Marsh v Ruggiero & Ors No. Scgrg-90-570 Judgment No. S6488
[1997] SASC 6488
•19 December 1997
MARSH v RUGGIERO & ORS
Williams J
In this action the plaintiff has claimed damages for personal injury arising out of a vehicular accident at night. The plaintiff’s motor cycle (with side car attached) ran into the rear of a plough being carried behind a slow moving tractor driven along a highway by the first defendant. In addition to its normal tail lights the tractor displayed at its rear a white "working light".
In accordance with a Master’s order (dated 30 March 1992) the proceedings have now come to trial only upon the issue of liability.
The Circumstances of the Accident
On 30 May 1989 the first defendant was driving a Fiat tractor generally easterly along Angle Vale Road near Angle Vale. The tractor was carrying a plough (suspended clear of the ground) attached behind the tractor upon a three point linkage (or "hitch"). The plough extended for about 2.2 metres behind the tractor from its points of attachment. The overall width of the plough was 1.4 metres and this was less than the tractor width. The plaintiff was riding alone on a Honda VF1000 motor cycle with side car attached and was travelling in the same direction as the tractor but at a much greater speed. The plaintiff’s cycle collided with the rear of the plough. The accident occurred in total darkness some time shortly after 6pm. The first policeman upon the scene was Constable Taverner who arrived at 6.20pm.
The plaintiff was thrown from his cycle and is alleged to have suffered injuries affecting him intellectually; counsel were in agreement that it was unnecessary to tender medical evidence to explain his absence from the trial. In the circumstances the plaintiff sued by his next friend alleging negligence by the first defendant as driver of the tractor.
The first defendant is alleged to have suffered injuries to his back and a separate action dealing with that matter is the subject of a District Court action which has been removed into this Court and is before me. I am required by the parties only to note the existence of that action.
The second defendant is the wife of the first defendant and their son is the third defendant. The plaintiff claims that the second and third defendants are vicariously liable for the negligence of the first defendant ; on 30 May 1989 all three were in partnership in the business of almond growing and it is alleged by the plaintiff that at the time of the accident the first defendant was driving the tractor in the ordinary course of the partnership business or with the authority of his partners (see Partnership Act s10).
The first, second and third defendants reside together on an almond growing property (the "home property") on the northern side of Angle Vale Road about one kilometre east of the accident scene. They all have an interest in another almond growing property on Taylor Road Angle Vale ("the Taylor Road property") from which the first defendant was travelling to the home property at the time of the accident.
In these reasons I have deemed Angle Vale Road to run east-west and much of the evidence was given on this basis although the locality map shows that there is generally a northerly component in the road direction as one moves east. It is about 500 metres from the Taylor Road property to the junction of Taylor Road and Angle Vale Road. Taylor Road runs approximately north east to south west and at its northern end terminates at its junction with Angle Vale Road. On its western side Taylor Road forms an angle of about 55° with Angle Vale Road and on the eastern side an angle of about 125°.
In the alternative to the claim against the first, second and third defendants, the plaintiff claims against the nominal defendant (the fourth defendant) pursuant to s116 of the Motor Vehicles Act upon the footing that the tractor is alleged to be an "uninsured vehicle" within the meaning of the statute. In fact the tractor was unregistered and did not carry third party insurance of the nature described in Pt4 of the Motor Vehicles Act. There is a dispute between the parties as to whether the tractor was being driven in compliance with Pt4 of the Motor Vehicles Act in the circumstances of its operation (see the exemption in s102(1) and s12(1)). However, even if the Statute permitted the tractor to be driven without registration and insurance by virtue of an exemption in the legislation, there remains an issue of principle as to the liability of the nominal defendant in respect of accidents on the highway involving farm tractors which are exempt from third party insurance requirements of the Motor Vehicles Act. The point at issue involves
(a) the construction of s116(1) in the light of s104 and
(b) consideration as to whether the statutory insurance scheme applies where the defendant is lawfully driving a vehicle which is exempt from the insurance requirement of Pt4.
The defendants respectively issued third party notices against the dealer who supplied the tractor, claiming that the rear lights on the tractor were mounted about eight inches above the height specified in the Regulations; this allegation reflected an assertion in the plaintiff’s statement of claim as to height of the tractor’s lights. In the course of evidence all parties abandoned any reliance upon such an allegation and the dealer third party was dismissed from the action by consent order. In my opinion the slight deviation from the regulations as to the height of the tractor’s tail lights had no part to play as a cause of the accident.
After ploughing with the tractor at the Taylor Road property on the late afternoon of 30 May 1989 the first defendant prepared to drive home on the tractor with the plough still attached thereto. He raised the plough at the point of its attachment to the tractor before leaving the Taylor Road property. Darkness had by then fallen. The first defendant had already switched on his headlights and tail lights and the working light as described below just before he finished ploughing as night was gathering. Forward facing clearance lamps were also illuminated. He drove generally north easterly along Taylor Road to the point of its junction with Angle Vale Road where he stopped. He then turned right into Angle Vale Road and proceeded along the northern side of the bitumen surface close to the northern verge. The tractor was entirely on the bitumen carriageway (which had an overall width of about six paces). Immediately to the north of the carriageway the bitumen was bounded by a dirt verge and beyond that was a grassed "batter" extending to the fence line; the total width of the verge and batter was six paces.
The first defendant told investigating police that his speed just before the accident was about 6kph but in evidence he has revised that figure to 16kph. I reject Mr Ruggiero’s recollection of a specific speed of 16kph. However, I consider that his original estimate of 6kph is likely to have been conservative and that a speed closer to that given by Mr Ruggiero in his sworn evidence is more likely in fact having regard to the speeds which could be obtained by the tractor in the various gears. The first defendant said in evidence that the tractor was in third gear and I am prepared to accept that evidence and that as a consequence a speed of 16kph is "nearer the mark" than 6kph.
As the tractor approached the point of impact (some 170 metres east of the Taylor Road junction) it was displaying two red tail lights mounted above the tractor mud guards. The tractor was also showing to the rear a white working light (similar to a spotlight) and mounted between the twin red tail lights but lower than them in height off the roadway. The working light was pointed downwards at an angle of about 24° from the horizontal at the rear of the plough. In the result there was a spill of white light to the rear of the tractor visible to following traffic. The capacity of this white light to cause confusion (to following traffic) was significant and, in my judgment, contributed to the accident.
The plaintiff was moving east, travelling behind the tractor. There was no evidence as to where the plaintiff had come from or whether he had stopped at any time by the roadside. The plaintiff worked in the town of Virginia and lived at the Evanston caravan park so that it might be that he had been travelling home after work. Counsel reject my observation that the case was conducted upon an assumption by them that the plaintiff had been moving east along Angle Vale Road in the minutes leading up to the accident; therefore I observe that in the persuasive and extensive arguments addressed to me I can find no reference to other possibilities.
At impact the plaintiff was probably not travelling more than 70kph and certainly less than 80kph (in an area where the speed limit was 110kph). The plaintiff’s speed was not excessive if he were keeping a proper lookout. The weather conditions were fine and the roadway was dry. The sky was overcast. There was no highway lighting. The accident occurred on a straight section of road in a sparsely populated area comprising mainly farmlets of 10-20 acres each. It has numerous market gardens and orchards.
Although the distant lights of Adelaide can be seen to the south as one travels east along Angle Vale Road approaching Taylor Road, thereafter a stand of mature trees blocks out even those lights and the immediate vicinity of the accident scene has no illumination whatsoever. (A view of the scene at night aided my appreciation of the evidence on this subject but I do not substitute my own observations for the evidence).
I find that the low beam on the plaintiff’s motor cycle was operating at the point of impact. This was established scientifically. There is no evidence whether the plaintiff switched from high beam before his immediate approach to the collision.
Angle Vale Road is more or less flat and quite straight for two kilometres to the west of the accident scene where there is a bend. The lights on the tractor (in particular the red tail lights) should have been clearly visible to the plaintiff for well over 200 metres as he approached the point of collision - assuming that he had been approaching the junction of Taylor Road from the west along Angle Vale Road. (The evidence suggests that this figure is a very conservative estimate). However, as the tractor jolted in a fore and aft direction along the road the amount of spill from the white working light would have varied but I am unable to determine the amount of this variation. This movement in the tractor will also have caused some unsteadiness in the appearance of the red tail lights.
Whilst the plaintiff should have seen the tractor’s tail lights in plenty of time to take effective evasive action, the presence of a white light (emanating from the working light) apart from being confusing may have caused something of a dilemma to the plaintiff as to the appropriate course of action to take.
If the white light (standing alone) were perceived as an oncoming headlight, swerving to the right (or south of the carriageway) may not have been assessed by the plaintiff as an attractive option. Moreover the time needed for resolution by a person in the plaintiff’s position of the problem as to the association between the three lights (if the association was eventually identified) was something which was likely to impede the process of appropriate prompt rider reaction to the unusual visual stimuli.
According to expert evidence, the visual cues presented to the plaintiff by the peculiar combination of lights was liable to affect adversely the plaintiff’s judgment of distance - and associated with this - his assessment of the closing speed of the two vehicles relative to each other.
The motor cycle’s front wheel hit the plough very close to the centre of the back of the plough; the point of greatest distortion of the shaft upon which the plough shares (or discs) are mounted together with a broken share near this point give a strong indication as to where the impact between the front tyre of the motor cycle and the plough occurred.
Thereupon the plaintiff was catapulted through the air; damage to the motor cycle strongly suggests that after hitting his petrol tank (probably with his groin) and handlebars (probably with his legs) the plaintiff fell face down on the roadway near its broken white painted centre line and some distance ahead of the point of the collision; his head was then pointing to the north east and his feet to the south west. (The plaintiff ended up generally to the north of the centre broken white line painted on the roadway but his legs were on that line). Upon assembling all the evidence I find that the position where the plaintiff came to rest upon the roadway was in the vicinity of 18 metres from the point of the initial collision and generally eastwards of that point.
The first defendant was taken completely by surprise. The noise of the tractor probably masked the sound of the approaching motor cycle; the tractor was not fitted with a rear vision mirror and the first defendant was oblivious to the presence of the motor cycle until after the collision. The impact broke the lower two connections (of the plough to the tractor) upon the three point hitch but the upper connection enabled the tractor to drag the plough. The rear of the plough - which until this time was travelling clear of the road surface - then fell (virtually immediately) to the bitumen roadway and the continued forward movement of the tractor caused the weight of the moving plough to gouge marks in the bitumen road surface so as to indicate the path of the plough until the tractor and plough were brought to rest by the first defendant; he was clearly badly shaken by the events. A passing motorist who came on the scene some minutes later described in evidence how he found the first defendant (who was known to him) and then summoned the third defendant from his home (at the home property) to the scene to render help. The headlamps, tail lamps and working light were then still operating on the tractor.
The tractor was fitted with hazard lights which, in a conventional fashion, were included (on each side of the tractor) in the same assembly as the tail lights (and the brake lights). The hazard lights were wired so as to be capable of use as turning indicator lights. The hazard lights were operated by a button (bearing the usual triangular symbol) on the lower left side of the vertical tractor dashboard or control fascia. The button was recessed in its own mounting so as to have a measure of protection but of easy operation by a fingertip. Although the first defendant asserts that the hazard lights were operating at the time of the accident, I reject that evidence and I find the hazard lights were not used at any time now relevant. I consider that it was most unlikely (having regard to the size and shape of a man’s knee in relation generally to the fingertip control) that the hazard lights were accidentally turned off by a knock on the switch from the tractor driver’s knee in the aftermath of the collision. I reject that hypothesis which was before me.
The first defendant told investigating police that "all his lights were on". In its context I treat that statement as meaning that the headlights, tail lights and forward facing clearance lamps (associated with the tail lights) were operating together with the working light which was separately described to the police by the first defendant. The first specific mention of the use of hazard lights emerged in the evidence of the first defendant at trial. (The Regulations Under The Road Traffic Act generally prohibit the use of hazard lights on a moving vehicle (see reg5.14 as then in force)).
Angle Vale Road is, in effect, a highway joining Port Wakefield Road (near Virginia) to the Gawler by-pass. It is to be expected that this road with its speed limit of 110kph and its long stretch of straight flat bitumen would carry traffic moving at high speed in the vicinity of Taylor Road. The first defendant introduced onto Angle Vale Road a tractor which lumbered along at a comparatively low speed (in relation to other likely road users) and which pitched and weaved as it progressed. The pitching was caused by the weight of the plough hanging off the back of the tractor. The weaving is a characteristic of a tractor with large balloon rear tyres which cushion the ride but which continuously change shape in the fashion of a blancmange - according to an expert witness, Mr Aust. The tractor (with its plough extending some 2.2 metres to its rear) clearly presented something of a hazard at night to other traffic and it was important that the tractor should be properly lit. Instead it was improperly lit by a lighting combination which had the capacity to confuse and to mislead all but the alert and careful driver or rider in determining an appropriate response to the emerging scene. Even a rider who was alert and careful would face potential embarrassment before eventually reacting in an appropriate way to avoid the hazard. Such a rider would in sequence detect and identify the unexpected object and then decide upon a course of action as dictated by prudence and experience. The approaching motor cyclist (the plaintiff) was not provided with the appropriate warning to which he was entitled to facilitate this process of safe rider reaction.
In my opinion the situation created by the first defendant gave rise to a dangerous situation for other road users - and in particular the plaintiff.
In so describing the situation I have had regard to the way in which the display of lights to the rear of the tractor must have been affected by the pitching and weaving of the comparatively slow moving tractor. Having entered Angle Vale Road the first defendant proceeded east, to the point of collision. The first defendant took no steps to keep himself aware of the situation behind him - he had no rear mirror and he did not look around. There was broken and uneven ground generally to the north of the northern road verge in the vicinity of the tractor’s passage for 170 metres along Angle Vale Road from the Taylor Road junction. (There was for example a culvert which would have prevented the tractor from being driven entirely off the bitumen). However the first defendant did not exploit any opportunity to move off the bitumen and to stop in order to give the plaintiff clear passage. The actions of the first defendant demonstrate that he proceeded on his way without having regard for those roadusers who may be following him.
Nevertheless I consider that the plaintiff was insufficiently alert and careful in relation to the situation as it developed ahead of him. I must not allow myself to speculate as to the plaintiff’s situation. In the circumstances very little is known about his movements. I have already expressed my conclusions as to how an alert and careful rider would have coped. Apparently the plaintiff was not in this category as he approached the tractor. Although the situation facing the plaintiff was confusing, the plaintiff failed to exercise reasonable care for his own safety in the face of the developing situation. The facts speak for themselves in demonstrating that his lookout was insufficient.
Mr Hall a consulting engineer with experience in Road Accident Research gave expert evidence. He had experience as a motor cyclist (including his competition experience from 1968 to 1994). His analysis of the tractor lighting as it must have appeared to the approaching plaintiff was useful. According to Mr Hall’s estimate the working light was directed at the rear of the plough at an angle of about 20° below the horizontal. (I have more exact measurement of the height of the working light than was available to Mr Hall. The measurements taken by Mr Aust confirm that the angle is approximately 24° - upon the assumption that the working light was trained on the rear of the plough). The working light probably had a 35 watt globe and a lens which would tend to concentrate the light. It has some similarity to a headlight and is fitted with a reflector. It threw out an intense white light but the full effect of this was screened from a distant road user by reason of the oblique angle at which it was directed at the ground rather than full into the eyes of any following traffic. The working light was attached to the tractor by a form of stiffly moving universal friction joint so as to give the working light an infinite range of adjustment in both planes over a wide arc but pointing generally rearwards from the tractor. The friction in the joint was enough to hold the lamp in position but yet allow manual adjustment.
The two red tail lights on the tractor had entirely different characteristics from the working light. The tail lights were mounted above the tractor mudguards at a height to be compared with the single working light at only about two thirds of the height of the tail lights above the road. (The measurements taken by Mr Aust appear below). The tail lights probably had 5 or 10 watt globes; whether the globes were 5 or 10 watts, the appearance would not have made much difference if any to the naked eye as relevant to the present case. (Mr Aust gave evidence to this effect).
The tail lights had shaped reflectors but they are not designed to be "strongly reflective" bearing in mind their purpose of providing a direct light into the eyes of the following road user; the lens on the tail light also tends to diffuse the light.
The tail lights were clearly visible to a rider approaching from the west. Constable Lee walked back for some 50 metres and made an observation of them. He saw nothing out of the ordinary.
The expert evidence is that the human eye has a difficulty in perceiving distance of lights at night and is dependant upon receiving and interpreting visual "cues" in order to judge distance and closing speed. The white working light as described had the capacity to interfere with these normal cues. If the motor cyclist could have concentrated his attention upon the clearly visible tail lights, his chances of correctly recognising the situation ahead and reacting thereto were much better than with the distraction and confusion of the white working light.
In a nutshell, the plaintiff was denied the proper warning to which he was entitled so that he could take timely avoiding action. Bearing in mind the speed at impact and the absence of evidence of hard braking by the plaintiff it seems that the plaintiff may already have made an initial adjustment to his speed before his final approach. However, whether or not he had found it necessary to take some preliminary precaution, it seems very likely that the plaintiff must have misjudged the situation and misinterpreted the series of cues which his eyes were receiving during his final approach.
The white light at 24° below the horizontal must have had an increasing visual effect as the plaintiff came closer whereas the changing characteristics of the red tail lights relatively to the working light would be unlikely to deliver cues to provide the plaintiff with a proper appreciation of his situation. The apparent increasing visual "separation" of the two red tail lights (as the vehicles came closer) together with the cues presented by the information to be gleaned from the area illuminated by the plaintiff’s headlight would be the normal information upon which closing speed and distance would be estimated - according to the expert evidence.
Part 5 of the Regulations Under The Road Traffic Act (as in force at the date of the accident) deals with lighting equipment on vehicles. The scheme of lighting of vehicles is well known. Regulation 5.05 provides:
"Spotlights
Except as provided in this regulation:
(a) no person shall drive or leave standing any motor vehicle in or from or upon which a lighted spotlight or searchlight is used or to which a lighted spotlight or searchlight is attached by means of a lead and used away from the vehicle; and
(b) no person shall use such lighted spotlight or searchlight.
A motor vehicle in or from or upon which a lighted spotlight is used or to which a lighted spotlight is attached by means of a lead and used away from the vehicle may be driven or left standing and a person may use such lighted spotlight:
(a) where such motor vehicle is stationary and such spotlight is lighted and used only for the purpose of examining any part of such vehicle or making adjustments or repairs to any such part, and the light therefrom is not projected more than 6 metres from such vehicle; or
(b) where such motor vehicle is not within the boundaries of any municipality, town or township, and such spotlight is lighted and used only for the purpose of reading a fingerpost or notice board and for no longer a time than is necessary for such purpose....."[here follows a number of exemptions for service vehicles].
The dangers associated with the use of spotlights are obvious; based upon the expert evidence as to the effect on the human eye of particular lighting combinations, an accident in the circumstances of this case is explicable by reference to a misreading by the plaintiff of the light signals displayed by the tractor. It is most unlikely in my judgment that the plaintiff did not see any of the lights ahead when presented before him in such ideal conditions for observation.
The defendants assert that the plaintiff, if he were alert, ought to have worked out what was ahead with plenty of time to react. I reject this contention. The plaintiff was entitled to be given a fair warning. He was given an unfair and misleading warning. I think that I am entitled to call upon my own experience as a driver for an appreciation as to how easy it is at night to misread a situation even when one has been aware for some time of lights ahead. A driver or rider needs to be especially vigilant in lookout in such circumstances with a preparedness to deal with the unexpected.
Mr Aust made detailed measurements of the arrangement of lights at the rear of the tractor (whose overall width is 1570mm). The tail lights were mounted at a height of 1330mm and at about 560mm measured outwards from the centre line of the tractor. Below the tail lights at a height above the ground of about 1460mm were red reflectors (measuring 90x25mm). The working light was at a height of 965mm and offset 90mm to the right of the centre line of the tractor; it had a lens with diameter of 102mm. These measurements appear upon Attachment A to Exhibit 14 and I accept them.
Mr Aust took a number of photographs at night in the course of an attempt to reconstruct the scene confronting the plaintiff as he approached the tractor. This material provides some useful background for the purposes of discussion but I am not prepared to treat the photographs as representative of the actual scene. The difficulties are well known.
Mr Hall pointed out (as is a notorious fact) that there are difficulties in photographing at night and recording the scene as it appears to the naked eye.
A change in exposure times of the film or in the processing can affect the result. Moreover, it is well known fact that one type of film may give a truer representation of a particular colour than another. (One only needs to compare the print in exhibit P7 photograph 42 with the print in exhibit p25 - discussed below. Those photographs (based upon the same negative of a police photograph) make my point. I do not know how (when Mr Aust took his photographs) the cleanliness of the tail light covers compared with their state on the night of the accident. I would not be prepared to rely upon the photographs to show the spill of light escaping to rear from the operating light as compared with the tail lights. Moreover, the situation facing the plaintiff was a dynamic one and not one in which the essential features were stationary. The vehicles were moving at different speeds and the tractor lights were unsteady to some degree. The photographs were taken by extended exposure and were not "snapshots". I accept that Mr Aust has done his best fairly to represent the scene as he saw it but the difficulties and uncertainties are too great for the evidence to be used as Mr Smith (of counsel for the first, second and third defendants) would wish.
However I accept Mr Aust’s measurements of the tractor (Appendix A to his report). I also accept his reconstructed plan of the accident (Exhibit R23) as being for my purposes a useful assembly of the evidence (including observations and measurements by investigating police). The most westerly scrape (or gouge) mark on the bitumen was made at about the time of impact by the motorcycle with the plough. The plaintiff was unseated by the impact and thereafter the motorcycle travelled forward for about 7.35 metres (5.9m plus 1.45m shown on the plan R23) before coming to rest. The plaintiff ended up on the bitumen (some 11 metres) ahead of his motor cycle. Owing to some uncertainties in the way measurements were taken and collated I am not able to be more specific than to say (as I have already found) that after the collision the plaintiff travelled in the vicinity of 18 metres east from the point of impact until he came to rest on the roadway. Marks on the roadway show that the tractor apparently continued on for some distance to the east of the plaintiff’s body. I note that in Exhibit P7 photo 42 a police photograph has been printed from its negative in reverse. This error caused some confusion at trial and the mistake was not discovered until the trial was well advanced; that photo was replaced by exhibit P25 which correctly shows the scene with a police constable standing on the northern side of the road. Perusal of the evidence should make allowance for this fact. However, when this error has been brought to account, the evidence as to the likely point of impact in terms of Exhibit R23 is strong. Mr Aust expressed the opinion that if the plaintiff were travelling at about 65 kph at the time of the collision the "throw" of his body for a distance in the vicinity of 20 metres would not be in any way surprising.
Mr Aust was inclined to the view that the motorist was travelling somewhat faster than did Mr Hall; I prefer Mr Aust’s evidence on this point. Doing the best that I can with the evidence and all its inherent uncertainties I conclude that the plaintiff was probably travelling in the vicinity of 70kph (as I have already observed) as he made his final approach to the point of collision. Mr Hall thought that this speed might have been less than 60kph. The experts based their opinions largely upon an assessment of the damage to the front end of the motor cycle. The evidence is useful so long as it is only used as a broad guide. However, the matter of importance is that there is no evidence of excessive speed on the part of the plaintiff in the circumstances.
The Liability of the First Defendant
I consider that the first defendant is liable in negligence in driving an improperly lit slow moving hazard without proper regard for the plaintiff. The defendants argue that the plaintiff’s faulty lookout was the cause of the accident despite the first defendant’s exhibition of "false lights". In my view the correct approach to the question of causation in this case is the application of principle as discussed by King CJ in Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121 at 130:
".....The respondent was clearly under a duty to take such reasonable precautions as it could and these included reducing the risk by the supply of gloves and the giving of adequate instructions. It then becomes a question of causation. Has the failure to take those precautions been shown to have caused or materially contributed to the contracting of the disease by the appellant? It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant’s infection unless it can be established how that infection occurred. But the law’s view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease. Justice requires such an approach to the problem of causation and it is the approach which was taken by the House of Lords in McGhee v National Coal Board." (1973) 1 WLR 1.
Despite the different subject matter from the present with which King CJ was concerned in that case, I consider that the underlying principle is one of general application.
In my view the first defendant was under a legal duty to take precautions to exhibit the proper lights in order to protect other road users. By omitting these precautions - to the point of showing a misleading combination of lights upon this hazard - the first defendant materially increased a risk of the plaintiff being involved in collision and thereby suffering injury. In the absence of more direct evidence as to how the accident happened, this increase in risk (and its scope) provides sufficient basis for the drawing of an inference that the omission of precautions (in terms of proper lighting) combined with the manner of driving the tractor materially contributed to the collision and the injury suffered by the plaintiff. It seems to me that the question is one where "common sense" may be applied (as that term is used in Marsh v Stramare (1990-91) 171 CLR 506 at 515 and 530).
Section 27a(3) of the Wrongs Act (which of course must be read together with the whole of s27a) provides that:
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage
........"
I note the comment thereon of Doyle CJ (speaking for the Full Court) in Hooker v Grinham (Judgment No.S6424 - 5 November 1997)-
"Apportioning liability involves a comparison of two things in particular. First, culpability, which is the degree of departure from the standard of care of the reasonable driver. Secondly, the relative importance of the acts of the parties in causing the damage but it is "...the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination", see Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311."
Applying these principles I decide that the damage recoverable by the plaintiff Marsh shall be reduced by 25% (being the extent to which I think it to be just and equitable having regard to his share in the responsibility for the damage). The plaintiff was misled in his appreciation of the situation by the actions of the first defendant.
In terms of culpability and relative importance of the respective acts of the plaintiff and the first defendant (as these terms are used above) and subjecting to comparative examination the conduct of the tractor driver and the motor cyclist, the overwhelming responsibility in terms of liability upon apportionment must lie with the first defendant. He created a hazard which was likely to embarrass even a careful and alert motor cyclist. That which happened thereafter was reasonably foreseeable. Accordingly I find that both the first defendant and the plaintiff were negligent and apportion responsibility for the collision as to 75 per cent to the first defendant and 25 per cent to the plaintiff.
The Liability of the Second and Third Defendants
Immediately prior to the accident the first defendant had been ploughing upon the Taylor Road block. The western end of this forty acre block abuts Taylor Road. About 25 acres of this block at its western end is devoted to intensive almond growing. By reason of a quota applying to the Taylor Road block, there is insufficient bore water available to support any further almond trees. Therefore, the remainder (or surplus) of the block at its eastern end is either put down to a cereal crop or allowed to lie fallow. The first defendant had an arrangement with a sharefarmer to work this land in exchange for a share of the grain crop. Mr Salvatore Ruggiero used the grain to feed his chickens. The chickens were used for Mr Ruggiero’s own table; the second and third defendants lived with Mr Ruggiero. Since 1980 the almond growing operation (involving about 8400 trees) had been carried on in partnership between the first, second and third defendants under the name SA & V Ruggiero upon three properties namely:
the home block (30 acres growing approximately 2900 almond trees)
the McGee road block (20 acres growing approximately 2500 almond trees - this block abuts the home block).
the Taylor Road block (about 25 acres growing nearly 3000 almond trees).
The last mentioned block was acquired in the name of the first, second and third defendants and the other two blocks were acquired in the name of only the first and second defendants.
Whilst an argument was put forward that the first defendant’s ploughing operation on the day of the accident was something extraneous to the business of the partnership I consider that the first defendant’s work on that day was ancillary to the business of the partnership and that he was acting within the scope of the business of the partnership when he was working the land and in then returning home on the tractor that night. Counsel for the second and third defendants sought to establish a narrow ambit for the partnership business and to confine that business strictly to "almond growing". However it seems to me that the relevant actions of the first defendant were ancillary to that enterprise. There must be an element of maintenance associated with the particular enterprise - both of the land and of the equipment. There was no written partnership agreement. In the absence of any evidence of any contrary stipulation (whether oral or in writing), maintenance of the land adjacent to the orchard seems to me to be an integral part of the operation. Weed control under the almond trees themselves was acknowledged to be an ongoing part of the business operation - and the partners’ tractor was used in this work. The Taylor Road block belongs to the members of the partnership and weed control of the vacant part of this land adjacent to the almond orchard was part of the routine undertaken either by the first defendant or by his son.
In cross-examination of the first defendant [T246] there is the following evidence:
"Q. On the night that accident occurred, or late afternoon, did you take the disc plough over the whole of the area that didn’t have almonds, or only a small portion.
A. Only a little small piece of land it was.
Q. Was that near where the almond trees were.
A. Yes.
Q. It’s necessary to keep weeds down between the almond trees.
A. Yes.
Q. And also on the outside of the end of the almond trees, isn’t it.
A. Yes.
Q. You were, in fact, using the disc cultivator that afternoon to plough an area where there were weeds on the outside of the almond trees.
A. Yes."
The inference which I draw from the evidence is that (as now relevant) the first defendant had been ploughing the block (owned by the three partners) with the authority of his partners and using for this purpose (and with their approval) the partnership fuel and tractor and that his journey home was in the ordinary course of the partnership business and was undertaken for the partnership with the authority of the three partners. The Partnership Act s10 reads as follows:
Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act."
The ordinary course of business of a partnership is a question of fact; a partner’s authority to act arises by mandate. Authority is the mandate which principals give to an agent to perform for them some act; the authority may be conferred expressly or by implication.
In Walker v European Electronics (1990) 23 NSWLR 1 at 11 Mahoney JA said:
"In considering whether the act of a person is done in the ordinary course of the business of a firm of which he is a member, it is, of course, necessary to determine what the business of the firm is. Sometimes the business of the firm is defined or described in the partnership agreement. In such a case, the court must decide, as a question of fact, whether the act in question can be and was done in the course of carrying it on. This may be decided by reference to specific evidence that an act of the kind in question is apt to be, or was, done in carrying on such a business. Or, in some cases, the court may be in a position to take notice of the fact that a business of the kind in question is apt to be carried on by doing acts of the relevant kind.
In other cases, where the business is not defined or described in the partnership agreement, it is necessary to decide, on the facts of the case, what the business is and what acts are apt to be done in carrying it on. The present case is of this latter kind. The parties practised together as accountants. The inference is that their business included the acceptance of appointment as receiver or receiver and manager and the doing of acts done to carry out such an appointment. This is the kind of thing which accountants of their kind are apt to do and it is what, in the present case, they habitually did."
(Emphasis added).
I find that the first defendant was driving the tractor at the time of the collision in the ordinary course of the partnership business and was acting with the authority (conferred by implication) of the second and third defendants who at least acquiesced in the activities of the first defendant. In my view the second and third defendants are vicariously liable for the negligence of the first defendant but subject to the operation of s116(3) of the Motor Vehicles Act in determining the party against whom judgment may be entered.
The Liability of the Nominal defendant
The nominal defendant has been sued in the alternative to the claim made against the first, second and third defendants. It is common ground between all parties that neither the tractor nor the first defendant himself carried any relevant insurance cover. For reasons set out below I consider that in the circumstances the tractor was exempt from registration and insurance by virtue of s102(1) and s12(1)(c) of the Motor Vehicles Act. (The tractor was owned by the first, second and third defendants and was being driven on a journey within about 2km from a farm occupied by them for the purpose of carrying a farm implement).
In these circumstances (having found the first defendant to have been negligent) it seems to me that the position of the nominal defendant may be resolved by the application of s104 and s116 of the Motor Vehicles Act (as in force in 1989). As now relevant the scheme of insurance contained in Pt4 of the Act (which includes the sections which I have mentioned) is described by Cox J in McIntyre v Nominal Defendant (1988-89) 50 SASR 518 at 524-530 and contains "a clearly discernible legislative policy in the Act of 1959 of universal insurance, or to put it perhaps more accurately, of universal availability to a successful plaintiff of someone, insurer or nominal defendant, who would ensure that any judgment the plaintiff might recover for injuries received in a road accident would in the end, directly or indirectly be satisfied...." (see at 526).
Part IV deals with Third Party Insurance; s104 deals with the requirements if a policy of insurance is to comply with that part and reads as follows:
"104. In order to comply with this Part a policy of insurance must insure the owner of the motor vehicle to which the policy relates, and any other person who at any time drives the vehicle, whether with or without the consent of the owner, in respect of all liability for negligence that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth."
That section should be read in the light of s105 which reads as follows:
"105. When an Act comes into operation which alters the insurance required to be given by a policy under this Part or the rights or liabilities of the insurer under any such policy, every policy of insurance providing insurance required by this Part and in force when that Act comes into operation, or at any time thereafter, shall be deemed to provide the insurance required by this Part, as altered by the said Act."
Paragraph 1 of the Fourth Schedule to the Act sets out the terms of a policy of insurance (for the purposes of the legislative scheme) and in so doing adopts the language of s104; s99a then provides a procedure for paying a premium for insurance (in terms of the schedule) at the time of applying for registration of the vehicle.
As now relevant, s116 provides
In this section "uninsured motor vehicle" means a motor vehicle in relation to which no policy of insurance as required by this Part is in force but does not include a motor vehicle in relation to which there is in force a policy of insurance-
(a) that complies with the law of some other State or Territory of the Commonwealth;
and
(b) under which the owner and driver of the motor vehicle are insured against liability that might be incurred by either or both of them in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the motor vehicle in this State.;
A person claiming damages in respect of death or bodily injury caused by negligence in the use of an uninsured motor vehicle on a road may bring an action for the recovery of those damages against the nominal defendant.
Where a person has brought an action against the nominal defendant under subsection (2) of this section-
(a) the claimant may recover against the nominal defendant the amount of the judgment which in the circumstances he could have recovered against the driver of the uninsured vehicle or a person liable for the negligence of that driver;
and
(b) no action for damages against the driver, or the person so liable, shall be commenced or proceeded with.
............
A sum properly paid by the nominal defendant to satisfy a claim made or judgment obtained against him under this section and his costs shall be recoverable by the nominal defendant from the driver of the motor vehicle or any person liable for the negligence of that driver:
Provided that it shall be a defence in an action under this subsection if the defendant satisfies the court that at the time of the accident-
(a) he was the owner of the motor vehicle or was driving the vehicle with the consent of the owner; and
(b) that he had reasonable grounds for believing and did believe that the vehicle was an insured motor vehicle.
................."
As a policy of insurance as described in s104 did not exist with respect to the Fiat tractor on 30 May 1989, it follows (upon the interpretation of s116(1) which I adopt) that the tractor was an "uninsured motor vehicle" because a policy as described in s104 was not in force at the relevant time. I am of the opinion that the words "as required by this Part" in s116(1) are descriptive of the type of policy there mentioned. It is this construction which Cox J was "probably prepared to" endorse although he did not find it necessary "to go that far" (see at 526).
I treat the question at issue therefore as being directed towards the construction of s116(1) when it describes "a motor vehicle in relation to which no policy of insurance as required by this part is in force". The phrase "as required by this part" effectively appears immediately following the noun "policy" and would appear to me to qualify it. In other words, upon my preferred construction, the phrase in question is an adjectival phrase qualifying or describing the type of insurance. (I will call this construction - "the adjectival construction".) The alternative construction (which I will call the "adverbial construction") is to interpret the phrase "as required by this part" as an adverbial phrase which qualifies the verb. It seems to me that if the adverbial construction had been intended then convention would require that the qualifying phrase be placed after the verb so as to read-
‘a motor vehicle in relation to which no policy of insurance is in force as required by this part’.
If the adjectival construction is adopted then the phrase "as required by this part" will be considered to mean "of the type specified in by this part" (and grammatically qualifying "policy of insurance"). If, however, the phrase is treated as adverbial then it will be construed to mean "in accordance with the legal obligations imposed by this part." (and grammatically qualifying "is in force").
Upon appeal to the Full Court in McIntyre (1990) 11 MVR 279 at 292-293 Olsson J identifies these two possible constructions as "the major cleavage" between the parties in the following passage:
"...the major cleavage between the parties was as to whether the phrase "as required by this Part" was intended to be merely adjectival, as descriptive of a policy of the nature of that outlined in the Fourth Schedule, or whether it was intended to connote a situation in which, by virtue of PtIV of the statute, there had been some obligation to take out a compulsory third party cover of the nature referred to.
There can be no doubt that the phraseology of the definition is such that it is reasonably capable of bearing more than one interpretation. It is therefore both permissible and important to bear well in mind the mischief to which this remedial provision was directed:....."
Apart from this recognition by Olsson J of two available approaches to the "vexed question" of interpretation of s116(1), the Full Court (White, Millhouse and Olsson JJ) does not further expressly discuss the construction of s116(1). Instead the Full Court concentrated upon the adverbial construction and the extent of the obligation imposed by s102 to insure farm tractors. White J uses language which by implication approves the adverbial construction. His Honour said (11 MVR 279 at 280) -
"Under the provisions of the Act, certain farm tractors are exempt from the necessity to register and pay third party insurance if driven within 40 km of the farm for certain specified purposes. If the exemption applied to Bruchowski’s tractor at the time of driving it could not be said that his tractor was "an uninsured motor vehicle". The appropriate defendant against whom to enter judgment would be Bruchowski. If the exemption did not apply, the tractor was an "uninsured motor vehicle" and judgment would be entered against the nominal defendant......
It was left to the nominal defendant to join Norwich. It is not necessary to consider the questions which could arise under that third party notice on this appeal as the question has not yet been dealt with at trial level."
At 281 White J having recited s116(1) and (2) says:
"The right to recover damages against the nominal defendant only arises where the vehicle is an "uninsured motor vehicle". Sub-section (1) defines such a vehicle. The only relevant part of the definition of "uninsured motor vehicle" is that contained in the first few lines above. What is meant by the words "no policy of insurance as required by this Part"? "This Part" is Pt IV of the Act, headed "Insurance". Section 102, which falls within Pt IV, provides:
A person shall not drive a motor vehicle on a road...unless a policy of insurance complying with this Part is in force in relation to that vehicle: Provided that this section shall not apply in respect of a tractor being driven in pursuance of the provisions of section 12(1) or 13 until the Governor by proclamation declares that this section shall so apply."
(Emphasis added.)
(No such proclamation has been made.)
It follows that the insurance requirements of Pt4 do not apply and that the tractor is not an "uninsured motor vehicle" if it is a tractor "being driven in pursuance of the provisions of section 12".
Although in McIntyre the construction of s116(1) was considered, the question at issue was eventually approached in a way which did not expressly require determination of the issue which I have identified as being before me. Cox J (whilst clearly favouring the adjectival construction) responded in his judgment to the argument of counsel advanced upon the premise that s12 was to be applied. The Full Court, in upholding His Honour’s reasoning, followed the same path as did Cox J with the result that I do not consider any clear ratio emerges upon the specific point with which I am now concerned.
In McIntyre whether the phrase in question be treated as adjectival or adverbial the same result would have been achieved in the particular factual situation upon either construction. In that case the tractor was not registered or insured and it was not driven in accordance with any exemption from the requirement to insure (and register). Therefore on any view of the matter (if Pt4 applies to exempt vehicles) the tractor was "uninsured" for the purposes of s116. (Cox J held that Pt4 did apply to exempt vehicles).
In McIntyre there was a third party claim by the defendant tractor driver against his public liability insurer; the exclusion clause of the policy (inter alia) applied to any vehicle "in respect of the use of which insurance is required by virtue of any legislation relating to motor vehicles......". A determination of this question therefore required a decision as to whether or not the driver had an obligation to insure. The construction of the Public liability policy raises a different question from that arising under s116(1) as to whether "a policy of insurance as required" by Pt4 is in force.
The Full Court’s treatment of McIntyre’s case appears to be a reflection of its examination of one part only of the decision of Cox J - who would have been "probably prepared" to embrace the adjectival construction if the need had arisen. As the majority of the Full Court (Olsson and Millhouse JJ) only reviewed the analysis made at first instance of s102 and s12 - I would be inclined to regard the principle of that case as not now standing in my path. I take some comfort from all judgments except that of White J and I treat the case as providing authority for the construction of s12. It is not surprising that in the case before me all counsel sought to rely upon McIntyre’s case to support their opposing contentions.
At the end of the day I have decided that where two interpretations are available (see per Olsson J at 293) I should have regard to the mischief to which this remedial legislation is directed. The legislative policy is clearly discernible - namely that there should be universal availability to a successful plaintiff of an assurance that a judgment for injuries received in a road accident would be satisfied. I therefore resolve the ambiguity by reference to the general policy. In my judgment the words "as required by this part" are adjectival. If Parliament had intended the phrase "as required by this part" to be adverbial these words as a matter of English grammar should have appropriately followed and qualified the words "is in force". This observation reinforces my conclusion. I therefore decide that the tractor was an "uninsured motor vehicle" at the time of the accident and that the nominal defendant is liable to have judgment entered pursuant to s116(2) of the Motor Vehicles Act. I will order that by virtue of the liability of the first, second and third defendants which I have found, the plaintiff is entitled to recover against the nominal defendant damages to be assessed in respect of that liability.
In construing s116(1) I have had regard to the way in which the subsection deals with circumstances where there "is in force a policy of insurance" of the type there described which complies with the law of another State or Territory. It seems to me that Parliament’s manner of dealing with interstate vehicles - premised upon the existence of a type of policy as there described - is consistent with the adjectival or descriptive approach which I have taken. For the purposes of the definition in s116(1) the relevant consideration is the existence or otherwise of a policy of a particular type rather than whether a policy of insurance ought to exist.
I have reached my conclusion as to the liability of the nominal defendant upon the basis that irrespective of whether or not the tractor was exempt from the registration and insurance, the fact of the matter is that it did not carry insurance of the type mentioned in s104.
An argument was advanced on behalf of the second and third defendants (and embraced by the plaintiff) that the tractor was not so exempt and therefore should have been insured; upon this argument the tractor should be treated as an "uninsured motor vehicle". Accordingly, (so the argument proceeds) the nominal defendant should be held liable by applying s102 and s12 - as did White J - and adopting the adverbial construction for s116(1). I will detail my conclusions with respect to that argument in order to facilitate the exercise by the parties of their rights consequential upon judgment if (contrary to my opinion) the phrase "as required by this Part" in s116(1) ought to be construed as adverbial.
Section 102(1) reads as follows:
"A person must not drive a motor vehicle on a road or on a wharf unless a policy of insurance complying with this Part is in force in relation to that vehicle; but this section does not apply in respect of a tractor being driven in pursuance of section 12(1) or 13 until the Governor by proclamation declares that this section so applies. No such proclamation may be made until the Governor is satisfied that the committee appointed under section 129 has fixed a uniform rate of premium for insurance in relation to farm tractors throughout the State."
(I note that a proclamation as mentioned in s102(1) had not been made at the
date of the accident).
Section 12(1) as now relevant reads as follows:
A tractor may be driven without registration on roads within 40 kilometres of a farm occupied by the owner of the tractor on journeys to or from that farm for all or any of the following purposes;
.......
(c) drawing farm implements or carrying farm implements by means of an attachment designed for that purpose;
......In this section "farm implement" means an implement or machine for ploughing....."
These provisions were reviewed in the McIntyre case and I apply that decision which on this point is binding upon me.
The owner of the tractor was the Ruggiero partnership and the three partners owned and occupied the Taylor Road property. It was argued for the Ruggieros as well as for the plaintiff (whose counsel was anxious to get a judgment against the nominal defendant) that the arrangements for sharefarming of the surplus land at Taylor Road displaced the occupancy of the three owners; I disagree. The agreement with the sharefarmer created no more than a licence coupled with an interest. Whilst every sharefarming agreement will turn on its own facts the principles discussed in Hindmarsh v Quinn (1913-14) 17 CLR 622 especially at 630-634 and Newland v Cooper (1940) SASR 40 at 44 provide a useful starting point. Bearing in mind the remarks of Cox J in McIntyre’s case at 528-529 (and referring to the article by the late Messrs Norman in 26 ALJ 354) I consider that the sharefarming arrangement now in question insufficiently impinges upon the enjoyment of the first, second and third defendants as owners in physical possession as to disqualify them from being classified as "occupiers" within s12(1) of the Motor Vehicles Act. I have sufficiently described the arrangements with the sharefarmer when dealing with the vicarious liability of the second and third defendants.
Mr Smith of counsel for the first, second and third defendants argued that Mr Salvatore Ruggiero was in effect "moonlighting" (as Mr Smith called it) when he was ploughing the weeds on the Taylor Road block. Mr Smith argued that the first defendant in pursuing a hobby of chicken farming was on "a frolic of his own" when he was working the land. He therefore argued that the ploughing was not part of the commercial operations of the almond growing enterprise and that relevantly the plough was not a "farm implement" within s12 of the Motor Vehicles Act and that the journey was likewise not linked with the farmer’s farm so as to bring it within the ambit of s12 as explained in McIntyre’s case. I reject this submission and confirm that in my view the ploughing was part of the farming operation for the purposes of s12 (as it was also part of the partnership operation).
In my view the plough which the first defendant was carrying on the tractor had such a nexus with the farming operations of the first, second and third defendants as to be characterised as a "farm implement" within the meaning of s12(5) of the Motor Vehicles Act. There is evidence of answers to interrogatories given by the first defendant. In his answers (which must of course be read in the light of the questions asked) Mr Salvatore Ruggiero stated that on the day of the accident:
"I had been working on the Taylor Road property on the almond orchard"
"I was going home from the almond orchard on Taylor Road."
"....I had finished work and was returning home."
"I had been using the tractor to plough the ground to kill weeds."
These answers are confirmed by the first defendant’s oral evidence. In working the fallow land (as I will call it) Mr Salvatore Ruggiero was working the orchard. It is not realistic to draw the distinction which Mr Smith seeks to identify. It was apparently the case that in terms of the partnership arrangements Mr Salvatore Ruggiero was to be entitled to appropriate to himself part of the harvest from the land to be applied towards his chicken farming hobby enterprise. However, I consider that killing weeds is properly to be regarded as maintenance work associated with the orchard and the partnership business and not something done in furtherance of the first defendant’s hobby.
The first defendant explained as a loose answer his admission in his answer to an interrogatory that he was working on the Taylor Road orchard. I do not doubt that the first defendant was ploughing the fallow land on the day in question and in so doing "working on the almond orchard" as his answer to the interrogatory effectively acknowledges.
I am satisfied that the first defendant was operating the tractor at the time of the accident in accordance with the exemption provided by s12(1)(c). Therefore, unlike McIntyre’s case, I am faced with the factual situation where if the relevant phrase in s116(1) is treated as adverbial then my decision will be different from that which would result if that phrase is treated as adjectival. If s116(1) contains an adverbial phrase then the first defendant was driving the tractor in circumstances where by virtue of the exemption he was not obliged to insure. There was no requirement for a policy of insurance to be in force and accordingly (upon the adverbial construction) the vehicle was not "an uninsured vehicle" within s116(1). Upon this analysis judgment should be entered against the first, second and third defendants - but I have rejected the adverbial construction. However I have made findings which will enable the parties to pursue their rights in support of the adverbial construction.
Conclusion
The nominal defendant raised a plea that the proceedings had been instituted too late by virtue of s36 of the Limitations of Actions Act. Upon the evidence, it is apparent that in terms of s45 of the Limitations of Actions Act the plaintiff is a person under disability who is entitled to the protection of that section. Mr Walsh QC very properly acknowledged that the plea could not succeed and I need not consider it further.
Upon the basis of s116(2) and (3) of the Motor Vehicles Act the action was properly brought against the nominal defendant and upon my findings no action ought to have been brought against the first, second and third defendants. However, the parties informed me that the procedure adopted was convenient. Further proceedings against the first, second and third defendants should now be stayed except to the extent necessary as to enable rights of appeal to be pursued.
I determine that the first defendant was negligent but that the damages recoverable by the plaintiff will be reduced by 25 per cent in accordance with s27a of the Wrongs Act.
There will be a declaratory order that the plaintiff is entitled to bring this action against the nominal defendant by reason of negligence in the use of an uninsured motor vehicle on 30 May 1989 and that the plaintiff is entitled to recover against the nominal defendant the amount of damages (yet to be assessed) in respect of the negligence of the first defendant for which I determine that the first, second and third defendants would have been responsible apart from the operation of s116 of the Motor Vehicles Act.
I will hear the parties upon questions of costs.
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