COURT OF APPEAL

Greymouth Evening Star, 20 September 1938, Page 4

COURT OF APPEAL

JURY’S AWARD UPHELD. [PER PBJCSS ASSOCIATION.J WELLINGTON, September 19. The Court of Appeal to-day heard the appeal of Robert Scott McMillan, of Timaru, farmer, against Albert Percy Greenfield, of Dunedin, company manager. . McMillan, in June. 1936. was driving a motor-cycle’ when he struck Greenfield’s motor-car, parked, allegediv without lights, at a right angle to the kerb in Quarry road, Timaru. As a result, he suffered a fracture of the left leg and claimed £3OO general damages and £204/19/2 special damages. Greenfield denied negligence and claimed that McMillan was negligent in failing to carry sufficient head-light, to keep a proper lookout, and in going at too great a speed. At the trial, leave was given to counsel for Greenfield to move for a non-suit. Evidence for the defence was heard, the jury finding Greenfield negligent, but McMillan not guilty of any contributory negligence, and awarding £354/19/2. In judgment on argument on the non-suit, Mr. Justice Northcroft held that the facts disclosed in McMillan’s case showed that as he had a proper light, he was the real cause of the damage, and this had resulted from his own failure to keep a proper lookout —that is to say, he was the author of his own injury. The appeal was from entry of judgment for Greenfield, notwithstanding the verdict of the jury in favour of McMillan. Mr. W. J- Sim .in opening for McMillan to-day, submitted that Greenfield had been negligent in (a) parking his car at right angles to the kerb, contrary to the by-law, and. (b), leaving the car parked without lights. Mr. Sim contended that McMillan was not guilty of contributory negligence, as. owing to the state of the road and the position of parked cars, he rode his motor-cycle as carefully as was reasonably possible. For the respondent. Greenfield. Mr. Campbell submitted that there was no negligence on the part of the respondent, as the car was parked, in an authorised parking area, and did not require lights, as the street illumination was sufficient. Further, the appellant was contributorily negligent, as he had ample opportunity of seeing and avoiding the car. Oral judgments were then delivered by each of the Judges to the effect that:

(1) There was evidence of negligence on the part of the respondent, in parking the car unlighted and towards the centre of the road. (2) That in view of the circumstances. the appellant was not necessarily negligent, and contributory negligence was therefore a matter of fact, which should be decided by the jury. (3) Therefore, the judgment of Mr. Justice ‘Northcroft for the respondent should be reversed, and judgment entered in the Supreme Court for the amount found by the jury in favour of the appellant.

WIDOW’S CLAIM FAILS WELLINGTON, September 19. The Appeal Court to-day refused to grant a new trial in the case of Ada Payne, widow, against Dunstan John Burney. Mrs. Payne sued for £3OOO damages for the death of her husband. who was killed while crossing the Hutt road on June 21. 1937. The jury found that the driver of Burney’s car and Payne were both guilty of negligence, materially contributing to the accident, but that Payne contributed "in a lesser degree.” The case was known locally as the “Round Robin” case, in view of the letters sent by the jury subsequent to the verdict as to their in-

tention to award the widow damages. 'The appeal was dismissed, without costs, Mr. Justice Blair and Mr. Jus-

tice Kennedy considering that the appeal should be dismissed, while Mr. Justice Johnston and Mr. Justice Fair delivered judgments in favour of a new trial. The Court being equally divided, the judgment of the Chief Justice (Sir Michael Myers) stands. Costs were not awarded on the appeal in view of the division of opinion. At the request of the trial Judge.

the jury assessed damages at. £1.250. On the day after the verdict, the jury sent a letter to the registrar that it was the unanimous desire that £1.250 should be awarded the widow, and if they had understood the effect of their verdict thev would have said de-

ceased was not. guilty of contributory negligence. Some days later, they sent a further letter to the. registrar to the effect, that they had intended to find Payne not guilty of negligence, hut found him guilty of negligence to help the motorist.

The motion for a new trial was argued before the Chief Justice, who held that if both parties were guilty of negligence materially contributing to the accident, there was no room for the issue of last opportunity, which in this case he had refused to put to the jury when the law was that plaintiff could not recover damages. He held that, the implication in the

ury’s first, letter was 1 that if they had

known the effect of their honest and conscientious answers to the issues, they would have returned, to the second issue, an answer contrary to that which they actually gave. The implication of the second letter was that they were prepared to do an injustice to Payne by saying he had been guilty of negligence materially contributing to the accident, because they thought that by doing so they might be avoiding some conse-quences-to the driver of the car. He argued that the widow was not entitled to succeed, and judgment was given for Burney, with costs. SOLICITOR'S APPEAL x WELLINGTON. September 19. In an appeal by Mr. A. D. Mcßae (Timaru ) against action by the disciplinary committee of the New Zealand Law Society, the Court of Appeal refused to-day to allow the appeal to be withdrawn, but insisted on formally dismissing it. Mr. W. Perry (Wellington) appeared for Mcßae and Mr. IT. J. Thompson (Wellington) for the New Zealand Law Society.