Edwards v Noble [1971] HCA 54

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Walsh JJ. Edwards v Noble [1971] HCA 54

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 Barwick C.J.

At about 6.30 on the evening of Saturday, 5th August 1967 the appellant was driving a small Morris car on the main North Road between Warnertown and Port Pirie in the State of South Australia. He was accompanied by a passenger who gave evidence at the subsequent trial out of which this appeal arises: but the appellant did not. However, he made a statement to a police officer. From this statement and the passenger's evidence, it appears that the car was veing driven at between forty and fifty m.p.h. well on his proper side of the road. This speed was not said in itself to be in breach of any traffic regulation. He had his headlights in the dipped position in which it was said they would illuminate objects forty feet ahead of the car. He was passing oncoming cars at frequent intervals and by law was bound to keep his lights dipped when within 300 yards of a car coming in the opposite direction. It could be concluded that the frequency with which cars passed was such that the appellant may have been required to have had his lights dipped at or about the time in question or, at any rate, that it was reasonable for him in the circumstances to have had them dipped at that time. It was not said that his lights, so dipped, were in breach of the Traffic Regulations.

The respondent had been driving his motor cycle, with a pillion rider as passenger upon the same road in the same direction as that in which the appellant was proceeding. He had stopped his cycle, placed it on its stand, leaving its engine running. His passenger dismounted and, according to the primary judge's finding, quite likely obscured any tail light which may have been burning on the motor cycle. The respondent himself alighted from the cycle on its near side. The cycle on its stand was on the bitumen surface of the roadway although a trafficable verge about twelve feet wide was available on which to park it.