ROACH V. AIRS; DAVIS V. AIRS

©. 12080/45

1, E Daw, Gor. Priat., Met

IN THE HIGH COURT OF AUSTRALIA

ATR Se

DAVIS.

ve

AIRS.

REASONS FOR JUDGMENT

Judgment delivered at_. SYDNEY.

ACI ve. _ AIRS

DAVIS ev AIRS

ORDER

Appeals dismissed with costs.

v ROACH AWD _ ATRS

DAVIS Vv. AIRS

ade "

JUDGNEN' DIXON C.J. WILLIAMS. J. FULLAGAR J. KITTO Je TAYLOR J.

ROACH AND ___AL.

DAVIS ve AIR:

DIXON C.J. FULLAGAR J. KITIO J.

ZUDGMENT TAYLOR Je

Appeals from orders dismissing motions for new trials.

The appellants each brought actions against the respondent to recover damages in respect of injuries and loss sustained by them respectively as the result of the respondent's negligence in the control and management of a motor car near Newcastle on the 14th September, 1949, Both appellants were passengers in a car of which the respondent was the owner and, at the relevant time, the driver.

The two actions were heard together and both appellants gave evidence of the circumstances in which their injuries were caused, and also of the circumstances in which they came to be passengers in the respondent's car. The respondent himself was not called as a witness at the trial and in the result the jury returned a verdict for the defendant in each action.

It was not contested on the hearing that the appellant's injuries were caused in the manner deposed to by them, but it was claimed on the respondent's behalf that at, and before the time, of the occurrence he was so affected by intoxicating liquor that he was incapable of managing a motor car, that his condition was known to both appellants and that they fully appreciated the risks involved at the time they accepted invitations to become passengerse In these circumstances, it was claimed, they were not entitled

to succeed in their respective actions.

There has been some difference of opinion concerning the legal principle upon which the rights of a passenger in such circumstances should be determined (see the Insurance Commissioner ve. Joyce, 77 0.L.R. 39, Roggenkamp ve Bennett, 80 C.L.R. 292 and Dann ve Hamilton, 1939, 1 K.B.509) but in these cases it is unnecessary, to attempt to reconcile the divergent views and we should not attempt an enunciation of any general principle of law applicable to all cases of this kind oe for the test selected by the trial judge as appropriate in his directions to the jury was put before them without objection and no objection to these directions was taken either in the Full Court of the Supreme Court or in this Court. In substance, the learned trial judge told the jury that if the "defendant satisfied you on the balance of probabilities that .... he was through drink incepable of driving, that they (the appellants) knew it, fully appreciated it, and took the risk, then the plaintiff's claims fail altogether and there will be no damages". There can be no doubt that unless the jury saw fit to resolve this issue in favour of the respondent the appellants must have succeeded in their actions.