DAMAGES CLAIM FAILS

Southland Times, Issue 25680, 24 May 1945, Page 7

DAMAGES CLAIM FAILS

Injuries Suffered By Cyclist JURY NOT UNANIMOUS A three-quarter majority verdict in favour of the defendant was returned by''the jury in the Supreme Court last flight in the case in which Leslie Lay” cock (Mr S. M. Macalister), claimed £349/6/8 special damages and £lOOO general damages from George Edmund Elliott (Mr A. N. Haggitt), as a result of a. collision between the plaintiffs bicycle and the defendant’s motor car. Judgment was given for the defendant with costs according to scale on the amount claimed, witnesses’ expenses and disbursements to be fixed by the registrar. The case was opened on Tuesday, and it occupied the whole of yesterday. His Honour Mr Justice Kennedy presided. When the case was resumed yesterday morning Oliver J. Henderson, a former secretary' of the Invercargill Amateur Cycling Club, continued giving evidence. He said that Elliot had not been requested to take the car ahead of Laycock. It had been his own decision. After turning at Dacre Laycock had ridden into a strong wind. He had put his head down and ridden very low. This was a common practice. There had been no other traffic on the road until after the accident. Laycock had been riding with his head down when the car passed him, said the witness. Elliott had stopped the car about 400 yards ahead of Laycock. The car had been stopped on the left-hand side of the road, the two outside wheels being on the bitumen. No one got out of the car after it stopped. They had a smoke after pulling up. The car had stopped opposite a gateway. There had been some racehorses in the paddock and they had talked about the horses. The 'witness had noticed Laycock approaching and had remarked that he appeared to be coming fairly fast. He had been sitting next to Elliot when he made the remark. They had continued to study the racehorses and talk generally, and then there was a heavy thud on the rear of the car. The witness had got out of the car and found Laycock lying on the road. He was lying on the bitumen behind the. car. To Mr Haggitt, the witness said that the club had agreed to Laycock s request to make the attempt. It had agreed to supply officials and an official car. There were rules covering such tests. There was nothing in the rules which referred to a car. It was necessary for the occasion. No one had got out of the car. No one, to his knowledge, had told Elliott to get his car off the road. There would be no difficulty in a cyclist lifting his head to see the road. INJURIES TO PLAINTIFF

Dr L. R. Stewart said he was acquainted with Laycock’s injuries. .He had been at the Southland Hospital when Laycock was admitted. The witness detailed the injuries suffered by the plaintiff at the time of the accident and the treatment that had been necessary. His injuries had been classed as serious. His fractures had healed, but there was still some wedging of a vertebrae and a bending in the spine. He did not expect the plaintiff to have trouble in the future with his spine., but there was a tendency for atfiritis of the spine to develop more rapidly in these cases. He would expect the plaintiff to have trouble with his back at first, but not in the near future. The trouble might occur later in life, but he could not say exactly when. Mr Haggitt moved that the case be withdrawn from the jury on the grounds that on the case presented it was abundantly clear that the accident had been caused through the fault of the plaintiff. Second, he moved for a non-suit on the grounds that no evidence had been presented to show any breach of duty on the part of the defendant.

His Honour said he would not rule against counsel, but that he would reserve his motions for later consideration.

In opening the case for the defence, Mr Haggitt said that the defence was that the driver of the official car was under no obligation to the cyclist, and that the accident was due entirely to the plaintiff’s own fault in failing to keep a proper look out. It was not for the defence to disprove the case; it was for the plaintiff to prove it. George Edmond Elliott, the defendant, said that on the return journey the pace had been so slow that they decided to go ahead. Laycock should have known that they had gone ahead. They had stopped on a clear straight portion of the road. They had gone on about a mile ahead of Laycock before stopping. There was no rule to say that the car should get off the road altogether. There was no rule that any official should get out of the car to watch the cyclist. He was aware of the rules of the road. So far as he was aware those rules applied to racing cyclists. After the accident Laycock had said it was his fault that he crashed into the back of the car. The plaintiff had not blamed him or any of the officials for the accident. TRANSPORT REGULATIONS To Mr Macalister, the defendant said he was the official car driver. It was the practice for the official car driver to assist in getting stock off the road. He was aware of the transport regulations concerning races.. He knew they provided for patrols. It was not impossible for a racing cyclist to ride with his head up into a wind. It was necessary to see where one was going. It was entirely up to the cyclist to look after himself. David Harris, president of the Invercargill Amateur Cycling Club, said he had had considerable experience of cycling generally. He was aware of Laycock’s attempt on this record. Riders had to obey the Transport Department’s regulations. Those regulations were in file club’s rule book for the guidance of competitors. The witness detailed the duties of the various officials of the club. It was the duty of the timekeepers, he said to keep the time during the whole period of a race and to see that the race was fairly conducted. To Mr Macalister, the witness said he had had no active cycling experience, but for eight or 10 years he had had experience as an official. The regulations at the end of the book, concerning the rules, of the road, should have been complied with in. Laycock’s case. It was not a club’s race proper, and it was not necessary to provide patrols. If the defendant had not offered his assistance there would have been no action taken by the club about this attempt on a record. The club did not promote individual competitions or record attempts.

Michael C. M. Toole, an official timekeeper of the Invercargill Amateur Cycling Club, and Constable W. L. J. Broomfield, who took a statement from the plaintiff at the hospital, also gave evidence. This concluded the evidence for the defence. In his address to the jury, Mr Haggitt said it must be'apparent that the accident was caused not through any fault of Elliott, but through the failure of the plaintiff to take ordinary care. The claim was based on negligence. There was no witness who had said the defendant was at fault, except the plaintiff, and he had been vague about it. There had been some risk involved and the plaintiff had been entitled to some i protection, said Mr Macalister.

Tire plaintiff had been relying to some extent in receiving some assistance. The defendant had seen him coming, with his head down, and he had done nothing. He had not even blown his horn. He should surely have taken some action. Counsel submitted that the defendant had clearly been negligent. After discussing the question of damages, his Honour summed up a length. The jury retired at 4.40 p.m. It returned at 8 p.m. and asked for information about the official position of the defendant, Elliott. His Honour said that so far as he was able to see from the regulations, Elliott had no official position. He had been driving the car in which the three timekeepers had travelled. His Honour quoted from the evidence and said it was for the jury to decide. The jury retired again and returned at 8.20 p.m. The foreman (Mr F. W. Webb) announced that there was no probability of the jury being unanimous. ~ When his Honour said that he would accept a three-quarters majority verdict the foreman announced that there was a three-quarter majority verdict in favour of the defendant.