Alford v Magee [1952] HCA 3

Cons Appl Cons Appl ete. : larch H Ay Miers, fone Plan, 40 Meares ER OMlnaw ee 1 ea De 496 [sive

tramare ae" Kee Ree te [ae Foll Pe a Hom, ausmn* iin. 85 CLR] rimR 444 rimR 459 437 RY Skerritt EO uetews . ACamk 10 GARE [HIGH COURT OF AUSTRALIA.] | ALFORD . ' ' : 3 ' é F APPELLANT ; PLAINTIFF, | AND | MAGEE. < : ' ' ' d F RESPONDENT. DEFENDANT, ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

In the law of negligence there is no rule of law which can be properly 1951-1952.

MELBOURNE, The rule that contributory negligence is a good defence to an action of 951,

negligence is best stated as a general rule which, on the facts of particular ge 5, 8.10;

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Negligence—Contributory negligence—* Last opportunity ""—Direction to jury. H.C. or A. stated in terms of " last opportunity."

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cases, may be subject to a qualification; but the qualification cannot be 1952, expressed adequately in any universal formula. It is not practicable to state yfarch 5, it in terms more precise than those to be found in Tuff v. Warman, (1858) :

5 C.B. N.S. 578, at p. 585 [141 E.R. 231, at p. 236], and Radley v. London Wa,

& North-Western Railway Oo., (1876) 1 App. Cas. 754, at p. 759. Tul eee

Kitto JJ.

No rule can be laid down as to the cases, or classes of case, in which it is proper for a judge to put the qualification to a jury, whether in terms of last opportunity or other terms appropriate to the particular case; but a judge should not put a qualification to a jury unless he feels able to explain exactly how the qualification can be fairly and reasonably applied by the jury to a view of the facts which it is open to the jury to entertain.

In considering whether last opportunity may be an appropriate test to put to a jury on the facts of a particular case, it must be borne in mind that what is in question is an opportunity on the part of the defendant ; and it can be relevant only if the failure of the defendant to take advantage of an opportunity amounts to a failure to exercise reasonable care.