WAS IT EXCESSIVE?

Evening Post, Volume CXX, Issue 8, 9 July 1935, Page 10

WAS IT EXCESSIVE?

£1200 FOR BROKEN LEG

A NAPIER ACCIDENT

JURY'S AWARD CHALLENGED

Contending that a Napier jury's award of £ 1200 general damages to a motor-cyclist, whose leg was fractured as a result of a collision with a motor-lorry, was excessive, Mr. E. Parry, on behalf of the defendants, Francis William Byrne, driver of the lorry, and his employers, William Plowman and Sons, Ltd., brought a motion before the Full Court today applying for a new trial. Mr. Parry said that he could not say that the jury's finding was improper as far as merits of the case were concerned, and if there was a new trial it would be on the question of damages only. The motion* was heard by the Chief Justice (Sir Michael Myers), Mr. Justice Blair, and Mr. Justice Smith. Mr. Nash (Napier) appeared for the motor-cyclist, Henry Christopher Kassler, to oppose the motion. Kassler, in the Supreme Court at Napier, claimed £1500 general damages, £546 for the loss of wages, and £99 4s medical and hospital expenses. The jury, which found Byrne negligent in cutting a corner, awarded £1200 general damages and £99, 4s medical expenses, but no special damages for loss of wages. - Mr. Parry said that the application for a new trial was limited to one ground only, and he did not feel justified in spending a great deal of time quoting authorities on a principle of law, which, he submitted, was well known. In order to clarify the position, he conceded that he would not be entitled to a new trial merely by satisfying the Court that the damages were more than their Honours would have awarded if they had been trying the case alone. It was contended, however, that the amount awarded by the jury was manifestly unreasonable. ITEMISED ACCOUNTS. Referring to the award of £99 4s for medical expenses, Mr. Parry said that of that amount £52 10s was a doctor's fee. No itemised account was put in. Having in mind the comments of the Chief Justice in a Wellington case about itemised accounts, he challenged the account at the time and suggested that an itemised account should be put in. The doctor, however, was not called to give evidence. The Chief Justice: You cannot challenge that now. If you are referring to what I said, I did make a comment of that kind. An account was put in, but the doctor was not called as a witness. To the best of my recollection I told the jury that it was not right, that particulars ought to have been given, and that they were not bound to allow the whole amount. I.think that is as far as it went. Mr. Parry: I appreciate the fact that I cannot challenge that now. The position regarding.the claim for special damages for .loss of wages, continued Mr. Parry, was a peculiar one. Kassler was a contractor, and the jury made no award, as a specific loss could not be proved. \ . Kassler had been totally disabled for eighteen months; and partially disabled for six months, but he suffered no permanent disability. Mr. Parry conceded that the damages for pain and suffering would be somewhat greater in Kassler's case than in the case of a man who was incapacitated for four or five months. In the case of a man who was incapacitated for four or five months it was submitted by Mr. Parry that the sum- of £100 or £200 would be sufficient compensation for, pain and suffering, exclusive, of course, of any amount which might be awarded for loss of wages. He could quite understand a jury's verdict in this case if it had allowed £500 for pain and suffering., but even that was a very substantial amount. DAMAGES FOX PAIN. If the sum of £1200 was allowed as damages for pain and suffering, continued Mr. Parry, it would encourage litigation, create a precedent, and lead to the awarding of exaggerated amounts. It was argued by Mr. Nash that although it had been held that special damages in relation to wages had not been proved, loss of wages, had, in fact, been included under the heading of general damages. . Mr. Parry opposed this contention, and argument followed as to the interpretation of Mr. Justice Johnston's summing up on the point. The Court adjourned in order that counsel might confer and endeavour to agree on the nature of the summing up. ' . •