RE-TRIAL GRANTED

Ashburton Guardian, Volume 67, Issue 47, 5 December 1946, Page 3

RE-TRIAL GRANTED

CLAIM ARISING FROM ACCIDENT MR JUSTICE BLAIR'S JUDGMENT Judgment has been delivered in Christchurch by his Honour Mr Justice Blair, granting a new trial on the application of the plaintiff, Derrick Charles Edmonds, an electrician, of Christchurch (Mr T. A. Gresson and Mr E. B. E. Taylor) in proceedings arising out of an accident in which 'plaintiff and defendants, Alexander Bennett, a farmer, of Riverside, Ashburton, and Douglas McLaren Kidd, a traveller, of Ashburton (Dr. A, L. Haslam and Mr V. W. Russell) were -involved. In his judgment, his Honour, said that the action was heard by him in Christchurch on August 6 and August 7. The claim was one for injuries alleged to have been caused to the plaintiff by the negligence of the second defendant in the driving of a motorcar owned by the first defendant. The amount claimed was £1750 general damages, and £296 special damages. The jury had found that defendants were negligent in failing to give way to the plaintiff’s motor-cycle approaching on the right, in failing to swerve or pull up the car to avoid the accident, and in not driving as close to the left-hand side of the road as was reasonably practicable. The jury had also decided that, having found that both parties were negligent, each of j them, by the exercise of reasonable care, could have avoided the result of: the other man’s negligence. It assessed the general damages to which plaintiff was entitled as £1250 and the special damages as £296.

Order Justified No question arose in respect of any of the issues except the last, his Honour said. The jury retired to consider the verdict at approximately 4 p.m. on August 7. The jury returned at approximately 6.30 p.m. with its verdict, except that the only answer to the last issue was “yes.” “I then explained to them that the issue called for more than a simple affirmative or negative answer,” his Honour stated. “The jury added the word •noth’ after the word f yes’ as its answer to the third issue. At my request the explanatory words were later added. “Upon consideration, I - have grave doubts as to whether the jury did appreciate thl precise meaning of the answer as ultimately signed by the foreman; and the circumstances seem to me to justify the making of an order for a new trial. The verdict as attempted to he expressed by the jury ■was, I think, fairly translated by me. I certainly did, my very best to do so, but I am, unhappy in the belief that the foreman of the jury must have felt somewhat overhelmed by having suddenly imposed on him a » task he felt somewhat beyond him, and I do not know that I can therefore take the verdict as ultimately settled as being fully appreciated and understood by all the jury. “The above remarks apply only to ■ the last issue. It seems to me that I would be doing an injustice to both parties if I made a general order for re-trial of the whole of the action. The order I makei is that the re-trial be limited to the jury’s answer to the last issue Only, and that the other issues stand.” Points at issue, with the jura’s findings, were as follows when the case came before the Supreme Court in August:—Were the defendants negligent in (a) failing to give way to the plaintiff’s motor-cycle approaching from the right?—Yes. (b) Failing to keep a proper look-out while driving the car? —Yes. (c) Failing to swerve or pull up the car so as to avoid the accident? —Yes. (d) Driving the cav at a speed which was dangerous having regard to all the circumstances? — No. Was the plaintiff negligent in (a) not keeping a proper look-out? —no. (b) Not stopping when the accident was imminent? —Yes. (c) Not turning to the right or the left when the accident was imminent? —No. (d) Not driving as close to his left-hand side of the road as" was reasonably practicable? —Yes (e) Driving at a speed ■which was excessive in the. circumstances? —No. (f) Failing to give way to defendant’s vehicle?—No.

Another question was: “If negligence is found as against both the defendant and the plaintiff then could both or either of the parties (if only one, which one?) notwithstanding the other’s negligence, have, by the exercise of reasonable care, avoided the accident?” The answer to this question was “Yes, both,” but his Honour pointed out that the answer was not complete, and the jury then answered: “Having found both of them negligent, we find that each of. them, by the exercise £f reasonable care, could have avoided the result of the other party’s negligence.” The jury assessed the general damages at £1250.

After the Court adjourned, five members of the jury who had waited in the courtroom approached the Registrar (Mr E. G. Rhodes) and expressed their concern that judgment had been given for the defendants. They said that the jury had decided unanimously that damages should be awarded to the plaintiff. On instructions from his Honour, Mr Rhodes informed the men that (he jury’s findings bad established tbe / case for judgment for the defendants, and. that the matter was out of the hands of 'the jury. He said that their answer to the last question had been made honestly, qnd it deprived them of any pdVer to award damages.