REMITTED TO MAGISTRATE

Taranaki Daily News, 7 December 1929, Page 11

REMITTED TO MAGISTRATE

NON-SUIT ON DAMAGES CLAIM.

CAR WAS TRADED IN FOR NEW ONE

“The case will be remitted to the magistrate to enter a non-suit/’ said Mr. Justice MacGregor at New Plymouth yesterday after considering the appeal of Ernest and Grace Alice Harper against a lower court decision at Stratford awarding Alice Margaret Pitt £55 9s damages in connection with a motor collision.

Mr. A. A. Stewart said on behalf of the Harpers that at first sight this appeared to be an ordinary case of negligent driving followed by a claim for damages for repairs and depreciation. In the lower court the case had proceeded on the usual lines until the cross-exam-ination of the last witness, when it was discovered by accident that the plaintiff (now the respondent) had not had her car repaired, nor had she incurred any liability for repairs. Instead, she had traded in her car, a comparatively new one, for £5OO, £5O below the original price, and had obtained a new car for £550. Counsel submitted that in the circumstances there was no evidence whatever of damage. If the car were traded in it was perfectly plain that repairs had not cost the plaintiff one penny. Once the car was traded in the proper basis of damage was the difference between the market price before the accident and the market price afterwards. The result of the judgment was that, haying been allowed £5OO for her car and paying £5O to make up the price of the new one, she made a profit of £5 9s. He had used this argument before the magistrate. Mr. Alfred Coleman contended that these damages were not special'damages, but damages rising naturally out of. the. collision. The circumstance about which Mr. Stewart had spoken arose in this way: Between the time the statement of claim was prepared and the hearing of the action the plaintiff traded in her car, which was practically new and had not travelled more than 200 miles. The claim had been for replacing damaged parts, plus. £lO depreciation. Ho pointed out that the accident actually cost the plaintiff £lOO. The first car cost her £550 originally, but she was allowed £5OO for it in its damaged condition. Then she had had to pay £5O more to put her in the position she was in before.

His Honour said Mr. Coleman would have to prove damages. The statement of claim should have been amended. Mr. Stewart asked for a non-suit, pointing out that his clients had not been notified of the changed condition and that it was hardly fair that they should have been brought to Stratford to make the discovery of the changed circumstances accidentally during the cross-examination of the last witness. Mr. Coleman suggested his Honour ehould refer the case back to the magistrate for rehearing. The statement of claim could then be altered with the smallest expense to the parties, he said. His Honour said he would direct a non-suit. He thought the lower court judgment was totally misconceived. It was unfortunate, but this was an exceptional case. Costs of £9 9s and disbursements were allowed the appellant.