JURY’S VERDICT UPSET

Sun (Auckland), Volume IV, Issue 1076, 13 September 1930, Page 16

JURY’S VERDICT UPSET

COURT OF APPEAL DECISION SEQUEL TO MOTOR ACCIDENT Press Association WELLINGTON Friday. The Court of Appeal today delivered judgment in the nppeal case, George Benson v. Kwong Chong, heard on July IG. Judgment was given for defendant. At a third trial damages were awarded to Benson for injuries he received in a collision between bis motorcycle and a motor-car driven by Chong’s son. Motions for judgment by Benson and for a new trial by Chong were moved into the Court of his judgment Mr. Justice Reed held that plaintiff could, by the exercise of reasonable care up to the last moment, have avoided the accident. He disagreed with the finding of the jury that defendant had had the last : opportunity of avoiding* the accident. The judge said: “The important point is whether judgment should be entered for defendant. The administration of the law is adaptable to meet changing conditions and considerations. That applied in the days of slow moving traffic, with its minimum of accidents, and applies with increased force j at the present clay. “Jt is general knowledge that the real defendant in a motor collision case involving personal injury or death is the insurance company, and not the nominal defendant. There is every inducement,«therefore, for juries to gratify their feelings of compassion for the plaintiff—who is no doubt much to be pitied—at the expense of the real defendant. OPINION IN 1878 “As long ago as 1878 Lord Cairns expressed such an opinion, in connection with railway companies, as also did Lord Coleridge in the same case, in which he said that in such cases juries were inclined to be guided rather by feelings than by the law. The position nowadays is more acute. “Therefore, while not trenching on the true functions of the jury, it is the duty of.the Court to endeavour to secure that justice be done, by not hesitating to act in cases where the absence of'reasonable evidence to support the finding brings the matter, as a question of law, within the functions of the Judge. His Honour held that in the case before him the only rational inference was that the plaintiff was the author of his own injury, and that therefore the Court should exercise its duty of entering judgment for defendant, and not adopt the easier course qf ordering a new trial. The Chief Justice, Sir Michael Myers, and Justices Adams and Blair, concurred with this judgment. Air. Justice Herdraan, in an assenting judgment, said: “I shall content myself by observing that I am satisfied, after giving the. evidence careful consideration, that, the jury’s verdict was a perverse one. In their answers to issues 3 and 4 there was involved the finding that plaintiff’s negligence at sonic time had stopped, that he could not up till the last moment have avoided that accident by the exercise of reasonable care. Such a.finding is, in my opinion, not only inconsistent with the answers returned by them to issue No. 2, which is in substance a finding of continuous negligence, but it is not a finding at which, upon the evidence, 3 2 honest and reasonable men cotild have arrived.” The case was accordingly sent back to the lower Court, to enter judgment for defendant. Costs in the Court of Appeal wer* Axed 25 guineas.