Hubner v Robertson - [2020] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HUBNER v ROBERTSON
[2020] SADC 134
Judgment of Her Honour Judge Schammer
25 September 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
The Respondent claimed damages from the Applicant arising from a collision which occurred at the intersection of Sir Donald Bradman Drive and Brooker Terrace, Cowandilla at dusk on 6 June 2019.
Immediately prior to the collision, the Respondent had been riding his bicycle in a bicycle lane for west bound traffic on Sir Donald Bradman Drive, intending to continue west through the intersection. The Applicant’s motor vehicle was stationary on Sir Donald Bradman Drive, facing east, intending to turn right to head south along Brooker Terrace. The traffic lights at the intersection were green for both east and west bound traffic on Sir Donald Bradman Drive. Traffic conditions were congested and there was a build-up of traffic heading west, beyond the intersection, causing drivers in the two western bound lanes to stop at the intersection, despite having a green light. There was no green right turning arrow facing the Applicant.
When the two western bound lanes of traffic stopped at the intersection, the Applicant commenced to turn right, thinking it was safe to do so. He did not see the Respondent approaching in the bicycle lane. A collision occurred between the Respondent’s bicycle and the front left hand corner of the Applicant’s vehicle.
The Judicial Registrar apportioned liability 90/10% as against the Applicant.
In issue is whether the Respondent should bear a greater responsibility for the collision, having regard to his speed and the prevailing circumstances.
Held:
The Applicant had the primary obligation to give way to the Respondent’s bicycle, given he turned right across the Respondent’s path at a traffic light controlled intersection when the lights were green.
The apportionment of liability made by the Judicial Registar is appropriate having regard to all of the evidence.
Orders
1. The judgment of the Judicial Registrar is affirmed.
2. The Application for Review is dismissed.
3. No order as to costs.
Magistrates Court Act 1991 s 38; Road Traffic Act 1961 (SA) s 80; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Slatter v Kyalde Pty Ltd (1979) 22 SASR 196; Sibley v Kais (1967) 118 CLR 424, considered.

HUBNER v ROBERTSON
[2020] SADC 134
Introduction

This is an application for review of a decision of a Judicial Registrar in a minor civil action commenced by Andrew Robertson (Respondent) against Darren Hubner (Applicant).
The Respondent claimed damages in the sum of $3,288.60 (plus costs) from the Applicant arising from a collision which occurred at the intersection of Sir Donald Bradman Drive and Brooker Terrace at Cowandilla on Thursday 6 June 2019 at between 5:40 – 6:00pm.
Immediately prior to the collision, the Respondent had been riding his bicycle west along Sir Donald Bradman Drive in the bicycle lane, approaching the intersection with Brooker Terrace. He intended to continue to travel west through the intersection to his home at West Beach. The Applicant was driving a light blue Toyota Camry S660 BVB east along Sir Donald Bradman Drive, and intended to turn right at Brooker Terrace, to travel south.
There is no dispute that at the time of the collision, traffic lights for both east and west bound traffic on Sir Donald Bradman Drive were green, and that there was no green right turning arrow applicable to the Applicant. Immediately prior to the collision, the two lanes of vehicle traffic heading west along Sir Donald Bradman Drive had stopped, despite the green light, due to a build-up of traffic beyond the intersection. The Applicant did not see the Respondent’s bicycle approaching, as his vision of it was obscured by the lanes of stationary traffic.
The Applicant commenced to turn right at the intersection, into Brooker Terrace, believing it was safe to do so. As he did, the Respondent continued to ride west, through the intersection. He saw the Applicant just prior to impact, braked and braced for the impact, as a result of which the front of his bicycle collided with the front left-hand corner of the Applicant’s vehicle. The Respondent’s bicycle was damaged beyond repair but there was only minimal damage to the Applicant’s vehicle.
Findings of Judicial Registrar
The action proceeded to trial before a Judicial Registrar on 3 July 2020. The Judicial Registrar heard evidence from the parties and from the Applicant’s daughter, who was a passenger in the Applicant’s vehicle at the time. At the conclusion of the trial, the Judicial Registrar delivered an ex-tempore judgment wherein she apportioned liability 90/10% as against the Applicant.
The Judicial Registrar awarded judgment in favour of the Respondent in the sum of $2,703.76 (inclusive of costs) comprising:
Loss of value of damaged bicycle  $2,399.00
Cost of alternate transport (six weeks of bus fares)  $197.40
Sub Total  $2,596.40
Less 10%  $2,336.76
Issue Fee  $153.00
Trial Listing fee  $214.00
Total  $2,703.76
In apportioning liability 90/10% as against the Applicant, the Judicial Registrar found that the Applicant had an obligation to give way to the Respondent, having regard to the fact the Applicant was turning right across the Respondent’s path at a traffic light controlled intersection at a time when the lights were green for both vehicles and there was no green right turning arrow in the Applicant’s favour. She observed that the real issue in dispute between the parties was the extent to which the Respondent’s damages should be reduced for any negligence on his part, and in particular the speed he was travelling, in light of the road conditions.
The Judicial Registrar was unable to make a finding as to the Respondent’s speed immediately prior to the collision. However, having regard to an acknowledgement by the Respondent that he should have been travelling slower than his estimated speed of about 25 or 30 km/hr, the Judicial Registrar found that the Respondent had exercised ‘less than reasonable care’, albeit his negligence was ‘to a far lesser extent than that of the Applicant, and reduced the Respondent’s damages by 10%.[1]
[1] Judgment at [10]-[12].
The Application for Review
On 24 July 2020, the Applicant filed an Application for Review, wherein he sought to challenge the Judicial Registrar’s apportionment of liability. He did not challenge the Judicial Registrar’s findings as to quantum.
The Applicant set forth four grounds of review:
1That the Respondent was not in the bicycle lane at the time of the collision;
2That he disagreed with the Judicial Registrar’s description of the intersection as a ‘controlled intersection’.
3That the Judicial Registrar had failed to take into account the Respondent’s failure to take due care and to adapt his riding having regard to the road conditions at the time (traffic was heavily congested and it was getting dark); and
4He disputed the Respondent’s estimate of his speed immediately prior to impact, stating the Registrar did not question the Respondent as to a change in his version of the evidence on this topic.
These grounds all relate to the Applicant’s submission that the Respondent should bear a greater responsibility for the collision than 10%, as he had not ridden safely in the circumstances.
The Procedure on Review
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)     rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)    if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In Harradine v District Court of South Australia,[2] Blue J outlined the principles which apply to a review by a District Court judge of a minor civil action.
[2] [2012] SASC 96 at [53].
The review is not in the nature of an appeal, nor is it necessarily a hearing de novo as the judge is entitled to have regard to the evidence adduced before the Magistrate or Judicial Registrar. The judge is not required to re-hear the evidence, although the judge may do so. Where a case turns on disputed facts or credibility the judge may consider it appropriate to hear the evidence afresh. A judge may also receive ‘fresh evidence’ in certain circumstances.
Ultimately s 38(7)(e) MCA requires the judge to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’.
Quantum
Although the Applicant’s complaints were only with respect to findings on liability, the review is of the entire matter.
The Respondent claimed to have suffered loss and damage arising from the collision in the sum of $3,288.60. This loss included a sum of $2,399.00 based on a quotation obtained from ‘Giant Glenelg’ to replace the Respondent’s Giant Defy Advanced 3 bicycle (being a discontinued model) with the closest equivalent, a ‘Giant Defy Advanced 2’. There was no evidence before the Judicial Registrar as to the year of manufacture of the damaged bicycle.
The Judicial Registrar allowed this claim in full.
The Respondent incurred a fee of $100.00 to obtain that quotation, which was included in the claim, but appears to have been overlooked by the Judicial Registrar.
The Respondent’s claim also included a sum of $469.00 being the cost incurred by him to catch public transport during the period when he was unable to ride his bike, at first because the bike was damaged and later because he was unable to ride due to the effects of ongoing injuries suffered in the collision. The claim covered a period of 24 weeks.
The Judicial Registrar allowed the travel claim for a period of 6 weeks only, in the sum of $197.40, being her estimate of the period it would have taken for the Respondent to replace the bicycle, noting that any travel claim arising from the Respondent’s injuries was not compensable as part of this claim.
Although the Judicial Registrar overlooked the Respondent’s claim for $100.00 to obtain the quotation, I would not disturb her findings as to quantum, having regard to the fact that Giant acknowledged in their quotation that the replacement bicycle had a slightly better group set, and of course, it was brand new.
Liability
The underlying findings of fact made by the Judicial Registrar as to the circumstances of the collision were not challenged, save and except for her finding that the Respondent was travelling at a speed of approximately 30 km/hr immediately before the collision.
Those findings of fact included that both vehicles were faced with a green light at the time they entered the intersection, the relevant speed limit was 60 km/hr and that traffic was congested such that despite having a green light, the two lanes of cars heading west on Sir Donald Bradman Drive had stopped so as not to block the intersection due to the build-up of traffic ahead. It was not raining and it was dusk, heading into darkness. The Applicant did not see the Respondent at all prior to the impact, which was between the front of the Respondent’s bike and the front left corner of the Applicant’s vehicle.
The Judicial Registrar accepted the Respondent’s evidence that the bicycle had lights on both its front and back, which were in operation at the time of the collision and the Applicant’s evidence that he had indicated prior to commencing his turn. She made these findings despite the Applicant having not observed the bicycle (and therefore any light from it) and the Respondent not having observed the indicator on the Applicant’s vehicle. In doing so, the Judicial Registrar took into account the extent to which the stationary westbound vehicles at the intersection obstructed the parties’ respective views of each other, immediately prior to the collision. These findings were open on the evidence and were not challenged.
I will deal with the matters raised by the Applicant in turn.
Bicycle Lane
The Applicant submitted that the Respondent was not in the bicycle lane at the time of impact and believed that this erroneous finding may have contributed to an inappropriate apportionment of liability.
The Applicant did not see the Respondent at all prior to the impact.
Immediately prior to entering the intersection, the Respondent must have been in the bicycle lane, or at the very least immediately adjacent to it, given that the two western bound lanes for Sir Donald Bradman Drive were otherwise occupied by stationary vehicles, banked up at the intersection.
The Applicant’s daughter was asked where in the intersection the impact had occurred and said, ‘it was more into the street we were turning into, like near the crossing or the bike thing sort of’.[3] She agreed that it was near the bike lane.[4] There was no other evidence on this topic. The Applicant’s daughter’s evidence is consistent with the Respondent having continued straight ahead, either in the bike lane or immediately adjacent to it, before colliding with the front left-hand corner of the Applicant’s vehicle as it turned across his path.
[3] T 18.6-7.
[4] T 18.11-12.
In terms of determining liability, the point of impact within the intersection can be relevant. However, in this particular instance, there is no dispute the impact was with the front left-hand corner of the Applicant’s vehicle. There is no dispute that the Applicant did not see the Respondent, in part, because he was riding to the left of the stationary traffic waiting for the build-up of traffic to subside and allow them to enter the intersection. The evidence supports a finding that immediately before he braked and either swerved or braced, the Respondent was riding in the bicycle lane. There is no evidence to the contrary and in any event, the finding is of little, if any, relevance to the apportionment of liability.
‘Controlled Intersection’
During her questioning of the parties, the Judicial Registrar used the terminology ‘controlled intersection’ to describe the intersection of Sir Donald Bradman Drive and Brooker Terrace. She did not use that same terminology in her judgment. The Applicant criticised that description of the intersection, suggesting that given the traffic conditions on the night, the intersection was in fact ‘uncontrolled’.
The term ‘controlled intersection’ is not defined in the Australian Road Rules (ARR).[5]
[5] As made by the Governor pursuant to s 80 of the Road Traffic Act 1961 (SA), being rules to regulate traffic movement, flows and conditions, the use of roads, and any aspect of driver, passenger or pedestrian conduct.
There is no dispute that there are traffic lights which control the flow of traffic at the relevant intersection. It is likely that in using this terminology, the Judicial Registrar was using short-hand language to describe the fact that the intersection of Sir Donald Bradman Drive and Brooker Terrace is a traffic light controlled intersection.
Adapting to the Road Conditions/Speed
I will deal with the final two grounds of appeal together, as they are inter-related.
In the Applicant’s Defence, he pleaded:
The intersection where the accident occurred was heavily congested at that time, which was dusk in the middle of winter. The impact was heavy. I question the speed that Andrew entered the intersection, as if there was no congestion and normal driving conditions. I believe that Andrew contributed to the damages by not adapting to those conditions and not riding with more care.
During the trial, the Applicant made several submissions to the effect that in his view, the Respondent should have been riding more defensively and slower, given the build-up of traffic, the fact it was nearly dark and the Respondent’s prior experience of having been involved in an accident when someone in a parked car opened a car door into the path of his bicycle. In summary, the Applicant’s submission is that the Respondent was riding too fast in the circumstances, that in doing so he was negligent and that he should have slowed down as he approached and entered the intersection, given the heavy congestion. He submitted that in failing to do so, the Respondent had failed to ride with due care, such that his damages ought to have been reduced by more than 10% for contributory negligence.
The Respondent estimated he was travelling at a speed of no more than 30 km/hr as he approached the intersection. He did not have a speedometer on his bicycle. This estimate was made having regard to the Respondent’s experience speed racing with others, during which he would ride at speeds of around 34 km/hr. He said that speed was faster than he was travelling immediately prior to the incident.[6]
[6] T 7.12-16.
The Respondent acknowledged that there is an incline on Sir Donald Bradman Drive such that he was going downhill at the time of the incident. However, he was adamant he was not travelling in excess of 30 km/hr as he approached the intersection and that he braked immediately before the impact.
In his Notice of Review, the Applicant stated that the Respondent had changed his version on the issue of speed, having at one stage said it was around 15 km/hr, but was not questioned about that by the Judicial Registrar.
I have carefully considered the transcript of evidence before the Judicial Registrar.
The Judicial Registrar asked the Respondent, on more than one occasion, what speed he was travelling immediately prior to the collision. The Respondent said, at first, ‘[m]aybe up to 30, roughly 30, I guess’,[7] and later said ‘[a]bout 30 yeah I remember braking but I mean it could have been 25, it wouldn’t have been any more than 30 because I do sort of speed race or did at the time and 34 is for me, is going for it so no it wasn’t that fast.’[8]
[7] T 6.31.
[8] T 7.12-16.
I am satisfied the Respondent did not give inconsistent evidence as to his speed and specifically, that at no time did he give evidence that he was travelling at a speed of only 15 km/hr as he approached the intersection.

The Applicant did not see the Respondent at all prior to impact, so he was not in a position to assess the Respondent’s speed from any visual observation.
However, he submitted that the Respondent could not estimate his speed in the absence of having a speedometer on his bicycle and looking at it immediately before the impact. He doubted that estimate, given how hard the impact was. Further, he submitted that he would have seen the Respondent, but for his excessive speed.
At trial, the Applicant’s daughter gave evidence that she did not see the Respondent before impact and that it was ‘a big impact’. From that impact, she was surprised to see it was a bicycle and not a car, that had hit them.[9]
[9] T 16.35-37; T 17.26-31.
As to the damage to his vehicle, which may potentially assist the Court to make findings as to the speed of the bicycle at impact, the Applicant gave evidence at trial that there were only ‘minimal marks’ on the front left corner of the front bumper bar of his vehicle.[10] Upon impact, the Respondent’s bicycle was thrown over the vehicle, narrowly missing the windscreen.
[10] T 9.19-26.
Apportionment of Liability
ARR 62 states:
62—Giving way when turning at an intersection with traffic lights
(1)A driver turning at an intersection with traffic lights must give way to—
(a)     …
(b)     …; and
(c)     if the driver is turning right – any oncoming vehicle that is going straight ahead or turning left at the intersection (except a vehicle turning left using the slip lane).
Offence provision.
…
Note 2 —
For this rule, give way means the driver must remain stationary until it is safe to proceed – see the definition in the dictionary …
(2)However, a driver who is turning at an intersection with traffic arrows showing a green traffic arrow need not give way to an oncoming vehicle if the driver is turning the direction indicated by the green traffic arrow.
There is no dispute that there was no green traffic arrow showing at the time the Applicant entered the intersection and commenced his right-hand turn.
The ‘Dictionary’ under the ARR defines ‘give way’ for a driver or pedestrian to mean:
(a)If the driver or pedestrian is stopped – remain stationary until it is safe to proceed; or
(b)In any other case, slow down and, if necessary, stop to avoid a collision.
The Applicant gave evidence at trial that he had come forward, into the intersection, but then was stationary with his indicator on, waiting for vehicles heading west, to travel through the intersection on green light.[11] When the western bound traffic stopped moving through the intersection due to the congestion ahead, he then commenced the right-hand turn, thinking it was safe to do so. He said he could not see the Respondent ‘in the slip-stream’ of the stationary traffic at the lights ‘and by the time I’d committed to taking the turn I still hadn’t seen him, next thing you know we felt like we’d hit by a car’.[12]
[11] T 11.10-21.
[12] T 10.19-22.
He said he knew there was a bicycle lane on that stretch of road.[13]
[13] T 10.31-33.
The Respondent gave evidence that the Applicant’s vehicle started turning as he went through the green light. From his evidence, it seems likely he had an awareness of eastern bound traffic waiting to turn right, but he assumed they would continue to wait for him to pass, as he had a green light.[14]
[14] T 8.18-22.
I have some sympathy for the Applicant, given his necessity to turn right without the assistance of an arrow, the heavy traffic and the fading light. However, the Applicant had an overriding obligation to give way to the Respondent’s bicycle. He knew there was a bicycle lane on that stretch of road. He should have been alert to the reasonable possibility that a cyclist may have been approaching in the bicycle lane and that a cyclist in those circumstances may have continued through the intersection in accordance with the green light.
Given the presence of the stationary vehicles blocking his view of the bicycle lane (and therefore of the Respondent), the Applicant could and should have moved forward into the intersection, only so far as was necessary to ascertain that the bicycle lane was free of oncoming traffic, by looking east down that bicycle lane, before he committed to the turn. He did not do so. If I am wrong and he did do so, his outlook was defective, as irrespective of the Respondent’s speed, the impact occurred at the very front left-hand corner of the Applicant’s vehicle, meaning the Respondent must have only been a short distance east of the intersection at the time the Applicant commenced the turn.
The Applicant’s failure to give way was the primary cause of the collision and he must be the majority of the responsibility for it.
The issue in contention is the extent to which the Respondent’s negligence caused or contributed to the collision.
Section 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) provides:
7—Apportionment of liability in cases where the person who suffers primary harm is at fault
(1)If contributory negligence contributes to (but is not the sole cause of) the harm for which a claimant seeks damages, the claim is not to be defeated on the ground of the contributory negligence.
(2)If a claimant's harm is caused partly by another's negligent wrongdoing and partly by contributory negligence, the court must proceed as follows:
(a) the court must determine (and record) the amount of the damages to which the claimant would have been entitled assuming there had been no contributory negligence; and
(b) the court must then reduce the amount so determined to the extent the court thinks just and equitable having regard to the extent the contributory negligence contributed to the harm…
Towards the end of his evidence at trial, the Respondent acknowledged that he should take some of the responsibility for the collision, as he ‘could have been going however slow it needs to be but I wasn’t, I was going at that pace, 25 km/hr, 30 and I accept 10% of the responsibility’.[15] He accepted he could have slowed down.[16]
[15] T 29.33-36.
[16] T 30.6.
The Judicial Registrar determined that she could not be certain of the Respondent’s speed prior to impact, but reduced damages by 10% to reflect that the Respondent’s negligence, in failing to travel at a slower speed, had contributed to the collision.
In determining whether and to what extent the Respondent was negligent, the Judicial Registrar was obliged to have regard to factors such as the Respondent’s speed, his lookout (and any impediments to that lookout), what attempts he made to avoid the impact and to the prevailing road and weather conditions.
The relevant speed limit was 60 km/hr. Although the Judicial Registrar could not make a finding as to the Respondent’s likely speed prior to impact, implicit in her finding is that in failing to travel at a slower speed, the Respondent had failed to take sufficient care for his own safety having regard to the road and traffic conditions.
The Respondent gave evidence at trial that he braked as soon as he saw the Applicant’s vehicle turn in front of him, swerved to the left and then hit the front left-hand corner of the Applicant’s slow-moving vehicle. At the hearing of the Application for Review, the Respondent was uncertain as to whether he did swerve to the left, stating he definitely braced for the impact, but could not say for sure if he swerved.
I do not doubt that the impact, being unexpected, felt significant to the Applicant and his daughters. They were hit by the Respondent’s bicycle, which then flew over the windscreen. However, to what extent the perception of the impact as ‘hard’ or ‘big’ is useful in estimating the Respondent’s speed, is uncertain. There was only minimal damage to the Applicant’s vehicle. The Applicant immediately braked and stopped the vehicle upon impact, such that, for example, there is no suggestion the vehicle was pushed any distance by the force of the impact. In short, there is very little available reliable evidence to accurately assess the Respondent’s speed.
Both the Applicant and the Respondent presented as very genuine, honest people. As such, while I do not doubt the Applicant’s observations as to how the impact felt and his conclusions as to the Respondent’s speed as a result, that is insufficient for me to make a finding that the Respondent was approaching the intersection at a speed greater than the 30 km/hr as estimated. While the Respondent’s estimate of his speed was based on experience, rather than from a speedometer reading as he approached the intersection, I have no reason to doubt that estimate in the absence of there being more compelling evidence to the contrary. I accept the Respondent’s evidence that he was travelling at approximately 30 km/hr as he approached the intersection.
While it is possible that if the Respondent was travelling at a lower speed, he would have been able to stop in time to avoid the collision, there was insufficient evidence to support such a finding. Indeed, given the point of impact, it is also possible that had the Respondent been travelling slightly slower, he would have collided with the side, or rear left-hand side of the Applicant’s vehicle.
The Applicant submitted that if the Respondent had been travelling slower, he may have seen him before impact and the collision been avoided.
However, there was no evidence that the Applicant made any attempt to check for oncoming cyclists, in the bicycle lane, before turning, once he was in a position to see past the stationary west bound vehicles into that bicycle lane. Rather, the Applicant assumed that as the two lanes of cars had stopped, it was safe for him to turn, so he did so.
As such, I simply cannot find that had the Respondent been travelling at a slower speed, it is likely the Applicant would have seen him and been able to take evasive action in order to avoid the collision.
Each case turns on its facts.
In Slatter v Kyalde Pty Ltd,[17] two vehicles were approaching each other at an intersection which was not controlled by traffic lights. A collision occurred when the driver of one vehicle failed to give way to the approaching vehicle and turned right across its path. Both drivers saw each other beforehand. In assessing damages 100% as against the turning driver, Cox J stated:
…There is a temptation, I think, in these cases to be wise after the event and to equate what the driver having the right of way should have done with what he could have done. It is reasonable to expect a motorist in the plaintiff's position to drive at a moderate speed and to keep a careful look out and, in particular, to be watchful for any sign that the other driver has somehow failed to notice him. It is unreasonable, in my opinion, to require him to be so cautious and mistrustful as to be ready and able to avoid a sudden turn across his path by a driver who he has every reason to suppose has seen him and will give way to him. …. The burden of establishing contributory negligence lies on the defendant, and, in my opinion, it has not been shown that the plaintiff failed to have sufficient regard for his own safety by proceeding across the intersection as he did.
[17] (1979) 22 SASR 196 at 198.
That case can be distinguished from the within matter, given it did not involve a traffic light controlled intersection and did not have the unusual feature as in this case, namely the presence of the stationary west bound vehicles banked up at the lights, obstructing the vision of both parties. However, it does highlight the problem in using hindsight reasoning when making findings of apportionment.
A search of relevant precedents in this State reveals an absence of any cases with similar factual scenarios over the last 30-40 years. This is likely because such matters have resolved by way of negotiation and have not come before the courts for determination.
The Respondent acknowledged in his evidence that he assumed that other road users would abide by their obligations not to turn across his path when he had the benefit of a green light. In this respect, he was referring to the obligation imposed upon the Applicant by ARR 62.
However, the road rules are not definitive of the respective duties of road users, nor is the breach of such rules conclusive as to the performance of those duties. The duty to act reasonably in all the circumstances is paramount.[18]
[18] Sibley v Kais (1967) 118 CLR 424.
Given the time of night and the traffic conditions and with an appreciation of the fact that there were drivers waiting to turn right into Brooker Terrace, I am satisfied that a reasonably prudent rider in the Respondent’s position, should have approached the intersection with more caution.
However, given the Applicant’s over-riding obligation to give way and the other matters already outlined, in my view, the Judicial Registrar was correct in reducing the Respondent’s damages by only 10% to reflect the fact that his failure to ride more defensively in the circumstances contributed to the collision.
Having regard to all of the evidence, I would have made the same apportionment of liability as that made by the Judicial Registrar.
Orders
1    The judgment of the Judicial Registrar is affirmed.
2    The Application for Review is dismissed.
3    No order as to costs.