Hale v Victorian Railways Commissioners [1953] HCA 26

High Court of Australia Dixon C.J. Williams, Webb, Kitto and Taylor JJ. Hale v Victorian Railways Commissioners [1953] HCA 26

ORDER Both appeals allowed with costs. Order of the Full Court of the Supreme Court of Victoria discharged. In lieu thereof order that appeal of the Victorian Railways Commissioners to that Court be dismissed with costs. Order that the verdict of the jury be restored.

Cur. adv. vult.

The following written judgments were delivered.

May 8 Dixon C.J.

The circumstances of this case and the critical passages in the summing up of the learned judge who presided at the trial are described in the judgments delivered in the Supreme Court of Victoria and in the judgment prepared by Taylor J. which I have had the advantage of reading and with which, subject to certain additional observations I shall make, I agree.

The case appears to me to turn entirely on the question whether, having regard to the manner in which the jury was directed as to the alleged negligence of the fireman and guard and as to the considerations affecting that question, such a substantial wrong or miscarriage has been occasioned in the trial as to make it necessary to set aside the verdict for the plaintiff and order a new trial. There does not appear to me to be any disputed question of law involved. The complaints made against the direction relate to matters of fact and of evidence and although it is suggested that the jury may have been misled into a misapprehension or a misapplication of the legal criterion, the jury were correctly directed as to what is the legal criterion itself. The question whether it is a case for a new trial is, however, one of difficulty. To begin with, there can be little doubt that there is no evidence of negligence on the part of the guard of the train and that the possibility of his being negligent ought not to have been left to the jury. Yet it was mentioned in such a way and so little was made of it that it seems to be agreed on all hands that in the particular circumstances the possibility of the jury having based their verdict upon it may be put aside. The real question relates to the possible negligence of the fireman. The evidence of negligence on his part was slight and I am not sure that the true ground of the complaint of the defendant commissioners is not that this item of negligence ought to have been withdrawn from the jury. But that is not the ground upon which the Supreme Court of Victoria proceeded and on the whole I think that it was open to the jury to infer, if they thought proper, that at a time when the disaster might have been avoided by quick action, the fireman either did, or ought to have, become aware that Forbes was about to drive the motor bus across the line in front of the approaching train, whether because he did not see it or because he thought he had time to get across and that the fireman was negligent because he delayed calling out "red light" to the engine driver.