Tort; breach of the duty of care; proof of breach; inferences from circumstantial facts.
Facts: One dark night, McFeeters was walking on a road towards his home when he was struck by a motor vehicle and killed. The driver of the car did not stop and was never identified. There were no witnesses. There was only evidence of some tyre marks on the road, showing sudden braking, and a small pile of glass, mud and some blood, showing where the impact had occurred near the middle of the road. Tests showed some alcohol in McFeeters' blood. McFeeters' widow brought an action for compensation against a nominal defendant appointed under the Motor Car Act 1951 (Vic). To succeed in this action Mrs McFeeters had to prove that the unidentified driver had breached their duty of care.
Issue: Could the unidentified driver's breach be inferred from the known facts?
Decision: The necessary inference could be drawn.
Reason: Williams, Webb and Taylor JJ remarked (at [8]): "... inferences sufficiently appear from the circumstances ... that make it at least more probable than not that the unidentified vehicle was being driven in a negligent manner at the time of the accident and that this was the cause of the accident..."
Dixon CJ dissented, saying (at [10]): "...the real difficulty of the case lies not in finding a foundation for those preliminary inferences, but in the next step. For the state of facts inferred itself leaves room for conflicting conjectures or hypotheses as to the cause of the accident."