The Gazette 1967/71

CASES OF THE MONTH

approximately ten feet long and about sixty per cent, of it could be examined without dismantl ing the lorry. The remaining forty per cent, in which the corosion and fracture had occured could not be examined without removing the pipe. Evidence was given that it was the standard practice as regards such vehicles to rely upon a visual examination of that part of the pipe which could be seen and that the pipe would not be removed to examine the remainder unless the visible portion showed signs of deterioration. It was held in the first instance that there had been no negligence. On appeal the Court of Appeal indicated that the onus on the defendant in these cases is to establish that the sole cause of the accident was a latent defect and that the accident had occured despite their proper maintenance of the lorry. A defendant is not absolved simply because he has followed the common practice but it was not possible to say that the decision in the first instance was wrong. Appeal dismissed. [Henderson v. Henry E. Jenkins & Sons and another 1969, 2 WLR 147]. Solicitor, Negligence In 1960 the plaintiffs took a ten year lease on premises and subsequently entered into another lease for more accommodation at the same ad dress for ten years, and they carried on their business as architects and surveyors at that ad dress. In 1965 there was a recession in building and in order to reduce overheads they instructed estate agents to find under-lessees for the addi tional accommodation. Lessees were found but the landlords refused to grant a licence for the "change of use". After the commencement of the present proceedings the Landlord permitted the Plaintiffs to sublet premises to a public relations firm. The Leases contained a clause whereby the Lessees undertook "not to use the demised pre mises otherwise than as offices in connection with the lessees business of architects and surveyors or as offices and showrooms in connection with any other business for which the permission in writing of the lessor and the superior lessor had first been obtained, such permission by the lessor not to be unreasonably withheld". Another clause provided that the lessees would not "part with possession parmanently or tem porarily of the demised premises or any part thereof without first obtaining the written consent of the lessors". The first clause contained a trap in that the 114

Road Traffic Negligence The defendants were approaching each other on an unlit wet shiny road. The first defendant was dazzled by the second defendant's headlights and failed to see the plaintiff who was standing on the roadway with a bicycle. The first defendant alleged that the second defendant had switched his lights on to full beam and this was denied. The Judge found that the second defendant had switched his headlights onto main beam : that as a result the first defendant had been dazzled. He apportioned liability two-thirds to the second de fendant and one-third to the first defendant. On appeal the second defendant contended that a motorist becoming aware of an undefined object on the road has a duty to switch on the main beam of his headlights even if this should in convenience an oncoming driver. It was held that a driver would not be negligent in switching on his lights to full beam in such circumstances but that it was his duty to show some reason : no reason had been known in this case. Appeal dis missed. [Saville v. Bache & anor. 113 S.J. 228]. Road Traffic Negligence The Plaintiff was crossing the road near to a pedestrian crossing and weaved his way through lines of traffic to the centre of the roadway. A motor scooter approaching over the white line in the centre of the roadway struck him. It was held in the first instance that the defendant, the motor scooter driver, was solely to blame for the acci dent. On appeal it was held that the defendant was not negligent in not using the pedestrian crossing. However in not electing to use the crossing he took on himself a higher standard of care and was negligent in leaving himself maroo ned in the centre of the road at the mercy of oncoming traffic instead of crossing where there was a central refuge. As he had placed himself in an unnecessarily hazardous position he was

25% responsible for the accident. [Snow v. Giddins, 113 S.J. 229]. Road Traffic, Negligence

A heavy lorry descending a hill intended to stop behind a parked post-office van to enable an on coming vehicle to pass but as a result of a brake failure it crashed into the rear of the van and ran over and killed the postman. The brake failure was found to be due to a fracture in the brake fluid pipe which had coroded. The pipe was