PARKINS V. MCDONALD

IN THE HIGH COURT OF AUSTRALIA

McDONALD

REASONS FOR JUDGMENT

Oral . Judgment delivered at. SV OROY on cesseseseeeeenenee

on.._.Mondey 25th August 1969

GaRDER

application for leave to appeal refused. No order as to costs except that the Solicitors for the applicant pay to the respondent the whole of the costs

incurred by the respondent on Friday, 15th August, 1969 and also pay the whole of the

applicant's costs of that day.

JUDGMENT (ai

PARKINS ve

Me DONALD

The applicant for leave obtained a verdict in an action at law, tried in the Supreme Court of New South Wales by a Judge sitting without a jury. The cause of action was negligence in the management of a motor car on a public road, the appellant being a passenger in the car not being the car of the respondent.

The trial Judge found that negligence in the circumstance that the respondent had driven his car on a Gusty road past the car in which the applicant was riding as the two cars at a high speed aporoached a bend in the road of the proximity of which the respondent was aware.

In the Judge's view this action of the respondent, as might have been foreseen, so raised the dust that the driver of the car in which the applicant was travelling became unable to see, with the consequence that his car ran off the road at the bend.

The Supreme Court, Court of Appeal division, set this verdict aside, as well as I can understand from its judgment, on the ground that there was no sufficient evidence to support the version of the incident which the trial Judge had found in fact and on which he had acted. The actual expression used by the Court is that the conclusion of fact

w not justified by the evidence; but a verdict was not

entered for the respondent. Although the notice of appeal asked only for a new trial we are told by the respondent's

counsel that at the hearing of the appeal he asked for a