Pennington v Norris [1956] HCA 26

High Court of Australia Dixon C.J. Webb, Fullagar and Kitto JJ. Pennington v Norris [1956] HCA 26

ORDER Appeal allowed with costs. Discharge so much of the order as finds under the provisions of the Tortfeasors and Contributory Negligence Act 1954 that the degree of the plaintiff's negligence was one-half and of the defendant's negligence was one-half and that judgment be entered for £4,589 4s. 0d. and substitute a finding that the respective degrees were one-fifth and four-fifths and an order that judgment be entered for £7,342 14s. 5d.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 6 Dixon C.J., Webb, Fullagar and Kitto JJ.

This is an appeal from the Supreme Court of Tasmania (Crisp J.). The appellant was the plaintiff in an action in which he claimed damages for personal injuries sustained when he was struck by a motor car driven by the respondent. His Honour found that the damage had been caused by negligent conduct on the part of both parties and that each was equally at fault. He assessed the plaintiff's damages at £9,178 8s. 0d. but, acting in pursuance of the Tortfeasors and Contributory Negligence Act 1954 Tas., he reduced these damages by one-half and gave judgment for £4,589 4s. 0d. The plaintiff maintains that the learned judge was wrong in finding the plaintiff at fault, or at least in finding him equally at fault with the defendant, and he says that he should have had judgment for the full amount of £9,178 8s. 0d., or at least for a sum substantially larger than one-half of that amount. A cross-appeal instituted by the defendant was abandoned before us.

The accident happened about 10.20 p.m. on 12th June 1954 in Marine Terrace, Burnie. It was not raining at the time, but it had been raining shortly before, and it was a misty night and the streets and roads were wet. Marine Terrace in the vicinity runs roughly north and south. On the east side it is separated by a fence from the railway and beyond the railway lies the sea. On the west side are buildings, which include three hotels: these are (going from north to south) the Bayview Hotel, the Central Hotel and the Burnie Hotel. The Central Hotel is on the corner of Marine Terrace and a side street named Ladbrooke Street. The road consists of a bitumen surface about twenty-seven feet wide, having on the east side, between the edge of the bitumen and the fence, a gravelled strip probably about twenty feet in width.