IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT W, M, Houston, Gort, Prat, Metb, Ke * > we We think thie appeal should be dississed. The eirewistances, no doubt, are unusual. The view I take, in whieh I think ay brethren eoneur, fe that it is the otreuastances that detersine the measure as distinguished from the existence of the duty. The parties vers engaged in photographing eaus and, es I think, both parties by the time the accident happened contemplated photographing then from a moving vehicle; naturally enough, the eaus they were photographing would he moving too. The plaintiff, who was not a young man, was perched an a very insesure position. Yor the driver perhaps there were two opposing considerations. One vas the plaintiff's safety, and the ether was enabling hin te get a good photograph of the ems. In these cireumstances, the defendant was imder a duty to take reasonable care, having regard to the ciremstances, for the plaintiff's safety, taking into accomt the fact that, as the defendant knew, the plaintiff wae in an insecure position but knew what the enterprise was. When you look at the evidenee, you find that the crucial episode or event ts described by the plaintiff in these words: "All of eo sudden, I was following the eau, and I got the eau and the ornament' (that is, the ernanent on the bonnet) "and the emu together and all of a sudden [ felt a terrifie swing, sousthing foreing ue out to the right of the car." In cross- exemination the plaintiff gave thia evidencer "Q. By that I take it you meant some impetus moving you to the right; something impelied you to go to the right? 4d. Yes. A sort of an irresistible force, forcing me te the right. qQ think your counsel used the word 'pressure'; you felt some pressure | | 2. impeliing you to the right? & Yea, what appeared to me mucthing like a centrifugal force, forcing me ont. q That ia what you meant te convey ts it? a. You. Qe Then I think you vent on to say that you doen't remexber any more; you fell out of the track? I think that is what was said? Ae Yous I get the emu; I can distinetly resember getting the ornenent on the ear, but I do not remanber anything after that." The jury were entitled to accept that evidence, and if they d4i4 accept it, they might reazonably take the view that the defendant had taken « ecurse, forgetful of the plaintiff's position or umeindful ef it, which was negligent. The jury must be taken to have negatived eontritutoery negligence. as @ the defemes of yolenti non fit, in my view, that dees not arise es an aiswer to the negligence I have Geserided. Wo doubt the plaintiff aammed the ordinary risks arising out ef the general ¢ireustances of the expedition amd the topic might be discussed to that extent. The plaintiff complained thet a safe road or track was net tekem. But in the situation they eceupied the duty of care arising in the circumstences was that whieh J have atteupted te deserihe. Vor these reasons I think the appeal should be Gieui seed. The appeal is therefore dississed, vith costs.