Wilson v Murray [1962] HCA 60; (1962) 110 CLR 445 (30 November 1962)

HIGH COURT OF AUSTRALIA

WILSON v. MURRAY [1962] HCA 60; (1962) 110 CLR 445

Negligence

High Court of Australia
McTiernan(1), Kitto(1), Taylor(1), Menzies(2) and Owen(1) JJ.

CATCHWORDS

Negligence - Contributory negligence - Direction - Qualification on rule that contributory negligence a defence.

HEARING

Sydney, 1962, November 6, 7, 30. 30:11:1962
APPEAL from the Supreme Court of New South Wales.

DECISION

November 30.
The following written judgments were delivered: -
McTIERNAN, KITTO, TAYLOR AND OWEN JJ. This is an appeal against an order of Ferguson JJ.) dismissing a new trial motion by the defendant in an action brought under the Compensation to Relatives Act. (at p446)

2. The plaintiff was the widow of one Andrew Morton Murray who died from injuries received when a motor cycle ridden by the defendant collided with him on the night of 18th October 1958. The plaintiff sued on her own behalf and on behalf of three young children of the marriage, and was awarded by the jury a verdict for 15,236 pounds of which 88 pounds represented funeral expenses. The evidence was that at about 7 p.m. on the night in question the deceased was driving a car in a southerly direction on the Pacific Highway near Newcastle when his car collided with the rear of another car being driven in the same direction by a man named Dunn. It was a dark night with some rain. The collision put out the lights, including the tail light, on the deceased's car but the lights on Dunn's car were not affected. After the collision the cars were standing on their correct side of the road near the centre line, facing south, the deceased's car being behind and apparently locked with the rear of Dunn's car. The trafficable carriageway was about 42 feet wide and there was room on each side of the two stationary cars for traffic to pass them. Shortly after the collision Dunn and the deceased went on to the road a little to the north of the two cars and stood near the centre line, with the object of giving warning to southbound traffic of the presence of the cars on the road. While they were there, many southbound vehicles - Dunn thought about two hundred of them - had slowed down as they approached him and the deceased and had been safely directed past the stationary cars. The headlight of the defendant's motor cycle appeared coming round a bend about 100 yards to the north, travelling south at a speed of 30 to 40 miles per hour. At that time the deceased was looking down at a cigarette which he was rolling. Dunn said to the deceased "We had better watch this motor bike", to which the deceased replied "That's all right". The cycle continued to come on, apparently without slackening speed, and when it was about 40 yards away Dunn said to the deceased "I don't think this fellow has seen us". Then he said "Look out, this fellow hasn't seen us", and turned and ran to take shelter between the two stationary cars. There is no evidence as to the deceased's movements at this stage, if he moved at all. The defendant's evidence was that when he was about 30 or 40 yards from the stationary cars he first saw them and that he immediately put on his brakes and swerved sharply to his right, that is, to his incorrect side of the road, his back wheel skidded, the cycle "crashed on its side" and he and it slid along the road. He said that he did not see Dunn or the deceased at any stage and it was not until it was all over that he knew that his cycle had struck the deceased. According to the evidence, the headlight on his cycle was in good order. Another witness, Ives, who was standing nearby waiting for a bus, said that he saw Dunn and the deceased on the road warning and directing the traffic and saw the cycle approaching. "A few feet back from where the men were, the rider appeared to notice the men on the road and he swung his bike to the right, and one man jumped clear and when the bike went down the rear of it slipped around, went right around and hit the other man on the legs, making him go up in the air and landed on his head". He added that the defendant "appeared to hang on to the handlebars and slid along with it". (at p447)

3. Dunn said also that the deceased smelt of liquor and, while on the road helping to warn and direct the traffic, was "unsteady - not staggering" and not "swaying" on his feet. (at p447)

4. It is apparent from what has been said that on the defendant's own evidence, a strong case of negligence on his part emerged. He had not at any time seen the deceased or Dunn although the drivers of the many other vehicles that had passed had done so. It was not until he was 30 or 40 yards from the stationary cars that he had seen them for the first time and instead of turning towards his left and passing them on his correct side of the road he had suddenly swerved towards his wrong side of the road and overturned his cycle. (at p448)

5. With this summary of the evidence in mind, we turn to the submissions made on behalf of the appellant. The first of them relates to a number of passages in the learned trial judge's summing up which - it is said - may have led the jury to conclude that the onus of disproving negligence lay on the defendant. There is no doubt that on a number of occasions in the course of his summing up his Honour correctly told the jury where the onus lay. The passages to which objection is taken, however, are these: "You may think that the outstanding fact in this case - and certainly the outstanding fact upon which the plaintiff relies - is that on his own admission the defendant did not see either man, Mr. Dunn or the late Mr. Murray and in fact he did not know that he had hit a man. That, you may think, would require a great deal of explanation if you were not to draw an inference of negligence from it . . . You may think, Gentlemen - it is a matter for you, not for me, that there is a clear inference of negligence on the part of the defendant available to be drawn in this case. You are not bound to draw that inference, you may accept it or you may reject it; but I suggest before you reject it you must be satisfied that there is some explanation of the failure of the driver of the motor cycle (the defendant) to see a man in that roadway - which was a straight road for over 100 yards, with no traffic at that particular time going one way or the other. There were two men standing in the roadway, and the defendant did not see either of them . . . . Assume that there were no lights at all along the roadway, that it was not a built-up area; would that excuse a man driving with his headlight on and who does not see two men standing stationary on the road when he has a clear view ahead for one hundred yards at least? . . . Giving full weight to Mr. Ollerenshaw's submission that the weather was bad, and it was a very dark night, and the road had bush on each side of it, do you think - it is a matter for you, that that explains away the failure of the defendant to see the man who was standing on the road, the man whom he struck without even knowing he hit him?" To these should be added an additional passage: "It is put to you by Mr. Williams" (who was counsel for the plaintiff) "what possible explanation is there of the fact that the defendant did not see either of them." In our opinion this submission cannot be sustained. What the learned judge was telling the jury was that the admitted failure of the defendant to see Dunn and the deceased gave rise to a very strong inference that he had not been keeping a proper lookout; that it was for the jury to decide whether to accept or reject that inference but that before rejecting it they should ask themselves what other explanation there could be for failing to see the men standing on the road. When the summing up is read as a whole we are of opinion that there is no justification for thinking that the jury may have been under any misunderstanding on the question of the onus of proof of negligence. (at p449)

6. The next group of submissions relates to directions given on contributory negligence and raises, inter alia, the question whether the case was one in which, if the jury considered the deceased had failed to take reasonable care for his own safety, it might also have found that notwithstanding that fact the defendant might have avoided the accident had he exercised reasonable care but had failed to do so. We find it unnecessary to consider these submissions for the reason that we think that there was no evidence on which it could reasonably have been found that the deceased had been guilty of contributory negligence. In his summing up, as it was originally put, the learned trial judge did not leave this issue to the jury but, at a later stage, counsel for the defendant submitted that a defence of contributory negligence was open and should be put. Counsel for the plaintiff raised no objection to this being done and his Honour accordingly dealt with that issue and, in the course of doing so, gave a number of directions of which complaint is now made. Whether those directions were right or wrong, it is obvious that if there was no evidence to support a finding of contributory negligence, there can be no justification for an order for a new trial based upon incorrect directions on the issue of contributory negligence. (at p449)

7. Before us counsel for the defendant agreed and, in our opinion, properly agreed that the fact that the deceased, with Dunn, stood on the road to warn approaching traffic of the presence of the stationary cars could not be regarded as affording evidence of contributory negligence. His submission was that the jury could have found that the deceased failed to take reasonable care for his own safety because he did not move out of the way of the oncoming cycle after his attention had been drawn by Dunn to the fact that it was approaching and that its rider had apparently failed to see them. We are unable to accept that submission. It is true that when the cycle appeared around the bend 100 yards away, the deceased was looking down at the cigarette which he was rolling and that at that time Dunn told him that they should watch the cycle and there is no evidence that he did not follow Dunn's advice. It was only when the cycle was 30 or 40 yards away, according to Dunn, or a few feet away, according to Ives, that Dunn ran for shelter. What the deceased did at that stage does not appear from the evidence although it would seem that he was somewhere near the centre of the road and close to where he had earlier been standing when he was struck. For all that appears he may have thought that the cycle would remain on its correct side of the road and pass the stationary cars on that side as the other traffic had done in which case it would have passed in front of where he was standing, or he may have thought, when it swerved to its right, that if he remained where he was it would pass behind him and it apparently would have done so had it not fallen on its side and, as Ives said, "the rear of it slipped around, went right around and hit him on the legs". Whether Dunn's estimate or Ives' estimate of distances be accepted, the deceased was faced with a situation of emergency due to the failure of the defendant to exercise reasonable care and, in our opinion, it was not reasonably open to the jury to conclude that in failing to run to one side of the road or the other or to run, as Dunn did, to get behind the stationary cars he was guilty of contributory negligence. (at p450)

8. There remains a further submission that the amount of damages awarded was excessive. In the Full Supreme Court this question was dealt with at some length in the judgment of Maguire J. After examining the evidence in detail his Honour reached the conclusion, with which the other members of the Court agreed, that the amount, although very high, could not be said to be beyond the bounds of reason. We agree with his Honour's reasons and think it unnecessary to repeat what he has said. (at p450)

9. The appeal should be dismissed. (at p450)

MENZIES J. This is an appeal against a judgment of the Full Court of the Supreme Court of New South Wales rejecting an application for the new trial of an action heard by Kinsella J. and a jury where there had been verdict and judgment for 15,236 pounds damages for the present respondent on behalf of herself and her three children in respect of the death of her husband who had died as a result of being struck by the appellant's motor-cycle. The grounds of the appeal were that the jury had been misdirected on a number of matters going to liability and that in any event the damages awarded were unreasonably high. The misdirection complained of was threefold: that the learned trial judge had espoused the plaintiff's case so warmly that in dealing with the facts he had been unjudicial; that on occasions the direction was calculated to mislead the jury about the onus of proof of the defendant's negligence; and that there was error in his Honour's direction about contributory negligence. I find it convenient to deal straight away with the question of the direction about contributory negligence but to do so it is necessary to outline the circumstances in which the accident took place. (at p451)

2. There had been a collision between two cars on the Pacific Highway some distance south of Charlestown after dark on Saturday, 18th October 1958, and as a consequence they were locked together, one behind the other, in a disabled state near the centre of the road at its junction with Park Street, which was about one hundred yards south of a pronounced curve in the Pacific Highway. It was a wet night and, although there was a street light on a post at the Park Street corner, visibility was poor and traffic to the north and to the south was heavy. No light from the disabled cars was showing to the north and, to warn south-bound traffic of the obstruction in the road and to divert it to the left, the two men who had been driving the cars which had collided - the deceased and one Dunn - stood in the roadway to the north of the cars. The evidence of the distance they were away from the nearer car at the critical time differed but Dunn's evidence was that they were about fifty or sixty feet to the north when at about 7 o'clock the appellant, riding a motor-cycle with its headlight alight, approached. Dunn's evidence of what then happened was as follows:-
"We were watching down the Highway towards the way the oncoming traffic was coming on our side of the road. There were no cars came around for a few minutes - not a few minutes, say a minute - and then a motor cycle came around the corner and I said to the man standing next to me (Mr. Murray), 'We had better watch this motor bike', and he said, 'That's all right'. He was rolling a cigarette at the time. (at p451)

3. Mr. Ollerenshaw: Q. What did you say - 'You had better watch' - ? A. 'the motor bike'. Mr. Williams: Q. Did you have some reason for saying that to him? A. He was rolling the cigarette and looking down at what he was doing. Q. As the motor bike approached did you notice anything about the speed? A. It came on at the same speed it came around the corner; I would say somewhere between 30 and 40 miles an hour. It came around the corner and continued on at that speed. It did not seem to be slacking speed at all and I said later, within a few seconds, 'I don't think this fellow has seen us'. Then I said, 'Look out, this fellow hasn't seen us'. I turned around and ran then, and stopped for a second at the back car. I thought to myself - I just thought at that split instant - 'If he keeps coming he will get me here too'. So I ran around and jumped between the two cars, and by the time I done that - before I had time to turn around between the two cars - the motorcycle had come up beside my car and the rider just turned the motor bike direct between the two cars on the side of the road - Q. On what side of the road? A. He would be on the right-hand side of the car and was actually on the wrong side of the road". Then followed evidence to the effect that Dunn found the motor-cyclist lying on the road a couple of feet to the right of the cars, the motor-cycle a little further on and Murray lying on the road near the place where he had been standing when Dunn ran - that is, round about forty-five to fifty feet to the north of the cars. A witness Ives who was standing near the point of collision gave the only evidence that there was of the actual impact between the motor-cycle and the deceased. He said: "The motor cycle was approaching where the men were standing, and a few feet back from where the men were the rider appeared to notice the men on the road and he swung his bike to the right, and one man jumped clear, and when the bike went down the rear of it slipped around, went right around, and hit the other man on the legs, making him go up in the air and landed on his head". He went on to say that when the deceased was struck the appellant had already fallen from his motorcycle which was skidding along upon its side with the appellant hanging on to the handlebars. The appellant's own evidence was that he noticed a dark shape on the road about thirty to forty yards in front of him (which turned out to be the stationary cars); that he put on his brake and veered to the right; that the motor-cycle skidded and crashed on its side; that he had not seen the men on the road and he did not know that the deceased had been struck until Dunn told him so later. At the end of Dunn's evidence he answered a number of questions put to him by the learned presiding judge to which his Honour was to attach a good deal of importance for, as will be seen, the evidence so elicited was used as the basis for a direction about contributory negligence that is the subject of challenge. These questions and answers were: "His Honour: Q. This may be implicit in your earlier evidence. Can you say definitely whether the approaching motor-cyclist sounded a horn? A. No, he never sounded a horn. I did not hear a horn at any rate. Q. You were paying attention to the cycle as it approached? A. That is right. Q. And you did not hear any horn? A. No, I didn't hear any horn." (at p453)

4. In summing up his Honour did not in the first instance refer to contributory negligence as a defence open to the appellant but, after counsel for the defendant had requested that contributory negligence should be left to the jury and counsel for the plaintiff had expressed the view that it might be better if some direction upon it were given, his Honour then directed the jury upon contributory negligence. This was necessary because, as I think, there was evidence upon which the jury could find that there was negligence on the part of the deceased which contributed to the accident. The deceased, dressed in dark clothes, was on a wet road in conditions of bad visibility for the very purpose of warning oncoming vehicles of an obstruction upon the road and yet, if Dunn's evidence were to be accepted, it could be found that he disregarded the approach of one of the vehicles that he had put himself in a position of some danger to warn. His Honour rightly described the defendant's action in these terms: "He and Mr. Dunn, seeing that their cars were blocking a busy highway and with no tail light visible to oncoming traffic, each took a position on the road to warn and wave off oncoming traffic from the rear in order to save the drivers and passengers in oncoming traffic from the danger of a collision with the unlighted stationary vehicles and from possible injury or even death to them". This very proper action called for keen attention to approaching vehicles, yet upon Dunn's evidence it could be said that the deceased disregarded the approach of the motor-cycle even after he had been told that a situation of danger existed and Dunn himself had turned and run to safety. Were a man merely to stand in the road at night disregarding approaching traffic and rolling a cigarette, it could be found that he was negligent and, upon the virtual abandonment of his self-imposed task so far as the approaching motor-cyclist was concerned, the deceased could certainly be in no better position than such a man. It could be found that the deceased treated with unconcern a situation of danger which would have caused a reasonable man to do something for the safety of all concerned, including himself, and that his inaction contributed to the happening of the accident. Moreover, there was evidence upon which it could have been found that he was affected by drink.

5. It is not necessary to say more about the direction upon contributory negligence up to the point at which his Honour embarked upon a direction about "last opportunity" than to indicate that the learned judge pointed out to the jury that the defendant's case of contributory negligence rested upon allegations of the deceased's (1) negligence in putting himself in a position of danger behind the obstructing cars, (2) intoxication inducing unsteadiness and lack of awareness and (3) negligence in rolling a cigarette and failing to watch the approaching motor-cycle. His Honour then said: - "Well, gentlemen, do you think that his action in rolling the cigarette was a material cause of the collision? If you think it was, gentlemen, then his widow is not entitled to a verdict, if you think it was not, then that aspect of the defence of contributory negligence collapses. If, however, you think that there was negligence on the part of Mr. Murray in rolling the cigarette while on the road at a time shortly before this vehicle came along and struck him, there arises a third question: Could the defendant Wilson have seen what he was doing, seen that he was not looking and give him a warning?" This was the beginning of the direction about last opportunity. His Honour referred to Dunn's evidence about not hearing a horn and said that it was relevant and important just because the defendant had not seen the deceased. His Honour's words were: "Mr. Ollerenshaw asked you also in his address to believe that the question was irrelevant and had nothing to do with this case, because it is common ground that the defendant did not see Mr. Murray at all and therefore had no occasion or opportunity to sound the horn. But, gentlemen, it is that very fact which makes the question relevant and indeed important on the issue of contributory negligence so far as that issue rests upon the fact that the deceased man was rolling a cigarette". The direction on this point of last opportunity concluded as follows: "The law has been laid down by the highest tribunal (Loach's Case (1916) 1 AC 719 ) that a person who by his own negligence deprives himself of the opportunity of doing something to avoid a collision is deemed in law to have had the last opportunity of avoiding the accident, so that when two persons are involved in an accident and both are negligent, the person who had the last opportunity of avoiding it is held in law responsible. So in this case if Mr. Wilson by his own negligence in not looking out deprived himself of the opportunity of sounding his horn to warn Mr. Murray of his approach so that Mr. Murray, abandoning his cigarette rolling, might have got out of the way, then you may find that the defendant was the one who was responsible". (at p454)

6. In my opinion it was in error to direct that, if the deceased was guilty of material negligence in rolling his cigarette instead of paying attention to the appellant's motor-cycle, the opportunity to sound his horn of which the appellant deprived himself by not maintaining a proper look-out could be regarded as a last opportunity of avoiding the accident, making him solely responsible in law. If this had been a case calling for an explanation of any qualification to the rule that contributory negligence is a good defence in an action for negligence, it was not a case for expressing that qualification in the terms of last opportunity for, if the collision occurred because both the appellant and the deceased were negligent in not seeing and avoiding one another, there was no point at which either had what could properly be called the last opportunity of avoiding the collision. Furthermore, the deceased did not need warning of the approach of the motor-cycle; Dunn had already spoken of it and the deceased had said "That's all right". Short of disbelieving Dunn, upon whose evidence the direction was based, how could the jury have reasonably found that attracting attention to the presence of the motor-cycle by sounding a horn was a precaution that would have got rid of the consequences of the deceased's own negligence? His Honour, however, altogether disregarded this vital consideration and directed the jury in absolute terms that "when two persons are involved in an accident and both are negligent, the person who had the last opportunity of avoiding it is held in law responsible". This, taken with the rest of the direction, was tantamount to saying, if the appellant did not sound his horn because he did not see the deceased, that would make him liable notwithstanding that the deceased's own negligence was a cause of the collision. This was clearly wrong and likely to mislead. (at p455)

7. In my opinion, however, not only was this not a case for a direction in terms of last opportunity, it was not a case for putting any qualification upon the simple statement of the rule that contributory negligence is a defence. The qualification laid down by Wightman J. in Tuff v. Warman [1858] EngR 165; (1858) 5 CB (NS) 573, at p 585 [1858] EngR 165; (141 ER 231, at p 236) and by Lord Penzance in Radley's Case (1876) 1 App Cas 754, at p 759 applied by this Court in The Commissioner of Railways v. Leahy [1904] HCA 30; (1905) 2 CLR 54 and expounded in Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437 is that negligence on the part of a plaintiff which is a cause of an accident does not excuse a negligent defendant from liability if it be found that the defendant could by the exercise of ordinary care have avoided the consequences of the plaintiff's negligence. Part of the exposition of this qualification in Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437 was that the fundamental idea behind it is that there are cases where for one reason or another there is so substantial a difference between the position of the plaintiff and that of the defendant at the material time that it would not be fair or reasonable to regard the plaintiff as in any real sense an author of his own wrong. Instances of this were given, including the following (1952) 85 CLR, at p 461 : "It may arise because the defendant had such an advantage over the plaintiff that he ought to have been 'master of the situation' but unreasonably failed to take advantage of his superior position (as in Municipal Tramways Trust v. Buckley [1912] HCA 39; (1912) 14 CLR 731 )". Mr. Williams, with his customary skill, argued that this was a case where the appellant, being actually or potentially master of the situation, unreasonably failed to take advantage of his superior position and relied upon the citation just made. I, however, would not describe a motor-cyclist riding towards an unexpected obstruction upon a wet road on a night of poor visibility whose cycle skids when he applies his brake and swerves upon seeing an obstruction ahead of him as being in a position of mastery vis-a-vis a man on foot on the road in front of the obstruction whose very reason for being where he was was to warn drivers of approaching vehicles and divert them around the dangerous obstruction, particularly when he knew of the approach of the motor-cycle and had been given a warning of danger. It appears to me that no case less like Buckley's Case [1912] HCA 39; (1912) 14 CLR 731 could be imagined. Nor in the circumstances do I see what the appellant should have done in the exercise of due care to get rid of the consequences of the deceased's negligence. In Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437 it was said that a distinction between the situation of the plaintiff and the defendant should not be drawn "on light or trivial or dubious grounds" (1) and that "a judge should not put to the jury the qualification on the general rule as to contributory negligence unless he feels himself able to explain clearly to them exactly how the qualification can be fairly and reasonably applied by them to a view of the facts which it is open to them to entertain" (1952) 85 CLR, at p 466 . These two warnings should, I think, have discouraged the learned trial judge from giving the direction that he did or indeed from attempting to put to the jury any qualification upon the direction that, if the jury should find that the deceased was negligent in failing to pay attention to the motorcycle while he was rolling his cigarette and this negligence was a cause of the collision, then they should find for the defendant notwithstanding their finding that his negligence was also a cause of the collision. What such a direction would in accordance with the earlier statement of the qualification have had to indicate is how something that the appellant might have done had he not been negligent could have avoided or got rid of the consequences of the deceased's negligence, leaving the jury to decide whether it was negligent of the appellant not to have done what would have done so. This, I think, appears clearly from The Commissioner of Railways v. Leahy [1904] HCA 30; (1905) 2 CLR 54 where, as the evidence stood, the train driver's failure to blow the engine's whistle or reduce speed after the plaintiff came into view from behind a passing train was regarded as something that the jury might regard as a negligent omission to do something which, if done, would have obviated the risk of the plaintiff's injury from her own negligence in not looking where she was going and walking into another train which she did not know was approaching. See Griffith C.J. (1905) 2 CLR, at pp 62, 63 ; Barton J. (1905) 2 CLR, at pp 67, 70 ; and O'Connor J. (1905) 2 CLR, at pp 72, 73 . The following statement of Griffith C.J. sets out the position: "The other question is whether, the plaintiff having been guilty of the negligence of not looking, and of walking in front of the train, the driver could, by the exercise of reasonable care, have obviated the effect of her negligence. It was suggested that this was possible in two ways: He might have pulled up his train before he got to her. The facts as to that are that, after she reached the place where she could have seen the train if she had looked, she had walked seven, eight, or, at most, nine feet, before she was struck by the train. On the other hand, the driver of the approaching train might have seen her while she was walking part of that distance. As to whether the engine driver could have pulled up in the time, that seems to me to be a difficult question. The suggestion is that he ought to have whistled, and, that if he had done so, it would have avoided the accident. Mr. Barker contends that the onus of proof of that is on the plaintiff, and there is no doubt that that is so. The question is whether, the facts being as I have stated, and the precise distance not being exactly known, and it being a matter of a few seconds only, there was evidence to leave to the jury from which they would have been justified in finding that the defendant could have avoided the accident by the exercise of reasonable care" (1905) 2 CLR, at p 63 . (at p457)

8. Mr. Williams, while contending that this was a case for stating the rule about contributory negligence with a qualification, conceded that the actual statement of the qualification which the learned trial judge gave to the jury was a misdirection, but argued that (a) as no objection was taken to the actual terms of the direction, any error in the statement of the qualification was not an available ground of appeal by reason of O. 22 r. 15 and (b) in any case, as the whole direction about last opportunity was on the fringe of the case, a new trial should not be ordered notwithstanding that the direction was wrong. It seems to me that the objection which was taken at the trial - namely, "this is not a proper case for the direction as to the last opportunity and I ask your Honour to withdraw that direction" - covers the ground upon which I consider the appellant is entitled to succeed even if, contrary to my own opinion, some different explanation of the qualification could properly have been given. Furthermore, I regard the misdirection of law that was given as one of substantial importance. It gave the jury a wrong basis for not finding for the appellant even if they found that the deceased negligently disregarded the motor-cycle while rolling a cigarette and that the collision was in some measure due to that negligence. I think his Honour in error of law introduced last opportunity as an important element in favour of the plaintiff into the jury's consideration of the liability of the defendant. (at p458)

9. In the Full Court Herron J. upheld the direction that was given on the ground that, because the appellant was in a situation of real or potential mastery, it was a case for some qualification being put to the jury and that what was in substance put by the learned judge was whether the appellant unreasonably failed to take advantage of his superior position. I have already stated my reasons for thinking that there was no sufficient reason for drawing a distinction between the situation of the appellant and that of the deceased and I add that I consider, for reasons I have already stated, that if, contrary to my opinion, it was a case for putting some qualification upon the rule, it was a misleading error to have expressed it in terms of last opportunity. Ferguson J. decided that the directions "were quite proper directions, as this is a case in which the last opportunity test may be applied". Maguire J., agreeing with both Herron J. and Ferguson J., saw "no error in the terms in which the learned judge explained to the jury the principle of the qualification". I have already stated my reasons for respectfully disagreeing with these views of the case. (at p458)

10. For the foregoing reasons I am of the opinion that the appeal should be allowed and I do not find it necessary to deal with the other grounds of appeal. (at p458)

ORDER

Appeal dismissed. Appellant to pay respondent's costs.