Teubner v Humble [1963] HCA 11

High Court of Australia Dixon C.J. McTiernan, Windeyer and Owen JJ. Teubner v Humble [1963] HCA 11

ORDER Appeal allowed with costs. Cross-appeal dismissed with costs. Order that the judgment of the Supreme Court of South Australia be discharged and in lieu thereof find that the total damages which would have been recoverable if the plaintiff had not been at fault were the sum of £24,848 13s. 0d.; and adjudge that the plaintiff recover from the defendant the sum of £16,565 15s. 4d. Case remitted to the Supreme Court to determine how the costs of the action, including the two trials, in that Court should be borne.

Cur. adv. vult.

The following written judgments were delivered:—

1963, Apr. 10 Dixon C.J.

This appeal is from a judgment of the Supreme Court of South Australia. It concerns an award of damages in respect of injuries suffered by the plaintiff in an accident which occurred at about 11.30 p.m. on 12th May 1960.

The case comes to us in an unusual form. A trial of the action took place before the late Brazel J., beginning on 16th August 1961. His Honour reserved judgment but unfortunately died, not having delivered judgment. The action was then put down for retrial before Chamberlain J. from whose judgment this appeal comes. The parties agreed that the evidence should not be recalled and contented themselves with putting the transcript of the evidence taken before Brazel J. before Chamberlain J. His Honour therefore did not see the witnesses but decided the case on the transcript of the evidence. A further difficulty in the case is that the plaintiff's injuries were of such a character that at neither trial was he capable of giving evidence and his account of the accident has not been placed before the Courts.

The circumstances of the accident, too, are unusual. The plaintiff was a senior photographer, indeed it is said that he was the head photographer, for the Adelaide newspaper called "The News". On the day of the accident, namely 12th May 1960, a violent storm occurred in Adelaide and the plaintiff was sent late that day to take pictures for his newspaper of the difficulties and devastation caused by the storm, particularly along the coast. For that purpose at about 10 p.m. he took a taxicab from North Terrace and drove to Largs Bay by way of Port Adelaide. On his journey back he saw a sheet of water lying on the road through which motor traffic was ploughing. The plaintiff seems to have thought that this scene would provide him with material for his newspaper, the taxi was stopped and he took photographs. The sheet of water is described as lying on the road in Shierlaw Terrace near Hindmarsh Bridge. The taxi was pulled up on the other side of the road from the sheet of water. It parked on the eastern side, near the corner of Winwood Street which runs west. Shierlaw Terrace seems to be a chain wide and carries four lanes of traffic. The plaintiff occupied somewhat over a quarter of an hour in taking photographs and then went to cross back to the taxi. The evidence appears to show that it was raining though not as heavily as it had been; the street lights ought to have been sufficient to show up the plaintiff. However, in crossing the street the plaintiff was struck by the defendant's car.