BOURKE V. JESSOP

Taranaki Daily News, 18 April 1935, Page 5

BOURKE V. JESSOP

v COURT DISMISSES APPEAL. LENGTHY ELTHAM LITIGATION. By Telegraph—Press Association. Wellington, April 17. The Court of Appeal this morning, in delivering its judgment in the case Bourke v. Jessop, was unanimous that the appeal should be dismissed. Whether a pillion passenger is in law identified with the driver of a motorcycle where liability for an accident is in question, •was the principal point argued in the case. The case was complicated by the fact that the collision giving rise to the litigation was in the middle of the road and was between a cycle and a car, both without lights. George William Bourke, Eltham, slaughterman, claimed from Harold Jessop, Eltham, baker, and Clara Adleander Maindonald, Eltham, widow, £1278 damages for injuries received in an accident in October, 1932, when he was on the pillion of a motor-cycle driven by his brother. In the first action a jury awarded damages, but Mr. Justice Reed took them away on the ground that the law identified Bourke with the driver of the cycle. The Court of Appeal ordered a new trial, and the majority of the second jury, before the late Mr. Justice MacGregor, found for defendants. In the Court of Appeal decision announced to-day separate judgments were delivered by all members of the Bench. Sir Michael Myers said there was a duty on Bourke to have' kept a proper lookout and the evidence showed that he had failed to do that. In his opinion there was sufficient evidence of negligence on the part of Bourke, independent of his brother’s negligence, upon which the findings 'of the jury could be supported, and for this reason alone the appeal should be dismissed. Moreover, there was also evidence of a joint and common purpose to commit an unlawful act and each of,the brothers was guilty of breaking the law in riding an unlighted vehicle. Mr. Justice Smith was of the opinion that the only question open for the court’s consideration was the question of identification of the appellant in his brother’s negligence. He considered the evidence established that either Bourke and his brother were principal and agent or that they were engaged in a common illegal action. In either event Bourke' was responsible for his brother’s negligence and the appeal must fail. Mr. Justice' Johnston held that there was ample evidence from which the jury could find that Bourke was guilty of negligence independently of his brother, as also did Mr. Justice Fair, who, in addition, concurred with the conclusions of Mr. Justice Smith on the question of identification. No order was made as to costs. Mr. C. H. Weston, K.C., Wellington, and Mr. J. Hessell, Kaponga, appeared for appellant, and Mr. R. H. Quilliam, New Plymouth, for respondents. '