PRIVY COUNCIL

Otago Daily Times, Issue 21646, 17 May 1932, Page 8

PRIVY COUNCIL

NEW ZEALAND APPEAL CASE BENSON v. CHONG. (FKOit Our Own Correspondent.) LONDON, April 7. The Lord Chancellor, Lords Blailesburgh, Merivale, and Russell of Killowen, and Sir George Lowndes beard the New Zealand case, Eric George Benson v. Kwong Chong, which came before the Judicial Committee of the Privy Council. This was an appeal by the appellant (Benson) from a judgment of the Court of Appeal of New Zealand given on September 12, 1930. The appeal raised important questions as to the law of contributory negligence in cases of street accidents, and as to the proper functions of judges in cases tried with juries. Counsel for the appellant were: Mr R. P. Groom-Johnson, K.C., M.P., and Mr A. A. Gordon Clark (Messrs C. J. Wray and Co., solicitors): and counsel for the respondent were: Mr D. N. Pritt, K.C., and Mr S. 0. Henn Collins (Messrs Biddle Thorne, Welsford, and Gait, solicitors). The action was brought by appellant and plaintiff (Benson) to recover damages for injuries caused to him as the result of a collision between a motor cycle be was riding and a motor car owned by the respondent • and defendant (Kivong Chong), and driven at the time of the accident on the latter’s behalf by Dickson Fore, his son and servant. The action has been three times before a jury. On the first occasion the jury were unable to agree upon one of the questions submitted to them and were discharged. On the second occasion their verdict in favour of the plaintiff was on the motion of the defendant set aside by the trial judge as being perverse, and from his decision there was no appeal. On the third occasion, the jury having given their answers to specific questions left to them, the plaintiff and the defendant moved for judgment on those answers, the defendant asking in the alternative for a new trial. These motions wex-e by consent removed into the Court of Appeal for argument, and the Court of Appeal were unanimously of opinion that judgment should be entered for the defendant, and accordingly remitted the action to the Supreme Court for that purpose. The accident took place on April 14, 1929, at the junction of Spiers street and Seddon street, Wanganui. The appellant was riding his motor cycle along Spiers street, and at the end of Spiers street he turned to his right to enter Seddon street. The respondent’s motor car was coining down Seddon street in the opposite direction, and came into violent collision with the appellant’s _ motor cycle. Benson sustained serious injuries, and a year after the accident he was unfit to drive a motor vehicle or to undertake any heavy or responsible work. Dickson Fore, at the time of the accident, ivas under 15 years of age, and had obtained a license to drive a _ motor car by making a false declaration of age. ALLEGED NEGLIGENCE.

The negligence alleged by the appellant against Dickson Fore consisted in driving (a) at an excessive speed, (b) on the wrong side of the street, and (c) swerving into the appellant’s motor cycle. The contributory negligence alleged by the respondent against the appellant was that: (a) Intending to turn to his right from Spiers street into Seddon street he failed to proceed oii the left of the centre of Spiers street until he had passed the centre line of Seddon street before, turning to the right. , (b) In turning out of Spiers street he failed to give way to the defendant’s car approaching from the right. At the second trial before Mr Justice Reed on February 19 and 20, 1930, the jury by their answers found Dickson Fore negligent in respect of all three allegations mhde against him, and found that the appellant was not negligent under either (a) or (b). The learned judge, holding that it was unreasonable for them to find that the appellant was not negligent under (b) ordered a new trial. In May, 1030, the appellant filed an 'amended statement of claim, claiming £IOOO general damages. A notice of motion filed by the respondent to. strike out the amended statement of claim was ordered to abide the result of the trial, and in the events which happened has not been heard. THIRD TRIAL. At the third trial before Mr Justice Reed on May 19 and 20, 1930, the questions left to the jury and their answers thereto were as follow:., — 1. Was the defendant’s driver gentfa) In driving at an excessive speed? Jury’s answer: Yes. (b) In driving on the wrong side of the road? Jury’s answer: No. 2. Was the plaintiff negligent—(a) In cutting the corner of Spiers street? Jury’s answer: No. (b) In attempting to cross Seddon street in front of defendant s car? Jury’s answer: Yes. 3. If you find that both were negligent could each up to the last moment have avoided the accident by the exercise of ordinary care? —Jury’s answer: 4. If not could either of them, and, if so, which?—Jury’s answer: The defendant’s driver could have avoided the accident by the exercise of ordinary care. . 5. Assess the damages to the plaintiff, irrespective of your answers, to the • above.—Jury’s answer: Special damages, £134 6s 6d; general damages, £IOOO.

Upon these findings the plaintiff moved for judgment, and the defendant also moved for judgment or, alternatively, for a new trial, and these cross-motions were by consent ordered to be removed into the Court of Appeal for argument, which took place before a court consisting of Myers C. J. Herdman, Reed, Adams, and Blair. J.J. The court, having taken time to consider, were unanimously of opinion that judgment should be entered for the defendant on the ground that, having regard to the facts established by the answers to the first and second questions, the answers to the third and fourth were inconsistent with those facts and were without any sufficient evidence to support them. APPELLANT’S CASE. Counsel for appellant submitted that the order of the Court of 1 Appeal was wrong and should be set aside, and that judgment should be entered in his favour for the sum of £1134 6s Gd for the following among other reasons: — 1. Because there was evidence to support the findings of the jury. 2. Because the jury came to a con-, elusion which they were entitled to come to upon the evidence; and 3. Because, upon the findings of the jury, the appellant plaintiff was entitled to judgment. 4. Because the inference drawn by Mr Justice Herdman that the jury’s finding of negligence on the part of the appellant involved a finding of continuous negligence is erroneous. 5. Because there was evidence that the negligence of the appellant was not continuous while that of the respondent’s driver was continuous. 6. Because the inference drawn by Mr Justice Reed and the “undisputed facts” from which they were drawn involved accepting evidence which _ the jury were entitled to reject and rejecting evidence which the jury wex - e entilled to accept. 7. Because in ordering judgment to bo entered for the respondent, the Court of Appeal usurped the functions of the , jury and came to a decision on a question of fact where there was material for a contrary opinion to be honestly and reasonably maintained. RESPONDENT’S CASE. Counsel for respondent submitted that the judgment appealed from wag right for the following among other reasons: — ]. Because, on the answers of the jury, taken in relation to the facts admitted or proved before them, the accident was not due to the sole negligence of the defendant’s driver. 2. Because, the jury found that the plaintiff and the defendant’s driver were guilty of negligence and did not find that the defendant’s driver could have' avoided the consequences of the plaintiff’s negligence. 3. Because, if .the jury* answers to the third and fourth questions are to be interpreted as meaning that the defendant’s driver could have avoided the consequences of the plaintiff’s negligence by taking ordinary care, there was no evidence to support this finding. 4. Because the answers to the third and fourth questions, if and so far as they involve a finding that the plaintiff could not have avoided the consequences of the defendant’s driver’s negligence by

taking ordinary care, were against tin weight of the evidence and perverse. fi. Because the finding, if such it be that the defendant's driver could havi avoided the accident is essential to tin plaintiff's success and is inconsisten with the finding that the plaintiff wa negligent in crossing in front of the de fendant's car. 6. Because there was no finding tha the negligence of the defendant's drive; was the effective cause of the accident. 7. For the reasons given by tin Court of Appeal. In the alternative, the responden lmmblv submits that a new trial should bi ordered for the following among othe' reasons: — 8. Because the answers to the third and fourth questions are incon sistent with the answers to the first am second questions. 9. Because the answers of the jurj to the questions submitted to them an so defective that judgment cannot b( given upon them. (Judgment was reserved.