CLAIM UPHELD

New Zealand Herald, Volume LXX, Issue 21423, 22 February 1933, Page 12

CLAIM UPHELD

FyFFECT OF INJURIES RISK OF TJJBERCULOSIB MAGISTRATE'S DIFFICULTY [or TELEGRAPH —OWN CORRESPONDENT] VVHANGAHEI, Tuesday Judgment was given in the Magistrate'i Court to-day by Mr. G. N. Morris, S.M., in a claim by Lester Sinclair, theatre manager, of Whangarei, for £29 14s special and £3OO general damages from Morgan Laurcnson, farmer, of Tikipunga. The action arose out of an accident irkJ3ank Street, Whangarei, on February 15, 1932, when plaintiff was knocked down by a motor-car driven by defendant. " I have already decided that there wag negligence on the part of defendant and no contributory negligence on the part of plaintiff," said the magistrate. " The evidence of three medical men was heard by me on February 8 and I also before me the evidence of three other* taken in Auckland. There is no dispute as to the special damages. The plaintiff claims that his injuries were such that he will most probably develop tuberculosis in a degree thai it is impossible to determine. Beal Question at Issue " There is a conflict of opinion among the medical witnesses, and it appeared also that the authorities quoted were not reconcilable. A study of these quotation! in their context, however, has convinced me that, so far as the present case is concerned, there is no important divergence of opinion, and' the real question at issue is one of fact. A, few days after the accident, Dr. H. A. Good examined plain, tiff and sent him to hospital. His diagnosis was pleurisy or pericarditis. " Dr. J. W. Hall,, medical superintendent of the Whangarei Hospital, is quite definite that plaintiff was from primary traumatic pleurisy. Dr. C. D. Costello was at the time radiologist at the hospital and X-rayed plaintiff twice. Both doctors are in accord as to the case and ! Dr. Hall is definite that*the pleurisy was bacterial, and he says he would not expect a slight blow to bring on pleurisy in the absence oi tuberculosis bacilli. Dr., Hall also states the danger of tuberculosis was uppermost in his mind from his first' diagnosis... . Evidence for Defence " The principal medical witness for the defence is Dr. 0. McDowell, tuberculosis officer at the Auckland Hospital. Briefly, his contention is: that the pleurisy in this case is entirely 'the result of the blow and that there is no evidence of tuberculosis or other bacterial , infection. At the close of his cross-examination he said, 'From my experience of the case, I -was not prepared to say whether Sinclair's was a bacterial or pleurisy. The doctor who examined him afr the time would be- in a better position to judge than I am.' , A magistrate, sitting as he does without the benefit and advice of medical assessors, will always find difficulty in deciding a conflict of medical evidence where he himself is only a layman,"-con-tinued the magistrate. " His best method of judging will, I think, be to decide first which of the witnesses is in the best position to judge and then to take the. personal equation into account; Dr. Hiill is, I;, think, clearly- iii ft better position to judge this case than any -of, the others. His qualifications 'and his experience, his general demeanour as » witness and his ability to defend his diagnosis under cross-examination are all quite satisfactory, and he. also had the full support of Dr. Costello, whope- examination was made shortly after plaintiff was admitted. I therefore find that Dr. Hall's diagnosis of primary traumatio pleurisy w<fs justified. Question of Damages "I can now deal with the question of the quantum of damages. First£ there is no. doubt that plaintiff has suffered & good deal ,of pain, worry and inconvenience. Secondly, be had, prior to the accident, taken out an insurance policy,, and after the accident, he was declined by the .company consideration of even a loaded policy. He then tried Jo get another company to insure him against tuberculosis for a period of five years, this was Refused. Even if -this is a mistake on the part of the companies, plaintiff is still at a distinct disadvantage. "In this case it is impossible to speak with certainty and precision," concluded the magistrate, "and I have the uneasy consciousness that, even given the facta, twenty different men would arrive at exactly as many different estimates. I fix the special damages at £29 14 s and the general damages at £2OO. Judgment will therefore be entered for plaintiff for £229 14s, and costs. £33 18s." Mr. E. Harrison, for defendant, applied for security for appeal. Security was fixed at £IOO, plus th# amount of the judgment and costs.