FUSS V. THE COMMONWEALTH OF AUSTRALIA

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HL J Groen, Gort. Print, Mab.

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IN THE HIGH COURT OF AUSTRALIA.

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v. { WHS COMIONUSA TE OF ANSTRALLA REASONS FOR JUDGMENT.

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REASONS FOR JUDGMENT, EATHAR C.J. The appellant in this case was a passenger on the pillion of a motor cycle between which and a truck belonging to the Commonwealth and driven by its servant a collision took place. Sec. 131. of the Read Traffic act (8.A.) 1934-1942 imposed on the rider of the motor eycle a duty to give way to the truck so that the truck eould continue om its course at the speed at which it was travelling. The Pider of the motor eyele did notgive way. He did not stop or decrease his speed 20 that the motor track eould pass in front of him. _-' He was plainly guilty of negligence, but that negligence does not ' disentitle the plaintiff as passenger to a remedy if the defendant, through its servant, were guilty of negligence which caused orwas part of the cause of the aceident in which the plaintiff was injured. - the effect of sec. 131 of the Act is not that the driver to whom another driver is bound to give way is entitled to drive at an excessive speed and to pay no attention whatever to traffic entering from the left-hand side of the road. Im this case there is evidence which was accepted by the learned Judge that the speed of the truck was net excessive; it was.about perhaps a little more than 25 miles per hour. See. 131 does not entitle a driver to whom other drivers should give way to assume in all circumstances that other persons will act as required by the section. He is entitled to assume and to act upon the assumption that they will so act unless he has warning that they are not going te de so. In this case the question which arises is whether the driver of the truek ought to have seen that the motor cyclist was not going to stop or waz going to onter Payneham Head in such a manner as to cause a danger of a collision. In this ease there is evidence that /