McLean v Tedman [1984] HCA 60

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ. McLean v Tedman [1984] HCA 60

ORDER Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Queensland set aside, and in lieu thereof order that the appeals to that Court by the first respondent and the second respondent be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 16 Gibbs C.J.

The facts of this case are set out in the judgment of the other members of the Court, which I have had the advantage of reading. I would join them in holding that the second respondent, Brambles Holdings Ltd., was negligent in failing to provide a safe system of work for the appellant, and am in general agreement with the reasons which they have given for reaching that conclusion. I need add nothing on that aspect of the appeal.

I am, however, unable to share the view that the conduct of the appellant did not amount to contributory negligence. The appellant came out on to the roadway from behind the stationary garbage collection truck and had run for about 5 metres before he was struck by the first respondent's vehicle, which was travelling on its correct side of the road. It was dark and there was evidence that the headlights of the first respondent's vehicle could have been observed by a person in the position of the appellant from a distance of about 200 yards away. There was nothing else on the roadway that might have distracted the appellant's attention. The appellant apparently failed to see the first respondent's vehicle until he was almost in front of its headlights; had he seen it earlier, he could have stopped or slowed his pace and allowed it to pass in front of him. In my opinion the only possible conclusion is that the appellant failed to keep a proper look out when crossing the roadway.