eam HL J, Green, Gort. Print, Melb. IN THE HIGH COURT OF AUSTRALIA. SHITE REASONS FOR JUDGMENT. Judgment delivered at... CEBOTRR | REASONS FOR JUDGMENT. LATHAM oT This is an appeal from a judgment of Mr. Justice Richards of the Supreme Court of South ustralia given in an action brought by a cyclist against a motorist for damages for negligence. His Honour gave judgment in favour of the plaintiff, finding that the cause of the accident which happened was the negligence of the defendant, and that there had been no contributory negligence of the plaintiff. The plaintiff was riding a cycle at dusk, not in darkness, in a southerly direction down a street known as Second Avenue (Royston Park). This street ran inte Lambert Road, which ran east and west. Almost, but not quite, opposite Second averme (Royston Park) was Second Averme (Joslin) which the cyclist intended to enter after crossing Lambert Road. The motorist was driving in a vesterly direction along Lambert Road, approaching that part of the road which was entered from Second Averme (Royston Park) and Second Avenne (Joslin). Each party was on his proper side of the road. The learned judge found, and there was ample evidence to support the finding in the admissions of the defendant himself, that the defendant was negligent, in that he did not keep a proper look-out as he approached the intersection. Further, His Honour found that the defendant infringed sec. 124 of the Road Traffic Act in not following a course as near as practicable to the left-hand side of Lambe#t Road along which he was driving. The defendant's offside wheel, His Honour found, and the evidence supports the finding, was about on the centre line of the road. His Honour was of opinion that there had been no breach of sec. 131 of the Act, which deals with the approach of vehicles to intersections in circumstances when there 1s a possibility of danger. Without absolutely deciding the matter, i think that there is a very great deal to be said for the contention that there was also a breach of this provision. But, in any case, the other negligence to which I have referred - not keeping a proper look-out, and a breach of sec. 124, that breach being prima facie / i 2. { facile evidence of negligence ~ is established. In the absence of this rwgligence on the part of the defendant (probably of either part of that negligence) the accident would not have happened. There was mot a collision between the cyclist and the car, but the plaintiff's e@ase is that the car was so driven as to place the plaintiff in such m position of danger that he had to act in an emergency. He did his best in the emergency in endeavouring to svoid the ear, and wanfortunately ran into the kerbstone, was thrown off his bicycle, and broke his leg. Some negligence on the part of the defendant is therefore established, and this negligence had a direct relation to the series of events which constituted the accident, becanse that raegligence placed the plaintiff in the position of danger which I Tnave deseribed, in which he had to make up his mind snddenly how he sshould act. There was, in my opinion, as the learned judge has found, mmo negligence in the plaintiff acting as he did when both parties Yaad become aware of the emergency. He endeavoured to avoid the car. Et was possible that he might have avoided injury if he had adopted another course, but it is quite impossible, in my opinion, to say that that is certainly the case, and still less possible to say tchat it was obviously the case to him, from his point of view, upon the actual occasion. Qn the other hand, for the defendant it is said that the plaintiff was negligent himself in not keeping a proper look-out, and that if he had done so, he could have avoided the accident. & peaking for myself, I agree with this argument. I agree that the evidence shows that the plaintiff did not look out until after he had entered Lambert Road, and he was lacking in due care for his own safety in riding into Lambert Road without looking out towards his left. He did look out towards the right and ahead, but only looked teowards his left when he had already reached Lambert Road. Although 1% was the duty of traffic on his left to give way to him, that, in ugy opinion, does not relieve him from the duty of taking some degree o# care for his own safety when he is erossing an intersection. He iss not entitled as of course to assume that everybody else will act 100% correctly. r/ 3. I was at first impressed by Mr. Abbott's argument that there were these two sets of negligence - that of the plaintiff and that of the defendant - and that they were contemporaneous, that they continued up to the moment of the emergency and that the emergency was therefore created by the contemporaneous negligence of both parties. If that were the case, then, in my opinion, the result would be that it would be impossible to say that the defendant's negligence was the sole cause of the accident - that there had been no contributory negligence on the part of the plaintiff. But an examination of the evidence, I think, shows (I think Mr. Hogan demonstrated it) that the emergency was not created by the contem poraneous negligence of both parties. The evidence shows that the plaintiff saw the defendant, or, as it has been put in argument, "waked up" when the defendant's car was some 20 yards away. The plaintiff then did his best to avoid any aecident, but the defendant aid not see the plaintiff until the defendant put on the brakes on his car. It is proved by the skid marks, and the action of the plaintiff in swerving to get out of the way of the car before the skid began, shows, that the defendant waked up later than the plaintiff waked up. If the defendant had waked up as scon as the plaintiff waked up, then there is no reason to suppose that the accident would have happened. But the defendant put on the brakes, ai is shown by the skid marks, when he, the defendant, was only some 10 feet away from the line of the plaintiff's course and when the plaintiff's swerve had brought him in front of the car. Accordingly, in my opinion, the plaintiff was not guilty of negligence after he sav the defendant. The defendant was guilty of negligence after the plaintiff's negligence had ceased to operate. If the defendant had seen the plaintiff when the plaintiff saw the defendant - when the defendant was some 20 yards away from the plaintiff ~ the defendant eoald have prevented the accident. I therefore agree that upon a ful) analysis of the evidence there is no evidence of contributory negligence on the part of the plaintirr. There is evidence of negligence on the part of the defendant and I agree with what His Honour / 4. Honour Wr. Justice Richards said ~ "The real cause of the accident was failure by the defendant to keep a proper lookout for traffic which might emerge from Second Avenue Royston on his right." In my opinion, therefore, the judgment for the plaintiff was right and the appeal should be dismissed. I agree. HORE; Ww MORRIS ve __ WHITE. SUDGHENT. . STARKE J. I agree. In my opinion there was ample evidence of negligence on the part of the motorist, but there was no evidence in this case of any contributory negligence on the part of the plaintiff in any relevant sense. Of course, citizens who use public highways mist proceed with reasonable care and skill - just the same as motorists who drive on these highways must also proceed with reasonable care and skill. But what the plaintiff did in this ease was to ride his bicyele at a comparatively slow rate inte Lambert Avenue, and, when he got about 5 feet or so past the corner, he looked and saw a motorist coming along on the left side of that Averme. And, noticing that, he became apprehensive of a eollision, and gave way in order to avoid a collision if possible. It 1s quite hopeless, in my opinion, to say that because he did not look until he was 5 feet or so inside Lambert Avenue that he was guilty of negligence and thereby contributed to the accident or that his decision had any influence whatever upon the accident that actually happened. It is for these reasons that I think the appeal should be dismissed.