Transport & General Insurance Co Ltd v Edmondson [1961] HCA 86

High Court of Australia McTiernan, Kitto, Taylor, Menzies and Windeyer JJ. Transport & General Insurance Co Ltd v Edmondson [1961] HCA 86

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 13 McTiernan, Taylor and Menzies JJ.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales by which a new trial was directed of an action in which the appellant was the defendant and the respondent was the plaintiff. The incident which gave rise to the action was a collision between two motor cars, one of which was driven by the respondent and the other, owned by the appellant, was driven by its employee. As a result of the collision the respondent was injured and the driver of the appellant's vehicle was killed. Immediately before the collision the two vehicles were being driven in opposite directions on a straight road and the respondent's case was that the appellant's vehicle pulled out sharply from behind a car which it had overtaken and, thereupon struck the respondent's car as it was proceeding along the road on its correct side. On the other hand, the appellant's case was that, after proceeding for some little distance on the unsealed shoulder of the road on its correct side, the respondent's car suddenly veered out on to the sealed portion of the road and proceeded over the centre of the sealed strip where it struck the appellant's vehicle. In the result the jury returned a verdict for the defendant but, as already appears, an appeal to the Full Court succeeded and the verdict was set aside.

The ground upon which the Full Court directed a new trial was that certain observations which the learned trial judge made when dealing with the issue of contributory negligence in the course of his summing-up, were inaccurate and irrelevant and might well, in the circumstances of the case, have influenced the jury in reaching their verdict. After hearing argument on this appeal we entertain some doubt whether we would have reached the same conclusion but as we think there is a further ground justifying the order for a new trial it is unnecessary that we should express a final view on the point.