Jones v Dunkel [1959] HCA 8

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Jones v Dunkel [1959] HCA 8

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales set aside. In lieu thereof order that the appeal to the said Court be allowed with costs, that the verdict be set aside and that a new trial be ordered. Costs of the former trial to abide the event.

Cur. adv. vult.

The following written judgments were delivered:—

Mar. 3, 1959 Dixon C.J.

In my opinion the evidence adduced for the plaintiff at the trial of this action was insufficient to enable the jury, had they chosen to do so, to find the facts necessary to support the cause of action upon which she sued. No evidence was called on the part of the defendants but, as I think, they were entitled to a verdict by direction.

The cause of action was negligence causing the death of the plaintiff's husband and the action was brought under the Compensation to Relatives Act 1897-1946 N.S.W.. The deceased was killed on 15th January 1953 on the Hume Highway at a place called Little Hanging Rock about twelve miles south of Berrima. He was driving an International truck northwards towards Sydney. He was alone in the truck. It was after dark, it had been raining and the road was wet. The road wound up through wooded hills. At the material point the gradient was about one in twelve. In the vicinity of a curve turning west, that is to say to the left of the deceased as he had been travelling, his truck was found at a standstill at the side of the road with the deceased dead or dying. His body was pitched over from the driver's seat to the left of the cabin with his right leg caught between the steering column and the front of the cabin which had been crushed in on the off-side. The near-side was against the bank of the low cutting forming the inside of the curve of the road. The vehicle was at an angle with the direction of the road, the front wheels being on the earthen shoulder and the back wheels, or at all events the off-back wheel, being on the bitumen. Twenty paces to the rear of the truck and facing in the same direction was a diesel truck. It stood on the same side of the road more or less on the earthen shoulder but not at an angle with the direction of the road. The diesel truck had been driven by the defendant Hegedus, an employee of the defendant Dunkel. Hegedus was not killed but he was hurt. He had been travelling in the opposite direction. The vehicles were discovered in the position described by the driver of a motor vehicle that had been following the deceased's truck at a distance of about a quarter of a mile. He and the deceased had been driving all day but they had stopped for some food at a place only four or five miles back down the road. In leaving it the deceased had preceded him but he had from time to time seen the lights of the truck. He said that he was driving at not more than twenty-five miles per hour; so it might be inferred that he reached the two stationary vehicles not more than a minute after they collided. Another motorist came on the scene and ambulance and police were summoned. The information given by the evidence as to what occurred at the scene of the accident is both vague and meagre. All that is said about Hegedus is that he was taken away in the ambulance. But a police officer said he saw what appeared to be fresh blood stains down the embankment on the other side of the road, that is on the easterly side. He was asked "Apparently from Hegedus?" and answered "Quite likely". No marks of tyres were seen except two short marks of the diesel truck's tyres where it had apparently rolled or slipped back after stopping. There was some information about the road and more about the condition of the vehicles. On the outer side of the road were white posts. The width of the road from them to the bank or low cutting was estimated at twenty-eight feet. The bitumen was twenty feet wide. The trucks were estimated to be seven or eight feet wide. The road was banked at the curve, the rise from the inner to the outer side being about one in ten. The diesel truck was, according to a police constable, badly damaged across the front and the nearside door had been "torn off" and was missing. It was found down the embankment off the eastern side of the roadway. The International truck was damaged on the off side. The mudguard of the front wheel was torn away and pushed back against the off-side door. The windscreen was broken and the cabin and the steering wheel pushed back towards the front seat. Three days later in hospital Hegedus made a statement to a police constable which was reduced to writing. He said that he was driving his truck empty to Marulan to load limestone. His statement continued: "I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery." From this it seems certain that the diesel truck must have collided with the International truck as they travelled in opposite directions. The diesel truck must have turned completely round. Its near-side door must have been forced off in the process but how that could happen it is difficult to understand. Even more difficult to account for is the position of the blood down the embankment. However, the foregoing is a sufficient summary of the evidentiary facts that appeared. That, in effect, was how the case was left. The defendants' counsel at the conclusion of the plaintiff's case sought a directed verdict and for the purpose, in accordance with the prevailing practice in New South Wales, announced that he would not call evidence. The learned judge refused his application but the jury found a verdict for the defendants. An application to the Full Court of the Supreme Court for a new trial failed. In the view I take the grounds upon which the plaintiff sought a new trial are immaterial. I cannot see how a jury might reasonably infer that her husband was killed by the negligence of Hegedus. The accident is simply left unexplained. No doubt the conclusion is reasonably open that at the moment of actual impact the right side of the forward part of the International truck and the front of the diesel truck were in violent contact. The inference is also open that the diesel truck was swung round to face the other way. Strange as such an effect of the forces may seem, perhaps it might also be reasonably concluded that the left-hand door flew open and was torn off as the truck went round, notwithstanding the absence of evidence of marks upon any of the posts at the edge of the road. But the all important question of the cause of the vehicles hitting one another is left unresolved by the circumstantial evidence. It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. [1] which is referred to in Holloway v. McFeeters [2] , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." [3] But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.