McCARTHY V. McCARTHY

ORIGINAL

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

(ORAL) Judgment delivered at_. SYDNEY cunsa/s 11 Geng, are Be MN on..WEDNESDAY, 16th NOVEMBER 1955

McCARTHY ve McCARTHY

JUDGMENT (ORAL DIXON C.J. WILLLAMS 3. FULEAGAR J. KITTO Js TAYLOR J.

McC. CART:

DIXON C.J.: This is an appeal from a decision of the Full Court of the Supreme Court of New South Wales, refusing a new trial in an action brought for personal injuries.

At the trial at which Brereton J. presided the jury found a verdict for the defendant. A new trial was moved for on a complaint of misdirection.

The circumstances that are relied upon as material may be the product of a typical case, but they are said to involve unusual incidents.

The accident, by reason of which the plaintiff suffered personal injuries, was the result of the purchase, by two brothers, who are the plaintiff and defendant, of a motor eycle. They were not experienced in the use of a motor cycle. Each obtained a permit to use the motor cycle.

On an occasion when, according to the plaintiff, he was in the side car, and his brother, the defendant, was driving the motor cycle, an accident occurred in which the plaintiff sustained injuries of a somewhat serious description.

The plaintiff proved the facts, by his personal evidence, and in the course of his evidence he described how the accident occurred, giving the details of what would amount to some mismanagement by the defendant of the vehicle.

The plaintiff called no further evidence and the

defendant then gave evidence.

The defendant, in the course of his. examination in chief, confirmed the plaintiff's version of the accident, and in the course of his cross-examination was very easily induced to confess, in effect, material facts amounting to the cause of action.

In the course of his address to the jury, the plaintiff's counsel, unfortunately, referred to the fact that the solicitor for the defendant was the State Crown Solicitor. He