Rowett & Ashton v Uzelac No. Scgrg-99-214 Judgment No. S213

ROWETT and ANOR v UZELAC
[1999] SASC 213

Magistrates Appeal: Civil

PERRY J. This is an appeal from a judgment given by a special magistrate constituting the Magistrates Court sitting in its Civil Jurisdiction at Adelaide.
The appellants were the plaintiffs in the action. They sued the respondent for damages arising out of a road accident involving a collision between two cars which occurred on Sunday 7 February 1998 at close to 12 noon. Their claim was for $4,090 damages, being the cost of repairs to their car, and in addition the sum of $712 for the cost of hiring another motor car while the car involved in the accident was under repair.
The respondent counterclaimed for the cost of repairs to his car, which amounted to $7,000.
Following the trial, the learned trial magistrate delivered a reserved judgment in which he found the appellant Ashton 70% to blame for the accident and the respondent 30% to blame. He apportioned liability on that basis.
The appeal is brought against the learned trial magistrate’s finding as to liability. Put shortly, the appellants contend that he should have found either that the respondent was 100% to blame, or that the preponderance of liability should have been found to rest with him.
At the time of the accident, heavy rain was falling and driving conditions were poor. The appellant Ashton (who for convenience I will hereafter refer to simply as the appellant) was driving out of the city south on Glen Osmond Road approaching its intersection with Greenhill Road. Although Glen Osmond Road intersects Greenhill Road at an angle, and the appellant’s direction of travel was approximately south-east, it is easier to speak of her as travelling south.
For south-bound traffic in Glen Osmond Road leading up to the intersection, there were three traffic lanes.
The most easterly lane is for traffic turning left to travel east in Greenhill Road. The appellant was travelling in the lane nearest to the centre of Glen Osmond Road, which also serves as a turn-right lane into Greenhill Road for traffic intending to travel west in Greenhill Road. But it was also a lane from which it was proper to continue to travel south across the intersection.
The respondent was travelling west in Greenhill Road approaching the intersection with Glen Osmond Road, so that he was on the appellant’s left. In the direction in which the respondent was travelling, there are five lanes in Greenhill Road, the two lanes nearest to the centre of Greenhill Road being reserved for traffic intending to make a right-hand turn out of Greenhill Road into Glen Osmond Road in order to travel towards the city. The respondent had been travelling in the middle lane of the other three lanes, but due to the presence of traffic ahead of him as he approached the intersection, he changed lanes so that he ended up travelling in the lane furthest to his left, that is, the most southerly lane.
The intersection is controlled by traffic lights. The appellant entered the intersection on a green light, following another car immediately ahead of her in the same lane. The driver of that car intended to make a right-hand turn. After he had entered the intersection, he was not able to progress far into his turn in view of the passage of oncoming traffic in Glen Osmond Road travelling through the intersection in the direction of the city. That car stopped in a position in which he was ready to turn to the right, and the appellant stopped behind him. In her evidence at the trial, the appellant described the driver of the car in front as being “very cautious”. It was not until the lights facing them had turned to amber that he began to make his turn and the light had turned red by the time he had completed his turn.
The appellant was not in a position to proceed until the lights had turned red against her. Caught in the middle of the intersection, there was no practical alternative but for her to move forward, which she says she did slowly because of the dense traffic conditions. As she did so, she noticed a number of cars on her left ready to travel west in Greenhill Road across her path. According to her evidence, she “... went slowly, making sure that all cars had seen me”. What she thought to be all of the cars in that position stopped while she made her way across their path. When, on her evidence, she was “almost through the lights”, she noticed a car coming from her left, which turned out to be the car driven by the respondent. He had emerged from his position in the inner-most or most southern of the lanes for traffic travelling west in Greenhill Road. The appellant swung to the left, hoping to be able to drive behind him, but she was not successful in doing so. On her account of the matter, she “... just clipped the back of his car” as the two vehicles passed each other. It was the right-hand or driver’s side of her car which hit the driver’s side of the respondent’s car, towards the rear.
The respondent drove on into collision with a stobie pole on his far side of the intersection.
The appellant’s evidence was that when she first saw the respondent, he was travelling “... very fast, 60, 70, at least 60”, and that she was travelling only at about 20 or 25 kilometres per hour.
The appellant’s husband’s evidence generally supported the evidence given by the appellant, with the qualification that, according to him, before they had entered the intersection, the car immediately ahead of them already had its indicators on signalling an intention to turn to the right. On the other hand, the appellant did not think that the driver of the car in front had put his indicator on until a very late stage, after they had entered the intersection.
The appellant called Ms Kitto to give evidence. She had been driving a car in the centre lane of the three lanes for west-bound traffic in Greenhill Road (as opposed to turn-right traffic). She remembered seeing the respondent’s car in the left lane to the left of her, a little ahead of her car. She was at that stage stationary behind another car or cars which were stopped, waiting to cross the intersection.
In fact she remembered the respondent’s car overtaking her at a slightly earlier stage, at the same time passing from the lane in which she was travelling into the lane immediately to the left of her. She saw it then stop at the lights. Her evidence was:
“... as soon as the light turned green he just took off. It actually took me by surprise because I could see the other car (referring to the appellant’s car) was still in the intersection.”

She continued:

“Because of the conditions, it was hard to see but to me it was obvious that the car (the appellant’s car) was going through the intersection quite slowly and to have this other person in the Commodore take off so quickly I was so surprised because there was obviously someone still in the intersection.”

She described the progress of the appellant through the intersection as “more at a constant speed, very cautious as it was going through the intersection”.
In his evidence, the respondent asserted that he had “carefully proceeded out of the intersection”, but when he was about half-way through, he caught sight of the appellant’s car approaching quickly from his right-hand side. She was too close for him to do other than quickly swerve to the left in an unsuccessful endeavour to avoid the collision. He put his speed at a maximum of 25 to 30 kilometres per hour.
The respondent called as an independent witness another man, Mr Peters, who had been travelling in the same lane as the witness Ms Kitto, but he entered the lane to her right before reaching the intersection, so that he was then in the most northerly of the three lanes for through-traffic travelling west in Greenhill Road. He was the first car at the intersection when he stopped in that lane. As he had been driving along he had previously noted the respondent’s car some distance back before the intersection, at which stage it was travelling at about 60 kilometres per hour, matching Mr Peters’ own speed.
As the lights were red while he approached the intersection, Mr Peters slowed down. As he started to “roll to a stop”, the lights turned green. Although he moved off when he saw the lights change, he stopped again when he saw the approach of the appellant’s vehicle. He allowed the appellant to pass in front of him, after which he saw out of the corner of his eye to his left the respondent’s vehicle “spinning across the intersection”. He realised that the respondent must have gone inside of the car in the lane to his immediate left.
Another independent witness called by the respondent was a Mr Burfield, who was travelling in the lane nearest to the centre of the road for traffic travelling north in Glen Osmond Road. The traffic lights changed from green to amber and then to red before he reached the intersection, where he stopped. As he was stopped, he noticed some cars which had been travelling south in Glen Osmond Road and which were in the intersection, turn to the right out of Glen Osmond Road into Greenhill Road. He then noticed what must have been the appellant’s car proceeding across the intersection from behind the cars turning into Greenhill Road and saw the two come into collision. He put the speed of the respondent’s vehicle at between 40 and 60 kilometres per hour, and described the passage of the appellant’s vehicle in the following terms:
“The Laser took off fairly slowly as if the driver was in no particular hurry to get across the intersection. ...... 30 or 40 kilometres (per hour) by the time the collision took place.”
He saw other vehicles travelling west in Greenhill Road, that is, in the same direction as the respondent, start to move forward and then stop to allow the appellant to pass them.
It will have been seen from my summary of the evidence that there really was no serious factual dispute as to the immediate circumstances of the accident, although some evidence pointed to a faster speed on the part of the respondent than he admitted to, and he suggested that the appellant was travelling faster than most of the evidence suggested.
Counsel for the respondent submitted that the appellant was in breach of s45A of the Road Traffic Act, which provides:
“Notwithstanding any other provisions of this Act, a driver must not enter on or attempt to cross any intersection or junction if the intersection or junction or the carriageway which the driver desires to enter is blocked by other vehicles.”
The learned trial magistrate held that the appellant was in breach of that section. In particular, he held:
“In my view, the plaintiff was negligent in failing to wait at the stop line until the vehicle ahead of her had moved through the intersection and before she entered the intersection.”
He did not, however, find that the appellant was negligent once she had entered the intersection. On the contrary, his finding as to that was:
“I am satisfied and find that the plaintiff did proceed through the intersection as carefully as she was able in the circumstances. I am satisfied and I find that she travelled at moderate speed, probably in the order of 20 to 30 kilometres per hour.”
As to the respondent, the learned trial magistrate found that he ought to have seen the appellant’s slowly moving vehicle in the intersection before he crossed the stop line on his side of the road. He went on:
“The fact that the vehicles in the four lanes adjacent to his stayed where they were or moved forward and stopped ought to have put him on guard. If his view was blocked, he could have edged forward until he had a clear view, and had he then seen the plaintiff, he would have been able to stop in time to avoid a collision.”:
In the result, he held that the respondent was driving without an adequate look-out and was driving too fast. Although it does not appear from his findings just what speed he attributed to the respondent, it seems likely that he accepted the evidence of Mr Burfield that it was of the order of between 40 to 60 kilometres per hour.
As to apportionment, the learned trial magistrate described the appellant’s decision to enter into the intersection as an “initial error of judgment” which “put her in a position where she ultimately found herself proceeding against a red light”.
As for the respondent, his finding was that “despite the fact that he had a green light, he had a duty of care to other drivers who might be on the road”. He then went on to make the apportionment to which I have referred.
In my opinion, the learned trial magistrate erred in finding the appellant in breach of s45A. On a proper construction of that section, it applies only where the intersection, junction or carriageway which the driver desires to enter “is blocked by other vehicles”. At the time when the appellant entered the intersection, it was not “blocked”. That is so, whether one has regard to the lane in which she was travelling or the rest of the space available for south-bound vehicles entering the intersection. It was not blocked because the car immediately ahead of her was moving and she was able to move into the intersection behind it.
Insofar as the learned trial magistrate accepted the evidence of the appellant’s husband to the effect that before she entered the intersection the car immediately ahead of them was already displaying a turn-right signal, this does not alter the position, in the sense that that circumstance did not put her in breach of s45A. Although the overall traffic situation was dense, she had no reason to think that she would not be able to clear the intersection before the car immediately ahead had completed its right-hand turn.
I accept, however, that she should at least have given some thought to the possibility that it might not be able to complete its turn in time for her to make her way out of the intersection on the green light. But she was entitled to assume that in that situation, other vehicles would allow her to complete the crossing.
So that, in my opinion, negligence on the part of the appellant in making her entry into the intersection was not proved. She entered on a green light and was not shown to have been in breach of any duty of care in doing so.
On the other hand, contrary to the view expressed by the learned trial magistrate, I am of the view that she was negligent in failing, having moved off in order to complete her crossing after the car immediately ahead of her had cleared her path, to keep a sufficient look-out to her left to have seen the respondent move off into her path. It is obvious from her evidence that she did not see him until a very late stage, in my view, later than would have been the case if she had been maintaining a proper look-out.
As for the respondent, it seems to me that although he entered the intersection on a green light, traffic conditions were poor; there was, as I have explained, heavy rain falling, and the appellant had been stationary towards the centre of the intersection for some time. Other vehicles in the lane to the respondent’s right had seen the appellant’s predicament and had stopped to enable her to complete the crossing, and there is no reason to suppose that if the respondent had been maintaining a proper look-out, he would not have done likewise.
The onus was on the respondent, particularly having regard to the traffic conditions which confronted him, to be careful when he took off in response to the change of lights in his favour, and to ensure that before he proceeded far, the intersection was sufficiently clear of other vehicles to enable him to complete the crossing. The fact that vehicles to his right moved off and stopped should have alerted him to the possibility of another car coming from that direction.
Against the background of those observations, it seems to me that this was not a case where the negligence of either party was of a high order. But contrary to the view reached by the learned trial magistrate, in my opinion, the negligence of the respondent in failing to ensure that the way was clear before he moved into the intersection should have resulted in a higher proportion of responsibility being attributed to him. After all, he was more in control of the situation than was the appellant, in the sense that he did not have to move off until he was sure that the way was clear. On the other hand, she was caught in a predicament in which she had little choice but to attempt slowly to emerge from the intersection against the red light.
In all the circumstances, after carefully considering the matter, I have reached the view that the appropriate apportionment should have been the reverse of that found by the magistrate, that is to say, 70% against the respondent and 30% against the appellant.
In those circumstances, the outcome should have been judgment on the claim in favour of the plaintiffs for 30% of the assessed damages, that is, the damage to the car. Seventy per cent of $4,090 comes to $2,863. (The learned trial magistrate was not satisfied that the separate claim for hire of a replacement vehicle was made out.)
On the counterclaim, the respondent would be entitled to judgment for 30% of $7,000, or $2,100.
I allow the appeal for the purpose of quashing the apportionment found by the learned trial magistrate and substituting an apportionment of 70% against the respondent and 30% against the appellant Deborah Ashton.
I substitute judgments on the claim and counterclaim in the amounts to which I have referred.
I will hear the parties as to costs.

[1999] SASC 213

26 May 1999