Exportim (SA) Pty Ltd v Maigler No. Scgrg-98-1264 Judgment No. S6982

[1998] SASC 6982

EXPORTIM (SA) PTY LTD v MAIGLER
[1998] SASC 6982

Magistrates Appeal

1. MILLHOUSE J.       It was lunch time on a clear day in October 1997.  The driver of the car owned by the appellant company, Alexander Peter Pyrlis, had been driving south along O'Connell St at North Adelaide.  He intended to make a right hand turn to go west along Ward Street.  He stopped at the traffic lights which were green for traffic going into town, allowing traffic coming from town to continue north.  The lights turned to amber, he edged forward and turned a little to his right.  When the lights had just turned red he moved to complete the turn.  He did not see the respondent's car coming through the intersection on his left.

2. The respondent, Mrs Bettina Maigler, drove her car up the hill through Brougham Place.  The lights at the Hotel Adelaide corner (Brougham Place and King William Road) were green so she continued through towards the lights at the Ward Street intersection.  Her speed was somewhere between 50 kilometres per hour and 60 kilometres per hour, probably towards the latter.  She saw the lights ahead were amber.  She had decided that she did not have time to stop and consequently sped up a bit to get across the intersection.  She saw neither a car driven by Dr Helen Louise Goldsworthy stationary at the lights on her left, nor Pyrlis' car beginning to make its turn.

3. The cars collided.  The front of the respondent's car crashed into the near side front of Pyrlis' car.  Both vehicles were damaged.  The cost of the damage to each has been agreed.  I have to think only of liability.

4. The appellant took proceedings in the Adelaide Magistrates Court against Mrs Maigler. The learned special magistrate decided that responsibility fell equally on both drivers: that being so he thought each party should bear its or her own costs.

5. Having made findings of fact, not challenged on appeal, the learned magistrate put his conclusion in this way:-

   "As I oscillate between each competing negligent act, I am drawn more and more to a state of equal culpability.  I have decided that both drivers were negligent in failing to appreciate their respective risks and breaching their respective duties and consequently I apportion liability 50/50."

6. He had found that neither driver had seen the other. Pyrlis had an obligation to give way to traffic travelling north and Mrs Maigler had tried to "beat the lights".

7. In considering the witnesses he said:-

   "Having reviewed the evidence, I assess all the witnesses to have been honest.  As is usual, there are a number of discrepancies between the various versions and possibly some minor reconstruction.  However, I am satisfied that both sides gave an honest account of what they recalled.  I do, however, prefer the plaintiff's version of events and, in particular, the plaintiff's witness Dr Goldsworthy as giving the most accurate independent account of what happened.  I find that the north-south lights had already turned red at the time the defendant's vehicle entered the intersection and that she had made a significant error of judgment in 'running' the red light."

8. This is his summary of Dr Goldsworthy's evidence:-

   "Dr Helen Goldworthy (sic) had been travelling south along O'Connell Street and had stopped at the Brougham Place intersection.  As she commenced to proceed on the green light she noticed that the Ward Street lights just ahead were turning amber so she stopped at that intersection.  She testified that she then took her car out of gear, watched the plaintiff's car start to turn and then observed the defendant's car 'whooshing' past.  She described the plaintiff's car as slightly angled and agreed in cross-examination that it was somewhere between 0 and 45 degrees.  According to Dr Goldworthy (sic) the defendant made no attempt to slow down and the collision occurred when the plaintiff's car had just started to move.  She described the collision as a 'very significant impact' and was surprised that people were not seriously injured.  She did not see the light turn red but said that she believed it must have been red because 'it was yellow for a long time' before she had stopped at the intersection."

9. Counsel, Mr Peter Thatcher for the appellant and Dr Peter Salu  for the respondent, agreed that the distance between the lights at the Hotel Adelaide corner and at the Ward Street intersection is about 70 metres.

10. Undoubtedly each driver was negligent.  Neither saw the other when each should have seen the other.  There was no impediment to vision.

11. Yet that is not the end of the matter.  Pyrlis had waited to make his right hand turn while the lights for north-south vehicles were green.  When the amber came on he began his turn but could not have completed it until the lights were red.  He was entitled to do that.  The statutory law on how to make a right hand turn at traffic lights is absurdly complex, being set out in a mixture of sections in the Road Traffic Act (SA) 1961 and in the Regulations made under that Act. I adopt with relief the masterly analysis of this maze by my brother Cox in Schmalkuche v Williams (1987) 47 SASR 355 @ 361-363. The rule, though, is quite simple. A driver may make a right hand turn at traffic lights when they are green in his favour and even when the amber light has come on if the carriage-way which he must cross is clear. This may entail completing the turn after the green and amber have been replaced by the red.

12. In accordance with that rule, of course the appellant had an obligation to give way to the respondent.  I expect, if he had seen her coming he would have.

13. The respondent had an obligation to slow down and stop at the lights when the amber light came on.  Only if she were so close to the lights when the amber light came on that she could not stop in time was she entitled to continue through the intersection.  That is the rule.  It follows that either the respondent was so close when the amber came on that she should have been able to cross the intersection on the amber or, if she were further back, she should have been driving at a sufficiently slow speed to have been able to stop.  Either because of her speed or her failure to see in time the amber come on or both she could not stop: instead she sped up a bit, to beat the lights.  The respondent had seventy metres between the lights at Brougham Place and Ward Street.  Some little time after leaving Brougham Place she saw the amber light at Ward Street come on.  She should have had enough distance in which to stop.  If she were unable to stop in time then she was travelling too fast.  The respondent did not feel she could stop.  In comparison Dr Goldsworthy had been able to stop in plenty of time.  Consequently the respondent must have been travelling too fast - between fifty and sixty kilometres per hour - in her approach to the intersection.  She was negligent.  This negligence combined with her failure to see Pyrlis makes her negligence greater than his.

14. That being so, the preponderance of responsibility does rest with the respondent, not be split equally. 

15. Dr Salu argued that I should not fiddle with the Magistrate's assessment even though I might disagree with it, because it was within the bracket of acceptability.  I concede that if it were within the bracket, Dr Salu is correct in his argument. However I disagree so much with the assessment as to think it quite outside the bracket.  An appropriate apportionment is 30 percent on the appellant and 70 per cent on the respondent.

16. Accordingly the appeal is allowed to the extent of varying the apportionment of liability from 50/50 to 30/70.

17. Counsel agreed that we should leave argument on costs until I have come to a conclusion on liability.  I shall therefore hear them on what orders I should make.