Sharp v Ferguson File No. SCGRG 91/2748 Judgment No. 3652 Number of Pages 4 Negligence Contributory Negligence

[1992] SASC 3652

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT King C.J.(1), Cox(2) and Matheson(3), JJ.

CWDS
Negligence - contributory negligence - apportionment of responsibility and damages - road accident - intersection controlled by traffic lights - defendant crossing with green light - plaintiff crossing against red light - failure of defendant to observe approach of plaintiff as soon as reasonable - trial judge's apportionment 75% against the plaintiff and 25% against defendant - varied on appeal to 90% against plaintiff and 10% against defendant.

HRNG ADELAIDE, 6 October 1992 #DATE 6:10:1992
Counsel for appellant:     Mr B.F. Beazley
Solicitors:                 Finlaysons
Counsel for respondent:     Mr I.H. Polson
Solicitors:                 R J Cole and Partners

ORDER
Appeal allowed. Judgment varied by reducing the amount of the same to the sum of $5440.82. The order for costs in the court below set aside and in lieu thereof order that the plaintiff recover no costs of action. Order that the respondent pay the appellant's costs of appeal, to be taxed.

JUDGE1 KING C.J. The respondent to this appeal was plaintiff in an action in the District Court claiming damages for injuries sustained by him when a motor car which he was driving collided with a motor car, driven by the present appellant who is the defendant in the action, at the intersection at Kensington Road and Glynburn Road, Kensington Park on 1 January 1986 during the hours of daylight. 2. The defendant was driving his motor car in a northerly direction along Glynburn Road. The plaintiff was driving his motor car in an easterly direction along Kensington Road. There are two lanes for north bound traffic on Glynburn Road at this point; there are also two lanes for east bound traffic on Kensington Road. 3. There was a conflict at the trial between the plaintiff and the defendant as to the state of the traffic lights which control this intersection at the time of the collision, and, indeed, at the time when the respective vehicles entered the intersection. The plaintiff gave evidence that he entered the intersection when the green light favoured him. The defendant gave evidence that he did not enter the intersection until the lights facing him had turned to green. 4. The learned trial judge found that the defendant and an independent witness, who was called on behalf of the defendant, were to be preferred to the plaintiff and the plaintiff's wife and daughter who gave evidence. He found that the defendant brought his vehicle to rest before entering the intersection when the traffic lights facing him were red. There was another car driven by the independent witness alongside the defendant's car. That other car was in the left hand lane; the defendant's car was in the right hand lane. When the light turned green, the car in the left hand lane proceeded to make a left hand turn into Kensington Road. The defendant then moved off to cross the intersection. 5. The learned judge found that the car on the inside lane, the independent witness' car, had moved off before the defendant commenced his forward movement. When the defendant was halfway across the southern half of Kensington Road he observed the plaintiff's car. It was then under heavy braking and was entering the intersection. The learned judge found that its speed prior to the application of the brakes had been approximately 30 to 40 kph. 6. There was a collision between the two vehicles at about the centre of the intersection, although, slightly to the north of centre. The learned trial judge found that the defendant was guilty of negligence in not observing the plaintiff's vehicle in time to avoid the collision. He also found that the plaintiff was guilty of contributory negligence and he apportioned responsibility for the accident, 25 percent against the defendant and 75 percent against the plaintiff and reduced the amount of the assessed damages accordingly. 7. The defendant has appealed to this court. He does not complain of the finding of negligence. He does, however, contend that the apportionment is wrong and that the degree of responsibility attributed to him should be substantially reduced. 8. We have had authorities cited to us, in particular, cases decided in the Full Court with respect to collisions at intersections controlled by traffic lights. In two of those cases the degree of responsibility attributed to the driver who had the benefit of the green light was fixed at 10 percent. I would not wish it to be thought that there is any rule of thumb, or any general practice in the courts, of attributing any particular degree of responsibility to a driver who has the advantage of the green light at a traffic controlled intersection. Every case must depend upon it's own facts and an assessment must be made of the respective degrees of responsibility of the drivers, having regard to the circumstances of the particular collision. It can be said, however, from a consideration of the authorities, that it is unusual, at least, for a driver having the benefit of the green light to have a degree of responsibility as high as 25 percent attributed to him. Indeed counsel have not brought to our attention any case in which that has occurred. At an intersection which is not controlled by traffic lights, it would be most unusual for the driver of the stand on vehicle, whose only fault was a failure to observe the give way vehicle as soon as he might have done and in time to avoid the collision, to suffer an apportionment against him exceeding 25 percent. That consideration is an indication that an apportionment as high as 25 percent against a driver favoured by the traffic lights must be regarded as unusual, and requires the careful scrutiny of this court. 9. The plaintiff was clearly seriously at fault. He entered the intersection against the red light and at a time when the red light must have been barring his passage through the intersection for an appreciable period of time. The version of the plaintiff and his witnesses that he entered on the green light having been rejected, there is no way of knowing whether his application of the brakes was in response to a belated appreciation that the light was against him or whether it was simply because he saw the defendant's vehicle moving into his path. The learned judge considered that it was the latter and made that finding, that being, no doubt, an inference which he was prepared to draw from the proven facts. 10. It is therefore not really possible to say whether the plaintiff's fault consisted in not observing the state of the traffic lights or whether he was deliberately driving across the intersection in defiance of the traffic lights. Whatever the explanation may be, there was clearly a departure from the standard of care required of a motorist of a very grave kind. 11. The order of the defendant's negligence was quite different. It appears, from his evidence, that he had observed the plaintiff's vehicle some distance down the road while he was still stationary. He did not see it again until it was about to enter the intersection. The learned judge considered that the presence of the vehicle in the left hand lane, and its movement to the left as it made the turn, constituted some impediment to the defendant's view to the left along Kensington Road. Moreover, the defendant had to be aware of the possibility of a vehicle proceeding in a westerly direction along Kensington Road and completing the crossing against the lights. 12. The defendant moved off after the vehicle to his left. There was therefore no precipitate movement in response to the green light. The finding is that he moved off slowly. As I have said he had to be aware of the possibility of traffic approaching from his right. Nonetheless he observed the plaintiff's vehicle again when he, the defendant, was only half way across the southern half of Kensington Road. It is by no means a case of the driver of the vehicle favoured by the lights ignoring the state of traffic around him, and ignoring the possibility of a vehicle entering the intersection against the lights. 13. It seems to me that when one considers all those factors, the attribution to the defendant of a degree of responsibility approximating that which would be attributed to the driver of a stand on vehicle at an intersection not controlled by traffic lights who had behaved in much the same way, indicates that an error has been made by the trial judge. It seems to me that the attribution of responsibility to the extent of 25 percent to the defendant, in those circumstances, is quite disproportionate to the degree of his responsibility for the collision which occurred. 14. Apportionment of responsibility for a road accident is, in many cases, very much a matter of opinion and the opinions of different judges will differ. For that reason, appellate courts are slow to interfere with an apportionment made by a trial judge. Where, however, the apportionment of responsibility is plainly disproportionate to the respective degrees of responsibility of the drivers involved, it is the duty of the appellate court to interfere. In my opinion this is such a case. 15. It seems to me that the degree of responsibility attributed to the defendant is quite disproportionate to his fault and that this court ought to interfere. In my opinion, therefore, the appeal should be allowed. The apportionment should be varied to 10 percent against the defendant and 90 percent against the plaintiff, and the amount of the judgment should be varied accordingly. The order of the court will be: Appeal allowed. Judgment varied by reducing the amount of the same to the sum of $5440.82. The order for costs in the court below set aside and in lieu thereof order that the plaintiff recover no costs of action. Order that the respondent pay the appellant's costs of appeal, to be taxed.

JUDGE2 COX J. I agree with the order proposed by the Chief Justice for the reasons that he has given.

JUDGE3 MATHESON J. I also agree.