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[1967] HCA 43
High Court of Australia
1967-07-01
Owen JJ
Original judgment source is linked above.
The applicant and the respondent were involved in a collision between their respective cars in an intersection of two streets in a suburb of Perth. The applicant's car was proceeding to enter the intersection when the respondent's car did so at a speed of some thirty to thirty-five miles per hour. The applicant, who was driving at twenty to twenty-five miles per hour as he approached the intersection, found no traffic seeking to enter the intersection from his right-hand side but, as the trial judge found, was rather late in looking to his left. Apparently he was in the intersection before he observed the respondent's car approaching "pretty fast". He then applied his brakes but was unable to bring his car to a standstill before it was two to three feet over the centre line of the street in which the respondent's car was being driven. The collision there took place.
The trial judge found that the accident was solely due to the respondent's negligence. On appeal, the Full Court in substance held that the trial judge had erred in allowing the traffic rule as to giving way at intersections to determine the question whether the applicant was guilty of negligence in entering the intersection without having sooner looked for traffic approaching on his left-hand side. It held that the applicant's responsibility for the occurrence should be assessed at 25% and reduced the trial judge's assessment of damages from $4074.70 to $3056.00.
The applicant seeks this Court's special leave to appeal upon the ground that the Full Court's formulation of the duty of a motorist entering an intersection was erroneous and that the proper definition of that duty is a matter of public importance. The last proposition may be granted but the applicant has not raised a sufficient doubt as to the correctness of the Full Court's judgment to warrant the grant of special leave. Indeed, in our opinion, the Full Court was clearly right.
The traffic rules upon which the applicant relies as absolving him from any want of care in the circumstances are to be found in the Regulations made pursuant to the Traffic Act, 1919-1965, of the State of Western Australia. Regulation 602 provides:
Subject to sub-regulations 8 and 9 of regulation 402, the driver of a vehicle that is approaching or has arrived at an intersection shall give way to a vehicle on his right hand that is approaching or has arrived at that intersection by or from another road. The provision of sub-regs. (8) and (9) of reg. 402 are not presently relevant. Regulation 601 provides that: Where any of these regulations require a driver to give way to a vehicle, the requirement takes effect when there is a reasonable possibility that, if he proceeded, his vehicle would collide or come into conflict with, or create any other dangerous situation with regard to, that person or vehicle; and, in that event, he is obliged to slow down to such an extent, or, as the circumstances may require, stop and remain stationary for such time, as may be necessary to allow the vehicle to continue on its course. Of these regulations, the Chief Justice of Western Australia said: The "right hand rule" is not the be all and end all in relation to questions of civil responsibility. If the rule were regarded as an absolute criterion some of the results would be ridiculous. The obligation is on every driver no matter from what quarter he enters or is about to enter an intersection, to condition his speed and the handling of his vehicle so as to be able to avoid collision with any other vehicle or vehicles entering. The degree of care will always depend on the circumstances [1] . 1. [1968] W.A.R. 53, at pp. 54, 55.
These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.
Therefore, it is, in our opinion, rightly said that the " "right hand rule" is not the be all and end all in relation to questions of civil responsibility". The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected. As we read the quoted remarks of the Chief Justice in this sense, which it seems to us, in the context of his whole judgment is the sense in which he intended them, we are of opinion that his statement was correct, and conformable to the decisions of this Court in South Australian Ambulance Transport Incorporated v. Wahlheim [2] , per Dixon J. and Lopresto v. Golding [3] . Further, having regard to the circumstances with which his Honour dealt, it was not inconsistent with expressions of opinion by the Supreme Court of Victoria in McAsey v. Lobban [1] , and in Huxtable v. Williamson [2] , and [3] , and by the Supreme Court of New South Wales in Trompp v. Liddle [4] , and in Brulhart v. Jarman [1] .
Accordingly, in our opinion, special leave to appeal should be refused. But such refusal, of course, does not involve any expression of opinion on our part as to the propriety or otherwise of the decision of the Full Court upon the facts of the case.
Sibley
Kais
High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Sibley v Kais [1967] HCA 43