Liability for Unlit Vehicles
Page 58
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By Our Legal Adviser
SINCE October 1 it has been obligatory for all vehicles other than bicycles, tricycles andcertain towing vehicles to carry two unobscured and efficient red rear reflectors during the hours of darkness. In addition, all new motor vehicles registered after that date must show two rear lamps, and all other motor vehicles are given two years' grace, until October 1, 1956, to comply with this requirement.
These provisions are the result of the Road Transport Lighting Act, 1953, and there can be little doubt that they should result in a great increase in road safety.
Nevertheless, because there are frequently other unlighted obstructions on roads besides vehicles and because it is too much to hope that all such accidents will be eliminated in future, it may be useful to remind ourselves how the law stands on the question of negligence in such cases and to assess the probable effect on it of the new lighting laws.
It was at one time considered—and, in fact, held by a learned judge—that all questions of negligence arising from one vehicle running into the rear of another (even if the latter was unlighted) could be simply solved by arguing that either the driver of the overtaking vehicle was going so fast that hecould not stop within the limits of his vision or he was not keeping a proper lookout. In either case, he was negligent.
This delightfully simple logic was, however, shortly afterwards upset by the Court of Appeal, which held that whilst it was possible that this solution might apply to a particular set of facts, it could not be regarded as a general principle and that each case must be considered on its own merits.
Less Excuse Now that rear reflectors are compulsory, obviously there will be less excuse for an overtaking driver not seeing the rear of another vehicle, even if the latter has no tail light showing. Nevertheless, even allowing for this, the words used in the judgment in a well-known pre-war case are still applicable:— " At night time the visibility of an unlighted obstruction to a person driving a lighted vehicle along a road must necessarily depend upon a variety of facts, such as the colour of the obstruction, the background against which it stands -and the light coming from other sources."
If one is sufficiently and suddenly blinded by the headlights of an oncoming vehicle it might easily be possible to miss seeing the rear reflectors of a parked vehicle, if that was all it was showing. In addition, one must remember that reflectors may become obscured in bad weather or by the driver of the vehicle standing behind it, either to adjust the load or to attend to a defective rear light. Moreover, not all unlit obstructions encountered at night are vehicles and in such cases there are no reflectors to assist one.
It should be noticed that just as it is a continuing statutory duty under the Road Transport Lighting Act, 1927, to show the appropriate lights when on a road at night, so also is it a continuing duty now to carry two " unobscured and efficient" rear reflectors, but that although one is technically guilty of an offence as soon as a light goes out or a reflector becomes obscured,
B24 nevertheless that does not affect any issue of civil liability unless negligence is proved. It is not, of. itself, negligence not to be showing a rear light if one has no reason to know it has gone out during the journey.
Indeed, in Maitland v. Raisbeck, in 1944, where an overtaking bus struck the rear of an unlighted lorry, it was held that neither driver was to blame and accordingly an injured bus passenger was unable to recover damages.
Before 1945 the only question raised in such accidents at night was whether there was contributory negligence on the part of the plaintiff; if there was, that was sufficient to defeat his claim, even if by commonsense standards his negligence was proportionately very small. In that year, however, there was passed the Law Reform (Contributory Negligence) Act, which enabled courts to apportion blame where it considered both sides at fault. This meant that a plaintiff only partly to blame could now recover his damages with a deduction representing his share of the blame.
Although, as has already been indicated, the possible infinite variety of circumstances make it quite impossible to lay down any hard and fast proportions of blame in all cases where one vehicle has run into the back of another unlighted one, yet as it has been possible for the court to apportion the blame it seems that where the plaintiff is the following vehicle his share of the blame is generally assessed at not less than one-third, and it may be as high as 50 per cent.
No Lights Showing
Thus in two cases where motorists stopped without lights showing—one because of battery failure and one because of a desire to repair a faulty rear light—the Court of Appeal considered the proportionate blame to be two-thirds and one-third. In both cases the accidents were on main roads and the drivers of the stationary vehicles could have run them with little trouble on to the grass verge.
It is clear, therefore, that in the past the following driver has been generally held to be at least one-third to blame for such accidents, but generally the negligence of the unlit vehicle—where there is negligence (for as we have seen there may not be any if he has no reason to know his light is out)—has been calculated to be the greater.
It is suggested that the new lighting laws will have the effect of reversing these proportions at least, where it is proved that the vehicle struck into was carrying reflectors, even if it had for some reason or another (but attributable only to negligence) no rear light.
Nonetheless, it should not lead to an attitude of complacency in drivers and cause them to consider that there can be no blame upon them because any driver ought to be able to see the reflectors. It must still be blameworthy to leave an unlit vehicle on a main road at night when this can be avoided and reflectors are not the same as lights—especially when a vehicle is at an angle or with blinding headlights in the way.
The suggested increased use of flares to be put out to mark a broken-down vehicle can result in nothing but benefit to road users in general, and as an additional negative to negligence on the driver's part in particular.