SUPREME COURT New Trial Ordered In £9500 Claim

Press, Volume CV, Issue 31057, 12 May 1966, Page 23

SUPREME COURT New Trial Ordered In £9500 Claim

“By and large I am satisfied that the jury did not perform its duty, and a factor in that is that it ignored the advice given by counsel and myself,” Mr Justice Wilson said in the Supreme Court yesterday when dealing with an application for a new trial in a £9500 damages claim after a fatal motor accident in Marlborough on March 25, 1963. There would be a new trial limited to issues other than the size of the damages, his Honour said. Costs of the first trial would be reserved, and the defendant, the AttorneyGeneral, was entitled to the costs of the application for a new trial.

Mr F. G. Paterson, of Blenheim, appeared for the Attorney-General, being sued in respect of the New Zealand Electricity Department. Mr A. A. P. Willy appeared for Shirley Janey Maude Gordon, of Blenheim, whose husband, Owen Godfrey Clive Gordon, died in the accident. His Honour said the accident occurred on a narrow country road between a vehicle driven by Gordon and another driven by a man named Scott, for whose negligence, if any, the New Zealand Electricity Department was responsible. At the original trial the plaintiff alleged that Scott was negligent in a variety of ways which caused or contributed to Gordon’s death. The defence counter-alleged that Gordon’s negligence contributed to his death. Answers to Issues

On the issues submitted the jury returned a verdict for the net amount of the damages after allowing for Gordon’s contribution through negligence, which was fixed at 30 per cent. His Honour said that Mr Paterson had submitted that the answers of the jury to the issues were against the weight of evidence, or, if some could be supported by the evidence and others could not, the result affected the jury’s assessment of responsibility of 30 per cent, and there should be a new trial.

Mr Willy had said the evidence supported the answers, and there should be no new trial. His Honour said he had grave doubts whether on the first issue, which asked whether Scott had been negligent in failing to keep as far as practicable to the left, the jury could have answered, as it did, in the affirmative. It seemed to him the preponderance of evidence was in favour of the defendant. The answer in the affirmative was supportable, but barely so; and on the same [topic there was evidence relating to the path of Gordon’s vehicle. The jury had answered in the affirmative a question whether Gordon had been negligent in failing to keep as far as practicable to the i left. In answering in that way, it had rejected evidence which could have placed Gordon well on his correct side of the road. The combined result was that the jury took the view that while Scott was not hugging the left as prudence required. Gordon himself had to a substantial extent been near the middle of the roadway.

There was ample evidence, his Honour said, to support the jury’s finding that Scott had been negligent in travelling at an excessive speed. “Not Justified”

On the issue whether Scott had been negligent in failing to keep a proper look-out, to which the jury had answered “Yes,” his Honour said he had in his summing-up told the jury there was no evidence to support an answer in the affirmative.

“The answer is not justified, and is against the weight of evidence,” he said. On the issue whether Scott had been negligent in failing to apply his brakes and stop, his Honour said it was quite true that Scott had not applied his brakes and stopped. However, the question was whether in the circumstances lit was possible for him to

have done so. If it was not then he had not been negligent

Counsel in addressing the jury had warned of the dangers in answering the issues relating to excessive speed and the braking, and he had in his summing-up explained that for all practical purposes the issues were alternatives. “Notwithstanding the warning from counsel and myself, the jury proceeded to answer both in the affirmative, and it gives some indication of the jury’s approach in answering the issues that it disregarded a warning given by counsel and myself,” he said. It was apparent that where two of the four answers on issues relating to Scott’s alleged negligence could not be supported, the Court had to entertain grave doubts about the jury’s apportionment of responsibility, and in this case the apportionment seemed quite unrealistic, he said.

Burglar Gaoled

For the burglary of shop premises at Antigua street, Sydenham, on March 9, and assault on the shopkeeper’s wife when making a getaway, Robin Michael Francis Sheedy, aged 22, a carpenter, was imprisoned for 18 months when sentenced by Mr Justice Macarthur in the Supreme Court yesterday morning.