Manning v Bernard Manning & Co Pty Ltd [1960] HCA 20; (1960) 101 CLR 345 (22 April 1960)

HIGH COURT OF AUSTRALIA

MANNING v. BERNARD MANNING & CO. PTY. LTD. [1960] HCA 20; (1960) 101 CLR 345

New Trial

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1) and Menzies(1) JJ.

CATCHWORDS

New Trial - Action at nisi prius - Address to jury - Complaint as to treatment of matters of fact by counsel for successful party - Principles governing grant of new trial.

HEARING

Sydney, 1960, March 29-31; April 22. 22:4:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

April 22.
THE COURT delivered the following written judgment:-
This is an appeal by a plaintiff in an action for damages for personal South Wales dismissing an application to set aside a verdict found for the defendant and to order a new trial. The plaintiff who brought the action is the widow of one Bernard Manning who was killed in the accident in which she was injured. She sued to recover damages for injuries which she sustained. Her husband's death and her injuries were caused by the overturning of a car in which they and their daughter, a girl about twenty-two years of age, were travelling. The car was owned by a family company named Bernard Manning & Co. Pty. Limited. The plaintiff's declaration alleged that her late husband, Bernard Manning, was the servant and agent of the defendant company which by its said servant and agent so negligently and unskilfully drove upon a public highway a motor car in which the plaintiff was travelling as a passenger that the car overturned and injured the plaintiff. The allegation that Bernard Manning was driving the car as the servant and agent of the defendant was perhaps an unnecessary averment in view of s. 16 of the Motor Vehicle (Third Party Insurance) Act 1942-1951, for by that provision whoever was driving would have been conclusively presumed to be the agent of the defendant company which owned the car. (at p346)

2. The accident occurred as long ago as 16th December 1954. It appears that the late Bernard Manning, the plaintiff, and their daughter Monique Manning set out upon a journey from Sydney to Melbourne in the car, which was a first model Holden. It was driven by Monique Manning as far as Goulburn but according to her evidence when they resumed their journey after they had had some refreshments at Goulburn her father took the wheel. Monique Manning sat next to him and the plaintiff, her mother, sat in the back seat. The mother's evidence was of no value because any recollection of the casualty appears to have been removed by retrograde amnesia. After they had proceeded along the road from Goulburn to a point within two miles of the township of Breadalbane their car overturned, in circumstances to be stated, and the father was killed and the two ladies injured. The defendant called no evidence and the case rested upon the evidence called for the plaintiff. (at p347)

3. The evidence in chief of Monique Manning was that her father was driving at a high speed - "a good sixty-five miles an hour". Her mother, she said, had requested him to slow down and she had offered to take the wheel. He slowed down to forty-five miles per hour. There was a small car ahead which they followed for about two miles at a speed of forty-five miles per hour. They were travelling about fifty yards behind the small car. Her father suddenly put his foot on the accelerator, the car shot forward and he swung to the right to pass the small car. The Holden went off the bitumen but without passing the small car swung further to the middle of the road. Beyond that the witness said she could not remember. She could not state when the car overturned. The witness found herself lying on the roadway. Police and ambulance came. Her father was dead and her mother badly injured. (at p347)

4. The other material evidence is that of the driver of the small car in front. His name was Thorburn. The car was a Renault which he was driving from Goulburn to Breadalbane. In his rear vision mirror he saw the car behind him. He could not see who was in it but when the car was about twenty-five yards behind him he did see it come over to the edge of the bitumen on the right. He took his car over to the edge of the bitumen on the left. He saw the Holden car turn to go round him. It turned "a bit sharp". It went off the bitumen on the right-hand side of the road and pulled straight back again. It went off on the left-hand side of the road and when it turned back (that is to the right) again the car rolled over. Thorburn stopped his car. He said that on the first turn of the Holden car it seemed to go about a foot off the bitumen on the gravel. Then it came straight back across at right angles on the other side of the road, viz. the left. It turned again as if to go back on the wrong side very sharply. After the accident the witness surveyed the scene. The young woman was lying on the right-hand side of the yellow line and the older, that is the plaintiff, on the left-hand side of the yellow line. The man was lying upon the roadway with a door handle in his left hand clenched tightly. It appeared to the witness to be the locking handle of a Holden car but he did not look closely. No evidence was given showing whence the handle came. (at p348)

5. When the police came upon the scene they found the car resting on its roof or hood on the bitumen facing north, that is towards Goulburn. On the off-side of the bitumen looking south they found a mark between the bitumen and the shoulder of the road, a greyish-white mark a couple of feet from the off-side shoulder of the bitumen itself. The rear near-side tyre of the car was blown out. The rim of that wheel was marked, scratched, and slightly dented and it had a substance similar to the bitumen roadway adhering to the edge of it near where it made contact with the tyre. The wall of the tyre was cut on the outside of the tyre. (at p348)

6. A great deal of evidence was given on the question of damages but the jury found a verdict for the defendant. The application on behalf of the plaintiff for a new trial was not founded on any misdirection in law by the learned judge, or upon any misreception or wrongful rejection of evidence or upon any other error of law, but was entirely based on objections going to matters of fact. (at p348)

7. The chief objections related to the effect that might be attributed to the blow-out, to the manner in which a contention was brought forward that Monique Manning and not her father was in fact or might have been the driver of the car and the admissibility and effect of such a contention, to the use made by the defendant's counsel of the deceased's grasping the door handle, and to the directions or want of directions on these matters in the judge's charge to the jury. The plaintiff's case was in substance that the irregular manoeuvring of the car and the speed with which it was accompanied in the attempt to pass the small car evidenced negligent driving. Counsel for the defendant pointed to the blow-out as a possible explanation of the accident, suggested that the evidence of speed given by Monique as well as the rest of her account of the accident should be rejected, urging that probably she herself was driving and that there was no reason to infer that the deceased had been negligent. For the plaintiff appellant it was argued that the question whether the irregular movements of the capsized car were due to a blow-out of the tyre ought not to have been left to the jury on the footing that the jury might conclude that the tyre had blown out at a stage when its doing so would account for the movements which otherwise might imply negligence. There was no evidence that it occurred before the car had been driven off the edge of the bitumen on the right, or for that matter before it went off the bitumen to the left; there was no evidence that the subsequent movements in overturning were due to any such fact; indeed, so it was argued, there was no evidence at what point the tyre blew out and the jury should have been so directed. Moreover, this was said to be a matter of law. It is not a point upon which the distinction could be important but clearly enough what was involved was purely a question of adopting a possible explanation of the behaviour of the car. No one could suppose that it was proved by direct evidence at what point the blow-out occurred, but it was a circumstance to be considered. The jury might have been told that there was no evidence as to when the tyre blew out. Indeed before the jury retired to consider their verdict the judge said this. But that would not have justified the jury in neglecting the fact as possibly accounting for what the car did. The whole question was one of the existence of an explanation of the accident that might be considered reasonable. (at p349)

8. Different considerations govern the question relating to the attack upon the credibility of Miss Monique Manning and the claim that her statement that her father was driving should be rejected or distrusted. It would seem from the transcript of the evidence that counsel for the defendant began the cross-examination of this lady by going over in no very significant manner her assertions as to the fact that it was her father who was at the time of the accident driving the car, notwithstanding that she had driven it up to Goulburn. It reads as a cautious and perhaps one may say exploratory attempt to ascertain whether there was any safe ground for challenging that part of her story. The questions would be unlikely to arouse a sense of challenge in a witness and perhaps counsel for the plaintiff might be forgiven if he failed to perceive their drift or purpose. It would then seem that in the course of the cross-examination of Monique Manning that ensued in relation to damages some ground did appear forming a basis for an attack upon the credibility to be attached to some at least of her statements relating to losses in business and their cause. Encouraged, as is suggested, by this, counsel for the defendant made a more general attack upon the credibility of her evidence and, so it is said, put to the jury the view that she had chosen to say that her father was driving rather than that she was driving at the time of the accident, that as a potential claimant herself she had a motive for doing so, and that the whole of her evidence should be discounted or rejected. In support of the theory that it was not the deceased who was driving reliance was placed on the presence in his hand of the car door handle notwithstanding the absence of evidence as to the place whence it came. The appellant complains that the course adopted by the defendant's counsel ought not to have been allowed, and that the judge should have directed the jury that there was no evidence that Monique Manning and not the deceased was driving. A full picture of what occurred at the trial cannot of course be seen by this Court and it is obvious that such a matter lies within the control of the learned judge, part of whose task it was to correct the learned counsel if he thought that he went beyond the limits which the materials before the jury seemed to allow. It was of course the plaintiff's contention that whether you took Thorburn's evidence or Monique Manning's evidence it should be found that the car was managed negligently by the driver. The learned judge put, however, to the jury the defendant's contention that there was some significance in the fact that the deceased had the door handle in his grasp. The following passage from his Honour's summing up shows how the matter was left to the jury: "If you come to the conclusion that it was Monique who was driving and not Mr. Manning, you might regard it as being somewhat important in relation to the question as to what reliance you could place on the other evidence given by Monique in regard to other matters, because if she was lying in that regard then it might assist you in determining whether you will accept her in respect of other evidence she has given. That is a matter entirely for you. However, as I say, it does not matter whether Monique was driving or whether Mr. Manning was driving". Owen J., who dissented from the order made by Street C.J. and Hardie J. refusing the application for a new trial, was of opinion that in effect the jury had been told that they might find that Monique Manning was the driver and that if they did they might treat her account of the accident as one not to be relied upon; but as there was no evidence to support the view that she was the driver and as she had not been cross-examined in support of the thesis the judge should have directed the jury as requested that there was no evidence that she was the driver. This view doubtless has much to commend it but after all the subject was one lying wholly in the realm of fact and the admissibility or fairness of arguments of fact. The case clearly enough was one in which it was quite open to the jury to decline to find negligence on the part of the driver of the Holden car, whichever was the driver, and to treat the accident as one the explanation of which was not on the evidence established or, at all events, as one the explanation of which did not necessarily imply negligence on the part of the driver. It would of course be fallacious first to find, without evidence, that Monique Manning drove the car and on that ground then to disbelieve her account of the accident. But it would be another thing to say that she was not a very convincing witness and to doubt her evidence as to the circumstances of the accident, including her oath that her father was driving. And that was the real contention of the defendant. (at p351)

9. To obtain a new trial in a case where there can be no complaint of the direction in law given by the judge, and no complaint that any error of law arose in the course of the trial, it must be shown that a grave risk of the jury's being misled in their view of the case has nevertheless been occasioned. The case was eminently one for the jury to decide and in such a case to grant a new trial on the ground that arguments of fact were employed which might have misled the jury and went uncorrected by the judge at the trial, is a course to be taken only where the error is plain and the probability of injustice is high. In Taylor v. Ashton (1843) 11 M & W 401, at p 417 [1843] EngR 584; (152 ER 860, at p 867) , Parke B., speaking for the Court of Exchequer, put the principle in a few words: "We cannot say that any wrong observation on a matter of fact, in which we could not concur, is a ground for granting a new trial, if it was left as a question of fact for the jury". It is the distinction between the law which the jury must take from the judge and the facts which fall within the province of the jury which makes inapplicable the considerations dealt with in Balenzuela v. De Gail (1959) 101 CLR 226 . But while the simple principle stated by Parke B. has not been departed from in the law governing the granting of new trials, the remedy has not been withheld when the fair trial of the issues has been prejudiced by a presentation in the summing up of a misguided view of the facts of the case: see Holford v. Melbourne Tramway & Omnibus Co. Ltd. (1909) VLR 497 . In other words, the application of the remedy of a new trial is not restricted by any inflexible rule where it is evident that it is necessary to repair or avoid an injustice which the court sees the conduct of the former trial is calculated to produce. It is a mistake to attempt to subsume the considerations upon which a court will act in granting a new trial under a simple category, still more so to enumerate them in an exhaustive list, but, speaking generally, the court will not interfere where the whole question is one of the treatment by the judge, still less by counsel, of matter of fact. Of course if the judge's charge to the jury introduces matter of prejudice, or plainly is likely to distract the jury's attention from the real issue or issues on which liability depends, or to throw them into confusion about the case, or to lead them to think that theirs was not the responsibility of applying their minds to the evidence and deciding the case as a matter of fact upon the true issues, the court may interfere. However, it is evident that a court must be satisfied that there would be a clear injustice if a verdict stood before it would grant a new trial simply upon the ground that the charge to the jury did not fairly and adequately submit the case of the unsuccessful party to the jury. But the present case is not one in which the opportunity of the jury of considering and deciding fairly upon the facts was likely to be prejudiced by the course taken by the learned judge. (at p352)

10. The appeal should be dismissed. (at p352)

ORDER

Appeal dismissed with costs.