Commissioner for Government Tram and Omnibus Services v Vickery [1952] HCA 44

85 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER FOR GOVERNMENT 1 yo gyn TRAM AND OMNIBUS SERVICES. pene:

DEFENDANT,

VICKERY . g si Z : 4 5 . RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Appeal—Damages—Assessment by jury—Excessive—Application for new trial—

Discovery of fresh evidence—Availability and character of evidence—Credibility H. C. oF A.

of plaintiff—Influence on result—Excessive damages abandoned as ground.

Once an action has been fought out and a jury has returned a verdict great caution must be exercised before the verdict is set aside and a new trial ordered on the ground that the defeated party has since found himself able to put further evidence before a new jury.

In an application for a new trial on the ground of discovery of fresh evidence the effect of the evidence newly discovered upon the assessment of damages must appear to the Court to be such that it cannot reasonably be supposed that, had it been adduced at the trial, the damages would not have been fixed at an amount more favourable to the party seeking the new trial.

Orr v. Holmes, (1948) 76 C.L.R. 632, applied.

If an application for a new trial is based on the ground that the verdict was obtained by deception that ground must be distinctly alleged and satisfactorily proved.

Decision of the Supreme Court of New South Wales (Full Court): Com- missioner for Road Transport and Tramways v. Vickery (unreported, 1952), affirmed.

Appeat from the Supreme Court of New South Wales. The following statement of facts is substantially as it appears

in the judgment of Street C.J. The plaintiff, Leslie Charles Vickery, at the time of the injury aged fifty-one years, on 13th October 1949, while a passenger in a

1952.

SypNey, Aug. 5, 15.

Dixon O.J., McTiernan, Williams, Webb, Fullagar and Kitto JJ.