Mitchell v Clancy [1960] HCA 74

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Menzies JJ. Mitchell v Clancy [1960] HCA 74

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 18 Dixon C.J.

The facts upon which this appeal turns are simple enough and nothing but a collision of a motor car with a bicycle is involved; but the case has found its way up to this Court and it has moreover caused some difference of judicial opinion. The difference of judicial opinion can be traced, as I think, to the fact that the case concerns three matters upon which the law has been unable, or at all events has failed, to furnish any tests or standards of liability except of the most indefinite not to say vague description. For the case is concerned first with the existence of contributory negligence as a cause of the injury, second with the proportion by which the damages to be recovered by the plaintiff should be reduced on account of the contributory negligence supposed and third with the adequacy of the damages assessed. The case has found its way into this Court because the Full Court of the Supreme Court decided that there was no sufficient ground for increasing the damages assessed by the primary judge but that they should be reduced by thirty-five per cent on account of contributory negligence. The claim on the writ had been for £5,000 damages but £2,516 had been awarded and this had been reduced by the Full Court to £1,637. The plaintiff regarded the decision or order of the Full Court as accordingly given in respect of a sum at issue amounting to more than £1,500 or involving a claim or question respecting a civil right of that amount or value.

I have said the facts are simple; they admit of a very short statement. The plaintiff was riding a bicycle home from work in a Brisbane suburb about half past four in the afternoon of a wet summer's day. He was in a main thoroughfare to the city called Fairfield Road. He reached an intersection with a road called Ashby Street. There was no traffic about except the defendant's car which the plaintiff could see on his right in Ashby Street moving slowly towards the intersection.