Rae v Broken Hill Pty Co Ltd [1957] HCA 33

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Taylor JJ. Rae v Broken Hill Pty Co Ltd [1957] HCA 33

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 3 Dixon C.J.

In my opinion this appeal should be dismissed. I agree with the reasons given by Taylor J.

McTiernan J.

I am of opinion that the Full Court of the Supreme Court of New South Wales ought to have allowed the motion for a new trial of this action. The reasons of Walsh J. for considering that the motion ought to have been allowed are, in my opinion, right. Walsh J. decided that there was sufficient evidence of negligence to go to the jury.

In view of the argument, I think that it is to the point to cite from the textbook, Negligence in Law by Beven, 4th ed. (1928), vol. 1, p. 10, this passage: "The legal standard of diligence is a thing apart from the interpretation of a jury in any case, and is fixed by the law with reference to the ordinary and usual diligence which a man of ordinary sense, knowledge, and prudence is used to show in his own affairs. Of this experience is the test; and the standard varies with the shifting of general public sentiment. Whether in any particular case this standard has been attained is for the jury, if the evidence will in any view allow of their saying that it has." In my opinion the evidence in this case satisfies that condition.

I think that the motion for a new trial ought also to have been allowed on the ground that the trial judge should not have upheld the objection of the defendant's counsel to the following question: "In other industrial establishments with which you are familiar what tool is normally used for doing the job Rae (the plaintiff) was doing?" The witness to whom this question was put is a consulting engineer of high standing and long experience. It would appear that the majority of the Full Court did not regard this question as inadmissible or irrelevant. They were of opinion that in all the circumstances its rejection did not so prejudice the plaintiff's case as to justify the making of an order for a new trial. With respect, I do not agree. The purpose of the question was, surely, to prove that the defendant did not supply the same sort of tool as other employers supplied to their workmen in similar circumstances. The question was material to the plaintiff's case. I am of the opinion the question ought to have been allowed: Paris v. Stepney Borough Council [1] .