JUDGMENT , HIGH COURT Of AUSTRALIA. COURT ¢ (pp_l to 5) EARKER v CORKHILL ee KR JUSTICE ISAACS. Delivasd 12-9. (429 PARR vy ___CORKHITL, JUDGLENT , toe About 7 ofcloek in the morning of June 7,192s, a collision occurred on the Cotter Road Canberra,between a mofor eyele riaaen oy tne plaintir£g and a motor car driven vy the derendant. Tne plaintirf sustained severe injuries owing as he says to the de-~ -Xeunx fendant's negligence in travelling on ner wrong side of the road, The defendant denies negligence, the case was very ably and fairly presented on voti sides, the plain- -tiff's story in brief is this.He says he was travelling from Canbcrre to Mount Stromlo,with a friend named Prior riding pillion behind him, The road was formed for a width of about 174 teet,having a sort of rise at the edge of the formation,varying from 6 inches to 24 feet in height and beyond the edge of the formation there was loose or rough ground, he says he was travelling well on his proper side about 2 or 3 feet from the edge of the formation, The morning everyone agrees was very foggy which lessened visibility with respect to approaching traffic, wWiiile travelling along a straight portion of the road tne plaintiff saye,he suddenly saw a motor car approaching him at a kimkas distance of say 50 feet, 1t was directly in front of him,that is on its wrong sdde,about 2 or 3 feet from the edge of the formation. Having regard to the neture of the ground, and the fact of a opasneer: behind hin,the plaintiff considered it practically impossible to turn Ap vont to his left,and, as to continue straight ahead appeared ,certain disas -ter disaster,nis only reasonable course was to move over to the centre of tne road, As he did so,the motor car did the same thing, and tnen the plaine -tirf tried to get oack to the left,out was struck oy the defendants mud-gtard and continuing his course the length of the carp his right leg jambed between the cycle and the running board of the car, The cycle fell over. lrior was precipitated over the plaintiff and the plaintiff was rendered insensivle and his right leg was fracture.. Prior corroborated the plaintiff in saying the car was on the wrong sid@,------<-8r=-9---- The defendant's account is quite different, and is substantially as follows, She with her sister and some infant members of her family were proceeding towards Canberra. She travelled strictly in the centre of the road.8he first observed the motor cycle at a distance which I take to ve about 50 feet away, It was then travelling in the centre of tne road running straight towards her, she pulled to mer left,ner own side. A little after,the cycle altered its course vy turning towazds her. She jambed her brakes on and pracfically stopped. At thés point the plain- ~tiff's cycle crashed into her mudguard and the damage ensued. Wien the crash occurred, which was while the car was still on the formation and aS £uxxa far as she could eof, the defendant's proper side of the forma- -tion,her sister got out,the brakes were released and the car went gently over the formation for a few yards. the defendant Says, when she got to them,she asked Parker and Prior wnat they did it for, and Furkea replied that ne did not see her, Yiiat is the defendant's story and if true it abeolves ier, her sister corrovorates her as to the position on the road, Constable sresnan wno visited the spot about Beate later WOME Ss de kare found what-I accept as her tyre marks after she jambed on the brakes hiatus, and,witha / when age went over the edge of the formation, ALL other ge were tnuen opliterated, 'tne plaintiff denies the conversa of the evidene -tion mentioned, if I nad to determine the matter in tue absence/of Anderson and Tweedley I should in the circumstances feel great diffi~ -culty in adopting the defendant's version in preference to that of the plaintiff --er-- cre enn eee es Yhe probabilities seem to me even in that case to rest strongly with the plaintiff£, with respect to the contested conversation @ feel sure mis taken togetner the defendant ig under some/appYehension, The ylaintifits versLon/s intelligible ,once it is conceded that both he and the defendant were travelling on the road in the positions he gives, And I may add that in that event his conduct was reasonable, But in the defendant's ammxx account I find it aifficul$ to assign any intelligible cause for the extraordinary act of the plaintiff in turning towards the defendant's car. #ven if she had not deviated from her course,there was ample roon for nimz on his proper side, As she did turn to skhexpinimhif2xxxx her left he bad still more room increasing up to avout 10 feet on her right. iihy if he saw her should he do the one senseless thing that almost inevitably meant disaster? Again if he did not see her and was already in the centre of the road which the defendant says was safer because better,why should he witnout apparent reason suddenly turn to his wrong side? The constable's evidence settles very little. it leaves still open for inference and conjecture the question how the defendant got into the position' in which she was when the orakes were put down hard, and whee she was travelling previously. Sut in truth the evidence of Anderson and iweedley to my mind,as a judge of fact,places the matter beyond any doubt, Yhese two men are workmen, and were proceeding the same morning from Canberra to Stromlo to their work, Sho. tly before 7/1) , wif that is within a very few minutes after the accident they came along in a small car and observed the plaintiff's cycle. They removed it to tence a t the the/side of the road some distance from the formation, Whether, as they say, it was on the formation or as the plaintiff and her sister say it was off the formation before they removed it I do not stop to determine. I a ccept them as reliable dependable witnesses in every way. they were disinterested ovservers.they could see there had been an accident of some kind.Jney were not agitated but investigated care= -fully. ¢hey both saw distinct frean marks of the motor car ou the the car being vrong side,the right hand wheel of RENN about 3 feet on tue wrong side, One of them saw not only the motor car tracks in the position stated but also found the plaintiffs cycle tracks iM accordance with ' the plaintiffs own description of his course. T regard those two witnesses as confirming the pleintiffts version and precluding any hesitation that I might otherwise have had, The defendant and her sister were I think extremely agitated from the moment they perceivea the peril and their minds vecame coniused and have registered erroneous impressions impressions as to some of the crucial events of that morning. cn the whole I accept the account given by the plaintiff and his wit- "nesses, and 1 arrive at the conclusion of fact that on taat Toggy morning When it was especially necessary to keep carefully to her own side of the road,the defendant was negligently driving on her wrong side, and that this negligence was the effective cause -that ia it was the cause- of the accident and the plaintiffs resultant injuries, There was no contest as to the damages. the plaintiff was terribly burt.For a considerable time he suffered great pain, and though Or Alcorn did his best to save the plaintiffs rignt leg above the knee, that is now found to ve impossible. In addition to all the suffering he Has undergone,another amputation will be necessary leaving him a stump of hia thigh, Some special damages has been proved in the shape of Doctors! fees and hospital charges, More will have to ve incurred, Ynere nas been a considerable loss of wages,amounting to nundreds of pounds, and the plaintiff's earning capacity has veen sensivly diminished, He is only 35 years of age. un the whole 1 think the damages claimed are by no means extravagant and I accordingly award him £2,000, There will be judgment for the plaintiff for £2,000 with Costs,