THIRD PARTY RISK

Evening Post, Volume CIX, Issue 119, 22 May 1930, Page 11

THIRD PARTY RISK

COMPANY'S LIABJ LITY

Au accident which occurred'near Car-, tcrton on the night of 3rd September last was recalled by an action for damages which eamo before his Honour. Mr. Justice Ostler in'tho Supreme Court today. The plaintiff was Alexander Francis M'Calluin, bushfeller, and the defendants were the Phoenix Assurance Company, Ltd., and Walter Alfred Euiidall Pinfold, carrier, of Carterton. . Mr. P. J. O'Eegau appeared for the plaintiff, Mr. P. B. Cooke, with him Mr. G. K. Arms, for the company, and Mr, D. L. Tavem.er for Pinfold.

The plaintiff claimed' that at tho time of the accident, which was tho result of Pinfold's unlighted truck running into the railing on the bridge over the Taratahi Stream, he was a passenger for hire. He received a cqmpound fracture of tho left hip through the railing pinning him to the back of the truck. Negligence was alleged against Pinfold, in that tho vehicle .was unlightod, and ho had failed to keep a proper look-out. It was claimed that section 12 of tho Motor Vehicles Insurance (Third-Party Bisks) Act, 1928, empowered an insurance company, party to a contract'ofindemnity, to- settlo any claim against the owner -if the vehicle, but tho defendant company had declined to settlo the plaintiff's claim for damages. A claim was made for £30S special and £750 general damages. :

The company -contended that even if it were proved that the defendant was liable to. tho .plaintiff-in .-respect of the accident, the plaintiff was not a passenger for hire within +lie meaning of the Act, nor was tho vehicle plying for hire. Accordingly, the company was not liable to indemnify the defendant. ..

Pinfold's defence was'that even. if.he had been negligent (which was denied), the plaintiff knew that the vehicle was unlighted and agreed to .take- the'risk of travelling in it., Therefore, it was claimed, ho was debarred, from saying that there had been negligence. , ' At the outset, his< Honour observed that it did not appear to him that the •plaintiff; had any possible' cause- of action against the insurance company. .The hearing of evidenco is proceeding- '■,■;■ : ,'. ; " .... ".. :