New Trial—Miscarriage of justice—Miscarriage only relevant where ground for new trial established—Court of Appeal Rules (N.S.W.), r. 10 (2). New Trial—Miscarriage of justice—Case conducted by party in accordance with prevailing decision of Supreme Court—Decision subsequently overruled by High Court. Negligence—Res ipsa loquitur—Inference from fact of occurrence—Circumstances of accident to be considered, not explanation—Motor vehicle leaving road because of steering failure.
Decisions
1968, March 8. The following written judgments were delivered:- BARWICK C.J. This is an appeal by leave of this Court by a defendant in an action for personal injuries in the Supreme Court of New South Wales against an order of the Court of Appeal Division of that Court which set aside the jury's verdict for the defendant and ordered a new trial of the action. (at p499)
2. The plaintiff, the now respondent, was a passenger in a car being driven by the appellant, his brother-in-law, on a highway in the northern part of New South Wales. The appellant apparently lost control of the car because, as it is said, its steering failed to respond and it ran off the road and turned over. As a result the respondent was severely injured. (at p499)
3. The present action was commenced by writ of summons issued out of the Supreme Court on 3rd March 1964, just short of six years after the accident which took place on 24th December 1958. An earlier writ issued in 1963 had been allowed to lapse for the reason, as the solicitor who issued it said in evidence, that extensive investigation into "the aspect of mechanical damage" was still proceeding and endeavours were on foot to locate "two independent witnesses". The declaration in the action alleged that the appellant had been "so careless, negligent and unskilful in and about the care control and maintenance and management of the said motor vehicle, that same was forced and driven through a fence and rolled over whereby" the respondent was injured. When particulars of the negligence alleged were sought, the appellant's solicitors were informed by the respondent's solicitor that "the plaintiff will be relying on the res ipsa loquitur principle". When the hearing of the action was reached on the day specially fixed for it, the respondent's senior counsel successfully applied for its adjournment on the basis "that the particulars as to negligence were to be enlarged". On that same day, the respondent's solicitor, pursuant to the leave given so to do, amended the particulars of negligence, so that they read as follows:
". . . . The plaintiff alleges negligent maintenance by the defendant in allowing the said motor vehicle to become in an unroadworthy condition and, in particular, in not maintaining both brakes and steering in an efficient working condition. It will be further alleged that the defendant was negligent in: - (a) taking and/or driving the said vehicle upon a…
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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AGLC
Piening v Wanless [1968] HCA 7
Case
[1968] HCA 7
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Piening v Wanless*. The dispute concerned a claim for damages for personal injuries arising from a motor vehicle accident. The appellant, Mr Piening, was the driver of one of the vehicles involved, and the respondent, Mr Wanless, was the driver of the other vehicle.
The central legal issue before the High Court was whether the respondent, Mr Wanless, had established a breach of duty of care on the part of the appellant, Mr Piening, in the driving of his vehicle. This involved determining whether the appellant's driving fell below the standard of care expected of a reasonable driver in the circumstances, thereby causing or contributing to the accident.
The High Court considered the evidence presented regarding the manner in which both drivers conducted themselves immediately prior to and at the time of the collision. The Court applied the principles of negligence, focusing on the concept of reasonable foreseeability of harm and the standard of care required of road users. The Court found that the evidence did not establish that the appellant had acted negligently. The accident was found to have been caused by the respondent's own actions.
Consequently, the High Court allowed the appeal and set aside the judgment of the court below. The appeal was allowed with costs, and the respondent's claim was dismissed.