bo.s of 1441 ~ IN THE HIGH COURT OF AUSTRALIA. SPERIDON BOURNE. REASONS FOR JUDGMENT. Judgment delivered at MELBOURNE... H Grom, Govt, Bint, Matb. on..... TUESDAY 4th MARCH 1941. casas, ORDER. SPERIDON V_BOURNE. Appeal dismissed with costs. SPERIDON V_ BOURNE. SUDGUENT. , STARKE J. Appeal from a decision of AngQ&s Parsons J, in the Supreme Court of South Australia in favour of the plaintiff in the case of a collision between two motor vehicles. An appeal from the decision lay to the Supreme Court of South Australia but has been brought to this Court and heard in Melbourne at increased costs to the parties. The motor vehicles were proceeding at night time in opposite directions along the roadway between Port Augusta and Whyalla, which has three tracks, but only the centre track has apparently been formed, The plaintiff was going north to Pert Augusta ina light/ear on the track on his wrong side of the roadway and the defendant was going south to Whyalla_in a heavy loaded truck along the centre and formed track, The roadway was unobstructed and the vehicles were visible to each other a considerable distance apart. But they continued on their courses until about 80 feet or so apart. The plaintiff in his light car veered across the roadway to his right side across the course of the defendant's truck whilst the defendant in his truck went across to his wrong side of the roadway. The plaintiff was on his right side of the roadway when the collision took place bat the defendant was on his wrong side, The learned judge was of opinion that both parties were in fault but that the defendant was responsifile for the collisim because he could by reaaonable care have counteracted the fault of the plaintiff. The propriety of the decision of Angas Parsons J. depends upon the facts of the case and not upon any question of law, The defendant took upon himself a grave risk in crossing to his wrong side of the read. A slight deviation to his right side would have enabled the vehicles to pasa one another safely, or he might have pulled up. He chose however -2- the dangerous and imprudent course of going to his wrong side. The usual argument was addressed to us that the faults on the part of the plaintiff and the defendant were contemporaneous and that in the stress and agony of the moment the defendant had no chance of avoiding the collision jaws" he took an unwise course in going to his wrong side of the roadway. But all this, as I have indicated, was for the learned judge, and he has found that the defendant could with proper care have avoided the collision and the consequences of the plaintiff's fault. In my opinion, that conclusion was not only open to the learned judge but was plainly right. The appeal should be dismissed with costs. SEM HORIERUAN J. The facts upon which this case depends appear at page 52 of the Transcript from lines 11 to 49 inclusive. 'these fects are not in dispute. The question is whether upon those facts the learned gadge was right in finding the defendent, the present appellant, guilty of negligence and in finding that there was no neg- ligence on the part of the plaintiff, the present respondent, which contributed to the collision. It was found that both the appellant end the respondent were negligent in mainteining their respective courses until a distance of sbout 80 fect only seperated them 'This finding is plainly right, especially a8 each of them was aware that the other's vehicle wos appronching, The appellant's main contention, indeedy is that it was negligence on the part of the respondent to alter his course when he did and that he, the'appellant, could not be expected to anticipate that the respondent would do so. 'The fact is, however, that by deviating to the left the respondent endeavoured to avert a collision; but the collision occurred beemase the appellant practicelly at the seme time deviated in the same direction. It is.clear that if he hed deviated in the opposite direction, which was to his right side of the road, the collision would not have ocourred, In mnking this deviation, 41d the appellimt exercise the care which an ordinarily skilful driver would have used to avoid the approaching car? Now, it is clear that the appellant had the time and the opportunity to make a deviation, for in fect he did so. It is contended, however, that it was not negligence but merely on efror of judgaent produced by the emergency to go to his wrong side because he was justified in sssuming that the respondent, who had approached so near to him on his wrong side, would not alter his course to his right side of the rond, In my opinion, that is not an ass- Saal umption which ought to be made in the appellant's favour. There is no proper basis for it in the fasts. I cannot understand how it can be imputed to the responient as a negligent act that he did swerve to his right side of the road to avoid the impending collision, 'The appellant, like the respondent, had the approsching vehicle in view for 2 considerable time, and there was sample time for him to consider how © collision could be avoided. The respondent, on his part, took a proper courses He swerved 2 second or 80 before the collision to the left. There was time befowe the collision ocearred for the appellant to stop or swerve to hit left. 'The trinl judge sc found end I cammot see amy groud for disturbing teat this conclusion. In deviating to his right the appellant did net in the circum stences exercise the care which an ordinarily skilful driver would have exercised to avoid the approaching vehicles The appeal should be dismissed. SPERIDON V_ BOURNE. Judgment. Williams.J. I agree that the appeal should be dismissed. The appellant, the defendant in the action, admits that he first saw respondent's (plaintiff's) car at a distance of a quarter of a mile. At that stage the appellant's truck which was heavily laden with 3% tons of merchandise and the respondent's car were each on their wrong side of the road. The appellant when he saw the Headlight of the respondent's vehicle, whether he thought it was a car or a motor cycle, should have immediately driven on nis proper side of the road. There was equally @ duty on the respondeut to drive to his proper side of the road when he saw the appellant's headlights, whenever this may have been. Neither party adopted this course, so that when the vehicles were about 80 feet apart the position had arisen that if they kept on their respective courses a collision was inevitable. It was not the case of a sudden and unexpected emergency, as in Swadling vy. Cooper 1931 A.C.1; in which the appellant had really no time to think and by mistake took the wrong measure. It was one which had commenced to arise when the parties neglected to go th their proper side of the road at an earlier stage. When the vehicles were 80 feet apart the respondent turned his car at an angle of about 45 degrees to ative to his proper side. The appellant had not reduced his previous speed of 30 miles an hour. He knew he was on the wrong side of the road and something would have to be done to avoid a collision. He should have been very much on the alert and able to detect the respondent's move instantly. He should then have made a corresponding turn to the left, or, at least, while Keeping his course, have tried to stop by applying the brakes. Instead he turned to his right and as a result the collision occurred on the respondent's proper sidé of the road. The respondent took a proper step to overcome the position of danger which had arisen. The appellant did the one thing which he ought not to have done. It was negligence on his part to swerve to the right and the learned trial Judge was amply justified in finding that the appellant could by the exercise of reasonable care have avoided the accident. The appeal should be dismissed with costs.