NEGLIGENCE CHARGE DISMISSED

Nelson Evening Mail, Volume 79, 29 September 1944, Page 4

NEGLIGENCE CHARGE DISMISSED

SEQUEL TO FATAL ACCIDENT A PRIM A FACIE CASE REBUTTED MAGISTRATE’S RESERVED DECISION The Magistrate Mr T. E. Maunsell, this morning dismissed the charge against Eva May Tanner that on 9th April at Richmond she negligently drove a car, thereby causing the death of Averill Annette Tanner The case was hoard a fortnight ago and the Magistrate reserved his decision at the time. “I have given careful consideration to the question as to whether the defendant should be committed for trial on the evidence deduced in support of the charge that she negligently drove a motor vehicle, thereby causing the death of Averill Annette Tanner,” said the Magistrate. “I do not think a jury would find her guilty, but it is not for me to speculate on that. 1 have to consider whether a jury could reasonably convict on the evidence. “The only evidence against the defendant is that she broke the ‘offside’ rule. Failing to give way to traffic on th e right is not a per se breach of the regulation. It must be shown that the person charged had actual or constructive knowledge that a vehicle was approaching on the right. By ‘constructive’ knowledge I mean that the motorist could have ascertained by keeping a proper lookout that a vehicle was approaching on the right. That involves to a degree the extent of visibility. I have visited

the locality and I agree with Constable Skinner that although there was a hedge on Mrs Tanner’s right the visibility is not bad. The matter, however, does not end there. When the rule requires a motorist on the left to give way to a motorist approaching on the right it presupposes that the motorist on the right is observing the law by approaching the intersection at a reasonable speed. The latter is not entitled to barge ahead at a high speed regardless of the fact that a motorist is approaching on his left, a fact that could be ascertained by keeping a proper look-out. “Under the original regulation the obligation to give way w r as conditional upon there being a possibility of a collision if both vehicles continued on their courses. This condition does not appear in the present regulation. The clear object of the regulation, however, is to provide, as far as possible, a safeguard against collisions. If a collision does occur but would not have occurred but for the fact that the motorist on the right was driving at an excessive speed and running down the motorist oh the left, the latter could not. I think, be held guilty of negligence.

“It is material therefore to consider whether Gilbert was proceeding at a reasonable speed. In my opinion the burthen does not lie on Mrs Tanner to rebut a charge of negligence by proving that Gilbert’s speed was excessive. but that the Cro.wn must prove that Gilbert’s speed was reasonable. In a criminal charge the general rule is that the accused is not obliged to prove any fact relevant to the allegation. In view of certain indisputable facts I do not see that a jury could reasonably conclude that Gilbert’s speed was reasonable. Gilbert says he was approaching the intersection at 20 m.p.h. when he could look to his right. He went on to say that at the time of the collision he "Was almost stopped. Having regard to the distance he travelled after the collision this was manifestly incorrect. Later in his evidence he gave his speed at the time of the collision at 10 m.p.h. To account for the distance his car went after the collision he expressed the opinion that the result of the collision was to slightly accelerate the speed of his car. I regard this as quite incredible, and if Constable Skinner’s evidence is correct that Gilbert's car struck Mrs Tanner’s amidships, it was obviously absurd . . . “The indisputable facts to which I have referred are these: As the result of the aplication of the brakes the wheels of Gilbert's car skidded 36 feet prior to the collision. It was then still proceeding with such momentum as to violently collide with Mrs Tanner’s car causing it to turn at right angles to its course and be propelled for a distance of 30 feet from the point of collision, finishing up upside down in a big ditch. As for car its speed must have been arrested to a substantial extent by the collision, but nevertheless it carried on for a distance of 24 feet, until it came to a rest in the ditch. Had the cars kept to the road there is no knowing where they would have stopped. “Then there is a further matter to take into account. When a collision takes place at an intersection which could have been avoided by keeping a proper look out the law docs not necessarily assign negligence solely to the motorist on the left. If a motorist approaching an intersection can see that there is no traffic on his right or in front he should look for traffic on his left. Mrs Tanner had a hedge both on her right and her left causing a certain amount of obstruction. Gilbert had an unlimited unobstructed view both to his right and ahead. It was only on the left where there was some obstruction requiring his attention. “It is not for me to determine whether* Gilbert was negligent but his manner of negotiating the intersection is relevant to the charge against Mrs Tanner. The Crown must prove not only that Mrs Tanner was negligent but that it was her negligence which was the direct cause of the fatality. Ido not think that any jury could reasonably find that this is proved beyond reasonable doubt. "I realise that it was the duty of the p lice to bring the charge. There was a prima facie case against the accused that she had broken the law, but like all prima facie cases it may be rebutted by the relevant attendant circumstances. I decide therefore not to commit the accused for trial and dis-1 miss the information.”