STORMWATER DAMAGE.

New Zealand Herald, Volume LXI, Issue 18685, 15 April 1924, Page 7

STORMWATER DAMAGE.

MOTION FOR FRESH TRIAL. APPLICATION DISMISSED,: ; * DILWORTH TRUST CASE.. Judgment was given in the Supreme Court-yesterday by Mr. Justice Herdman in the application by the Dilworth Trust Board (Mr. Ostler and Mr. West) for a new trial of the action for damages brought by Mrs. Ada Leach . (Mr. Meredith) against the board. At the hearing of the action before His Honor and a special jury, a verdict was given for Mrs. Leach for the amount claimed, £501* ."with costs. Plaintiff alleged that the filling in of defendant's land, which was adjacent to ■ plaintiffs property in Great South Road, Green Lane, had resulted in damage being caused to ner property through stormwater and silt being thrown on to it. The application of the board for a new trial was based on the grounds , that the verdict ■ was against the weight of evidence, and that the damages awarded were excessive. His Honor said /although the witnesses differed definitely on points that were material, he could not say the jury were not justified in coming to the conclusion that Mr. and Mrs. Leach and their witnesses : were witnesses of the truth. These witnesses might have been mistaken on some points, but their evidence ' seemed to him to be given with an air of candour, and was undoubtedly evidence which a jury were entitled to consider acceptable. That the plaintiff a land had .been invaded by the water and silt seemed to be indisputable. Making, «therefore, due allowance tor exaggeration,: for tricks ;of memory , and for honest mistakes, the. jury, who were the judge of the credibility of the witnesses and who were able to weigh the evidence in the light of an inspection, could 'reasonably decide, that there was a preponderance of sound evidence which supported the, plaintiffs case. .... ~, j / ~ . Assessment of Damages, :..,, 5

Oontinuing, His Honor said be thought the iury were entitled, on the evidence, to decide that the actual damage done to the place before the issue of the writ ■was considerable and obvious. As the statement-of claim stood the plaintdf 8 action seemed to rest upon nuisance, but the facts proved would well support a claim for damages founded : upon an allegation of negligence, namely, that the defendant board had, without taking proper -care/deposited soil and debris on the hill side without taking proper precautions to protect plaintiff a property. j A jury were entitled, in certain circumstances, to award exemplary damages in cases of nuisance; for instance, if the evidence established that the act of defendant was done with a high hand. In such a case, the jury, in making its assess, raent, was not, restricted to a consideration of : the * actual proved loss. :■ In -;- the present case the jury were 1 entitled to decide on the evidence that the defendant board took no precautions of .any kind to safeguard the property of plaintiff, and that, with a callous indifferencej at piled up > spoil and sliding mud against plaintiff's boundary*, caring little about the consequences to her and her family, who -were '- entitled, to . live their lives in comfort. The' accuracy of the evidence on the subject of damage was challenged, but the jury, having heard the evidence after a view of the scene of the alleged nuisance, elected to accept the story told by plaintiff and her. husband and her witnesses. ' ;, % :.^'-'Ul:i : ;\--.'-

.Unfounded Suggestion. "Having i; listened to the ; .evidence. ■* continued his Honor, "and having again considered it carefully, I have been unable to find anything approaching perversity or unreasonableness in the jury s finding that the defendant board had injured the plaintiff and this observation, I think, applies equally ■ to the jury's award of damages. ' }i: f ?/?-. u. ( : -■■ •"« '~< ... * ;r----•'lt was suggested that the minds of the jury had been' inflamed '• by counsel, and that, in arriving at- their decision, they had taken i into consideration matters -which they ought not to have considered. As to thiß I have only to say that as an, attentive listener during the;whole of the proceedings, I detected nothing but a normal' use of the : colouring with which counsel is accustomed to embellish a statement to a jury and I can recall no instance of \ irrelevant .matter v : being submitted to the jury which would divert: their attention from relevant facte-and ; from the corrocfc legal principles upon which a case rof ■ this kind had to ;.; be decided." ~. „'• .-... ,-'■* - • The motion for a new trial was, dismissed with costs. £10 10s. . ' , -