NEW TRIAL REFUSED.

Auckland Star, Volume LV, Issue 224, 20 September 1924, Page 12

NEW TRIAL REFUSED.

DR. MACKENZIE'S APPLICATION | JUDGE'S REPLY TO COUNSEL, j XO MISDIRECTION TO JURY. (liy Telesrapb.—Own Correspondent.) HAMILTON, this day. Tii giving his decision at the Supreme Court. Hamilton, yesterday, in the case in which Henry Dundas Mackenzie, medical practitioner, Auckland, moved, through his eouusel (Mr. J. F. W. Dickson ), for a new trial in the claim brought against him by Marjory Lawrence, and in which a jury at Auckland a few weeks ago found him guilty of negligence and awarded the woman £2000 damages, his Honor Mr. Justice Stringer hciiil it seemed to him quite clear that a misdirection on the part of a judge, in order to justify the granting of a new (rial, must he on a material point of law. Ju this case there wa.s only one question of law on which he directed the jury, and only one point on which they required any direction—that was the i-xteut of the obligations of the defendant .is a medical man in treating a patiout who committed herself to his care. His Honor said he directed the jury on the point, that as defendant held himself out as a professional man lie was required to possess and exercise reasonable care and. skill, and if he failed to do so he was guilty of a breach of his duty, and such .a breach would uniount to negligence in law. Counsel for defendant did not question that that was an unimpeachable direction. What tousel appeared to have done was to liavu obtained all unofficial shorthand report of the summing-up, had subjected that to a somewhat meticulous scrutiny, and had selected certain passages from it which lie said had the effect of misleading the jury, and thus bringing about,a, miscarriage of justice. In his Honor's opinion that was not a misdirection in point of law at all, and was not a ground that would justify a retrial even if it were. He thought defendant would have to show that the observations of the judge were of a character that had led to the verdict being given against the weight of evi-. cleiice, which, of course, would bring the matter under the heading of rule 276. His Honor briefly reviewed the 'evi-. deuce and his observations thereon. He said there waa nothing to show the plaintiff went to defendant for the particular purpose of subjecting herself to the treatment known as the electronic reactions of Abrams, but went to him. as an ordinary practitioner, and it seemed to his Honor that defendant understood that to ho the ca*e. He said himself that he had only added the Abrams treatment to his ordinary practice during the last three years. Counsel for both sides had, in fact, agreed that the Abrams treatment wa» only additional to defendant's ordinary practice./ ' On the second alleged misdirection bis; Honor said he would not recede in the slightest degree from what he had advised-the jury.'- The evidence showed that the defendant had full knowledge of the diagnosis made by Dra; Joseph and Spencer, and that circumstance, in hie Honor's opinion, imposed upon the defendant the necessity to exercise greater care and. alertness in watching the de : velopment of the patient's condition, In each case of a person charged with ncgli genee the issue would depend upon til particular circumstances of the particu ljir.caae.: " ' . • .. .;; .' Then as to the complaint that, it wa stated :td the jury that the" defendan had said cancer could be cured by th Abrams method, it had been agreed b; counsel on both sides that the Abram" method was outside -.the scope." •of ■ thi inquiry, and hie Honor m»de the state ment in question to the jury *s throw ing some light ,pn Mrs. Lawrence's cvi dence that when she left the defendant* care iv March, 1023, she nad been in formed by ■ the defendant that sjie wa. cured of' her trouble; [ His Honor, traversed at length thi remaining instances o". alleged mis direction, and he'd that /what he ha< stated waa amply justified by the cvi dence. He was of opinion - that thi summing-up must be viewed as a whol« and viewed in that manner, he was un able to conceive that anything had beei said by him which was in the elightes degree calculated to mislead the jury o cause them. to draw any erroneous in ference from the-proved facts. - His Honor added that for counsel no to intervene when a judge was niakinj what they considered was a mis-state ment of fact was a radically imprope method to adopt. It was not only th privilege, but the duty of counsel t< intervene in such a case and to have th question settled there and then! His Honor went on to state that afte reviewing cases quoted to him it wa clear from these that it was an impro per method to detach passages from i summing-up, as in the present case. Th authorities showed that the summing-u] had to be looked upon as a whole am regarded in, their general effect. A judg had to sum-up a case immediately oi the conclusion of counsels' addresses and he might be apt to uee expression which would not be quite in the sami form if he had greater time for con sideration. Reading as he had the short hand report' of his summing-up, whiel was substantially what he-had said, h< did not think that it was'in the leas degree calculated to mislead the juri in any substantial respect. Tt seemci to hie Honor that even if the groand put -forward had been permissible ihej would have failed to justify a nev , trial With regard to the point raised that th< verdict was against the weight of cvi dence, the jury saw the witnesses observed their demeanour, and bean their stories. They preferred to bejievi Mrs. Lawrence and her husband, am they were perfectly justified in doing so On the ground that the damages wen excessive Mr. Dickson had abandonee this point. It was a matter entirely a 1 the discretion of the jury, and the 'sun of £2000 could riot,' Wβ Honor thought be said in the circumstances to be exces sive if the jury believed plaintiff's story The unfortunate woman had had her expectation of life very considerably ahof t< ened, and it was impossible to ineaaun that in nice scales, and he considered the jury was. fully justified in awardim the sum they did. The motion therefon lailed on all grounds, and would be dismissed with l-2gns costs. iJhMp f °. f «.e latest noveltiei Mi»s Joan HeUby, head fitter .** - in " tI.L«Jj. Tβ wive s»»TW»rf ,'.f..! 7 .-.-:" "■,"-• - ■- ■■ .