COLLISION CASE

Evening Post, Volume CXXIV, Issue 122, 19 November 1937, Page 4

COLLISION CASE

JUDGMENT GIVEN

STATUTES AMENDMENT ACT

Judgment in a collision" case heard in the Magistrate's Court on November 2 and 3 was delivered today by Mr. J. H;. Luxford, S.M.

;Mr. A. R. Cooper appeared for the plaintiff, the Wellington-City Council; Mr. A. B. Sievwright for Burke Bros., Ltd., the defendant company; and Mr. P. H. Putnam for J. P. Warren, driver of a motor truck involved in the collision. Warren was cited with the company as defendant.

On May 31.a collision tookplace between a motor-truck driven -by Warren, and one of the Corporation's tramcars. Proceedings Were ;■ commenced against both defendants to recover the consequent damages .suffered by the Corporation; the basis of the claim was that the accident was caused through the inability of Warren to stop the truck owing to its defective, brakes; and that the two defendants were jointly and severally liable on the ground that Warren drove the truck with knowledge of ,the, defect, ; and.the, de-. fendant company, the owner of;the truck,, with similar knowledge, permit-; ted it to be driven by him,;under.:, a contract of hire. '.',.! "At the conclusion of the evidence I intimated that the Corporation was!, entitled to judgment against Warren alone," said the Magistrate. "It was not necessary for me to consider the interesting question of the defendant company's liability as bailor because I found as a fact that Warren came into possession of the truck 'by the.un-> authorised act of one of the company's mechanics, and consequently there ; was no contract of bailment. I deferred entering judgment, however, to consider in what i form'the order for'the payment of costs should be." This involved the consideration of a section of the Statutes Amendment Act,' 1936, which provided for orders of three different types. '

"In my opinion the circumstances j surrounding this case justify the making of an exonerating order," said the Magistrate, "but some doubt exists-as:, to the principles to-be applied to'.de-l termine whether a 'Bullock' or aj 'direct' order should be made. .The] view that I take is that a successful defendant .is prima facie entitled to his costs from the plaintiff, and his wishes as to the' form of order to be made, should be given effect to unless there1 are special .circumstances. . He, .quite;) naturally, "desires, an order against the;! person who is the'more likely readily, to pay. If the plaintiff and the unsuc-' cessful'defendant are solvent, the form, the order takes is not of much import-; ance, aliteifif either of them is insole vent. In this case the successful defendant requests a 'Bullock' order, and as there are no special circumstances, such as misconduct or statements which caused the plaintiff to sue both dt^endants, I propose to make such an order. Jn the absence of agreement between-the parties, or any special circumstances, I do not think a 'direct' order should be made in any case. "Judgment will therefore be entered for the plaintiff against the defendant Warren, and for the defendant company against the plaintiff.' The plaintiff will pay. the defendant company's costs according to scale; the defendant Warren will pay, the plaintiff's costs according to scale, increased by the amount the plaintiff is required to pay :to the defendant company."