Hackworth v Bentley (1968 SASC 1)

by John Leo Travers

DELIVERED

8TH APRIL

1968

 

HACKWORTH v. BENTLEY

 

JUDGMENT of the Honourable Mr. Justice Travers

 

For the Plaintiff:	Mr. R.M. Duffy, Wallman & Partners
For the Defendant:	Mr. O.C. Isaachsen, Murray, Cudmore, Worth & Isaachsen.

 

Judgment No. 1

HACKWORTH v. BENTLEY

Travers J.

About 42 years ago, or to be more precise on the 12th day of September 1963, a collision occurred between a motor scooter ridden by the plaintiff and a taxi cab driven by the defendant. These proceedings arise out of that incident, in that each claims damages from the other. The collision occurred within the intersection of King William Street and North Terrace, Adelaide, at about 6.20 p.m., which was shortly before lighting up time. The plaintiff had been to a lecture at the Institute of Technology at the corner of North Terrace and Frome Road, and was on his way home at the time. He rode his scooter along North Terrace and was crossing the intersection with the intention of proceeding west on the ordinary route towards his home. The defendant, who owns and drives a taxi, had delivered a passenger to the North Terrace entrance of the Adelaide Railway Station, and had driven east along North Terrace to the intersection in question with the intention of passing through the intersection and proceeding along King William Street in a southerly direction. In the process of these manoeuvres, a collision between the two vehicles occurred within that intersection. The relevant legislation relating to "turning to the right" which was operative at that time was sec.70 of the Road Traffic Act 1961. Subs. 8 of that section provided inter alia "where there are arrows, lines, words or signs indicating a course to be followed, turning right must be made in the manner so indicated". The intersection in question was, at the time, marked in the manner of what is popularly known as the diamond turn, or the short right-hand turn. Painted upon the roadway in the intersection there was a line in the shape of an arc which continued from the middle line of North Terrace to the middle line of King William Street, and there were arrows appropriately placed to indicate that this line was the course to be followed by traffic turning from North Terrace into King William Street with the intention of travelling south. There were traffic lights also at each of the four corners of the intersection. At the time in question the light signals at that intersection were co-ordinated and they operated in the following sequence; green, 27 seconds; green plus amber, 3 seconds; red, 27 seconds; red plus amber, 3 seconds - and then continuing to repeat in that order and for those same lengths of time. A police officer gave evidence that he was on the scene of the accident very shortly after it occurred, and he made certain measurements and fixed the position in which the vehicles had collided. He did not in his notes make any reference to the presence of the diamond turn, or of the lines upon the road, but that they were there was proved aliunde. Applying these measurements and making adjustments to cope with the fact that his measurements were made by pacing, it would appear that the point of impact was at a position in which the front of the taxi was about 11 or 12 feet north of the alignment of the southern kerbing of North Terrace, and approximately opposite the middle of the three lanes which constituted the western half of King William Street. The defendant himself thought that he had followed the painted line around as reguired and with his right-hand wheels a foot or two to the north east of it, but in point of fact the police officer's measurement would appear to establish that he had cut off a portion of it, and that his vehicle was over wholly or in part on the south western side of this line at the time of impact. The scooter atruck the left hand front mudguard of the taxi, somewhere near to the hub of the front wheel, and the taxi was stationsry at that moment. The plaintiff at the time was 21 years of age and was employed by a subsidiary of the Philips Electrical Company. He suffered concussion in the accident and he was unable to give any information at all about the happening. He remembered the lecture ending and that he proceeded immediately to his scooter. He mounted it and turned from Frome Road into North Terrace travelling in a westerly direction. From then he had no memory of anything that happened until about 4 o'clock the next morning. Apart from the plaintiff and the defendant, the only other witness of the actual occurrence was a man named Carter, who was driving in a northerly direction and stopped in obedience to the traffic lights at the stopping line on the southern side of the intersection. He was in the lane nearest to the middle of King William Street. He deposed to having seen the collision, and having seen both vehicles before the impact. He made a statement to the police within a few weeks after the accident, and he made another statement to an insurance officer on behalf of the defendant, and still another to the plaintiff's solicitors. This witness, when giving evidence, impressed me as one with rather unusual descriptive ability, but in retrospect, having seen the various statements he made, it seems that maybe his descriptive ability has been acquired through considerable practice as I find that the various statements he made are not readily reconcilable, and are accordingly of very little value to me in attempting to decide precisely how the accident happened. In evidence-in-chief he said the taxi had made a late movement through the intersection at about 10 to 15 m.p.h. and stopped either momentarily before or at the moment of impact. He mentioned only one stop by the taxi. He estimated the cyclist's speed at between 25 and 35 m.p.h. Though he did not specifically mention it in chief, if these speeds were substantially correct the plaintiff might well have been in the intersection when the light he was approaching was either green or had changed from green to amber in circumstances which would, by virtue of the regulations under the Road Traffic Act, permit him to proceed. He said specifically "When I looked to my right and first saw the scooter I feel it had already entered the intersection.

During his cross-examination about the various statements he had made about this matter, however, he said, "My impression in my present memory is that he did actually cross the intersection after the stop light came on". He also said "My impression is he had a red light against him at the time he was about to enter the intersection, though I have no proof, but that was my belief at the time". I was very favourably impressed by the plaintiff, but as I have already said he was unable to tell me what had happened. This of course left the field entirely open to the defendant, by whom I was not very favourably impressed. He was dull, dogmatic and was satisfied with general and somewhat inaccurate statements. He, however, gave a fairly detailed account of what he claimed had happened. In many respects he was an unsatisfactory witness, but I can find no real basis on which I could justify a rejection of his statement in its main essentials. I accordingly find on the balance of probabilities that:

1. The defendant drove his taxi cab up to the western stopping line on the western side of the intersection and stopped as the red light was against him. The position in which he stopped was with his right hand wheels near to the middle line of North Terrace.
2. After the light changed to enable him to proceed, he did so but as there was traffic proceeding in a westerly direction through the intersection, he stopped again within the intersection.
3. When that traffic had cleared from the intersection he started again, but then saw the plaintiff coming from the east and accordingly stopped again in the position in which the impact occurred.
4. The plaintiff was travelling at a speed of between 25 and 35 m.p.h. and did not alter his direction or speed until the impact occurred.
5. The plaintiff was east of the intersection when the light turned to red against him, and he entered the intersection against the red light and proceeded through the intersection. The defendant has asserted this quite definitely, and I am unable to reject his assertion. I have already referred to some of Carter's evidence on this subject. Though his various statements before trial are before me, I can treat them only as tests to be applied to his evidence in court and cannot treat them as being in themselves evidence of the truth of their contents. Mr. Duffy, in his very able argument, submitted to me a number of calculations designed to show in relation to speeds and distances that the plaintiff did not ride into the intersection contrary to the red light. I am unable, however, to find sufficient probative value in these to justify my rejecting the definite statement of the defendant, supported as it is to a slight extent by the altered story of the witness Carter. These calculations are consistent with the plaintiff having entered the intersection as he was entitled to do against the amber light, but were not inconsistent with the defendant's evidence that he entered against the red light.
6. If the plaintiff had moved slightly to his left, a matter perhaps of 5 or 6 feet, he would have cleared the taxi and avoided the accident.

I think the defendant on the evidence was not negligent. To stop as he did seems to me to be a natural reaction in the circumstances in which he found himself, and there is a very heavy onus on one who enters an intersection against the red light. Joseph Eva Ltd. v. Reeves (1938) 2 A.E.R. 115.

In all these circumstances, whilst it is regrettable that the plaintiff was unable by reason of his injuries to give any account of what happened, and whilst I suspect that I have not had a full and completely accurate account of the incident, I can do no other than decide upon the balance of probabilities on the evidence as presented to me. On that evidence I find that the defendant was not guilty of negligence and that the collision and the damage to both vehicles were caused by the plaintiff's negligence in entering the intersection against the red light. There will accordingly be judgment for the defendant on both claim and counter claim. The amount of judgment on the counter-claim is for $34.00. The defendant will have his taxed cost of action.