SHOOLBREAD v DRINKWATER - [2004] SASC 267

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SHOOLBREAD v DRINKWATER
Judgment of The Honourable Justice White
6 September 2004
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - INTERSECTION AND JUNCTION ACCIDENTS
Appeal against apportionment of damages - Appellant's vehicle approached intersection with traffic lights - Appellant observed traffic lights change from green to amber - Appellant braked suddenly - Respondent's vehicle hit rear of appellant's - Respondent travelling too close behind appellant - Magistrate apportioned liability in ratio of 85:15 in favour of appellant - Magistrate erred in considering whether appellant had breached duty of care to respondent - Appellant admitted she had not seen lights change from green to amber - Failure to see the lights change did not demonstrate contributory negligence on part of appellant - Appeal allowed - Appellant to recover whole of the damages to be assessed.
Magistrates Court Act 1991, s 40; Road Traffic Act 1961, s 80; Australian Road Rules Rule 57, referred to.
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601; Sibley v Kais (1967) 118 CLR 424; Stoeckel v Harpas (1971) 1 SASR 172, applied.
Mugford v Ames (2000) 31 MVR 406; Kambouridis v Heyn and TransAdelaide [2000] SASC 361; Commissioner of Railways v Ruprecht (1979) 142 CLR 563, considered.

SHOOLBREAD v DRINKWATER
[2004] SASC 267
Magistrates Appeal
WHITE J:
Introduction

This is an appeal, pursuant to s 40 of the Magistrates Court Act 1991, from a decision of a Magistrate apportioning liability for a motor vehicle collision.
The present appellant was the plaintiff in the proceedings before the Magistrate and the respondent, the defendant to those proceedings. It is convenient, in this judgment, to go on referring to them as plaintiff and defendant respectively.
The Magistrate apportioned liability 85:15 in favour of the plaintiff. The plaintiff appeals against that apportionment.
The plaintiff does not really challenge the findings of fact of the Magistrate. It is the inferences and conclusions from those facts which are impugned.
Background Circumstances
On Sunday 25 August 2002 at approximately 10.30 am, a rear-end collision occurred between the plaintiff’s vehicle and the defendant’s vehicle at the intersection of Flagstaff Hill Road and South Road at Darlington. The plaintiff’s vehicle was the lead vehicle and the defendant’s the following vehicle. At that intersection, Flagstaff Hill Road runs almost exactly in a north-south direction. On the opposite side of its intersection with South Road, Flagstaff Hill Road becomes Marion Road, which also runs almost exactly in a north-south direction. Flagstaff Hill Road and Marion Road intersect with South Road at approximately a 45 degree angle so that South Road, at this point, runs in a north-east to south-west direction. As nothing turns on the precise direction of South Road, it is convenient, in this judgment, to speak of South Road running in an east-west direction.
The intersection of Flagstaff Hill Road and South Road is controlled by traffic lights. The plaintiff was travelling in a northerly direction, down the relatively steep incline of Flagstaff Hill Road and in its right-hand lane, towards the intersection, at a speed of approximately 30 to 40 km/h. The plaintiff intended to perform a right-hand turn onto South Road at the intersection. The defendant was travelling in the same direction, behind and in the same lane as the plaintiff’s vehicle.
As the plaintiff’s vehicle approached the intersection, the traffic lights which had been green in her favour turned to amber. There was evidence that the lights would remain on amber for four seconds before turning red. The plaintiff did not see the change from green to amber but it seems likely that she must have noticed the change of colour shortly after it occurred. The plaintiff then braked sharply, bringing her vehicle to a halt. The Magistrate found that the plaintiff’s vehicle was “pulled up to a dead stop, or a near dead stop, quite abruptly”.
The defendant’s vehicle then collided with the rear of the plaintiff’s vehicle.
The Witnesses at Trial
Three persons gave evidence at the trial: the plaintiff, her 16-year-old son, who was a front-seat passenger in her vehicle, and the defendant.
The Magistrate did not regard the evidence of any of those witnesses as being altogether reliable. This was not because of a lack of honesty on their part – rather it turned on factors affecting the weight which could be attached to their evidence.
The Magistrate said that he regarded the son’s evidence with “a degree of caution and scepticism”. This was because of an admission by the son that it was difficult to remember the precise circumstances, and because of a further admission that he had discussed the circumstances of the accident with his mother on three to four occasions.
The Magistrate found that the plaintiff’s estimates of distance to be unreliable. He considered that her evidence was affected by a degree of reconstruction. On the other hand, the Magistrate considered that the defendant’s evidence had “a certain component of inherent improbability” and that, to some extent, the defendant “was being speculative and reconstructive”.
The Point of Impact
The Magistrate did not make a finding as to the precise point at which the plaintiff’s vehicle came to a halt. His finding on this topic is a little ambiguous. It is clear that he rejected the plaintiff’s account, but not clear that he accepted altogether the evidence of the defendant on this topic.
To understand the evidence and the findings on this topic, it is necessary to say something about the layout of the intersection. A vehicle travelling north on Flagstaff Hill Road and into the intersection first has to cross a stop line which consists of a wide painted white line running in an east-west direction across the carriageway for northbound traffic. Then, after a distance of a little over one metre, there is the first of two broken parallel white lines which run in an east-west direction and which form a pedestrian crossing. Within a metre or so of crossing the second of those pedestrian crossing lines, the vehicle is then in the intersection and in the pathway of vehicles travelling west on South Road through the intersection.
The plaintiff’s evidence was that her vehicle came to a stop as a result of her sharp braking with the front wheels of her vehicle to the north of the white stop line. The plaintiff claimed that, as a result of the impact, her vehicle was pushed forward (in a northerly direction) and across the two pedestrian lines.
On the other hand, the defendant claimed that the plaintiff’s vehicle was brought to a stop to the north of the more northern of the two pedestrian lines. That is, the defendant’s claim was that when the plaintiff’s vehicle stopped, it was already in the intersection, having crossed the more northern of the two parallel lines marking out the pedestrian crossing.
The Magistrate said:
“I am of the view that the defendant’s evidence on this aspect is to be preferred, ie that the plaintiff’s car did come to a halt but actually in or upon the intersection further than she had testified to.”
This finding is ambiguous. If the Magistrate had said simply that he preferred the defendant’s evidence on this aspect, then it could have been concluded that the Magistrate found that the plaintiff’s vehicle came to a halt at least after the front of her vehicle had crossed the more northern of the two pedestrian lines. However, the finding that the plaintiff’s vehicle came to a halt “in or upon the intersection further than she [the plaintiff] had testified to” suggests that the Magistrate may have had in mind a position further to the north than stated by the plaintiff but not necessarily so far as indicated by the defendant.
The Magistrate’s Reasons
The Magistrate found the defendant negligent because he had failed to establish and maintain a sufficient distance behind the plaintiff’s vehicle so as to be able to stop in the event of a sudden stop by her vehicle; because of an admission by him that he could have stopped, without entering the intersection, had he chosen to do so when the lights turned to amber; and because, instead of complying with the law, the defendant had chosen to go “with the flow of traffic” and had entered the intersection. Moreover, although stating that he was following the flow of traffic, the defendant admitted that there was no vehicle in the adjoining lane, whose “flow”, it could be said, he was following.
The plaintiff was found to have been contributorily negligent because she had not seen the lights turn from green to amber; because she was not aware of the presence of the defendant’s vehicle behind her, and because she had behaved in a manner not required by Rule 57(2) of the Australian Road Rules. The Magistrate found that the plaintiff had failed to discharge a duty of care owed by her to the defendant.
The Magistrate was influenced as to his finding of contributory negligence by the decision of the Full Court in Mugford v Ames (2000) 31 MVR 406. In that case, Martin J, with whom Prior and Williams JJ agreed, said at 413 [38]:
“The duty of a driver in the position of the appellant in a line of traffic requires the driver to drive in such a manner that, if the circumstances of the flow of traffic so require, the vehicle can be brought to a stop without danger to other vehicles. It is foreseeable that if braking is left to the last moment such that emergency braking must be undertaken, with or without impact with the vehicle in front, following drivers will be put at the risk of injury through collision with the rear of the stopping vehicle. It is not uncommon for following drivers to be less than properly attentive and to drive in such a manner that they are unable to avoid impact with the vehicle in front if emergency braking occurs.”
See also Kambouridis v Heyn and TransAdelaide [2000] SASC 361 per Gray J.
Consideration
The Magistrate was correct in finding the defendant in breach of the duty of care which he owed as a following driver.
The conclusion that the plaintiff was contributorily negligent is, in my opinion, affected by error. The Magistrate determined the issue of the plaintiff’s contributory negligence by concluding that she was in breach of a duty of care owed by her to the defendant. This is evident from the following passage in the Magistrate’s reasons:
“Failure to establish and maintain a proper or timely lookout for other drivers who may have occupied the position or the vicinity of the position of a car in the defendant’s case, the failure to observe a timely and proper manner the changing of the lights controlling the intersection and so lead me to believe the plaintiff did fail to discharge her duty of care towards the defendant. I also find that that failure was contributory to and partially causative of her injuries in addition to the failure, the overwhelming failure, of the defendant to establish and maintain a sufficient distance behind the plaintiff’s car to ensure that a collision such as this would not occur.”
Contributory negligence occurs when the plaintiff fails to take reasonable care for his or her own safety and the failure contributes, in part, to the causation of the injuries suffered by the plaintiff. The existence, and breach, of a duty of care owed to another forms no part of the defence of contributory negligence. In Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611, the Privy Council said:
“When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured person did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”
See also Commissioner of Railways v Ruprecht (1979) 142 CLR 563, per Mason J at 570.
Thus, there is a significant difference between establishing negligence on the one hand, and contributory negligence on the other.
I consider therefore that the Magistrate has made an error of principle by determining the issue of the plaintiff’s contributory negligence by considering whether the plaintiff was in breach of a duty of care owed by her to the defendant.
That makes it necessary to consider the question of contributory negligence afresh. It is, however, convenient to make that consideration by reference to matters considered by the Magistrate.
The Magistrate referred first to Rule 57(2) of the Australian Road Rules. Those Road Rules have the force of law in this State, having been made by the Governor pursuant to s 80 of the Road Traffic Act 1961. Rule 57 provides:
“(1)       This Rule applies to:
(a)    A driver approaching or at traffic lights showing a yellow traffic light; or
(b)    A driver approaching or at traffic arrows showing a yellow traffic arrow who is turning in the direction indicated by the arrow.
(2)The driver must stop:
(a)    If there is a stop line at or near the traffic lights or arrows and the driver can stop safely before reaching the stop line – as near as practicable to, but before reaching, the stop line; or
(b)    If there is no stop line at or near the traffic lights or arrows and the driver can stop safely before reaching the traffic lights or arrows – as near as practicable to, but before reaching, the nearest or only traffic lights or arrows; or
(c)     If the traffic lights or arrows are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection – before entering the intersection.
(3)If the traffic lights or arrows are at an intersection and the driver is not able to stop safely under sub-rule (2) and enters the intersection, the driver must leave the intersection as soon as the driver can do so safely.”
It is unnecessary in this judgment to refer to the definitions in the Australian Road Rules of the expressions “enter” and “intersection”.
The combined effect of these provisions was that the plaintiff, when unable to stop before the stop line, was required to stop, if that could be done safely, before entering the area of the intersection in which vehicles travelling on Flagstaff Hill Road and South Road might collide. As noted above, the Magistrate’s finding about where the plaintiff’s vehicle came to a halt is ambiguous but it seems that the Magistrate may well have found that the plaintiff’s vehicle was, at least in part, partly in that area of the intersection. The consequence of that is that the plaintiff stopped her vehicle on the amber light although not required by law to do so.
A second matter, which influenced the Magistrate was the plaintiff’s admission that she did not see the lights turn from green to amber. This meant that when the plaintiff first saw the lights on amber, she did not know how much of the four-second’s phase of the amber light remained. This influenced her decision to brake abruptly and was found by the Magistrate to be the cause of her stopping when not required to do so.
The Magistrate does not say so explicitly but it seems that he regarded the failure of the plaintiff to see the change from green to amber as evidence of a want of proper lookout by her, and in turn, a want of exercise of reasonable care. Thus the Magistrate said:
“The very fact that the plaintiff did not see the light change from green to yellow means that she had no way of knowing what was safe in the circumstances that confronted her because she was unable therefore to say what margin for error she had in entering the intersection and leaving it. More importantly it was a case of her stopping on an instinct facing a yellow light when she did not know how far into the phase of the yellow light the particular light had been directing her behaviour.”
I do not consider that the mere failure to see the lights change from green to amber was evidence of a want of care by the plaintiff for her own safety. There are many possible explanations, all consistent with the exercise of good driving practice, why a driver may not observe the change at the very moment at which it occurs. For example, a driver may look momentarily in the rear vision mirror, or check the position of his or her vehicle within the lane of traffic, or check the position of another vehicle or pedestrian, or look at the speedometer to check the speed of the vehicle, at the very moment when the change of lights occurrs.
In the present case, the plaintiff was not able to explain why she did not see the change of lights but I do not regard that as being decisive. The momentary averting of the eyes by a driver from the road for purposes such as those outlined above is commonplace and often occurs unconsciously as part of good driving practice.
The plaintiff did say however that she did not see the defendant’s vehicle until after her vehicle had come to a halt, which implies that she was not looking in the rear vision mirror. The plaintiff also acknowledged that she had not been looking at the speedometer. That evidence excludes two of the possibilities to which I have referred above but is insufficient, in my opinion, to indicate a want of proper lookout constituting a failure to take care for her own safety.
The driver of a vehicle approaching an intersection controlled by traffic lights has to make a judgment, when the lights turn from green to amber, whether to proceed through the intersection or to stop. Often that judgment has to be made very quickly. It is a judgment which has to be made having regard to the requirements of the law, considerations of safety (ie, the possibility of impact with vehicles entering the intersection from other directions), considerations of the undesirability of coming to a halt in a position which would cause obstruction to other persons entering the intersection, as well as consideration of the position of any following vehicles. A driver entering an intersection cannot simply rely on those about him or her to comply with the law. In Sibley v Kais (1967) 118 CLR 424 at 427 the High Court said:
“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 on the expected performance by the driver of the giving 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 the statutory sources or 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.”
The judgment of the driver in such circumstances should be influenced by the concept of defensive driving to which Wells J referred in Stoeckel v Harpas (1971) 1 SASR 172. But it is a judgment which may be made by the driver with the knowledge that the change of light should be visible to the following driver who will, by definition, have a greater period of time in which to stop.
In most cases the lead driver will be focussing his or her attention on the circumstances ahead of him or her, rather than upon the position of the following driver.

Bearing in mind these considerations, in the circumstances of this case, I do not consider that it can be said that the plaintiff’s conduct evidenced a want of reasonable care by her for her own safety. The plaintiff made a judgment to stop because she thought that was required of her. As it happened, the plaintiff would have been entitled to continue through the intersection, but in choosing to stop, I do not think that it can be said that she was failing to exercise reasonable care for her own safety. This is particularly so as the defendant did not claim that he was misled by the plaintiff, eg, by claiming that he observed her continuing towards the intersection at an unabated speed and therefore presumed that she was not going to stop. Rather, the defendant’s complaint was that the plaintiff had stopped on the amber light in the intersection when it was unnecessary to do so.
This conclusion makes it unnecessary to consider the question of whether any want of care by the plaintiff for her own safety was a cause of her injuries. In the circumstances of the present case there must be a real question as to whether the requisite causal relationship exists. I refer in particular to the fact that the defendant, on his own admission, had sufficient space in which to stop, after the lights turned from green to amber, before entering the intersection. Had the defendant acted in compliance with the law and reasonably, this collision would not have occurred. There is much to be said, in my view, for the proposition that the defendant was the sole cause of the plaintiff’s injuries. However, in the light of the conclusion I have reached above, it is unnecessary to express a concluded view about this aspect.
Conclusion
In my opinion, the appeal ought to be allowed. The order of the Court is that the judgment of the Magistrate that the plaintiff recover 85 per cent of the damages be set aside and in lieu thereof there be an order that the plaintiff recover from the defendant damages to be assessed. Subject to hearing from the parties, I will remit the matter to the Magistrate for consideration of the question of costs.