DAMAGES CLAIMED

Southland Times, Issue 21096, 30 May 1930, Page 4

DAMAGES CLAIMED

RESULT OF ACCIDENT.

JUDGMENT FOR PLAINTIFF. The question whether certain symptons of nasal and ear trouble arose as the result of an accident, or, on the other hand, either were in existence prior thereto or evidenced themselves thereafter (arid irrespectively of such accident) formed the basis of a claim for damages in the Magistrate’s Court yesterday, when before Mr. E‘. C. Levvey, S.M., Sarah Kirwan, of Invercargill, spinister (Mr. W. A. Stout), sought to recover from Samuel Finkle, of Invercargill, French polisher (Mr. H. J. Macalister) the sum of £176 8/9. The statement of claim set out that on April 6, 1929, the plaintiff while walking in Don Street, was knocked down by a motor car driven allegedly negligently and unskilfully by the defendant. As a result of the collision the plaintiff suffered injuries and incurred medical and nursing expenses, while the bicycle which at the time of her being knocked down she was wheeling, was damaged as were also her clothes. The plaintiff claimed the sum of £176 8/9 made up as \under: —New coat destroyed £5; hat destroyed 17/6; shoes £1 2/6; stockings 4/-; gloves 4/-; repairs to teeth £3 3/-; repairs to bicycle £1; Medical expenses Dr. Brown, £7 7/6; Medical expenses Dr. Macdonald £2l; Cairnsmore Hospital account £4 1/-; chemist’s account 2/9; oitment £1 5/-; total £45 7/3; general damages, £200; less pavment on account, £6B 18/6; total £176 8/9. Mr. Stout said that the case was really one for the assessment of damages as the result of an accident. Plaintiff and her sister had been walking along Don street when they had been knocked down by the defendant. Both sisters sustained severe injuries and the plaintiff was attended to byDr. Stanley Brown. 'Die defendant had settled the plaintiff’s claim for £6B 18/6, but it was subsequently found that the plaintiff had to undergo an operation upon her nose. Accordingly she now claimed the additional expenses (to which she had been subjected) together with increased damages. After the plaintiff, Sarah Kirwan, had detailed the injuries she alleged resulted from the accident, medical testimony in support of her claim was tendered by Stanley Brown, of Intercargill, medical practioner, and John George Macdonald, of Invercargill, eye, ear, nose and throat specialist.

Mr. Macalister, in opening the defence, said he intended to 'pursue his case on the merits but, if his worship ultimately found that the injuries in respect of -which the plaintiff claimed damages were the result of the accident, then counsel would contend there had been accord and satisfaction. The evidence for the plaintiff was very meagre, and Dr. Brown had not found his patient suffering from nasal trouble. Accordingly it appeared that such malady was but an after thought. John Alexander Pottinger and 'Alexander D. McCaw, both of Invercargill, medical practitioners, gave evidence for the defence.

Mr. Macalister submitted that there, had been accord and satisfaction, the plaintiff having accepted the payment of £6B 18/6 in satisfaction of her claim. There had been an agreement as to settlement and a cheque had been forwarded to the plaintiff who accepted it. Mr. Stout argued that no standing offer but a claim had been made by. the plaintiff. His Worship held he was entitled to lean on the specialist in the matter and the plaintiff’s testimony had not been materially contradicted. The Magistrate awarded the plaintiff £lOO general damages, £45 7/3 expenses incurred, making £145 7/2. From such amount was deducted £6B 18/6 paid on account, leaving £76 8/9, for which judgment was entered. Costs (£2 6/-), witnesses’ expenses (£2 2/-) and solicitor’s fee (£4 16/-), were ordered to be paid by the defendant.