PRIVY COUNCIL CASE.

New Zealand Herald, Volume LXIX, Issue 21239, 20 July 1932, Page 14

PRIVY COUNCIL CASE.

DETAILS of judgment.

APPEAL CCiURT CRITICISED.

collision sequel.

[BY TELEGRAPH. —OWN CORRESPONDENT.] WANGANUI, Tuesday.

The Privy Council judgment in the Wanganui case of Benson v. Kwong Chong, which has just been received, contains pointed comment on the decision of the Court of Appeal in directing judgment to be entered for defendant, notwithstanding the jnry's findings. Their Lordships think that the reason is to be found in the misapprehension on the learned Judges' part of the jury's answers.

The case arose as the result of a motor accident on April 14, 1929, in which a motor-cycle ridden by Eric George Benson came into collision with a motor-car owned by Kwong Chong and driven by his son. Benson suffered serious injuries and a year after the accident was unfit to drive a motor vehicle or undertake any heavy or responsible work. Chong's son at the time of the accident was under 15 years of age and had obtained a licenco to driv® a motor-car by making a false declaration of his age. The case was tried three times at tho Wanganui Supreme Court before a Judge and three independent juries and ultimately reached the Court of Appeal, which unanimously gave judgment for defendant, Kwofig Chong. The solicitor for plaintiff, Benson, appealed to' His Majesty iA Council in forma pauperis and in an exhaustive judgment the Privy Council unanimously reversed the decision of the Court of Appeal. Answers by Jury. Concerning the jury's answers to questions put by the Judge, Their Lordships think there is in those answers no trace of perversity. "Indeed," states the Privy Council judgment, "these answers are characterised by a nice discrimination. The jury rejected plaintiff's pleas in relation to tho give-way rule. Ifc found him to have been initially negligent, notwithstanding his excuses, and there is not much to be said for its final conclusion when regard is had to the youth and inexperience as a driver of this boy of 14£, who ought to have had no licence to drive at all. If the jury was .of the opinion that the collision was really due to the youth, and inexperience of this boy, unequal to a situation he had himself done so much to create, can it be affirmed that it was necessarily wrong ? How then was it that the Court of Appeal felt itself justified, notwithstanding; the jury's findings, in directing judgment to be entered for the defendant ?''

The answer, Their Lordships think, is to be found in a misapprehension on the learned Judges' part of the jury's answers."

. Continuing, Their Lordships criticise Mr. Justice . Herdman's statement that " the evidence proves that the motorcycle struck the car on the left side." Their Lordships state: "The really effective criticism of the learned Judge's interpretation of this answer is that it has no regard to the answers returned by the juiy to questions 3 and 4, nor has it- liny sufficient regard to their answer to 2 (a). Criticism of Conclusion. " The misapprehension Under which, as Their Lordships think, Mr. Justice Reed laboured, is different in kind. He bases hits conclusion on a series of what he called "uncontested facts." In Their Lordship's opinibri, these so ; called facts are not properly so described, but they have thought it more convenient to answer the learned Judge's views, by so framing their own analysis of the evidence a« therein to disclose the real question in difference, which, as they think, the jury was required to solve. Only one statement of the learned Judge seems to, require an answer. In his view, the only negligence on the part <jf the defendant's servant, as found by the jury, was that hisi car was being driven at an excessive speed.

Their Lordships do not agree that the jury's answer to that effect in 1 (a) is an answer in the terms of the question. The answer was quite consistent with their answer to questions 3 and 4, that, at the latest stage of all, again using the terms of the question, Kwong Chong's driver was in additional respects lacking in the exercise of ordinary care.

In Their Lordships' judgment, accordingly, there is no justification at all for a new trial. In their - opinion the plaintiff appellant is, in accordance with the .verdict of the jury, entitled to judgment as a matter of right.