THE OFF-SIDE RULE

Manawatu Standard, Volume XLIX, Issue 245, 14 September 1929, Page 4

THE OFF-SIDE RULE

REGULATION OF TRAFFIC. INTERPRETATION BY JUDGE. DUTIES OF DRIVERS. Observations of a most interesting nature on the application of the offside rule for traffic are made by Mr Justice Smith in the reserved judgment he has delivered on the claim made by Allan McKenzie Black against Elizabeth and John AlacFarlane, of Levin. Plaintiff was awarded £471 7s 6d damages for an injury received in a motor car collision which occurred at the intersection of tire Rongotca-sidc road with the FoxtonSandon main road.- along which defendants were proceeding.. “The plaintiff's driver justifies his concentration of view to the- right, and such speed as he was driving at on entering the intersection by reference to the off-side rule,” stated Bis Honour. “Plaintiff’s counsel also contends that defendants’ driver, although on a . main road,'.was guilty of a breach, of the off-side rule and, as such, clearly negligent. /The rule is No. 13 of Regulation 11, made under the Motor Vehicles Act, 1924, and is as follows:

■ • “Every driver of a motor vehicle . when approaching any intersection, the traffic at which is not for the time being controlled by a police officer or traffic inspector, and to which any other vehicle (esclusive of trams) is approaching, so that if both continued on' their course there would be a possibility of a collision, shall, if. such vehicle (being other than a tram) is approaching from his right, or if such vehicle (being a tram) is approaching from • any direction, - give way to such other vehicle and allow the same to pass before him and, if necessary for that purpose, stop his vehicle, and no driver of a motor-vehicle shall increase the speed of his vehicle when approaching aiiy intersection under the circumstances set out in this clause. A WIDE OPERATION. “The regulations of which this is one are made by Order-in-Council under statutory .' authority to make regulations regulating motor traffic on roads and streets and public places. They appear to apply at present to the whole of New Zealand, and regulations made by any local authority relating to motor-vehicles and motor vehicular traffic are subject - r o the regulations made under the Act. It is clear, -then, that the regulation in question has a wide operation, and applies to all roads and streets, whether main or side, and whether in city, town or country. The effect of its operation raises a more difficult question. It is a statutory traffic regulation. It is clear, I think, that a breach of it can give no right of action to the person aggrieved, by virtue merely of the breach. The effect of the regulation depends upon the intention oi the Statute. “In the case, Phillips v. Brittania Hygienic Laundry Co., the question is: ,‘AVas it intended io make the duty one., which was owed to the party aggrieved .as .well-as to the State, or was lit a public-duty only? That depends upon they construction of the Act arid .the circumstances in which it was made and to which it relates. One question to* be considered is: Does the Act contain reference to a remedy for a breach of it? Prima facie, if it does, that is the only remedy, but that is not conclusive. The intention as disclosed by its scope and wording must still be regarded, and it may be still that, though the Statute creates the duty and provides a penalty, the duty is, nevertheless, owed to “individuals.’ “In the present , case there is only one penalty provided for numerous acts of differing .weight and importance. The duty which is imposed is, I think, a public duty only. The regulation confers no right son a special class of the public. It is made in the interests of motorists and pedestrians alike. Furthermore, it is clear that, in civil actions based on negligence, the failure to observe the rule of the road may be justified by circumstances, although no such exemption is provided by the'terms of the regulation itself. I "think, then, that the regulation does not confer upon a party aggrieved a civil right, of action by virtue merely of a breach thereof. The remedy for the breach is a police remedy. viz., the penalty provided by the regulations. EVIDENCE OF NEGLIGENCE. “It does not follow, however,” proceeded His Honour, that the breach of a - traffic regulation may not be used as evidence of negligence in a civil action. The conditions upon which such a breach is evidence of contributory negligence were explained by Air justice ; Salmond in Cunning v. The King. They are: (1) The breach must be a wilful or negligent breach .and not the outcome of' inevitable mistake, accident, necessity or other justifying circumstances. (2) The breach must have been the cause or contributory to the cause of the accident. (3) The purpose of the Statute must have been to prevent the kind of accident which actually happened. “I respectfully rely upon this view, and add that,’ if these are the conditions of the use of a breach of a traffic regulation as evidence of contributory negligence, they are also the conditions of the use of such breach as,evidence of negligence. Plaintiff takes' the onus of proving the regulation and of the fulfilment of the conditions, and when he has done that he has established a prima facie case of negligence. In that sense individual rights and remedies are affected by the statutory regulation. But, notwithstanding the" establishment of a prima facie case, of negligence in sucli a way, it is still open to the defendant, to show any circumstances justifying a disregard of the regulation (Phillips v. Britannia Hygienic Laundry Co.) or that the breach of the regulation did, in fact, cause the collision. Defendant may also rely on any other defence open to him in an action for negligence, such as contributory negligence. “It is necessary now to consider the legal incidence of the off-side rule, wdiieh applies both to interesecting roads and roads which merely meet. Prior to the making of the regulation, tin law was plain that a driver emerging from a side road to join the main road traffic must either stop or proceed slowly so as to turn into the main road on his correct side, and keep a isharp look-out so as to be ready to stop or to turn to the fight or to the left in time to avoid-a collision. Similarly, it is clear that, before the making of the regulation, a driver crossing. a main road from a side road must ( have' been prepared to stop before crossing, so that an uninterrupted, right of passage might be left for any traffic on the main highway with which the • side road driver was likely to come into collision. This did .not relieve the ■main road driver from the' duty; to take care and observe Iris points of' danger.

“DISTINCTION NOT CLEAR.” “It is to be observed, however, that the distinction between a main, road and a side road is by no means one of automatic clarity. Where the distinction exists, it is clear that main road traffic must give way to side road traffic approaching from the right, and with which there is a possibility of a collision, and if necessary lor that purpose must stop. I see no escape from this construction. It appears to be clearly intended to lay down a definite rule, but difficulty arises in its application. Alain road traffic is emptied to proceed at a good speed. Bitumen and concrete highways are intended to carry last-moving traffic. let, where the intersection is reasonably visible to a driver on a main road, or where he should reasonably know of its existence, it is, I think, Ins duty to take steps to observe the rule. This may mean a reduction in speed and a sounding of the horn. Where the intersection is not so visible, or where the driver is reasonably unaware of its existence, he is not reasonably in a position to take steps to observe the rule. Then, whatever may be the driver’s position in a police court, he has not committed a wilful or negligent breach of the rule and a breach 01 it cannot be used as prima facie evidence Of negligence against him. “The test of a wilful or negligent breach of the rule must depend on the circumstances of each case. Where the view of an intersection is clear, and drivers know there is likely to be traffic, the driver approaching from a side road on the right of a drivei on the main road may be entitled to assume that the main road driver will give way. Below the circumstances or visibility and knowledge ol traffic, there are circumstances of infinite variety. It must, therefore, bo determined on the circumstances of each case whether the defendant was guilty of a wilful or negligent breach ol the off-side rule.-- If he was not so guilty, then a breach of that rule, if it did ■occur, cannot be relied upon as prima facie evidence of negligence, and the rights of the parties must _be determined solely upon the ordinary punciples of liability for negligence.” THE DRIVER’S DUTY. Applying those considerations in the present case, His Honour held that the defendants’ driver, knowing he was approaching an intersection, clearly tailed t>o slow up and was, he thought, guilty of a negligent, breach of the off-side rule. The second condition upon which a breach of the off-side rule depended as prima facie evidence was whether it was a cause or a contributing cause of the collision. He had lio doubt that it was so in this case. The third condition upon which a breach of the off-side rule as prima facie evidence of negligence depended was whether the purpose of ■ the statutory rule was to prevent the occurrence of the kind of collision that actually occurred. In his opinion, there could be no doubt about that as its very purpose. It purported to vary the obligations placed upon main road and side road drivers. It operated where there was a possibility of a collision. It seemed to him that the prevention of a collision by the adoption of a uniform traffic rule was the whole object of the regulation. The plaintiff had proved the traffic regulation and the fulfilment of the conditions. It followed that the breach of the regulation by the main road driver (for defendant) was prima facie evidence of negligence on his part. . .1 Plaintiff’s father wa s the side road driver. If he had slowed up sufficiently to allow traffic from his more dangerous right to pass him, lie could also have avoided traffic from his less dangerous left. His Honour did not think that the effect of compliance with his duty to his right (which would have resulted in this case in his ability to stop almost dead) could be properly separated from his duty to act reasonably when danger appeared to his left. Hu- failure in that respect appeared to constitute negligence contributing to the cause of the collision. Apart from that failure, however, he had not any right to assume that the off-side rule would necessarily be observed by a main road driver passing along that particular main highway through the country. That was not a reasonable asumption to make. Until the off-side rule was more emphatically established by custom and usage on country roads, he did not think that the same assumption could be made as a driver, on a city street. In His Honour’s opinion, plaintiff was guilty of negligence in failing to slow up sufficiently to avoid danger either to his right or to his left when debouching on to the dangerous intersection. He found that both drivers were guilty of negligence contributing to the collision.