112 THE ADELAIDE LAW REVIEW

so to do".35 It is submitted that the argument from Lord Watson's

dictum would involve an incorrect view of the effect of the Judicature
Acts, for it implies that because a Court of Chancery could in theory
give equitable remedies at its discretion, therefore a Superior Court
invested with equitable jurisdiction could ipso facto use its equitable
discretion also in regard to common law remedies that parties were
previously entitled to as of right from common law courts.36
In conclusion it is submitted that a satisfactory solution to this
problem might have been found in a liberal interpretation of the
maxim that contracts are to be construed according to the expressed
or implied intention of the parties. Thus the nature of the contract
and the circumstances of its inception would be scrutinised in order
that the court may determine whether it was within the intention of
the parties that if one party repudiates, the other should have a right
to perform in addition to his remedy in damages.37
This is open to the obvious counter that the right to continue per-
formance can always be expressly deleted from a contract. However,
if it is true, as submitted, that the common man would not have antici-
pated the survival of the right to perform in cases like the present, it
seems preferable that such contracts should be construed as containing
an implied term to that effect, leaving the right to perform to be pro-
tected, if desired, by express provision.

35. [19621 2 W.L.R. 17, 37.

36. This submission concerns the validity of the argument in English Law. The
status of equity in the Scottish Jurisprudence provides some support for Lord
Watson's dictum and in this respect Lord Hodson's refutation may be sorne-
what dogmatic. See Walker: Equity in Scots Law (1954) 66 Jur. Rev. 103.
37. Ahmd Angulliu, which suggests that parties primarily contract for per-
formance, is interpreted accordingly. A though contracts are primarily for
p~rformance,the express or implied intention of the parties may show other-
wise.

NEGLIGENCE
Novus actus interveniens - rescuer killed by
negligence of third party - apportionment of
liability - contributory negligence of rescuer.
Chapman v. Hearse1 is a rescue case which, because of its involved
and rather unusual facts, is more interesting than most reported
cases of this kind. It is unusual in that, while the rescuer had been
placed in a perilous position by the negligence of the original wrong-
doer, he was in fact killed by the subse uent negligence of a third
%
party. It was necessary to decide whet er this act of negligence
had broken the chain of causation thereby relieving the original
negligent actor from liability.
The case arose as the result of a collision which occurred on a
main road near Adelaide. A car driven by one Chapman struck
the rear of another vehicle, which was making a right-hand turn
at an intersection, and Chapman was thrown out of his car. He
was lying unconscious near the centre of the road when a Dr.
1. (1961) 106 C.L.R. 112.
 RECENT CASES

Cherry, who happened to be driving past, stopped and went to his

assistance. It was dark and raining at the time, and visibility was
poor. Shortly afterwards, while the doctor was stooping over attend-
ing to Chapman, he was struck and killed by another car driven by
Hearse. Dr. Cherry's executors brought an action against Hearse
for damages under the provisions of the Wrongs Act 1936-1959,
and Hearse joined Chapman as a third party and claimed contribu-
tion from him.
Napier C.J. found that both Hearse and Chapman had been negli-
gent, but that Dr. Cherry had not been guilty of contributory neg-
li ence. His Honour ordered Chapman to contribute one quarter
P
o the damages and costs awarded to the plaintiffse2 The Full Court
of the Supreme Court of South Australia dismissed an appeal from
this decision, and a further appeal to the High Court of Australia
was also dismissed.
To determine the question of contributory negligence, Napier C.J.
considered whether Dr. Cherry had acted unreasonably in assisting
Chapman and thereby exposing himself to risk.3 His Honour thought
that it might have been more prudent for the deceased to have
watched for and warned oncomin traffic of Chapman's presence
8
on the road, and to have postpone the examination of the injured
man until more help a r r i ~ e d . ~However, His Honour found that
in all the circumstances he had not acted unreasonably, and the Full
Court5 and the High Court6 saw no reason to disturb this finding.
It appears that the questions of the extent of the duty of care
owed to a rescuer and of the application to a rescuer of the doctrine
of volenti non fit iniuria are now well ~ e t t l e d and
, ~ in future rescue
cases the crucial question will often be whether the rescuer was
guilty of contributory negligence. It may therefore be of some
interest briefly to summarize the effect of the authorities on this
question in the light of the case under review. In the first place, it
seems that the reasonableness or otherwise of the rescuer's conduct
should be considered not in the light of after knowledge, but in all
the circumstances as they reasonably appeared to him at the time
of his rescue a t t e m ~ t . ~Secondly, a rescuer's conduct will not be
reasonable unless some person or property was in imminent danger,

2. Executor Trustee b Agency Co. v. Hearse [I9611 S.A.S.R. 51.

3. This test was applied by Maugham L.J. in Haynes v. Haru;ood [I9351
1 K.B. 146, 182. See also Baker v. T . E . Hopkins 6 Son Ltd. [I9581 1
W.L.R. 993, 1003; [1959] 1 VI1.L.R. 966, 976-7. In the case under review,
the High Court of Australia asked itself whether, in the unusual circum-
stances of the case, Dr. Cherry's conduct involved any departure from the
standard which reasonable care for his own safety demanded: (1961) 106
C.L.R. 112, 119.
4. The case was not as clear on its facts as Baker v. T . E. Hopkins 6 Son Ltd.
( s u p r a ) , where the doctor had taken a number of precautions to minimize
the risk to himself.
5. [1%1] S.A.S.R. 51, 74.
6. ( 1961) 106 C.L.R. 112. 119.
7. See Haynes v. Harwood [1935] 1 K.B. 146, 152-3, 161; Wagner v. Inter-
m t i w l R.R. 232 N.Y. 176 (1921), 133 N.E. 437; Baker v. T . E. Hopkins &
Son Ltd. (supra). In the case under review, the Courts took it for granted
that the plaintiffs were not barred by the doctrine of zjolenti non fit iniz~ria.
8. See Executor Trustee G Agency Co. v. Hearse [1961] S.A.S.R. 51, 56;
Chester v. Waoerley Corporation ( 1939) 62 C.L.R. 1, 38.
114 THE ADELAIDE LAW REVIEW

or the rescuer reasonably believed that this was SO.^ Thirdly, the
question to be considered is whether the rescuer was guilty of
contributory negligence, and for this purpose the fact that his actions
were misguided and of no assistance to the person or property in
imminent danger is immaterial.1° The important uestion is whether
1
his conduct involved any departure from the stan ard which reason-
able care for his own safety demanded.ll H e may recover whether
he acted on a sudden impulse or only after a deliberate decision.12
I t seems that a rescuer may expose himself to greater risk in cases
where human life is in danger than in cases where only property is
in danger.13 Finally, the question of contributory negligence is to
be considered in all the circumstances of each case, and if the rescuer
has some characteristic different from that of an ordinary person,
the court may, it seems, take this into account. Thus, in the case
under review, Napier C.J. thought that conduct which might
ordinarily have been imprudent was not unreasonable, partly because
the rescuer was a doctor and had the ability to give skilled assistance
to Chapman.14
In the High Court of Australia the dis ute turned mainly on
whether Chapman was "liable in respect oP the same damage" at
the suit of the plaintiffs as Hearse within the meanin
Act 1936-1956,15and, if so, whether Hearse was entit ed
contribution from Chapman.
Of to 7 Wrongsa
therecover
The Court had little hesitation in deciding that Chapman was
under a duty of care to the doctor. I t was not necessary that the

9. Cutler v. United Dairies (London) Ltd. [I9331 2 K.B. 297; Haynes v. Har-
wood [I9351 1 K.B. 146, 157; Goodhart, Rescue and Voluntary Assumption
of Risk ( 1 9 3 4 ) 5 Cambridge L.J. 192, 200. An example of a case where the
only imminent danger was to property is Hyett v. Great Western Railway
Cmnpany [I9481 1 K.B. 345.
10. Chester v. Waverley Corporation (1939) 62 C.L.R. 1, 38. If this {act
should reasonably have been apparent to the rescuer at the time of his
rescue attempt, it would, of course, be important in determining the ques-
tion of novus actus interuen- and remoteness of damage.
11. See Chapman v. Hearse (1961) 106 C.L.R. 112, 119. If the rescuer's con-
duct was sufficiently rash, it seems that he would not simply be held guilty of
contributory negligence, but that any injury to him would not be the
result of the negligence which caused the danger: Baker V. 7'. E. Hopkins
& Son Ltd. [1959] 1 W.L.R. 966, 977.
12. Haunes v. Harwood r19351 1 K.B. 146. 159.
13. ~ f e t tv. Great West& R&il.u;acJ~ o r n d a n[I9481
~ 1 K.B. 345, 347-8. Cf.
Wardrop v. Santi Moving and Express Co. 233 N.Y. 227 (1922).
14. 119611 S.A.S.R. 51. 56. 74. Cf. Cutler v. United Dairies (London) Ltd.
[19331 2 K.B. 297, 306 and H ~ e t tv. Great Western Railway Company
[I9481 1 K.B. 345, 348 where it was thought that the relationship of :he
rescuer to the person in danger would be a relevant circumstance. The
cluestion whether negligence and contributory negligence are to be deter-
mined by a subjective or an objective test is discussed by Fleming: The
Law of Torts 2nd Ed. 119 and 241, and by Parsons, Negligence and Gon-
t~ibutoryNegligence, 1 Melbourne University Law Review 163.
15. S. 25 ( 1 ) provides: "Where damage is suffered by any person as a result
of a tort (whether a crime or not)-(c) Any tort-feasor liable in respect
of that damage may recover contribution from any other tort-feasor who is,
or would if sued have been, liable in respect of the same damage,
whether as a joint tort-feasor or otherwise, so, however, that no person
shall be entitled to recover contribution under this section from any person
entitled to be indemnified by him in respect of the liability in respect of
which the contribution is sought."
 RECLYT CASES 115
recise sequence of events leading to the doctor's death should have
Keen reasonably foreseeable by Chapman at the time of his negligence,
but in the circumstances of this case it was sufficient to ask whether
"a consequence of the same general character as that which followed
was reasonably foreseeable as one not unlikely to follow a collision
between two vehicles on a dark wet night upon a busy highway."16
Napier C.J. also disposed of this aspect of the case briefly, saying
that rescue cases are no more than a special application of the general
principle upon which a wrongdoer is held responsible for what the
law treats as a natural and probable result of the wrongful act.17
It was decided that it made no difference to a determination of
the duty of care that the original wrongdoer had imperilled himself
by his own negligence and that he was the person being rescued.18
The question whether Chapman's negligence was to be regarded
as a cause of Dr. Cherry's death was more difficult. The Privy
Council delivered its well known decision in The Wagon Mound19
shortly before the appeal to the High Court of Australia was argued.
However, the High Court made it clear that the test of "reasonable
foreseeability" laid down in that case should only be applied to
mark the limit beyond which a wrongdoer would not be respon-
sible. In other words, the test is to be used to determine whether
the defendant should be liable for a particular item of damage
which was in fact caused by his conduct. In Chapman v. Hearse,
however, the problem was to decide whether the doctor's death
should be attributed to one of several "causes", and it was first neces-
sary to decide whether Chapman's negligence was, in fact, a cause
of his death. It was only when this was established that the court
had to consider whether the ultimate consequence was reasonably
foreseeable at the time of Chapman's original negligent actS2O
In the course of argument, it was emphasized that Hearse's inter-
vening act was negligent, and it was contended that on the analogy

16. (1961) 106 C.L.R. 112, 120. Cf. Duyer v. Southern (1961) 78 W.N.
(N.S.W.) 706. A similar view was expressed in A4arshall v. Nugent 222
Fed. 2d. 604, 610-11 (1955). hlagruder C.J. said that one should con-
template a variety of risks which are created by negligent driving, and
that "in a traffic mix-up due to negligence, before the disturbed waters
have become placid and normal again, the unfolding of events between
the culpable act and the plaintiff's eventual injury may be bizarre indeed."
17. [I9611 S.A.S.R. 59-60. Cf. Baker v. T. E. Hopkins (?. Son Ltd. [I9591
1 W.L.R. 966. 981. It was stated that C h a ~ i n a nwould have owed a dutv of
care to his rescuer even if he had not b e e n a medical practitioner: [bid.: 72;
(1961) 106 C.L.R. 112, 120; cf. Dwyer v. Southern (1961) 78 W.N.
(N.S.W.) 706. In that case it was said that nervous shock cases should
be disregarded in rescue cases for the purposes of determining the existence
of a duty of care.
18. If the existence of a duty of care to a rescuer depended on the breach
of a primary duty to someone else, as was said by Evatt J. in Chester v.
Wauerlaj Corporation (1939) 62 C.L.R. 1, 41, Chapman would not have
been liable to his rescuer, since he was under no legal duty to himself
to preserve his own safety. However, it was decided that the duty owed
to a rescuer is an independent duty based on the creation of a perilous
situation which provokes the rescuer to expose himself to undue risk. The
authorities on this point are discussed exhaustively in the judgment of
Reed J.: see [I9611 S.A.S.R. 51, 60, 67-72.
19. Overseas Tankship ( U . K . ) Ltd. v. klorts Dock & Engineering Co. Ltd.
( The Wagon Mound) [I9611 A.C. 388.
20. ( 1961 ) 106 C.L.R. 112, 122.
116 THE ADELAIDE LAW REVIEW

of the last opportunity rule this should relieve Chapman from respon-
~ i b i l i t y . ~However,
~ the High Court, while acknowledging that the
last opportunity rule had been treated in many cases as if it had
assumed the role of a test causation, pointed out that the rule only
applied in cases where the plaintiffs negligence was in fact a cause
of the damage. It was invoked simply to enable the laintiff to
succeed in cases where his contributory negligence woul otherwise
preclude him altogether from recovery. Their Honours doubted
8
the assumption that the rule still existed where apportionment legis-
lation was in force, and said that in any event it was clearly not
a test of causation.Z2 It was further decided that, quite apart from
the analogy of the last opportunity rule, it was impossible on
principle to exclude from the realm of reasonable foresight sub-
sequent intervening acts merely on the ground that they are in them-
selves wrongful. Where a clear line could be drawn, the sub-
sequent negligence was the only one to look to; but the Court
thought that in most cases of this kind no such clear line could be
drawn. Once it was established that reasonable foreseeability is
the criterion for measuring the extent of liability for damage, the
test must take into account all foreseeable intervening conduct,
whether wrongful or 0thenvise.~3
The Court then examined the facts of the case in the light of
these principles, and concluded that a casualty of the kind which
in fact happened was reasonably foreseeable, and so Chapman was
"liable in respect of the same damage" as Hearse within the mean-
ing of the Wrongs Act 1936-1956.24 f i e High Court agreed with
Napier C.J.'s view that it was Hearse who was "principally respon-
sible" for the fatality, and did not interfere with the order for appor-
tionment which His Honour made.25
In the Supreme Court, Napier C.J. and Chamberlain J. had some
difficulty in reconciling their decision with the earlier case of Kane
v. Hill.26 In that case a cyclist riding in a city street at night was
struck by a motor cycle and thrown on to the roadway. While
attempting to rise he was run down by a motor vehicle and injured.
Both drivers were held negligent, but it was decided that the motor
cyclist was not liable to contribute to the damage caused by the
second collision, since the chain of causation had been broken by
the "ultraneous and unwarrantable" act of the driver of the utility.
Their Honours might, perhaps, have been less troubled by that case

21. In his dissenting judgment in the Supreme Court, Reed J. treated as

important the fact that Hearse had a reasonable o portunity of avoiding
the doctor, and was negligent in not doing so: [ I Q ~ S.A.S.R.
I~' 51, 79-83.
22. (1961) 106 C.L.R. 112, 123-4. Cf. Fleming op. cit. 229-239, where the
various views on this question are summarized.
23. Ibid., 124-125.
24. Here again it is apparently not necessary for the defendant to foresee the
exact sequence of the events which occurred, or the exact nature of the
damage in question. Reed J. thought that Hearse's intervening conduct
was not reasonably foreseeable in the circumstances of the case: [1961]
S.A.S.R. 51, 83-86.
25. Chamberlain J. considered that the determination of a just and equitable
apportionment between wrongdoers involves a comparison of culpability,
and moral blameworthiness could be taken into account in some cases: ibid.,
92-93.
26. [I9511 S.A.S.R. 162.
 RECEST CASES 117
if they could have foreseen Teubner v. Humble, which was only
recently decided by the High Court of A~stralia.~? There Windeyer
J. stated that decisions on the facts of one case do not really aid
the determination of another case. His Honour said:
Reports should not be ransacked and sentences apt to the
facts of one case extracted from their context and treated as
propositions of universal application that a pedestrian is always
entitled or that a motorist is always obliged, to act in some
particular way. That would lead to the substitution of a
number of rigid and particular criteria for the essentially
flexible and general concept of negligence.
This dictum should, perhaps, be kept in mind in future rescue cases
which arise as the result of a road accident, and Chapman v. Hearse
should be referred to simply for the propositions of law which it
contains.

27. ( 1963) 36 A.L.J.R. 362.

CONTRACT
Par01 Evidence
The business convenience1 supporting a general rule prohibiting
the introduction of parol evidence to vary the terms of a written
contract has been extensively deferred over the years to the no less
compelling requirements of justice in the particular case. Most
of the rules now accepted as qualifying the parol evidence rule have
long been recogni~ed.~There are others whose operation, though
no less effective, is less frequently acknowledged. The High Trees
principle, which is not restricted to cases where the representation
relied upon as modifying the promisee's rights is contained in a
written document, is a notable e~arnple.~
There are other exceptions to the parol evidence rule which,
because they derive from the substantive law of contract, are not
usually found in standard texts on the law of evidence. In each
of these cases a verbal representation may govern the parties' rights
despite the presence of a written document purportedly dealing with
those same rights. In the first place, the prior verbal representation
may be understood as a promise the consideration for which is the
representee accepting the written ~ o n t r a c t . ~
Here there are indepen-
dent contracts, the intention being that the verbal contract will
control that which is written. Secondly, the verbal representation,

1. Pollock, 13th ed. 199. There does not appear to be unanimity as to the
true basis of the rule: Phipson, 9th ed. 599.
2. Phipson, 601-613; Cross, 476-495; see also 472.
3. This follows from the formulation of the doctrine b y Denning L.J. in
Cornbe v. Combe [I9511 2 K.B. 215 at 220, that "words or conduct" are
sufficient. This formulation is adooted in 15 Halsburu's Law of En.eland,
.
3rd ed., 175, para. 344.
4. Per 1,orcf Moulton in Heilbut, Symons G Co. v. Buckleton [I9131 A.C. 30,
47; City and Westminster Properties Ltd. v. Mudd [1901] 2 K.B. 215.