Recent Judgments DRIVER’S DUTY AFTER ACCIDENT

Press, Volume XCVIII, Issue 28906, 28 May 1959, Page 9

Recent Judgments DRIVER’S DUTY AFTER ACCIDENT

“Render All Practicable Assistance” ,

SWIFT v. PINE

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Before Mr Justice Adams, at Christchurch. This case explains- the statutory duty of the driver of a motor vehicle after an accident in which he has someone. It defines the meaning of the phrase, “Render all practicable assistance to the injured person” in 5.47 (1) of the Transport Act, 1949.

This was an appeal against the conviction of the appellant on a charge of failing to render all practicable assistance to an injured person as required by s. 47 (1) of the Transport Act. 1949. Section 47 (1) is as follows: 47 (1) Where n accident arising directly or indirectly from the use of a motor-vehicle occurs tot any person or to any horse or vehicle in charge of any person, the driver of the motor-vehicle shall stop, and snail also ascertain whether he has injured any person, in which event it shall be his duty

to render all practicable assistance to the injured person.

The question at issue was whether there was any duty to render assistance to a cyclist whom the appellant, when driving his motor-car, had ran down from behind, in view of the shortness of the interval that must have elapsed between the accident and the inevitable death of the injured cyclist. A pathologist who conducted the post-mortem examination was of the opinion that death was not instantaneous at the time of the accident. Mr Justice Adams, who heard the appeal, inferred from the pathologist’s evidence that the deceased cyclist must have been unconscious from the moment of impact, and had no possibility of regaining consciousness. Motorist's Duty It was held in 1938 that, if the injured person is in fact dead, np ‘‘practicable assistance’* can be rendered, though the duty to stop and ascertain whether any person has been injured would still lie upon the driver. In other words, the driver who has stopped and ascertained whether a person has been injured is under no statutory duty to render any assistance if in fact, the injured person is already dead. Mr Justice Adams said that mere belief that an injured person is already dead will not suffice. But it is a defence to a charge of this kind if it be shown that no practicable assistance could have been rendered because the injured person was, in fact, already dead when the duty to render assistance would otherwise have arisen.

In the present case, the appellant sought to extend that defence to the case where death is shown to have been so closely imminent that no assistance could have prevented almost immediate death, and the victim’s condition was such, owing to unconsciousness, that nothing anyone might do for him could alleviate his situation in any way When Duty Arises

His Honour rejected that submission. He said that the statutory duty is not limited to cases in which the rendering of assistance may possibly prevent or delay death. Even though death may be inevitable sooner or later and may be likely to occur very soon, there may yet be much that can. (and should) be done. The duty extends to matters of comfort, alleviation f pain, and the like. Assistance may be “practicable,” though its ultimate utility may be uncertain. In this case, the duty to render

assistance arose, if at all,, at the point of time when the appellant, having stopped his car within a short distance from the spot where the cyclist was lying, had walked back towards that spot. There was no proof that the cyclist was then deaid. So far as appeared, neither the appellant nor his mother, who was with him, made the slightest effort to ascertain whether the cyclist was dead or alive. For all they knew, bis Honour said, their inaction might have brought about the death of the youth or the girl—the mother claimed that she did not even know which it was—whom they left lying in the grass at the side of the road. He added that it was nothing to their credit that* their callous behaviour was not, in fact, the cause of the death. Duty Defined The learned Judge was of the opinion that the expression “all practicable assistance’’ is wide enough to include (and must be construed as . including) assistance to persons who are so injured that it may be difficult or impossible to say, either at the relevant time or subsequently, whether or not death had already occured. He continue! ‘To put the matter in a somewhat different way, I think the duty, being one to be performed at the time and on the spot is an objective one, and requires the motorist to give all such assistance within his power as appears to be necessary or desirable on the objective facts of the case as they present themselves to him then and there.

"There is no duty if death has already occurred; but, apart from that one qualification, the duty arises, and it cannot be evaded by showing ex post facto that death was inevitable and consciousness already irretrievably lost. .

‘‘Apart from cases in which death is shown to have already occurred, the duty does not depend upon the conclusions a pathologist may draw on a subsequent post-mortem examination but on the circumstances existing at the relevant time and place; and. if th >se circumstances call for any assistance that may possibly prevent death or alleviate pain and suffering, then the motorist must render such assistance.

“It is not for the motorist, at any rate if he is a layman, to form his own uninstructed conclusion as to the prospects of life and death—a thing, indeed which this appellant did not even attempt. But, had he done so it would still have been his duty to endeavour to procure competent help, and the summoning of such help is, in my opinion, within the meaning of the words •practicable assistance.’ *•

The learned Judge, applying those tests to the present case, said it was obvious that the appellant had had a duty to render assistance, and he had failed to discharge that duty. The appeal against conviction was accordingly dismissed. Counsel: For the appellant, Drake; for the respondent Feenstra.

Solicitors: For the appellant, B. J. Drake and McGillivray (Christchurch); for the respondent. Crown .Solicitor (Christchurch).