Luxton v Vines [1952] HCA 19

High Court of Australia Dixon, McTiernan, Webb, Fullagar and Kitto JJ. Luxton v Vines [1952] HCA 19

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 4 Dixon, Fullagar and Kitto JJ.

The appellant is the plaintiff in an action of negligence who obtained a verdict at the trial and the order from which he appeals sets aside the verdict and enters judgment for the defendant. The defendant, who is the respondent upon this appeal, was sued under s. 13 (1) of the Motor Car (Third-Party Insurance) Act 1939 (No. 4688) Vict. as a nominal defendant. A plaintiff suing under that provision in respect of bodily injury to himself must prove first that the injury was caused by or arose out of the use of a motor car an expression covering motor vehicles in general, second that the identity of the motor car cannot be established and third that he could have obtained a judgment against the driver of the motor car in respect of such injury.

The appeal turns upon the sufficiency of the evidence adduced at the trial to support a finding upon the first and third of these issues in the plaintiff's favour. The second proposition was clearly made out.

The plaintiff began a journey by motor cycle from Clunes to Ballarat at twenty minutes to seven in the evening of 27th July 1950, a cold and wet winter's night. As he neared Ballarat he felt ill and decided to leave his motor cycle at the roadside and walk on towards Ballarat, hoping to obtain a lift from some motor car travelling in the same direction. The middle of the road is bitumen and on each side there is a gravel strip, flanked by a table drain and long grass. There is no footpath. He said in evidence that he walked on the extreme left-hand side of the gravel as far off the bitumen as he could get, two or three yards off. He estimated the distance he so walked at about 400 yards from the place where he left his motor cycle. Ahead of him was a place of amusement called Broadway Park and he could see the lights of cars which had come from Ballarat turning into it. He said that he turned round looking for cars coming towards Ballarat and saw two lights. He estimated the distance of the lights at 100 yards or possibly 200 yards. The lights were not shining on him. His evidence proceeded:—"When I turned round I had intended to hail a car to get a lift into Ballarat. I think that I turned to the left, I cannot recollect clearly whether I turned to my left or right. I am left handed. After turning round and seeing the lights, the next I remember is lying on the roadway on my face and suffering intense pain and somebody bending over me." The man bending over him was in fact the driver of a truck journeying to Ballarat who had seen the plaintiff's form lying on the bitumen roadway. He said that when twenty-five or thirty yards away he saw an object on the road and stopped. He found that it was the plaintiff's body.