MOTOR ACCIDENT

Evening Post, Volume CXX, Issue 142, 12 December 1935, Page 12

MOTOR ACCIDENT

LENGTHY LITIGATION

PRIVY COUNCIL DECISION

NOTABLE CASE

A cable message received by the New Zealand Press Association states that the Privy Council has dismissed the appeal in the case of Mrs. Trickett against the Queensland Insurance Co., Ltd. The case is a New Zealand one, and it arose out^of what is probably the lengthiest litigation connected with a motor accident in New Zealand. Incidentally the litigation exposed an anomaly in the Motor Vehicles Insurance (Third Party Risks) Act, 1928, which so far has not been remedied.

The accident occurred about midnight on November 17, 1930, on the Hutt Road between a motor-car owned by Dr. Findlater and driven by her sister, and one owned and driven by Mr. A. J. Wiggs, a retired civil servant, who died from his injuries the following day. A few minutes after the first collision, a third motor-car, driven by Mrs. Eva Dwan ran into Dr. Findlater's car, which was then standing in a stationary and wrecked condition and inflicted injuries upon the occupants. . ; The first series of litigation consisted of actions taken by the passengers of Dr. Findlater's car against the drivers of the Wiggs car and the Dwan car and by the passengers in the Wiggs car against the owner of the1 Findlater car. These actions were heard in March, 1931, in the Supreme Court at Wellington and occupied five days. The Chief Justice expressed himself as satisfied that Wiggs was driving on tl^e wrong side of the road and without lights, and that this was the cause of the accident. He held that the passengers in the Wiggs car could not recover, and that the passengers in the Findlater car could not recover against the executor of Wiggs, as he had died and any action was of a personal nature ceasing with his death. He considered that in this respect there was an anomaly in the Motor Vehicles Insurance (Third-party Risks) Act, 1928, and that this was really in the nature of a draughtsman's omission which only the Legislature could cure. The same position was one of the recommendations contained in the Law Revision Committee's report in England in March, 1934, and was promptlygiven legislative effect in the Law Reform (Miscellaneous Provisions) Act, 1934. So far, it has not been amended in New Zealand, and consequently where the owner of a motor-car is guilty of negligent driving and dies before judgment is obtained against him third parties are not able to recover. ■ ' ■

The second series of litigation arose out of the action taken by the passengers in the Findlater car against Mrs. Dwan. She was not called to give evidence, and it was contended that other than the accident itself no negligence had been established against her and the case could not succeed. The Chief Justice held that the fact of the accident in the circumstances of the case was sufficient to permit the Court to' infer negligence and that no reasonable explanation having been offered by way of answer the doctrine of res ipsa loquitur (the thing speaks for itself) applied and the passengers were entitled to recover. An appeal was made against this decision to the Court of Appeal in October, 1931, but the appeal was dismissed substantially on the ground that Mrs. Dwan should have seen the unlighted Findlater car and that the wrecked car and the'glass on the road should have been a warning to proceed with caution in the circumstances. MRS. TRICKEXT'S CLAIM. The third series of litigation arose when Mrs. Trickett, the daughter of the late Mr. Wiggs, took action against the Queensland Insurance Company, Limited, under a personal accident policy whereby £1000 was to be paid to his legal personal representative? if he was killed as the result of an accident sustained in direct connection with- the driving of his motor-car. The policy contained certain exceptions to liability, one of which was that the car was at the time of. the accident being driven in a damaged or unsafe condition. This case also came before the Chief Justice (Sir Michael Myers) in February, 1932, and he held upon the evidence that the car was in fact being driven in a damaged and unsafe condition and that the deceased "must have driven his car at least one arid a half miles while it was in that condition. Even if knowledge were material under the policy (and the Chief Justice thought that it was not) it seemed to him that the deceased ought to have known of the defective condition of the lights an appreciable time before the collision. An appeal against judgment in favour of the Queensland Insurance Co., Ltd., was taken to the Court of Appeal'in October, 1932, and the appeal was dismissed by a majority judgment, Mr. Justice Herdman dissenting.

Mrs. Trickett then appealed to the Privy Council, where the case was heard on October 28 before a board consisting of their Lordships Alness (in the chair) and Roche and Sir Ernest Rowlatt. Less members than usual sat to hear the appeal in consequence of the House o£ Lords trial of the Lord de Clifford in which most of the Lords of Appeal in Ordinary were engaged. As the cable states, the appeal was decided in. favour of the Queensland Insurance Company, Ltd., the successful party • both in the Supreme Court and in the Court of Appeal.

During the litigation in New Zealand Mr. H. H. Cornish, K.C. (now Solicitor-General) appeared for Mrs. Trickett, and Mr. W. E. Leicester for the Queensland Insurance Co., Ltd.