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1 171 CHAPTER VI ROLE OF DRIVER AND OWNR The owner and the driver of a motor vehicle have to play a very responsible role to avoid accidents as well as to reduce the sufferings if accidents do occur. It has been observed that in most of the cases of accidents on our Indian roads, the main cause of the accident is the driver's negligence. Many of the road accidents, serious or otherwise can be avoided, if the driver of the vehicles obey the rules of the road. If an accident occurs, a driver should not flee away from the scene of occurrence. A driver should take all reasonable steps to secure medical attention for the injured person and the victim has to be conveyed to the nearest hospital unless the victim or his guardian desires otherwisel. A driver is required to give on demand by a police officer any information in inaction withe the vehicle and the accidents. If no police officer is present, he has to report the circumstances of the occurrence, including the circumstances, if any for not taking reasonable steps to secure medical attention as required under clause (a) at the nearest police station as soon as possible, and in any case with in twenty four hours of the occurrencez. Along with the driver, the 1 Sectin 134 (a) of the Motor Vehicles Act, Section 134 (b) of the Act, Besides the driver/owner should give the details in writing to the insurer with regard to the (1) Insurance policy number and period of its validity (2) date, time and place of accident (3) particulars of the person injured or killed in the accident (4) name of the driver and the Particulars of his driving licence. Section 134 (C) as amended by the Act 54 of 1994.

2 172 owner of a motor vehicle has also a corresponding duty to provide detailed information by the police officer authorised by the state government regarding the name and address of, and the license held by the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him3. Duties of the Driver: Every driveré is duty bound to strictly adhere to the rules of traffic, obey the indications of the signals and (i) Always drive on the left side of the road. (ii) He must not drive at a very fast speed. (iii) He must sound the horn before taking the vehicles ahead; (iv) He should only overtake from the right hand side of the vehicles ahead; (v) He must not cross the road while the signal is red vi) He must check up the mechanical defects, if any before bringing the vehicles on the road (vii) He must not drive if he is under the influence of liquor. (viii) He must keep driving licence and all the papers including Insurance policy, Road Tax Token etc. with him. (ix) He should take extra ordinary care and precaution when he sees children on the road. (x) A driver of a heavy vehicle has more responsibility to take special care than a pedestrian, cyclist, or a scooterist. 3 Section 133 of the Motor Vehicles Act, Driver includes in relation to amotor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle (9) of Motor Vehicles Acts, 1988.

3 (xi) When the fog is there in the morning he should keep the light on take extra care and precaution while driving. (xii) He must use the dippers while driving during the night time. (xiii) He must not blow horns while passing by the side of educational institution and the hospitals. (xiv) While approaching Zebra crossings he should always have the 173 indication and readiness to stop or slowdown inorder to give way to the pedestrian. Besides this, there are some statutory duties, traffic rules5 and precaution which every road user should take, especially the drivers of the buses, trucks or heavy vehicles have to take extra care for safe driving on the roads, so that no innocent person on the road is injured, maimed or killed. As observed in Chisholm V. London Transport Board? every driver of an Automobile/motor car owed a duty towards the public and had to keep a look out on the road, particularly while approaching a pedestrian crossing where he would normally expect a pedestrian to cross the road. In India the pedestrian crossings are rarely used. Public take an unusual privilege to cross at any points they want which imposes an extra care on the drivers to have a more care on the pedestrians. lord Denning7 said when a man steps in to the road he owed a duty to himself 5 Rules of the Road Regulations, 1989 (SO 439 (9E) dated June 12, Q1939] 1 KB Davis v Swam_MogtogrgCo. Ltd. Q1949) All ER 520 at 631.

4 174 to the road to take care of his own safety but he does not owe to a motorist who is going on an excessive speed any duty to avoid being run down. gflecessity for Driying Licence In the law relating to Motor Accidents compensation, a great importance is attached to the Driving Licence. First of all, it is an offence to drive a motor vehicle without holding an effective driving licence in any public places. An offender shall be punishable with imprisonment for a term which may extend to three months or with fine upto five hundred rupees or with bothg. Simultaneously an owner or the person in charge of a motor vehicle is also responsible and it amounts to an offence if he causes or permits his vehicle to be driven by a person without holding an effective driving licencelo. On committing the above offence, he shall be punishable - with 14 imprisonment for a term upto three months or with a fine up to one thousand rupeesll. A driver with his effective driving licence is required to exercise reasonable standards in the art of driving. To drive at excessive speedlz in a dangerous mannerl3, under the influence of drinks or drugs or when 8 Section 3 of the Motor Vehicles Act, Section 181 of the Act 10 Section S of the Motor Vehicles Act Section 180 of the Act 12 Section 112 and 183 of the Act 13 Section 184 of the Act 14 Section 185 of the Act

5 physically or mentally unfit to drive amount to various offences inviting imprisonment or fine. A person under the age of 18 years is legally prohibited from driving a motor vehiclels. Where as, after attaining the age of sixteen years a person can drive a motor vehicle with engine capacity not exceeding 50 cc onlyl6. Similarly a person 175 under the age of twenty years is also prohibited from driving a transport vehicle except vehicles belonging to the Central 17 Governments. There are two types of driving licences - Learnerfs_Licenceg and Permanent licences. In the case of Learner's licence the rule18 provides that a learner should be accompanied by an instructor holding an effective licence to drive the vehicle and such instructor has to sit in such a position to control or stop the vehicle and in the front and rear of the vehicle L board has to be affixed. L in red or a white background. A holder of learner's licence shall not carry any other person on the motor cycle other than an instructor who holds an effective driving licence. Though there are statutory guidelines for issuing the above licences, the authority responsible for issuing licences are following a 15 Section 4 of the Act 16 Ibid 17 Ibid Q 18 Section 3 of the central Motor Vehicles Rules 1989, In New India Assurance Company V. LathafiJayarai, 1991 A.C.J. 298 and in National Insurance gcompany _Ltd.g V. A Babu 1990 A.C.J it has been undoubtedly cleared that for all practical ipurposes a person holding a learner's licence is a person duly licenced.

6 very lax system and it is generally felt that they give least regard to such guidelines. It has been considered as one of the main reasons for the explosive situation of the accidents. Majority of the drivers are 176 found inexperienced, ignorant and negligent. The recognised training institutes for the drivers train only about 8 to l0 percent of commercial motor vehicle driverslg. Private bus drivers are more rash and negligent and overtake one another with impunity to get more passengers, putting other road users at risk. Truck and other high accelerating and heavy vehicle drivers are no exception either. A very large number of commercial drivers have vision problems but invariably they are not aware of it and do not wear glasses. After the age of forty years eye sight problem generally start. Glare recovery time increase, night vision weakens and colour blindness occurs. Many of them drink heavily to energise themselves at the wheel for the long hauls across country. DI1"_i!%& / A study conducted by NATPAC20 reveals that drunken driving is another major contributory factor for motor accidents. As observed, nearly two third of the drunken driving was detected in private vehicles especially in respect of two wheelers. The two wheelers have influenced for a high percentage of drunken driving in the age group up to 35 years. One in every five two wheeler riders was found to be alcoholic. In the case of private cars, one in every ten drivers was found to be 19 (1992) V012 (4) _R08d Safe_Ey I)_ige's_t_, p Studymgepgrt on Drunken Driving flatinal Transportation Blanning and Research_CentrelpTrivandrumg(1990)

7 177 alcoholic. All other vehicles had a lesser percentage of drunken drivingzl. Drunken driving can be kept under control provided the authorities do detecting tests frequently. The awareness among the drivers that they could be caught alone is sufficient to bring down the percentage of drunken driving. Qriving Licence f Effects on liability aspects The necessity of driving licence is a major ingredient for fixing the liability on the insurance company. N0 doubt, the primary responsibility to compensate motor accidents victims lies on the owner and the driver of the offending vehicle. The availability of compulsory Motor Third party Insurance System facilitates the owners of the vehicles to get their liability indemnified by the insurance company. However, there is no any blanket liability cast up on the insurance companies. For the purpose of shifting the legal liability of the owner/insured to the insurance company there are specified conditions to be complied with by the driver and the owner of the vehicle which is covered against the third party risk. If the offending vehicle is driven by a person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification, no 21 Ibid.

8 liability can be saddled with the insurance company being a statutory defensezz prescribed. 178 As per the earlier motor policies ie., prior to the enforcement of the Motor Vehicles Act, If the driver of the offending vehicle had held a driving licence and at the same time if he is not disqualified in holding or obtaining a licence, the insurance company was prepared to indemnify the owner/insured against their legal liability23. After the enactment of the Motor Vehicles Act, 1988, the insurance company deleted the word held in their policies. with a view to honour only effective licence. Further, the condition with regard to driving license is incorporated in a conjunctive manner as "provided that the person driving holds an effective driving licence at the time of accident_and is not disqualified from holding or obtaining such a licence". Where as the statute provides that "a condition excluding driving by a named person or persons or by any persons who is not duly licenced, o _ by any person who has been disqualified for holding or obtaining a 22 Section 149 (2) (a) (ll) of the Motor Vehicles Act, 1988 see also, haw india Assurance Co._Ltd. V. Lakhi Ram Prabhu Dayal, 1988 A.C 443. Tara Singh V Mangal_ ingh_l978 A.C.J United_ India Fire & General Insurance Qo. Ltd, V. Ayisa1979 A.C 526. (Madras) In this case the Licence held by the driver had expired prior to the accident and renewed after the accident. Madas High Court held that the Insurance Company is liable to pay compensation and observed that the appellant had not chosen to take advantage of the provision of Section 96 (2) (b) (II) by not incorporating in the policy the condition to exclude the use of vehicle by all non licensees and the driver had not been disqualified from driving or holding a driving licence.

9 179 driving licence during the period of disqualification"24 which is disjunctively used. The very usage denotes that once he had held a driving licence and if he is not disqualified, it would be in order to indemnify the insured by the insurance company. The case law on this particular point is awaited. Qnus of Proof of Qriying Licence On analysing the decided cases of our Supreme Court and various High Courts, it is seen that the burden of proof in respect of driving licence cast up on the insurance company is very much heavy and it has become practically impossible also. In Suresh Mohan Chopra V. _ a hi 2 Prabhu Dayalgs where the driver had been produced as a witness by the insurance company, it was stated by him that he destroyed the driving licence after its expiry. The tribunal concluded that the insurance company failed to establish that the driver had no licence. On its appeal the High Court reversed the Tribunal's finding. But allowing the special leave petition Supreme Court confirmed the Tribunal's decision and held that since the driver was a witness of the Insurance Company the High Court committed an error of law in reversing the finding of the 24 Supra n.22 "Despite the relative antiquity of Insurance Law the high incidence of litigation and the ubiquity of conditions in the policy, it is remarkable that it is not definitely settled where the burden of proof lies in respect of the breach or fulfillment of such a condition, that is, where, as is usual there is no stipulation in the contract as to such location" Mr. Justice D.K. Derrington "conditions in policies of insurance onus of proof". (1985) Australia Law Jougnal, 554 In Australia, the leading case, Kodak Party Ltd. v. Retail Traders Mutual, Indemnity, Insurance MAssociationmplaced the onus on the insured (1942) 42 SR (NSW) A.C.J. 1

10 180 Tribunal, and it is the burden of the Insurance Company to prove that the driver had no driving licence. In Lalchand V. nt,26 the Madhyapradesh High Court took the view that even if there is a non compliance of direction to produce the driving licence by the driver, no adverse inference could be drawn against him. It is the burden of the insurance company to prove that the driver did not posses licence. In 1\1Q;1_Q_v_aV Kamat Vs. Alfredo Antonio Do Martin27 Supreme Court reiterated the burden imposed on the insurance company. There are legion number of cases28 where similar views have been held. In Newglndia Assurancew Co. Ltd. V Surinder Paulzg the High Court of Punjab held that if the driver failed to produce the driving licence the insurance company would not be liable. In Skandia Insurance Co. Ltd. v Kokilaben Chandravadan 30 where a truck driver left the truck with engine in motion after handing over control of the truck to the cleaner who was not duly licenced and the cleaner drove the truck and caused the accident. Insurance company contended that the accident occurred when an unlicenced person was at the wheel and the insurance company would be exonerated from liability. This defense was built on the exclusion clause. Supreme Court held that unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to Z A.C.J A.C.J gqnited_india Insurance co. V. Jameela Beevi 1991 A.C.J Qrissa Co-op. Ins. Society_V. G-Behera 1976 A.C.J A.C.J A.C.J. 411

11 181 indemnify the insured. The insured placed the vehicle in charge of a licenced driver, with express or implied mandate to drive himself, it cannot be said that the insured is guilty of any deliberate breach. Supreme Court also ruled out the defence built on the exclusion clause for three reason. (1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach. (2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver. (3) The exclusion clause has to be read down in order that it is not at war with the main purpose of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise. It is to submit that the interpretative technology based on the main purpose rule practically prohibits the insurance company from raising any valid pleas.

12 182 So long as the system of compensation based on fault continues vesting the burden on the Insurance company to prove the driving licence of the driver is unjustifiable. It shall be the burden primarily on the driver and then on the owner to prove that he was having a driving licence. In case of failure to produce the driving licence by the driver or owner adverse inference shall necessarily be taken: The judiciary can very well lay down this and any technical rules of evidence requires to be thus dispensed with. It is seen that many of the owners of the motor vehicles are unmindful to keep the details of the driver. It shall be the duty of every owners of the vehicle to keep a certified true copy of the driving licence when a driver is employed or utilised for using the vehicle in a public place. Owing to the facility of compulsory motor third party insurance, the owner and the driver seem to be less responsible even to comply with the legal formalities and to discharge their statutory duties. It is due to the main reason hat they have no any real monetary obligation towards the accident victim. If the owner and the driver are made responsible for making initial payment towards medical aid or treatment, the position would have been different and the poor victim would have got immediate medical attention also. It is suggested that section 134 (b) of the Motor Vehicles Act, 1988 may be suitably modified to impose financial responsibility on the driver and the owner towards medical aid or treatment. Similarly, the owner and the driver shall be asked to purchase a cash certificate for Rs.2000/- and Rs.1000/- compulsorily at the time of registration and obtaining driving licence respectively. This cash

13 183 certificate should be with the owner and the driver always along with the driver always along with the documents of the vehicle including driving licence. This is to ensure that a minimum sum is reserved to meet the expenses towards medical aid or treatment3l. Out of the total medical expenses, upto a maximum of Rs.3,000 shall be a non insurable item. Section 147 of the Motor Vehicles Act, 1988 shall therefore be suitably amended to exclude the insurance cover up to a maximum of Rs.3000/- arising out of the medical expenses. As provided, where medical or surgical treatment or examination is immediately required as a result of of bodily injury (including fatal) to a person caused by or arising out of the use of a motor vehicle on a road, and the treatment or examination so required is effected by a legally qualified medical practitioner, the person who was using the vehicle at the time of the accident, shall pay to the practitioner the prescribed amount on a cliam being made in accordance with the provisions of Section 156 of the Road Traffic Act. Drivers,Negligence} The proof of drivers negligence remains the lynch pin to recover fault compensation. If the driver is found negligent, the owner is held vicariously liable. if the owner is held liable, the insurer will indemnify the liability of the owner who is the insured as per the insurance contract. It is therefore necessary to know what is negligence 31 Section 155 of the Road Traffic Act, 1972, which deals with the provision for emergency medical treatmentby the tortfeasor.

14 184 Negligence as a civil wrong, is the breach of legal duty to take care which results in damage, undesired by the defendant to plaintiff. There are three32 essential elements in negligence. First, a duty to take care, secondly, a breach of that duty, and thirdly damage to the plaintiff caused by the breach of that duty. The element of damage is customarily subdivided by American Lawyers into two further elements namely, that the damage must have been Caused in fact by the defendant's conduct, and secondly that the defendants conduct must have been the proximate cause of the palintiff's damage.33 The three essential elements viz. duty, breach and resulting damage constantly overlap or become merged with one another. As Lord Pearson has pointed out "It may be artificial and unhelful, to consider the question as to the existence of a duty of care in isolation from the elements of breach of duty and damageaa. Lord Denning35 emphasised that it is not every consequences of a wrongful act, which is the subject of compensation and that the law has to draw a line somewhere. In Lamb V. Qanden London Borough Council36 Lord Denning observed that sometimes it is done by limiting the range of the persons to whom duty is owed. Sometimes it is done by saying that there is a break in the chain of 32 P.S. Atiyah Accidents, Compensation and the Law P. 45 (1970 ed.) 33 Ibid See also Barn & D, The Law of Torts, 9th edn., 152 Nazir_Abba Suijat Ali V. Raja:Azanshah A.I.R., 1949 Nag 60 Charlesworth & Percy On Negligence P.l5. (l983 7th Edn.) 34 Dorsel Yacht Co. ltd. V. home_office [197Q)ApC Co' aniamgfinaneirag,fsoleada' SA Vs B.T.HQo poration, The Borag W.L.R. 274, C1981.) (1) QB 625, 636

15 185 causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide. It is a question of law whether or not in the particular circumstance of the case a duty of care exists37. Unless such a duty can be established an action in negligence must fail. The circumstance, under which a duty to take care arises, have been gradually evolved by the courts but it has not been easy to discern the general principles forming the basis of those circumstances. In Donoghue Vs. Stevenson38 Lord Atkin said "It is remarkable how difficult it is to find in the English authorities statements of general application defining the relation between parties that give rise to the duty. The courts are concerned with particular relations which come before them in actual litigation and it is sufficient to say whether the duty exists in those circumstances". The courts have evolved sign posts or guidelines for relevant consideration involving such notions as neighbour, control, foresight, proximity, opportunity for intermediate examination, deeds or words, the degree and kind of risk, to be guarded against and these are all available to be used as aids to the end result. 39 According to Charlesworth the word duty connotes the relationship between one party and another imposing on the one an 37 Letang V_ 90per.[l965] 1 Q.B., 232, 241 Lord Dennig 38 [1932] A.C., Charlesworth & Percy _On Negligence: R 150 (1983) 7th edn.

16 obligation for the benefit of the other to take reasonable care in all 186 circumstances. Negligence is not bound by existing precedents at all, thus the tort is open to further expansion. The categories of negligence are never closed. There are situation where at the sametime, one person may owe more than one duty of care namely a general duty, and a special or limited duty to different classes of people. Such seperate duties can co exist neither one displacing the other4o. Situation also exist where more than one person owe a duty to a plaintiff at the 4 sametime 1. As discussed, the fundamental basis for recovery of compensation is the proof of negligence on the part of the driver. The burden of this proof in the existing law lies on the claimant. In very many cases the claimant finds it difficult to discharge the same. Since the financial liability of the driver and owner is indemnified by the insurer, most often they do not come forward to co operate with the process of settlement. Sometimes the driver and the owner are not even bothered to extend medical assistance to the poor victims despite this being their statutory obligation. In order to lessen the burden of proof and to ensure recovery of 42 compensation to the claimants, it was suggested that in any event a 40 Chadwick v. g;1 _1_s}1 Railway Board (1967) 1 w.l.r Griffith V. Arch Engineering Q9. Newport Ltd. C1963) 3 All ER 2l7. 42 Report on" 5National Judicare, Equal Justice Social_ Justice" Ministry of Law, Justice, and Company affairs P. 49, 50 l977).

17 provision should be made in the Motor Vehicles Act 1939 that in an application for compensation under the Act, the burden of showing that there is no negligence on the part of the driver of the vehicle should be placed on the respondents. 187 It should be enough for the claimant to prove that bodily injury or death has been caused by an accident arising out of use of a motor vehicle and once this has been established, the burden should be up on respondents to prove that due care and caution has been taken by the driver of the Motor vehicle to avoid the accidents and that the accident was not occasioned by any negligence on his part. If this burden is cast on the respondents, it would go a long way towards relieving the poor and disadvantaged from the great handicap from which they suffer in the matter of collecting and producing the necessary evidence for substantiating negligence on the part of the driver of the Motor Vehicle. As further observed43 there is nothing unfair or unjust because section 110 of the Act constitute a piece of social welfare legislation intended to relieve the injured person or the dependent of the deceased from economic distress and suffering. it is therefore appropriate that there should be rebuttable presumption of negligence on the part of the driver44 of the Motor Vehicle and the onus of proving that there was no negligence should rest on the respondents. This is a very important and vital reforms of the law which needs to be carried out at the earliest in order to afford substantial relief to poor claimants. The reversal of Lawson Negligence in the Civil Law (1962) P. 45.

18 the burden of proof may be an very effective way of protecting the public and claimants against dangers introduced by industrialsation. 188 TrueMWNature and, effect o jfres,lpsa loquitur in the _trial,_0f Motor Accident Claims If id In the trial of Motor Accidents Claims, the application of the maxim Res Ipsa loquitur has become liberal, which helps the claimant to a certain extent difficulties of proof of negligence: It is also doubted whether a liberal application may amount, to abuse of judicial process. In its true legal interpretation as well as based on judicial authority the application of the maxim in a wide canvass so as to shift the legal burden to the defendant cannot be justified. onceptua1_analysis The jurisprudential status and functional utility of the maxim Res Ipsa Loquitur' have been the subject of much debate among the jurists. Although the maxim has been with us for over 125 years either English Courts45 or Indian courts have still not finally settled or atleast have not consciously settled the most crucial issue involved in its application. It results in the indiscriminate application of the maxim especially by trial court judges tilting the scales of justice unevenly. The relative position of this maxim in other countries like Australia, Canada, and South Africa seems to be very satisfactory and is almost settled. A corresponding line of thought has been recently generated in India and it is hoped that our Supreme Court would be able 45 Atégah "Res ipsa loquitur in England and Australia" (1972) 35

19 to authoritatively define the true nature and effect of Res ipsa 189 loquitor' as was done by the Privy Council very recently in Ng Qhun Pui vs. Lee Chuen Tal.46 Classic description of thegfiaxim The phrase res ipsa loquitur is Latin in origin having the semantical meaning that a thing speaks for itself. Its debut in the legal literature was in the year 1863 when it was casually referred to by Baron Pollock in the case gyrng v. B0adle47. A plaintiff was injured in this case by the fall of a barrel of flour rolled out of a window in the second floor owned by the defendant. In the absence of cogent evidence the court held that the accident itself afford prima facie evidence of negligence and it is preposterous to say the injured plaintiff must call witnesses from the defendant's warehouse to prove negligence. Since then the phrase came into vogue as a means to lighten the burden of proof cast on the plaintiff in certain circumstances where he cannot prove the exact cause of the accident. But this phrase as a doctrine was stated in its classic form by Erle C.J. in Scott v. London and St. jkatherine pock Companyfs that "there must be reasonable evidence of negligence but where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the 46 London Times, 25th May 1988 see also "The true nature and effect of res ipsa loquitur" 62 The Australian Law Journal (1863) 2 H & C 722, 159 E.R (1865) 3 H & C 596 (159 E.R. 655) (plaintiff injured by the fall of a bag of sugar from a crane)

20 management use, proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose for want 190 of care"49. It thus postulates the following requirements as common tests or denominator for an accident bespeak negligence in the defendant. First the accident must be one which ordinarily does not happen without negligence, Secondly, that the res must be under the exclusive control of the defendant and thirdly, there must be absence of reasonable explanation with regard to the exact cause of the accident. All that need be postulated, therefore is that the apparent cause of the accident is one for which the defendant's negligence would be responsible. Impact of the Qogtrine "no Liability Hithgut Fault In the 19th century a strong tendency was prevalent in all the countries to set up a doctrine of "No liability without fault"50. It was otherwise called reversed burden of proof imposed on the defendant to prove that there was no negligence on his part. This tendency became ever stronger as the predominant power in the State passed to the entrepreneur class and the march of progress seemed bound up with the use of machines and other instrumentalities whose usefulness was only matched by their capacity for doing harmsl. This doctrine was considered 49 gg at Lawson flegligence in the Civil haw (1962 ed.) See also Christie v. Griggis 170 ER 1088: Sir, James mansfield was trying to have a similar effect as in the doctrine liability without fault when he declared the burden lay up on the defendant to show that the coach was roadworthy and that the driver was a skillful driver. 51 Lg.

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