Mercer v Commissioner for Road Transport and Tramways (NSW)
56 CLR 580(Judgment by: Rich J, Evatt J, McTiernan J) Court:
Judges:
Latham CJ
Rich JDixon J
Evatt J
McTiernan J
Subject References:
Negligence
Affirmed by jury
Rider
Verdict for defendant
Equipment
Failure to provide safety device
General practice
Remoteness of risk
Judgment date: 24 December 1936
Sydney
Judgment by:
Rich J
Evatt J
McTiernan J
This is an appeal from the Supreme Court, which refused to set aside an order made by District Court Judge Sheridan , entering a verdict for the defendant in an action for damages alleged to have been caused by negligence. The action was brought by the present appellant against the Commissioner for Road Transport and Tramways, the declaration making the general allegation that the defendant commissioner had omitted to provide efficient and suitable braking apparatus for tram cars, two of which came into collision and injured the plaintiff, who was a passenger in one of the cars. The plaintiff had been blind from an early age. The tram in which he was being carried got out of control, but he remained in it. No question of contributory negligence arises.
Unfortunately, the procedure adopted by the learned District Court judge was a somewhat irregular one. The jury found for the plaintiff on the issues of negligence and damages. Subsequently, in the absence of the jury, the judge himself reviewed the facts of the case, and, holding that there was no negligence, purported to enter a verdict for the defendant. Previously, the learned judge had informed the jury that, if the specific questions were answered by the jury, "it is a question of law what these answers will mean"; but, in entering a verdict in a sense directly contrary to the jury's findings, the learned judge went further than interpreting or giving legal effect to the findings already entered. The better course would have been to enter the jury's verdict for the plaintiff, as given, and then to have heard a substantive application for a new trial. If this course had been followed, an appeal to the Supreme Court from the decision on the new trial application could have been brought. As it was, the District Court judge put himself in the position of directing a verdict for the defendant without the parties' consent or the jury being present to accept such direction.
The result of the procedure adopted at the trial was this-the District Court judge never had to determine any application for a new trial, and he restricted his enquiry to the question whether there was any evidence of negligence fit to be left to a jury. Strictly, therefore, the only question before the Full Court, and, therefore, before us, is whether there was any evidence of negligence. In our opinion, there was such evidence, and the trial judge could not properly have refused to leave the case to the jury.
Further, even if the application were regarded as the equivalent of a new trial application, we think that the evidence is not such as requires the jury's verdict to be set aside. The question to be answered on a new trial application is best stated in a passage from the well-known case of Metropolitan Railway Co v Wright [F1] , at p. 156. It is whether reasonable men " might ...find the verdict which has been found." If they "might" so find, then, as Lord Halsbury said, no court has a right to disturb the decision of fact "which the law has confided to juries, not to judges" [F2] , at p. 156.
The outstanding facts of the present case are in a small compass. The plaintiff was travelling in the first of a two-car tram of the defendant, when the driver collapsed at the controls. But the electric motor continued working, and forced the tram to travel with great velocity up a hill and down the other side, where, in spite of all the efforts on the part of the two conductors of the tram to apply the brakes, the tram collided with another tram on the same line, causing serious injury to the plaintiff.
At the close of the plaintiff's case sufficient evidence had been given to warrant an application of the principle res ipsa loquitur . On the fuller material available at the conclusion of the case, it was clear, and admitted, that the collapse of the driver was not due to any negligence. Accordingly, the real question for decision by the jury was whether the defendant had acted reasonably or unreasonably in failing to guard against the danger of a driver's collapse by installing a means for automatically cutting off the motor or otherwise pulling up the car.
Although much evidence was adduced on behalf of the defendant, a good deal of it was relied upon by the plaintiff as supporting his case, which was, in essence, extremely simple. It was that the defendant failed to provide a reasonable system for pulling up a tram in the event of the driver's collapsing at the controls-an event which, to the defendant's knowledge, was likely to occur at any time. The plaintiff said that, at the very least, a device for cutting off the motor, upon such collapses occurring, was a necessary safeguard in a reasonably efficient system. It was pointed out that, by the operation of one well-known device, so soon as the driver's hand was removed from the controls, the motor would cut out and brakes be applied so as to bring the vehicle to a stop. Such a device is in universal use throughout the electric railway system of Sydney, and is referred to as the "dead man's handle." By a second form of device which could, without great expense, have been adopted on the trams, the collapse of the driver would result in the motor alone being cut out, the device operating so that pressure normally exercised by the driver's hand would be removed if his hand were withdrawn from the controls.
The evidence showed that the latter of the two devices had been in use in Sydney during a period of two or three years prior to the war of 1914. The only two witnesses who had ever driven trams while this device was used were the witnesses Wills and Fenton-the former (now chief inspector) being called by the defendant, and the latter by the plaintiff. The reason or excuse suggested on behalf of the defendant for not continuing to employ the device was that, by requiring the driver to exert slight pressure on the controls, extra strain and possible inefficiency resulted. But this reason or excuse the jury were not bound to accept for several reasons; first, both witnesses repudiated the suggestion that their own driving was affected adversely by the device; and, second, it was probable that considerable time might be required to become used to the device.
The main body of the defendant's evidence was directed to showing that, while such a device was operating, other dangers might arise after the collapse of a driver, and, further, that the device was not shown to have been in use in any other tramways system. The latter contention found some favour in the Supreme Court, where it was suggested that no jury should be permitted to say that the ordinary methods commonly adopted by those in the same business as the defendant can constitute negligence on the defendant's part. But, as has been clearly pointed out, "the general practice itself may not conform to the standard of care required of a reasonably prudent man. In such a case it is not a good defence that the defendant acted in accordance with the general practice" ( Salmond (ed. Stallybrass ) on Torts , 9th ed. (1936), at p. 462). Moreover, it must not be forgotten that the principle just stated is likely to be of particular application in relation to tramway systems in large cities, owing to their probable replacement by motor transport. Accordingly, reference to present practice in other tram systems is necessarily of less significance. Further, it is admitted that a similar device is in operation in relation to one-man tram cars.
The argument that the risk of danger might be increased by using the device raises a question which was pre-eminently one for the jury's consideration. There is great and obvious danger to passengers and pedestrians alike whenever a heavy tramcar, possibly full of passengers, is allowed to career through the streets without any reasonable possibility of successful braking. Of course, the extent of the danger has to be balanced against other dangers said to result if the motor automatically cut out. But what dangers are really involved in the latter event? It was said that the tram might stop suddenly and be run down by an overtaking tram or other vehicle. But the device previously in use on the trams did not automatically apply a brake in such a manner that the tram stopped suddenly and not gradually. Further, any real possibility of collision from an overtaking vehicle during peak hour traffic is made extremely remote by the very slow speed of any such vehicle. Indeed, the risks referred to by the defendant's witnesses seem to be somewhat shadowy, and the jury may well have been sceptical of their theories.
Further, no satisfactory explanation (so the jury might think) was given as to why the device actually in use today in the Sydney electric system is appropriate or necessary in the train system but not in the tram system. A common-sense approach to the question would be: What purpose does such a device serve in the electric train system? Electric trains follow each other in Sydney, e.g., between Sydney and Parramatta, with very great frequency, so that there is always some theoretical risk of rear collision in the event of a sudden pulling up of the train upon a driver's collapse. But the device has been adopted because it is plain that the danger of rear collision is much less than the overwhelming danger resulting if a very heavy vehicle conveying passengers continues to run ahead with its motors in operation, but, owing to the driver having collapsed, without any reasonable possibility of being brought to a halt except by a collision with a vehicle ahead. The jury might consider that the reason why such a device is in use in the electric train system is that such system (unlike that of the trams) is abreast of modern safety methods, and because it is certain to remain a permanent feature of metropolitan transport.
In our view, the jury were not precluded from thinking that a reasonably efficient system of tram control would have included installation of a device which, on a driver's collapse, would automatically bring the tram to rest, or at least cut out the motor so as to make braking by the conductors reasonably easy. There is, therefore, no reason to suppose that the jury acted perversely or unreasonably in finding that there was negligence. Of course, it is a mistake to regard the findings of the jury as amounting to an order that the device must be installed, nor does the finding compel another jury to accept a similar view as to whether there was negligence.
One matter which should be mentioned is that to their verdict the jury added a rider that the defendant "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." The District Court judge regarded this rider as negativing the direct finding of negligence.
But, after the announcement of the rider, the following interrogation took place:
His Honour: You find there was negligence-you find the accident was the result of negligence, do you?
Juror: Yes.
His Honour: What do you say as to damages?
Juror: We find damages, PD200, including all medical expenses.
The jury thus reiterated the finding that the accident was the result of negligence. Further, a jury's rider should if possible be interpreted in such a way that it will not contradict the verdict to which it is subordinate ( Ward v Roy W. Sandford Ltd [F3] ). In the present case, we think that the jury's rider evidenced close attention on their part to the precise issues of the case. They clearly meant to negative any careless administration on the part of the defendant. The jury appreciated fully that the actual occurrence of damage from a failure to use a device automatically cutting out the motor would necessarily be infrequent, and the trams might gradually be replaced by another transport, so that it would not be improper for the commissioner to refrain from adopting the device, provided that he paid damages where damages resulted. The rider, so regarded, is quite consistent with the finding of negligence, and implies that, as Rich J. pointed out in argument, there was negligence vis a vis the plaintiff, but no carelessness in administration generally.
The respondent's counsel relied strongly upon the case of Earl of Shaftesbury v London and South Western Railway Co [F4] . But an examination of the case shows that it can have no application to the present case. It appeared that, in Earl of Shaftesbury v London and South Western Railway Co [F5] , there had been a jury action where negligence had been alleged in relation to the escape of sparks from an engine. The jury expressly refrained from finding negligence, and merely stated their opinion that, if a spark arrester had been in use, the danger would have been minimized. Thereupon, it was agreed by the parties to accept such opinion as established, but to leave the trial judge to draw such inferences from the facts as were not inconsistent with the jury's opinion. The trial judge himself considered the evidence, and entered a verdict for the defendant, relying a good deal upon certain expert opinions upon the subject before him. The Court of Appeal affirmed the verdict and judgment, negativing negligence, but also pointed out the absence of any jury's finding of negligence. The case has no bearing upon the present case, where there has been a specific finding by the jury of negligence.
On the other hand, the recent decision of the House of Lords in Manchester Corporation v Markland [F6] illustrates the principle that, in an action of negligence, it is not always required of a plaintiff to specify the precise form of precaution which a defendant should have taken in order to avoid the accident or injury. In that case, the bursting of a service pipe caused a pool of water to form. The pool remained on a road for three days, when a frost occurred causing the motor car to skid and kill a man. The plaintiff was not compelled to give a specification of the means which should have been adopted to ensure the early repair of bursts in mains, for, so far as the defendant was concerned, the outstanding fact was, as Lord Tomlin said, that "the matter was left to chance" [F7] . The facts of the present case show that the great danger to passengers and members of the public generally of injury following on the collapse of a driver at the controls of a tram was perfectly well known to the defendant, but against its occurrence no precautions were taken, so that, in a sense, "the matter was left to chance." The present plaintiff has not left the matter so much at large as was done in Markland's Case [F8] , but suggested two possible means by which injury and accident could reasonably have been avoided.
In our opinion, it is not right to say that the jury acted unreasonably in finding for the plaintiff. Not only was there evidence of negligence causing injury to the plaintiff, but the respondent has not succeeded in showing that, following the principles in Metropolitan Railway Co v Wright [F9] , the verdict should be set aside as one which a jury acting reasonably might not find.
The result is that the appeal should be allowed and the jury's finding restored.