APPEAL COURT

Southland Times, Issue 23166, 6 April 1937, Page 8

APPEAL COURT

INVOLVED DAMAGES CLAIM JUDGMENT RESERVED (United Press Association) WELLINGTON, April 5. The Court of Appeal was engaged today in hearing the case of the A.P.A. Union Assurance Society versus Margaret Cree Ritchie, of Petone, widow (the first defendant) and Barton, Ginger and Co., Ltd. (the second defendant). On a stormy day in December 1936 a motor-lorry owned by Barton, Ginger and Co., was carrying two cases of motor-car parts from Wellington to Moera and when the lorry was passing over the bridge at Petone the cases were blown from the lorry, one of them falling on and killing the husband of the first defendant, Margaret Cree Ritchie, who was walking over the bridge. The first defendant brought an action against the second defendant (Barton, Ginger and Co.) in February last, claiming damages for the death of her husband and the jury awarded her £1250 and costs. Consequent on this verdict the plaintiff, the A.P.A. Union Assurance Society, issued an originating summons to determine whether it was liable under the Motor Vehicles Insurance (Third Party Risks) Act 1928 as the ; statutory indemnifier to indemnify the second defendant in respect to its liability for these damages. By consent an order was made by Mr Justice Reed removing the originating summons to the Court of Appeal where the matter was argued on the agreed facts and the evidence taken at the trial in which Margaret Cree Ritchie was the plaintiff. The question before the Court of Appeal is whether, under the circumstances in which the first defendant’s husband was killed, the happening causing his death has imposed a liability on the second defendant by reason of the death “sustained or caused by, through or in the use” of the lorry within the meaning of Section 6 (1) of the Motor Vehicles Insurance (Third Party Risks) Act 1928. If so the plaintiff company is liable to indemnify the second defendant respecting that liability. In opening the case for the plaintiff, the A.P.A. Union Assurance Society, Mr W. E. Leicester submitted (1) that neither the agreed facts nor the evidence given showed the negligent use of the vehicle as such; (2) that the concluding words of Section 6 (1) of the Motor Vehicles Insurance (Third Party Risks) Act 1928 should be interpreted as creating an indemnity because of an accident sustained or caused directly by or through or in the use of a motorvehicle; (3) that the accident in this case was not directly so sustained as caused; (4) that the scope or the object of the Act was not to confer a public risks policy to cover all common law risks arising out of the conduct of an owner’s business. For the first defendant Mr H. F. O’Leary, K.C., submitted that the vehicle carrying the cases was a motorlorry whose primary use was to carry goods and, while being so used, the accident happened in respect of which the liability was incurred by the second defendant, and that the liability was in respect of death caused through the use of the motorvehicle, or with the use of the motorvehicle within the meaning of the Statute. Mr O. C. Mazengarb, for the second defendant, submitted that on the totality of circumstances under which the accident had happened it had been shown that there was negligence not only in the loading of the lorry but in its proceeding on its way with the load unlashed. Judgment was reserved.