ABRAMS TREATMENT.

Waikato Times, Volume 98, Issue 16095, 19 September 1924, Page 4

ABRAMS TREATMENT.

DUNDAS MACKENZIE'S APPEAL. APPLICATION FOR NEW TRIAL. Further argument was heard by His Honour Mr .Justice Stringer, at Hamilton, to-day, on the motion by Mr J. F. N. Dickson for a new trial in the case of Marjory Lawrence v. Henry Dundas Mackenzie, in which plaintiff, at Auckland, a few weeks ago, was awarded £2OOO damages on the grounds of negligence by defendant as a medical practitioner in his treatment of her for cancer. The grounds for the application were:— (1) That the verdict was against the weight of evidence; (2) That the damages awarded were excessive; (3) That the learned 'Judge misdirected the jury by directing them—(a) That the plaintiff had not submitted herself to a special method of treatment known as Dr. Abrams', to which she had in fact submitted. « (b) By directing the jury that the defendant should have exercised more than ordinary care (there being but one standard of care), although the defendant differed from the opinion of two other medical men. (c) That the defendant in a lecture had stated he could cure cancer by the Abrams' method, whereas the defendant had stated that under certain conditions cancer might be alleviated or its progress checked, but never claimed to cure cancer. (d) x The direction or comment "Was i\reasonable that his interest should cease when the guineas ceased to Cl flow from her pockets, which had been depleted," was incorrect in fact and prejudiced or was likely to seriously prejudice the defendant and the fair trial of the action. (e) The defendant was under no duly to further treat the plaintiff till afte»- March, 1923, and the comment "l't was for therri to consider whether leaving the plaintiff in those circumstances for six months was not of itself evidence of negligence," was not part of any negligence alleged, and the defendant, as a medical practitioner, was under no legal duty to the plaintiff after March, 1923. (f) The defendant was under no legal duty to warn the plaintiff as to what might possibly happen after March, 1923, and any such alleged breach of duly was not part of alleged negligence of the defendant. (g) The method of treatment adopted by defendant is one with an ever-increasing school, and is a non-surgical treatment as desired by plaintiff. (h) Whether the defendant had the plaintiff under his care and treatment from the beginning of the trouble' should not, as directed by the Jud,je to the jury, in any way prejudicially affect the defendant on the question of negligence, and such a statement of direction as a matter of law is incorrect, and as a matter of fact,

misled the jury. (4) Such comments or statements aforesaid, and, or the' comment or direction of the learned Judge, was such as to lead tc a wrong interference of fact and to an erroneous consideration of the issue. Counsel's Address. Mr Dickson dealt first with the question of misdirection. He held Ihat the Court had an inherent jurisdiction to deal with anything that might amount to or. appear to be a miscarriage of justice, and went further than a mere misdirection on a material point of law only. In the English code the term "misdirect" was applicable to both law and fact. His Honour: We have to deal with the law as it is here, and not the English law. Mr Dickson quoted New Zealand cases to show that if anything was said by the learned Judge in his direction which might be misunderstood by the jury, then a re-trial could be granted. His Honour said Mr Dickson was challenging his observations on the evidence. Mr Dickson: If what has been said by a Judge in his direction is likely to be misunderstood, then it is within the inherent jurisdiction of the Court to grant a new trial. His Honour: There would be a tremendous number of new trials if something which a Judge said might be misunderstood. You have to satisfy me that something was said by me that the jury not merely "might" have misunderstood, but that it was "probable" they did misunderstand. Mr Dickson: Or possibly did. His Honour: Oh, no. Now let us understand. You take no exception to my legal direction as to negligence? No*. Then you are asking for a new trial on the grounds that I made certain observations on the evidence which might be calculated to mislead the juryMr Dickson answered yes, and .submitted that such observations amounted to a direction on a material point nt' taw. His Hon\uir asked if it was not the duly of counsel at the time to have drawn the Judge's attention to a point upon which he (counsel) considered a misdirection had been made. Mr Dickson: The Court was at that time in Your Honour's control. His Honour: Not at all. It is surely the duty of counsel to interrupt if the Judge in his direction has made a misstatement of fact. Counsel: 1 don't think so. His Honour: You say this is a question of putting to,the jury a condition of facts not justified by the evidence. Yes. His Honour: Then I say that you should have called my attention to it. Mr Dickson: Not necessarily. His Honour: Then you can stand by and await the jury's decision and later apply for a new trial on the grounds of misdirection? Was it not your duty or your senior's duty, when I made certain statements which you considered were contrary to fact, to have interfered and said thai such was not according to fact? Matter for Indnvndual Counsel. Mi' Didkson: "That is a matter for individual counsel in the conduct of their eases." Counsel then dealt at length wild the. points of the, evidence upon Which lie said His Honour had misdirected, particularly relating to the nature or Hie treatment and In the statement which Mackenzie was supposed lo have made in a lecture in Auckland thai the Abrams' method would cure eaneer and that he himself had cured eases of cancer. He submitted that there was undoubtedly a possibility <>f a misunderstanding by the jurv from Ilis Honour's observations, and that there was justification for the granting of a new trial. Mr Strang said that so far as misdirection was concerned the code was quite clear, and he could find no case of any new trial having been granted on Ific grounds of misdirection on points of fact-

His Honour told Mr Strang that hft need not bother himself about the points raised relative to the damages being excessive and the verdict being against the weight of evidence. He was quite ' sure that the jury should have found as they did. Mr Strang said that apart altogether from the jury being influenced by the. demeanour of the witnesses, they might have, come to the conclusion on the cold stated in evidence that the woman's story should have been believed in preference to that of defendant's. Counsel said that what he objected to most- in the application was that certain isolated passages ~in His Honour's summing up were sorted out and exposed to Criticism. A direction should not thus be considered, but should be regarded in its fall context and general meaning. The whole of the summing up must be considered in its effect on the jury, and counsel quoted authorities to show that too much attention should not be paid to isolated passages. He submitted that the summing up was fair and impartial and not in the least likely to in any way mislead the jury. It seemed to counsel unnecessary to reiterate the facts as disclosed by the evidence which led the jury to bring in the verdict they did. It might Well appear. from the evidence that defendant's principal object in his treatment of plaintiff was to get fees from her and that his interest in her did in fact terminate when the guineas ceased to flow.