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High Court of Australia |
JONES v. DUNKEL [1959] HCA 8; (1959) 101 CLR 298
Negligence - Practice
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Negligence - Action - Collision between motor vehicles - No direct evidence of negligence - Matter of inference from proved facts - Sufficiency of facts to support inference.Practice - Direction to jury - Inference of negligence open on proved circumstances - Whether inference should be drawn - Defendant able to explain facts from &which inference sought to be drawn - Failure of defendant to give evidence - What reliance to be placed by jury on such failure in deciding whether or not to draw inference - Nature of direction to jury.
Practice - Non-suit - Verdict by direction - History - Application in New South Wales.
HEARING
Sydney, 1958, November 25, 26;DECISION
March 3, 1959.2. The cause of action was negligence causing the death of the plaintiff's husband and the action was brought under the Compensation to Relatives Act 1897-1946 (N.S.W.). The deceased was killed on 15th January 1953 on the Hume Highway at a place called Little Hanging Rock about twelve miles south of Berrima. He was driving an International truck northwards towards Sydney. He was alone in the truck. It was after dark, it had been raining and the road was wet. The road wound up through wooded hills. At the material point the gradient was about one in twelve. In the vicinity of a curve turning west, that is to say to the left of the deceased as he had been travelling, his truck was found at a standstill at the side of the road with the deceased dead or dying. His body was pitched over from the driver's seat to the left of the cabin with his right leg caught between the steering column and the front of the cabin which had been crushed in on the off-side. The near-side was against the bank of the low cutting forming the inside of the curve of the road. The vehicle was at an angle with the direction of the road, the front wheels being on the earthen shoulder and the back wheels, or at all events the off-back wheel, being on the bitumen. Twenty paces to the rear of the truck and facing in the same direction was a diesel truck. It stood on the same side of the road more or less on the earthen shoulder but not at an angle with the direction of the road. The diesel truck had been driven by the defendant Hegedus, an employee of the defendant Dunkel. Hegedus was not killed but he was hurt. He had been travelling in the opposite direction. The vehicles were discovered in the position described by the driver of a motor vehicle that had been following the deceased's truck at a distance of about a quarter of a mile. He and the deceased had been driving all day but they had stopped for some food at a place only four or five miles back down the road. In leaving it the deceased had preceded him but he had from time to time seen the lights of the truck. He said that he was driving at not more than twenty-five miles per hour; so it might be inferred that he reached the two stationary vehicles not more than a minute after they collided. Another motorist came on the scene and ambulance and police were summoned. The information given by the evidence as to what occurred at the scene of the accident is both vague and meagre. All that is said about Hegedus is that he was taken away in the ambulance. But a police officer said he saw what appeared to be fresh blood stains down the embankment on the other side of the road, that is on the easterly side. He was asked "Apparently from Hegedus?" and answered "Quite likely". No marks of tyres were seen except two short marks of the diesel truck's tyres where it had apparently rolled or slipped back after stopping. There was some information about the road and more about the condition of the vehicles. On the outer side of the road were white posts. The width of the road from them to the bank or low cutting was estimated at twenty-eight feet. The bitumen was twenty feet wide. The trucks were estimated to be seven or eight feet wide. The road was banked at the curve, the rise from the inner to the outer side being about one in ten. The diesel truck was, according to a police constable, badly damaged across the front and the nearside door had been "torn off" and was missing. It was found down the embankment off the eastern side of the roadway. The International truck was damaged on the off side. The mudguard of the front wheel was torn away and pushed back against the off-side door. The windscreen was broken and the cabin and the steering wheel pushed back towards the front seat. Three days later in hospital Hegedus made a statement to a police constable which was reduced to writing. He said that he was driving his truck empty to Marulan to load limestone. His statement continued: "I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery." From this it seems certain that the diesel truck must have collided with the International truck as they travelled in opposite directions. The diesel truck must have turned completely round. Its near-side door must have been forced off in the process but how that could happen it is difficult to understand. Even more difficult to account for is the position of the blood down the embankment. However, the foregoing is a sufficient summary of the evidentiary facts that appeared. That, in effect, was how the case was left. The defendants' counsel at the conclusion of the plaintiff's case sought a directed verdict and for the purpose, in accordance with the prevailing practice in New South Wales, announced that he would not call evidence. The learned judge refused his application but the jury found a verdict for the defendants. An application to the Full Court of the Supreme Court for a new trial failed. In the view I take the grounds upon which the plaintiff sought a new trial are immaterial. I cannot see how a jury might reasonably infer that her husband was killed by the negligence of Hegedus. The accident is simply left unexplained. No doubt the conclusion is reasonably open that at the moment of actual impact the right side of the forward part of the International truck and the front of the diesel truck were in violent contact. The inference is also open that the diesel truck was swung round to face the other way. Strange as such an effect of the forces may seem, perhaps it might also be reasonably concluded that the left-hand door flew open and was torn off as the truck went round, notwithstanding the absence of evidence of marks upon any of the posts at the edge of the road. But the all important question of the cause of the vehicles hitting one another is left unresolved by the circumstantial evidence. It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951). which is referred to in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470 , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." (1956) 94 CLR, at pp 480, 481 But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. (at p305)
3. In the present case the circumstances appearing in evidence do not in my opinion support any inference that may reasonably be drawn that Hegedus was guilty of negligence and thereby caused the deceased's death. One can feel little doubt that that is why the jury were not in fact reasonably satisfied of the plaintiff's case and found a verdict for the defendants. (at p305)
4. I think that the appeal should be dismissed. (at p305)
KITTO J. Undoubtedly the evidence bearing upon the cause of the collision was meagre in the extreme, but in my opinion there was material from which the jury might legitimately have concluded that the death of the plaintiff's husband resulted from negligent conduct on the part of Hegedus. The conclusion, it is true, could not have been reached save by inference from the facts concerning the road and the two vehicles, which were deposed to by the witnesses who came upon the scene shortly after the collision; and I agree that no ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the conditions which existed at the time and place of the collision. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed. I therefore agree that in the present case a verdict for the plaintiff could not properly have been based upon such a general reflexion as that a collision on a curve, where the road is substantially banked with a fall to the inside, and where the vehicle with the outside running is travelling downhill, is more likely to have been caused by the driver of that vehicle cutting the corner than by the driver of the opposing vehicle swinging wide. But there are some specific primary facts which the jury could have found on the evidence presented to them and which, if found, would suggest, as it seems to me, that the collision probably occurred on the diesel truck's wrong side of the road and therefore, prima facie as a result of negligent driving by Hegedus. (at p306)
2. The facts to which I refer are these. The road was about twenty-eight feet wide, with a bitumen strip twenty feet wide down the middle and dirt shoulders four feet wide. The road surface was wet. The International truck, which was entitled to the inside running, was found afterwards, according to Constable Heyman, with its near-side front wheel against the bank of the hillside into which the road had been cut, and with its off-side rear wheel about seven feet in from the edge of the bitumen. The witness said that the vehicle was damaged on the off-side, about the centre of the front wheel; the (off-side) mudguard was torn away and pushed back against the off-side door; the windscreen was broken; and the steering wheel and the cabin were pushed back towards the front seat. The witness thought there was damage to the front near-side where the truck had gone into the bank. The same witness described the diesel truck, which Hegedus had been driving, as badly damaged across the front and as having had its near-side door torn off and lying down the embankment which formed the outside edge of the curve of the road. This truck was found, after the collision, standing about twenty paces behind the International, facing in the same direction as the International, and with its nearside wheels about a foot off the bitumen. According to the evidence, there were no marks, either on the bitumen strip or on the dirt shoulder, to suggest anything about the course either vehicle had followed, except marks indicating that the diesel truck had slid backwards, to some undefined extent, to the position in which it was found. It remains only to add that the diesel truck was described by Constable Heyman as having an overall length of about twenty feet. (at p306)
3. From these facts, if the jury accepted the evidence about them, it seems reasonable to infer that the vehicles collided with their offside headlights against one another, that the International was already, or became by force of the collision, turned at an angle towards the bank, and that the diesel truck, while forcing the front end of the International against the bank, itself slewed completely round behind the International so as to face in the direction from which it had come. The crucial question is: where on the roadway were the vehicles when the first impact occurred? It seems to me that the positive evidence that the dirt shoulder on the outside of the curve showed no sign of skidding wheels, although it was wet, would justify an inference that the diesel truck in its gyrating movement round the International did not carry its rear wheels off the bitumen. That would mean that the front end of the diesel truck could not have been closer to the edge of the bitumen on its correct side than say fifteen feet, at the moment when it was at right-angles to the direction of the road. That moment could hardly have been later than the moment when the front-end of the diesel was against the driver's door of the International. On this footing, the driver's door of the International would probably have been at that moment not less than five feet in from the centre line of the road, on the International's near-side door (if, as the evidence suggests, the vehicle was nearly eight feet wide) almost thirteen feet from the centre-line, or a foot from the bank; and that is just about where Constable Heyman said that he found it afterwards. If this is correct, the only alternative to concluding that the collision took place on the International's side of the road is to suppose that in the fraction of time between the first impact and the crushing of the driver's door the diesel hurled the International's front end, notwithstanding its momentum, more than five feet across the road. When it is remembered that the rear wheels of the diesel were already skidding, or were made by the impact itself to skid, around the Internation, so that the pressure was not completely head-on, the jury might well have thought that the supposition should not be entertained. (at p307)
4. Of course there is much room for inexactness in the figures I have given; but, whatever modification they may be considered to require the fact which I think that the jury would have been justified in regarding as critical (assuming that they had found it to be a fact) is that the diesel truck, though in all probability it swung round the International with its nose against that vehicle, left no mark of the sideways drag of its back wheels on the outside shoulder of the road. From this, it seems to me, the inference is open that when the collision occurred no part of the International was as close to the outside edge of the bitumen as ten feet - in other words that when the collision occurred the International was wholly on its correct side of the road and the diesel truck was at least partially on its wrong side of the road. (at p307)
5. Whether that inference ought to be drawn was, of course, a question for the jury. But they should not have been sent away to consider that question without proper guidance as to the relevance of the defendants' failure to put Hegedus into the witness-box. On that question a juryman actually asked the trial judge to supplement his summing-up, and counsel for the plaintiff submitted that if there was evidence to go to the jury they were entitled to take into consideration (meaning, obviously, on the question whether they should infer negligence) that "there was one person who could have told them the facts and they have no answer from that person". In my opinion, the direction which the judge proceeded to give was insufficient, and, because of its incompleteness, was incorrect. His Honour told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence. In my opinion what his Honour said on the point amounted to a misdirection. (at p308)
6. For these reasons, I would allow the appeal and direct a new trial of the action. (at p308)
TAYLOR J. I agree with the Chief Justice in thinking that there was no evidence before the jury sufficient to support the cause of action sued upon. The contrary view regards the evidence as capable of establishing inferentially that the collision between the two vehicles in question was caused by the second respondent allowing or causing the vehicle under his control to move, to some unspecified extent, over the centre of the road. After a careful examination of the evidence I am unable to perceive any warrant for such an inference from the proved facts. Indeed, in my view, that conclusion cannot be reached except by assuming initially and without justification that the second respondent was grossly negligent in rounding the curve in the vicinity of the collision. In my opinion the appeal should be dismissed on this ground. (at p309)
MENZIES J. The action out of which this appeal arises was one by the widow of a man who had been killed in a collision between two trucks, one of which was being driven by the deceased and the other by the defendant Hegedus. The plaintiff alleged that the collision was caused by the negligent driving of Hegedus and the most important issue was whether Hegedus was driving upon his correct side of the road. Upon this there was no direct evidence but the plaintiff relied upon evidence which showed: (i) that Hegedus was driving downhill on the outside of a curve whereas the deceased was driving uphill on the inside of a curve on a road cambered towards the inside of the curve; (ii) after the collision the deceased's truck was on its correct side of the road with its near-side front wheel against the bank at the edge of the road and its off-side rear wheel seven feet on the bitumen; (iii) after the collision the defendants' truck was on the same side of the road as the other vehicle, facing the same way but some twenty paces behind that vehicle and with its near-side wheels about one foot off the bitumen; (iv) the damage to the deceased's truck was on its right-hand side as it faced, whereas the damage to the defendants' truck was across the front; (v) there were no marks upon the road which showed how the vehicles came to be in the position in which they were found after the collision but on a road which was about thirty feet wide and having a strip of bitumen twenty feet wide the defendants' truck, which was twenty feet long, had both passed the deceased's truck and swung completely around to face the direction opposite to that in which it was going. (at p309)
2. On this the trial judge held, and I think correctly held, that there was a case to go to the jury. As has been said, "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687 . . . . All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'. These passages are extracted from the unanimous judgment of this Court (Dixon J., as he then was, Williams, Webb, Fullagar and Kitto JJ.), in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951). ": see Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470, at pp 480 481 . The direct evidence did, I think, make it more probable that the collision occurred on the deceased's side of the road than on Hegedus's side of the road. The jury, however, found for the defendants and an application for a new trial on the ground of misdirection was refused by the Full Court of New South Wales. It is from that refusal that this appeal is brought. (at p310)
3. Before this Court it was argued that the way in which the trial judge put the matter to the jury did not do justice to the plaintiff's case as a whole, but because of the Supreme Court Rules, O. XXII, r. 15, I am not prepared to consider that argument. It was further argued that there were a number of particular misdirections. As to these, some are not open to the appellant by reason of the rule to which I have already referred, and others are without substance but there is one substantial matter that is, I think, open to the appellant and that concerns the trial judge's direction as to the significance that the jury were entitled to give the fact that Hegedus did not give evidence. (at p310)
4. Nearly all that is known about what Hegedus did either before or after the collision appears from a statement that he dictated to a policeman and signed three days after the collision while he was still in hospital. This statement is as follows: "I am a lorry driver and I reside at Hume Highway, Mittagong. At about 8.10 p.m. on the 15th of January 1953 I was driving a Seddon diesel truck No. AGY 109 in a southerly direction on the Hume Highway about 12 miles south of Berrima. The truck is owned by J. Dunkel of 12 Hereward Street, Maroubra Beach. The truck was empty and I was on my way to Marulan to load limestone. I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery. I have been driving heavy vehicles for about 2 1/2 years and I have not previously been involved in an accident." The only additional information is that he was taken away from the place of the collision in an ambulance and that near a spot off the roadway and forty feet distant from his truck there was found the near-side door of his truck and blood upon the ground. (at p311)
5. The summing-up proceeds, and I think correctly proceeds, on the footing that Hegedus might have been called as a witness and had he been called he might have been able to give information beyond that which appears from the statement I have quoted. (at p311)
6. In the course of his summing-up the trial judge said two things upon the use the jury might make of Hegedus's failure to give evidence. The first was that counsel for the defendants upon whom the responsibility for the conduct of the defendants' case rested was within his rights in not calling Hegedus, and secondly, to use his own language, "the fact that Mr. Hegedus has not been called does not absolve the plaintiff from adducing some evidence of the facts. The onus is upon her to prove the facts but very slight evidence pointing to their existence may be treated as sufficient to justify you in holding that they do exist." (at p311)
7. After the judge had finished summing up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: "Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?" The judge said: "Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you." Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan C.J. had said in De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 , and submitted "when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person". Counsel for the defendants then submitted that the plaintiff had the onus of proof "and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case". The trial judge then gave a further direction as follows: "This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff's evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant." (at p312)
8. I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman's question and after counsel for the plaintiff had objected to the earlier part of that answer, I think O. XXII, r. 15, does not prevent the misdirection being taken as a ground of appeal. (at p312)
9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)
10. Taking the summing-up as a whole I think the first and second matters to which I have referred were covered adequately but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between "proved facts" and "inferences" was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant's absence from the witness-box could have no significance. To use the words of Smith J. in Black v. Tung (1953) VLR 629 : "The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs" (1953) VLR, at pp 634, 635 . In my opinion this entitled the plaintiff to a new trial. (at p313)
11. The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference but I treat this as a case where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. (at p313)
12. For the foregoing reasons I think the appeal should succeed and that a new trial should be ordered. (at p313)
WINDEYER J. I consider that there should be a new trial in this case. (at p313)
2. I reach that conclusion with misgiving, because of the different view of some members of this Court and of the judges who sat as the Full Court of the Supreme Court. Furthermore, I think that, speaking generally, it might be better if questions of the sufficiency of a summing-up at nisi prius could be settled finally in the Supreme Court. Historically it was the task of a common law court, sitting in banc, to deal each term with questions which had arisen in the course of the trials at nisi prius before the judges of the court. Applications to set aside the verdicts of juries or for new trials thus came before judges accustomed to sit regularly at nisi prius. They were closer to the fray than a court of appeal can be. Some questions, however, which arise at nisi prius, such as complaints of the wrongful rejection or reception of evidence, are questions of law, which in earlier times could have been brought before a court of error by bill of exceptions. A misdirection might be made the subject of a bill of exceptions, but a mere non-direction could not be (Anderson v. Fitzgerald [1853] EngR 872; (1853) 4 HLC 484 (10 ER 551) ). The sufficiency of a summing-up was thus historically a matter for the court in banc rather than for an appellate court. The procedure to-day is different. Nevertheless, if the Full Court had had to determine only a complaint of the form and sufficiency of the summing-up of the learned trial judge, and the case had not been complicated by any other question, I would have thought this Court, in exercising its appellate jurisdiction, should be most reluctant to disturb the decision of the Full Court, and should give full effect to every presumption in favour of its soundness. But, as Lord Blackburn said in Prudential Assurance Co. v. Edmonds (1877) 2 App Cas 487 : - "although it is generally said, and said truly, that non-direction is not a subject of a bill of exceptions, yet when the facts are such that in order to guide the jury properly there should be a direction of law given, the not giving that direction of law would be a subject for a bill of exceptions and would be a ground for a venire de novo. When once it is established that a direction was not proper, either wrong in giving a wrong guide, or imperfect in not giving the right guide to the jury, when the facts were such as to make it the duty of the judge to give a guide, we cannot inquire whether or no the verdict is right or wrong as having been against the weight of evidence or not, but there having been an improper direction there must be a venire de novo." (1877) 2 App Cas, at pp 507, 508 Were the jury, then properly guided in this case? Blackstone in the Commentaries (Book iii, 375), (1809), in his account of the course of a trial, describes the judge's summingup: "When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinions in matters of law arising upon that evidence." (at p314)
3. This is the ideal; but as Chitty's Archbold (Book i, 11th ed. 400) (1862) states, after a somewhat similar description, "As all this, however, is intended merely as an assistance to the jury, the judge, in his discretion will omit any part of it he may think unnecessary". It has often been said that to examine a summing-up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately. So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance. On top of all this, the summing-up has to be given promptly at the conclusion of the trial, without the opportunity for careful composition which a reserved judgment may get. (at p314)
4. I say this, trite though it all is, because in the present case counsel for the appellant picked out passages and sentences from the summing-up of the learned trial judge, subjected them to some detailed textual criticism, and contended that the summing-up as a whole was inadequate and so unfavourable to the plaintiff as to make it unjust. This was one of the grounds taken in the notice of appeal to this Court. Yet at the trial no such general exception had been taken; and, quite apart from the express requirements of O. XXII, r. 15 of the Supreme Court Rules, general principle requires that, if objection is to be made to a judge's direction, the matter should have been brought to his attention at the time: Macdougall v. Knight (1889) 14 App Cas 194, at p 199 ; Nevill v. Fine Art & General Insurance Co. Ltd. (1897) AC 68, at p 76 ; Seaton v. Burnand (1900) AC 135, at p 143 ; Barber v. Pigden (1937) 1 KB 664 ; Mutual Life Insurance Co. of New York v. Moss [1906] HCA 70; (1906) 4 CLR 311, at p 322 and Banbury v. Bank of Montreal (1918) AC 626, at pp 660, 661, 674, 697, 698 . There may be cases where, when the complaint is of the general effect of a summing-up, the taking of particular exceptions is unnecessary (McVicker v. Forbes (1941) VLR 266 ). But, in the present case, the plaintiff's counsel asked for some directions and some corrections by the judge of what he had said. In part his requests were met; and then, apart from one matter, he made no further specific objection to the summing-up. In my view there was, apart from that matter to which I shall come later, no reason for thinking that, in its setting against the background of the trial, the summing-up misled, or would be likely to mislead, the jury. However, the circumstances of this case are unusual; and it is necessary to refer to them. (at p315)
5. The main facts are set out in the judgment of the learned Chief Justice of New South Wales. It is enough to say here that, from the evidence, the manner in which the accident occurred could, at best, be only a matter of inference; and whether there could be any rational inference, as distinct from mere conjecture, was debatable and debated. Any hypothesis of what occurred runs into some difficulty. How did it come about that, within the very short time which elapsed before the witness, Burdus, came on the scene, the two vehicles, both badly damaged, were at a standstill on the western side of the road, with the deceased man dead or dying in in the cabin of his truck; and with the truck which the defendant, Hegedus, had been driving, some twenty paces behind, and both trucks facing in the same direction, north? And how did it happen that when, shortly afterwards, the police came, they found the nearside door of the truck driven by Hegedus, which had been broken from its hinges, lying forty feet away below the bank on the eastern side of the road, with blood on the ground beside it? And how did two heavy vehicles collide, and one finish facing in the opposite direction from that in which it had been travelling before the accident, without leaving marks on the road? (at p316)
6. At the trial the evidence led by the plaintiff established the circumstantial details. No evidence was led as to where Hegedus was or what he was doing, either when Burdus first arrived on the scene or when he later came back with the ambulance. And no evidence was led as to whether Hegedus said anything to either Burdus or the ambulance superintendent who took him to hospital. However, a signed statement, which Hegedus had made three days after the accident when a police officer visited him in hospital, was put in evidence for the plaintiff. In it he said he was travelling to Marulan, that is in the opposite direction from that in which the deceased man, Jones, was travelling. The statement included the following passage, elicited by the policeman's question "What happened?" "I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery. I have been driving heavy vehicles for about 2 1/2 years and I have not previously been involved in an accident." (at p316)
7. When the plaintiff's case was closed counsel for the defendant applied for a verdict by direction on the ground that it was not open to the jury to infer that the accident was caused by the negligence of the defendant. The learned trial judge refused this application saying: "If a plaintiff leaves the evidence in a state where a jury are to speculate or to guess, it might be said that there is no evidence of negligence, but a jury is entitled to draw inferences from proved facts. In dealing with Mr. Ross' application, I have to consider whether there are proved facts from which reasonable men might properly draw an inference in favour of the plaintiff's case. The question whether such inference is proper or not in this case I think should be left to the jury, but I propose to warn them that if they are of opinion that the case is left in such a state that they must speculate or guess what happened, their verdict must go to the defendant." (at p316)
8. Counsel then addressed the jury. What they said is not before us. But it is apparent from passages in the summing-up that the plaintiff's counsel laid stress, as naturally he would, on the failure of the defendant to call evidence. In his summing-up his Honour adverted more than once to this matter. He said: "Here, let me say, Mr. Ross who appeared for the defendants was within his rights in adopting the course which he did. He elected not to call evidence and that is a practice which is adopted very often in these courts from day to day and you must not criticise Mr. Ross for his conduct of the case or his decision to call no evidence." And: "The fact that Mr. Hegedus has not been called does not absolve the plaintiff from adducing some evidence of the facts. The onus is upon her to prove the facts, but very slight evidence pointing to their existence may be treated as sufficient to justify you in holding that they do exist; and so I come to this very important question, what are the proved facts?" (at p317)
9. He warned the jury not to mistake mere conjecture for reasonable inference; and then, after some generalities about speed and rule of the road, he referred to some of the theories and suggestions which counsel had advanced and said: "With this set of facts, the law to be applied is this, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference; but they must do more than give rise to conflicting inferences with equal degree of probability so that the choice between the two is a mere matter of conjecture. Applying those principles to this case can you really say whether Jones was on his correct side and Hegedus was on his incorrect side?" (at p317)
10. This was apposite. At the end of the summing-up, and as the jury were about to retire, a juryman said to his Honour: "Rightly or wrongly I have it in my mind that the defendant could have come here to-day and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?" (at p317)
11. The proper answer to this question, if an answer were to be given in one word, was "yes". The matter is discussed in Wigmore on Evidence under the heading "Conduct as Evidencing a Weak Cause"; and those were the juryman's very words. What his Honour actually said was: "Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you." Whatever the learned judge had said earlier, and whether or not it was sufficient, clearly the juryman felt the need of further guidance. Lawyers are accustomed to the concept of a civil action as a matter to be decided on the evidence produced by the parties, one of them bearing the burden of proof. They do not always appreciate that laymen may well feel, not only that such proceedings are not well designed to get at the real truth, but that they ought to be. Jurymen seeking to get at the truth might naturally have qualms when the only man who was able to tell them what really happened did not vouchsafe to do so. However, the matter did not stop with his Honour's statement. A discussion ensued, in which counsel for both parties addressed his Honour, and in which the judgment of Jordan C.J. in De Gioia v. Darling Island Stevedoring & Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 was referred to. Mr. Bowring, the plaintiff's counsel, put the view for which he was contending succinctly: "If the judge says there is no evidence to go to the jury that is an end of the matter; but when the matter does go to the jury, then I do submit that the jury are entitled to take into consideration that . . . there was one person who could have told them the facts and they have no answer from that person". (at p318)
12. In the upshot his Honour said to the jury: "This is the position, the defendant having called no evidence, it is a matter of common sense that you should accept the plaintiff's evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn, then the verdict must go against the plaintiff and in favour of the defendant." (at p318)
13. The jury then retired, and returned later with a verdict for the defendants. On the plaintiff's moving in the Full Court for a new trial, some question arose whether the plaintiff could object to the direction finally given by the learned judge in response to the juryman's question. It was said no request had been made to him to deal further with it than he had. It seems to me, however, that the question of what was a proper direction in the circumstances was sufficiently raised at the trial. It is true that Mr. Bowring did not, having interrupted during his opponent's address and at the end of the summing-up, seek to continue the discussion after his Honour had said what finally he did. But he had, with it seems to me proper persistence, made the point that the juryman's question should be correctly answered; and he did not, as I read it, acquiesce in the answer finally given. It was not necessary for him to do more than he did (cf. Blackler v. McElhone (1913) 13 SR (NSW) 487; 30 WN 126 , Petree v. Knox (1917) 17 SR (NSW) 503; 34 WN 235 ). Moreover, the question had become one between the judge and the jury. His Honour's direction to the jury really amounted to no more than saying that, the defendant having called no evidence, the facts proved by the plaintiff were uncontradicted, "but the question then is whether you should find negligence as a matter of inference to be drawn from those facts". But silence may amount to much more than an acquiescence in the primary facts. It may be eloquent in support of an inference to be drawn from those facts. Until facts were proved from which an inference of negligence could be drawn, the defendant was not called upon to say anything. His Honour, however, had thought that such an inference could be drawn; he had refused to direct a verdict for the defendant, and had left the matter to the jury. Having done so, he should have directed them appropriately on the conclusions they might draw from the silence of Hegedus. In my view he did not. Therefore, whether there should now be a new trial really depends upon whether he should have left the case to the jury at all. If he should not have done so, then his misdirection becomes irrelevant. In the Full Court all the learned judges thought that the trial judge should have directed a verdict for the defendants; and this really determined their views on the questions argued. (at p319)
14. I, however, think there was evidence to go to the jury. It is, I realise, always possible to confuse mere conjecture with reasoned conclusion (see per Jordan C.J. in Bell v. Thompson (1934) 34 SR (NSW) 431; 51 WN 138 ), and to regard the mere fact that circumstances are consistent with a conjecture as corroboration of it. Nevertheless, I think that a jury properly directed might - not necessarily should - reasonably infer that immediately before the vehicles collided that driven by Hegedus was on the wrong side of the road. A jury could, in my view, properly think it more probable that this was so than that it was not (Cofield v. Waterloo Case Co. Ltd. [1924] HCA 18; (1924) 34 CLR 363 , per Isaacs J. (1924) 34 CLR, at p 375 ; Holloway v. McFeeters (1956) 94 CLR, at pp 480, 481 and Carr v. Baker (1936) 36 SR (NSW) 301; 53 WN 110 , per Jordan C.J. (1936) 36 SR (NSW), at p 306; 53 WN, at p 112 ). The cause of the collision can be only a matter of conjecture; but on which side of the road it occurred is, I think, susceptible of rational inference. If there is to be a new trial, it is not desirable to say more than that, in my view, an inference could properly be drawn from the positions where the vehicles were found immediately after the collision, taken in conjunction with the nature of the damage to each, the gradient and conformation of the road and other circumstances. If immediately before the collision Hegedus's vehicle was on the wrong side of the road, that, unexplained, is, I consider, some evidence of negligence on his part. I should add that I attach no weight to the fact that, in his statement made in hospital, Hegedus did not say he was on his correct side. It seems to me that his Honour was right in telling the jury that the fact that Hegedus did not in this statement say he was on his correct side could not rationally lead to an inference that he was on his incorrect side. I think that little, if anything, is to be gleaned from the statement, which to me seems quite inconclusive on any critical matter. It may be of some slight significance that Hegedus, when he made this statement, did not attribute the accident to anything the other vehicle did; but that is not an admission that he was himself to blame. It may also be of some significance that the question "how did it happen" elicited, among other remarks, "I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery". But I consider the trial judge was quite right in thinking that no conclusion could be drawn from the statement alone either to inculpate or exculpate Hegedus. (at p320)
15. As I think that the matter was properly left to the jury, I turn to what directions the judge should have given them concerning the failure of Hegedus to give evidence. I think, firstly, that in referring to his statement, his Honour rightly told the jury that they could have regard to it as recording what Hegedus had said; and I can see little force in counsel's objection to his Honour's, perhaps incautious, description of it as "his evidence"; but, in the circumstances, it would have been better if he had explained that it was unsworn, and that, as Hegedus had not been called, there was no opportunity of testing it by cross-examination. Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." (at p321)
16. This is plain commonsense. If authority be needed, two passages from R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) may be cited. Abbott C.J. said: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." (1820) 4 B & Ald, at pp 161; 162 (106 ER, at p 898) And Best J. said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just." (1820) 4 B & Ald, at p 122 (106 ER, at p 883) (at p321)
17. As Wigmore points out (Evidence 3rd ed. (1940) vol. 2, ss. 289, 290, pp. 171-180), exactly the same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case. These considerations have been discussed or applied in the following among other cases in Australian Courts: Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163, at p 178 , per Isaacs J. [1929] HCA 25; (1929) 43 CLR 163, at p 178 ; Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39 ; per Rich J. (1948) 77 CLR, at p 49 and per Dixon J. (1948) 77 CLR, at p 61 ; May v. O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 ; Black v. Tung (1953) VLR, at p 634 ; Waddell v. Ware (1957) VLR 43 and Ex parte Jones; Re Macreadie (1957) 75 WN (NSW) 136 . Clearly, it is not necessary that any particular form of words be used in explaining all this to a jury. Every case is different; and standardised directions are not necessary. (at p322)
18. The learned judge more than once told the jury that the responsibility for the decision that Hegedus would not give evidence lay with his counsel. This was well enough; but the way in which he emphasised it could lead the jury to think that Hegedus's silence somehow lost significance because it was on his counsel's advice that he was silent. It did not. The true inference in the circumstances was that counsel, on his instructions, thought the defendants were more likely to succeed if he kept Hegedus out of the box. One aspect of the matter does, however, need further consideration. Obviously, just as no inference can be drawn from the defendant's silence until facts be proved requiring an answer, so no inference can be drawn from his silence if he be precluded from answering. Mr. Ross, naturally and properly, contended at the conclusion of the plaintiff's case that there was no case to answer. The judge took a different view; and, as I have said, in my opinion he was right. But if, as has been suggested, the consequence of seeking a ruling that there is no case to answer be to prevent the defendant calling evidence if the judge refuses so to rule, then a difficulty arises. For what, it might be argued, can silence mean, if speech would not be heard? (at p322)
19. It has long been generally accepted in New South Wales that a party who, at any stage of a trial, seeks a verdict by direction thereby precludes himself, if his application be refused, from calling evidence (if he has not gone into evidence) or from calling further evidence (if he has already gone into evidence), unless, for some special reason, he is allowed to re-open the case. This, it seems, is because what a party seeking a verdict by direction asks is that the case should go at once to the jury, and that the judge should thereupon, and by way of, or in lieu of a summing-up, direct them how they should find. Counsel who takes this course thus treats the evidence as complete; for not until the evidence be closed can the case be submitted to the jury. (at p322)
20. But a defendant's counsel who considers that the plaintiff has failed to adduce evidence on which the jury could properly find a verdict for the plaintiff has an alternative course. He can apply for a non-suit. One result of the difference between an application for a verdict by direction and one for a non-suit is that, if the judge refuses the former, no further evidence can be called; if he refuses the latter, the defendant may then go into evidence. This distinction, important in practice, is but the consequence of a fundamental difference. If a defendant applies for a non-suit, he asks that the case be withdrawn from the jury before they give a verdict. If he asks for a verdict by direction, he asks that the case be submitted to the jury and that they be directed to give a verdict. In the former case, he seeks, without verdict, a judgment which will determine the action in his favour but will not prevent the plaintiff bringing another action for the same cause. In the latter case, he seeks a verdict to found a judgment which will bar the plaintiff for ever in respect of that cause of action. (at p323)
21. It seems possible that the conduct of this trial may have been affected by observations in English decisions which relate to the practice prevailing in England since the Judicature Act and since the abolition there of non-suits. But these decisions, to be mentioned later, ought not to govern actions at nisi prius under the Common Law Procedure Act 1899 of New South Wales; for "the usages and practices of the common law should still be observed unless they have been destroyed or modified by the judicature system and its rules" (per Rich J. in Phillips v. Ellinson Brothers Pty. Ltd. [1941] HCA 35; (1941) 65 CLR 221, at p 229 ). Some reference to history is necessary. (at p323)
22. Non-suit began as a method by which a plaintiff might discontinue his action and still be at liberty to bring another for the same cause. The name discloses its origin. The plaintiff did not follow up his cause: non sequitur clamorem suum. "'Non-suit' is a renunciation of the suit by the plaintiff or demandant when the matter is so far proceeded in as the jury is ready at the bar to deliver their verdict" (Cowell's Interpreter; see also Termes de la Ley). A plaintiff thus abandoning his claim before verdict escaped amercement, the pecuniary penalty which, in very early times, was imposed upon an unsuccessful plaintiff for making a false claim. He got another advantage too; he was not estopped from prosecuting his claim again in another action. A non-suit thus differed from a retraxit. A plaintiff who felt his prospects of success were slight, or who had been unable to procure some essential evidence, or who feared the effect in the court in banc of some formal defect, might therefore find it desirable to apply for a non-suit. At common law he was at first quite free then to begin again; but later, as a result of 23 Hen. VIII c. 15, 8 Eliz. I c. 2, and 4 Jac. I c. 23, he had first to pay the defendant's costs of the action in which he had had the non-suit. In very early times a plaintiff might even have a non-suit after a verdict in his favour when he was not satisfied with the damages; but after 2 Hen. IV c. 27 there could be no non-suit after verdict (1668) 1 Wms Saund 195 (85 ER 196) ; Keat v. Barker (1696) 5 Mod 208 (87 ER 613) ). The right of a plaintiff to have a non-suit at any time before verdict was ultimately restricted in New South Wales by r. 93 (3) (made in November 1930) of the Regulae Generales of the Supreme Court. Thereafter a plaintiff could not be non-suited on his own application without the leave of the court or a judge. The Regulae Generales have been rescinded and replaced by new rules which came into operation on 1st January 1953. Order XIV, r. 3, now, in substance, replaces the old r. 93. But, the reference to non-suit has been dropped, and only discontinuance and withdrawal of the record are now mentioned as requiring the consent of the court or a judge. What is the effect of this is not clear; for non-suits are still part of the procedural law of New South Wales, being mentioned in O. XVIII, rr. 8, 12 (incongruously under the title "Proceedings after Verdict"), and provided for in the Supreme Court Procedure Act 1900-1957, s. 7. In my opinion the judges could not, by rule, deprive a subject of the right to put an end to his action before judgment and bring another action for the same cause; for this right is part of the common law and not merely a matter of practice (Outhwaite v. Hudson [1852] EngR 288; (1852) 7 Ex 380 (155 ER 995) ). But O. XIV, rr. 1-3 may be intended to provide exhaustively for the means by which a plaintiff may do this (Fox v. Star Newspaper Company (1898) 1 QB 636; (1900) AC 19 , cf. Rich v. Strelitz Bros. & Moss [1906] HCA 68; (1906) 4 CLR 601, at p 611 ). Whether or not, as the result or these provisions, non-suits at the instance of the plaintiff be abolished, non-suits of the plaintiff at the instance of the defendant, which evolved from them, remain, And to these I now turn. (at p324)
23. Although non-suit began as a procedure whereby a plaintiff could discontinue his action, it was, at an early date, adapted to serve also as a means whereby a defendant could, when the plaintiff had failed to bring evidence of a matter essential to his case, have the case withdrawn from the jury. When a plaintiff was non-suited at the instance of the defendant he was not, in theory, non-suited against his will; for the judge could not compel a plaintiff to submit to be non-suited. A judgment of non-suit retained too much of its origins for that. Therefore, when the judge non-suited the plaintiff, what historically he did was to recommend him to acquiesce in a non-suit because, as a matter of law, he could not, as the evidence stood, succeed in his action; and the plaintiff then, out of deference to the judge, as it was said, assented to a non-suit. But, because a plaintiff could not be non-suited at the trial against his will, the Court in banc could not, if it set aside a jury's verdict, enter either a non-suit or a different verdict unless empowered to do so by leave reserved at the trial. It could only order a new trial. This limitation was removed in New South Wales by the Supreme Court Procedure Act 1900. (See Watkins v. Towers (1788) 2 TR 275 (100 ER 150) ; Heydon v. Lillis (1907) 4 CLR 1223, at p 1227 ; Shepherd v. Felt and Textiles of Australia Ltd. [1931] HCA 21; (1931) 45 CLR 359, at p 379 and Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 466 ). Nevertheless a plaintiff non-suited at the instance of the defendant is, in effect, compulsorily non-suited; and therefore he was always at liberty to move the court in banc that the non-suit be set aside (Alexander v. Barker (1831) 2 C & J 133, at p 136 [1831] EngR 1; (149 ER 56, at p 57) ; Ward v. Mason (1821) 9 Price 291 (147 ER 96) ; Sweet v. Lee [1841] EngR 144; (1841) 3 Man & G 452 (133 ER 1220) ; Rolfe v. Lea (1895) 16 LR (NSW) 168 and Dowling v. Farrell (1903) 3 SR (NSW) 42; 20 WN 27 ). But a plaintiff who was thus non-suited could not appeal to a court of error. If he wished to appeal to a court of error instead of applying for a new trial to the court in banc, his proper course was to decline to be non-suited: Corsar v. Reed [1851] EngR 844; (1851) 17 QB 540 (117 ER 1388) . If, however, a non-suit be affirmed or entered by the Full Court, it is a "final judgment", within the meaning of that term in the Judiciary Act for the purposes of an appeal to this Court (Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd. [1934] HCA 21; (1934) 51 CLR 328, at p 334 ). But, of course, a plaintiff who himself asked to be non-suited could not thereafter have the non-suit set aside (Simpson v. Clayton [1836] EngR 325; (1836) 2 Bing (NC) 467 (132 ER 183) ; Wilkinson v. Whalley [1843] EngR 620; (1843) 5 Man & G 590 (134 ER 696) ; cf. Vacher v. Cocks [1830] EngR 669; (1830) 1 B & Ad 145 (109 ER 741) ). If, when a defendant's counsel asked for a non-suit, the plaintiff's counsel contended that there was evidence sufficient to go to the jury, he was ordinarily taken to have assented to be non-suited if the judge should take the opposite view and think a non-suit would be proper. As Darley C.J. said in Dashborough v. Perpetual Trustee Co. (1896) 13 WN (NSW) 92 : "a plaintiff cannot argue a point and then refuse to abide by the Judge's decision. He may, in the first instance, before argument, say, 'I refuse to be nonsuited', but he cannot lie by, and, after the matter has been argued, refuse to abide by the decision if it is against him. A plaintiff cannot be nonsuited without his consent, but he may be nonsuited against his will after having submitted the point to the Judge for decision, and argued it. He is then too late to refuse" (1896) 13 WN (NSW) 92 . Whether in New South Wales to-day a plaintiff can still refuse to be non-suited I shall discuss later. Here it is only necessary to say that, though a plaintiff could refuse to be non-suited, he always did so at the risk that the judge might of his own motion direct a verdict for the defendant. This is very clearly stated in Smith's Elementary View of an Action at Law, 8th ed. (1863) p. 150. "it is very dangerous to resist the judge when he is of opinion that there ought to be a nonsuit; for, if the plaintiff disregard his intimation, he is certain to direct the jury to find a verdict for the defendant; and though it is true that the plaintiff, whether he submit to a nonsuit or have a verdict found against him, must equally pay costs to the defendant, still there is this great practical difference between a verdict for the defendant and a nonsuit, namely, that the former has in general the effect of for ever barring and determining his right of action, whereas, after the latter, he may bring a fresh action, and, if he come prepared with better evidence, may perhaps succeed in it." (at p326)
24. Originally, by common law, a plaintiff was non-suited if he were absent from the court on any occasion when his presence could be demanded (Co. Litt. 138 b, 139 a). The most usual occasion of a non-suit in early times was when the plaintiff deliberately absented himself when the jury were about to give their verdict. The plaintiff was originally required to be present then, to be amerced if the verdict were adverse. By staying away he demonstrated that he had abandoned his action; a non-suit was thereupon entered; and the jury were discharged without giving a verdict. Until the early years of the nineteenth century it was still common practice in England, when the jury announced they were agreed upon their verdict, for the court officer to call the plaintiff by name to hear it (Murphy v. Donlan and Marshall [1826] EngR 763; (1826) 5 B & C 178 (108 ER 66) ). If he did not come, he was non-suited. A relic of this continued until about the time of the Judicature Act. If a plaintiff wished to be non-suited, he would leave the court, his counsel would inform the judge, and the plaintiff's name was then called three times; "John Smith come into court or you will be nonsuited"; when he did not respond he was non-suited (see Encyclopedia of the Laws of England (1898) under Nonsuit). In the case of non-suit on the application of the defendant, the formality of calling the plaintiff's name also took place; and a judge would intimate that he thought there should be a non-suit by saying that the plaintiff should be called, an expression which in old reports does not mean called to give evidence - indeed, before 14 & 15 Vict. c. 99, the parties were debarred completely from giving evidence. (at p327)
25. The Chief Justice has pointed out to me that in the notable case of MacBeath v. Haldimand (1786) 1 TR 172 (99 ER 1036) in 1786 Buller J. had been of opinion at the trial that the plaintiff ought to be non-suited, "But the plaintiff's counsel appearing for their client when he was called, he left the question to the jury, telling them they were bound to find for the defendant in point of law." (1786) 1 TR, at p 176 (99 ER, at p 1038) The following passages from other cases also illustrate the attitude of judges when the plaintiff refused to be non-suited. In Watkins v. Towers (1788) 2 TR 275 (100 ER 150) in 1788: "Several instances have happened, in which the plaintiff has insisted on his right to appear at the trial when the Judge has been under a necessity of directing the jury to find a verdict against him" (1788) 2 TR, at p 277 (100 ER, at p 151) . In 1821 in Ward v. Mason (1821) 9 Price 291 (147 ER 96) Garrow B. - who dissented there and in Elworthy v. Bird (1824) 13 Price 222 (147 ER 972) because he was inclined to restrict plaintiffs narrowly in refusing to be non-suited - referred to current practice: ". . . how very many times have we all witnessed, that after a Plaintiff's case has been gone through, the Judge has suggested to his Counsel, that he had better be called. Sometimes it has happened, undoubtedly, that the Plaintiff refuses to be nonsuited, and then the case goes to the Jury, with the disadvantage of the Judge's decided opinion against the merits of it." (1821) 9 Price, at p 296 (147 ER, at p 98) In Minchin v. Clement (1818) 1 B & Ald 252 (106 ER 93) , Lord Ellenborough in 1818 after referring to a plaintiff's option to refuse a non-suit said: ". . . if at the trial he had refused to be nonsuited, and the Judge had then directed the jury to find a verdict against him . . . " (1818) 1 B & Ald 252 (106 ER 93) . The practice is fully explained in Corsar v. Reed [1851] EngR 844; (1851) 17 QB 540 (117 ER 1388) . And most definite of all, in Stancliffe v. Clarke [1852] EngR 289; (1852) 7 Ex 439 (155 ER 1020) , in 1852, Parke B. said: ". . . it is optional with the plaintiff whether he will submit to be nonsuited; and in the event of his refusing, if there is no case to warrant a verdict for him, it is the duty of the judge to direct the jury to find for the defendant" (1852) 7 Ex, at p 446 (155 ER, at p 1024) . And Platt B. said: "The meaning of a nonsuit is, that the plaintiff will not stay in Court to hear the verdict of the jury. But if he chooses to take their opinion, and the facts shew that he has no cause of action, it is the duty of the judge to direct the jury to find for the defendant" (1852) 7 Ex, at p 451 (155 ER, at p 1026) . (at p328)
26. The form of the postea and judgment in non-suit recounted its history; they ran: "The jurors having withdrawn from the bar to consider of the verdict to be by them given; after they had considered thereof and agreed among themselves, they returned to the bar to give their verdict; whereupon the plaintiff, being solemnly called, comes not, nor doth he further prosecute his suit against the defendant. Therefore it is considered that the plaintiff take nothing by his said writ, and that the defendant do go thereof without day etc.: And it is further considered that the defendant do recover against the plaintiff pound - for his costs of defence". This form, which is old (Murphy v. Donlan & Marshall [1826] EngR 763; (1826) 5 B & C 178 (108 ER 66) , survived the Common Law Procedure Acts (see the Schedule to the Hilary Rules of 1853 and Chitty's Forms, 9th ed. (1862) pp. 245, 259, 260.) (at p328)
27. It is worth noting that the rule that the Crown cannot be nonsuited is attributed to the fiction that the King, as the fountain of justice, is in court and cannot withdraw. "The King's Majesty cannot be nonsuit, because in judgment of law he is ever present in all his Courts" (Co. Litt. 139). (at p328)
28. There has been a suggestion recently in New South Wales that by refusing to submit to a non-suit a plaintiff can put the defendant in the position of either asking for a verdict by direction (and thereby precluding himself from calling evidence if the judge should be against him on the point) or foregoing his contention that there is no case to answer. I know of no warrant for this. It seems to be not only opposed to former practice, but unsound in principle. A plaintiff who refuses a non-suit thereby insists on having the jury's verdict. The judge, however, remains in control of the trial. If he thinks a non-suit would have been proper, he has only to tell the plaintiff's counsel that if he insists on the jury giving a verdict, he will direct them to find for the defendant. Alternatively, if he would have refused to non-suit, he need only say that he will sum up and take the jury's verdict in due course. In that event the defendant can then, if he wishes, go into evidence, for he did not close his case; he did not ask for a verdict; he asked for a non-suit instead of a verdict. Had the judge because of the plaintiff's attitude directed a verdict instead of non-suiting, he would have done so of his own motion. Indeed a judge probably can non-suit without being asked to do so; although such a course might often be unwise. "In the abstract" said Lord Atkinson in Banbury v. Bank of Montreal (1918) AC 626 , "I incline to the opinion that a requisition to a judge to enter a nonsuit or direct a verdict for a defendant is not a condition precedent which must be fulfilled in order to entitle him to do either" (1918) AC, at p 674 . (at p329)
29. Order XVII, r. 6 of the Supreme Court Rules does not affect a defendant's right to apply for a non-suit. It requires that, at the close of the case of the party who begins, the opponent or his counsel shall state whether or not he intends to call evidence. It is apparent from the context that this statement is required for the purpose of determining the order of counsel's addresses. It has no relation to an application for a non-suit, which must ordinarily be made and disposed of before the question whether the defendant will adduce evidence can arise (Roberts v. Croft & Miller [1836] EngR 409; (1836) 7 Car & P 376 (173 ER 167) ), although sometimes a non-suit has been granted on the defendant's application after evidence called by him (Davis v. Hardy [1826] EngR 791; (1827) 6 B & C 225 (108 ER 436) and Giblin v. McMullen [1868] EngR 30; (1868) LR 2 PC 317, at p 339 ). If, after the trial judge has rejected a defendant's application that he non-suit the plaintiff, the defendant goes into evidence, and in his case incidentally cures the deficiency of the plaintiff's case, he cannot by motion in banc or on appeal have a non-suit entered; for the court will look at the whole of the evidence (Allen v. Cary [1857] EngR 398; (1857) 7 El & Bl 463 (119 ER 1318) , and Ostermeyer v. Harrold (1895) 12 WN (NSW) 38 ). (at p329)
30. In my view, modifications in New South Wales of the common law on this topic have certainly not been to the disadvantage of a defendant who applies for a non-suit. Indeed it is clearly arguable, although I do not find it necessary to express any conclusion on the matter, that the right of a plaintiff to refuse a non-suit has now gone leaving, however, unimpaired his liability to be non-suited in a proper case. This is because a plaintiff's option to refuse to be non-suited was a correlative of the origin of non-suit as a plaintiff's right. But, as mentioned above, the effect since 1953 of O. XIV, r. 3, in relation to a plaintiff's right to a non-suit is uncertain; and, as far as I am aware, has not been judicially determined. Moreover, since 1907 a non-suit might be entered by the Full Court against the will of a plaintiff (Supreme Court Procedure Act, s. 7). And, finally, the present form of a judgment of non-suit in New South Wales, which is prescribed by O. XVIII, r. 8, and which may be contrasted with the older form set out above, runs: "whereas on the . . . day of . . . this action was tried before his Honour Mr. Justice . . . and a jury of four persons and his Honour directed that a non-suit be entered: Therefore it is adjudged that the abovenamed plaintiff recover nothing by his writ and that the said defendant recover against the plaintiff his costs of defence". This form is significant. In accordance with the reality of the position, it treats a non-suit as suffered by the plaintiff at the direction of the judge, not as, even formally, sought or assented to by the plaintiff. The wording is perhaps somewhat anomalous in describing an action which came on for trial before a jury but was withdrawn from the jury as an action "tried before a jury"; but the effect is clear. Assuming, however, that in New South Wales, a plaintiff is still at liberty to refuse to be non-suited and to insist that the judge in lieu of a non-suit direct a verdict against him, I cannot see what advantage he can now get by this course. The position was very different before the present system of appeals, before bills of exceptions became obsolete and while, apart from reservations by consent, the court in banc could do no more than grant a new trial. (at p330)
31. In England a radical change occurred after the Judicature Acts. The Act of 1873 did not abolish non-suits but the Rules of 1875 provided that a judgment of non-suit should, unless the judge otherwise directed, have the same effect as a judgment on the merits for the defendant. And in the Rules of 1883 the word "non-suit" did not appear. Non-suits then ceased to exist, being "no longer capable of being reconciled with the new procedure either in form or substance" (per Earl of Halsbury L. C. in Fox v. Star Newspaper Co. Ltd. (1900) AC, at p 20 ). That decision, however, dealt with non-suit as a method by which a plaintiff could discontinue. The word continued to be used to describe the action of a judge withdrawing a case from the jury and entering judgment for the defendant. But, since there was no provision for a judgment of non-suit, the old non-suit principles ceased to apply; and a lack of any uniform practice became manifest. The Encyclopedia of the Laws of England (1898) states under Nonsuit: "the proper time for the defendant's counsel to submit to the judge that there is no case for him to answer, is at the close of the plaintiff's case. Some judges, however, decline to allow the question to be argued at this stage of the action, unless defendant's counsel at once announces that he intends to call no witnesses." This has come to be the accepted rule (Parry v. Aluminium Corporation Ltd. (1940) 162 LT 236 ; Alexander v. Rayson (1936) 1 KB 169 and Laurie v. Raglan Building Co. (1942) 1 KB 152, at p 155 ). But the remarks in these cases relate principally to trials by a judge without a jury, as was recognised in Alexander v. Rayson (1936) 1 KB, at p 178 . When there is no jury, the proposition "no case to answer" may obviously mean far more than, "is there evidence on which a jury could find for the plaintiff?" It may mean, "would you, the judge, on the evidence given, find for the plaintiff?" (at p331)
32. In Victoria the adoption of the judicature system led, as in England, to the disappearance of the old law as to non-suits (Rees v. Duncan (1900) 25 VLR 520 ). The Chief Justice has brought to my notice the Victorian decisions on the practice there when an application is made that there is no case to answer. My brother Fullagar, when he was a member of the Supreme Court of Victoria, surveyed the matter fully in The Union Bank of Australia Ltd. v. Puddy (1949) VLR 242 . He concluded that it had become an established but not inflexible rule of practice, in civil actions in Victoria, that a decision would not be given on a submission that there is no case to answer unless the party making the submission announced that he did not intend to call evidence; and that that rule of practice applies whether the trial be by judge and jury or judge alone. The discretion which, in Victoria, the judges have exercised on this matter has led to fluctuations in practice (The New Zealand Loan and Mercantile Agency Co. Ltd. v. Smith (1893) 15 ALT 92 ; Hannah v. Scott (1928) VLR 168 ; Rees v. Duncan (1900) 25 VLR 520 ; Humphrey v. Collier (1946) VLR 391 ; Sampson v. Edwards (1949) VLR 6 ; Jones v. Peters (1948) VLR 331 and The Union Bank of Australia Ltd. v. Puddy (1949) VLR 242 ). But in New South Wales, where in trials at nisi prius the clear distinction between non-suit and verdict by direction remains, there is less need for any flexibility in practice. The same questions do not or ought not to arise there if the established usages and rules of common law procedure be followed without admixture of modern English practice developed under a different system. The practice concerning non-suits on the application of a defendant is, in my opinion, too firmly rooted in the common law and in old statutes to be disregarded in New South Wales (see Supreme Court and Circuit Courts Act 1900, s. 16). The practice of the Supreme Court is a matter solely for that court. Whether the judges collectively could by rule abrogate procedures basic to the Common Law Procedure Act and the Supreme Court Procedure Act seems very doubtful (cf. Poyser v. Minors (1881) 7 QBD 329, at p 332 ), and they have not sought to do so. (at p331)
33. I have written this lengthy excursus to make it clear that the proper inference to be drawn from the absence of Hegedus from the witness-box is not to be cut down because his counsel by asking for a verdict by direction could not thereafter call him as a witness. Had counsel wished to preserve a right to call evidence if the judge should rule that there was a case to answer, he could have asked for a non-suit. The idea that this course was not open is, I have sought to show, based on a misconception. Moreover, the words which counsel used when he applied for a verdict show that he accepted the consequences of the course he took and knowingly elected not to call evidence. The jury, when they asked, should therefore have been told fully of the inference they could draw from the silence of Hegedus whom counsel had deliberately chosen not to call. (at p332)
34. I would allow the appeal. (at p332)
ORDER
Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales set aside. In lieu therof order that the appeal to the said Court be allowed with costs, that the verdict be set aside and that a new trial be ordered. Costs of the former trial to abide the event.
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