DUNDAS MACKENKIE.

Waikato Times, Volume 98, Issue 16096, 20 September 1924, Page 8

DUNDAS MACKENKIE.

NEW TRIAL REFUSED. NOTHING TO JUSTIFY IT. HIS HONOR'S COMMENTS. His Honor Mr Justice Stringer refused a new trial (defendant's petition) in the case Lawrence v. Mackenzie. In giving his decision His Honor said it seemed to him quite clear that a misdirection on the part of a judge in order to justify the granting of a new trial must be on a material point of law. In this case there was only one question of law on which he directed the jury and only one point on which they required any direction—that was the extent of the obligations of the defendant as a medical man in treating a patient who committed herself to his care. His Honor said he directed the jury' on that point, that as defendant held himself out as a professional man he was required to possess and exercise reasonable care and skill, and if he failed to do so he was guilty of a breach of his duty, and such a breach would amount to negligence in law. Counsel for defendant did not question that that was an unimpeachable direction. What counsel appeared to have done was to have obtained an unofficial shorthand report of the summing up and had subjected that to a somewhat meticulous scrutiny and had selected certain passages from it which he said had the effect of misleading the jury and thus bringing about a miscarriage of justice. In His Honor's opinion that was not a misdirection in, point of law at all, and was not a ground that would justify a retrial even if it were. He thought defendant would have to show that the observations of the Judge were of a character that had led to the verdict being given against the weight of evidence, which of course would bring the matter under the heading of rule 276.

His Honor briefly reviewed the evidence and his observations thereon, and said there was nothing to show that plaintiff went to defendant for the particular purpose of subjecting herself to the treatment known as the electronic reactions of Abrams, but went to him as an ordinary practitioner, and it seemed to His Honor that defendant understood that to be the case. He said himself that he had only added the Abrams treatment to his ordinary practice during the last three years. Counsel for both sides had, in fact, agreed that the Abrams treatment was only additional to defendant's ordinary practice. Not Recede in Slightest Degree.

*ln the second alleged misdirection His Honor said lie would not recede in the slightest degree from what he had advised the jury. The evidence showed that the defendant had full knowledge of the diagnosis made by Drs. Joseph and Spencer, and that circumstance, in His Honor's opinion, imposed upon defendant the necessity to exercise greater care and alertness in watching the development of the patient's condition. In each case of a person charged with negligence the issue would depend upon tiie particular circumstances of the particular case.

Then as to the complaint that It was stated to the jury that the defendant had said cancer could be cured by the Abrams method, it had been agreed by counsel on both sides that the Abrams method was outside the scope of the enquiry, and His Honor made tPie statement in question to the jury as throwing some light on Mrs Lawrence's evidence that when she left the defendant's care in March, 1923, she had been informed by the' flcfcndant that she was cured of her trouble. His Honor traversed at length the remaining instances of alleged misdirection and held that what he had stated was amply justiiled by the evidence. He was of opinion that the summing-up must bo viewed as a whole, and viewed in that manner he was unable to conceive that anything had been said by him which was in the slightest decree cal. culated to mislead the jury or cause them to draw any erroneous inference from the proved facts. His Honor added that for counsel not to intervene when a judge was making what they considered was a misstatement of fact was a radically improper method to adopt. It was not only the privilege but the duty of counsel to intervene in such a case and to have the question settled there and then. It was the constant practice for counsel to do so, and Judges welcomed interventions in order that there may be no risk of any misunderstanding. The idea of a counsel sitting still and hearing what he considered a misdirection without intervening and afterwards moving for a new trial on the grounds that a misdirection had been given would be to create an improper state of affairs. Summing. Up as a Whole.

His Honor went on to slate that after reviewing cases quoted to him, it was clear from these that it was an improper method to detach passages from a summing up, as in the present case. The authorities showed that the summing up had to be looked upon as a whole and regarded in their general effect. A Judge had to sum up a case immediately on the conclusion of counsels' addresses, and he might be apt to use expressions which would not be quite in the same form if he had greater lime for consideration. Reading 1 as he had the short, hand report of his summing up, which was substantially what he had said, he did not, think that it was in the least degree calculated to mislead the jury In any substantial respect. It seemed to His Honor that even if the grounds put, forward had been permissible they would have failed to justify a new trial. With regard to the point raised that the verdict was against the weight of evidence, the jury saw the witnesses, observed their demeanour and heard their stories. They preferred to believe Mrs Lawrence and her husband, and they were perfectly justified in doing so.

On the srround that the damages were excessive. Mr Dickson had abandoned this point. It was a matter entirely at the discretion of the jury, and the sum of £2OOO could not, His Honor thought, be said in the circumstances to be excessive if the jury believed plaintiff's story. The unfortunate woman had her expectation of life very considerably shortened, and it was impossible to measure that in nice scales, and he considered the jury was fully justified in awarding the'sum they did. The motion, therefore, failed on all grounds and would be dismissed with 12 guineas costs.