Chapman v Hearse [1961] HCA 46

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Chapman v Hearse [1961] HCA 46

ORDER Appeal and cross-appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 8 Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.

In September 1958 a collision occurred near Adelaide between two vehicles one of which was driven by the appellant Chapman and the other by one Emery, who is not a party to these proceedings. The collision occurred at a point where Balcombe Avenue joins Tapley's Hill Road on the eastern side. Both vehicles were travelling along Tapley's Hill Road towards the north and that which Emery was driving was the leading car. Approaching the Balcombe Avenue junction Emery slowed down and indicated by a signal that he was about to turn to the right. As he was turning Chapman's car struck the near-side rear corner of Emery's car with the result that it overturned in the mouth of Balcombe Avenue. Apparently the door of Chapman's car swung open and he was deposited on the road whilst the car itself veered off to the left and came to rest on an adjacent golf course after breaking through a fence. After being thrown from his car Chapman remained unconscious on the roadway lying lengthwise along the road and about three feet to the west of the centre line. At the time of or almost immediately after the accident Dr. Cherry drove his car from the near-by golf course entrance. He stopped his vehicle and went to Chapman's assistance. At about the same time two other vehicles arrived at the scene of the accident from the north. The drivers of these cars, Simmons and Nolte, each saw Chapman lying on the road and stopped their cars a little further on. They both commenced to go to Chapman's assistance but they observed that another person, Dr. Cherry, had reached him first and then, hearing cries from the overturned car, they went to it and helped to extricate some of the occupants. Within a few minutes of the time when Dr. Cherry reached Chapman another car came along the road from the south and the driver of this vehicle, the respondent Hearse, failed to see either Dr. Cherry or the injured man until it was too late to avoid them. In the result his vehicle struck Dr. Cherry and caused him injuries as the result of which he died. It was dark and it was raining at the time and there seems little doubt that visibility was poor.