Bithell v Scholten

[1989] HCATrans 185

~

~ ;,l~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A39 of 1989

B e t w e e n -

RICHARD WILLIAM BITHELL

Applicant

and

INGRID MARIA SCHOLTEN

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J GAUDRON J

Bithell

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 3.48 PM

Copyright in the High Court of Australia

AlT 14/1 /ND 1 23/8/89

MRS. WALSH: If the Court pleases, I appear for the

applicant. (instructed by Stratford & Co)

MR T.R. ANDERSON, QC: If the Court pleases, I appear with

my learned friend, MR F.R. CONDON, for the

respondent. (instructed by Condon & Co)

MASON CJ:	Yes, Mr Walsh.
MR WALSH:	This is a short matter, if the Court pleases.

I hand up five copies of - - -

MASON CJ: Is that the principal ground in support of the

application or not?

MR WALSH:  No, it is not, Your Honour. I am instructed

to concede, Your Honours, that if this Court is

prepared to grant special leave to appeal then

we concede that it should be on terms as to costs

in relation to that appeal. That is obviously appropriate in our submission. I have annexed to the copy of my precise a copy of regulation 4.09

of the regulations under the ROAD TRAFFIC ACT.

If the Court pleases. In order to highlight

the error which we say, unfortunately, with respect,

the Full Court fell into in this case one only

needs to look at regulation 4.09. For example,

looking at regulation 4.09(4), it should be noted

that:

The prov1s1ons of subregulation (2) of this

regulation shall not apply to the following

classes of vehicles and circumstances:

(a) omnibuses;

(b) pedal cycles;

(c)	emergency vehicles;
(d)	any vehicle complying with the directions

of a member of the police force;

(e)	any vehicle the driver of which intends
to turn left .....
(f) any vehicle the driver of which wishes
to park -

and one which is leaving lawfully from a parked

position.

If one turns to page 6 of the decision of

Mr Justice Bollen as appears in the case book,

a starting point is this, and I admit that this

is in relation to the issue of contribution; at

the top of that page, page 6, he says:

But one can understand her thinking that -

A1Tl4/2/ND	2	23/8/89
Bithell

that is, the respondent -

as the top of no bus loomed above the

stationary vehicles, she could proceed.

With respect, we say that that is not to the point.

There could be many other vehicles that could be

travelling in that bus lane, as indicated in

regulation 4.09(4). And that highlights, in our

respectful submission, the error that was made.

Another example is that the learned trial

judge, we say, at first instance, was entitled
to come to the conclusion that he did on the facts,

the facts that he found. An important fact was

that there was only a set distance at which the

driver could first have seen a vehicle emerging.

He found that there was, in fact, in a sense, a

failure in terms of the burden of proof, in terms

of calling a witness who might have been able to

explain otherwise.

The Full Court, on the other hand, said that

there must have been some error that he made, either
in relation to the issue of speed or in relation

to the issue of look out or both. And yet we say,

on the finding of fact that His Honour made, which

he was entitled to make, there was no suggestion

that this driver, this applicant, could have seen

the vehicle before the time that at least his

passenger did. Thereafter there was no causative

negligence proven by the plaintiff.

It is a question, of course, at all times

of the burden of proof being upon the plaintiff
in each case. The learned trial judge found, for
the reasons stated, at first instance, that the
burden of proof had not been satisfied in the

circumstances.

The Full Court, in our respectful submission,

substituted its opinion, not in relation to facts

but its opinion for that of the learned trial judge,

we say in error because the learned trial judge

was perfectly entitled to reach the conclusion

that he did.

As far as the second issue is concerned, namely

that of regulation, we argue that there is a matter
of importance here because it is not a regulation

that relates to the issue of traffic safety but

one which relates to the issue of traffic priority.

And His Honour Justice Bollen seemed to place great emphasis on the fact that it was a regulation that

prevented this person, in these circumstances,
from being in that lane when he said at the foot

of page 5 of his decision:

A1T14/3/ND	3	23/8/89
Bithell

I think that the responsibility for

the collision of the respondent is far greater

than that of the appellant.	I repeat all
my remarks about his driving.	I think the

fact that he came along that lane in defiance

of law important.

Can I postulate this proposition to the Court?

Assume that somebody had come out of a private

driveway, gone into the bus lane and continued

to travel west until such time as it was possible

to get into the right-hand lane. In doing so,

that vehicle, presumably, would not have the same

standard of care as seems to have been postulated

as appropriate for the driver in this case, the

applicant. In our respectful submission, the

standard must always be the same.

DAWSON J: It is not really like that, is it, because here

you have got the traffic banked up and stopped

and you have this man corning up, presumably passing

traffic on his right, gaining access to the

intersection in circumstances where he should know

that there is a gap left by the traffic? Surely

it behoves him in those circumstances to be careful

as he enters the intersection?

MR WALSH:  Can I put this to Your Honour, that we question

the issue of the statement that "he should know"?

We do so because, firstly, this is a major arterial

road. It is not an intersection, it is a junction.

DAWSON J: Well, a junction.

MR WALSH:  There is a median strip. There are two heavily

banked up lines of traffic. Why should the driver

of that car assume that there is going to be a

gap?

DAWSON J:  Presumably the traffic on his right is stationary

or near to stationary as he approaches the

intersection. That is why.

MR WALSH:  The learned trial judge found, as a matter of

fact, that he would not have been able to see that

gap until 10 to 12 metres.

DAWSON J:	He can see the traffic on his right, can he not?
MR WALSH:	Yes, quite so, he can.  But it was upon the

plaintiff to prove the case. There was a witness

that might have been able to shed some light on

vision. There was no evidence, as the learned

trial judge found.

AlT14/4/ND	23/8/89
Bithell

DAWSON J: It just seems, as a matter of common sense, that

there surely was an obligation on both drivers

in that situation to be careful as they entered the

intersection.

MR WALSH:  The only answer I can give, Your Honour, is this,

that if, in fact, the issue - the learned trial

judge was correct in concluding that he could not

see the other vehicle until a distance of 10 to

12 metres, then it is a question of speed. But

the learned trial judge clearly found that the

speed was not excessive by way of inference and
one has to conclude - in order to find the applicant

negligent - that had he been

travelling at X kilometres per hour, which is less

than that which he was travelling, he would have

been able to avoid the consequences of what

occurred.

And we say that that is assuming a set of

facts ~~ich the Full Court did not have available

to it. If the Court pleases.

MASON CJ:  Thank you, Mr Walsh. The Court need not trouble

you, Mr Anderson. The Court considers that the

outcome of this case depends upon its own particular

facts and if special leave were to be granted the

case would not result, or would be unlikely to

result in any elaboration of general principle.

The case is therefore not appropriate for the grant of special leave and the application is refused.

MR ANDERSON: If the Court pleases, I apply for costs.

MASON CJ:  Yes. You cannot resist that, can you?

MR WALSH:	I cannot resist that, Your Honour.
MASON CJ:	The application is refused with costs.
AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE

A1T14/5/ND	5	23/8/89
Bithell