ALLAN V. MANSFIELD

ORIGINAT, ,

'IN THE HIGH COURT OF AUSTRALIA |

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REASONS FOR JUDGMENT

Judgment delivered at... S¥Aney.... on. Thursday,..20th. June..1.957.

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W. M. Houston, Govt. Print., Melb.

4978/35

ALLAN ve MANSFIELD

ORDER

Appeal dismissed with costs

ALLAN v. MANSFIELD

JUDGMENT DIXON C.J,

ALLAN Ve MANSFIELD

I have had the advantage of reading the judgment prepared by Kitto J. and agree in it.

JUDGMENT.

ALLAN __v.___ MANSFIELD

ALLAN MANSFIE.

This case seems to me, as it seemed to Owen J., to be a border-line case, In the end, however, I do not feel able to say that the learned trial judge was wrong in leaving the case to the jury, and I agree generally with the judgment of Kitto J,, which I have had the advantage of reading. There are one or two minor points, on which I would be inclined to differ, but these are of no importance.

The case is unsatisfactory from one point of view, because, as Brereton J. observed, there is a "strong case of contributory negligence", and contributory negligence still affords in New South Wales a complete answer to such a claim as that of the plaintiff. The appellant, however, for reasons which are obvious enough, could not rely on contributory negligence on appeal, and the only question before the Full Court and before this Court has been whether there was any evidence on which it was open to the jury to find negligence on the part of the appellant.

Although there is, of course, no rule of lew on the subject, one cannot help being pressed by the view that, as a matter of commonsense and accepted practice, a person driving straight ahead along a road at a moderate speed is entitled to assume that persons driving along an intersecting road will not enter the intersection without making sure that the way is clear. But I think it was open to the jury to say that the appellant should have seen the respondent before he did, and that, if he had seen him as soon as he ought to have seen him, either the collision would have been avoided or it would not have caused serious injury to the respondent. They might have been helped to such a conclusion by the appellant's not giving evidence, That is certainly not the view which I should