Two Recent Scottish Decisions, II
| Published date | 01 October 1970 |
| Date | 01 October 1970 |
| DOI | http://doi.org/10.1177/002201837003400408 |
| Subject Matter | Article |
Two
Recent Scottish Decisions, II
Mackay Bros. &Co. v. Gibb (1969,
S.L.T.
216; 33
].C.L.
116)
THE accused in this case were a firm of
car
hirers in Kirkcaldy.
On
the 12 April 1968 they hired acar.
Their
garage controller,
who
handed
over
the
car
to the hirer,
did
not
check the
depth
of
tread
on the tyres before doing so.
On
the
16 April, while the
car
was still on hire, it was found after
an
accident in Leven
that
one
of
its tyres
had
less
than
the
minimum
permitted
depth
of tread.
The
firm were charged
with
causing
and
permitting
the
hirer to use
the
car
with
the
faulty tyre in Leven
at
the time
of
the accident.
The
garage controller said in evidence
that
the
tyres
"appeared
to be in
good order
and
nowhere
near
the
danger
level"
when
the
car
was
handed
over.
When
asked, he
did
not
know
the
minimum
depth
of
tread
permitted
by law.
The
sheriff substitute (Kydd) found
that
the
tyre
had
been defective when
the
car
was hired out. He held
that
"the
duty
of
a
car
hirer
is to ensure
that
the tyres fitted to
the
vehicle will comply
with
the
law
throughout the period of hire,
un-
less
that
period is
of
exceptionally long
duration"
-the
period in
the
present case was four days.
He
held further
that
the
appellants
had
caused
the
illegal use,
but
preferred to reserve his opinion as to
whether they
had
"permitted"
it.
On
these facts one would have expected
that
if
the
firm were to
be convicted
at
all they would be convicted of causing the use. But,
as is the
normal
and
lax custom in such cases,
the
conviction was
minuted
as one
of
"causing
and
permitting",
and
the technical
propriety
of
the
minute was unchallenged.
It
seems also to have
been accepted
that
the
finding
that
the tyres were defective when
the
car
was hired
out
avoided
any
necessity to answer
the
question
whether aperson is guilty of permitting a
car
to be used with
defective tyres
on
the
rfith
of
the
month
when
the
car's tyres were in
good
order
when he hired it for a period of four days on
the
r
zth
of
the
same month. This view
may
not
take quite sufficient account
of
the
fact
that
the
offence was one
of
causing
and
permitting on
the
rfith
and
not
of
causing
and
permitting on
the
r
eth,
The
whole
argument
was directed to
what
happened
on
the
r
eth,
In
brief,
while the accused was charged
with
causing
and
permitting on
the
rfith,
and
the sheriff thought
that
he was convicting
him
of causing
280
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