Nominal Defendant v Haslbauer [1967] HCA 14

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Owen JJ. Nominal Defendant v Haslbauer [1967] HCA 14

ORDER Appeal allowed with costs, such costs not to include the costs of the preparation of the record. Order of the Supreme Court set aside and in lieu thereof order that the appeal to that Court be allowed with costs, verdict and judgment in the action set aside and that a new trial be had. Costs of the first trial to abide the event of the new trial.

Cur. adv. vult.

The following written judgments were delivered:—

May 11 Barwick C.J.

The plaintiff at the time of the incident giving rise to her action in the Supreme Court of New South Wales was a passenger in a Morris Oxford utility when a following vehicle, a Holden utility, ran into the Morris Oxford whilst it was stationary. Apparently the Morris Oxford had stopped at a pedestrian crossing to permit pedestrians to cross the road. The Holden utility had been following the Morris Oxford in the traffic on a busy main highway about a car's length behind and at a speed of which the only direct evidence was furnished by the driver of the Holden who put it at about ten to fifteen miles per hour.

The damage to the two vehicles was slight. The driver of the Morris described the impact as follows: "I noticed that my car started to move and then I felt a bump from the back and I realized that my car was not moving from its own motor but from the impact on the back. Q. What did you do? A. I put my foot on the clutch and on the brake. Q. You stopped? A. Stopped."

Another passenger in the Morris, however, said that the impact was more severe and that the Morris was pushed forward some six or seven feet. A constable of police who came on the scene inspected the Holden after its driver had informed him that its brakes had failed. He found that the foot-brake " went to the floor There was no foot-brake It was not working. It just went to the floor."