SUPREME COURT

Press, Volume XC, Issue 27498, 4 November 1954, Page 5

SUPREME COURT

DECISION IN CLAIM FOR DAMAGES PARTIES FOUND EQUALLY NEGLIGENT A jury in the Supreme Court yesterday found that Lindsay Parkin, a farmer and shearer, and , Norman Colin Mowatt, a farmer, were equally negligent and responsible for an accident that happened on the Main South road near Dunsandel on May 2, 1952. Parkin claimed £l5OO general damages and £lB4 special damages from Mowatt for injuries he suffered when the motor-car he was driving ran into a stopped truck owned by Mowatt and driven by an employee.

The jury- found that the driver of the truck was negligent in parking it where he did in the condition it was in and without leaving someone by it to warn traffic. They found that Parkin was equally negligent in failing to keep a proper lookout. The jury found that the general damages to which Parkin would have been entitled if he had not been negligent were £750. and fixed the special damages at £l&4 3s. Mr Justice Adams gave judgment for Parkin for £467 Is 6d and costs, reserving leave to the defendant to move to set aside the judgment. Mr W. F. Brown appeared for Parkin, and Mowatt was represented by Mr C. S. Thomas and Mr H. S. Thomas. The hearing began on Tuesday, when the evidence was completed. When the hearing was continued yesterday, counsel addressed the jury. The Defence The case was based on negligence—a failure of a duty to take the care a reasonable man would take, said Mr C. S. Thomas, addressing the jfcry. The defendant denied that he was negligent in any way. It was admitted that the defendant’s truck had no rear reflectors but it was denied that this was negligence leading to the accident. There was a rear red light on the truck and one witness, Constable Smith, had said he could see it from 200 yards back. The regulations called for it to be seen 100 yards back. If Parkin was keeping su b a poor lookout that .he did not sc 'he tail-light he was negligent. The plaintiff alleged that the tail, light on the defendant’s truck was faulty, but no other witness had walked back to see if the light could be seen, saicj Mr Thomas. It was also alleged that the tail light was in an incorrect position. If it could be seen from 200 yards away it made no difference where it was placed. A further allegation by the plaintiff was that it was negligence in that no-one lyas standing by the truck. With a good tail light on a truck parked at the side of the road there was no call in law or common sense for anyone to stand by the truck.

The main defence was that Parkin failed to keep a proper lookout, said Mr Thomas. It had beep established that it was frosty on the night of the accident, so it could scarcely have been hazy, as two witnesses for the plaintiff had said. If a man drove along a straight, rohd on a clear night with good lights on his car and ran into a truck properly parked on the side of the road and showing a good tail light, surely the driver of the car was negligent in not seeing the truck. Counsel for Plaintiff

The plaintiff said he was dazzled at times between Dunsandel and the scene of the accident by oncopiing lights, but he could not remember the accident so how could he answer counsel for the defence who asked him, if he could not have driven round the truck, said Mr Brown. It was correct that Constable Smith had said he could see the tail light of the truck after he had walked back 200 yards. That was at 9 p.m., but the important thing was whether the tail light could be seen at the time of the accident. Constable Smith was bn foot and looking for the tail light when he saw it. That was a completely different thing from a man driving a car along the road and

not knowing an obstruction was there. The sole matter to be considered was riot whether the lights of the plaintiff’s car should have picked up the truck under all the circumstances. If it were so, why were regulations introduced in December. 1951, saying that trucks should have rear rpilectors as well as a tail-light? Counsel said it was for the purpose of avoiding accidents just like the one before the Court. The truck should not have been on the road at all.’ It had no warrant of fitness and could not get one. The truck was a trap stopped where it was in such circumstances. “Should you leave a truck on the highway on a dark and hazy night, with a faulty tpil light and no rear reflectors? Our case is that you should not.” said Mr Brown. His Honour summed up and the Jury retired at 1.5 p.m.. returning at 4.35 p.m. with their decision.