APPEAL COURT

Nelson Evening Mail, Volume LXX, 18 June 1936, Page 9

APPEAL COURT

MOTOR ACCIDENT SEQUEL LEGAL ARGUMENT HEARD (By Telegraph—Press Association) WELLINGTON, This Day. The Court of Appeal commenced the hearing of an appeal from Mr Justice Ostler, who ordered a new trial of an action heard before him on 29th April, arising out of an accident at Whakaronga, near Palmerston North on 15th December, 1935. i Appellant is Edith Matilda Hodgson, who was riding a bicycle and was run into and severely injured by a motor car belonging to the Hawkes Bay Meat Co. Ltd., one of the respondents in the action, and driven by a man named Stubbs. Liability was admitted and the only question was the amount of damages to which appellant was entitled. The jury awarded the full amount of general damages claimed, £2500. Respondents sought a new trial on the ground that the general damages awarded were, in the circumstances, excessive. Their application was successful, Mr Justice Ostler stating that the damages awarded were so large that no jury could reasonably have given them. Mr F. W. Ongley, for appellant, submitted: (1) The jury were a constitutional tribunal to assess damages. (2) The jury must be taken to have found in appellant’s favour everything which it was open to them reasonably to find. (3) The verdict of the jury must stand unless it could be shown affirmatively that they had failed in the function of assessing the damages. Such failure could be brought about only in two ways, by taking into consideration some irrelevant matter, or by giving such a verdict as twelve sensible men could not give. (4) In claims for personal damages there was no defined measure of damages and the basis is such an amount as the jury, using reasonable common sense, would assess as full and fair compensation for the injury, bearing in mind that they should compensate once and for all. (5) The judgment of Mr . Justice Ostler overlooked that the jury’s estimate was a proper basis as to the amount of damages, unless it could be shown to have been improperly made. Claims for personal injury are not capable of being fixed by some neat measure. The Court would have to consider what should the jury have given, and how they arrived at the amount found by them, and if this was in excess such that no twelve men would give it. Addressing the Court of Appeal on behalf of respondents Mr Leicester said the question arose whether the jury’s award of £2,500 general damages for personal injuries could be said to be excessive. The position of the trial judge, Mr Justice Ostler, had also to be considered in connection with his exercise of right to vacate a judgment based on the jury’s verdict and order a new trial. In the present case twelve sensible men could not reasonably have awarded that sum. The jury failed to consider the right matters and considered wrong matters. Further they applied a wrong measure of damages. The . question of loss of appellant’s services to her husband should not have been taken into account by the jury. It was submitted that the sum awarded amounted to an attempt to give damages on the basis of appellant having suffered permanent deformity, and was calculated as a, form of maintenance for life. The duty exercised by the trial judge in taking away the verdict was a salutory one and the Court oi Appeal should be slow to reverse his decision. After hearing argument in reply the Court reserved judgment.