Jones v Dunkel
[1959] HCA 8 (3 March 1959)(1959) 101 CLR 298
[1959] ALR 367
(Judgment by: KITTO J.)
Jones
v Dunkel
Judges:
Dixon C.J.
KittoTaylor
Menzies
Windeyer 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:
KITTO J.
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)