Kohn v Sallman

High Court of Australia|1965-07-01|Before: Menzies JJ

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Kohn v Sallman [1965] HCA 59

This is an appeal from a decision of the Full Court of the Supreme Court of Victoria dismissing an appeal by a plaintiff in an action tried by a jury in which a verdict was returned for the defendant. The appellant seeks a new trial of the action on the ground of a significant misdirection by the trial judge. The misdirection of which complaint is made is said to arise out of a misconstruction placed by the trial judge and confirmed by the Full Court upon a traffic regulation made under the Road Traffic Act 1958 Vict..

The appellant was driving a motor car along a highway in Melbourne known as Alma Road and the respondent was driving a motor car in a street intersecting at right angles with Alma Road named Alexandra Street. Their two vehicles came into collision at a time when the vehicle driven by the respondent was considerably more than half-way across the intersection and the vehicle driven by the appellant was less than a quarter of the way across the intersection in its own direction. "Give Way" signs stood in Alexandra Street some distance southward of the southern property line of Alma Road. It may not be possible from the evidence to determine the precise distance between the traffic sign and that property line but it appears to have been of the order of fifteen feet at the least. Included in the acts of negligence on which the appellant relied was the alleged failure of the respondent to give way to the appellant's vehicle moving easterly in Alma Road.

In his charge to the jury the learned trial judge instructed them that if they came to the conclusion that the appellant's vehicle was crossing the eastern property line of Alexandra Street at the time that the respondent's vehicle was crossing the southern property line of Alma Road, the appellant's vehicle would have had the right of way and the respondent would have been obliged under the Road Traffic Regulations to give way; but if they were of opinion that the respondent's vehicle was either crossing that property line of Alma Road or had in fact wholly crossed it so as to have entered the intersection before the appellant's vehicle had actually reached the property line on the eastern side of Alexandra Street, the respondent's vehicle would have had the right of way.

In my opinion, if this direction of the learned trial judge was wrong there must be a new trial. It is true enough that his Honour left to the jury the broad question of negligence and the various breaches of duty or of failure to take care which were suggested and discussed in the course of the trial: but the direction to which I have referred and the somewhat elaborate discussion of the Road Traffic Regulations from which it emerged occupied a dominant position in the summing up: and, in any case, an erroneous direction with respect to "right of way" would have had an incalculable and perhaps decisive effect on the mind of the jury.

The obligation of a driver faced with a "Give Way" sign is prescribed by Road Traffic Regulation 402 (7), which is to be found in s. 4 of the Regulations which section is headed "Obedience to Traffic Control Signals and Signs". Regulation 402 has the sub-heading "Obedience to Signs", and deals seriatim with the obligations arising from the exhibition of a number of traffic signs. Regulation 402 (7) is in the following terms: "Where a sign inscribed with the words "Give Way" is erected to face a driver entering an intersection from a highway such driver shall yield the right of way to all vehicles entering the intersection from any other highway, if necessary causing his vehicle to stop and remain stationary until he can proceed without interfering with the right of way of the aforesaid vehicles." Regulation 102 (14) defines an intersection as: "where two or more highways meet at a crossroad, the area enclosed by imaginary lines joining the junctions of the property lines of such highways." The intersection in the present case thus by definition included the area enclosed within the projection of the property lines of Alma Road and of Alexandra Street.

Regulation 601 (2) and (3) under the caption "Right of Way at Intersections" provides: "(2) A driver about to enter an intersection shall yield the right of way to any vehicle which has entered such intersection from a carriageway other than that on which he is proceeding. (3) Except as provided for in Regulation 402 (7), when two vehicles each on separate carriageways are approaching an intersection in such a manner or at such speeds that if they continued there would be a reasonable prospect they would collide the driver who has the other vehicle on his right shall yield the right of way."

It would appear that the respondent according to his evidence did not see the "Give Way" sign; if, in the result, he observed its requirements, this was accidental: but his failure to see it would not be decisive. The view taken by the learned trial judge and by the Full Court was that upon the grammatical meaning of the expression "entering from" in reg. 402 (7) the obligation placed on the driver by the "Give Way" sign was that he first came under an obligation to yield the right of way when he began to cross the projection of the southern property line of Alma Road and that even then his obligation under the sub-regulation was no more than to yield the right of way to vehicles which had at that time crossed the projection of a property line of Alexandra Street. It was said that the intersection was not "entered" till one of its boundaries had been crossed and the expression "entering from" was descriptive of the driver upon whom the obligation to give way was placed, of the vehicles to whom he should give way and also fixed the point of time at which the obligation attached. This construction was assisted in the view of the learned trial judge and of the Full Court by a comparison between the words used in reg. 402 (7) with the words used in other parts of reg. 402 and in reg. 601. Attention was called to the contrast between "entering from" and other expressions in those regulations, "an approaching driver", "enter and pass", "entered", and "about to enter", in relation to an intersection. Also, the words "from the highway" emphasized the passage of the boundary of the intersection.

So construing the regulation, the trial judge instructed the jury that, unless the two vehicles were simultaneously crossing the projections of the respective property lines, the appellant was bound to yield the right of way to the respondent. In my opinion, his Honour misdirected the jury in this respect.

No doubt the word "enter" in relation to such a defined area, as an intersection is for the purposes of the Road Traffic Regulations, does connote the passage of the boundary of the area. If the words "driver entering an intersection from a highway" are read in isolation, they may very well describe the driver of a vehicle which has invaded the intersection by crossing its boundary. If then the same sense is given to the word "entering" in the later part of the sub-regulations, the literal construction adopted by the Supreme Court will be achieved.

But the words of the sub-regulation must be read as an entirety and in the context of the subject matter of the regulations as a whole. They are directed to road safety and constitute an endeavour to formulate practical rules for the day-to-day use of the motorist. Doubtless, this purpose places a particular obligation on the draftsman to be careful in the choice of language: but its evident existence does not warrant the court in legislating by giving a sense to the language actually used which, allowing for the context, it truly cannot bear.

However, to my mind, there are a number of indications that the words of the sub-regulation are not intended to bear the narrow literal meaning which has been placed upon them; and when examined they fairly bear a meaning which would make the learned judge's charge to the jury erroneous.

In the first place, the source of the obligation to give way is not "the entering of the intersection". It is the existence of a sign which answers the description of a sign "erected to face the driver entering ".

The Regulations allow a highway authority, with the written consent of the Traffic Commissioner to erect a "Give Way" sign, which is included in the major traffic control items: see reg. 301 (a); 102 (17). By reg. 311 a sign of the description mentioned in the Regulations which is in existence on a highway is to take effect and operate as a sign established under the authority of the Regulations. There is no prescription in the Regulations as to the position relative to the intersection, in which the give way sign is to be erected. Thus wherever the sign is placed it is effective and there is nothing to require it to be within the boundaries of the intersection. Practical considerations strongly suggest that it is likely to be erected so that it faces a driver well before he crosses the defined boundary of the intersection. It is to affect the right of way of other vehicles, which presumably will not be in sight of the driver at the time the "Give Way" sign conveys its message. One should approach the construction of the sub-regulation therefore on the hypothesis that the sign to which the sub-regulation refers at least may and almost certainly will be erected in the street in which it is operative at a point considerably short of the actual boundary of the intersection.

The sign is described as "erected to face a driver entering an intersection". It seems to me that this description in the circumstances points to a looser use of the word "entering" than the charge to the jury or the judgment of the Full Court have adopted. The driver is regarded by the sub-regulation as "entering the intersection" at a point which is apparently farther from the intersection than the "Give Way" sign which is itself a considerable distance from the relevant boundary of the intersection. In imposing an obligation upon the driver he is referred to as "such driver", that is to say, not a driver who is in course of crossing the boundary of the intersection, but the driver who has been faced with a "Give Way" sign as he came towards the intersection.

Whilst on a literal reading much force is given to the words "from a highway" in the expression "entering an intersection from a highway", once it is seen that a literal meaning cannot be given to the expression "entering an intersection", these words can have no more than a comparative significance in relation to "any other highway" referred to in the later part of the sub-regulation. They should be read, in my opinion, as "from one highway". The wide definition of highway in reg. 102 (12) leaves no room for any other function for them.

The second indication, in my opinion, is the nature of the obligation imposed on the driver who has been faced with a "Give Way" sign. He is to yield the "right of way" and to do so with respect to all vehicles entering the intersection. The "right of way" is defined by reg. 102 (33) as "the privilege of immediate use of the carriageway". The word "immediate" has here, I think, a spatial rather than a temporal significance and connotes that the use of the carriageway is to be without interruption. What is to be accorded is the uninterrupted use of the carriageway - not merely, in my opinion, of the carriageway embraced in the intersection but of the crossing highway adjacent to that intersection. Of its very nature, the right of way is exercisable before the intersection is reached: its very possession has a bearing on the manner in which the intersection is approached.

The third indication that the literal construction is not intended is the direction to stop until the driver can proceed without interfering with the right of way of the other vehicles. I cannot help thinking that the imposition in express terms of this obligation is much more consonant with the right of way being possessed by vehicles which have not entered the intersection but which are approaching it, than with the right of way being possessed only by a vehicle which has already commenced the crossing of the intersection.

Lastly, there is the supercession of the right of way required by reg. 601 (3) to be yielded in general by the particular obligation imposed by sub-reg. 402 (7). It is, of course, quite possible to read the qualification of the general rule as to giving way to vehicles on the right as limited to the situation where each vehicle is in the course of crossing a boundary of the intersection. But it seems to me that the association of the two sub-regs. 601 (3) and 462 (7), rather points to the similarity of the situations with which each is dealing. The exception to the general rule effected by the opening words of sub-reg. 601 (3), in my opinion, is intended to effect a reversal of the general rule where there is a "Give Way" sign. It seems to me that the terms of sub-reg. 601 (3) themselves tend to support the construction of the words "a driver entering an intersection" in sub-reg. 402 (7) as the equivalent of "a driver approaching an intersection".

The respondent laid great stress on a comparison being made between the use of different expressions in the different sub-regulations and sought by a literal construction of each to harmonize the use of language throughout the relevant parts of the Regulations. Of course, one should, prima facie, assume that the same expression in the one set of regulations has the same meaning throughout and that different expressions will not mean the same thing. But, useful as this approach in general is, the fundamental question is the intention of the legislative authority disclosed in the words of the particular regulation having regard to the subject matter being dealt with and the context of the Regulations as a whole. In the present case, however, I do not think there is any necessarily consistent use of language throughout the relevant parts of the regulation as, for example, in my opinion, an examination of the language of reg. 402 (2), (3), and (4) along with (7) will show.

I have not troubled to discuss the impractical situations which could arise from a literal construction of the sub-regulation. Some were discussed in argument, and I think they are obvious. But of course it is for the legislating authority and not for the court to determine what precise obligations should be imposed upon the motorist in order to promote road safety. If the language of the sub-regulation is intractable, effect must be given to it, however much the court may see that the result thus produced could scarcely have been intended. No doubt it is a maxim to be followed in the interpretation of statutes that the ordinary grammatical construction is to be adopted; but when this leads to a manifest absurdity a construction not strictly grammatical is allowed if this will lead to a reasonable conclusion as the intention of the legislature: see per Field J. in Williams v. Evans [1] . "If the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical reading": see Reg. v. Tonbridge Overseers, per Brett M.R. [1] .

(1876) 1 Ex. D. 277, at p. 284. 2. (1884) 13 Q.B.D. 339, at p. 342.

But I find no need to found my construction of the sub-regulation upon the need to avoid the dangerous consequences which, in my opinion, may flow from a literal reading of it. The language of the sub-regulation applied to its subject matter clearly enough indicates the intention of the regulation making authority. For reasons which I have already expressed, the sub-regulation, in my opinion, uses the word "entering" in each place where it employs it in the sense of "approaching". Consequently, the literal construction upon which the charge of the learned judge was founded did not correctly express the disclosed intention of the legislating authority.

It follows that a direction that the appellant was bound to yield the right of way to the respondent unless the jury found that each vehicle was simultaneously crossing the respective boundaries of the intersection was, in my opinion, a misdirection. In the circumstances of the case, there must therefore be a new trial.

I have reached a conclusion similar to that of the Chief Justice as to the construction of the phrase "a driver entering an intersection" in reg. 402 (7). The difficulty in the case lies in interpreting the meaning of the word "entering" in the regulation. The word is used in two expressions, namely "a driver entering an intersection" and secondly "all vehicles entering the intersection". "Entering" is an ordinary word in common use and it usually connotes the act of going or coming into a place. I think that in the expression "all vehicles entering an intersection" the word "entering" is used in its primary meaning and the expression means vehicles passing over the boundary of the intersection into it. The context does not, I think, require that a special or particular meaning be placed upon the word "entering" as it is used in that expression. The second expression "a driver entering an intersection from a highway" is preceded by words which, in my view, give a colour to the meaning of the word "entering". I think that those words require that a particular or special meaning should be placed on the word "entering" in that phrase and in my opinion it bears the meaning "approaching proximately to an intersection".

The importance of giving to the jury a correct direction on reg. 402 (7) is explained by the Chief Justice.

The conclusion to which I have come is that the trial judge and the Victorian Full Court have placed upon reg. 402 (7) its true interpretation.

This seems to me to become reasonably clear if regs. 601 (2), 601 (3) and 402 (7) are read together and in that order, the last-mentioned being placed last because reg. 601 (3) is expressed to be subject to it. The result of reading the three sub-regulations in this way may be expressed, I think, by saying, first, that there is an absolute rule that a driver about to enter an intersection shall yield the right of way to a vehicle which is already in the intersection, having entered it from another carriageway; secondly, that there is a qualified rule that where two vehicles are approaching an intersection on separate carriageways the vehicle on the left shall yield the right of way; and, thirdly, that the qualification to this is that a driver entering an intersection with a "Give Way" sign facing him shall yield the right of way to any vehicle simultaneously entering the intersection from another highway, even if it be on his left.

The intention of reg. 402 (7) can hardly be to require a driver faced by a "Give Way" sign to yield the right of way to a vehicle which enters the intersection from another carriageway before he himself enters it, for that vehicle has the right of way in any case, by virtue of reg. 601 (2). Neither can the intention be to require the driver, if he himself enters the intersection before a vehicle enters it from another carriageway, to forego the right of way which reg. 601 (2) obliges that other vehicle to yield to him. The only case to which reg. 402 (7) can serve a perceivable purpose, it seems to me, is that in which neither the driver who is faced by the sign nor the vehicle coming from the other highway has gained the right of way in the intersection by entering it before the other, but the driver whom the sign has commanded to give way finds himself entering the intersection at the same time as a vehicle is entering it from another highway on his left. Unless this be correct it is not easy to explain why reg. 402 (7) is treated as an exception to reg. 601 (3), but not to reg. 601 (2). I agree with my brother Menzies as to the way in which the jury should be directed in a case such as the present.

I would dismiss this appeal for the reasons given by Menzies J.

At the hearing before a jury of an action concerned with an intersection collision between a car driven by the female plaintiff in an easterly direction along Alma Road and a car driven by the defendant in a northerly direction along Alexandra Street - in which "Give Way" signs had been erected both to the north and south of Alma Road and facing away from it - it became necessary for the learned trial judge to direct the jury upon the effect of reg. 402 (7) and 601 (2) of the Road Traffic Regulations 1960 Vict.. These regulations are as follows: - "402 (7) Where a sign inscribed with the words "Give Way" is erected to face a driver entering an intersection from a highway such driver shall yield the right of way to all vehicles entering the intersection from any other highway, if necessary causing his vehicle to stop and remain stationary until he can proceed without interfering with the right of way of the aforesaid vehicles." "601 (2) A driver about to enter an intersection shall yield the right of way to any vehicle which has entered such intersection from a carriageway other than that on which he is proceeding." I also set out reg. 601 (3), not because of any application which it had in the circumstances of this case, but to emphasize that the regulation-making authorities did not feel it necessary to introduce into reg. 601 (2) any reference to reg. 402 (7) such as appears in reg. 601 (3). The reason for this was, no doubt, that both regs. 402 (7) and 601 (2) can, without any accommodating provision, apply to the yielding of right of way at an intersection governed by a "Give Way" sign. "601 (3) Except as provided for in Regulation 402 (7), when two vehicles each on separate carriageways are approaching an intersection in such a manner or at such speeds that if they continued there would be a reasonable prospect they would collide the driver who has the other vehicle on his right shall yield the right of way."

According to my reading of regs. 402 (7) and 601 (2) in their context with the other regulations, the proper direction to the jury upon the question of the right of way as between the parties to a collision which occurred without either party stopping before entering the intersection would, after defining the intersection, simply have been as follows: "If you find that the defendant had crossed the property line of Alma Road and was already in the intersection of Alma Road and Alexandra Street before the plaintiff began to cross the building line of Alexandra Street, then the defendant had the right of way; otherwise the plaintiff had the right of way".

There is little to be gained by elaborating my reasons for construing the regulations as requiring such a direction but, because of the course of the argument, I would observe: -

(1) That my primary concern is with the sense of language in which the Regulations are expressed rather than with any notion I may entertain of what would be the common-sense way to deal with the particular traffic problems to which the Regulations are addressed.

(2) That in reg. 402 (7) the phrases "entering an intersection from a highway" and "entering the intersection from any other highway" each point to the passage of a vehicle from a highway into the intersection formed by the meeting of those highways. If it were the fact that a vehicle could only enter an intersection from one of the highways which meet to form it, this would not, in my opinion, detract from the force of the language used but, of course, a vehicle can enter an intersection from the corner gateway of a property at a corner of the intersection and not from a highway.

(3) That the injunction of reg. 402 (7) is not to yield right of way to all vehicles without restriction; it is to yield right of way to vehicles of a particular description, viz. those "entering the intersection from any other highway". Accordingly, it is only when there happens to be a vehicle of that description that the particular injunction is operative.

(4) That throughout the Regulations the words "approaching", "about to enter", "entering" and "having entered" an intersection are treated as describing separate and different acts: see, for instance, regs. 402, 601, 602 and 603.

(5) That the positioning of a "Give Way" sign in relation to a particular intersection may affect the application of reg. 402 (7) in the particular case but can have no bearing upon its construction. The injunction in the regulation is addressed to "such driver" - that is, a driver entering an intersection from a highway who is faced with a "Give Way" sign. I assume the application of reg. 402 (7) in this case.

(6) That reg. 601 (2) is a positive and unqualified injunction that a vehicle about to enter any intersection must yield right of way to a vehicle already in the intersection.

(7) That reg. 402 (7) is not the whole law relating to the right of way to be yielded at an intersection governed by a "Give Way" sign; in particular, reg. 601 (2) applies at such an intersection if, when one vehicle has entered the intersection, the other is about to do so.

I would merely add, if it be important, that the construction I have adopted produces an easily-apprehended and sensible code of conduct for drivers at "Give Way" intersections.

The learned trial judge, as I think unnecessarily, discussed the terms of the Regulations and their meaning with the jury and did so in considerable detail with resulting complexity but, upon the whole, I am disposed to think that what he said did amount to what I have stated as the correct direction about the respective obligations of the parties to yield right of way in the circumstances.

The only other objection to the charge was that the learned trial judge should not have described as conjecture the contention of counsel for the plaintiffs - not supported by any evidence - that in any event the defendant had, by slowing down, misled the female plaintiff into thinking that he was giving way to her. I agree with the Full Court that there is nothing in this objection.

Accordingly, I think the Full Court was right in refusing to order a new trial of the action. I would dismiss this appeal.

At a glance

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Judgment (44 paragraphs)

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