NEW TRIAL SOUGHT

Dominion, Volume 34, Issue 119, 13 February 1941, Page 12

NEW TRIAL SOUGHT

Sequel To Damages Case PALMERSTON N., February 12. A sequel to a motor collision case heard in the Supreme Court last week before Mr. Justice Ostler and a jury of 12, in which T. AV. Dansby sued Gough, Go’ugh and Hamer, Ltd., for substantial damages for personal injuries, was the hearing yesterday of an application for a new trial on the ground of misdirection to the jury. The case was first heard last July before Mr. Justice Smith and a jury of 12, when a verdict was given for the plaintiff. The Court of Appeal held that there was no breach of the motor regulations as alleged and that any verdict that the negligence of the defendant was the cause of the accident would be against the weight of evidence. A new trial was ordered. Mr. M. H. Oram, in support of the motion yesterday, submitted that had the Court of Appeal entered a verdict for defendant, as it should have done in view of its finding, that decision could have been testea in the Privy Council. The ordering of a new trial prevented _ that being done and at the same time, if his Honour’s ruling was correct, prevented plaintiff getting his full case before the jury.. Counsel contended that his Honour was wrong in law in stopping counsel in his opening from putting any question of a breach of the motor regulations to the jury on the ground that he was bound by the decision of the Court of Appeal on that, point, or alternatively, in holding that there was no evidence of any breach of the motor regulations. Further, a third issue ns to whose negligence was the cause of the accident should have been put to the jury, as this was the way the plaintiff’s case was , framed. Lastly., his Honour was wrong in directing th’e jury as to the meaning of the motor regulation in question. Mr. H. R. Cooper, who appeared .on behalf of defendant to oppose the motion, contended that the Court was bound by the decision of the Court of Appeal on these points, quite apart from what the Court might itself think, and that further in view of the jury’s finding that defendant was not negligent, there was no room for n third issue, and that in any case, bis Honour was also hound by the

finding of the Court of Appeal on the point. . After hearing argument, Mr. Justice Ostler, in dismissing the motion, held that he was bound by the decision of the Court of Appeal, with which he was in personal agreement, that stopping where the truck driver did was no breach. But even if he did not agree, he would consider himself bound by that decision. lie also held that, so far as the third issue was concerned, the Court of Appeal judges had all held that a decision in favour of the plaintiff in such an issue would be set aside as unreasonable and in view of that decision such an issue eould not be put. As to the meaning of the regulation, his Honour concurred in that given by the judges in the Court of Appeal and contained in his direction to the jury. ~. , . Judgment, was entered for defendant with costs on both trials in the buptemc Court, with witnesses’ expenses and disbursement. Costs amounting to £</</; aud £3/3/- were also allowed defendant in the two motions for new trials.