Nominal Defendant v Clements [1960] HCA 39

High Court of Australia Dixon C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Nominal Defendant v Clements [1960] HCA 39

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 28 Dixon C.J.

The purpose of this appeal by a defendant is to obtain a new trial of an action for damages for personal injuries brought by an infant by his next friend in which a verdict for the plaintiff for £2,000 was found. The injuries were sustained by the plaintiff on 1st May 1954. He appears to have been born on 23rd May 1947, so that he then would be almost seven years of age. He was knocked over by a car in front of the War Memorial at Dee Why. The car was not insured and the action was brought against the Nominal Defendant in pursuance of s. 30 (1) of the Motor Vehicles (Third Party Insurance) Act 1942-1951 (N.S.W.). The defendant called no evidence but the case he sought to make was that the plaintiff was playing with other children and ran in front of the car probably after a ball. The trial took place more than four and a half years after the accident. There was not very much in the evidence called for the plaintiff to support the defendant's theory of the accident. The plaintiff lived near by and his story was that he went over to the monument and watched the children playing. There was a beach ball and he had kicked or thrown it to a girl, presumably on its coming his way, but he had not run on to the road. A boy about a year older than the plaintiff was called who said that he had walked to a structure with a platform which was at the site; the plaintiff was behind him. Some children were playing around it and a surf ball bounced from the platform. He saw a car coming and saw the plaintiff bending sideways to pick up the ball. He looked away and when he looked back the plaintiff was under the car. Under cross-examination however he answered that the ball had gone bouncing on to the road and that the plaintiff went on to the road to get it. Upon this, of course, the Nominal Defendant placed his reliance.