Carruthers Bros Pty Ltd v Pennell [1964] HCA 27

Carruthers Bros Pty Ltd v Pennell [1964] HCA 27

The evidence afforded no basis for directing the jury on the Alford v. Magee qualification. Any negligence of both the plaintiff pedestrian and the defendant driver continued up to the collision; neither was shown to have become aware of the other before the collision was inevitable; the driver's negligence was not substantially later in time; and neither party was master, or potentially master, of the situation. In the night-time circumstances, the plaintiff could have seen the car's headlights at least as readily as the driver could have seen the plaintiff. The trial judge was therefore right to refuse the requested direction, and the Full Court erred in ordering a new trial.

Jurisdiction
Australia
Procedural Posture
Action for Damages for Personal Injuries Arising From Negligent Driving of a Motor Car / Appeal by Leave to the High Court From an Order of the Full Court of the Supreme Court of New South Wales Setting Aside a Jury Verdict for the Defendants and Ordering a New Trial
Outcome
Appeal allowed with costs; order of the Full Court of the Supreme Court discharged; appeal to the Full Court dismissed with costs; jury verdict for the defendants restored.
Legal Topics
['contributory Negligence' 'last Opportunity' 'jury Directions' 'motor Vehicle Collision' 'pedestrian Injury']
['torts' 'negligence'] ['contributory Negligence' 'last Opportunity' 'jury Directions' 'motor Vehicle Collision' 'pedestrian Injury']

Case Brief

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Procedural Posture

Action for Damages for Personal Injuries Arising From Negligent Driving of a Motor Car / Appeal by Leave to the High Court From an Order of the Full Court of the Supreme Court of New South Wales Setting Aside a Jury Verdict for the Defendants and Ordering a New Trial

Legal Issues

  1. 1 ['Whether the trial judge erred by refusing to direct the jury on the qualification to the general rule of contributory negligence described in Alford v. Magee.' "Whether the evidence provided a basis for finding that the defendant driver, by taking reasonable care, could have avoided the consequences of the plaintiff's negligence notwithstanding any contributory negligence by the plaintiff." 'Whether the Full Court of the Supreme Court of New South Wales was right to set aside the jury verdict for the defendants and order a new trial.']

Ratio Decidendi

The evidence afforded no basis for directing the jury on the Alford v. Magee qualification. Any negligence of both the plaintiff pedestrian and the defendant driver continued up to the collision; neither was shown to have become aware of the other before the collision was inevitable; the driver's negligence was not substantially later in time; and neither party was master, or potentially master, of the situation. In the night-time circumstances, the plaintiff could have seen the car's headlights at least as readily as the driver could have seen the plaintiff. The trial judge was therefore right to refuse the requested direction, and the Full Court erred in ordering a new trial.

Court Disposition

Appeal allowed with costs; order of the Full Court of the Supreme Court discharged; appeal to the Full Court dismissed with costs; jury verdict for the defendants restored.

Orders

  • ['Appeal allowed with costs.' 'Order of the Full Court of the Supreme Court discharged.' 'In lieu thereof order that the appeal to the Full Court of the Supreme Court be dismissed with costs.']