CLAIM FOR DAMAGES

Evening Star, Issue 25893, 10 September 1946, Page 10

CLAIM FOR DAMAGES

ACTION AGAINST CITY COUNCIL PLAINTIFF NON-SUITED A reserved judgment was given in the Magistrate’s Court this morning by Mr H. W. Bundle, S.M., in the case in which Gladys Stewart (Mr W. Ward) claimed from the Dunedin City Corporation (Mr A. N. Haggitt) £74 5s 5d special damages and £221 12s general damages, a total of £295 17s sd, as a result of injuries received when she fell in Eglinton road. In September, 1945, a house was being built at 119 Eglinton road, and the corporation opened up a trench from the road across the footpath to lay a pipe from the gas main in the street to the new house. The workmen, after opening the trench and connecting the pipe from the gas main to tho house, filled in. the trench on the same day. The basis of the plaintiff’s claim was that the trench was so negligently filled ill that it was a danger to the public using Eglinton road. The evidence regarding the condition in which the trench was left after excavation was made was extremely confusing, said the Magistrate. The plains tiff and her witnesses were. indefinite as to the length of time the footpath was in a damaged state. After carefully weighing and considering the evidence, he had come to the conclusion that the trench was not filled in temporarily until the top was resealed in a mamier that was satisfactory. His Worship found that the state of the footpath, owing to the filling in of the trench, constituted a danger to the public using Eglinton road, particularly during the hours of darkness. The danger existed from September 26 to October 8, 1945. The locality was badly lighted, and no steps were deemed necessary or were taken by the workmen to give additional light to the footpath at this particular spot. Dealing with the claim made by the plaintiff that she was injured and was entitled to the damages claimed, the Magistrate said he was not impressed with the manner in which the evidence in this connection was placed before the court. It might be fairly stated to be of a fragmentary nature. There was only a scintilla of evidence as to the nature of the injuries suffered by the plaintiff', and there was no medical evidence to show what the plaintiff was treated for. “ It might well be that the plaintiff can bring further evidence in support of her claim,” continued the Magistrate. “The burden of proof is on her to substantiate it. On the evidence placed before me I am quite unable to hold that she has discharged the onus of proof. The proper course for me to adopt is, I think, to enter non-suit. This course will enable the plaintiff, if she has further evidence available, to bring the matter again before the court in a more satisfactory manner.” Costs amounting to £5 os were given against the plaintiff.