McCann v Parsons [1954] HCA 70

McCann v Parsons [1954] HCA 70

The appropriate question in cases where an authorized insurer is the real party defending is whether the insurer, not the nominal defendant, discovered the fresh evidence and acted with reasonable diligence. In this case, given the gravity and potential impact of the new evidence (including a strong showing from a new witness) and mindful of the justice required, a new trial should be ordered on all issues, not just damages.

Parties
Appellant/defendant: Albert Allan McCann; Respondent/plaintiff: Norma Joan Parsons
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Full Court of the Supreme Court of New South Wales
Outcome
Appeal allowed; order of Supreme Court discharged; new trial ordered generally.
Legal Topics
New Trial, Fresh Evidence, Motor Vehicle Accidents, Third Party Insurance, Personal Injury
Civil Procedure Insurance Law Torts New Trial Fresh Evidence Motor Vehicle Accidents Third Party Insurance Personal Injury

Case Brief

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Parties

Albert Allan McCann

Appellant/defendant

Norma Joan Parsons

Respondent/plaintiff

Procedural Posture

Appeal / Appeal From Full Court of the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a new trial generally should be granted on the ground of discovery of fresh evidence in a motor vehicle injury case with a nominal defendant and actual insurer defendant under the Motor Vehicles (Third Party Insurance) Act 1942-1951 (N.S.W.)
  2. 2 Appropriateness of using depositions as fresh evidence instead of affidavits
  3. 3 Whether the diligence and knowledge of the insurer, as opposed to the nominal defendant, is relevant to granting a new trial

Ratio Decidendi

The appropriate question in cases where an authorized insurer is the real party defending is whether the insurer, not the nominal defendant, discovered the fresh evidence and acted with reasonable diligence. In this case, given the gravity and potential impact of the new evidence (including a strong showing from a new witness) and mindful of the justice required, a new trial should be ordered on all issues, not just damages.

Court Disposition

Appeal allowed; order of Supreme Court discharged; new trial ordered generally.

Orders

  • Application to amend the notice of motion to include new evidence allowed.
  • Verdict wholly set aside and new trial ordered.