Hocking v Bell

The case of Hocking v Bell involved a married woman, the plaintiff, who claimed damages against a surgeon, the defendant, for negligence. The plaintiff alleged that after a thyroidectomy operation, the defendant left a piece of drainage tube in her neck. This piece of tube allegedly remained in situ for approximately eighteen months, causing her significant illness and pain, before eventually passing through her body. The matter proceeded to a fourth trial before a judge and jury.

The legal issues before the High Court concerned the powers of an appellate court in New South Wales to interfere with a jury's verdict. Specifically, the court had to determine whether the Full Court of the Supreme Court was justified in setting aside the jury's verdict for the plaintiff and entering judgment for the defendant, or whether a new trial should have been ordered. This involved considering the distinction between a verdict being against the evidence and the weight of evidence, and a situation where there is no evidence upon which a jury could reasonably find for the plaintiff, thereby entitling the defendant to a verdict as a matter of law.

The High Court, by a majority, dismissed the appeal. Rich J. held that the court possessed inherent power to prevent a miscarriage of justice and that the judgment appealed from was the only one that could achieve a just result. Starke and McTiernan JJ. found that the Supreme Court was justified in concluding there was no evidence on which a jury could reasonably find for the plaintiff, and therefore, under section 7 of the Supreme Court Procedure Act 1900 (N.S.W.), the court could order judgment to be entered for the defendant. This section permits the Court in Banco to order a verdict for a party if it is of the opinion that, as a matter of law, that party is entitled to a verdict. The majority affirmed the decision of the Supreme Court of New South Wales.