SUPREME COURT Argument On Setting-Aside Of Jury’s Verdict

Press, Volume CV, Issue 31018, 25 March 1966, Page 8

SUPREME COURT Argument On Setting-Aside Of Jury’s Verdict

Discrepancies in the evidence of a young Ashburton man recently awarded £3309 damages for a back Injury suffered in a fail from scaffolding in 1962 were too man y and too damaging, submitted Mr R. P. Thompson in the Supreme Court yesterday. The young man, Alan James Howard, known as Alan James Painter, aged 21, the plaintiff to a civil suit tried before Mr Justice Wilson and a jury in the Supreme Court on February 16-17, had given eight different versions of the accident, Mr Thompson said. Mr A. D. Holland, for Painter, submitted that this was making more than the most out of a very little. Painter, he said, had always been consistent about a fail from scaffolding. Before Mr Justice Wilson yesterday, Mr Thompson moved for a setting-aside of judgment for Painter in favour of a judgment for the defendant in the action, the Bradford Construction Company, Ltd.—or, ailtenntively, a new trial.

The jury’s verdict awarding Painter £3309 damages was not a good verdict, said Mr Thompson—“and I say that not because it was against me, because I have had plenty of lasses,” he said. “But it was a verdict which, on the whole case, reasonable men would not have come to.”

After an ali-day hearing, his Honour reserved decision, although indicating he was not prepared to reverse judgment.

“Eight Different Versions” Mr Thompson, to submissions, traversed the eight different versions which he claimed Painter had given of his accident. First, Painter had said he was preparing boxing, and working on two planks Bft to 10ft above the ground. About 11 a.m., he had slipped be-

tween the two planks, and landed an his back on a concrete floor. Second, Painter’s story had been of a fall from a height of 12ft, but that he “thought nothing of it” —and yet the injury had been serious enough for him to be off work, and to come to the court for damages. His Honour: You mean the damage to his back must have been substantial, and yet he did not report it? Mr Thompson: Yes.

Third, Painter had told a surgeon, Mr W. A. Liddell, of a fall of 15ft from the scaffold, and also of a pain in the back in July-August previously, from lifting timber. Fourth, Painter had told a second surgeon, Mr R. Blunden, of a fall from 20ft, but without mentioning any previous back strain.

Fifth, Painter had said he fell! 12ft, slipping through the planks of the scaffold. Sixth, he had said that two planks tipped and he had fallen 12-15 ft. Seventh, to an insurancecompany clerk, he had agreed to a 12ft fall, slipping through the planks, and the next day jumped down 6ft from the scaffold to retrieve a dropped tool, jarring his back. Eighth, Painter’s story to an Ashburton doctor, as recorded on a worker’s compensation certificate dated November 23, 1962, was “slipped on scaffold, pain to back, aggravated by lifting concrete.”

“Truthful And Reliable” No witnesses have been called by the plaintiff as to the facts of the accident, said Mr Thompson. The only other witnesses had been called by the defence—Who had been truthful and reliable, Mr Thompson submitted. They had said that there were four planks, not two, on the scaffolding, and described Painter as vaulting or jumping from it.

Their evidence, said Mr Thompson, should be preferred, and should have been preferred by the jury, to the uncorroborated evidence of Painter.

And it was significant, said Mr Thompson, that the usual tendency in master-and-ser-vant cases was a loyalty between workman and workman.

No reasonable jury, he said, could have found for Painter. His story was completely incredible, he was an interested party with damages in issue, and documents supported the defence case. Mr C. B. Atkinson (with Mr Thompson) submitted that the Bradford company would be entitled to a new trial on the ground that the £3309 damages awarded Painter were excessive. “This award was so much out of tune with comparable awards in light injury cases that the Court ought to set it aside,” he said. “Fall Significant” Mr Holland said that the only real variation in Painter’s story was to the height of the scaffolding—and it was the fall, rather than the height, that was significant, he submitted. If Painter's credibility was in doubt, it meant he had made up his story within three days of the accident (when he saw the Ashburton

doctor) about an injury which neither he, nor anyone else, expected to prove so severe. Painter, said Mr Holland, had not 'stuck to one story “black or white.” He had, like any 18-yearold youth (as he had been at the tune of the accident), repeated it, seven times, “with minor accompaniments.” The situation fell far short of the point where the jury would have had to reject his evidence on ail matters.

Mr Holland also spent some time in argument on the question of damages. In reply, Mr Thompson said: “If ever there was a verdict against the weight of evidence, this is it.” His Honour, after indicating his inclination as stated, then reserved decision.