DECISION REVERSED

Wanganui Chronicle, Volume 73, Issue 370, 13 September 1930, Page 7

DECISION REVERSED

PROTRACTED LITIGATION BENSON v. KWONG CHONG JUDGMENT FOR DEFENDANT APPEAL COURT’S DECISION [Per Press Association. 1 , WELLINGTON, Sept. 12. The Court of Appeal to-day delivercd judgment in the appeal case Benson v. Kwong Chong heard on July 16. Judgment was given for defendant. In delivering his judgment, Mr ” stice Reed held that plaintiff could, by exercising reasonable care up till the last moment, have avoided the accident. He disagreed with the findiug of tho jury that tho defendant had the last opportunity of avoiding the accident. Ho said. “The important point is whether there should be judgment entered for the defendant. The administration of the law is adaptable to meet the changing conditions and considerations that were applied in the days of slowmoving traffic with its minimum of accidents, apply with increased force at the present day. It is of general knowledge that tho real defendant in a motor collision case, involving personal injury or death, is his insurance company and not the nominal defendant. There is every inducement, therefore, for juries to gratify their feelings of compassion for plaintiff, who is no doubt much to bo pitied, at the expense of the real defendant. “As long ago as 1878, Lord Cairns expressed such an opinion in connection with railway companies, as also did Lgrd Coleridgo in the same case, in which he said that in such cases juries were inclined to be guided by feelings rather than by law. The position nowadays is more acute. Therefore, whilst not trenching on the true functions of tho jury, it is the duty of the Court to endeavour to .ecure that justice bo done by not hesitating to act in cases where the absence of reasonable evidence to support the finding brings tho matter as a question of law within tho functions of tho Judge.” Author of Own Injury His Honour held that in the case before him tho only rational inference was that plaintiff was the author of his own injury, and that, therefore, tho Court should exercise its duty of entering judgment for tho defendant and not adopt the easier course of ordering a new trial. Sir M. Myers, Chief Justice, and Judge Adams and Blair concurred with his judgment. Mr Justice Herdman, in assenting to to tho judgment, said: “I shall content myself by observing that I am satisfied, after giving the evidence careful consideration, that tho jury’s verdict was a perverse one. In .heir answers to issues 3 and 4 there was involved the finding that plaintiff’s negligence, at some time, had stopped and that he could not up to the last moment have avoided the accident by tho 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 which, upon the evidence, twelve honest and reasonable men could have arrived at. The case was accordingly sent back to the lower court to enter judgment for defendant.

Costs in the Court of Appeal were fixed at 25 guineas.