DEFENCE OR NOT?

Dominion, Volume 24, Issue 20, 18 October 1930, Page 10

DEFENCE OR NOT?

Contributory Negligence

MOTORISTS’ DEATHS Accident in Gorge Argument on whether contributory negligence could be set up as a defence occupied most attention in the Court of Appeal yesterday when the hearing of Alfred Edward Storey's appeal was continued. The appeal was from the directions given to the jury by the Chief Justice. Sir Michael Myers, at the trial when Storey answered two counts, one of manslaughter, the other of causing death by negligent driving, was continued. Mr. Cornish, appearing for Storey, concluded his address early in the afternoon, and the Solicitor-General. Mr. Fair, opened his case. The Court will resume the hearing on Monday.

The case arose out of a collision fol-, lowing which a car containing Mr. and Mrs. N. W. Cook went over a bank and they were killed.

Continuing his address, Mr. Cornish contended that the doctrine that contributory negligence could not be raised as a defence was obsolete. In a number of cases he quoted he claimed that had uot issues been put to the jury, and nng fenced’’ it as it were, different results would have ensued. Mr. Justice Adams: Surely, if a man can be said to have caused the death of another he has been properly convicted. If it cannot be shown, he is not properly convicted. , ... Mr. Cornish said he could .see no (inference in the meaning of manslaughter killing by unlawful omission of duty —and causing death by negligence. He believed that in the present ease Storey would have been acquitted had it not been for the issues put. The Chief Justice: I don t think he would have been.

A jury would convict if it believed an accused person was responsible for the death of another man, Mr. Cornish said, and proceeded to quote further'previous decisions. One of these concerned two motor-cyclists riding at night "''thout lights, colliding, and one being killed. It could not be held, he contended, that the one killed the other. There was a measure of responsibility on each. The Question of Issues. Dealing with the issues presented by the Chief Justice, Mr. Cornish said that the second issue put gave the jury no opportunity of expressing its view as to what had been the real cause of death. The Chief Justice: So far, you say the Issues were insufficient because, you say, there is no difference between civil and criminal liability in this case. If you are right on that point it follows. I think, that the issues were insufficient. On the other hand, if you are wrong, it stiff does not follow that the issues were sufficient •—but that is another branch altogether. Later Mr. Cornish submitted it was not competent fdr a judge in criminal proceedings to put issues. Both Mr. Justice Adams and Mr. Justice Herdman, however, said they thought there was statutory authority for a judge to put issues, and the Solicitor-General quoted a section whereby such authority was given.

The Chief Justice: It’s not the first time it has been done, you know. Mr. Cornish: I submit the practice is bad. _ ... Mr. Justice Herdman: Do yon withdraw your observation that it is not competent for a judge to put issues? , Mr. Cornish: Momentarily. I admit I overlooked the section iu question. The Chief Justice: The object in putting issues is to obtain answers to questions that should be put. Mr. Cornish submitted that they should only be put in a case that was going on ‘to the Court of Appeal, when it was desirable that certain questions should be answered. , ' Mr. Justice Herdman: Mr. Justice Denniston and Sir Robert Stout put issues. I have done it myself. Mr. Cornish: There are authorities that the practice is a bad one. Mr. Justice Herdman: I should think that in any case a judge ean put issues if he sees fit. Mr. Cornish : I submit not.

The Chief Justice said the issues had been put just as much in Storey’s interests ns in the Crown’s. Mr. Cornish: I submit the issues distracted the jury’s attention from the real question in tho case. Negligence was in the foreground and submerged the real question of whether Storey killed' Cook or caused the death of Cook. Mr. Justice Herdman : Don’t you think it's a waste of time? Wo have the section in the Act. and it was used in tliis ease. Mr. Cornish said he desired to give further references so that the question might be decided judicially. After counsel had dealt at length with the relevant provisions of the Motor Vehicles Act he proceeded to submit that the verdict returned by the jury amounted to one of not guilty, in that the words used, “error of judgment,” excluded the existence of negligence. Case for Crown Opens. The case for the Crown opened early in the afternoon, when Mr. Fair drew attention to the fact {hat the. events concerned in the collision had all occurred in a very short space of time. From tho time .Storey first saw Cook's car to the time it went over the bank about 3| seconds elapsed. There was no time for any intervening factory, Mr. Fair contended, and no time for any contributory negligence. The circumstances and incidents of the collision could not be split up and treated as isolated incidents. Contributory negligence. therefore, could not be set up as a defence. Mr,’Justice Herdman: But was there a question of contributory negligence to go to the jury? Mr. Fair said that if the jury had found the deceased was guilty of contributory negligence, it should have been directed that such n defence was not available on the charge. As long as accused's negligence had contributed to the death that was all that was necessary to invalidate the defence of contributory negligence. Mr. Fair proceeded at length to quote from legal authorities on this aspect of the case. and. answering a point raised on Thursday by Mr. Cornish, went on to contend that it must be held that the collision was the only real explanation of Cook’s car going over the bank —not the possibility of Cook having driven to an open space with the object of pulling up to inspect whatever damage had been done. . Dealing with the question of extended evidence. Mr. Fair said he thought the Chief Justice had not excluded enough. Mr. Justice Herdman : It seems to me that one of the most important questions in this case is to what extent any negligence on tho part of the deceased can he considered as a defence by the court. Counsel further addressed the court on tho question of negligence, nnd an adjournment was taken until Monday morning.