Thatcher v Charles

[1961] HCA 5

HIGH COURT OF AUSTRALIA

Fullagar, Kitto, Menzies and Windeyer JJ.

THATCHER v. CHARLES

(1961) 104 CLR 57

6 March 1961

Negligence

Negligence—Child injured by defendant's car—Conversation with defendant prior to accident—Threat of retaliation by child's father if child injured—Admissibility—Conversation with defendant subsequent to accident—Defendant accused of driving too fast—No reply—Admissibility—Whether wrongful admission of evidence justified new trial—Whether damages awarded excessive—Action for damages—General Rules of the Supreme Court (N.S.W.), O. XXII, r. 15.

Decisions

1961, March 6.
The following written judgments were delivered:-
FULLAGAR J. In this case the Full Court of the Supreme Court of New South Wales refused to order a new trial of an action in which the infant plaintiff, Pamela Ann Charles, recovered damages against the defendant Thatcher in respect of injuries suffered when she was struck by a motor car driven by him. The grounds of the appeal to that Court, and of the appeal to this Court, were (1) that the learned trial judge was in error in admitting evidence of certain conversations, (2) that the damages awarded by the jury were excessive. (at p60)

2. The conversations in question were two. The first took place at some unspecified time before the accident. There was evidence that Thatcher was in the habit of riding a motor cycle about the community housing centre in which the accident occurred, and evidence (which I should have thought clearly inadmissible) that he rode it in a dangerous manner. The father and mother of the plaintiff deposed that on one occasion the father (who was chopping wood at the time) said to Thatcher in the presence of the mother: "If you run over one of my children, I will put this hatchet through you." To this, it was said, Thatcher made no reply. The two versions of what was said are not identical, but the difference is immaterial. (at p60)

3. This evidence was, in my opinion, clearly inadmissible. It was put that it conveyed to the defendant a warning of the fact that children frequented the area. But this appears to me to be an altogether unreal view. Neither the purport of what the father said, nor the purpose of its being tendered in evidence seems to me to have had any genuine relation to the knowledge of the defendant that children frequented the place of the accident. The evidence went to show that the defendant was in the habit of riding his motor cycle so recklessly as to provoke an emphatic protest from an observer. This was quite irrelevant matter, and the only possible way in which its introduction could really advance the plaintiff's case or damage the defendant's case was by creating prejudice in the minds of the jury by conveying the impression that the defendant was an habitually reckless driver of motor vehicles. In that aspect it could be very damaging indeed to the defendant, but it had no real bearing on any issue in the case, and it ought, in my opinion, to have been…