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Leaving a Lorry Unattended.

11th November 1915
Page 4
Page 4, 11th November 1915 — Leaving a Lorry Unattended.
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Important Decision in Court of Appeal.*

The Court, heard an appeal from a decision of Portsmouth County Court. The defendants in the action were the owners of a Foden steam lorry, with which on the material date they delivered beer at a public-house in Portsmouth. Three men travelled with the lorry, and all three of them get off and left it while they were placing the beer in the public house cellar. Before lliaving the engine they put it out of gear, and they were absent trom the lorry for a few minutes. During their absence a soldier climbed on the lorry and tried to start the engine, but failed to do so. Another soldier then climbed up, and by pulling three different levers succeeded in putting the lorry into motion and injured the plaintiff. who sued the defendants for damages. The County Court Judge decided in favour of the plaintiff, and the defendants now appealed. Mr. S. H. Emanuel appeared for the appellants; and Mr. du Pareq for the respondent.

The Grounds of Appeal.

The grounds of appeal were—that there was no evidence of negligence on the part of the defendants or their servants; that the negligence, if any, of the defendants or their servants did not cause the damage complained of ; that the negligenes, if any, was not the immediate or proximate cause of the damage; that the negligence, if any, was that of the soldiers or one of them, and neither of them was in the defendants' employment; that the damage was caused by the negligent or mischievous acts of some person or persons not under the control of the defendants, against which it was impossible for the defendants to guard.

Mr. Emanuel submitted that to leave the engine for the short time was not negligence in the circumstances.; and, if it was negligence, the 'negligence was not the cause of the .accident.

Mr. Justice Lush asked whether the _principle was not that the defendants were liable if a'reasonable man ought to have -anticipated that such a thing might -happen.

The Chain of Causation.

Mr. Emanuel submitted that no reasonable man would have anticipated that this would happen, and • the chain of Causation was broken. No such act had been known before; and even if it could be said that the defendants ought to have antieipate.d that soldiers would meddle with the engine, . they had taken all 'reasonable precautions by putting the engine suit-Of gear. The 'damage was caused by the conscious act of volition of a third person. Cases in which children had caused damage were different, for their volition was considered to be uncon•scious.

The Extent of Precautions.

Mr, du Parcq submitted that a person who was the owner of a thing which might cause injury to the public must take precautions to see that it did not do so. He must be taken to know that among the public were malicious and mischievous persons, and he must take care not to afford such persons the meansof causing danger.

Mr. justice Lush.—S-uppose a thief had jumped on this engine and had driven it away with the intention of stealing it, and in doing so had hurt someone, would the owner have been liable?

Anticipation of Possible Pranks According to

Locality.

Mr. du Paro.q.—On the analogy of the horse cases he would v. Goodwin (5 C. and P., 190). In Portsmouth, as in a uniNersity town, there were always persons about ready to play pranks, and that should have been remembered by the defendants. It was reasonable to anticipate that this sort of thing would happen. Mr. Justice Lush referred to a passage in the judgment of Lord Justice Hamilton in Latham v. Johnson ([1913] 1 KB., 409; 29 "The Times" Law • Reports, 124) in which it was pointed out that if the mischievous act of the third person constituted a fresh independent cause the chain of causation was broken and the liability of the person who had originally been negligent disappeared.

Mr. du Perm submitted that it was for the Judge to find as a fact whether any particular danger was one which should be guarded against, and the Judge here had found it was a fact in the plaintiff's favour Mr. Emanuel replied.

Judgment.

Mr. Justice Avery said that there were two questions to be answered—Was there any evidence of negligence by the defendants, and, if there was, was there any evidence that such negligence was the effective or proximate cause of the plaintiff's injury? The steam lorry was left on the road in such a condition that it could not be set in motion without four distinct operations, a safety pin had to be removed, and the gear, reversing, and starting levers had to be manipulated; and could it be said that the defendants had been negligent in leaving it iii that condition? In his opinion the state of facts disclosed did not show any evidence of negligence in the first instance by the defendant's servants. The case was totally different from that of a horse left unattended in a street; every one knew that a horse might start off at any moment of its own accord, but it was impossible to say that it was negligence to leave a machine on the road which would no•t move unless someone intentionally interfered with it.

The Character of Intervention.

Even assuming that such conduct was negligence, could it be said to have been the proximate cause of the injury? Admittedly, the accident would not, have happened hut for the intervention of the soldiers. Was that intervention of such a character that, a reasonableman would have anticipated its happening? In. his opinion it was not right to say that any reasonable man would have anticipated it. There was no evidence that anything of the kind had happened before or that persons at Portsmouth were, as Mr. du Pa.req suggested, specially addicted to playing pranks. It was not a case in which the intervention of a child had caused the accident; nor was it one in which a dangerous or noxious thing had been left on a highway or close to a highway, or where it was likely to be interfered With.

Mr. du Pareq argued that it was a question of fact in every case whether a reasonable man Ought to have anticipated the particular kind of intervention which caused the accident. As to that, there was no finding of fact in the County Court Judge's judgment that the intervention in this case should have been anticipated' if there had been such a finding he would have said without hesitation that there was no evidence to support it.

Negligence and Proximate Cause.

In his opinion there was no negligence; and if there was negligence it as not the proximate cause of the accident. It was unnecessary then to decide whether the independent, act of an adult person which was the proximate cause of the injury would in every case afford an answer to the claim against the person who had been negligent in the first instance. That question might have to be decided some day ; Rickards v. Lothian [1913] appeared to say that a conscious act of independent volition on the part of a third person was enough to discharge from liability the person originally guilty of negligence. • The appeal must be allowed, with costs. Mr. Justice Lush delivered judgment to the same effect. Solicitors.—Measrs. Barlow, Barlow, and Lclye, for Messrs. Lamport, Bassitt, and Hiscock, Southampton; Mr. Edgar Bechervaise, Portsmouth.


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