Lincoln v Gravil [1954] HCA 24

High Court of Australia Webb, Fullagar and Kitto JJ. Lincoln v Gravil [1954] HCA 24

ORDER Appeal allowed with costs; cross-appeal dismissed with costs. Judgment of the Supreme Court varied by increasing the amount ordered to be paid by the defendant to the plaintiff to £2,250. Direct that this amount be divided into the following shares, namely £2,000 for the benefit of the plaintiff, £150 for the benefit of Darryl Alvin Ball, and £100 for the benefit of Beverley Lenna Ball.

Cur. adv. vult.

The following written judgments were delivered:—

June 1 Webb J.

This is an appeal from a judgment of the Supreme Court of Tasmania (Gibson J.) awarding £1,000 damages to the appellant and her two children, the widow and step-children of one W. F. Lincoln, and apportioning £750 to the appellant. The award of damages was made in an action under the Fatal Accidents Act 1934 Tas. arising out of the death of the appellant's husband from injuries caused in a collision in a street in Hobart on 17th July 1951 between the respondent's motor car and the deceased's bicycle. Gibson J. found that the respondent was solely to blame for the collision. The ground of appeal is that the award of £750 damages to the appellant was inadequate. No question arises as to the damages awarded to the children. A cross-appeal, on the ground that the evidence for the appellant was circumstantial and that, assuming that the evidence for the respondent was rightly rejected by the trial judge, still there was a reasonable hypothesis consistent with the absence of responsibility of the respondent for the accident, was dismissed without reserving judgment. The evidence for the appellant was that there were three long scratches on the bitumen made by the deceased's bicycle as it was pushed or dragged along the street by the motor car. These scratches formed three straight lines of varying length, all parallel with the guttering on the deceased's correct side of the street and within five feet of the guttering. The rear wheel of the bicycle was dented as though struck from behind. The respondent, who was the only eye-witness, admitted that the deceased was riding along on his correct side of the street and within a few feet from the gutter; but said that, while there was still ample room for the motor car to pass the deceased, the bicycle was turned to the right across the path of the car when it was too late for the car to avoid hitting it. The respondent's expert evidence was that the bicycle was struck on the side and not behind on the rear wheel.