AM APPEAL CASE

Evening Star, Issue 20585, 10 September 1930, Page 7

AM APPEAL CASE

MAGISTRATE'S DECISION UPHELD COLLISION BETWEEN MOTORS His Honour Mr Justice Kennedy tins morning gave his decision in the appeal case of C. W. Humphreys (appellant) v. M. Wilson (respondent). His Honour said this was an appeal on matter of fact and point of Jaw from the decision of a magistrate. A collision took place between a motor cycle and side car, driven by the appellant (in the judgment sometimes referred to as the plaintiff), with a motor car, driven by the respondent (sometimes referred to as the defendant). The plaintiff alleged that the defendant was negligent in (a) failing to keep to his proper side of the road, and (b) driving without adequate lights and without lights required by the Motor Vehicle Regulations. The magistrate did not expressly find as a fact that the defendant was failing to keep to his proper side of the road, but it appeared from his_ finding that the collision occurred practically in the centre of the road, that he must have found that the defendant travelled slightly over the centre line. Although there was evidence, which, if accepted, warranted a finding that the collision occurred further over on the defendant’s side, this finding of the magistrate’s was not impeached on the hear ing of the appeal. If the defendant was, immediately prior to the impact, driving with his right wheel in the centre of the track, so likewise was the plaintiff, immediately prior to the impact, riding slightly over the centre line, and the left-hand side of his own vehicle was not on his own or proper side, because his position had been changed to some extent at the moment of collision as both the plaintiff and the defendant had turned, each to his own side, to avoid the impact. His Honour said that at night a careful motorist or cyclist would, in the presence of approaching vehicles, when he neither perceived by the rays of his own light that his own course was clear, nor distinguished the outline of the approaching object indicated by a light, observed the rule of the road. This was merely an application of the rule that persons using a highway were required, when they had notice of special circumstances which enhanced the danger involved in such use, such as fog. or darkness, to take such special care as a reasonably prudent man would take to obviate it. When two motor vehicles were approaching each other at night, the difficulty each driver experiences in seeing more than the lights of the other, and of perceiving whether his course was clear, especially when he was just about to pass the other vehicle, was such that prudent drivers will keep to their own or proper side. It might be said with special reference to the facts in this case that a careful cyclist would not, at night, in such circumstances, ride as it had been termed “blind” beyond his own side, at a speed described as a slight slackening from twenty miles per hour. If the defendant was negligent in failing to keep to his own side of the road, there was like contributory negligence on the plaintiff’s part. The plaintiff was not in this case misled into going to his wrong side by any wrongful act of the defendant. * He deposed to no belief warranting his being on his wrong side. He should not have been where he was, whether he neheved the oncoming vehicle to be a motor cycle or to be a motor car. He was not about to pass a vehicle believed to be going in his own direction. The magistrate found that the defendant exhibited only one light. This was a breach of the motor regulations, but a mere breach of those regulations does not per se give the plaintiff a right of action. An order made pursuant to statutory authority provided that a motor car and all the fittings thereof should be in such a condition as not to cause, or to bo likely to cause, danger to any person on the motor car or on any highway. A wheel came off a motor car owing to a defective axle and damaged the plaintiff's van. The Com of Appeal held, affirming the decision of the Divisional Court, that the regulation in question was not intended for the protection of the individual bers of the public, but of the public generally, and that it was included in a batch of regulations which could not have been intended to give a civil remedy in addition to the statutory revenue provided by the Act, and consequently that the plaintiff could not recover the damage to his van. The rules to bo applied were thus formulated by Atkin, L.J.; “It is clear that these regulations are in part designed to promote the safety of the public using highways. The question is whether they were intended to bo enforced only by the special penalty attached to them in the Act. In my opinion, when an Act imposes a duty of commission or omission, the question whether a person aggrieved by a breach of the duty has a right of action depends on the intention of the Act. Was it intended to make the duty one which was owed to the party aggrieved as well as to the State, or was it a public duty only? That depends on the construction of the Act and the circumstances in which it was made and to which it relates. One question to bo considered is: Docs the Act contain reference to a lomedy for breach of it? Prima facie, if it does that is tl:q only remedy. But that is not conclusive. The intention as disclosed by its scope and wording must still be regarded, and it may still be that, though the statute creates tne duty and provides a penalty, the duty is nevertheless owed to individuals. . . .

Therefore the question is whether these regulations, viewed in the circumstances in which they were made and to which they relate, were intended to impose du+y which is a public duty only or whether they were intended, in addition to the public duty, to impose a duty enforceable by an individual ag grieved. I have como to the conclusion that the duty they were intended to impose was not a duty enforceable by individuals injured, but a public duty only, the solo remedy for which is the remedy provided by way of fine. _ They impose obligations of various kinds, some arc concerned more with the maintenance of the highway than with the safety of passengers; and they are of varying degrees of importance; yet for breach of any regulation a fine not exceeding £lO is the penalty. It is not likely that the Legislature, in empowering a department to make regulations for the use and construction of motor cars, permitted the department to impose new duties in favour of individuals and new causes of action for breach of them iti addition to the obligations already well provided for and regulated by the common law of thoso who bring vehicles upon highways.” His Honour said these observations applied to the motor vehicle regulations, and ho concluded that, whilo the breach _of such a regulation as the regulation as to lights might bo priina facie evidence of negligence, it did not per so give a right of action against a person so guilty of a breach. The question then was wliether, in the circumstances, having but one lamp alight on his motor car immediately prior

to the collision, was negligence on the part of the defendant.

The plaintiff and his passenger gave evidence as to the nature of the lights on the motor car prior to the collision, while several witnesses gave evidence for the defendant. The magistrate did not reject the evidence on behalf of the defendant as dishonestly given, but lontonted himself with stating that, “ The defendant and his passengers are too dogmatic in their assertion that both lights were alight up to the collision, and that one light could not have gone out without their knowledge. Plaintiff and Miss Mahoney had a much better opportunity for observation, and 1 consider their evidence is to bo preferred on this point.” It was clear from what the magistrate later said, that he accepted the defendant’s testimony as honestly given because ho says, “It does not follow, ivowever, that the defendant was negligent in failing to notice his right hand light had gone out.” Assuming then, as the magistrate found, that there was but one light, the question arose as to whether, having set out in the car in question with two lights showing, there was negligence in the driver’s failure to notice that one light had gone out immediately prior to the collision. The magistrate found that the whole circumstances were quite consistent with the light having gone out shortly before the accident without involving _ any negligence on the part of the driver, and without repeating the evidence which is upon this point discussed by the magistrate in his decision, it was sufficient to say that His Honour agreed with his finding. It had not been satisfactorily made out that this finding is wrong On the magistrate’s finding of fact, which .His Honour thought unimpeachable, the having but one light, immediately prior to tho collision was not in tho circumstances, negligence. The appeal was dismissed with £ls Jos costs to bo paid by the appellant to tho respondent.