Jones v Dunkel
[1959] HCA 8 (3 March 1959)(1959) 101 CLR 298
[1959] ALR 367
(Judgment by: Menzies J.)
Jones
v Dunkel
Judges:
Dixon C.J.
Kitto
Taylor
MenziesWindeyer JJ.
Subject References:
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
Judgment date: 3 March 1959
Judgment by:
Menzies J.
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)