Government Insurance Office (NSW) v Fredrichberg [1968] HCA 54

High Court of Australia Barwick C.J. Kitto, Menzies, Windeyer and Owen JJ. Government Insurance Office (NSW) v Fredrichberg [1968] HCA 54

ORDER Appeal allowed with costs. Judgment and order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 30 Barwick C.J.

The appellant is the authorized insurer of the third party liability under the Motor Vehicles (Third Party Insurance) Act, 1942-1965 N.S.W. of one Hannon who died in an impact between his car and a semi-trailer upon the Hume Highway, near Gunning, in New South Wales. A verdict was returned for the defendant (the now appellant) in an action brought against it by virtue of the provisions of s. 15 (2) of that Act by the respondent under the Compensation to Relatives Act, 1897-1953 N.S.W. in respect of the death of her husband, who was a passenger in that car at the time of that collision. The Supreme Court (Court of Appeal Division) upon the respondent's motion set aside that verdict and ordered a new trial of the action. This decision was taken upon two grounds which are not completely independent of each other. The first ground was that the trial judge in summing up did not expressly tell the jury that the case before them was a case to which, as it was said, the "maxim or rule of res ipsa loquitur" applied and the second ground was that the trial judge had unduly restricted the area of the respondent's counsel's address to the jury in that he did not allow counsel to address them upon that "doctrine" and upon its relation to the facts of the case.

The respondent's husband was one of a number of people travelling along the Hume Highway from Melbourne to Sydney by night in the car. They had stopped to drink hard liquor at one point along the way and they had run into fog not long before the accident and in any case the length of the journey could be said to have induced fatigue which called for a halt to rest. Near Gunning on the Southern Highlands of New South Wales the car was being driven upon its own side of the pavement where the road curved to the car's left when an articulated vehicle approached from the opposite direction. It was said in evidence that the car suddenly without warning or apparent cause swerved to its right bringing itself on to its wrong side of the road and that the truck at about the same time veered to its right. The near side of the car came into contact with the nearside of the truck, the impact apparently taking place at or near a petrol tank on the truck, causing the tank to burst and its contents to ignite. In the result, some of the occupants of the car were not merely killed but incinerated: these included Hannon, who was said to be driving the car at the time, and the respondent's husband. A small car was following so close behind the car involved in the collision that it also collided with the truck and was in turn destroyed by fire. The evidence as to the circumstances of the collision was given by the driver of the truck and by the driver of the small car. Those occupants of the car who survived were asleep at the time of the impact and unable to speak of what had happened. There was no direct evidence as to who was driving the car at the time of its impact with the truck but there was evidence which, if it were accepted, would support the view that Hannon was then driving. It was possible from the evidence to take either the view that the movement of the car from its correct to its incorrect side of the road was caused by an antecedent movement of the truck across the road or the view that the movement of the truck was consequential upon the sudden swerve of the car across the road: and it was possible that neither possibility preponderated over the other.