Mercer v Commissioner for Road Transport and Tramways (NSW)

56 CLR 580

---

(Judgment by: Latham CJ) Court:

Judges:
Latham CJRich J
Dixon 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

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

Sydney

---

Judgment by:
Latham CJ

The plaintiff was injured in a tram collision and sued the defendant for damages for negligence. After evidence had been given an application was made to the learned District Court judge to direct a verdict for the defendant on the ground that there was no evidence of negligence to go to the jury. The learned judge postponed the consideration of the application and put two questions to the jury. These questions were:

(1) Was the Commissioner for Road Transport and Tramways guilty of negligence in not providing a safety device as the depressing handle? (2) If the defendant was so guilty did the injury to the plaintiff result therefrom and what damages would reasonably compensate the plaintiff for such injury?

The jury answered both questions in the affirmative and assessed damages at PD200. The jury added the following rider to their verdict: "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." The learned judge then decided that there was no evidence of negligence to go to the jury and entered judgment for the defendant. The plaintiff appealed to the Full Court, which dismissed his appeal. Special leave to appeal to this court was granted.

The action was for damages for negligence. The defendant manages and controls the tramway system in Sydney. The plaintiff, who is a blind man, was travelling in the leading tram of two electric trams coupled together. The coupled trams got out of control and crashed into the rear of another tram and the plaintiff received injuries, in respect of which he has taken these proceedings. The trams were under the management and control of the defendant and the plaintiff therefore proved a prima facie case of negligence. The defence to the claim was inevitable accident. It was proved by the defendant that the driver of the leading tram suddenly became unconscious without any default on his part or on the part of the defendant. The defendant proved that the trams were equipped with brakes which were applied as promptly as possible by the conductors. It was not suggested that the brakes were inefficient. Inevitable accident as a defence in law means an accident which could not have been prevented by any precautions which the defendant could reasonably have been expected to take.

The plaintiff sought to prove that the accident would not have happened if the defendant had taken a certain precaution. The precaution suggested was the equipment of trams with what is known as "the dead man's handle" or some similar apparatus. The dead man's handle is a device which the driver of a tram has to hold in position in order to maintain the current to the motors which drive the tram. If the driver faints or dies, the handle springs to a position which cuts off the current and applies the brakes, thus bringing the tram to a stop.

The defendant's witnesses included the general manager of the Brisbane tramways, who had recently inspected eighteen systems in Great Britain, the chief designing engineer in the chief electrical branch of the Railways Department of New South Wales, the superintendent of running sheds of the Melbourne tramway system, the rolling-stock superintendent of tramways in the New South Wales Department of Road Transport and Tramways and a skilled electrical engineer. These witnesses gave evidence that the Sydney trams were up to date in their equipment and that the provision for stopping trams was in accordance with general and possibly universal practice in the case of trams carrying both a driver and a conductor. They all agreed in stating that they had no knowledge of any two-man trams which anywhere employed the device of the dead man's handle or anything like it, and they all agreed in giving reasons for their opinion that the use of such a device would increase and not diminish danger to passengers and to the public. They explained the differences between on the one hand, electric trains and one-man trams (where such a device is generally in use) and on the other hand, two-man trams. In the case of the electric railway the driver has nothing to do but to drive the train, generally upon a fenced track with no intersecting roads, with no other traffic to be avoided, and with no responsibility in relation to passengers getting on and off the train. One-man trams are used only where traffic is light and not where trams follow one another at very short intervals. The evidence was to the effect that in the case of trams running in heavy traffic where the driver had to drive the tram in relation to other trams in front, where he had to look out for all the traffic of the street, and where he was also responsible to some extent for seeing that passengers got on and off the tram safely, the strain of continually holding a handle in position impaired efficiency in the case of drivers as a class and tended rather to provoke than to prevent accidents. A device of the kind mentioned was tried in New South Wales for about three years in 1908-1911 and it was rejected, not on the grounds of expense, but because it was not safe. It was also tried in Victoria where it was also rejected. It was found that it tended to bring about rear collisions. The trial was made about six years ago on five cars, and in three years there were four rear collisions with these five cars. The collisions were due to the driver inadvertently releasing the pressure on the handle so that the dead man's control was applied without any intention and not at a stopping place so that a following car collided with the suddenly stopped car preceding it. Witnesses for the defendant also said that the dead man's handle and similar devices were unsafe because some drivers objected to the strain which they imposed upon their attention, and accordingly prevented the safety operation of the device by strapping it down or adopting some other means to prevent it working.

Against this volume of evidence the plaintiff called one witness who had driven a car with a device of this character during the period of experimentation in New South Wales. He retired from the tramway service about seventeen years ago. This witness said that he had been able to drive the car without difficulty, that it was tiresome at first, but that it did not impair his efficiency or impose any strain on him. This witness, however, admitted that on one occasion his hand "came off" the button on the handle which he should have held down continuously, that the tram stopped and then ran backwards and got on to some points and got into trouble. He was on this occasion driving into the sheds. It may be observed that if the accident had happened on a road, there might have been serious injury to occupants of any closely following vehicle. Another wintness, who was called for the defendant, admitted that he personally was able to drive the car satisfactorily with the dead man's handle, although his opinion his opinion was that it was a dangerous device because it impaired efficiency without giving any appreciable security. In cross-examination of the defendant's witnesses, counsel for plaintiff made suggestions with respect to a driving handle with some form of spring return which, when released, would operate to cut off the current, without putting on the brakes, as in the case of the dead man's handle strictly so called, but no evidence was given by any witness to support the suggestions made in cross-examination.

Against this volume of evidence for the defendant the evidence for the plaintiff is very slight indeed. There is no evidence to contradict or even to qualify the considered opinions of responsible officers who have actually experimented with the only device suggested which has, according to the evidence, been used in practice. There is no evidence to support the conclusion that any of these devices are used anywhere in the world on "two-man" trams running in heavy traffic.

The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent. A jury is entitled, for example, on sufficient evidence, to find that a proper regard for the safety of other people would require the adoption of some precaution which has only recently been discovered. But a jury is entitled so to find only if there is actual evidence to that effect. A jury cannot disregard the evidence and find, merely on its own motion, that some precaution which would have prevented injury in a particular case ought to have been adopted. See the cases cited in Salmond on Torts , 9th ed. (1936), pp. 462, 463. An extreme example will illustrate the proposition. If all trams travelled at only four miles an hour there would be few accidents, but a jury is not entitled to determine a case upon such an opinion, even though, in the particular circumstances of a given case, the adoption of such a speed limit would have prevented any accident occurring, and though, it may be added, in some circumstances it would be negligent to put a tram into motion at all. The jury in this case added a rider stating that in their opinion "the accident could have been avoided had the device been fitted." The acceptance of this opinion does not involve any conclusion as to negligence. It leaves untouched the question whether, in all the circumstances, the defendant took the care which would be shown by a reasonably prudent man.

After careful consideration I have come to the conclusion that this is a case in which the verdict is against the overwhelmingly preponderant weight of evidence. I would not have reached this conclusion had it not been for the fact that the evidence for the plaintiff does not at all meet the evidence called on behalf of the defendant but only shows that two particular men found themselves able to drive a tram which was equipped with a device of the character suggested on behalf of the plaintiff. Such evidence is so slight that it cannot justify the jury in rejecting the reasoned evidence of responsible expert witnesses (some of them quite unconnected with the defendant commissioner) whose authority and veracity were not in any way impugned. In this case the evidence of the witnesses for the defendant is not merely evidence of opinion delivered as authoritative. It is evidence supported by intelligible reasons based upon actual experience. The evidence in support of the plaintiff, if accepted in full, shows no more than that two men used the proposed device without difficulty. One of these men, a tramway officer of great experience, was most definite in his view that it was a dangerous apparatus if used by drivers generally. The other witness actually had a mishap while using the device, and it was only by good fortune that no one was injured.

For these reasons the learned District Court judge was right in setting the verdict aside as against the evidence and in ordering judgment to be entered for the defendant. In my opinion, therefore, the appeal from the judgment of the Full Court should be dismissed.