South Australian Ambulance Transport Inc v Wahlheim - [1948] HCA 32 - HCA 1948 case summary — Zoe

CTHHCA

South Australian Ambulance Transport Inc v Wahlheim

[1948] HCA 32

High Court of Australia|1948-07-01|Before: McTiernan JJ, Mayo J

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Source facts

Court

High Court of Australia

Decision date

1948-07-01

Before

McTiernan JJ, Mayo J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

High Court of Australia Latham C.J. Rich, Dixon and McTiernan JJ. South Australian Ambulance Transport Inc v Wahlheim [1948] HCA 32

[2]

ORDER Appeal allowed with costs. Order of Supreme Court discharged and in lieu thereof judgment of Local Court restored. Plaintiff to pay costs of defendant in Supreme Court.

[3]

On a Sunday morning (7th July 1946) the respondent was driving a Dodge motor car, 1933 model, on the outskirts of Adelaide south along Burnside Road towards the intersection of that road with Godfrey Terrace, which crosses it at a right angle. An ambulance driven by one R. G. Markham, an employee of The South Australian Ambulance Transport Incorporated (the appellant company) was taking an urgent case to hospital. The ambulance was driving west along Godfrey Terrace East towards the intersection. Thus the ambulance was on the left of the motor car and the motor car was on the right of the ambulance. The car and the ambulance came into violent collision at the intersection. The plaintiff was injured and his car was severely damaged. He sued the appellant company in the Local Court. The learned magistrate found that the ambulance was driving too fast, so that the driver could not stop in time to avoid the plaintiff's car, and that the driver was accordingly guilty of negligence; that the plaintiff was also guilty of negligence in not looking to his left sooner than he did; that if he had looked sooner he would have been able to avoid a collision by accelerating at an earlier time than that at which he did in fact accelerate; that therefore, though the defendant's driver was negligent, it was the plaintiff's negligence which brought about the accident, and accordingly the plaintiff could not recover.

[5]

The customary (and necessary) estimates of speed and distance were made, and the customary (and necessary) calculations, reducing miles per hour to feet per second, were also made. The learned magistrate found that the driver of the ambulance put on his siren about one hundred yards before the intersection, and that it sounded continuously up to the moment of collision. But he also found that neither the plaintiff nor the other persons in the car with him heard the siren. The driver of the ambulance first looked to his left, where he had a clear view of the southern part of Burnside Road, and then to his right, where he saw the plaintiff's car. The magistrate found that the driver of the ambulance saw the car when the ambulance, travelling at the rate of thirty to thirty-five miles an hour, was about a chain away from the eastern edge of Burnside Road. The driver said that he was only twenty feet from the eastern kerb of Burnside Road when he saw the car - but he must have been wrong, as the skid mark hereinafter mentioned showed. The car was then (the magistrate found) about twenty feet north of the northern building line of Godfrey Terrace East. The driver of the ambulance immediately applied his brakes hard, but could not avoid the collision, which took place on the intersection about fourteen feet into Burnside Road. There was a straight skid mark made by the ambulance fifty-two feet long running almost to the point of impact. The plaintiff's car was struck on the rear door on the near side and was thrown thirty feet from the point of impact, as was shown by the relative positions of the vehicles after the collision. The ambulance must have been travelling at a high speed at the moment of the collision to knock the plaintiff's car thirty feet away and to turn it over and leave it with the bonnet facing north-west instead of south. Thirty-five miles per hour is fifty-two feet per second. The ambulance slowed down from that speed, but the time available from the moment when the driver of the ambulance saw the car to the moment of the collision could not have been more than about two seconds and was probably less, because the result of the impact of the ambulance on the car shows that the ambulance must have had a high speed at the moment of collision. The driver of the ambulance acted promptly and the brakes were in good order, but it was found that he was driving so fast that he had disabled himself from stopping at or before the intersection.

[14]

But is the obligation of the parties changed if the vehicle on the left is exempt from the duty to give way to vehicles on its right? In such a case the position is in my opinion accurately stated by Martin J. in Huxtable v. Williamson [1] where his Honour said with reference to Victorian regulations requiring a driver to give way to traffic on the right at certain intersections: - "The regulations do not purport to cover all the conduct of a prudent driver but if he observes them and acts in all other respects, other than looking to his left as he approaches an intersection, as a prudent driver should, he will not normally be guilty of negligence towards the driver of a vehicle approaching from his left should the two vehicles collide. This follows from the fact that he is entitled to proceed in the belief that if there is another vehicle on his left its driver will obey the law and give him the right of way, unless he has notice that he is not so doing or that some vehicle, such as a fire engine, ambulance or police patrol car, which is exempted from the particular law, is approaching. If, however, either by looking to his left or by hearing a warning from that quarter, he has reasonable notice that a driver on that side is probably about to disregard the regulation, by driving on without giving him the right of way, he then has to take whatever action is reasonable to avoid the consequences of the other's default and that may entail his permitting that other to have the right of way." If in the present case the plaintiff had had warning of the approach of the ambulance and had ignored it he would have been guilty of negligence, but the magistrate has found that the plaintiff did not hear the siren of the ambulance. There were various reasons which might explain this fact. The plaintiff was slightly deaf; the windows of the car on the left were closed; there was an intervening hedge; and the period of time during which the siren was sounding was very short. The magistrate found that there was no negligence on the part of the plaintiff in not having heard the siren, and in my opinion this conclusion should be accepted by this Court, as it was by Mayo J. When the driver ultimately saw the ambulance only ten or twelve feet away from him he could do nothing. In my opinion no negligence on the part of the plaintiff was established and for this reason the case should be remitted to the magistrate for assessment of damages.

[15]

But, even upon the magistrate's finding that the plaintiff was guilty of negligence in not looking to the left at an earlier stage, the evidence does not show, in my opinion, that if he had seen the ambulance sooner the exercise of due care on his part would have prevented the collision. The ambulance struck the car about seven or eight feet from the rear of the car. If the car had been another ten or twelve feet further on its course there would have been no accident. If the plaintiff had seen the ambulance at the moment when the driver of the ambulance saw the plaintiff's car, and had immediately accelerated and the car had instantaneously responded, he perhaps could have safely passed in front of the ambulance, though it would have been a near thing. The plaintiff was found by the learned magistrate guilty of contributory negligence because he did not look sooner at a time when he could have accelerated so as to avoid the accident. If, contrary to the opinion which I have expressed, the plaintiff was under a duty to look out to his left, the proper question to ask is not whether the plaintiff could, if he had looked sooner, have accelerated so as to avoid the accident. In my opinion the proper question to ask is what an alert and careful driver would have done in the circumstances. On the findings of the magistrate the plaintiff could have seen the ambulance when he was some twenty feet north of the northern boundary of Godfrey Terrace East. He did see it only when he was four feet south of that boundary. Thus, if he had immediately looked to his left after he saw that Godfrey Terrace West was clear of traffic, he would have had about twenty-four feet of travel in which to act in order to avoid a collision. At twenty miles per hour the speed per second is thirty feet, and at fifteen miles per hour twenty-two feet per second. Thus he had no more than about a second in which to make up his mind and act. The plaintiff might have accelerated and might have missed or been missed by the ambulance. He might have swerved and, again, might have been missed by the ambulance, or might have run into it, or might have turned over. Further, he might have tried to stop and might or might not have succeeded. Accordingly I am of opinion that, while the evidence shows that the plaintiff might have avoided the collision, notwithstanding the negligence of the defendant, it cannot safely be concluded that, if he had seen the ambulance sooner and had done the best that a prudent driver could have done, he would even probably have avoided being hit by the ambulance. Therefore, even if the plaintiff was guilty of contributory negligence, the defendant did not discharge the onus of proving that such negligence was the cause of his injury. In my opinion the appeal should be dismissed upon the grounds that the defendant was guilty of negligence which caused the injury of the plaintiff; that the plaintiff was not negligent; alternatively, that if he was negligent, Mayo J. rightly held that his negligence was not the cause of his injury.

[20]

This appeal concerns a street accident which took place on a quiet Sunday morning in July 1946 at the intersection of two streets or roads in an Adelaide suburb. Two vehicles collided, an ambulance and a sedan car, a 1933 Dodge. The present respondent, who is the plaintiff in the action, drove the sedan car. Riding in the car with him were his son, another young man, and an infant grandchild. The front of the ambulance struck the lefthand side of the sedan and turned it round and over. The sedan was struck at about the rear door. The plaintiff was hurt but apparently the other occupants of the car escaped injury. The ambulance was conveying a patient to hospital. It was an urgent case and the ambulance approached the intersection at some speed, with the siren sounding, as it has been found. The three grown occupants of the car say that they did not hear the siren and in this they have been believed. The apparent incompatibility of the two findings is explained upon the ground that all the windows of the sedan were shut except that by the driving seat, which of course was on the opposite side from the direction whence the sound came, and that moreover the hearing of the plaintiff who sat in the driver's seat was defective. Be that as it may, the plaintiff has been acquitted of contributory negligence in failing to hear the siren. The road upon which the plaintiff was driving his car is said to be four or five miles long and, while not a main highway, is regularly used by traffic travelling between distant points, whereas the cross street upon which the ambulance was driving is an ordinary suburban residential street and extends only about six hundred yards from the crossing in one direction and about half a mile in the other. The patient had been picked up at a house in this street about a quarter of a mile from the intersection. There is a steady but not very steep slope down to the intersection. The other road is level. The running surface of both roads is bitumen. The ambulance drove on the crown of the road, and as the driver approached the crossing he had a clear view on his left hand of the the other road over a vacant allotment. But on his right hand, whence the plaintiff's sedan was in fact approaching the intersection, his view was obstructed by some pittosporum trees which grew out over the footpath at the corner. When he did see the sedan he put his brakes on hard. The road showed braking marks for fifty-two feet back from the point where the ambulance came to a standstill, and that was little, if any, further than the point of impact. The ambulance was said to have gone four feet further than the point of impact. It may be assumed that at a standstill the front wheels were not more than six feet beyond it. It seems safe to infer that the driver of the ambulance saw the sedan when he was not less than seventy feet from the point of collision. That point has not been fixed with exactness by the witnesses, but the ambulance maintained a direct course while the sedan veered a little to its right, with the result that they met somewhat to the right of the centre of the road upon which the sedan was travelling. The continuation of the street upon which the ambulance was proceeding is not exactly opposite the same street on the other side. The fence lines or building lines of the respective parts of the street would, if produced, lie fifteen feet apart. The fence line of the part on the sedan's right, that is the continuation of the street, would be nearer to the sedan as it approached. That means that the plaintiff would draw level with the fence line of the continuation on his right fifteen feet before he drew level with the fence line of the street on his left, on which the ambulance was driving. As the South Australian rule is that vehicles give way to others crossing from the right, the plaintiff says he looked to his right first. There is a suburban hedge or fence at that corner, so that he could not see across the premises at the corner. He did not look to his left until the ambulance was nearly upon him. In the Local Court, where the action was tried, he said it was only ten or twelve feet away from him. He considered that the front of his sedan had at that instant crossed beyond the line of the edge of the bitumen of the intersection street on his left if that line had been produced or prolonged. He said that it was four feet over it. After a view had been had he was further questioned upon this point, and he firmly adhered to his opinion that his car had proceeded as far as this into the intersection before his glance to his left showed him the oncoming ambulance, then only ten or twelve feet away. It was agreed that the distance of this point or line from the fence alignment of the intersecting street, if produced, is fifteen feet. If the assumption be adopted that the ambulance was seventy feet from the point of collision when the sedan came into the ambulance driver's line or field of vision past the corner and the overhanging pittosporum, it would mean that there was at least forty feet of distance through which it was possible for the sedan to travel with the ambulance within the plaintiff's field of potential vision before the plaintiff became aware of its presence. It is true that if he were hugging the kerb perhaps the distance might be reduced. But he said that he was travelling about four and a half feet out from the kerb, and it is unlikely that it was less. It is of course not possible to estimate with exactness how far the plaintiff had proceeded when the ambulance driver saw him, but it is very probable that he was forty feet at least from the point of collision.

[26]

I cannot agree in the view that s. 131 (1) relieved the plaintiff of responsibility for exercising a degree of vigilance with reference to possible traffic emerging on his left. No doubt in determining whether a lack of vigilance in this respect amounts to negligence it is proper to take into account the effect of that section. For under its provisions a vehicle, unless it is a fire engine or the like or a police car or an ambulance, must as it comes to an intersection give way to a vehicle on its right hand. But it does not follow that a driver of what may be called the right-hand vehicle always behaves reasonably in assuming without looking that in view of the common behaviour of motorists in consequence of this provision he may safely drive over the intersection. In any given case that must depend upon the circumstances. Whether a particular act or omission is unreasonable and amounts to contributory negligence will doubtless often depend upon the rules, conventional or statutory, which other traffic may safely be expected to observe. What traffic uniformly does may be dictated by statute; but whether conduct arising from reliance on the expectation that all traffic will so behave is reasonable must depend less upon the state of the law than upon the practice which is in fact set up by the law. For laws may speak in vain. In the present case Mayo J. treated s. 131 (1) read with s. 156a as provisions the effect of which must be taken into account in considering the reasonableness of what the plaintiff did and omitted to do, but not as relieving the plaintiff altogether of the need of exercising vigilance as to what might happen on his left hand. I am not sure whether his Honour's judgment in Robinson v. Creaser [1] proceeds upon this view of the matter but if not I prefer his Honour's treatment of the question in the present case. If the decisions of the Supreme Court of Victoria in McAsey v. Lobban [2] and Huxtable v. Williamson [3] are understood as holding that upon the facts of those cases it was not incumbent upon the party charged with contributory negligence or negligence to look to his left because it was reasonable for him to expect that his passage would be left clear, that would be a view consistent with the opinion I have expressed. The finding of both courts that in the circumstances of the present case the plaintiff was wanting in proper vigilance in failing to see the ambulance earlier, though on his left, is not inconsistent with s. 131 (1), as qualified by s. 156a and it is one with which I think this Court ought not to interfere.