KERR & SWANSTON V. KELLER

IN THE HIGH COURT OF AUSTRALIA

KERR & SWANSTON

ee ERR

REASONS FOR JUDGMENT

Judgment delivered at... Sydney iday, 10th September, 1954.

4.4 Gowiey, Gort. Print., Melb.

7103/51

JUDGMENT

KERR AND ANOR

KELLER

owt

KERR AND ANOR

v. KELLER DIXON C.J. JUDGMENT Emo.

On 3rd February 1952 a collision occurred between a@ Riley car owned by the appellant Kerr and driven by the appellant Swanston and a Ford Prefect car owned and driven by the respondent Keller. The appellants brought an action against the respondent in the Supreme Court of Queensland, alleging that the collision was caused by negligence on his part and claiming damages. Keller counterclaimed, attributing the accident to negligence on the part of Swanston. The action was tried by Stanley J., who found that "the accident occurred through the contemporaneous and continuing negligence of both drivers each of whom could and should have been master of the situation and lost that opportunity by reason of his own negligence". As the Law Reform (fortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 was not in force at the date of the accident, the finding meant that the claim and counterclaim both failed as between Swanston and Keller; and as it was admitted on the pleadings that Swanston at the time of the collision was driving the Riley car as the agent of Kerr, who in fact was a passenger in the front seat of the car, the finding meant that the claim and counterclaim failed also as between Kerr and Keller. Accordingly judgment was entered dismissing both claim and counterclaim. From that judgment Kerr and Swanston now appeal.

The collision took place shortly before mid-day, on a highway leading from Lowood to Gatton, and about a mile

and a half from Lowood. Swanston, who was a friend of Kerr's

and frequently drove the Riley for him, had driven Kerr and his son on this occasion from Nambour through Lowood, and was heading for Gatton where Kerr intended to put his son to school. Keller, in the Prefect, with a young lady as passenger, was returning home to Lowood after having visited Glenore Grove, some twelve miles out in the direction of Gatton. The cars collided on a straight portion of the highway which extended from the crest of a hill at its Lowood end to a bend veering sharply to the left at the Gatton end. There was a slight downward grade over the whole distance. Beyond the bend, the road descended more steeply.