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Published online by Cambridge University Press: 16 January 2009
In what are generally known as ‘running-down’ cases, that is to say, actions of negligence by pedestrians against motorists who have caused them injuries, the pedestrian, like every other plaintiff, has to discharge the burden of showing that the accident was due to the negligence of the motorist. This burden is made heavier by the fact that in most cases the pedestrian will have been disabled at the time of the accident from observing accurately the exact circumstances of the case and from enlisting the support of eye-witnesses. This latter disadvantage is a very real one if one takes into consideration the extraordinary reluctance of the average citizen to come forward and testify voluntarily in legal proceedings. The appalling wastage of human life and the suffering caused by road accidents in recent years is reflected in the anxiety of legislators to devise regulations for the protection and safeguarding of all road-users, and pedestrians in particular. The time is apt, therefore, to consider once again the desirability of altering in this class of cases the common law burden of proof of negligence.
1 Prince Edward Island, s. 65 (1); Ontario, s. 42 (1); Quebec, s. 53 (2) (a), Motor Vehicle Act; and Alberta, s. 66; Manitoba, s. 58; Saskatchewan, s. 86, am. 1935, infra, p. 406; and Nova Scotia, s. 180.
2 S. 62.
3 V. C. Macdonald, xiii Can. Bar Rev. 550.
4 Winnipeg Electric Co. v. Geel [1932] A. C. 690Google Scholar.
5 [1932] A. C. 690, 694.
6 S. 62 (Manitoba), Motor Vehicle Act (text supra).
7 Per Lord Wright [1932] A. C. 696 et seq.; see also per Turgeon, J.A. in Stanley v. National Fruit Co. (1929) 24 Saskat. L. R. 141Google Scholar.
8 [1932] A. C. at p. 699.
9 Swadling v. Cooper [1931] A. C. 1Google Scholar.
10 [1934] S. C. R. 71, construing a similar provision in (P. E. I.) Motor Vehicle Act, s. 65 (1).
11 Hanrahan v. McSween (1935) 2 D. L. R. 670Google Scholar.
12 S. 66 (1), amended by 1935, c. 82.
13 S. 88 (1), enacted by 1934–5, c. 6.
14 S. 58 (1), amended by 1935, c. 20, s. 8.
15 Wing v. L. G. O. Co. [1909] 2 K. B. 652Google Scholar, and cases cited by Dr. Stallybrass in 3 C. L. J. 384.
16 It is interesting to consider in this connexion the legislative provisions as to aircraft contained in the Air Navigation Act, 1920. S. 9 of that Act provides inter alia that the owner of aircraft shall be absolutely liable for all actual damage done by it while in flight, whether to person or property, ‘without proof of negligence or intention or other cause of action, as though the same had been caused by his wilful act, neglect or default, except where the damage or loss was caused by or contributed to by the negligence of the person by whom the same was suffered…’ For the effects of this provision see McNair, Law of the Air, pp. 81–2.
17 3 H. & C. 596.
18 Unreported: cited at [1933] 2 K. B. at p. 457.
19 Id.
20 [1933] 2 K. B. 453.
21 [1933] 2 K. B. 461. These were cases of contributory negligence but they are equally relevant to the question of the defendant's negligence.
22 [1934] 1 K. B. 319, 322. This criticism can be over-emphasized, since legal presumptions are arrived at by the transition of a rule of relevancy into a rule of law: see Cockle, Cases and Statutes on Evidence, 5th ed. p. 25.
23 Per Slesser L.J., id. at p. 322.
24 For a further discussion see Terrell's Law of Running-down Cases, 2nd ed. pp. 7 et seq.
25 (1862) 31 L. J. C. P. 129; 11 C. B. (N.S.) 588.
25a 31 L. J. C. P. at p. 130.
26 Id. at p. 131.
27 (1881) 6 Q. B. D. 145.
28 Id. at p. 153.
29 [1924] 2 K. B. 75.
30 Supra.
31 Id. at p. 85.
32 Cited in Beven on Negligence, vol. i, p. 123.
33 [1909] 2 K. B. 652.
34 Per Vaughan Williams L.J. at p. 662.
35 P. 663.
36 Supra, p. 409.
37 As in Hinton v. Gilchrist, Times, March 8, 1930, where the defendant's motor car had mounted the pavement and killed the plaintiff's son. There was evidence that the car had skidded very badly some thirty-four yards away from the point of the accident and that after an erratic course it was only stopped by the shop doorway in which the plaintiff's son was standing. The county court judge decided that the evidence negatived all suggestion of negligence on the part of the defendant. His decision was upheld on appeal by the Divisional Court.
38 (1908) 72 J. P. 505; 25 T. L. R. 13.
39 (1908) 100 L. T. 115.
40 This is the view adopted by Mr. Edward Terrell, The Law of Running-down Cases, 2nd ed. p. 14, where all the cases are fully discussed.
41 46 T. L. R. 236.
42 Scrutton L.J. based his decision on the dictum of Willes J. in Hammack v. White, quoted supra, p. 409.
43 (1930) 99 L. J. K. B. 357.
44 99 L. J. K. B. at p. 358.
45 Id. at p. 359.
46 Cf. Ellor v. Selfridge, supra, p. 411.
47 Id. at p. 360.
48 (1930) 99 L. J. K. B. 358.
49 Id. at p. 355.
50 Wayde v. Carr (Lady) (1823) 2 Dow. & Ry. K. B. 255Google Scholar.
51 (1859) 5 C. B. (N.B.) 667.
52 It is difficult to see why the same considerations should not apply here as where the accident occurs on the footpath.
53 [1910] 4 B. W. C. C. 80 (C. A.).
54 Id. at p. 83, per Cozens-Hardy M.R.
55 [1923] 2 K. B. 832.
56 Locomotives on Highways Act, 1896.
57 [1938] 1 K. B. 156.
58 In a Canadian case it has been decided that where a city by-law prohibits pedestrians from crossing a street except at street intersections a motorist is not bound to keep that same constant look-out for pedestrians crossing between the street intersections that is required of him when pedestrians can lawfully cross in the middle of a block: Chester v. Kinnear (Alberta) (1927) 1 D. L. R. 47Google Scholar. Thus it is reasonable to assume that the onus on a plaintiff injured while crossing at an unauthorised place will be heavier even in cases where the regulation is as respects him permissive.
59 ‘Crossing’ means a crossing-place for foot-passengers indicated by a traffic sign prescribed for the purpose by regulations made by the Minister: Pedestrian Crossing Places (Traffic) Provisional Regulations, 1935, para. 2.
60 A fine not exceeding forty shillings is imposed on every person committing a breach of these regulations.
61 [1938] 1 K. B. 166, per Slesser, L.J.Google Scholar
62 ‘Public Wrong and Private Action’, E. R. Thayer, 27 Harv. Law Rev. 317.
63 Cf. Bailey v. Geddes, supra, and see also Lochgelly Iron and Steel Co. v. M'Mullan [1934] A. C. 1, ‘statutory negligence’Google Scholar.