DAMAGES EXCESSIVE

Evening Post, Volume CXXV, Issue 144, 21 June 1938, Page 11

DAMAGES EXCESSIVE

NEW TRIAL ORDERED

• A .motion for a new trial was brought to the.Supreme .Court yesterday, on behalf of.Dr. Kenrick Dean,- of Palmerston North, against whom a jury recently awarded £400 general damages and £172 6s special damages on the claim of Mrs. Olive Rita Paterson, who con* tended that she had been negligently treated for a. knee injury following a fall, from the-pillion-seat of a motorcycle. Mr. Justice Quilliam was on the Bench. . Mr. ff. F. O'Leary, K.C., with him .Mr. A. W.. Yortt (Palmerston North) appeared for Dr. Dean, and .Mr. L. 6. H.. Sinclair for. Mrs. Paterson.

, The original claim was for £750 general damages and the special damages'. The plaintiff contended'that the" defendant had negligently failed to diagnose the nature of the injury by X-ray or other means, had negligently treated the injury by Incorrect, improper, and ineffective methods, and had continued that treatment when he knew, o? ought to have known, that it was not appropriate. As a result, she alleged; she had been incapacitated from following her occupation as a dressmaker, and had suffered a permanent injury to her left leg. The accident Occurred on November 28, 1936.

O'Leary submitted that on a critical examination of the evidence for the plaintiff there was no evidence on which the Court could have relied as proving that Mrs. PatersOn's condition today was due either to the diagnosis and failure to X-ray, or to the treatment of Dr. Dean. Considering that evidence along with the mass of evidence for the defence, it was a.verdict, at which ho reasonable men could have arrived. "Assuming the worst against Dr. Dean, that there was negligence in the delay.in getting proper treatment," said Mr. O'Leary, "it was a delay of two, or three w,eeks, which would have entitled, the plaintiff to nominal damages; yet Dr. Dean is mulcted in £400, general damages and the whole of the special damages."

Mr. Sinclair said it was not a case where one had to deal with a preponderance of evidence. The case went to the jury on the.general issue without having. specific issues put, and it must be "assumed that the jury. considered the case in . the light of the three allegations in the statement of claim. Flowing, from the continued treatment was a delayed recovery with increased pain and suffering, and the jury was entitled to' infer that some part of the present disability'was due. to the defendant's negligence. Not one doctor, for the plaintiff or for the defendant, agreed with Dr. Dean's treatment.

An order was made for a new trial, on the grounds that the verdict was against the weight of evidence and that the damages awarded were excessive.