ACCIDENT CLAIM

Press, Volume XCI, Issue 27643, 27 April 1955, Page 15

ACCIDENT CLAIM

MAGISTRATE’S DECISION UPSET

A decision of Mr Raymond Ferner, S.M., on two claims arising out of a motor accident, was upset in the Supreme Court yesterday by Mr Justice McGregor. Douglas Dunlop (Mr P. H. T. Alpers) appealed against the Magistrate’s decision in giving judgment to the defendant, Frank Barry Knipe (Mr H. W. Him ter), on Dunlop’s claim, and on a counter-claim by Knipe. Bruce Dunlop, infant son of Douglas Dunlop, also appealed against the Magistrate’s decision rejecting his claim against Knipe. His Honour found that Knipe was 60 per cent, responsible for the accident and Dunlop, senior, 40 per cent, responsible. He remitted the two claims and the counter-claim to the lower Court for the Magistrate to assess the damages. The case arose out of an accident between two cars about 9.30 a.m. on February 3, 1952. at the eastern end of the New Brighton bridge. According to the evidence in the lower Court Dunlop was travelling along New Brighton road south towards the bridge ana turning right on to the bridge when he collided with Knipe’s vehicle, which was going east over the bridge. Mr Alpers said Dunlop, the father, sued Knipe for £ll5 for damages to his car in the accident. Knipe filed a defence and counter-claimed £47 for personal injuries. In the second claim Bruce Dunlop, the infant son, claimed £475 general damages for personal injuries and £55 as special damages. Judgment was given for Knipe In both claims and Knipe was awarded £32 on his counter-claim.

The Magistrate gave a very short oral judgment in which he gave two grounds for his judgment, said Mr Alpers. These were: that the righthand rule applied in this case and the rule was not to be whittled away; and that Dunlop should have seen Knipe’s approach earlier than he did. Nothing was said by the Magistrate in his judgment about the credibility of the witnesses and nothing was said about Knipe’s speed, said Mr Alpers. “Apart from speed, the matter is largely one of inference from fact, rather than perception of fact. It is submitted that if the Magistrate treated Knipe’s excessive speed as irrelevant, then his judgment was wrong in law; if he takes it that there was no excessive speed he was wrong in fact.”

Mr Hunter submitted that although the Magistrate did not mention in his judgment the evidence relating to Knipe’s speed he must have been cognisant of the importance of speed in such cases. “The defence is that for the appeal to succeed your Honour will have to find that there was speed, and also that speed contributed to the accident.”

This was a dangerous intersection and it was not disputed that each of the parties was aware of this, said his Honour. The appellant’s duty was to take extreme precautions so as to be ready to stop instantly and to give way to any traffic on the bridge. “It seems he had an opportunity to see the respondent’s car slightly before he did. . . . He should have been able to stop instantly. He seems not to have been proceeding with the extreme care necessary at this intersection.”

Knipe, in his view, was travelling at a speed in excess of what was reasonable when approaching the bridge, with four more or less obscured streets converging on it. After referring to the evidence as to the speed of Knipe’s vehicle, his Honour said the inference was that his speed was excessive in the circumstances. “It to me that that speed was an effective cause of the accident in that he had less time to gauge the situation. He endeavoured to pass behind and it seems from that that the appellant was on the intersection a fraction of a moment before the respondent. The respondent’s speed was a contributory factor “to a fairly substantial degree,” his Honour concluded.

He allowed the appeals by Dunlop, sen., against the Magistrate’s decision on both the claim and counter-claim, and also the appeal by Dunlop, jun. His Honour assessed the responsibility for the accident in the ratio of 40 per cent to the appellant and 60 per cent, to the respondent. He allowed costs at 20 guineas to the appellant, plus