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Piddington v Bennett and Wood Pty Ltd

Piddington v Bennett and Wood Pty Ltd

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Case Copied 23 February 1940 60 min read

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63 CLR 533

PIDDINGTON BENNETT

PROPRIETARY LIMITED EvidenceRelevancy-Explanation of witness' presence at scene of accident-Cross-

examination-Evidence in contradictionNew trial-Influence of inadmissible 1939-1940.

In an action for negligence which arose out of an accident in a public street, a witness for the plaintiff stated that he was in the street and saw the accident, he had been doing a message for one J. at a bank which was distant a block or two from the scene of the accident. The bank manager, who was called by the defendant, said that there had not been any operation on J. 's account on the day of the accident, and he produced an authenticated copy of the account in support of his statement. The jury returned a verdict for the

Held, by Dixon, Evatt and McTiernan JJ. (Latham C.J. and Starke J. dis- senting), that the bank manager's evidence was inadmissible and the mis- reception of the evidence could not be treated as an immaterial error not reasonably capable of affecting the verdict of the jury; therefore a new trial should be granted.

Decision of the Supreme Court of New South Wales (Full Court) reversed.

APPEAL from the Supreme Court of New South Wales.

Albert Bathurst Piddington was on 11th April 1938 knocked down in Phillip Street, Sydney, by a motor cycle and side-car driven

63 CLR 534

OF A. by a servant of Bennett &Wood Pty. Ltd. He was injured and

brought an action in the Supreme Court of New South Wales in which he claimed from Bennett &Wood Pty. Ltd. the sum of £15,000 as damages, alleging negligence on the part of its servant in the management of the motor cycle.

One Donnellan, who was called on behalf of the plaintiff, said that he had witnessed the accident, and he proceeded to describe it. He was cross-examined as to how he came to be at the scene of the accident. He explained that he "was after doing a message for Major Jarvie." At first he said that on Jarvie's behalf he was going to the branch of the Bank of New South Wales in Hunter Street to deposit or withdraw money, he had forgotten which. Afterwards he amended this, in reply to a question asked by the trial judge, by saying that he had already been at the bank and was on his way back to 164 Phillip Street, where he resided and was employed as caretaker. A further question put to him in cross- examination was: "You were either cashing a cheque for Major Jarvie over the counter of the Bank of New South Wales in Hunter Street, or you were making a deposit ?" to which he replied: " Yes, that might be." He stated that when he arrived at the intersection of Martin Place and Phillip Street he saw a man whom he knew and to whom he desired to speak, but as the man was engaged in conversation with another person he, Donnellan, stood there for about seven…

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

Case: [1940] HCA 2
Decision Date: 23 February 1940

CaseChat Overview and Summary

In an action for negligence arising from a street accident, Albert Bathurst Piddington (the appellant) sued Bennett & Wood Pty Ltd (the respondent) for damages after being struck by a motor cycle driven by the respondent's employee. The appellant alleged negligence in the operation of the motor cycle. A key witness for the appellant, Donnellan, testified to witnessing the accident and explained his presence at the scene by stating he had been running an errand for a Major Jarvie at a bank. The respondent called the bank manager, who produced records indicating no transactions on Jarvie's account on the day of the accident, and testified that Donnellan had not conducted any banking operations for Jarvie. This evidence was admitted over objection, and the jury returned a verdict for the respondent. The Full Court of the Supreme Court of New South Wales refused the appellant's application for a new trial, with one judge dissenting. The appellant appealed to the High Court.

The legal issues before the High Court were whether the bank manager's evidence was admissible, and if not, whether its admission constituted an error that reasonably could have influenced the jury's verdict, thereby necessitating a new trial. Specifically, the court had to determine if the evidence, which contradicted the witness Donnellan's explanation for his presence at the scene, was relevant to the facts in issue or merely collateral to Donnellan's general credit, and if it fell within any exceptions to the rule against contradicting evidence on collateral matters.

A majority of the High Court, comprising Dixon, Evatt, and McTiernan JJ., held that the bank manager's evidence was inadmissible. They reasoned that while evidence of a witness's presence and opportunity to observe is relevant to the facts in issue, the bank manager's testimony did not directly disprove Donnellan's presence at the scene of the accident. Instead, it merely contradicted a collateral explanation for his presence, and such evidence is generally inadmissible if it goes only to the witness's credit. The majority found that the misreception of this evidence could not be dismissed as an immaterial error, as it was reasonably capable of affecting the jury's verdict by undermining the credibility of a crucial witness. Consequently, the appeal was allowed, and a new trial was ordered. Latham C.J. and Starke J. dissented, finding the evidence admissible as it tended to disprove the explanation for Donnellan's presence, and that even if inadmissible, it was of little weight and unlikely to have prejudiced the appellant.

Orders