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the true ground of the complaint of the defendant commissioners is not that this item of negligence ought to have been withdrawn from the jury.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. An important matter to bear in mind is that if the brakes of the train had been applied a very little earlier, the bus would have cleared the train and not been hit. It is for this reason that quick action might have avoided the disaster. The sufficiency of the evidence upon this item of negligence thus depends upon its being open to the jury to conclude that the fireman who kept a lookout on the right hand side and marked the approach of the bus ought in the exercise of due care, to have called out earlier. The jury were not of course bound to accept the fireman's evidence as accurate in all particulars. Having regard to what he did say and to the materials which the rest of the evidence supplied, I think that it was reasonably possible for the jury to infer that he did perceive or ought to have perceived that the bus was not going to pull up to allow the train to pass and failed to act as promptly as he ought. Another inference reasonably open was that the fireman ought to have acted upon the assumption that the bus driver was unconscious of the approach of the train, because no sufficient warning whistle had been given, the bus driver's view of the changing lines of vision was obstructed and a train would on that afternoon be unexpected. In his charge to the jury the learned judge did not deal with the question for the jury which thus arose in a manner that can be regarded as altogether satisfactory, but I do not think that there was such a misdirection as to require that the verdict should be set aside. I am unable to agree with the view taken in the Supreme Court that there was a real likelihood, created by the direction, of the jury's supposing that simply because the fireman saw that upon the road a bus was approaching, he ought to have taken measures to stop the train lest the bus should not pull up to let the train pass. I do not think that the jury would suppose that his Honour meant in any way to suggest that a train crew might not rely upon road traffic heeding the warnings of whistle and notice boards and might not accordingly proceed at speed over level crossings unless there was reason to think that a vehicle was actually endangered. His Honour spoke to jurymen who shared the common experience and understanding of the community as to the use of level crossings and the practice and indeed the necessity of trains travelling over them in reliance upon the road traffic paying heed to the warnings and allowing them to pass. I do not think that the jury would misconstrue his direction and treat the train crew as under a duty of care at variance with common practice. At one point in the direction the learned judge pointed out that the fireman had not much time to act but added that if the jury nevertheless thought that a reasonable man in the circumstances should have concluded that there was a danger and that a catastrophe threatened, they might think he ought to have acted at once. The expression "a catastrophe threatened" seems apt enough to convey the point. In other places more equivocal references to "seeing the danger" occur. But I repeat that I am unable to think that the probability of the jury being led to adopt the view suggested in the Full Court was so real as to call for a new trial. There is no express affirmative statement contained in the summing up which has such a meaning. In comparing the evidence of the guard with that of the fireman who said he saw a slackening down of the bus, his Honour spoke of a contradiction between them because the guard did not see it. The difference could be accounted for by the respective opportunities the lines of vision from the engine and the van gave. The reference to a contradiction was nothing but an observation on evidence, and though erroneous could in itself form no ground for destroying the verdict. The defendant commissioners have some reason to complain that their answer on the facts to this item of negligence might have been put by his Honour more fully and more favourably. But this was a civil trial and the defeated party is not entitled to have a verdict set aside because his points might have been more adequately put to the jury by the judge. Lowe J. in his judgment states the considerations which weighed with him for some time before he came to the view that the criticisms made of the learned judge's charge should lead to the setting aside of the verdict. The considerations to which he refers must be taken into account and I think they do strengthen the view I take, namely that a new trial ought not to be ordered. It must be borne in mind that the examination which on this appeal must of necessity be given to the question of the negligence of the engine driver and its treatment in the charge lifts it out of its context. A very definite case was made for the plaintiff against the commissioners of negligence in maintaining a level crossing without better warning signals in its present position with the obstructions to vision that exist. Further, another definite case was made that the train did not whistle or whistle adequately. These cases were elaborated at the trial and there is no dispute that the evidence supports a verdict for the plaintiff based on either of those grounds. Indeed Lowe J. said in his reasons "If I were at liberty to guess (and of course I am not) I should think that the jury's verdict was based on some negligence in what Sholl J. has termed the "set up" and of such negligence there was evidence before the jury." What the defendants have asked the Court to do is to set aside a verdict based upon one count of negligence supported by three heads of negligence because in respect of one of the three heads the judge's charge is alleged to be unsatisfactory although it contains no positive misdirection in law. A strong case indeed must be made to justify such a course, a case in which it is shown that a danger exists of the trial having miscarried which is so great that the demands of justice would not otherwise be satisfied. It is true that when a general verdict on two counts is found and a verdict on one of them cannot be supported the verdict must be set aside: Cutts v. Buckley [1] ; Lamb v. West [2] . So prima facie with a general verdict for the defendant referable to either of two pleas one of which cannot be supported: Grigg v. Consolidated Press Ltd. [1] . But that is a somewhat different thing from treating the verdict as vitiated because the summing up as to one of three grounds which would sustain a verdict on one count is not entirely satisfactory, and even then only with reference to what are really matters of fact and evidence. New trials should not be ordered unless the court is satisfied that it is necessary in order to do justice. In the present case I do not think that any substantial wrong or miscarriage of justice has been occasioned. 1. (1933) 49 C.L.R. 189. 2. (1894) 15 N.S.W.L.R. 120. 3. (1945) 45 S.R. (N.S.W.) 247; 62 W.N. 113. I am therefore of opinion that the appeal should be allowed. Williams J. I agree with the reasons of the Chief Justice and Taylor J. In my opinion this appeal and also the appeal in Forbes and Bond's Motor Services Limited v. Hale and the Victorian Railways Commissioners should be allowed. Webb J. This is one of three appeals to this Court arising out of an order for a new trial of a limited character made by the Full Court of the Supreme Court of Victoria on an appeal to that Court against the verdict of a jury in an action for damages for negligence brought by Mrs. Eveline Hale against the Victorian Railways Commissioners, Bond's Motor Services Limited and Forbes. The jury found the defendants guilty of negligence and awarded Mrs. Hale £16,213 2s. 3d. damages, to be contributed to by Bond's Motor Services Limited to the extent of two-thirds, that company having taken the responsibility for Forbes who was its bus driver. It is common ground that Forbes was guilty of negligence, and Bond's Motor Services Limited support the verdict more particularly because of the contribution the commissioners are to make to the damages if the verdict is restored. The action arose out of a collision that took place early in the afternoon of 24th February, 1951, between the commissioners' train and the company's motor bus at an open level railway crossing at Horsham. The plaintiff was a passenger in the motor bus and suffered severe injuries. No question is raised on this appeal as to the quantum of damages, although it was unsuccessfully contended before the Full Court that they were excessive. The Full Court thought there was a miscarriage of justice calling for a new trial—limited to the questions of liability and contribution—because in their Honours' opinion the learned trial judge had not sufficiently directed the jury on an issue that arose as to whether the fireman of the train had been guilty of negligence; and further, because the judge had wrongly told the jury that the train guard had contradicted the fireman. The Full Court thought that the trial judge's direction as to the duties of the train crew in relation to the question of slowing up or attempting to stop the train on approaching the level crossing from the time when the motor bus became visible to the fireman was wrong, and that this, combined with the misdirection as to the contradiction of the fireman by the guard, revealed a miscarriage of justice warranting a new trial. There was evidence on which the jury could have found the commissioners guilty of negligence apart from any negligent act or omission of the fireman; but they were not asked specific questions the answers to which could have indicated on what evidence they based their finding of negligence against the commissioners. Then for all that is known this finding might have rested on the conduct of the fireman; and so it is material to determine whether the trial judge properly directed the jury in relation to the fireman's conduct. If he failed to do so then it is not contested that the order for a new trial must stand. As to the misdirection that the guard contradicted the fireman, evidence was given by the fireman that shortly after he first saw the bus it slowed down as if it were going to stop. The guard said that the motor bus appeared to speed up quickly; but he also said that the speed of the bus was such that he expected it to stop. It is true that the learned trial judge did tell the jury that there was a contradiction of the fireman by the guard; but at the same time he also told them that the difference in their accounts of what they saw of the movements of the motor bus might have been due to the fact that the guard was considerably further back on the train than the fireman. In that position the guard did not have the bus in view as long as the fireman had. I think his Honour sufficiently conveyed to the jury that the contradiction might have been more apparent than real. After all the jury must be taken to have heard and to have recollected all the evidence and to have understood what his Honour meant. His Honour was not asked by counsel to further elucidate his summing up on this matter. In the circumstances I do not think that his Honour's observations on the evidence of the fireman and the guard alone called for a new trial. Nor would the Full Court have granted a new trial on this misdirection alone. Then as to his Honour's direction as to what the fireman's duty was on seeing the motor bus approaching the crossing, his Honour dealt with this at some length, but their Honours in the Full Court thought that he had left the jury with the impression that "as soon as the fireman perceived the bus approaching the crossing at a speed which if continued would bring it there at approximately the same time as the train, there was, independently of any other circumstances, a duty upon him to cause the brakes to be applied, simply because there was a possibility (not a probability) of the bus not stopping, and accordingly a "danger" which it was negligence not at once to guard against"; or with the impression that "independently of any other circumstances, and even if the bus did reduce speed in a manner in which reasonably led" (the fireman) "to suppose that it was going to stop, it was negligence not to guard against the possibility and so against the supposed "danger" that the bus might be slowing down for some other reason, without seeing the train and without intending to stop, or, having seen it, might thereafter foolishly try to race it against the crossing". I do not think that either impression was conveyed by his Honour to the jury. His Honour in his concluding words to the jury on this aspect of the case said, referring to the fireman:—"Well he had not much time; everything was pretty quick. Still, if you think a reasonable man under the circumstances should have concluded that there was danger, and that a catastrophe threatened, you may well think that he should have done something at once, should have called the driver's attention so as to at least minimise the chance of the accident happening". Whether his Honour laid emphasis on the words which I have italicised we do not know; but in any event they show that he intimated to the jury that a catastrophe should have been threatened before it became the duty of the fireman to take steps to have the train slowed down or stopped. I do think he was not called upon to say more in justice to the defendant commissioners in stating what the fireman's duty was as the train approached this crossing and the motor bus appeared also heading for the crossing. Nothing his Honour had already said was in conflict with this final statement on that particular aspect of the case. It was not necessary for his Honour to state what would be the presumptions of fact that might arise from time to time according to changes in the situation which the jury might find, having regard among other things to variations in the movements and speeds of the train and the bus and the changes in their relative positions as they approached the crossing. His Honour might have done so without encroaching on the jury's province. But there is no limit to the number of presumptions that might arise in that way, and it would be asking too much of a judge—it would in fact place an impossible burden upon him—to require him to assume the successive factual situations that the jury might find on the evidence and to state the presumptions of fact that might arise from them. That is not the judge's responsibility. To make presumptions of fact where they are warranted is part of the ordinary process of reasoning which a jury is expected to employ without guidance from the Bench. Even if there is no contest about particular facts and a presumption of fact arises from them it is not necessarily the judge's duty to state the presumption. It might greatly assist the jury if he did, but the mere failure to do so would not render the summing up inadequate. However, their Honours in the Full Court thought that the presumption of fact made by the Full Court in Baker v. Victorian Railways Commissioners [1] in determining whether a jury's verdict was unreasonable should have been brought to the notice of this jury. It might have proved helpful to the jury if it were. It might even have induced them not to find negligence against the commissioners. But it does not follow that the summing up was defective. The soundness of a charge to a jury is not so tested. It may be capable of much improvement without being for that reason so defective as to amount to a miscarriage of justice. The extent of a summing up and its value depend among other things on the time the judge has to consider what he is going to say. A judge should always endeavour to explain to the jury how the law applies to the facts as the jury might find them, but he can do that without having to anticipate and pursue throughout the course the jury might follow in reconstructing events to determine responsibility. A slight change in the factual situation that gave rise to one presumption of fact, say that in Baker's Case [1] , might have given rise to a different presumption equally important although not made by a court of appeal in a reported case. 1. (1949) V.L.R. 85. 2. (1949) V.L.R. 85. I would allow the appeal against the order for a new trial and restore the verdict of the jury and the judgment thereon of Gavan Duffy J. It becomes unnecessary to deal with other questions raised in the appeals, except that of costs. Kitto J. I have had the advantage of reading the reasons for judgment of Dixon C.J. and Taylor J. I agree with their Honours, and have nothing to add. Taylor J. The first appeal is from an order of the Supreme Court of Victoria setting aside a judgment and verdict in an action in which the appellant Eveline Hale sued the Victorian Railways Commissioners, Reginald Oliver Forbes and Bond's Motor Services Limited for damages for injuries sustained by her in a collision at a level crossing near Horsham between a motor omnibus owned by Bond's Motor Services Limited and driven by their servant or agent Forbes, and a train controlled by the servants or agents of the commissioners. The trial, which took place before a jury of twelve, occupied some twelve days and resulted in a verdict for the appellant for £16,213, and the jury assessed the respective contributions of Forbes and the company at two-thirds of the amount of the verdict and of the commissioners at one-third of that sum. For the purpose of assessing these contributions, the jury was invited to treat Forbes and the company as being in the position of a single defendant. From the judgment entered pursuant to this verdict the commissioners appealed to the Full Court of the Supreme Court and in the result that appeal was substantially successful. In effect, the appeal was in part allowed and a new trial ordered on the issue of the commissioners' liability, the verdict as to quantum being allowed to stand. The verdict against the company and Forbes, who had not appealed, of course, stood and by the order of the Full Court there was left for determination in a new trial the issues whether the commissioners were liable to pay damages and, if so, in what proportions the respective contributions of the company and the commissioners should be assessed. A good deal of discussion took place on the hearing of this appeal both as to the effect and appropriateness of the Full Court's order, but, on the view which I have taken of the questions raised on the appeal, it is unnecessary to discuss these matters. The accident took place about 4 p.m. on Saturday, 24th February, 1951, when the motor bus in which the appellant was one of a number of passengers collided with a goods train at the crossing in question. There was abundant evidence upon which the jury was entitled to find that the driver of the bus was negligent and that his negligence materially contributed to the collision. The jury so found and this finding is not attacked in any way. The appellant's case against the commissioners was based on a great number of allegations of negligence but during the hearing of the case they were resolved, in the main, into three main categories which Herring C.J. has classified as follows:—"(1) The failure by the appellants themselves to exercise due care in the management and control of their undertaking and particularly the failure to provide at the crossing a proper view of the line on either side, gates or warning devices reasonably sufficient in the circumstances to secure the safety of persons crossing the line; (2) The failure of the engine driver to give adequate warning of the approach of the train by whistling; and (3) The failure of the fireman to exercise due care in the circumstances". It was conceded by counsel for the commissioners, both in the Supreme Court and upon this appeal, that the evidence was such that the jury might properly have found either way upon the issues raised by the allegations contained in pars. (1) and (2) above. But it was claimed that the issues raised by the allegation contained in par. (3) were, in the circumstances, of such a special character that they should only have been allowed to go to the jury subject to very definite and precise directions. It was not contended that such issues should have been taken from the jury, but that the directions concerning them were erroneous and, the matter having been submitted to the jury for their general verdict, may well have resulted in a miscarriage of justice. The Supreme Court, after a detailed examination of the learned trial judge's charge to the jury accepted this contention with the result to which I have already referred. For a proper understanding of the argument advanced on behalf of the commissioners, it is necessary to refer to some of the facts of the case. The Dimboola Road, at a point where it runs approximately from the south-east to the north-west, crosses the railway line on the western outskirts of Horsham. In the vicinity of the crossing, the railway line runs approximately from south-west to north-east and shortly after crossing the road it joins another railway line as it approaches Horsham Railway Station. Immediately before the accident the bus was travelling along the road towards the north-west and the train, travelling to the north-east, was approaching from the left-hand side of the bus. But, by reason of the existence of a dwelling in the angle contained by their respective lines of approach, they did not become visible to one another until the locomotive was about forty yards from the crossing and the bus about sixty yards away from that point. The driver of the bus did not see or hear the train until they were so close together that the accident could not be avoided. Then, by accelerating, the driver of the bus endeavoured to get clear of the train. The train, however, struck the bus towards the rear and grave injuries were caused to the appellant. The fireman who was keeping a look out on the right-hand side of the locomotive gave evidence to the effect that he saw the bus when it was about sixty yards away from the crossing. He said that when he first observed the bus it was travelling at about twenty-five miles per hour but it commenced to reduce speed and he assumed that it would not attempt to cross in front of the train but would stop as it came to the crossing. There is some corroboration of the fireman's evidence that there was some reduction in the speed of the bus at or about this point. This witness then went on to say that having observed the bus slacken speed he did not pay a great deal of attention to it until it was about twenty-five yards from the crossing when it began to increase its speed. At this stage he called out to the driver, who was stationed on the other side of the locomotive, and the emergency brakes were then applied. In the circumstances as they existed at that point of time a collision was inevitable and took place with the consequences to which I have briefly referred. The basis of the criticism of the learned trial judge's charge to the jury is made clear by a passage in the reasons of Sholl J., who felt that if it had not been for certain answers given by the fireman in cross-examination as to the dangerous character of the crossing, he would have been of the opinion that there was no evidence to go to the jury of negligence on the part of the fireman at all. But, in view of those answers, he was of the opinion that the plaintiff was entitled to have the question of the fireman's negligence left to the jury upon the basis specified by him. In his Honour's view the ultimate question for the jury on this question was whether there was when or after he first saw the bus and at such an appreciable interval of time before he acted that his earlier action would probably have avoided the accident such a reasonable chance that the bus would go on to the crossing at the same time as, and in spite of the approach of, the train that a reasonable fireman would have preferred to call for the brakes rather than risk the catastrophe of a collision. In the view of Herring C.J. "the duty the fireman owed to road users approaching the crossing should be no more than to keep a proper look out and to call on the engine driver to take action when the possibility of danger became or should have become reasonably apparent to him". While I agree that the duty of the fireman was no higher than these passages indicate, it is, I think, not unimportant to point out that, upon the evidence, it was for the jury to determine this issue in the light of all the circumstances. No doubt negligence could not be imputed to a person in the position of the fireman for assuming that the driver of a motor vehicle proceeding at a reasonable pace and who is aware of the presence of a train in the immediate vicinity of a level crossing will not act foolishly, and it would be quite wrong on such a set of facts and independently of any other circumstances to treat as negligent an omission on the part of such a person to act immediately. But in my view the learned trial judge's charge to the jury did not leave this course open to them. In my opinion there was no misdirection or failure to direct on this point; the difficulty, if there be one, is concerned with the question whether in the circumstances of this case the fireman was entitled to continue to make this assumption after he first observed the bus approaching the crossing. The question of the point of time at which a reasonable man, finding himself in the position of the fireman, should have apprehended that a dangerous situation had arisen, did not fall to be determined solely upon the evidence of what occurred or what was observed by the fireman after the train and bus came into the view of each other. No doubt if adequate warning of the train's approach had been given, the fireman would have been justified in assuming that Forbes was aware of its presence in the vicinity. But whether circumstances justifying such an assumption existed was itself a question for the jury. Again, Forbes claimed that his view of the approaching train, an event quite unusual at this crossing on Saturday afternoons, was impeded by the afternoon sun and there was some evidence to the effect that a locomotive whistle sounded some distance back from the crossing might easily be confused with whistles sounded near Horsham Station or on other railway lines approaching that point. I feel that all of this evidence was relevant to a consideration of what course a reasonable man in the position of the fireman would have adopted upon seeing the bus approaching. In these circumstances, I am of the opinion that the jury might well have concluded that the whistle should have been sounded at this point or that the brakes should have been applied in an endeavour to avoid the accident or minimise its consequences. The learned trial judge instructed the jury that the question whether the fireman was negligent or not was a matter for their consideration in the whole of the circumstances of the case. Upon a reading of his charge to the jury as a whole and particularly upon consideration of the additional directions given after a request had been made by counsel for the defendant commissioners, I am satisfied that the various relevant possibilities were sufficiently put to the jury. Accordingly I am of the opinion that the appeal should be allowed and the verdict of the jury restored. From what I have already said it follows also that I am of the opinion that the appeal in Forbes and Bond's Motor Services Limited v. Hale and the Victorian Railways Commissioners should also be allowed.