Kain and Shelton Ltd v Virgo [1956] HCA 47

VIRGO .

HIGH COURT [1956.

(HIGH COURT OF AUSTRALIA.]

KAIN & SHELTON LIMITED AND ANOTHER Appstiants ;

Durenpants,

AND

RESPONDENT ; PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H.C. or A. Negligence—Road accident—Collision with stationary vehicle at night—Lord Camp-

1956. Ww

ADELAIDE, May 9, 10;

Sypyry, Aug. 17.

Dixon C.J., Williams, Fullagar and Taylor JJ.

bell's Act claim—Contributory negligence of plaintiff—Applicability of legislation providing for apportionment of blame—Wrongs Act 1936-1951 (S.A.) (No. 2267 of 1986—No. 50 of 1951), s. 27a (3).*

'The plaintiff was driving a motor car at night along a straight, level stretch of country road. The road consisted of a bitumen strip about twenty feet wide, with loose gravel shoulders on either side. The defendant K., the driver of a semi-trailer which was travelling along the road in the same direc- tion as the plaintiff and ahead of him, had occasion to examine one of his tyres and, accordingly, stopped his vehicle for the purpose. He pulled partly off the bitumen, but his offside wheels remained on the bitumen and the tray of his vehicle projected on its offside about two feet nine inches over the bitumen. His rear lights were burning, but the trial judge found that they were partly obscured by dust or sludge and were not visible for 200 yards from, the rear, as required by s. 42 (1) (b) of the Road Traffic Act 1934-1954 (S.A.). As the plaintiff's car approached the point where the semi-trailer was station- ary, his vision was affected by the lights ofa third vehicle, which was approach- ing from the opposite direction. 'The plaintiff, therefore, reduced his speed from about fifty miles per hour to about forty miles per hour and watched the left edge of the bitumen in order to keep his direction, He failed to see the