Hemphill v Meaghan

[1989] TASSC 82

Serial No. B4/1989List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hemphill v Meaghan [1989] TASSC 82; B4/1989

PARTIES:  HEMPHILL
  v
  MEAGHAN

FILE NO/S:  LCA 117/1988
DELIVERED ON:  3 March 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B4/1989
Number of paragraphs:  27

Serial No B4/1989
File No LCA 117/1988

HEMPHILL v MEAGHAN

REASONS FOR JUDGMENT  CRAWFORD J

3 March 1989

1. In an action for damages for negligent driving in the Court of Requests, the plaintiff was held contributorily negligent, to the extent of 25 per cent, in circumstances where he had a green traffic light and his vehicle collided with another vehicle driven by the defendant through a red traffic light. The plaintiff has appealed against the finding.

1. The judgment for the appellant was for 75 per cent of damages to be assessed. Judgment was also given for the respondent on the counter claim for $656.79 being 25 per cent of his damages.

1. The appellant does not take issue with any findings of fact of the learned Commissioner. I will summarise those findings, adding at times other facts established by the evidence.

1. The collision occurred at about 7.30pm on 1 August 1987. It was dark, although in the absence of evidence, I presume there was some street lighting. The weather conditions were very poor. It was raining heavily. The road was wet and visibility was substantially reduced. Immediately prior to the collision the appellant drove his gold coloured Toyota car along Bathurst Street in an easterly direction. He came to a standstill at the stop line when he reached the Brooker Highway, because the traffic lights facing him were red. He was in the right hand lane of three traffic lanes designated for traffic in Bathurst Street to proceed across three north bound traffic lanes on the Brooker Highway, which crossed on the other side of and approximately parallel to the stop line. It was the appellant's intention to drive to the other side of the Brooker Highway by crossing the north bound lanes and proceeding through a gap in a median strip dividing the north bound lanes and the south bound lanes of the highway. He then intended to proceed slightly to the right, along the south bound lanes a short distance to the Railway Roundabout and then east along the Tasman Highway from the Roundabout to the Tasman Bridge. The respondent was driving his white Datsun utility west on the Tasman Highway, away from the bridge. He rounded the roundabout and proceeded to drive up the left hand lane of the three north bound lanes of the Brooker Highway, approaching the Bathurst Street junction where the appellant was waiting at the stop line for the lights to change. There were also traffic lights facing north bound traffic on the Brooker Highway at the junction. They had no doubt displayed a green light. They changed to amber for a period of three seconds and then changed to red at a time when the respondent was further than thirty feet from the stop line on the Highway. When the lights facing the respondent changed to red, the lights facing the appellant changed to green. The respondent failed to observe that the lights had changed to red and as a result he also failed to bring his utility to a standstill before crossing the stop line. Instead he proceeded into the junction and his utility collided with the appellant's car, which had moved out into the junction after the lights for Bathurst Street traffic changed to green. Plainly the primary cause of the collision was the respondent's negligence in failing to observe the red light and stop in obedience to it. The question is whether the learned Commissioner was correct in attributing 25 per cent of the blame to the appellant.

1. The collision occurred at a point approximately seven to ten metres past the stop line in Bathurst Street and in line with the right hand lane of that street. That point was approximately seven to ten metres past the stop line on the Brooker Highway and in line with the left hand lane in that Highway. Putting it simply, the two vehicles proceeded forward into the junction in those respective lanes and collided with each other. The front of the appellant's car struck the front left corner of the respondent's utility.

1. The appellant had been stationary at the Bathurst Street stop line for some time. It seemed to him a couple of minutes but on reflection it may have been a matter of seconds. Whilst so stationary, Mr Leighton pulled up in his automatically geared car in the centre lane in Bathurst Street, also at the stop line. In other words, he was alongside, in the lane next to and to the left of the appellant's car. Like the appellant, Mr Leighton waited for the green traffic light. He estimated that he had to wait for twenty or thirty seconds.

1. As he approached the junction the respondent would have been able to see, through his windscreen but slightly to his left, the two stationary vehicles at the Bathurst Street stop line. The appellant could have seen the respondent's utility approaching, but to do so he would have had to look to his right, probably through his driver's door window. In any event, he did not see the approaching utility because he did not look to his right before entering the junction. It is for this reason that the learned Commissioner found the appellant 25 per cent to blame for the accident. In fact the appellant did not see the utility until it was immediately in front of him at the moment of impact.

1. The respondent's evidence was that he was travelling at no more than 15 to 20 kilometres per hour which is a surprisingly slow speed and a difficult one to accept, in the light of Mr Leighton's evidence which was accepted by the learned Commissioner. The appellant estimated it at 20 to 30 miles per hour. I cannot accept the respondent's evidence in this regard. However I draw no adverse inference so far as his speed alone is concerned.

1. When the Bathurst Street traffic lights changed to green, the appellant did not move off immediately, but Mr Leighton did. As Mr Leighton moved off, he noticed the respondent's headlights coming along the Brooker Highway, he estimated twenty to thirty feet short of the Brooker Highway stop line or of the traffic lights on the corner. He noticed this out of the corner of his eye. The headlights were not travelling at any great speed, but then again not at such a slow speed as to give the impression that the respondent was about to stop.

1. Mr Leighton moved out and across the north bound lanes of the Brooker Highway, and he had just entered or was just entering the gap in the median strip on the other side of those lanes, a distance of at least 16 metres from the Bathurst Street stop line behind him, when he heard the collision somewhere to his rear.

1. The appellant's evidence was that Mr Leighton moved off with the green light fairly quickly and before he did. His estimate was that at the moment of collision, Mr Leighton's vehicle had moved even further than Mr Leighton said in evidence.

1. The appellant had been watching the traffic lights in front of him on the median strip on the far side of the three north bound lanes of the Brooker Highway. After they had changed to green and after Mr Leighton had moved off, he also commenced to move at a slow speed, in his manually geared car, in first gear. He said he was "practically hardly moving" and agreed that he was "just rolling".

1. Just before the accident he was looking ahead "to see if it was pretty clear ahead and watching .... when the lights were going to turn a different colour .... see if there was any obstruction in any way somebody going across to the lane or something". As he crossed the three north bound lanes of the Brooker Highway, heading for the gap in the median strip, it would have been necessary for him to travel in a slight curve to his right. There were no paint marks on the road surface in the junction itself, the lane markings for Bathurst Street traffic ending at the stop line and continuing once the gap in the median strip was reached.

1. The respondent said that as he approached the junction, he was looking straight ahead and saw cars parked at the Bathurst Street lights. However he did not notice Mr Leighton's vehicle move out and cross in front of him. Nor did he observe the appellant's vehicle move out. The learned Commissioner rejected the respondent's evidence that the lights facing him changed to amber at a time when it was too late to stop. Clearly the lights for him changed to amber well before he reached the stop line, and after a further three seconds they changed to red when he was over thirty feet from the stop line.

1. On the footpath on the corner there were some slender poles bearing traffic signs. They would not have materially obstructed each driver's view of the other vehicle.

1. The facts established by the evidence are quite precise. On the basis of them the learned Commissioner clearly had no difficulty in finding that the respondent was negligent and that that was the primary cause of the collision. His finding of contributory negligence on the part of the appellant was expressed as follows:–

"On his own evidence he said that he did not look to the right at all before entering the intersection. He was unaware of the presence of the defendants vehicle until it was immediately in front of him at the point of impact. If he had looked to the right he would, as Mr Leighton did, had seen, would have seen a vehicle approaching and that vehicle was the defendants. He would have seen that that vehicle had either crossed the stop line on the north bound carriage–way or was very close to that stop line and travelling at a speed which would indicate to a prudent observer that the vehicle was not going to stop. The conditions which prevailed rather than relieving him of an obligation to look to his right was such as to give rise to a need for substantial care on the part of all motorist using the road. In failing to take that reasonable precaution of looking to the right and seeing and if he had done so seeing the approach of the defendants vehicle. In failing to do that he was negligent in a manner causitive of the collision. I assess responsibility for the damages, for the collision as to 75% to the defendant and 25% to the plaintiff."

1. The respondent's obligation under the traffic laws was to stop at the stop line. The amber light, which was displayed for three seconds, required that of him (Traffic (General & Local) Regulations 1956 reg21(2)(e)(i)) and the red light also required that of him (reg21(2)(a)). He failed to keep a proper lookout. As a result he breached the regulations and crossed the stop line. He was clearly negligent.

1. The appellant had no obligation under the traffic laws not to proceed. In fact reg21(2)(c) provided that the colour green was an "instruction" that he might proceed.

1. Of course as the High Court said in Sibley v Kais (1967) 118 CLR 424 at 427, in the circumstances of a give way to the right situation:–

"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."

1. It must be emphasised that in deciding this appeal I do so on all the circumstances surrounding the collision between the vehicles driven by the parties. This case will in no way be an authority on a matter of law. For the same reasons I do not consider that the cases cited concerning collisions at traffic lights, can have any influence on how this appeal should be decided.

1. If this had been a case of the appellant approaching a traffic light which had been green for a substantial period of time, I would probably have had no hesitation in absolving him from all responsibility. Conversely if this was a case of a driver who, knowing that the lights were about to change from red to green, so adjusted his speed as to enable him to proceed across the stop line without stopping first, at the very instant the lights so changed, I might have had little trouble in finding him negligent. But this case I find difficult, involving a situation where a driver is stationary at the stop line and, on the green light being displayed, he moves off with no haste or, as in fact is the position, slowly after a delay in setting the vehicle in motion and after another vehicle had moved off ahead of him.

1. In assessing the responsibility of the appellant for the collision I find the following facts are in his favour:

1It was dark and raining heavily. Visibility was substantially reduced. He therefore needed to look carefully where he was going.

2He was complying with the traffic laws.

3He needed to steer within his lane (imaginary in the junction), curving to the right slightly and passing between the gap in the median strip. This required his attention.

4He did not endeavour to anticipate the change of lights and move off at the moment it occurred. Instead he took time to commence his forward motion.

5Mr Leighton's vehicle, which had been alongside him, had moved into the junction before he commenced to move. This would provide many drivers, perhaps subconsciously, with a feeling of confidence concerning safety in moving off themselves.

6.He travelled slowly across the stop line and into the junction.

7.For a collision to happen in the way it did, the other driver would have had to be driving in breach of a duty to stop, imposed by the regulations.

1. The following facts might, on the other hand, be considered against him:–

1It was dark and raining heavily. Visibility was substantially reduced. The risks of an accident occurring, and of another driver not observing a hazardous situation, were higher than normal.

2He was crossing three north bound lanes of the Brooker Highway on which traffic was quite likely to be travelling.

3He was commencing to enter the junction shortly after the lights had changed to green, with the consequent risk that a driver on the Brooker Highway might be more likely to fail to observe the change of lights for him, when compared with a situation where the lights had changed at a much earlier time.

4He failed to look to his right. If he had, he would have seen the respondent's vehicle approaching and could have assessed whether it was safe to move off and across the junction. Further he moved out seven to ten metres to the point of impact, without looking to his right.

5From a purely defensive driving point of view, a driver should be aware that other drivers may fail to observe a rule of the road.

1. At a light-controlled intersection a very heavy duty of care rests on drivers to obey the red light. The duty on drivers with the green light not to cross without making certain that it is safe to do so, will usually be correspondingly very light, if not non–existent in many cases, so far as the law of negligence is concerned.

1. After considering these matters and all the circumstances of the accident I have come to the conclusion that the learned Commissioner's finding that the appellant was 25 per cent to blame for the collision was wrong. The respondent had a very high duty of care requiring him to pay careful attention to the traffic lights. This is not the case of him being caught by a sudden change whilst momentarily distracted. The lights changed from green to amber, before changing to red, when he was well back from the stop line, and yet he travelled on for five seconds at least without observing any change in the lights. When approaching lights one of the most, if not the most, important duties of a driver is to watch them. Further, he failed to notice Mr Leighton's vehicle cross the highway in front of him. If he had seen that, he would have been alerted that all was not well ahead. Conversely the appellant was complying with the traffic laws and driving with no haste. He commenced to drive off on the green light later than most drivers would have done. With respect to the learned Commissioner, the finding that the appellant was as much as one quarter to blame was not justified.

1. But I consider that the appellant should accept a small share of the responsibility. The weather conditions should have made him take extra care. The corner was quite an open one, and if he had looked to his right as he commenced to move, he would have seen the respondent's utility approaching, with no apparent intention on the driver's part to stop. I apportion the appellant's responsibility for the collision as one eighth, that is 12½ per cent.

1. The appeal is upheld and the order will be that the judgment for the plaintiff is set aside. In its place there will be judgment for the plaintiff on the claim for 87½ per cent of his damages to be assessed. It is also ordered that the judgment for the defendant on the counter claim will be set aside and in its place there will be judgment for the defendant for $328.20. I will hear counsel concerning the costs of the proceedings in the Court of Requests and of the appeal.