"HIT AND RUN"

Evening Post, Volume CXXV, Issue 87, 13 April 1938, Page 15

"HIT AND RUN"

GIRL'S JUMP FROM CAR

INTERPRETATION OF LAW

WIDTH OF SCOPE

The highly penal "hit and run" section of the Motor Vehicles Amendment Act, 1936, and the wide range of offences the Legislature intended to cover, were discussed at length in a reserved judgment delivered today by the Court of Appeal. The action was a case stated from Auckland, where a motorist from whose car a girl jumped voluntarily and injured herself was charged under the section. The language of the section showed, considered the Court in its judgment, that there was in the mind of the Legislature a wider area or intention than merely to penalise a person proved to have been a "hit and run" motorist. It seemed, on a fair construction of the section, that the underlying idea was to ensure as far as possible the protection and safety of an injured person so that he might not be left in his injured condition to run the risk of further injury by being left on the road, or perhaps to die from lack of attention. The action was a case stated in Auckland by Mr. Justice Callan. Kenneth Frank Bowden, manager of the Kawakawa Bakeries, was charged in Auckland on three counts: failing to stop after an accident Jiad arisen directly or indirectly from the use of the motor-car, failing to ascertain whether'he had injured the girl, and failing to render all practicable assistance to her. The 'jury disagreed, and a new trial was set down for the next sessions of the Supreme Court.

The alleged offences occurred on August 25 last, and an Auckland jury failed to agree. In the Court of Appeal, Mr. ■R. K. Trimmer, for the accused, said Bowden, who was intoxicated, was driving the car along the main street of Kawakawa. Dulcie May Squire, aged 18, a theatre usher, was walking along the footpath and I the accused offered to take her home. He drove past the street in which she [.lived, and the girl said Bowden remarked, "I am going places." She said, "Not with me," opened the back door and jumped from the car, which was travelling at about fifteen miles an hour. She broke |her arm and received other injuries. The Court consisted of the Chief Justice (Sir Michael Myers), Mr. Justice Blair, Mr. .Justice Kennedy, Mr. Justice Callan, and Mr. Justice Northcroft. The Solicitor-General (Mr. H, H. Cornish, K.C.) appeared for the Crown. , The three charge* contained m the indictment were founded upon section 5 (1) of the Motor Vehicles Amendment Act, 1936, which reads:— "Where an accident arising directly or indirectly from the use of a motor vehicle occurs, to any person, or to any horse or vehicle in charge of any person, the driver of the motor vehicle shall stop, and shall also ascertain whether he has injured any person, in which event it shall be his duty to render all practicable assistance to the person injured." It was contended by Mr. Trimmer, said the judgment, firstly that the circumstances of the case did not disclose an "accident" within the meaning of the section; secondly, if they did, that such accident did not arise directly or indirectly, "from the use of a motor vehicle."- Further, that the section applied only to the "hit and run" motorist, and that the circumstances of the case, even if they did come within the words of the section, did not come, within its spirit. The contention was that the section was intended to coyer only the case of accidents happening outside a vehicle. . . .

INTENTION OF LEGISLATURE,

"It may be that the section was primarily intended to apply to the 'hit and run' motorist, but an enactment which may have been designed to remedy one mischief in particular may be expressed in language sufficiently clear to cover other mischief as well, and, if it does, then it must be construed accordingly," continued the judgment. "The language of the section, however, shows, we think, that there was in the mind of the Legislature a wider idea or intention than merely to penalise a person proved to have been a 'hit and run' motorist. The underlying idea, it seems to us, on a fair construction of the section, was to ensure as far as possible the protection and safety of an injured person so that he might not be left in his injured condition, to run the risk of further injury by reason of his being left on the road, or perhaps to die for lack of attention.

"If that is so, the actual penalising of the 'hit and run' motorist is only one phase of the mischief which the Legislature sought to remedy, and the construction of the section therefore should not be limited in the manner contended for by Mr. Trimmer. We can see no reason for saying, for example, that a passenger in a motor vehicle—whether a public or a private vehicle —who by 'accident' falls therefrom upon the road is not just, as much within the purview of the protection of the section as a pedestrian who, while on the road, is run into by such vehicle.

"Another matter of importance in connection with the construction of a provision such as section 5 is that it is addressed to motorists generally, and that nowadays the large majority of adult males in all classes of society and a very large number of females are motorists. Consequently, the section must be construed as far as possible by giving each word its popular meaning and not attributing to it any technical legal sense. . . ."

According t0 the evidence of the girl herself, the acceptance or rejection of which was for the jury, she jumped from the car by reason of perilous necessity in view of the accused's conduct. The jury might also assume that when she jumped her intention was that she shr^ild, and her expectation that she would, alight on her feet on the road without injury. The fact that she did not do so but fell on the road and sustained injury might be regarded as in itself an accident. It was said by Mr. Trimmer, however, that Section 5 distinguished between the accident and the injury. That was so, but Section 5 was a command not to the person injured, but to the motorist: and the Court thought that the word "accident" as used in the section included an event untoward so far as the motorist was concerned which might possibly cause injury to the person to whom it happened. . . .

NO QUESTION OF NEGLIGENCE

"The command to the motorist in section 5 of the 1936 Act in no way depends upon any question of negligence. If an accident happens directly or indirectly from the use of a motor vehicle, section 5 (1) easts a duty upon the driver of that vehicle, even though it, may be perfectly plain that the driver is in no way to blame for the accident. If a passenger in a motor vehicle —at all events if that vehicle is in motion —fails out o£ the vehicle through the sudden opening of a door it seems clear that such accident has happened 'from the use of the vehicle.' And, if that is so, we can sec no good reason for saying that the section does uot cover the case o£ a passenger jump-

ing out of the car in circumstances at dll events (such as exist in this case if the girl's evidence is accepted), which bring the case within the category of 'accident.' ,

"It is, of course, necessary before a person can be convicted of an offence under section 5 that the jury should he satisfied on the evidence that the circumstances are such as that the accused knew that there had been an accident. In our opinion the evidence tendered by the Crown (if accepted by the jury) discloses the commission of offences under section 5 (1). The sufficiency of the evidence either alone or in conjunction with any evidence that might be called for the accused is, of course, a matter'for the jury.

"As to the duty to stop when an accident has occurred we do not think that one can say more than that the motorist's duty is to stop as promptly after an accident as is reasonably possible, having regard to the state of the road, the traffic upon it at the moment, and any other relevant circumstances. This also is a matter for the jury. . . .

"According to Miss Squire's evidence the accused, when he came back to the spot where she was lying, saw that she was injured, and went away without rendering her any assistance. It may be suggested, assuming the correctness of Miss Squire's evidence, that the accused believed her to be dead. That does not matter. In fact the girl was alive, and it was practicable to render assistance to her. The position would be different (so far as the last requirement of the sub-section is concerned; if the injured person was in fact dead, in which case^no 'practicable assistance' could be rendered. But the duty to stop and ascertain whether the person suffering the accident was injured would still lie upon the drivei^ "It may be competent, in the circumstances of this case, for the jury to find that, having regard to all'the surrounding circumstances, the accused did stop as soon as he reasonably could, that he did not fail to ascertain whether he had injured Miss Squire, but that, having ascertained that he had injured her, and as she was in fact alive, he failed to render all' practicable assistance. In such circumstances the proper verdict would be a verdict of guilty on the third count, and the third count only," concluded the judgment.