CLAIM FOR DAMAGES

Dominion, Volume 26, Issue 182, 29 April 1933, Page 11

CLAIM FOR DAMAGES

Blenheim Labourer’s Fall LAW POINTS ARGUED A claim for damages against the New Zealand Loan and Mercantile Agency Company, Ltd., which was partly heard before a Judge and jury in Blenheim in December last, came for completion of hearing in the Supreme Court, before Mr. Justice Blair yesterday. Andrew Wilson, labourer, of Blenheim, sued the New Zealand Loan and Mercantile Agency for £1784 damages as the result of an accident received when he was riding home on bls bicycle on the night of August 28, 1931. He alleged that a railway siding, crossing Sinclair Street, and leading from the Blenheim railway station to the Loan Company’s premises, caused him to fall from his bicycle. On the ground that the siding across Sinclair Street had been erected without statutory authority, plaintiff contended that the said siding constituted a public nuisance on the highway, and accordingly claimed £I7S4 damages. The case came for trial at Blenheim on December 8 last, before Mr. Justice Blair and a jury, and it was then agreed between counsel that the legal questions involved should be left to the trial Judge, and the jury awarded damages of £784/3/-, assuming that plaintiff had a good cause of action. The case was then adjourned to Wellington. The question of determining whet her a valid cause of action existed came before Mr. Justice Blair yesterday. Mr. P J. O’Regan appeared for plaintiff, and Mr. 11. F. O’Leary for defendant company. His Honour reserved his decision. It was agreed that the siding had been constructed in 1884 in response to a request of the defendant company. Tiie Blenheim Borough Council consented to its being extended across Sinclair Street, subject to the company indemnifying the council against any claim for damages, and bearing the cost of repair and maintenance. Mr. O’Leary submitted that the siding was made under statutory authority, in support of which lie relied upon the Private Tramways Act, ISS2. There being no evidence to show that the siding was out of repair at the time of tiie accident, lie submitted that it could not be a public nuisance, and therefore plaintiff had no right of action. Counsel further contended that whatever was the status of the siding originally, it had subsequently become the property of the Railway Department, and if a Government railway, could not be a public nuisance. Mr. O’Regan submitted that in order to find authority under which an agreemeut was made between tiie defendant company and the Railway Department one had to look to section 171 of the Public Works Act, 1882, but, he said, that section, and the agreement made thereunder by the parties, gave no nuihority to carry flic siding bejond the limits'of the line occupied by the PictonBlenheim railway. Accordingly, hi order to reach the defendant company s premises, it was necessary to cross Sinclair Street, and after this tiie consent of the Borough Council had to be obtained in so far as it covered the soil of Sinclair Street. Therefore the line was made without statutory authority . it was made at Hie peril of (he defendant company, and therefore wa< a public nuistineo.