INJURIES TO CHILD

Otago Daily Times, Issue 23335, 29 October 1937, Page 5

INJURIES TO CHILD

RESULT OF AN ACCIDENT SUBSTANTIAL DAMAGES CLAIMED VERDICT FDR PLAINTIFF The Supreme Court was engaged yesterday hearing a claim for £2021 17s damages preferred by Joseph Thomas Lloyd, of Hollyford, acting on behalf of his infant son, Kenneth Lloyd, against R. Cahill and Son, Dunedin, carriers. The action arose out of an accident in Gardner street, Mornington, on November 1, 1936, when the infant plaintiff was knocked down by a motor lorry owned by the defendants and driven by Sidney George Vause. The claim comprised special damages £2l 17s and general damages £2OOO. After a retirement of an hour and a-half the jury found negligence on both counts and awarded full damages, both special and general. . Mr Justice Kennedy was on the Bench, *and the case was heard before a Jury. Mr A. N. Haggitt, with him Mr J. C. Robertson, appeared for the plaintiff, and Mr J. M. Paterson represented the defendants.

The statement of claim declared that plaintiff was an infant, four years of age. On November 1, 1936, while crossing Gardner street, he was knocked down by a motor lorry driven in a negligent manner by Vause, the authorised agent of the defendants. It was claimed that Vause was guilty of negligence in falling to keep a proper look-out and in travelling at an excessive speed, which was improper in the circumstances. The plaintiff suffered brain and skull injuries which had led to partial paralysis of the left arm and leg, which still continued, and was likely to continue indefinitely. In addition, there would always be a soft area on plaintiffs skull which would be a source of permanent weakness. The plaintiff suffered pain and shock and was likely to be permanently, affected by the injuries. The Plaintiff's Case Opening the case, Mr Robertson said it appeared that the lorry had been lent or hired by the defendants to a Mr Vause, and at the time of the collision it was driven by his son, Sidney George Vause, who was an unlicensed driver and had been convicted of that offence. Mr. Paterson said it would be admitted that the defendants must be responsible for the actions of the lorry driver.

Joseph Thomas Lloyd, an in the Public Works Department, l said he was the father of the infant' child who was the plaintiff in the{ case. At the time of the accident! the family was staying in Mornington.' The plaintiff was then three 1 years and a-half of age. About 3J30 p.m. on November 1 of last yeari witness and his wife heard a motbr lorry roaring over the hill from;, Lookout Point, and when he caught sight of it, it appeared to be travelling at about 40 miles an hour: Witness had been driving cars aiul lorries for 22 years and considered himself a competent judge of spedsd. Witness did not see the actual aciddent but he heard someone dill "look out" and then the brakes were applied to the lorry. .Witmjsss rah'dut to investigate and saw tibe boy lying on the road. The bloy was in hospital until Christmas Day. Prior to the accident he had beema normal, cheerful child, but nowj, a year afterwards, he was quiet, nefcvous, and partially paralysed; f Rbsanna Ruby Lloyd, wife of jthe previous witness, gave corroborative evidence. She had driven thousands of miles with her husband, and said she could iudge speed. Ronald William Mathieson, a solicitor, who lived opposite the spot where the accident occurred, said the lorry was travelling at a fast speed, but that was not uncommon in Gardner street. He considered the speed excessive, estimated it at 30 miles an hour at least. He did not see any slackening of speed and heard no wariring as the lorry approached. Witiness thought that if the driver had t>een keeping a proper look-out he wjjuld have seen the child in time. |The child seemed to change his mind; and run back home. Witness saw' the child run into the rear portiaji' of the lorry and be knocked downJ To Mr Paterson: The driver/was probably quite Honest when he, said he did not see the child. Hadl the, lorry's speed been slower theTcbild would still have run into it. j ! Henry Louis Paterson gave' evidence of measurements taken: by him and said'that 25 to 30lnjiles an hour—not more—would bej safe on such a road. The presence of parked cars in the street would imake extra care necessary. Medical Evidence Dr F. S. Batchelor gave evidence of the child's.injuries, and said the brain had been seriously inyrured. Complete paralysis had followed an operation, but that had greatly cleared up and the child was wonderfully well considering (his injuries. It was posible, however, that a further operation might be j necessary. Complications might etisue in the future. The child's left feg and arm were still a little weak and he did not use them well. It was too early for a mentality test as yet, and it was impossible to be certain that his condition would affiect his future career. To Mr Paterson: The boy would have definite limb weaknesses, but the other consequences were only possibilities. Dr R. H. Fulton detailed the -child's head injuries and the treatment given him, and said he had examined the boy on October 26. He was of the opinion that the boy would be debarred from strenuous or, active exercise. His hand was not as useful as before and any improvement was unlikely. He walked slowly and had a definite limp. He would be definitely. handicapped in the future and witness considered his disability serious. George Watson, garage proprietor, described braking tests conducted in Gardner street. Case for the Defence Sidney George Vause, the driver of the truck, said he was returning from Roxburgh when the accident occurred. Coming to Gardner street, he was in second gear, but he changed into top gear before the accident. He was then (driving at 25 miles an hour. His brakes were in very good order. Two cars were parked on the left-hand aide of the street and there was another on the right, and a fourth car was approaching. He saw no one near the narked cars as he approached, but as he passed them he saw a flash of something. He nearly stopped, but as he had felt no impact he pulled up gradually, moving awapr from the centre of the road. Thje flash of something might have been imagination, but he stopped to investigate.

Hfi saw the child lying on the road. Witness considered that he had been keeping a good look-out, and the only conclusion he could arrive at was that the child had run into the back of the truck.

To Mr Haggitt: He did not have much to do with trucks in his ordinary work, and had never driven that particular truck before. He was sure in his own mind that he was not exceeding 30 miles an hour. To Mr Paterson: He had driven other motor trucks prior to the accident.

Mr Paterson at this stage submitted a formal motion for a nonsuit on the grounds that there was no relevant evidence of negligence to go before a jury. ! His Honor said he would consider the point. / Question of Negligence / .'Addressing the jury, Mr Paterson said the facts in the case were in ;very small compass. It would be ridiculous for him to suggest that ithe child had not been gravely injured. Everyone in the court would if eel the utmost sympathy for the child and its parents, but that did (not entitle the child to a verdict 'for damages. The jury must not fallow itself to be carried away by ;the distressing circumstances of the case. The one point at issue was whether negligence had been proved Or not. The original statement of claim had been for £1250 general damages, but a few days ago the figure had been amended to £2OOO. Although proposed legislation provided for damages whether there were negligence or not, that was not yet the law. and any jury dealing with a case such as the present one must find that there was negligence before a verdict for damages could be returned. Counsel said the present accident was not due to any carelessness or omission on the part of the truck driver, and it was the unfortunate child's own fault. He was not struck or knocked down by the truck. He ran into-the rear portion of the truck without giving the driver any chance of seeing him. The child darted out from behind parked cars, and any careful, responsible driver could not have done more than Vause did.

Mr Haggitt submitted the contrary opinion. Vause had not done what any careful driver would have done in the circumstances. There was definite negligence on his part. He drove blindly down the street, without any warning of his approach, and it was perfectly clear that after the impact he braked hard, went into a skid, and pulled up in a distance of 145 feet. If he had been travelling at 25 miles an hour he should have been able to pull up in 54 feet. Counsel also commented on the fact that Vause, sen., who was sitting beside his son, and could have testified as to the speed at which the truck was travelling, had not been called by the defence. Verdict for Plaintiff After his Honor had summed up the jury retired at 4.15 p.m., and returned at 5.45 p.m. with a verdict for the plaintiff. Mr Haggitt moved for judgment on the jury's findings. Mr Paterson said he would like time to consider whether he would take any further action in the direction of a motion that the verdict was sagainst the weight of evidence. His Honor granted the request.