Pateman v Higgin [1957] HCA 62

High Court of Australia McTiernan, Webb, Kitto and Taylor JJ. Pateman v Higgin [1957] HCA 62

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 13 McTiernan J.

In this action, on an application by the plaintiff, the Full Court of the Supreme Court of New South Wales granted a new trial on damages only. The order of the Full Court is an exercise of its power under s. 160, par. (b) of the Common Law Procedure Act 1899 of New South Wales. It is within the discretion vested by that provision in the Court to grant a new trial in an action either "generally" or "on some point or points as the Court thinks fit". It is clear that this discretion extends to granting a new trial in an action of negligence on the question of damages only. The defendant, by leave of this Court, has appealed from the order made by the Full Court on the plaintiff's application for a new trial. The ground on which the Full Court granted a new trial was the inadequacy of the damages found by the jury. The defendant does not contend that merely because the damages are inadequate a new trial generally ought to have been granted. His contention is that the verdict is so small that it is right to assume a compromise among the jury and a failure by them to try the issues raised between the parties. The issues of negligence and contributory negligence were left to the jury. The verdict was for the plaintiff with £800 damages. The question of fact at issue between the parties was whether the plaintiff, who was riding a bicycle along a street in Dubbo, gave a signal before turning to the right. The defendant was following, driving a truck. The plaintiff altered his course to the right and there was a collision between the two vehicles in which serious bodily hurt was done to the plaintiff. He swore that he put out his right hand and the defendant swore the opposite. It would appear that the issue of liability turned on the question: whom would the jury believe? Judging the question on the verdict, presumably they gave more credit to the plaintiff than to the defendant.