20] Lord Sumner rather suggested that the main problem was to explain the law to the jury. But the present case shows that at times the problem presents itself as one of reconciling the apparent contradiction involved in imposing liability for negligence upon a party who did not possess "the last clear chance" in favour of a party who is also held to be guilty of negligence. Several references will illustrate this.

In the New York case of Woloszynowski v. N.Y.C.R.R. Co.[21], Cardozo C.J. said:—

In this statement of the common law position, we find Cardozo C.J. insisting upon bringing home to a defendant actual knowledge of the peril of the plaintiff before the doctrine of the "last clear chance" can operate against him. But the principle is immediately qualified by the proposition that the doctrine can operate against a defendant if his negligence is such as "betokens indifference to knowledge." And, in such a case, ex hypothesi, the defendant never becomes possessed in fact of any "last clear chance," although he would have had such a chance of avoiding injury if he had not been recklessly negligent. This rather suggests the contradiction that "the last chance" was the first chance.

In the year 1927, Stone J., for the Supreme Court of the United States, said that the doctrine of the "last clear chance" amounted to this—

It will be observed that the proposition advanced in this judgment differs from that of Cardozo C.J., for we find that the latter's qualification upon the "last clear chance" doctrine is extended to a case where a defendant has deprived himself of what may be called the chance of a chance, not through recklessness or wantonness, but through mere carelessness. The extension is perhaps more apparent than real. In modern times reasonably safe operation of fast-moving motor vehicles would become impossible unless drivers were capable of avoiding the consequences of the carelessness of others. Continuous retention of such a capacity is gradually being recognized as so necessary to safety that its absence (e.g., in the case of a driver who chooses to drive blindfolded) usually evidences not merely carelessness, but wanton or gross negligence.

I have introduced these references from the judgments of two distinguished judges of the United States in order to illustrate that the so-called doctrine of the "last clear chance" entirely loses the significance of its name if it is sought to apply it to cases where in fact the chance has become non-existent. Blame and responsibility must rest upon a broader principle.

This broader principle is suggested in Salmond's proposition that "a last opportunity which the defendant would have had but for his own negligence is equivalent in law to one which he actually had" (8th ed. (1934) (Ed. Stallybrass), p. 482). The illustration suggested is that of a driver driving a cart whilst asleep as a result of his own drunkenness. To the statement from Salmond should be added that of Pollock, who says that

Salmond and Pollock's propositions derived from Loach's Case[23], in which approval was expressed of the remarks of Anglin J. in Brenner v. Toronto Railway Co.[24], who stated that

It will be observed that Anglin J. impliedly rejects the contradictory assertion that the doctrine of the "last clear chance" can apply to situations where the defendant never had it in fact. And he approached his conclusion by reference to the theory of causation, regarding the defendant's negligence causing "self-created incapacity" as being sufficiently the legal cause of the damage to warrant such party's being visited with full legal responsibility. Similarly, Lord Sumner, adopting the expression current in Canada, said that, in such circumstances, the defendant's negligence might be treated as "ultimate" negligence rendering him solely responsible.

A similar approach from the point of view of causation is made by Mr. C. F. Davie K.C., in his recent work on Common Law and Statutory Amendment in Relation to Contributory Negligence in Canada. His words are:

On one occasion Scrutton L.J. expressed a doubt as to whether the principle of Loach's Case[25] (a Privy Council decision) should be recognized in England. But, as is pointed out in Salmond, Lord Wright said in M'Lean v. Bell[26], that Loach's Case[27] was consistent with the English law as laid down in Swadling v. Cooper[28] (Salmond, 8th ed., p. 481, note y).

It is suggested that, whether the problem of measuring responsibility in cases where both parties have been proved guilty of some negligence is approached (1) from the point of view of proximate or substantial cause; (2) from that of a plaintiff's "relevant" as opposed to his merely "historical" or "narrative" negligence; (3) from that of holding that a party should be deemed to have had the chance of avoiding injury of which chance he negligently deprived himself; or (4) from the so far forbidden theory of comparison of degrees of negligence—the legal result is seldom if ever different. By way of example, let us pursue the interesting illustration given by Pollock.

He supposes that A and B are driving in opposite directions on the same road on a dark night, B at a dangerous speed, and A asleep at the wheel, unknown to B. He says:—

But in such a case the question in final issue may well be, not whether A can recover against B, but whether B can recover against A. It is, of course, obvious that responsibility cannot depend in any way upon the question whether A or B is plaintiff in the action.

Keeping to the same illustration, B's driving at a dangerous speed is, of course, negligence, but, if the road is fairly wide and it is on the ground of speed alone that negligence is charged against B, it is plain that, but for his having disabled himself from avoiding damage or injury, A might have avoided all damage or injury by the merest turn of the steering wheel. It is clear that, on a fuller statement of the facts, A might not only be deemed guilty of contributory negligence, but might be deemed responsible for causing injury to B.

The same case may be approached from the four points of view already mentioned above.

(1)

First, the case might be approached from the point of view of causation. On a full investigation of the facts it might be found that the negligence of B, the speeding motorist, was merely an inducing cause of the accident. Pollock himself emphasizes the frequent use by the judges of the phrase "proximate cause," and suggests that the application of the notion of "decisive" cause will frequently assist in determining where the responsibility lies (13th ed., pp. 479, 480). Pollock's insistence upon the doctrine of causation is criticized by Salmond (8th ed., pp. 483, 484), but only, apparently, if it is used as possessing "some independent logical significance capable of application to the problems of contributory negligence" (8th ed., p. 484). But, very frequently, a reference to "decisive cause" will be of great assistance to the tribunal of fact. In the example given, A's being asleep at the wheel might be regarded as the "decisive" cause of the accident.

A similar method of approach is referred to in Swadling v. Cooper[29]. The main part of the charge of the trial judge to the jury was the sentence "Whose negligence was it that substantially caused the injury?" (at p. 11). The House of Lords allowed this as a sufficient direction. Similarly, in A. G. Healing & Co. Pty. Ltd. v. Harris[30], this court thought it proper to treat a finding that "the cause" of a collision was "Harris's negligence" as unobjectionable, and, in the result, conclusive. Isaacs A.C.J. emphasized the doctrine of the "proximate" cause (at p. 566).

In Cooper v. Swadling[31], Scrutton L.J. considered that the jury should have been directed expressly:

If you think that the plaintiff was negligent, but that the defendant, after the plaintiff was negligent, by taking reasonable care could have avoided him, such negligence of the plaintiff is not, as a matter of law, negligence which contributes to the accident so as to prevent the plaintiff from recovering.

Although the House of Lords reversed the decision of the Court of Appeal, the direction suggested by Scrutton L.J. is often a practical necessity in cases where there is evidence that sufficient time was available to a defendant, even if not previously guilty of negligence, to avert the consequences of the plaintiff's negligence. But it is not a useful or relevant direction where the case against the defendant depends upon his having, by negligence, effectually deprived himself of a later or last chance of avoiding the accident. In such a case, the doctrine of "decisive" or "substantial" or "proximate" cause may be of great value.

(2)

Pollock's illustration may be considered also from the point of view indicated by Lord Wright in M'Lean v. Bell[32], who stated:

The decision, however, of the case must turn not simply on causation, but on responsibility; the plaintiff's negligence may be what is often called "causa sine qua non" yet as regards responsibility, it becomes merely evidential or matter of narrative, if the defendant acting reasonably could and ought to have avoided the collision.

After a full investigation of the circumstances of Pollock's illustration, it might properly be found that, although B was negligent in driving at a dangerous speed, such negligence was not of sufficient relevance in measuring blame for the accident, to amount to more than "matter of narrative."

(3)

The third way in which the case might be examined has already been suggested in the conclusions drawn by Salmond and Pollock from Loach's Case[33]. Upon that view A, the driver who was asleep at the wheel, should be treated as actually possessing in fact the opportunity of reasonably avoiding damage of which he had deprived himself by negligently falling asleep. Upon this footing, a recovery by B is possible or even likely.

(4)

Finally, a practical solution of the case might be found by venturing upon a comparison in point of degree between the negligence of the plaintiff and that of the defendant. Holdsworth (History of English Law, vol. 8, p. 462) thought that Loach's Case[34] was to be explained upon such a basis. (See also Salmond, 8th ed., p. 482, note z.) But such a doctrine has always been treated as inapplicable to the law of England. None the less, I think that, albeit not openly, it plays some part in the attribution of legal responsibility for injury. Thus, as between the negligent driving of a heavy and fast-moving, but easily controlled, motor vehicle on the one hand, and the negligent behaviour of a pedestrian on the other, a comparison will seldom be favourable to the former who belongs to a class which can seldom run any risk of direct injury from pedestrians. At any rate, the negligence of A, asleep at the wheel almost demands the addition of vituperative adjectives, whereas the negligence of B, though not inconsiderable, is so frequent as to become almost normal. Upon such a footing, recovery by B should not be difficult.

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.

In my opinion, the application of these principles to the present case creates no difficulty. On the face of the judgment of the Local Court, the finding that the plaintiff's negligence in proceeding was the "real cause" of the ensuing damage is inconsistent with the other findings, and in itself warrants the granting of a new trial. I am of opinion that, in the circumstances stated in the judgment and established by the evidence, the plaintiff's decision to drive ahead, relying upon the assumption, believed by him to be true, that the defendant would be keeping a specially sharp look out to cover his manœuvre in turning to the right, should not be imputed to the plaintiff as negligence at all, or, if it should, it was negligence the consequences of which could and should have been avoided had the defendant not neglected the supreme duty of keeping a look out. It is not enough for the defendant to rely upon the finding that the plaintiff became aware that the defendant had "commenced" to turn to the right. A fallacy lies in the assumption that the manœuvre of a turn to the right, if commenced carelessly, will not be finally executed with reasonable care. The plaintiff was not to know that the defendant was not only commencing to cut a corner to his right, contrary to the well-defined practice of taking a wide sweep, but was also failing to keep any look out.

In my opinion the appeal should be dismissed and, on the new trial, providing it proceeds upon similar evidence and similar findings, the plaintiff should be entitled to judgment.

In my opinion the appeal should be dismissed. The facts are fully stated in the other judgments. In my opinion the evidence does not justify the finding that the plaintiff was negligent in driving across the intersection without any change of course or speed after he observed the defendant's signal indicating that he would make a right-hand turn into the side street. It was not negligence for the plaintiff to assume that, by signalling and setting the course of his vehicle to make a right-hand turn in that direction, the defendant did not mean to warn the plaintiff, whose vehicle in fact the defendant did not observe, that he would cut across the road in front of the plaintiff's motor cycle. When it became apparent that the defendant was acting negligently, and in breach of the rule of the road, there was not, as I understand the evidence, any reasonable opportunity for the plaintiff to avoid the collision. I agree that the finding that the plaintiff was negligent should not have been made by the primary tribunal.

[1] (1908) A.C. 260.

[2] (1916) 1 A.C. 719.

[3] (1932) 48 T.L.R. 467.

[4] (1932) 48 T.L.R. 467.

[5] (1916) 1 A.C. 719.

[6] (1916) 1 A.C. 719.

[7] (1916) 1 A.C. 719.

[8] (1916) 1 A.C., at pp. 722, 723.

[9] (1916) 1 A.C., at p. 723.

[10] (1916) 1 A.C. 719.

[11] (1916) 1 A.C. 719.

[12] (1916) 1 A.C. 719.

[13] (1932) 48 T.L.R. 467.

[14] (1931) A.C. 1.

[15] (1931) A.C., at p. 10.

[16] (1922) 1 A.C. 129.

[17] (1876) 1 App. Cas. 754.

[18] (1916) 1 A.C. 719.

[19] [1934] HCA 2; (1934) 50 C.L.R. 476.

[20] (1916) 1 A.C. 719.

[21] (1930) 254 N.Y. 206, at pp. 208, 209.

[22] [1927] USSC 187; (1927) 275 U.S. 236, at p. 241; [1927] USSC 187; 72 Law. Ed. 259, at p. 261.

[23] (1916) 1 A.C. 719.

[24] (1907) 13 Ont. L.R. 423.

[25] (1916) 1 A.C. 719.

[26] (1932) 147 L.T. 262.

[27] (1916) 1 A.C. 719.

[28] (1931) A.C. 1.

[29] (1931) A.C. 1.

[30] [1927] HCA 37; (1927) 39 C.L.R. 560.

[31] (1930) 1 K.B. 403, at p. 406.

[32] (1932) 147 L.T. 262, at p. 264.

[33] (1916) 1 A.C. 719.

[34] (1916) 1 A.C. 719.

[35] (1916) 1 A.C. 719.

[36] (1916) 1 A.C. 719.

High Court of Australia

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

HIGH COURT OF AUSTRALIA