Lemuel E. Beckly v M. Evans (MAG APP 1 of 1963) [1963] SLSC 57 (16 September 1963)

Freetown Sept. 16, 1963 Betts l. LEMUEL E. BECKLEY M. EVANS (SUPREME COURT] v. [Mag.Ct. No. 1/63] PlaimitJ Defendant Tort-Agreement not to report accident to police--Ex turpi causa oritur non actio-Road Traffic Act (Cap. 132, Laws of Sierra Leone, 1960), s. 47 (1) (d). On January 27, 1963, plaintiff's car was damaged in an accident which w caused by defendant's negligence. After the accident, plaintiff agreed not : report the accident to the police in consideration for defendant's agreeing to pay for repairing plaintiff's car. This agreement was contrary to section · 47 of the Road Traffic Act, which provides: " (1) If in any case, owing to the presence of a motor vehicle on a road, an accident occurs whereby injury or damage is caused to any person or property . . . the driver of the vehicle shall- ... (d) in every case report the accident to a police station as soon as reasonably practicable and in any. case within 48 hours thereof." When defendant failed to pay for the repairs, plaintiff brought suit against him in a magistrate's court. The magistrate ruled that the action could not be maintained because of the illegality of the agreement, but stated a case for the opinion of the Supreme Court. Held, that plaintiff's action could not be maintained because of the illegality of the agreement not to report the accident to the police. Cases referred to: Taylor v. Crowiand Gas and Coke Co. (1854) 10 Ex. 293; 156 E.R. 455; Bailey v. Harris (1849) 12 Q.B. 905; 18 L.J.Q.B. 115; 116 E.R. 1109; Collins v. Blantern (1767) 2 Wils. 341, 347; 95 E.R. 847, 850. Samuel Hudson-Harding for the plaintiff. Shakib N. K. Basma for the defendant. BErrs J. This is an appeal by way of case stated by the learned triltl magistrate, court No. 2. There are two points submitted for the consideration of the Supreme Court, viz.: " 1. Where parties agree that, in consideration of both refraining frmn reporting an accident in flagrant breach of the provisions of section 47 of Cap. 132, one party will pay for repairing the other's car, is such an agreement not illegal and void ab initio? " 2. Can the injured party, or party considering himself the injured party, abandon his illegal agreement and propose to sue on his original cause of action?" It is conceded by counsel for the plaintiff/ appellant that point one is illegal and void as it contravenes section 47 (1) (d), which states: " . . . the driver of the vehicle shall in every case report the accident to a police station as soon as reasonably practicable and in any case within 48 hours thereof." 70 . at the true significance of this legislation it is necessary to consider s. c. r arr•ve l . n· 1 . o · .t is intended mere y to m 1ct a pena ty on the defaultmg party for 1963 whether fi1 t of the revenue or whether it is for the protection of the public. It -----he bene ~ . . t.. be admitted that an extremely w1de range of damage can anse to the BECKLEY tHtS to proper"' or animal of other users of the road from motor vehicles, v. oerson, ., .d " h. h b EvANs. ,' •ass these acc1 ents, some 01 w 1c may e fatal, are brought to the and_ un 1 f the police, members of the public will be in a position to make use of n"uce o f 1 . • ;,e normal thor?ugh ~res on Y at great h~zard to themselves and _their property. ~'1is legislation IS ob~tously_for the public good an_d, _therefore, If any contract ;·: .ten'ld into for Its avOidance, such contract 1s lllegal and void, and no ' 5 ~r~ w;ll be maintainable under it: Taylor v. Crowland Gas and Coke Co. ~~•JOu •- ~~gS4) 10 Ex. 293; 156 E.R. 455; Bailey v. Harris (1849) 12 Q.B. 905; 116 ER H09. · it was argued for the plaintiff/appellant that the engagement was severable. The first point dealt wi~h a contr~ct and the ~econd point with a tort, and that t'l.e doctrine of ex turp1 causa ontur non actiO does not extend to a tort. The ~ <e of Collins v. Blantern (1767) 2 Wils. 341, 347; 95 E.R. 847, 850 did not ~~it this principle. It considered this doctrine in relation to a contract but did not say it has no application to a tort. It may, however, well be that if the transactions are severable the doctrine will not apply. But are they in this case? The principle underlying this case is that there should be no report to the ooiice on a matter of public policy and thereby to avoid court action being taken-presumably because of the waste of time involved. Having secured the agreement to rule out court action by the police­ which is against public policy-it is difficult to see how the court can support an action which in effect says: " Although I have unlawfully avoided court action by the police I am going to institute an action, for my benefit, with refuence to the original accident." In such a case I agree with an aspect of the ratio decidendi in the case of Collins v. Blantern, already referred to, when it is said: " But we are all clearly that the whole of the transaction is to be considered as one entire .li!!ree:m<mt" From this it is also clear that the second point is covered by the "'''"''"""' ex turpi causa. I hold that the trial magistrate was right in his finding. application is dismissed with costs. 71 Betts J.