Alford v Magee [1952] HCA 3

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. Alford v Magee [1952] HCA 3

Cur. adv. vult.

The Court delivered the following written judgment:—

1952, March 5 Dixon, Williams, Webb, Fullagar and Kitto JJ.

This is an appeal from a judgment of the Supreme Court of Victoria. Kathleen Joyce Alford brought an action in the Supreme Court against Kevin William Magee under Part III. of the Wrongs Act 1928, which is the Victorian equivalent of Lord Campbell's Act. The action was brought in respect of the death of the plaintiff's husband and on behalf of the plaintiff and three infant children. The husband was killed as a result of a collision between a motor cycle ridden by him and a motor car driven by the defendant. The plaintiff alleged that the collision was caused by the negligent driving of his motor car by the defendant. The defendant by his defence denied negligence, and alleged that "there was contributory negligence on the part of the deceased". The plaintiff joined issue, and also alleged, in par. 2 of her reply, that, "if the deceased was guilty of contributory negligence (which allegation is denied) the defendant could nevertheless by the exercise of reasonable care have avoided the consequences of such negligence and the said collision, and had the last opportunity of so doing". This has become a generally adopted, and more or less stereotyped, form of pleading in Victoria. The action was tried by O'Bryan J. with a jury. The jury returned a verdict for the plaintiff, and assessed damages at the sum of £3,450, which they apportioned between the plaintiff and the three children. The defendant appealed to the Full Court. The Full Court by a majority (Dean and Sholl JJ., Martin J. dissenting) set aside the verdict and the judgment founded thereon, and ordered a new trial. Martin J. was of opinion that there should be a new trial but only on the question of damages—a matter of minor importance, consideration of which may be postponed. From this judgment of the Full Court the plaintiff appeals by leave to this Court. The ground upon which the Full Court set aside the verdict and judgment was that the learned trial judge had misdirected the jury with regard to contributory negligence, and, in particular, with regard to the matters raised by par. 2 of the reply.