AWARD SUSTAINED

Dominion, Volume 28, Issue 255, 25 July 1935, Page 5

AWARD SUSTAINED

Damages in Napier Case

Not Excessive

FULL COURT DECISION * - It is unfortunate for defendant that he injured a man whose leg was not a normal one for healing purposes, but that does not, in an action for tort, relieve him from liability for damages exceeding those which would be awarded in a normal case,” the 1 nil Court declared yesterday in a reserved judgment dismissing the motion for a new trial brought by Francis William Byrne and W. Plowman and Sons Ltd. against Henry Christopher Kassler, the judgment being delivered in Wellington by .Mr. Justice Smith, who was associated at the hearing with Sir Michael Myers and Mr. Justice Blair. The evidence was that plaintiff lacked callus in his leg, which took longer than usual to knit. The Full Court quoted the dictum that a motorist might knock down a shabby-looking man and then discover he was a millionaire managing a nourishing business or kill a horse which might have won the Derby. Ignorance of these possibilities at the time of the accident would not relieve the motorist of responsibility for heavy damages. Plaintiff in the original action was awarded £l2OO general damages to cover loss of wages and profits in his business as a builder and pain and suffering from his broken leg. Plaintiff was injured iu an accident with a motor-lorry driven by the first defendant for the second.

Defendants claimed that the damages were excessive. The Full Court held that plaintiff might be entitled under the heading of general damages, as distinct from special damages, to some compensation for the loss of his working time on the basis of journeymen’s wages and that this working time included not only an assessment for the future but also an assessment for the period between the date of the accident and the date of the trial. The basis of the inclusion of this damage was that plaintiff and his partner were only partners at will and that plaintiff could at any time have commenced to take work at wages as a journeyman carpenter. On the basis of the average earnings of a journeyman it was open to the jury to include in the general damages as much as £350 for economic loss for the period of two years of estimated incapacity. As the jury awarded £l2OO as general damages, the sum of £B5O remained as the assessment of compensation for the other items properly included in general damage. There was no sign of the knitting of the broken bones, though it was thought union would be satisfactory in another year, subject to the qualification that the imperfect union of the fracture as disclosed at the time of the trial was open to the possibility of an qasy break at any time after the assessment of damages and before the complete recovery predicted for the end of a year. There was a risk of a further break iu the left leg. “If the leg broke again, defendant would be freed from responsibility and plaintiff would have to bear not only die further pain and suffering but also all the expense of treatment and further economic loss,” said the court. “The jury had to take that into account in making the final award. “The abnormal delay of the healing processes and the possibility of a further easy break within six months of the jury’s verdict, with its attendant economic loss and physical pain and suffering made it not unreasonable for the jury to award damages which might in a normal case seem to be excessive. The jury had to make a final award, and it has not been established fox- defendants that reasonable men could not have assessed the damages at the amount which this jury did.” The motion was dismissed with costs.

Mr. E. Parry appeared for defendants in support of the motion for a new trial and Mr. C. W. Nash, of Napier, for plaintiff.