©1975/55 W. M. Houston, Govt. Print, Melb. IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT Appeal allowed. Order of the Supreme Court of Tasmania to be varied by ordering that judgment be entered for the plaintiff in the sum of £8,829.0.4 in lieu of the sum of £4,414.10.2. Respondent to pay appellant's costs of this appeal. \ BEADLE this is an appeal by a plaintiff in an aetion to | recover damages for personal injuries caused by the negligence ef the defendant. The appeal comes from the Suprene Court of Tasmania, where judguent passed for the plaintiff, The damages 'sustained by the pleintiff were assessed at £8,829, but under the provisions of the Contributory Negligence Act of Tasmania the amount recoverable was reduced to £4,44421010 on the ground of the plaintiff's contributory negligence. The appeal is concerned only with the finding of contributory negligence and the apportionment of damages. The ection wes tried at Launceston by Green J, without a jury. The injuries of which the plaintiff complained were severe and arase out of a collision between « Holden car which she was driving and a Wolseley car driven by the defendant. The collision occurred at sbout the hour of midnight on 3rd September 1954 at the interseetion of two streets in Launceston. The teo streets were Abbott Street, which runs reughly north emi south, and David Strest, whieh runs roughly east am west. The plaintiff was driving in a southerly éireetion along Abbott Street escompanied by her niece, a girl of about thirteen or fourteen years of age, who was sitting beside her. The éofendent was driving his mother*s Volseliyear in an essterly Girection, He was a young man about twenty-one years of age and was driving some girls home from a dance. At the intersection the plaintiff's Holden struck the Wolselon its left-hand side amé inflieted damage extending from about the forward part of the modguerd to the door, The Holden seems to have been carried inte David Street to the east and there te have turned round until it almost faced in the opposite direction. The Volseley went on for some considerable distance ever to the right-hand, side of David Street ami Grew up, Abbott Street carries a greater quantity of traffic than David Street and is «a bus route, but it is rot what is called a "right of way street". See Traffic Regulations, ¢l.123).::. Notwithstanding this fact, there stood on cach side: of Abbott Strect in David Street a sign consisting of the words "give way" inseribed in black on 4@ yellow dise mounted on « pole, These signs fated the traffic coming from each direction in David Street. Further down David Street west of Abbott Street, a distance of 469 feet from the corner, was a triangular sigh on a pole. It was dilapidated but it represented a triangle which te preseribed by the Traffic Regulations, cl. 132(4), a8 « danger sign. The reguletion also preseribes « sign consisting of a yellow dise with black Letters saying "Right of way strest give way", the words "right of way street™ being along the clrounferemme and the words "give way" im larger letters im the middle, That sign is called Read Sign Yo. 5. Reg. 132 says thet the road signs in question shall be used to indicate to drivers and riders of webiales and horses the conditions and precautions respectively indicated in the words set opposite such signs Road Sigr Yo. 9 imposes the requiresent that vehicular traffic in the street approaching the sign from the direation in which it faces shall enter the interseetion or junction immediately beyond the sign as slowly as practicable and shall give way to traffic in the intersection or junction strest. It would seem that the disas in David Street where abbots Street interscets 1% were intended to serve this purpose, They were erected in May 1952 by the Public Works Department under instructions from the Transport Commission; but im fact, becouse of the omission of the words "right of way street" they are treated in the admiselons made between the partics as not constituting a prescribed sign. The plaintiff in her evidence stated thet she was fifty-three years of age and had been Griving a car since she was eighteen years of age except for a short period and had been driving the Holden car regularly. She had been at « house in minutes the vicinity which she left betwoen fifteen minutes and five / 3. to twelve midnight. She said she dreve down Abbott Street towards Dawid Street at about twenty to twenty-five miles per hour. Ghe slowed down as she approached the intersection and leoked to the left and the right and saw mo traffic coming from either way, When she ceme to the interseetion she 41d not increase speed, When she was half way across she saw two lights coming very fast on her right, like a train coming at her. She bad no time to do anything and she remembered nothing further, She knew there was a give way sign facing up David Street and down Dawid Street. fhe was careful whether there were signs or not. She seid that at the scene of the accident there was a house on the corner of her right side of David Street end a fence and that you could not see right over the fence. She addedt "I drove with care, I did not rely on the road signs just to think I could drive straight through, I did not think I had to give way on the right as the road sign wes there. Chen I see a road sign I obey it," The defendant in his account of the occurrence said that he did not know that a danger sign existed there and did mot see it on that evening. As he approached David Strect his speed vas twenty-five miles an hour and he was in third gear, He did not see the "give way" sign and did not know it was there. As he approached the intersection he looked to his right and saw nothing coming. He was then nearly on the corner. He then lesked to his left and saw the lights coming on the left. The lights of the other car were further from the intersection: than he was, He thought it was a "give way on the right" atreet end proceeded on without accelerating. Then there was a flesh and a bang and he renembered pulling ups He had not used David Street very uuch, but during the twelve months preeeding the accident he heé on « number of cecasions, perhaps ten, proceeded dom Abbott Strect turning Into the casterm part of David Street and had returned by the same route. He might therefore have seen the corresponding opposite "give way" notice on the sastern side of the intersection, He said that the girls were talking os he epprosched the intersection and he addedt "You can't help but listen to the conversetion". He said the bang took place at the bottom side of Abbott Street, "I was nearly through the intersection when I got hit. I thought the other cer would give way to the right. She was further away than I was and I thought she would give way to the right." The plaintiff's niece sitting on the front seat of the Holden on the plaintiff's left said that she was sitting forward and turned towards the driver, As she approached David Street nearly on the intersection she looked up David Street and saw the lights of the car, "It was a fair distance aways from me to the end of the Court* (a distance of forty-five feet), I don"t know its speed. As our car went on to the intersection I don't know if the speed of our car waried at all. "ext I knew the lights were just on us. I put my head down. I heard « lot of splintering and crushing ané our cer finally stopped." ; it appears from other evidence thet there is « street Light on the southwest corner of the intersection, that is to say on the defendant's right as he approached. The" give way! Sign was on the opposite corner, that is on his left, and the danger sign, 169 yards back, was also on the left side of the road, This sign had not been painted for years and was @ilapidated. Weither eign had reflectors, In Abbott Street there is o sealed roadway 20°3" wide, On the plaintiff's left-hand side as she travelled upon this part of the road was & grass and gravel verge 12'4" wide terminating, however, shout twenty-five yards from the corner where the whole road was - sealed, Yo the left of that was a footpath 10°4". On her right side was a gravel verge planted with trees 40'S" in width followed by « grass bank ond park 15'5" in width. In tavid Street there was a sealed roadway of 21'4" with a werge of 10*4" in width on the defendant's left and a footpath of 9*, on his right there was a verge of 7'4" and a grass bank and Se footpath of 15°44". Car marks were found on the centre of the read proceeding in a southeasterly direction up on to the bank in David Street on apparently the south-casterly corner, @ distance of 65'. The place where the Wolscley cor pulled up in David Street is 78° cast of the corner of Abbott Street. On these facts Green J. made some findings upon which much turns. He found that a motorist in David Street should see the signs ani should be able to read the words "give way" which are written on thea, He found that the defendant's speed as he travelled in David Street was about twenty-five miles an hour end the plaintifi's speed was somewhat less than twenty~ five niles an hour ani was nearer to twenty miles an hour. The latter, he found, drove close to the eige of the bitumen in Abbott Street. The defendant drove dom Devid Street with bis right-hend wheel about the centre of the line of the bitumen in Dawid Street. He found that the plaintiff ought toe have seen the defendant*s car at an earlier stage than that stoted in her evidence, namely as the front of her car approached the centre of David Street, and that she ought to have seen it when she still had time to take avoiding ection. He rejected the éefendant's statenent that he was past the fence line of Abbott Street when he first saw the plaintiff's cer and that it was then 30 back from the fence line of David Street and found that the defendant did mot see the plaintiff's car at all until it wes too late to avoid the collision. He accepted the evidence of the niece that she first saw the defendant's car when she was about two feet back from the fence line of David Street and that the defendant's car was approximately 45° to 50° away at that time. He found thet the defendant ought to have seen the give wey sign and if he saw it should have acted with caution ani paid attention to his left. He found that each party hed an equal opportunity of seeing the other car before that party did so ané each should have had an equel opportunity of avoiding the be accident and found them both negligent in equal degrees. Upon the application of counsel the learned judge expressed his opinion that because the defendant had had experience of coming wp David Street on the opposite side he should have been aware that there was a sign on both sides of the road and that in @my case he should have sem: the sign on his left in his lights and with the aid of the street light. His Honour salé "I accept the position that the plaintiff knew of the existence of the signs but that she was not relying on thes". His Honour refused %o make any finding as to whether the defendant did in fact leok to his right. The appeal of the plaintiff is based upon the view that she was entitled to rely on a right of way because of the existence of the give way signs facing David Street at the intersection, that the learned judge was under a misapprehension when he said that he accepted the position thet the pleintirr knew of the existence of the signs but that she was not relying upon them, that what her evidence meant was that she did rely on them but not exclusively so as to feel relieved of teking the precaution of looking in that direction and otherwise taking eave and thet his Honour mistook the purport of her evidence on this point. She was not, it is claimed, in a situation where sho ought to have given way to traffic on her right. The defendant, however, on his side had no excuse for failing to gee the signe and for proceeding without caution and without seeing the plaintiff in the position which she occupied when she must have been visible to him had he locked. She urges thet if she ought to have been found guilty of negligence at all she was far Leas blemeworthy than the defendant arid a reduction of her damages by half was disproportionate to the blame involved or to the responsibility which each should bear for the accident. 4 contention for the appellant is thet she might properly suppose that she had the right of way and that this fector had a dual operation. Yors so it is claimed, in the first Ze place it excused her from looking to the right earlier than she did. In the second plece, it makes it impossible to say that Lf she had seen the lights of the defendant's car down Dawid Street to her right, she would have acted on the supposition that the defendant might not. give way to her or would be likely to collide with her car. dmother contention for the appellant wes that the Learned juége should have inferred from the positions of the ears after the accident and the apparent consequences of the impact that the defendant entered the crossing at a mach greater speed than his Honour's finding attributes to him. For the responient 1t was maintained that the defendant sust have entered the intersection before the plaintiff aetuslly reached it. Yurther it was said that on an seceptence of the judge's findings the Line of vision open to the plaintif' must have exposed the approaching lights of the defendant's car to her view in ample time for her to avoid the collision. But nearly every elememt in the caleulation or reasoning on which these contentions were based was in truth very uncertain. It is reasonably clear that no effect ought to be given in this Court to these attempts to give to the facts an aspect more favourable to the defendant than that which the leaned judge who tried the case placed upon theste Om the other hand there is as little tenable ground for the plaintiff's claim that she should be absolved from sontributery negligence, Giving full effect to the contention made on her behalf that she was entitled to treat Abbott Street ag one in which she hed the right of way, the mammer in which the plaintiff approached the crossing and the look-out sho kept should have bee: such es to enable her, in the cireunstances, te avoid the collision, As Abbott J. said in Smith vy, Drar, 1949 BSekeSeRe 187, at pe 193% "seeekt does not follow that the Griver having the right of way always behaves reasonably in &. assuming, without looking, that im view of the common behaviour of motorists in consequence of this provision he may sefely drive over the intersection." The point of the appeal lies in the question whether Green J, vas not too hard upon the plaintiff in reducing the Gemages which he assessed by half. See, 4(14) of the Tortfeasors and Contributory Regligence act 1954 (Tes.) is taken from see. 1(4) of the Lew Reform (Contributory Negligence) Act 1945 of the United Kingdom, the provision requires that the amount otherwise recoverable by the plaintiff in fault in respect of the damage suffered Bust be "reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". This Court has already sald that "responsibility" does not here refer to blame in a moral sense. "It seems clear that this must of necessity involve @ comparison of culpability. By culpsbility we do not mean moral blameworthiness but degree of Geparture from the standard of care of the reasonable man". - Pennington vs Vorrigs, unreported (6th June 1956). It must of course be borne in mind that the provision imposes the duty upon the Courts to determine, having regard to the claimant's share in the responsibility, what reduction is just and equitable. The Court does not merely arrive at an arithmetical ratio by comparing the degrees of fault end then apply it to the amount of the damages.Yhat is just and equitable must be determined. The degree of departure on the part of the plaintat from the standard for a reasonably prudent and careful driver may perhaps be variously assessed. There is no reason to doubt that she assumed that she hed the right of way, but she would have been guilty of a very definite want of due care had she treated that as relieving her from the necessity of careful De observation and driving in approaching the crossings The defendant doubtless supposed thet traffie in Abbott Street on his left travelling south would be unier a duty to give way to him and apparently thet was theoretically true. For the sign was not as prescribed end the street was not éeclared a right of wey street. But the signs would produce the contrary belief in any drivers femilier with thes who were travelling along abbott Street. He may have been negliget in failing to sce the danger sign, but perhaps it was so old and dilapidated that it did not matter. His failure, however, to see the "give way" sign has been definitely fomnd/neghigences Hed he seen it, however, he construed it, there can be no doubt that it ought to heve induced a more cautious approach to the crossing. As it was he entered the crossing Incautiously and in a menner which left kim unable to avoid the plaintiff's car when he saw it. The question is whether the apportionment adopted by Green J. placed too little emphasis on these aspects of the defendant's negligence in the comparison between their respective degrees of feult end erred so definitely that this Court should interfere with the apportionment. In the first plece 1t must be noted that there is no specific finding or process of reasoning contained in his Honour's judgaent which is really open to challenge. It is true thet it may be seid that there was a nisinterpretation of the plaintiff's statement that she did not "rely on the road signs just to think I could drive straight through", Sut if se it Led to no substantial mistake in any finding of fect. It meant only that the learned judge regarded the plaintiff as saying in effect that she approached the crossing with as much attention to possible vehicles on her right as she would show if no such sign existed. In the next place it cannot be said that euch an apportionment is so unreasonable as to show that something must have gone amiss in reaching the result, After 10. all the case is one in which at an hour when little traffic might be expeoted at the crossing two vehicles meet in the intersection neither seeing the other in time to avold the eollision. It is naturel to start in such a case with a prima facie view thet equality of fault best explains it. Attempts at very precise reconstructions of the cxact events and refined eriticions ef what each might have done ere inherently unsatisfying end are apt to leave out of account the otherwise evident fact that without combination of negligence such a eollision would be very unlikely te occur. On the whole the ease is one in which there is no sound ground for impeaching the apportionment of the primary judge. His opportunities of forming a correct appreciation of the relative degrees of fault ond what was just cind equitable included both a view of the = place and a view of the people, as they gave evidence. He has found the facets on ample materials and he was unter no misapprehension as to the criteria he should apply or the significance of his detailed conclusions of fact. The appeal should be Gismissed with costa, Ve As appears from what has already been said the appellant received the injuries, in reapect of which she claimed damages, in a collision between two moter cars at the inter~ section of Abbott and David Streets, Launceston. The car which the appellant was driving approached the intersection from the north and the defendant was driving from the west. Abbott Street is approximately sixty-nine feet wide overall. In the centre there is a sealed strip approximately twenty feet in width and on the eastern side of this strip there is a grass verge, some twelve feet in width, extending to a ten foot footpath. Adjoining the Sealed strip on the western side there is a strip of gravel a little over ten feet wide and in this some trees are planted. Beyond the gravel there is a grassy bank rising to a path. The bank and path altegether are something over fifteen feet wide. The construction of David Street is much the same. Altogether it is a little over sixty-six feet wide and the various measure~ ments are such that the nearside of a motor car travelling along it with its offside wheels about the cmtre of the sealed strip would be about twenty-four feet from the northern fence alignment of the street, The appellant, it was found, was driving her vehicle with ita nearside wheels on the extreme left-hand edge of the sealed strip in Abbott Street and reference to the plan which was accepted by the learned trial judge and to the measure- ments already mentioned fixes the distance from the offside of her vehicle te the eastern alignment of Abbott Street at about forty feat. Now the respondent says that as he was approaching David Street his vehicle wes travelling at approximately twenty~ five miles per hour. He was not, he said, on the wrong side of the road, but his offside wheels may have been "over the line to my wrong side". The learned trial judge found that as the 2. respondent approached the intersection the offside wheels of his vehi¢le were about the centre line and there is no reason why this should not have been so. The respondent further said that as his vehicle entered the intersection - and when it had proceeded some three feet into it - he saw the lights of the eppellent's car to his left. They were then, he said, in Abbott Street some thirty feet back from the intersection and, believing that the driver of that vehicle would give way to him, he proceeded on. This evidence was entirely rejected by the learned trial judge. His Honour was clearly of the opinion - and upon the. evidence, we have no doubt, rightly so ~ that the respondent did not see the appellant's car until it was too late to avoid an accident. Indeed the respondent does not seem to have taken any steps whatever either to reduce his speed or alter the course of his vehicle before the impact and this is of considerable significance when regard is had to the credible evidence concerning the relative positions of the vehicles as they approached the point of collision, It should also be said that the finding of the learned trial judge concerning the stage at which the respondent saw the appellant's vehicle reveals as pure invention his evidence that, having sem that vehicle some distance back in Abbott Street, he proceeded on because he thought it would give way to him, Travelling with the appellant, in the front seat of her car, was the appellant's niege and, in her evidence, she said that she first saw the respondent's car when it was about forty-five or fifty feet away. Whether she meant forty-five or fifty feat from the point of collision or from her position in the appellant's car is not clear but, whichever was meant, the significance of the evidence is clear, At that time her position in the car was some two feet back from the northern alignment of the intersection - that is to say, the front of the appellant's ear already protruded some four or five feet inte the intersection, 3. We are told that from then on neither vehicle altered its course or speed before the impact and, since the front of the appellant's vehicle struck the nearside of that of the respondent, it is reasonable te suppose, if the evidence of this witness be accepted, that in the intervening period before the collision the respondent's vehicle travelled a considerably greater distance to the point of sollision than did that of the appellant. On the figures which we have given the latter travelled about nineteen or twenty feet. whilst the former travelled not less than forty feet and, probably, considerably further. The evidence of the appellant's niece was accepted entirely and it was, according to the learned trial judge, partly upom this evidence that he made his finding as to the relative speed of both cars. It is true thet the respondent said that his speed as he approached David Street was twenty~five miles per hour and that this evidence was supported by a passenger in his ear but in reaching his conclusion the learned trial judge appears to have placed little reliance upon it. Nor, in view of his Honour's express rejection of the respondent's version of the events immediately preceding the collision,would we be disposed to do so, Newertheless his Honour apparently thought that the evidence of the appellant's niece gave some support for the conclusion that if the speed of the appellant's car was twenty: miles: per hour that of the respondent's car was about twenty- five miles per hour. We de not entertain the view that it is ever possible, after the occurrence of an accident such as this, to make anything like conclusive calculations of the speed of either car by accepting as precise estimates of positions and distances honestly made by witnesses in the agony of collision, At the best such estimates can be no more than approximate and do not constitute data capable of supporting precise caleulations, This, of course, is far from saying that such estimates may not be of value in some cases for the purpose of evaluating the evidence of one or both parties. The apparent discrepancies, after making the full allowance for approximation may be so great as to demonstrate that other oral evidence con- cerning the movements of either vehicle is unreliable. We have not, however, referred in detail to the relevant measurements and he estimates for the purpose of denonstrating the unreliability of the evidence of the respondent. That has already been rejected substantially by the trial judge. But the estimates were relied upon by him in part to mak.e a finding as to the spead of the respondent's car as it approached the intersection and it has been necessary to examine just how far they support his conclusion. And aswe have already pointed out the evidence of the appellant serves to indicate ~ if, in the circumstances, it gives any indication of the speed of the respondent's car + that it was travelling at a much higher rate of speed than that of the appellant, As far aswecan see the indication is that it travelled at least twice as far as that of the appellant in the same period of time, It is coneeded that, in the circymstances of this case, the finding of negligence against the respondent is not open to question but the learned trial judge found that both the appellant and the respondent "should have seen the other car before they did", "Hach", he said, "had an equal opportunity of doing so and each shovld have had an equal opportunity of avoiding the accident. She should have given way to her right. He should have been warned by the sign," In the result his Honour found each party negligent to an equal degree. It is for the purpose of examining the validity of these findings, so far as they affect the appellant, that it has been necessary to examine the implications of the evidence in some detail for in part they must depend substantially upon the view of the learned trial judge that the respondent was proceeding at the comparatively modest speed of twenty-five miles per hour, The appellant, herself, did not see the respondent's car until she was approaching the middle of the intersection and this was regarded as tantamount to an admission that she paid inadequate regard to traffic approaching from her right. But if the respondent's car was travelling at a much higher speed than twehty-five miles per hour it may well have been that as she came close to the intersection the respondent's gar was then well back from it. Indeed she said that as she 5. approached the intersection she looked to the left and to the right and "saw no traffic coming either way". She was able to leok to the left before reaching the intersection because it is possible "to look over the fence on the left". The fence containing the corner on her right was erected on elevated ground and it was impossible to see over it. Thereafter she said she did not see the respondent's car until she was close to the middle of the intersection, She than saw two headlights "coming very fast on my right from High Street - like a train coming at me. I remember nothing further." Immediately after she had seen the headlights of the respondent's vehicle the collision oceurred and sone minutes later, when one of the witnesses who gave evidence in the case reathed the scene, the appellant's ear was found some fifty feet up David Street to the east of Abbott Street facing in a general northerly dire¢tion. It had been turned completely round and the respondent's car had come to a standstill still further away on the side of the road. There is in the case ample evidence te support a finding of negligence against the respondent without concluding that the speed of his car was grossly excessive. Indeed the finding of the Learned trial judge, so far as the respondent's conduct is concerned, in no way depended upon such a@ @onclusion but a conclusion concerning the speed of the respondent's vehicle was,we should have thought, most material in reaching a finding that the appellant was equally, or at all, to blame for it depended upon the finding that she had failed to see approaching the intersection a car travelling at a modest rate of speed. To say the least the evidence leaves us far from satisfied that this was the situation. It was for the respondent to establish negligence on the part of the appellant and so far as this allegation depended upon the assertion that his car was being driven at a reasonable speed in the circumstances it must, we think, be taken to have failed. His own evidence was unreliable, the evidence of his passenger, who saw nothing of the other car "until the impact which came without warning" is of little, if any, value and 6. every circumstantial indication is to the contrary. It may, of course, be said that the appellant should have seen the respondent's car at least ss soon as her passenger but if she had looked to the right, as she said she did, even a moment or two before her passenger observed the respondent's car, it may well have been sufficiently remote from the intersection to have avoided detection if it was travelling at a fast rate of speed. S80 farwe have had little to say concerning the "Give Way" sign erected in David Street a little distance from the intersection. Its existence, in the form in which it stood, did however provide a subject for some forensic skill in aid of the respondent. It was not, it was said, a "prescribed sign" for, although in other respeets it conformed to the requirements of the Traffic Regulations 1943, it did not carry the border inscription in smaller lettering "Right of Way Street". If it had there could have been no doubt that the respondent would have been obliged by the regulations to "enter the intersection immediately beyond the sign as slowly as practicable and yield right of way te vehieular traffic in the intersecting street." The absence of the border inscription was of little consequence to the respondent who not only failed to notice the sign on this occasion but was unawere of its existence although it had stood in this position for over two years. The sign was erected on a post painted yellow and was two fect in diameter with six inch lettering. Nevertheless the respondent said, for some reason or other, that if he hed seen the sign he would not think it marked a@ right of way street. No doubt the sign was not strictly in accordance with the requirements of the regulations but, equally, there is no doubt that any prudent driver would have given effect to its injunction. Indeed to conclude otherwise would be - if one may go beyond the adaptetion in Smith. Hudson 21 3.R. 547 - to entertain the view that motorists are/made for road signs and not road signs for motorists, Unlike the respondent the appellant was aware of the existence of the sign but, presumably, was not aware that its verbiage was unduly economical. Accordingly she observed it and, in my view, was entitled, within reason, to assume that it would regulate the conduct of other drivers also. But the learned trial judge says that "she should have given way to her right" and this circumstance, no doubt, influenced his conclusion that the parties were equally to blame, How far it was also influenced by his penultimate observation that he accepted "the position that the plaintiff knew of the existence of the signs but that she was not relying on them" does not appear. But that he was influenced in some measure by this consideration is beyond doubt. We do not, however, read the appellant's evidence on this point with eny significance adverse to her. She did not say that she was not relying on the existence of the sign; the relevant passage in the report of her cross-examination is as follows: . "I did not rely on the road si just to think I could drive straight through. I did not think I had to give way on the right as the road sign wes there," This report is in narrative form and the language of the cross~ examiner appears to have been attributed te her. Obviously she was asked whether she did not rely on the road signs to think that she could just drive straight through the intersection and her answer was in the negative. We see no more in the evidence than an intention on her part to deny that she had relied entirely on the existence of the sign and had blindly driven inte the inter- section. We do not see ony admission on her part that she did not in any degree have regard to the existence of the sign. On the contrary the second sentence quoted clearly shows that, if her evidence is to be believed, she did have regard to the existence of the sign, In the circumstances we are unable to see that the credible evidence provides any basis for holding the appellant blameworthy for any part of her injuries. Weare by no means satisfied that her failure to see the respondent's car at an earlier stage was due to a lack of reasonable care on her part rather than to excessive speed on the part of the respondent's vehicle. If that vehicle had been travelling at a reasonable & speed she should, of course, have seen it as she came to the intersection. But if its speed was excessive its position in David Street may have been sufficiently remote to escape detection at the time when she looked/to the right. Moreover if the respondent's car was travelling at a reasonable speed and if the appellant had seen it as she came toe the intersection and before it had reached the intersection there is no certainty that the accident would have been avoided, for the respondent proceeded on in entire ignoranee of the existence of the "Give Way" sign and of the presence of the appellont's car in the vicinity. It is however futile to speculate concerning what the outcome might have been if the respondent's car had been driven at a reasonable speed and if, in those cireumstances, the respondent had seen it for the evidence does not establish the first of these conditions against the plaintiff. As we see the case the cause of the accident as disclosed by the evidence was the extreme carelessness of the respondent. For the reasons given we areof the opinion that the appeal should be allowed and judgment entered for her for the full amount assessed by the trial judge. Ve ZTaueRE MEER J. This is an appeal against a juwigment of the Supreme Court of Tasmania (Green J.) avarding the appellant £4416 damages for injuries sustained by her in a collision between her motor ear and the respondent's moter ear in the intersection of Abbott and David Streets in the city of Launceston about midnight on 3rd September 195%. The total damages for personal injuries, including special damages, vere assessed by Green J. at £8832; but his Honour found that both parties were equally to blame for the collision end so he awarded the appellant £4416. He found that both parties approached, entered and proceeded to cross the intersection without keeping a proper look out and that the speed of the appellant's car was 20 miles per hour end that of the respondent 25 miles per hour, which his Honour seemed to regard as & negligible difference in the cireumstances. It does not appear whether his Honour' found that the appellant reached the inter- section before the respondent. If he did so find he does not sppear to have given any weight to the fact. His Honour found that neither Abbott Street nor David Street was a right of way street. Green J., who had the advantage of seeing the witnesses give their evidence, accepted "entirely", that is to say, without qualification, the evidence given for the appellant by her thirteen year old niece, Diana Archer, as to the respective positions of the two cars when she first saw the respondent's car, with all that her evidence necessarily implied. In view of his Honour's advantage, we would not be warranted in taking a less favourable view of her evidence because she was only thirteen and the appellant's niece and the collision took place at midnight. If in other parts of his Honour's reasons for judgment he found any fact that is inconsistent with a necessary implication from 2. Diana's evidence, this, I venture to say, but with some hesitation, must be due to a miscalculation from, and not to any correction of, her evidence. So it is important to consider just what Diana said. Her evidence was that she was sitting in the appellant's car along- side end facing towards the appellant; that the respondent's ear was then, to use her own words, "as far away as I am from the end of the Court", which his Honour took to be approximately 45 to $0 feet away. I am taking this to be 45 feet because the evidence for the appellant /should not be construed more favourably for the appellant, or less favourably for the respondent, than its acceptance necessitates. Diana also said that she herself was then about 2 feet back from the fence line of David Street. It follows from Diana's evidence that the appellant's car was then straddling the northern fence line of David Street, the front part of the car being about 4 feet , within the intersection of David and abbott Streets; and that the respondent's car was about: 38 feet and the appellants car about 23 feet from the point of the collision. I arrived at these figures in the following way: his Honour found that the respondent's eer was travelling along David Street with its right-hand wheels on the centre line of that street, which was 66 feet 8 inches wide from fence line to fence line. However, the centre line was no doubt that of the sealed strip and so was 30 feet from the northern fence line of David Street, according to a sketch tendered in evidence. This would place the mid-point of the bonnet of the respondent's car about 27 feet from the northern fence line of David Street. I emphasise this because the damage done to each car was in the front about the grille, and at the right corner of the appellant's car and the left corner of the respondents. If beth cars travelled straight ahead as was likely to have been the case then the sppellant's ear had to travel about 23 feet to the point of collision and the respondent's car about 39 feet. 'The line joining the two cars and the line joining each car to the point of collision formed a right-angled triangle with a hypotenuse of about 45 feet and sides of about 23 feet and 39 feet respectively. In arriving at 23 feet I am, for the reasons we v 3e already stated, taking the view of Diana's evidence most favourable to the respondent. The shorter the distance the appellant had to travel to the point of collision after Diana first saw the respon- dent's car the leas favourable was the position for the respondent. As the fence Line of Abbott Street on Diana's right was about 39 feet away from the right side of the appellant's car, it was that distance from the point where the respondent's car crossed that fence line to the point of collision and so the respondent's car haf just reached that fence Line when Diana first saw that car. Thissiws, that the appellant's car reached the intersection before the respon- dent's care I arrive at this calevlation of 39 feet by taking Diana to have been about 27 feet from the fonce line of Abbott Street on her left, and not 22 feet as found by his lionowr, This is because she gaid she was 16 or 17 feet from the kerb and the footpath was 10 feet 4 inches wide. But she was sitting on the left side of the car and so was about 3 feet from the right side, whieh was then about 30 feet from the left fence line of Abbott Street and about 39 feet from the right fence line of that street, which was 69 feet wide from fence line to fence Line. Again I am taking the view of Diana's evidence most favourable to the respondent. It appears then that in crossing the intersection ané in attempting to cross the path of and before the appellant's car the respondent drove his car more than half as fast again as the appellant's car was driven without having, to say the least, any right of way as against the appellant; and so the culpability of the respondent was greater than that of the appellant in the circun- stances. The danger in crossing an intersection of city streets, even at midnight, without keeping a proper look out is increased with the speed of the car. And the greater the speed the less the eare displayed. I am not prepared to find that because of the "Give Way" sign, which after all was not a preseribed sign nor erected at the entrance of a "right-of-way" street, the respondent had a greater @uty of cars than that imposed on him independently of that sign, that 1s to say, the duty to look to the left before entering the intersection. 4. It follows that, in my opinion, both drivers were at liberty to enter the intersection without stepping, subject to keeping a proper look out which, however, each failed to do. That was the position even though the appellant was entitled to regard the sign as a preseribed sign and Abbott Street as a "right-of-way" street and her culpability is te be determined subjectively. But, in my opinion, the conduct of the respondent was much core culpsble than the appellant's because of the far greater 2 jook at which he drove his car across the intersection and /attempteé te cross the path of and before the appellant's ear without having any right of way as against the appellant. If, ss the trial judge found, the appellant's car was travelling at 20 miles per hour it follows that the respondent's car was travelling net about 25 miles per hour as his, Honour found, but about 34 miles per hour. This was by no means a negligible difference. It is true thet only a meticulous adherence to Diana 'Archer's estimates warrants these calculations; but there is no alternative as we are bound by his Honour's"entire" acceptance of her evidence and go must give effect to it. In view of the facts es I see them I think that the respondent was twice as much to blame as the appellant for the eOliision and that the damages shoula be apportioned in the ratio of tyvo to one against the respondent. T would allow the appeal and inerease the damages awarded to the appellant to £5,888 end vary the judgment of the Supreme Court accordingly.