Mercer v Commissioner for Road Transport and Tramways (NSW)

56 CLR 580

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(Judgment by: Dixon J) Court:

Judges: Latham CJ
Rich J

Dixon JEvatt J
McTiernan J

Subject References:
Negligence
Affirmed by jury
Rider
Verdict for defendant
Equipment
Failure to provide safety device
General practice
Remoteness of risk

Hearing date: SYDNEY 3 December 1936; 24 December 1936;
Judgment date: 24 December 1936

Sydney

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Judgment by:
Dixon J

Like many cases of negligence this appeal depends much more upon a proper application of the standard of duty imposed by law than upon any question as to what the facts are. For when the circumstances are examined I think it appears that the liability of the respondent depends altogether upon the measure of precaution he is bound to exercise to secure the safety of passengers in his trams. There is no dispute as to the cause of the accident or as to the nature and efficient condition of the appliances actually provided for the control of trams in motion. On the other side, there can be no dispute as to the mechanical possibility of providing a further appliance and no dispute as to its nature and operation. For, having regard to the verdict, the evidence on this subject must be read most favourably to the appellant. Reasons were given by witnesses against adopting any of the suggested additional appliances or devices. It is almost unnecessary to say that the jury were not bound to accept such reasons except in so far as they were founded, as some were, upon common general knowledge and upon independent reasoning. But when we turn to the reasons advanced in support of the appellant's contention that one or other of the suggested measures ought to have been taken, if the commissioner had exercised the due care which is incumbent upon a tramway authority, we find that none of them depends on matters of proof at all. They rest wholly upon general reasoning. For no evidence was led on the part of the appellant to prove any particular fact or circumstance as a foundation for the conclusion that the omission of the measures in question amounted to a breach of the duty. Mere proof that the tram car upon which the appellant was riding collided violently with the tram car ahead of it, was, of course, enough to launch the plaintiff's case. For such an occurrence unexplained is of so unusual a nature as to raise a prima facie inference of fault. But when it appeared that the motorman at the controls had suddenly and unaccountably collapsed and that thereupon the conductors had admittedly done all in their power to avert the consequences, an adequate explanation was supplied and the prima facie inference was overcome. The appellant was then necessarily thrown back upon a case which he was bound to prove affirmatively. That case was that a duty lay on the respondent as tramway authority to provide against the possibility of a motorman at the controls suddenly collapsing while the vehicle was in motion. The burden of establishing this position the appellant undertook. First, it was suggested on his behalf that a well-known device employed upon electric railways ought to have been adopted in the Sydney tramway system. The device is commonly called "the dead man's handle." It is a complicated method of cutting off the electric current and at the same time applying the air breakes whenever the motorman's hand is removed from the controls handle. Its adoption in tram cars would mean that, unless the motorman exerted a constant pressure to overcome the spring, the control would return to the neutral or off position from the running notch in parallel, through the running notch in series and the shunting notch. It appeared that the use of the dead man's handle upon trams was no new thing. It is an appliance that has been available to the tramway systems of the world for close upon thirty years, if not more. It is now in use in Melbourne on a few trams where the traffic is so sparse that no conductor is employed and the driver performs the double function. But no evidence was given that it was employed on any "two-man" tram anywhere, and much evidence was given that at no place in the world of which information could be obtained was it in use on any "two-man" tram. Evidence was given that the dead man's handle was introduced as an experiment upon certain cars in Sydney between 1908 and 1911 and that after a trial it was removed at the request of the chief traffic manager. Evidence was also given that more recently it was tried in Melbourne and that, after two year's use upon a few two-men cars, it was rejected. The objections to it were formulated by the witnesses for the respondent, who said, in effect, that the constant strain it imposed upon the motorman caused fatigue, irritation and inefficiency on his part. Moreover, as a result of his relinquishing the pressure on the control, the tram became liable suddenly to diminish speed or stop, and in the denser parts of the traffic this made collisions from behind more probable. The witnesses said that the conditions affecting tramway traffic in the city and the driving of railway trains were altogether different. In tramway systems the dead man's handle had been found the source of difficulties and dangers. Its disadvantages were out of proportion to the risks for the reduction or avoidance of which it was designed.

On behalf of the appellant, it was next suggested that an appliance might be devised simply to cut off the current when the driver's hand left the control. The suggestion was that by means of a spring the control handle might be brought back to the neutral or off position unless sufficient pressure were exerted to keep it at the desired notch, as, for instance, at the running notch in parallel or in series as the case might be. In answer, the witnesses pointed out that many of the same objections would apply. In addition, as no brakes would operate, the tram would continue on its course. If it was going downhill when the motorman collapsed, it would gather speed. But it might run backwards if it was going uphill. It appeared from the evidence of one witness that such a device had been obtained in Melbourne for the purposes of experiment, but that after examination and consideration it had been rejected by the tramway board without actually fitting it to a car.

Next, it was suggested on behalf of the appellant that a third device might be employed. That device was to consist in a spring raising the control lever upwards and an arrangement of contacts so that it was necessary to keep the control lever or handle pressed vertically downwards in order to maintain the current which upon its release would be cut off. A former tramway motorman said that about 1911, or perhaps 1908, mechanism of some such kind was actually tried in the Sydney system. A button was fixed on the top of the control handle upon which it was necessary for the driver to press when operating his control. If he relinquished the pressure the power was cut off. Another variation of the same device was tried. Instead of a button, it consisted of a lever which the driver must depress in the same way. This device was also rejected on the ground of its inconvenience and disadvantage. According to the witness, drivers were found strapping it down and plugging it with matches. Witnesses were called who had investigated tramway systems in other parts of the world and who were acquainted with the literature of the subject. None of them regarded the spring for returning the controller or the spring for raising the controller from a contact as devices which it would be difficult to improvise; but with the exceptions mentioned none of them was aware that such devices were in fact employed in any part of the world.

An investigation of the records of accidents was said to show that during the last ten years only two accidents occurred upon the Sydney system as the result of drivers collapsing, although there were many cases of men collapsing at work. In Melbourne no case of a man collapsing was known to have occurred on the electric trams, but one occurred on the cable trams. In Brisbane no cases of collapse were known to have occurred during the period, although two cases of temporary loss of control took place.

In answer to the objections to the contact-breaking device, a witness was called on behalf of the appellant who said that he had used it in Sydney when it was upon its trial and found no inconvenience or fatigue from it.

In his summing up, the learned trial judge twice informed the jury that the appellant's counsel no longer relied upon the dead man's handle, and, at the conclusion of the summing up, the appellant's counsel said that he had nothing to ask of his Honour. We are told, however, that the learned judge's impression was mistaken.

The question put to the jury on the issue of negligence asked them whether the respondent was guilty of negligence in not providing a safety device such as the depressing handle. After a retirement the jury informed the court that they found the matter most difficult to decide on, but, if the judge was prepared to accept the verdict with a rider, they had come to a decision. They answered the question, yes, and added the following rider:"The jury is of opinion from the evidence that the accident could have been avoided had the device been fitted. They are further of the opinion that the Commissioner for Road Transport was not careless in the ordinary meaning of the word in not fitting the device, but, on the contrary, he was justified in taking the remote risk of claims for damages that might arise from accidents as a direct result."

In my opinion this verdict cannot stand. The question at issue was whether the commissioner failed to exercise reasonable care and skill for the safety of his passengers, because he did not fit one of these appliances to the tram car. If one is at liberty to look at the rider for the purpose of discovering which appliance the jury considered ought to have been fitted, it would appear that they referred to the depressing handle mentioned in the judge's question to them. But, whichever it was, I think there was no foundation for the conclusion that the respondent fell short of his duty in omitting to provide such a device. In considering the extent and nature of the measures that due care demands, the first question must be the gravity, frequency and imminence of the danger to be provided against. On that subject common knowledge and the statistics stated in the evidence are the two sources of information available. Almost every vehicle upon the highways throughout the world is in charge of one man upon whose retention of consciousness its control and safety depends. Except that a tram car contains more people and is a heavier vehicle likely to inflict greater damage on what it strikes, the same considerations affect the innumerable vehicles upon the public streets as affect the question whether the risk of the collapse of the tramway motorman calls for a special additional precaution. As against the two factors I have mentioned, a tram car carries a conductor. Although an interval of time must elapse before the steps he can take can prove effective, his presence reduces the risks resulting from the driver's possible loss of consciousness. Further, a tram car travels on fixed rails and, therefore, needs no guidance. The statistics, if accepted, show that the risk is very infrequent. As the burden of proof lay upon the appellant, it was for him to establish the practical utility and advantages of the device which he suggested. The evidence of the disadvantages and difficulties of the devices was exceedingly strong, but it may be conceded that a jury might be at liberty to discount the positive case made in this respect on behalf of the defendant. Yet the fact remains that nowhere in the world does it appear that upon two-men cars any of the suggested devices has been put into use, except by way of experiment.

On the other hand, the deliberate judgment of those responsible for the tramway system of Melbourne and Sydney led to the rejection of the devices many years ago. There is no foundation, it appears to me, for the suggestion that they were not adopted because tramways are an obsolescent form of public transportation. At the time when the devices were rejected no other form of street transport rivalled the tramways and since that date in neither of the two cities concerned has there been any outward display on the part of the tramway authorities of any lack of faith in the immediate future of their systems. In matters of special or technical knowledge the course which is commonly adopted forms prima facie the measure of care and skill required. The proper equipment and conduct of a tramway system is a matter of special knowledge. Into that knowledge countless considerations enter, but engineering practice and experience combined with experiment will, doubtless, be the determining factors when the question is whether a particular appliance or device should be adopted. A high degree of skill and care to ensure safety must be exercised by those who undertake the carrying of passengers. But to fulfil that obligation it is enough if they adopt "the best precautions in known practical use, for securing the safety and convenience of their passengers...Both objects must be looked to. It is easy to conceive a precaution, for example, a slower rate of speed, which would add a very small degree of security, while it would entail a very great degree of inconvenience. And a company ought not to be found guilty" of negligence "merely because they possibly might have done something more for safety, at a far greater sacrifice of convenience" (per Erle C.J., Ford v London and South Western Railway Co ^[F10] ).

When the negligence charged consists in failing to provide appliances or other measures which are not in practical use, it cannot be enough to show that such measures are mechanically possible. Some definite case must be made out from which it appears that for reasons which do not negative negligence or for no reason at all the common practice does disregard a practicable means of securing safety. A higher degree of precaution cannot be imposed than that commonly accepted in the art or science by skilled and competent persons guided by proper consideration for the safety of those whose lives are entrusted to them or who are exposed to danger by their activities. It cannot be presumed or surmised that a uniformly accepted practice is based upon a disregard or an insufficient regard for human life and safety.

In the present case, what appears to be the uniform practice of tramway systems has been held insufficient and inadequate and an appliance which, so far as appears, has been rejected upon substantial grounds by the judgment of the tramway world has been held to be a necessary part of the proper equipment of a Sydney tram. It is no wonder that the jury hesitated to make an unqualified finding of negligence and treated the tramway authority as not careless in the ordinary meaning of the word, but as having justifiably taken the remote risk of claims for damages that might arise from accidents which the device would or might avert. It is, no doubt, true that if an infrequent risk may be avoided by a ready precaution, failure to take the precaution may be negligent, notwithstanding the infrequency of the danger. In such a case the question depends upon the course which a reasonable man, guided by proper consideration for the safety of others, would take. But, in the present case, the evidence discloses no basis upon which the jury could find that a reasonably prudent tramway authority would adopt a device the merits of which had failed throughout a long period of time to bring it into general use upon any tramway system anywhere.

Whatever liberty or licence may be conceded to the jury in refusing to accept the very strong proofs of the inconveniences, disadvantages and risks attending the use of the devices suggested, it was impossible for them by doing so to obtain positive proof of the contrary. Whatever affirmative evidence they may have declined to give effect to, they remained faced with the fact, confessed by their rider, that the risk to be guarded against was a remote one. They were faced with the further fact that the introduction of the device would be in opposition to all practice known to them as well as to the expert testimony laid before them. So far as the suggested appliances had any actual existence, all that appeared concerning them was that they had been long disused.

In these circumstances it appears to me that an erroneous standard of duty is imposed upon the respondent by the verdict

In my opinion the appeal should be dismissed.