DECISION UPHELD

Evening Post, Volume CXXII, Issue 27, 31 July 1936, Page 11

DECISION UPHELD

UNUSUAL RULING

DAMAGES ASSESSMENT

The ordering of a new trial by his Honour Mr. Justice Ostler on the grounds that the jury had awarded damages so large that no jury could reasonably have given them, probably the first decision of that kind in New Zealand in a personal damages action, was supported' today in a reserved decision of the Court of Appeal.

Mrs. Edith Matilda Hodgson, of Whakaronga, who was injured in a collision between her bicycle and a motorcar, claimed £2500 general damages and £109 6s special damages from Mrs. Catherine Orr-Craig, of Takapau, and the Hawke's Bay Farmers' Meat Co, Ltd. Liability was admitted, and the jury was asked to assess the amount of damages. The full claim for general damages was allowed.

Mrs. Hodgson appealed against the ordering of a new trial, but her appeal was dismissed today.

At the hearing on appeal Mr. F. W. Ongley and Mr.' A. M. Ongley appeared lor the appellant, and Mr. W. E. Leicester for the respondent. The Court consisted of the Acting Chief Justice (Sir John Reed), Mr. Justice Smith, Mr. Justice Johnston, Mr. Justice Fair, and Mr. Justice Northcroft, who gave a combined judgment. The Court considered that it was onlyreasonable to suppose that the jury took into account the loss of the plaintiff's services on her husband's dairy farm, which represented a considerable head of damages. The proper inference was that the jury was allowed, by the oversight of both counsel at the trial (different counsel appeared at the hearjng on appeal) and . Mr. Justice Ostler, to assess damages in that respect, although the plaintiff had not, and could not, claim them. That portion of damages was only actionable at the suit of the husband, and it appeared that since the new trial was ordered the husband had made a separate claim for the loss of his wife's services on the farm. It was thus clear that if the'present verdict of the jury stood, the respondent was in danger of having to pay twice for the one loss.

When the new trial took place, concluded the judgment, it was desirable to make it clear, by an agreement to which the. husband was a party whether the loss of the wife's services was intended to be included in the action or not.

The appeal was dismissed without costs {o either party, except that the respondents were ordered to pay half the cost of printing the case on aopeal.