MARLOW V. TATLOW AND OTHERS

ae

IN THE HIGH COURT OF AUSTRALIA

Vv.

REASONS FOR JUDGMENT

'A.C. Brooks, Governmant Printer, Melbourne 0.763000

JUDGMENT

(ORAL)

MARLOW

ve

TATLOW AND OTHERS

KITTO J.

MARLOW

Ve

TATLOW AND OTHERS

In this action the plaintiff claims damages in respect of a collision which occurred on 29th December 1963 on the Tasman Highway in Tasmania between a motor-car which she was driving and a bus which the defendant Reed was driving in the course of his employment by his co-defendants.

She alleges that the collision was caused by negligence on the part of Reed in the management of the bus. The defendants deny the allegation of negligence and they raise a defence of contributory negligence.

In addition they counter claim in respect of damage sustained by the bus in and in consequence of the collision, alleging that the collision was caused by negligence of the plaintiff in the management of her car.

The Tasman Highway runs from Launceston to St. Helens, passing through Scottsdale and crossing a single-track railway line at Tonganah. For some distance - perhaps a mile - before it reaches the crossing, it follows a straight course down a slight gradient. The surface of the crossing is raised slightly above the general level of the roadway. There is no narrowing of the roadway at this point. Beyond the crossing, the road continues its slightly downward course, still following the same straight line for half a mile or so.

The roadway is bitumen-paved to a width of about 16 feet. The railway crossing is clearly marked by a post on each side bearing a white wooden cross and equipped with blinking lights to give warning of the approach of trains.

The collision occurred about 11.30 on a fine clear morning.

2.

The road was dry. The plaintiff, with her husband and her mother in the car as passengers, was driving towards St. Helens on her correct side of the road. The car was a small Standard 10 horsepower car and she was driving it at a speed of 30 to 35 miles per hour down the incline towards the Tonganah crossing. When she reached a point between 50 and 70 yards before the crossing, she saw the signs indicating the railway. The lights were not operating, as no train was in the vicinity. She then changed from top gear into third and applied her brakes. When her car was perhaps 20 feet - perhaps less - from the crossing, the defendants' bus, travelling behind her and in the same direction, collided with her car. Its near-side front mudguard hit the off-side rear of the plaintiff's car causing it to hurtle forward across the railway line and finish on its hood at the left-hand side of the road, some 8 or 10 feet beyond the line. The bus swerved to the right-hand side of the road, knocked over the post holding the warning sign, bent a light steel pole near it, passed over the railway line and came to a stop some 30 or 40 feet further towards St. Helens than the plaintiff's car. According to the evidence given by the plaintiff, her husband and her mother, her slowing down was not a sudden affair. The defendant Reed who, for some distance back, had been driving his bus some 60 feet behind her at a speed which he said was 35 miles an hour, gave in evidence two versions of what the plaintiff did. One was that she stopped completely; the other was that she slowed down suddenly and came almost to a stop. I accept the evidence of the plaintiff and her witnesses on this point. No doubt her speed fell considerably in the course of 50 yards or so, but I do not believe that she stopped, or nearly stopped, or reduced speed with a suddenness that would have presented any problem to Reed if he had been driving with proper care.