AWARD UPSET.

Auckland Star, Volume LXVII, Issue 181, 1 August 1936, Page 17

AWARD UPSET.

DAMAGES FOR INJURY

APPEAL COURT DECISION. JURY'S EXCESSIVE SUM. (By Telegraph.—Press Association.) WELLINGTON, Friday. Judgment was delivered by the Court of Appeal to-day in the case of Edith

Matilda Hodgson against the Hawke's Bay Fanners' Meat Company, Limited, and one of its drivers named Stubbs. The action arose out of an accident at Wliakaronga, near Palnierston North, on December 15, 1935. The appellant was riding a bicycle, and was run into and severely injured by a motor car belonging to the Hawke's Bay Meat Company. Mr. Justice Smith, in delivering the judgment of the Court of Appeal, said this was an appeal from a judgment of Mr. Justice Ostler, ordering a new trial in an action for damages for personal injuries, upon the ground that, having regard to all the circumstances of the case, the damages awarded were so large that no jury could reasonably have given them. Appellant was the wife of a dairy farmer, and assisted him on his farm. While riding her bicycle on the highway between Wliakaronga and Palmerston North in December she was injured in a collision with a motor car. Negligence was admitted on the part of the second named respondent, and the only question before the Court was the assessment of the damages. No claim had ibeen made in her statement of claim in respect of the loss of her services in connection with the farm. That was indeed actionable only at the suit of her husband.

Work on Farm. Nevertheless evidence was given at the hearing ,as to the work the wife had done on the farm up to the time of the accident, and as to her future inability to do this work. In the opinion of the Court of Appeal the evidence as to the nature of the wife's services on the farm showed substantial head damages. Although it was not "referred to by counsel or the judge at the trial, it was only reasonable to suppose that the jury took that loss into account in assessing general damages at the full amount claimed, £2500. It was clear that if the present verdict stood the respondents were' in danger of having to pay twice for one 'loss.

A memorandum had been supplied by counsel, which showed that since the new trial was ordered appellant's husband had made a separate claim for the loss of her services on the farm. In the opinion of the Court of Appeal the proper inference was that the jury were allowed by an oversight of both counsel at the trial and by the judge to award damages in respect of substantial head injuries. Although this point was not taken in the Court .below, it was available in the Court of Appeal and was sufficient to justify the conclusion that the damages were excessive, as both parties contributed to the result.

The appeal was dismissed without costs.