LIABILITY OF CAR OWNERS

Nelson Evening Mail, Volume LXIV, 30 March 1931, Page 7

LIABILITY OF CAR OWNERS

THIRD PARTY RISK ACT RESPONSIBILITIES OF INSURED “EVEN THE THIEF IS INDEMNIFIED” JUDGMENT OF MR JUSTICE ADAMS “. . . Such liability attaches on every such user, even if the person so using the motor vehicle has stolen it, and in such case the thief is indemnified under the insurance if he has a driver’s license.” Owners of motor cars are subject to the foregoing responsibility under tho Third Party Risks Act, 1928, according to Mr Justice Adams in a reserved judgment delivered at New Plymouth (reports the “News”). His Honour’s remarks were made in the course of a decision dismissing a motion, by Paul Lehrke to set aside a verdict of the jury in favour of George Alexander Anderson on his claim for damages arising out of a motor cycle collision, and either to enter • judgment for Lehrke, as defendant, or a non-suit.

So important did his Honour consider the point when argument was taken before him some weeks ago that lie suggested the Full Court should decide whether the Third Party Risks Act created an absolute liability on the owner of a vehicle for any accident in which that vehicle was involved, irrespective of whether the driver or rider was acting with the authority of the owner, or not. The accident reviewed in the judgment occurred on the night of 25th May on the main road between Eltham and Ngaere. Two motor cycles collided. Felix Lehrke, rider of one machine, was killed, and Anderson, rider of the other, was so injured that he could not remember the incidents of his progress after passing a point a mile before the scene of the impact. There was therefore no direct evidence on the matter. At the hearing the plaintiff relied on the damage to his machine, which was produced, and on the reconstruction of the accident by expert witnesses. The jury found in favour of Anderson, awarding him £BOB damages against Paul Lehrke, the owner of the cycle on which his dead brother had ridden. After reviewing the evidence yesterday Mr Justice Adams said that in his opinion the evidence for Anderson, summarised, was more than sufficient to justify a finding of negligence against Lehrke and to negative the allegation of contributory negligence.

AGENCY PRESUMED His Honour next dealt with the liability of Paul Lehrke, the owner of the cycle, for the act of his dead brother. He recalled that the first submission of counsel for Anderson, the plaintiff, was that the onus of proving that Felix Lehrke was not acting as the defendant’s agent lay upon the defendant, and in the absence of evidence on that point such agency must be presumed. The ground of this' submission was that the It'acts regarding the relationship between Felix Lehrke and the defendant were peculiarly within his knowledge. The first answer to this, said the judge, was that no such agency was pleaded and that in his statement of claim the plaintiff had relied wholly on the statutory agency created by the Third Party Risks Act, 1028. Moreover, it was by no means clear that the rule relied on was so extensive as counsel contended. Another submission had been that agency was sufficiently established by the defendant’s admissions that he was the owner of the bicycle and that it was registered in his name. With reference to this his Honour said he agreed with Mr Justice Reed when he said in deciding the Taranaki case of Wood v. Freyne: “In these days when motor cars are in such general use and, in a large number of cases, are treated as family cars and driven by various members of the family, it appears to me against common experience that the children of the family are engaged upon their father’s business whilst in charge of a car. 11, therefore, the usual thing thing to find is that when a. youth is driving his patent’s car he is oil his own frolic, the law should not presume to the contrary —it should not presume that which by common experience is known to be contrary.” Felix Lehrke, commented Mr Justice Adams, was a brother of the defendant, but the ie* marks of Mr Justice Reed applied with equal cogency to the case of a brother. PURPOSE OF THE ACT

“The vicarious liability created by section 3 of'the Motor Vehicles Insurance (Third Party Risks) Act, 1928, is, however conclusive against the defendant in this case,” proceeded his Honour. “The purpose of the Act is clearly indicated in the long and shoi titles. The long title is, ‘An Act to require the owners of motor vehicles to insure against their liability to pay damages on account of deaths or bocluj injuries, caused by the use of sue motor vehicles.’ The short title is, Motor Vehicles Insurance (Third Party Risks) Act, 1928.’ Section 3 (1) every owner of a motor vehicle (wind includes motor bicycles), subject to the exceptions and limitations specified n section 6, to insure against his lmbility to pay damages on account of the deatn of any person or of bodily injury to any person in the event of such deatn or bodily injury being sustained oi caused through, or by or in connection with the use of such motor vehicle n New Zealand. The section then Proceeds: ‘For the purposes bf this Ac. ami of 'every contract of insurance thereunder every person other than the owner who is at any time in ch*ij,c of any motor vehicle, whether with the authority of the owner or not, sh. he deemed tb be the adthorised agcii of the owner acting within the scope of his authority in relation to such motm Ve «The’ liability of the owner in cases of unauthorised users of his mot vehicle is thus limited iy 1 ‘For the purposes of this Act ai every contract of insurance thercundc., hut such liability attaches on tvuy S.uS C v m iftl,o r r.o»»™.S the motor vehicle has stolen it, and i ;“h cm .von th. under tho insurance if in l«s » dl ™ ; license. The Legislation lias considered it desirable and neccssa } for the protection of the public to cast upon the owner of a motoi i cl ' u c personal and djrcct liability to an ac-

tion for damages in every case falling within the terms of section 3. I observe that in the Act passed in England in 1930 no such vicarious liability is created.”

Ten guineas costs and disbursements were allowed on the dismissal of the motion. At the hearing Mr A. Chrystal, with him Mr J. Hessell, appeared for Anderson and Mr P. O’Dea for Paul Lehrke.