Williams v Smith [1960] HCA 22

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Menzies JJ. Williams v Smith [1960] HCA 22

ORDER Appeal allowed with costs. Order of the Supreme Court discharged and in lieu thereof appeal to the Full Court dismissed with costs.

Dixon C.J.delivered the judgment of the Court:—

April 27 Dixon C.J.

This is an appeal from an order of the Supreme Court entering judgment for the defendant after allowing an appeal from a verdict of a jury for the plaintiff. The action was an action of negligence for personal injuries. The accident out of which personal injuries arose occurred as long ago as 27th February 1955. The plaintiff is a young man, a youth, who was injured while he was riding a motor-cycle along the Lawrence Hargreave Drive. He was proceeding in the direction of Wollongong. He collided with a vehicle, a panel-van, driving in the opposite direction.

The Full Court by a majority decided that on his own case the plaintiff ought to have been found guilty of contributory negligence and that the defendant was entitled to such a finding as a matter of law. We are not prepared to concur in that view.

In New South Wales the jurisdiction to enter a verdict contrary to that of a jury is not exactly the same as it is in the States where the Judicature Act prevails. As long ago as 1931 I stated what I conceived to be the position in this State, in a passage I shall read from Shepherd v. Felt and Textiles of Australia Ltd. [1] : "Without statutory authority the Court could not enter a verdict in lieu of that set aside, unless empowered to do so by a reservation made at the trial with the consent of the parties actual or implied. The statutory power of the Supreme Court of New South Wales to enter a verdict is much less extensive than that conferred upon the Court of Appeal in England by Order LVIII, r. 4, and is confined by the terms of s. 7 of the Supreme Court Procedure Act 1900 to cases in which upon the evidence the party is, as a matter of law, entitled to a verdict. Such a case arises when a party upon whom the burden lies of proving an issue fails to adduce evidence sufficient to discharge the onus. For the insufficiency of evidence to support an issue is a matter of law, upon which the Court must direct the jury. But it is not always a question of law whether evidence adduced in support of an issue is not only sufficient to discharge the burden of proof but so conclusively establishes the issue that a finding to the contrary should be set aside. Indeed, more often than not, it is a question whether, having regard to the great probative force of the evidence, the Court in Banco, in the exercise of its control, ought to set aside the verdict as perverse. But sometimes the facts from which a legal conclusion arises in favour of the party who has the onus of proof appear in a manner which entitles or requires the Court to notice and act upon them. This may be because facts are admitted or undisputed, or because the question turns upon the interpretation or effect of documents" [2] In the well-known case of Packham v. Commissioner for Railways [3] the late Chief Justice Sir Frederick Jordan dealt with the effect of that doctrine which the foregoing passage attempts to state as it applies in cases where there is a defence of contributory negligence. His Honour used language perhaps admitting of a less exact application than the law may require and it may be that it has been in some cases interpreted in too wide a sense.