ALLEGED NEGLIGENCE

Wairarapa Age, Volume XXXII, Issue 9995, 16 March 1910, Page 5

ALLEGED NEGLIGENCE

THE GOLF LINKS CASE,

LECKIE v. RAWSON

The hearing of the case in which Frank M. Leckie and his wife, lrer.e M. L. Leckie, claim from Dr E. Rawson the sum of £786 for damage for per3onal injuries, was continued yesterday before his Honor the Chief Justice and a special jury of twelve, of which Mr G. H. Scales was foreman.

Before evidence was called, the foreman informed the court that the jury would like an opportunity to see the (inks.

His Honor did not oppose the suggestion, and, it was decided to take the jury out in taxicabs after the hearing had concluded. J. B. MacEwan said he had from

ten to twelve years' experience of golf, and was for two years capta'n of the Wellington Golf Club. It was his opinion that the preliminary swing indulged in by players was in a way part of the game. His Honor: Merely swinging the club without touching the ball is part of the game—That is my opinion.

Witness, further examined, said that a person before swinging a club /would naturally look to the right and left, and having done that, he would proceed with the shot. The onus oi looking alter himself must be < n a person approaching. His Honor: That is not for him,

it is for the jury. To Mr Hadfield: This No. 1 tee

was unique in regard to the accumulation of traffic, both in regard to going and coming from the golfhouse.

His Honor: Let me understand

you. Suppose you saw a man in a garden swinging a club. Would you say he was playing golf? Witness: I would say yes.

His Honor: Then all you want for a golf ground is a piece about 12ft square. Witness: You couldn't play a competition od it, but you could play golf. . ;

Mr Hadfield; If you see a man swinging his club, and be has no ball on the ground you would say he was playing? —I would say it was not a competition game, but a practice game.

Arthur Duncan said he had had about fourteen years' experience of gulfing in New Zealand. He knew these links thoroughly. It was the almost invariable custom for a player on going on to the green to make a preliminary swing. Mr Hadfield: We have got tired of admitting that. Continuing, witness said that when a man indulged in a preliminary swing he should look around, and then address himself to the proposed shot. If the discs were far back on the tee, as in this case, he should say the proper thing would be to wait until the player? had driven off, or ask permission to pass. Albert Jas. Abbott, another member of the Wellington Golf Club, with ten years' experience of the game, said that before taking a swing he should look round once, and if he saw no one he should go on with his swinging. If he saw a man on the tee with his club on the ground he should wait to see what he was going to' do. Wm. Handyside, a member of the Wellington Golf Club for eight years, said that there was so little room behind No. 1 tee that no one could pass behind a player without running a risk. If he saw players on the tee he would not pass behind them. W. E. Pearson, a member of the ,Golf Club, said he had played for three years. His evidence was similar to that of the two previous witnesses.

Mr Herdman: You had an inter - view with Mr Leckie some time after the accident? His Honor: That cannot affect Mrs Leckie's claim.

Witness went on to say that about a week or ten days after the accident he spoke to Mr Leckie, who saic, "Oh, it was her own fault."

To Mr HadfieJd: He believed that Mr Leckie was not near the tee at the time of the accident, but he thought it was quite a fair thing to repeat such a remark. No one was present at the conversation but Mr Leckie and himself. He thought it was some time between 5 and 6 p.m. that the conversation occurred. He knew how much ,Dr Rawson was worrying, and he stowed it away in his mind to tell Dr Rawson that he was not regarded as being to blame. Dr Rawson as his cousin, and one of his best friends. He hai never mentioned the conversation to Mr Leckie, nor to anyone else but Dr Rawson until he told Mr Berdman. Mr Hadfield: Mr Leckie denies the conversation took place, and I put it to you that you are confusing a conversation with someone else Witness: Mo, I do not.

Mr Herdman, in the course of his address to the jury, said the issue was exceedingly simple. The principal point they had to consider was: Was Dr Rawson guilty of negligence? Another point was: Was Mrs Leckie herself guilty of negligence? Dr Rawson naturally regretted the affair, but the time for sentiment had passed, and they had to look at the matter coldly, calmly and dispassionately. Mr Hadfield then addressed the jury. He urged that it was the du

of any person to take precautions agr.irst inflicting injury in any place where people mj,ght:,be expected tc be. If that tee was one where peop'e were likely to congregate, it was a | preliminary necessity for Dr Rawson to take extreme care that the dangerous thing he was using should not do harm. The risk of death was the reason for taking extreme care in . such a position. Mrs Leckie had proved—and it was not disputed, except by Dr Rawson, that she was close alongside the fence. She being there, and being hit, showed that the club had traversed a space over which people walked, a„d that occurrence was in itself irresistible proof of negligence. If he swung his club without taking precaution he was guilty of negligence, and hew could he have looked round without seeing Mrs Young or Mrs Leckie? His Honor said:—"l have framed certain issues which have tb be put before you," in commencing his summing up. These weie as follow :

1. Did Mrs Leckie sustain the injuries mentioned in the statement of claim? 2. Did Mr Leckie properly incur the expenses mentioned in the statement of claim? 3. Was the defendant guilty of negligence? 4. Was Mrs Leckie guilty of negligence? 5. What damages (if any) are the plantiifs entitled to (a) Mr Leckie; (b) Mrs Leckie. Tt was not denied, said his Honor, that Mrs Leckie sustained very grevous injures, and that she was suffering aver, now from those injuries. "In fact," he added, <; we may wonder that her life was saved. Possibly it has been saved by the skill of the doctors who attended her." The mam issue was: "Was the defendant guilty of negligence?" "Negligence." said his Honor, "simply means want of care. Did he omit to do something that, as a reasonable man, he ought to have done? If he omitted to do something that, aa a reasonable man he ought to have done under the circumstances, he is guilty of want of care, and that means he is guilty of negligence. What is the want of care that ia charged against Dr Rawson? It is a very simple thing. Did he, before he swung his golf club, look round to see if there was anybody near? He said he looked round tor some seconds. The question is d d so or not. Therefore, I direct your attention to the evidence which Mr Hadfield relies on to show that he did not look round." The jury must not assume, continued his Honor, that the various witnesses who had gone iuto the box were not «ay ng wnat they believed to be true, but there was such a thing as unconscious bias, and he supposed that in a case where there had be°.n an accident, and they asked the opinion of the people present, one-half would take one view and the other half another view. The next question was, did Mrs Leckie do anything to show that she was guilty of negligence? Was she, in walking as she did behind the teeing ground, guilty of negligence in going there or in not giving warning of her passing? If the jury thought she was gu'lty of neglect of duty, that she ought to have warned the person on the tee that she as going to pass, and that through that want of warning she was hurt, she could not recover, because she was guilty of contributory negligence which lei to the accident. As to that, her explanation was tW Dr Rawson was apparently not playing; it was admitted that he was not facing as a player would face if he was going to drive a ball from No. 1 tee to the first tide. She also said that as he was not playing she assumed that there wns no danger. It was for the jury to say whether, looking at all the circumstances of the case, she should have assumed the players we;e going to begin swinging. If the jury came to the conclusion that she had no riant to assume the players would not begin swinging then again she was guilty of negligent. As to damages, it was said that Mr Leckie was not entitled to recover, becau-e he had admitted that his wife was ti blame. Of course, that did not a „>ct her claim at all. The question wiF.ciidhe say that or not? Mr Pearson 'said he did; Mr Leckie denied it. WdS it reasonable that Mr Leckie would have gone to Mr Pearson, a cousin of Dr Rawson's,. and old him that Dr Rawson was not to blame,

and that his wife was. mc suggestion was that Mr Pearson had attrihted to Mr Leckie the sayii.g of some-

body else. It was for thi j jury to say : whether they believed Mr Pearson or : Mr Leckie. If they believed that Mrs ; Leckie was not guilty of negligence, and that Dr Rawson was, they would have to give her some damages. They would have to look at the nature of the injuries, what she had suffered, and what she might yet suffer. They ought not to give vindictive damages. They had to remember that Dr Kawson did not do this thing wilfully or out of spite. Jt was an accident, and, therefore, the damages they ought to give ought to be not more than reasonable compensation for the loss she had sustained. They must not ring any other question into it at all. Dr Rawson's conduct after the accident ought not to be i considered. All they had to consider was what was a reasonable amount to be allowed her for the irjury she had sustained.

The jury visited the scene of the accident yesterday afternoon.

JUDGMENT FOR .DEFENDANT.

By Telegraph—Press Association. WELLINGTON, March 15. Judgment was given for defendant in the case brought by Mr and Mrs Leckie against Dr E Rawson, for £786 damages, through Mrs Leckie being struck by a golf club.