Evidence—Admissibility—Credit of witness impugned—Suggestion of recent fabrication—Prior statement to same effect admissible—Duty of trial judge—To determine that testimony attacked on ground of recent fabrication or that foundation for such an attack laid—To determine that contents of prior statement are to like effect as testimony and that it tends to answer attack—Great weight to be given to trial judge's determination by appellate court.
Decisions
June 28. The following written judgments were delivered:- DIXON C.J. The purpose of this appeal by a defendant is to obtain a new trial of an action for damages for personal injuries brought by an infant by his next friend in which a verdict for the plaintiff for 2,000 pounds was found. The injuries were sustained by the plaintiff on 1st May 1954. He appears to have been born on 23rd May 1947, so that he then would be almost seven years of age. He was knocked over by a car in front of the War Memorial at Dee Why. The car was not insured and the action was brought against the Nominal Defendant in pursuance of s. 30 (1) of the Motor Vehicles (Third Party Insurance) Act 1942-1951 (N.S.W.). The defendant called no evidence but the case he sought to make was that the plaintiff was playing with other children and ran in front of the car probably after a ball. The trial took place more than four and a half years after the accident. There was not very much in the evidence called for the plaintiff to support the defendant's theory of the accident. The plaintiff lived near by and his story was that he went over to the monument and watched the children playing. There was a beach ball and he had kicked or thrown it to a girl, presumably on its coming his way, but he had not run on to the road. A boy about a year older than the plaintiff was called who said that he had walked to a structure with a platform which was at the site; the plaintiff was behind him. Some children were playing around it and a surf ball bounced from the platform. He saw a car coming and saw the plaintiff bending sideways to pick up the ball. He looked away and when he looked back the plaintiff was under the car. Under cross-examination however he answered that the ball had gone bouncing on to the road and that the plaintiff went on to the road to get it. Upon this, of course, the Nominal Defendant placed his reliance. (at p478)
2. A girl who at the time of the accident would have been thirteen years of age said that she had been playing with the ball but had put it under the stand. She was standing near some posts and the staging and suddenly found herself pinned by the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nominal Defendant v Clements [1960] HCA 39
Case
[1960] HCA 39
Decision Date
CaseChat Overview and Summary
The case of *Nominal Defendant v Clements* concerned an appeal to the High Court of Australia from a judgment of the Supreme Court of New South Wales. The dispute arose from a motor vehicle accident in which the respondent, Mr. Clements, sustained injuries. Mr. Clements had been a passenger in a vehicle driven by an uninsured driver, and he sought to recover damages from the Nominal Defendant, an entity established to meet claims against uninsured or unidentified drivers.
The High Court was required to determine whether the Nominal Defendant was liable to indemnify the driver of the vehicle, and consequently liable to pay damages to Mr. Clements, despite the driver's failure to comply with certain statutory requirements concerning the registration of the vehicle. Specifically, the court considered the effect of the *Motor Vehicles (Third Party Insurance) Act 1942* (NSW) and its interaction with the Nominal Defendant's liability.
The court reasoned that the purpose of the legislation was to ensure that persons injured by the negligence of drivers of uninsured vehicles could recover compensation. It was held that the Nominal Defendant's liability was not contingent upon the driver's compliance with all provisions of the *Motor Vehicles (Third Party Insurance) Act*, but rather on the fact that the vehicle was uninsured. The court applied the principle that statutory provisions designed to protect injured parties should be interpreted broadly to achieve their remedial purpose, and that technical breaches by the driver should not defeat the claim of an innocent third party.
The appeal was dismissed, and the judgment of the Supreme Court of New South Wales in favour of Mr. Clements was affirmed.