Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71

Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71

The jury was entitled to find the defendant negligent in not fitting trams with an automatic device for braking or disconnecting power upon driver collapse, notwithstanding such devices not being general practice. The finding was supported by some evidence, and the trial judge erred in setting aside the verdict. The order of the Supreme Court was set aside and judgment entered for the plaintiff for damages.

Parties
Appellant; Plaintiff: Thomas Henry Mercer; Respondent; Defendant: Commissioner for Road Transport and Tramways (New South Wales)
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Full Court of Supreme Court of New South Wales, Judgment of District Court Reviewed
Outcome
Appeal allowed. Judgment for the plaintiff restored.
Legal Topics
Standard of Care, Negligence—proof and Evidence, Res Ipsa Loquitur, Common Practice as Evidence of Due Care, Application and Sufficiency of Safety Devices
Torts Negligence Personal Injury Standard of Care Negligence—proof and Evidence Res Ipsa Loquitur Common Practice as Evidence of Due Care Application and Sufficiency of Safety Devices

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Parties

Thomas Henry Mercer

Appellant; Plaintiff

Commissioner for Road Transport and Tramways (New South Wales)

Respondent; Defendant

Procedural Posture

Appeal / Appeal From Full Court of Supreme Court of New South Wales, Judgment of District Court Reviewed

Legal Issues

  1. 1 Whether failure to provide a safety device (such as a dead man's handle) on trams constituted negligence by the Commissioner for Road Transport and Tramways.
  2. 2 Whether following general practice in not fitting trams with a particular safety device absolves the defendant from negligence.
  3. 3 Whether the jury's finding of negligence should be set aside due to insufficient evidence.

Ratio Decidendi

The jury was entitled to find the defendant negligent in not fitting trams with an automatic device for braking or disconnecting power upon driver collapse, notwithstanding such devices not being general practice. The finding was supported by some evidence, and the trial judge erred in setting aside the verdict. The order of the Supreme Court was set aside and judgment entered for the plaintiff for damages.

Court Disposition

Appeal allowed. Judgment for the plaintiff restored.

Orders

  • Order of Full Court set aside.
  • Judgment entered in District Court for plaintiff for £200.