Gorringe v Transport Commission (Tas) [1950] HCA 6

High Court of Australia Latham C.J. Dixon and Fullagar JJ. Gorringe v Transport Commission (Tas) [1950] HCA 6

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 26 Latham C.J.

At about 3 a.m. on 5th August 1947 one Byron Hart and a companion were driving a motor truck with a trailer along a public highway between Hamilton and Ouse in Tasmania. It was a stormy night and heavy rain was falling. At a place just beyond a curve in the road a natural water course ran under through a culvert. The culvert and the road above it had fallen in, leaving a large hole in the middle of the road about fourteen feet by six feet and nine feet deep. The water was banked up on the upstream side and was about six feet deep in the hole. The culvert was not in its then condition capable of taking the flow of the stream. The driver had no opportunity of avoiding the hole and the truck went into it and caught fire. The driver and his companion were killed and the truck and trailer and the loading were destroyed. The owner of the truck, Donald Gorringe, sued the Transport Commission, which was the road authority, for damages for negligence, claiming in respect of the loss of the truck and its trailer, the loss of the goods carried by the truck and compensation for £1,000 paid as workers' compensation to Hart's widow.

The action was tried before Clark J. and a jury. The learned judge directed the jury that the commission as a highway authority was not liable for non-feasance, that the hole in the road was due to the fact that the commission had not exercised the power which it possessed to repair the road, that such a failure to exercise a power was non-feasance, that there was no evidence of misfeasance; and the jury, in accordance with the direction of the learned judge, found for the defendant. The Full Court dismissed an application for a new trial and the plaintiff appeals to this Court.