Piening v Wanless [1968] HCA 7

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Piening v Wanless [1968] HCA 7

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1968, Mar. 8 Barwick C.J.

This is an appeal by leave of this Court by a defendant in an action for personal injuries in the Supreme Court of New South Wales against an order of the Court of Appeal Division of that Court which set aside the jury's verdict for the defendant and ordered a new trial of the action.

The plaintiff, the now respondent, was a passenger in a car being driven by the appellant, his brother-in-law, on a highway in the northern part of New South Wales. The appellant apparently lost control of the car because, as it is said, its steering failed to respond and it ran off the road and turned over. As a result the respondent was severely injured.

The present action was commenced by writ of summons issued out of the Supreme Court on 3rd March 1964, just short of six years after the accident which took place on 24th December 1958. An earlier writ issued in 1963 had been allowed to lapse for the reason, as the solicitor who issued it said in evidence, that extensive investigation into "the aspect of mechanical damage" was still proceeding and endeavours were on foot to locate "two independent witnesses". The declaration in the action alleged that the appellant had been "so careless, negligent and unskilful in and about the care control and maintenance and management of the said motor vehicle, that same was forced and driven through a fence and rolled over whereby" the respondent was injured. When particulars of the negligence alleged were sought, the appellant's solicitors were informed by the respondent's solicitor that "the plaintiff will be relying on the res ipsa loquitur principle". When the hearing of the action was reached on the day specially fixed for it, the respondent's senior counsel successfully applied for its adjournment on the basis "that the particulars as to negligence were to be enlarged". On that same day, the respondent's solicitor, pursuant to the leave given so to do, amended the particulars of negligence, so that they read as follows: