Kain & Shelton Ltd v Virgo [1956] HCA 47

High Court of Australia Dixon C.J. Williams, Fullagar and Taylor JJ. Kain & Shelton Ltd v Virgo [1956] HCA 47

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 17 Dixon C.J., Williams and Taylor JJ.

This is an appeal in an action brought in the Supreme Court of South Australia following an accident which occurred at about 9.30 p.m. on 30th April 1954 on the Duke's Highway, the main road from Adelaide to Bordertown and thence to Melbourne. The accident occurred nine miles beyond Keith on a level stretch of the road where the surface consisted of about twenty feet of bitumen in the centre with loose gravel shoulders fifteen feet in width on the northern and twelve feet on the southern side. At about that time the plaintiff, now the respondent, was driving a Plymouth car from Keith in a southeasterly direction, that is in the direction of Bordertown, at about 40 m.p.h. when the Plymouth collided with the offside rear of the tray of a stationary semi-trailer which had its nearside tyres and most of its width over the northern shoulder of the road but still had its offside tyres on the bitumen causing its tray to project on its offside about two feet nine inches over the bitumen. The semi-trailer was being driven by Kenny, one of the defendants, and was owned by the defendant company. These two defendants are now the appellants. There was a third defendant, named Cole, the driver of a Jaguar car, the glare from the headlights of which was alleged to be a cause of the accident. But Mayo J., the learned trial judge, dismissed the action against this defendant and therefrom there is no appeal. The plaintiff's wife was killed in the accident and the action is one for damages under the provisions of Pt. II of the Wrongs Act 1936-1951 S.A.. His Honour held that the accident was wholly caused by the negligence of the defendant Kenny in not having properly illuminated lights on the rear of the semi-trailer.