NEW TRIAL ORDERED

Greymouth Evening Star, 9 December 1939, Page 5

NEW TRIAL ORDERED

MOTOR COLLISION CASE

[PEB PBESS ASSOCIATION.]

WELLINGTON, December 8

The Court, of Appeal delivered judgment to-day in the case of Biggs v. Woodhead heard on September 28 and 29. The Court was unanimous that there had been a misdirection by the trial Judge (Mr. Justice Ostler) of the jury and that the judgment should be -set aside and a new trial ordered to be heard at the next sitting of the Supreme Court at New Plymouth. Costs in the Court of Appeal •were allowed to Miss Biggs. The case arose from a collision between two" cars n'ear Okaiawa on Octotber 13, 1938, in which Susan Biggs, of Hawera, a passenger in one of the cars, received serious injuries which necessitated the amputation of an arm and an extensive skull operation. In April of this year she issued a writ claiming £5062 damages from the driver of the other car, George Edward Woodhead, truck driver, of Okaiawa.

The case came on for hearing on May 25, 1939, at New Plymouth, before . Mr. Justice Ostler and a jury. The jury gave judgment in favour of defendant.

Mr. Justice Ostler heard an application by Biggs for an order for a new trial based on the ground that during the previous trial he had misdirected the jury in his summing up. That application was refused, and the Court of Appeal heard an appeal from his refusal to grant a new trial. Mr. M. J. Burns, of Hawera, appeared for appellant. and Mr. L. M. Moss, of New Plymouth, for respondent. The Chief Justice and Mr. Justice Smith, Mr. Justice Fair and Mr. Justice Johnston heard the appeal. The Chief Justice (Sir Michael Myers) delivering the judgment of the Court of Appeal said that when an innocent, passenger in a motor vehicle which became involved with another vehicle was injured and chose to sue only the driver of the other vehicle, and to allege negligence only against him the question to be decided was not whether that particular driver’s negligence, if he were negligent, was the cause of the injury, but whether it was a cause. Even though his negligence might onlj r have been an unsubstantial part of the joint negligence, if there were such, he would still be liable if his negligence, in part, contributed to the happening of the occurrence.

This had not been made sufficiently clear to the jury and the jury’s verdict, having regard to the Judge’s direction, was quite consistent with their having found there was negligence on the part of Woodhead, but that for another reason they found themselves bound by the judge’s direction to find a verdict for him. Other members of the Court expressed similar views.