se 7/010 af 196! Ne IN THE HIGH COURT OF AUSTRALIA REASONS FOR JUDGMENT Judgment delivered at——ADELAIDE on. THURSDAY, STH OCTOBER 1964 WMC Houston, Gort, Pest, Met, we nnn ae SUDGMENT ca El iS el Ve RAMSE! MENZIES Je Ve RAMSEY Since this case began on Monday I have had a number of opportunities for reflecting upon the evidence which has been given. As I have reached my conclusions about it I do not see that any good purpose would be served by my reserving to give a considered judgment. The plaintiff's main case, as it was opened, was that the collision between his pantechnicon and the defendant's semi-trailer transport, which took place after dark on 12th August of last year, happened solely because the defendant parked his vehicle in an unlighted or insufficiently lighted condition upon the western part of the bitumen of the road running from Crystal Brook towards Port Pirie in a northerly direction. What I may call the primary case fails because I am satisfied that the defendant's vehicle was well lighted when it was upon the road. I find that on the trailer itself there were six lights of which there were three at the rear, the tail light and a light at the rear of each side, just at the back corners. My principal reason for this finding is that I regard the defendant himself as an honest witness and I believe his evidence that these lights were burning when he left Crystal Brook a few minutes before the collision occurred. I should, perhaps, say that although I am prepared to find that there were lights showing ahead, in front of the prime mover, I am in some doubt whether they were head lights or parking lights. But I do not think it is very material for this purpose. The defendant's evidence which, as I said, impressed me very favourably does receive some support from other sources. First of all, there is the evidence of the witness Lindner who saw the 2. vehicle leave his garage at Crystal Brook. Secondly, there is the evidence of the witnesses, Steele, as to the lighting after the accident. I am satisfied from the evidence of the Steeles and Constable McEvoy that there were at least three lights upon the trailer burning after the accident occurred. The view I take is that the accident itself put out the lights at the back of the trailer. I may say that I do not regard the evidence of Lindner or the Steeles as doing more than affording some corroboration of the defendant's evidence and had their evidence stood by itself I would not have placed very much reliance upon it. Going from the evidence called by the defendant to the evidence of the plaintiff and those witnesses he called, it is, of course, clear that had I believed the evidence of the plaintiff and the witness Hunt that, when they saw the defendant's vehicle a few feet in front of them immediately before the collision occurred, it had no lights at the back at all, I would have had to disbelieve the defendant. But apart from the confidence I have in the defendant's evidence I must say that I regard the evidence of the plaintiff and Hunt about the happening of the accident as quite unsatisfactory. They did not impress me as giving a true account of what occurred. I do not accept their account of the third vehicle coming south from the direction of Port Pirie and passing, first of all, the defendant's vehicle, and then the plaintiff's vehicle, just before the collision. My reason for doubting this evidence is principally the manner in which it was given, and my doubts are increased by the lack of any reference to it before the trial. Nor am I prepared to accept the plaintiff's evidence that shortly pefore the collision he applied his brakes so firmly that he locked his wheels. I also consider that he was travelling at a higher speed than he said. Although I am satisfied that the plaintiff was not keeping a proper look-out I am not in a position to attribute his failure to see the vehicle in front of him to any particular cause. I do not know why he did not see it but I think he should have seen it and the fact that he failed to see it was the real cause of this accident. So far, then, as the plaintiff's principal and primary case is concerned, it fails because, in short, I do not accept his evidence nor the evidence of Hunt, and I do accept the evidence of the defendant. Before I leave this part of the case I should refer to the evidence of Constable McEvoy. I regard him as an honest and helpful witness. As to one point of his evidence, however, I am not prepared to place sufficient weight upon it to make me disbelieve the defendant. That is his evidence about the position of the ineffective light upon the defendant's trailer. His evidence as to that was not sufficiently clear or convincing to satisfy me that it was the rear light and not the middle light which was ineffective. Constable McEvoy did alter his evidence on this point and his evidence as to the existence of rear lights was hardly accurate. His evidence does not shake my conclusion that there were three lights burning at the rear of the defendant's vehicle. As the case proceeded, Mr. Southwell, by cross- examination and in the course of his address, did put the plaintiff's case in another way, depending substantially upon the defendant's own evidence. He contended that even if the defendant's vehicle was well lighted, the defendant was negligent in parking upon the bitumen without putting out reflectors on the ground in front, to the rear, and to the side of the parked vehicle, to give additional warning of its presence to other road users. 4, This part of his case really depends upon two legs. The first is the proposition that, had the defendant been reasonably careful, he would have taken his vehicle right off the bitumen and on to the gravel shoulder of the road. I am not prepared to make this finding, despite the attractive way in which it was pressed upon me by Mr. Southwell. After all, the defendant was driving a vehicle which, when loaded, weighed some 14 tons. He was driving upon a road in the country, after rain; and if his vehicle was well lighted, as I think it was, I do not think the taking of reasonable care required him to leave the bitumen and go on to the gravel which was certainly slippery and might have been soft. After all, he had to make up his mind what to do in the circumstances. He gave evidence that he considered the problem and thought the only safe course was to stick to the bitumen. To form that conclusion and to act upon it was not negligence. That brings me to the second leg, which is based substantially upon the defendant's own evidence that had he found that he would have been long delayed on the side of the road he would have put out reflectors that he had with him in his truck. It has been pointed out that the law does, in certain circumstances, require the use of reflectors when a vehicle is stationary upon the road. That is provided in the Road Traffic Regulations, 1959, Regulation 62(a); but that has no application when a vehicle is lighted in accordance with the statutory requirements which I have found the defendant complied with. I think that the defendant would have been taking special care if he had put out reflectors on this occasion. His evidence that he would have done so had he been delayed for any length of time seems to me to do him credit, but does not prove him negligent. It struck me that his attitude was De typical of his commendable regard for the rights and interests of others. There is one matter that has been referred to about which I should express my conclusion. The defendant's evidence was that he stopped his vehicle to investigate the smell of burning oil and that when the collision occurred he was lying upon the mudguard of the prime mover peering into the engine. Constable McEvoy gave evidence that when he arrived at the scene of the accident he saw the defendant in a dazed condition and the defendant then, in response to a question from the constable, said that he had stopped the vehicle and was fixing up his left side tail light. Assuming that Constable McEvoy understood him correctly - and I find some difficulty about the description "left side tail light" - I consider that the defendant, in his dazed and injured condition, gave a quite incorrect account of what he had been doing when the vehicle was hit. The constable, himself, very fairly recognized that this was a possibility. The defendant was injured in the collision but if he had been fixing any tail light, or any light at the rear of the vehicle, when the collision occurred, he would almost certainly have been killed. It is quite clear, despite what he said, that he was not fixing up a tail light when the collision occurred. It is also of some significance that the first evidence of his position after the collision - that is, the evidence of Steele - placed him at the front of the vehicle some 200 feet, I would think, north of the place where the tail light was when the collision occurred. There were a number of other issues that arose in the case, but I do not find it necessary to refer to them as I have stated in general my reasons for my conclusion in favour of the defendant. The action will be dismissed, with costs.