£12,606 CLAIM

Press, Volume XC, Issue 27273, 13 February 1954, Page 3

£12,606 CLAIM

PLAINTIFF’S CASE FAILS

JURY ACCEPTS ALIBI BY DEFENDANT

After a retirement of an hour, a jury in the Supreme Court yesterday found that Kenneth Dean Tilley was not the driver of the motor-car that threw up a stone on the Methven-Ashburton ■ highway on February 1, 1953, and seriously injured the good eye of George Granam Thomson. They also found that the injury to Thomson’s eye was caused by the negligence of the driver of the unknown car. Mr Justice Adams gave judgment for Tilley, with costs according to scale, but not to exceed £3OO, and witnesses’ expenses and disbursements to be fixed by the Registrar. Yesterday was the third day of the hearing of the case in which Thomson, aged 21, formerly a bank clerk, claimed £12,000 general damages and £606 special damages from Tilley, a barman, but a taxi-driver at the time of the' accident.

Mr R. W. Edgley and Mr P. T. Mahon appeared for Thomson. The defendant, Tilley, was represented by Mr R. A. Young and Mr E. M. Hay. Counsel for Defendant This was a pathetic case of a young man with one good eye who elected to ride a motor-cycle on the highway

without even wearing goggles and who, by the worst of luck, was struck by a piece of flying stone and had his good eye damaged irreparably, said Mr Young, addressing the jury, when the hearing was continued yesterday. Eut the jury must not be swayed by sympathy on that account. “In my view this case is nothing more than an impertinent try-on where a gigantic claim is based on Very flimsy evidence,” said counsel. He submitted that there was not the slightest evidence to substantiate the plaintiff’s allegation that Tilley was driving the black Vanguard car that threw up the stone that injured the plaintiff. The defence had brought evidence to show that Tilley took a 'are to th e Salvation Army citadel in Ashburton at 7 p.m., so he could not have been at the Winchmore Hall, six and a half miles away, at the same time.

If the jury did not accept the evidence of an alibi, they had to consider whether there had been any negligence. It could not be held to be negligence on the part of a driver when a car threw up a stone. It was on s °£ the ordinar y risks of the road and, if the stone injured someone, it was what was loosely termed an act or God. It was a most unfortunate matter that Mr Edgley should have gone to see Tilley at his place of employment and if reference to Tilley’s domestic affairs was made it was most improper. The jury could construe that V i- a sign of weakness in the plaintiffs case and an attempt to bolster it up and justify the bringing of a claim before a jury. Alibis were dangerous things, because jf they broke down there were repercussions, but alibi bad not been shaken. The plaintiff had sustained serious injury, but if the jury held Tilley had been! negligent it would be an extravagance to lay all the blame on Tilley. The; damages were grossly exaggerated. If tne plaintiff was given damages it should be for a substantial amount, but for nothing like £12,000. Counsel for Plaintiff Mr Edgley said there had been an attempt to create prejudice because ?IL SOI i lcltor J or the Pontiff saw rniey long before the issue of the x ,? ut , Tilley had admitted -he was told that if he had his running sheet for February 1 he should coni 1 x i solictor, and he was S at Constable Dunlop had identified his car. So the jury should dismiss such irrelevant topics from tneir minds in fairness to the plain■K, and > ln l ee d. to the defendant. I There never had been any doubt that . it was a black Vanguard car that caused the accident and, shortly after ‘ be . iJS?/ de , nt l “? e Plaintiff thought it ley ? There was no doubt that Constable Dunlop saw a black vanguard taxi in Meth ven between 7 T."i. ?, nd , 7 30 pm - on February 1, 1953. It Tilley s evidence was accepted by the jury, then there must have been two black Vanguard taxis in Methven that Sunday within half an hour of each other. One taxi in Methven on a Sunday was an unusual event. Was it feasible that there could have been two on Sunday, February 1, and both of them black Vanguard cars? If there had been two such taxis, information would have been coming in from somewhere about them, and the defence would have brought that evidence in Court. The most positive identification of me car was that by Constable Dunlop, were several witnesses to an alibi, but when their evidence was closely examined there were many gaps in it. The defence relied almost wholly on the evidence of Regan, the inmate of Tuarangl Home, and Cap- . Salvation, Army; but

Regan could easily have been ’mistaken in thinking that Tilley drove him to the Salvation Army citadel on the evening of February 1, and Captain Ojala did not see Tilley at the citadel. Tilley had said in evidence that he took a party to Methven between . 7.30 p.m. and 8 p.m. on the day of the accident, but not one member of that party had been brought to Court to corroborate that evidence. The jury therefore were entitled to regard that with the gravest suspicion. Counsel submitted that an alibi had not been established and the jury should disregard it.

If they decided it was Tilley’s taxi that caused the accident they would then consider the question of negligence. Where a piece of newlybitumemsed piece of road was strewn with loose chips of metal, it was negligent for a man to drive at 60 miles an hour spraying out chips of metal, submitted counsel. If the jury found there was negligence they would award what damages they considered reasonable, remembering that this was the-plaintiff’s last chance of obtaining damages. His Honour then summed up, and the jury retired at 3.45 p.m., returning at 4,45 p.m. with their decision that Tilley was not the driver of the car that caused the injury to Thomson’s eye. On the motion of Mr Young, judgment was given for Tilley, with costs.