CASE TO ANSWER

Dominion, Volume 24, Issue 137, 6 March 1931, Page 11

CASE TO ANSWER

Hutt Road Collisions MRS. DWAN’S POSITION Judge Reserves Decision The hearing of the Hutt Road collision case was concluded in the Supreme Court yesterday, decision being reserved. Regarding the case of Mrs. Dwan, his Honour said .it required explanation and he reserved the nonsuit point raised by counsel tthe previous day. Proceedings were the outcome of a double collision on the Hutt Road on the night of November 17, as a result of which Alfred Wiggs, clerk, lost his life and several people were injured. A car driven by Wiggs, after passing another driven by John Keith Walters, collided with a third driven by Miss Anna Findlater. Shortly afterward, a fourth car, driven by Mrs. Eva Dwan, collided with Dr. Findlater's car as it stood stationary. Anna • Findlater is claiming from the Queensland Insurance Co., Ltd., £5OO general damages for bodily injuries on a third party risk under a contract of insurance taken out by the deceased Wiggs, and is also claiming £97/12/5 special damages from the Public Trustee, as executor of the will of deceased; Dr. Christina Findlater is claiming £lOOO general damages, also special damages, from Mrs. Eva Dwan, and £250, as the value of her car, from tho Public Trustee as executor; Henry, Bingham, a passenger in Dr. Findlater’s car, £3OO general damages from Mrs. Dwan; Mrs. Ruth Jorgensen, a passenger in Wiggs’s car, £5OO general damages, also special damages, from Dr. Findlater and Anna Findlater. The Chief Justice, Sir Michael Myers, was bn the bench. Mr. Treadwell, with him Mr. James, appeared for Dr. Findlater, Anna Findlater, and Henry Bigham in their claims; Mr. Cooke, with him Mr. Christie, for Dr. Findlater and Anna Findlater in their defence against Mrs. Jorgensen; Mr. Fitzherbert, with him Mr. A. J. Mazengarb, for Mrs. Ruth Jorgensen; Mr. Leicester, with him Mr. Watterson, for the Public Trustee and the Queensland Insurance Co., Ltd.; Mr. O'Leary, through Mr. Leicester, for Mrs. Dwan. Explanation Required. His Honour said he had investigated authorities on the nonsuit point raised by Mr. O’Leary and they had shown that the prima facie view he had expressed the day previously was the one he should adopt. That was to say, he should not hold that there was no evidence of negligence on the part of Mrs. Dwan. The case was not like one of an act arising under ordinary traffic conditions; the conditions were exceptional. On a road on which there was no traffic at the time, a collision occurred between a motor-car and a stationary object on the road. His Honour's present view, without expressing any conclusive opinion, was that it would be very dangerous indeed to hold that in such a case the plaintiff's action against Mrs. Dwan should be dismissed on the ground that there was no evidence of negligence. The position would seem to be the same if the stationary object were a human being who had been taken ill while crossing the road, on which there whs no traffic, and who was then run over by a car. . His Honour said there were other cases which seemed to require that he should not grant a nonsuit. He would reserve the question for further consideration. “That does not mean, of course, that Mrs. Dwan has been negligent,” he said. “The mere effect of what I am holding now is to say that the case requires explanation.”. Mr. Leicester, in tho absence of Mr. O’Leary,■ said he thought it proper to inform the court at that stage that Mr. O’Leary did not intend to call Mrs. Dwan, and would let the case rest on the evidence. At the same time, Mr. O’Leary would like to be in court for the motion for judgment on the evidence. ■ . , . His Honour: Certainly. That is only proper. He is going to take the risk of the law point that There is no evidence? That will have to be considered and an opinion given on it. If the court grants a nonsuit it might be doing a serious injustice to plaintiff because the colirt may be wrong, and plenty of people might not have the means to proceed to the 'Court of Appeal to challenge the judgment. On the other hand, defendant may think that he is prejudiced and that an injustice is done to him if the nonsuit is refused and he then proceeds to call evidence which, as it were, ekes out the evidence given by plaintiff, or, to use another metaphor, fills in the gaps. Justice for All.

Mr. Leicester: In this case it may make an otherwise deficient case? His Honour: Exactly. After all, it is no injustice, when you come to think of it really, because the court is here to see that all parties get justice. Mr. Cooke, for Dr. Christina and Miss Anna Findlater, said lie did not propose to move separately for a nonsuit because, his defence had been heard in the evidence Mr. Treadwell had called, lie asked for judgment for defendants. Mri Leicester, for the Public Trustee and Queensland Insurance Company Ltd., made application for n nonsuit or for judgment for defendants on the following grounds: (1) Plaintiff had not established that Wiggs died insolvent, and therefore that would not bring the company within the provisions of section 10 of the Motor Vehicles Insurances Act. 1928, and no charge was enforceable against the company; (2) that no action lay against the company under any of the other provisions of the 1928 Act: (3) that no evidence and no cause' of action had been disclosed against the company; (4) no case lay against the Public Trustee, as executor for Wiggs, for a tort committed by him for nny liquidated damages as the ouly remedy; (5) that no action lay against the Public Trustee, as executor of Wiggs, for such special damages as arose consequentially from the accident; (6) there was no liability, on the company and nothing for that company to indemnify in the statpte.. J. G. Harcourt. land agent, called by Mr. Leicester, said he had valued Wiggs’s property at £l2BO near the end of last year. Ilis latest valuation was £lOlO. Legal argument ensued.