CLAIM FOR DAMAGES

Nelson Evening Mail, Volume LXX, 25 November 1936, Page 6

CLAIM FOR DAMAGES

SEQUEL TO AN ACCIDENT

JURY AWARDS £1192

Frederick Walton Kenmare was awarded £1192 damages by the jury in a case heard in the Supreme Court yesterday. The claim arose out of an accident at the intersection of Cambria and Collingwood streets on the 19th March, 1935, when plaintiff was injured by a car driven by Alexander David Kerr. His Honour Mr Justice Ostler presided. Mr J. R. Kerr appeared for plaintiff and Mr C. R. Fell for defendant. Sidney A. Gibbs, Fellow of the College of Surgeons, Edinburgh, of Nelson, called by the defendants, said he examined Kenmare recently. They had always been given to understand that the muscles around and over the knee-joint had more effect than on any other joint in the body. The prospects should be good for Kenmare’s leg. It would seem that it was time to discard the mechanical support and gain muscular support. In the case of Dr. Jamieson’s leg there was much more lateral movement than in Kenmare’s. Kenmare had got from bed to crutches, from crutches to a stick, from a stick to mechanical assistance, and it would seem that the time was approaching when the mechanical assistance should be discarded. To Mr Kerr Dr. Gibbs said neither the internal nor external ligaments in Dr. Jamieson’s leg were as they were in a normal person. However, both ligaments were functioning in strengthening the leg. He did not think that the outer ligament on Kenmare’s leg was not functioning at all. The stretching of the ligament did not mean that it would always be useless. In the case of a sprained ankle the ligaments gradually strengthened, no matter how much they were torn, and the same would happen in other ligaments. Re-examined by Mr Fell, Dr. Jamieson said the condition of his knee was due to a disease which had caused relaxation of the ligaments. There was no fracture of the bone severing the ligament, but the ultimate result was the same. The ligament in his leg was now functioning. Mr Fell, in addressing the jury, said £l7B had been paid to plaintiff, that sum representing £2 4s per week up to September. The expense of the operations and medical expenses had all been paid. He contended if the jury gave plaintiff £SOO on top of the £l7B he had already received, then Kenmare would be generously treated.

Mr Kerr pointed out that the plaintiff had not been advised to wear the iron cage until after a period of seven tnonths, when it was found that the treatments were not proving successful. Drs. Jamieson and Gibbs had seen the plaintiff only once, whereas Dr. Hudson had been attending Kenmare since the accident, and Drs. Brunette and Low had both had intimate association with the case. Counsel submitted that the least the jury should give him was from £2OOO to £2500

JUDGE’S SUMMING UP

His Honour said the principle on which damages were assessed by a Judge or jury assessing compensation was on the basis of placing the man back where he was before the accident. He should not be allowed to make a profit nor were they to view it in the manner of punishing the one responsible.. It was always a difficult matter. It was human nature to exaggerate a claim. On the other hand plaintiff could only make one such claim. If later the injury was worse than expected, and the amount was not enough, then he could not ask again. The doctors idiffered, but doctors did sometimes differ. In all his experience he had never seen a case in which a doctor could demonstrate the injury from similar experience resulting from something which happened in his youth. In this case a large sum had been claimed —£2500, in addition to £220 for loss of wages. However, Mr Kerr was fair by saying that he had received £l7B of the latter amount, and had asked for the additional, £42. All the hospital, doctor’s expenses, massage and medical expenses had been paid, amounting to £172. Mr Kerr asked for the payment of £2 10s for 88 weeks. At the time of the accident he was getting only £2 4s, but at a time of rising wages the jury might think they would have gone up to £2 10s. If he had been making up the compensation he might accept that. No doubt plaintiff had had a considerable amount of suffering and if he was dealing with it he would give between £IOO and £2OO. Then there was the question of permanent disability. If they accepted the evidence of Drs. Jamieson and Gibbs then it would be two or three years before he could undertake labouring work, and if that was accepted then they should give the most. They should determine the difference between what plaintiff could earn in his present condition, and what he could have earned, say £2 per week for the difference, which for three years would be £3OO. Even if he had lost a leg completely £2500 was too much. Dr. Hudson’s evidence was that he would lose 40 per cent, of the use of the leg. If £2500 was too much for the loss of a whole leg, how much too great was it for 40 per cent, loss of the use of a leg? However, the matter was in the hands of the jury to determine the amount of the damages, the only restriction of the Court being that it could ask for a rehearing if the jury returned an unreasonably high amount.

After a retirement of an hour and a quarter the jury returned, awarding plaintiff damages of £1192, and judgment was given for that amount, with costs.