Mitchell v Clancy [1960] HCA 74; (1960) 107 CLR 86 (18 October 1960)

HIGH COURT OF AUSTRALIA

MITCHELL v. CLANCY [1960] HCA 74; (1960) 107 CLR 86

Negligence

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(3) and Menzies(3) JJ.

CATCHWORDS

Negligence - Contributory negligence - Accident at intersection - Bicycle rider injured by motor car approaching from right - Car slowing down as intersection approached - Statutory regulation requiring vehicle on left to give way - Negligence of both parties - Apportionment of responsibility - Reduction of damages - Appeal as of right - Amount involved - Competency - The Law Reform (Tortfeasors Contribution, Contributory Negligence and Distribution of Chattels) Act of 1952 (Q.), s. 10 (1)* - The Traffic Regulations 1949 (Q.), reg. 13 (1) - Judiciary Act 1903-1950 (Cth), s. 35 (1).

HEARING

Brisbane, 1960, June 17, 20;
Melbourne, 1960, October 18. 18:10:1960
APPEAL from the Supreme Court of Queensland.

DECISION

October 18.
The following written judgments were delivered:-
DIXON C.J. The facts upon which this appeal turns are simple enough and case has found its way up to this Court and it has moreover caused some difference of judicial opinion. The difference of judicial opinion can be traced, as I think, to the fact that the case concerns three matters upon which the law has been unable, or at all events has failed, to furnish any tests or standards of liability except of the most indefinite not to say vague description. For the case is concerned first with the existence of contributory negligence as a cause of the injury, second with the proportion by which the damages to be recovered by the plaintiff should be reduced on account of the contributory negligence supposed and third with the adequacy of the damages assessed. The case has found its way into this Court because the Full Court of the Supreme Court decided that there was no sufficient ground for increasing the damages assessed by the primary judge but that they should be reduced by thirty-five per cent on account of contributory negligence. The claim on the writ had been for 5,000 pounds damages but 2,516 pounds had been awarded and this had been reduced by the Full Court to 1,637 pounds. The plaintiff regarded the decision or order of the Full Court as accordingly given in respect of a sum at issue amounting to more than 1,500 pounds or involving a claim or question respecting a civil right of that amount or value. (at p89)

2. I have said the facts are simple; they admit of a very short statement. The plaintiff was riding a bicycle home from work in a Brisbane suburb about half past four in the afternoon of a wet summer's day. He was in a main thoroughfare to the city called Fairfield Road. He reached an intersection with a road called Ashby Street. There was no traffic about except the defendant's car which the plaintiff could see on his right in Ashby Street moving slowly towards the intersection. (at p89)

3. If it matters the roads did not intersect at right angles, the angle of the intersection on the plaintiff's right being 130 degrees and that on his left 50 degrees. At the obtuse angled corner on his right was a vacant allotment over which, notwithstanding a growth of long grass, it was easy for the plaintiff to see the defendant's car as it approached the corner. In fact it slowed down and the plaintiff believed that it had done so to let him pass ahead. He pedalled on, looking to his left up Ashby Street for traffic from that direction. His course in Fairfield Road kept him well over on his left. When he reached a point a little beyond the centre line of Ashby Street, which is a chain wide between building lines, he was struck by the defendant's car. He had turned his eyes to the front after looking left and having done so he saw the car but it was then right upon him and he could not avoid it. (at p89)

4. What had happened on the defendant's side is clear enough. The plaintiff was mistaken in thinking that the defendant had seen him and was slowing down or pulling up to let him pass. The defendant was pulling up but it was not because he saw the plaintiff. In fact he could not see traffic coming from his left and did not see the plaintiff on his bicycle. The reason why he could not see to his left was that there was drizzling rain and his left hand wind-screen wiper was out of action and moreover there was mistiness on the inside of the screen except where he had wiped it in front of him. He had in fact just completed a U turn in Ashby Street after picking up his daughter who took her seat at the back. Here is his account of what occurred. "On arrival at the junction of Fairfield Road and Ashby Street, did your speed increase or slow down? - I almost stopped. Where did you almost? - I would say, very close to the kerb line of Fairfield Road. And then you saw nothing, and what did you do then? - There was no traffic coming and no need to hurry, so I just went over at - you know - just an ordinary pace. I cannot recall definitely, but I would say in low gear. Did something happen after you had commenced to cross? - Yes, I was over the other side. I had passed the kerb line of Fairfield Road on the opposite side when my daughter screamed out something and I saw a man - it turned out to be the plaintiff in this case - just in front - just a little bit to the left of the front left-hand mudguard and he seemed to be proceeding practically straight across the front of my car". He was asked what distance was the plaintiff when he saw him and answered that he would say about six feet. (at p90)

5. If there were nothing else to control the conclusion except the facts and circumstances of the collision I should unhesitatingly assign the sole blame to the defendant. It would appear to me in other words that the defendant behaved with a want of reasonable care in crossing a road commonly bearing traffic when owing to the condition of his wind-screen he was unable to see what if any traffic was coming from his left and that he had thereby caused the collision. I can see no negligence in the conduct of the plaintiff. He saw the defendant, saw him "almost stop", drew a natural inference and did the correct thing in looking to his left. He could hardly be expected to turn his head again so quickly as to see the movement of the defendant's car in time to avoid the collision. The inference he drew was not only natural; it would have been correct had it not been that the defendant's vision was obscured, for the defendant makes it sufficiently clear that he "almost stopped" to look for traffic. It is perhaps a small point, but on the other side of Ashby Street on the defendant's right Fairfield Road is much wider so that the defendant could see traffic coming from that direction long before he reached the corner at which he slowed down. (at p90)

6. The result of the foregoing is to my mind that unless there be some further consideration the accident should be attributed to the want of due care on the part of the defendant. But there is a further consideration and the question is whether it controls the result. That consideration lies in reg. 13 of The Traffic Regulations. It is the regulation requiring the driver of a vehicle approaching an intersection to give way to traffic on his right reaching the inter-section. I shall not set out its involved terms. Presumably a man who pedals a bicycle is taken to drive a vehicle. On that view the plaintiff was driving "a vehicle upon or towards an intersection . . . at the same time as another vehicle (the defendant's car) was being driven from another direction upon or towards such intersection". The provision adds the condition that it must be "under such circumstances that there is a reasonable possibility that if both continued they might arrive at the same point simultaneously or a dangerous situation might be created". Well, the plaintiff and the defendant did arrive at the same point simultaneously; though perhaps it should be remarked that this could only have happened because the defendant increased his speed. If the circumstances are such as to fulfil the condition, then the driver of the vehicle having the other vehicle on his right side must reduce the speed of, or stop, his vehicle so as to yield right of way to such other vehicle. (at p91)

7. It is said that the plaintiff did not comply with this regulation and that that is the end of the matter; he is thereby guilty of contributory negligence and nothing remains but to reduce the damages he is to recover. The unfortunate plaintiff was a fortuitous cyclist who knew nothing of these things; he had borrowed a bicycle from his son to ride to work on two days. But of course his intrusion into the motor traffic of Fairfield Road meant that he must obey the rules. He was bound as strictly as the best instructed driver of any motor vehicle. The question however is not whether there was a breach of the regulation but whether in the circumstances the plaintiff was guilty of negligence contributing to the accident. The negligence in question is want of due care for his own safety. It is a vague standard, I repeat, but it is a familiar one. Perhaps it must be decided instinctively and the instinct must be the product of day to day experience. But the instinct of the cyclist and of the pedestrian must be somewhat different from the instinct of the motor driver; and the instinct of the judge habituated to the trial of collision cases cannot but be a little cloyed; it must tend to become almost a proleptic recognition of the rival explanations that he will inevitably hear of any given collision. For myself I cannot think that the regulation plays any real part in this case. The defendant was not relying upon the regulation. He pulled up to look for traffic; had he seen the plaintiff he would not have proceeded so as to hit him. He gave every appearance of pulling up to let the plaintiff pass. The plaintiff behaved reasonably in so construing his action. The whole thing comes back to the simple position that the defendant through his own neglect could not see the plaintiff and either because he mistakenly thought he could see traffic on his left or because he was prepared to take a chance, he increased his speed to cross. My view accords with that of the learned primary judge. Philp J., except that his Honour considered that "the plaintiff was at fault in proceeding to cross the intersection without being certain that the defendant would actually stop". For my part I think that he was "certain" enough even if mistakenly certain; he was justified in thinking and actually did think that the defendant was slowing down sufficiently to allow him safely to pass, if the defendant was not actually stopping. What I think is the "realist" view of the matter is that a cyclist who has full view of a car and thinks the car accordingly has a full view of him is misled into thinking that the car is letting him pass on the main road and that his assumption proved unsound only because the car driver had negligently deprived himself of a great part of his field of vision. For these reasons I do not think that a question arises of the percentage or amount by which damages should be reduced. (at p92)

8. There remains the question whether the amount at which the general damages were assessed is adequate. It appears to me, as it did to the judges of the Full Court of the Supreme Court, that the assessment is very low. But notwithstanding some misgiving I am not prepared to disagree with the conclusion that the assessment of damages should not be disturbed. (at p92)

9. I shall not discuss the question of the competence of the appeal as the appeal in any event is to be dismissed. (at p92)

10. Assuming the appeal to be competent my own view is that it should be allowed. (at p92)

McTIERNAN J. This was an action in negligence for personal injury. The issues were whether the plaintiff was guilty of contributory negligence and what were adequate damages for the injury suffered by the plaintiff. The action was tried by Philp J. without a jury. Contributory negligence was alleged, but not as a defence to the action; if that allegation were proved, the damages recoverable could be reduced under The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act of 1952. The defendant did not set up the defence of not guilty. Philp J. decided that the plaintiff was not guilty of contributory negligence. He assessed the special damages at 1,015 pounds 19s. 4d. and the general damages at 1,500 pounds. Accordingly, the plaintiff recovered a judgment for 2,515 pounds 19s. 4d. The defendant appealed against the decision of Philp J. that the plaintiff was not guilty of contributory negligence and the plaintiff cross-appealed against the adequacy of the award of general damages. The Full Court (Stanley, Mack and Wanstall JJ.) reversed the decision on the issue of contributory negligence and pursuant to the abovementioned Act reduced the damages which were awarded. They dismissed the plaintiff's cross-appeal. The judgment of the Full Court substituted for the award of damages made by the trial judge an award for 1,635 pounds 7s. 7d. The present appeal was brought by the plaintiff from the whole of the judgment of the Full Court. The notice of appeal raises these questions: (1) Whether it was right for the Full Court to reverse the decision of Philp J. on the issue of contributory negligence? and (2) Whether the damages assessed by Philp J. were adequate? (at p93)

2. The accident occurred on an intersection. The plaintiff was riding a bicycle and the defendant was driving a motor car. When the plaintiff was riding towards and on the intersection he had the defendant's motor vehicle on his right. This vehicle was slowing down almost to the point of stopping when it was approaching the intersection. The plaintiff observing that the motor vehicle was almost stopping looked to his left to see if there was traffic on that side - there was none but the motor vehicle on his right - and rode on to the intersection without reducing speed. The motor car did not wait for the plaintiff to pass but went at a slow speed on to the intersection and hit him, thereby causing the injury. The plaintiff, having looked to his left, did not see the motor vehicle until it was about to collide with him. When he saw the motor car almost stopping at the intersection he considered that the driver was yielding right of way to him. Philp J. decided that the circumstances were within reg. 13 of The Traffic Regulations and it was the duty of the plaintiff under the regulation to reduce the speed of his bicycle or to stop as to yield right of way to the defendant's motor car and that the plaintiff had failed to observe the regulation. The learned judge said: "The instant case is one of a collision between two slowly moving vehicles - one a bicycle. As I have held the plaintiff was at fault in proceeding upon the intersection without being sure that the defendant stopped. I hold him at fault because it is very necessary that the rule of the road should be observed - but would it be fair or reasonable to regard him as having been in any real sense the author of his own harm when one regards the nature and consequences of the negligence of the defendant". Turning to describe the negligence of which the evidence proved that the defendant was guilty Philp J. used these words: "I hold that the windows and windscreen of the defendant's car were so affected by drizzle and mistiness that he drove up to the intersection blind as to any vehicle approaching on his left and that he drove across the intersection blind as to any vehicle on his left front. That negligent unawareness of the existence of the plaintiff was the real cause of the damage. Considering the slow speed at which he was travelling at the crucial time had he not been driving blind he could easily have avoided the mischief which happened. He was almost stopped when the danger should have been apparent to him". These findings are amply supported by the evidence and are not disputed by the defendant. The learned judge considered it appropriate to quote a dictum from the judgment of the Privy Council in Marvin Sigurdson v. British Columbia Electric Railway Co. Ltd. (1953) AC 291 : "There is, perhaps, no class of case which more nearly affects the average citizen in his daily life and which for this reason should, so far as possible, be kept free from legal subtleties and philosophical discussions on the theory of causation which, however fascinating, only tend to perplex and confuse the average juryman. Thirty years ago Viscount Birkenhead in The Volute (1922) 1 AC 129, at p 144 had occasion to observe: 'Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it'" (1953) AC, at p 299 . The trial judge rejected the allegation of contributory negligence. His conclusion is expressed in these words: "Applying that common sense which appellate courts are wont to attribute to juries and taking a broad view of the case as a whole I hold that the negligence of the defendant was the sole cause of the collision". (at p94)

3. In the accident the plaintiff suffered a compound fracture of the forearm, other minor injuries and shock. His arm was in plaster for fourteen weeks and the medical attention he received for it required him to make frequent visits to the hospital. He suffered very considerable pain and discomfort because of the injury to his arm. It was badly set. There resulted from the injury a permanent limitation of the rotational movement of the arm. In consequence of this his ability to work at his trade as a welder will be somewhat impaired. Some months after the accident the plaintiff suffered from a duodenal ulcer. The learned trial judge accepted medical evidence to the effect that the ulcer was probably caused by worry and a nervous condition due to the accident and he also found that the ulcer caused the plaintiff much pain and worry. Some years after the accident the ulcer was dealt with by surgery and he was able then to return to work. The defendant admitted liability for loss of wages by the plaintiff from the time of the accident until the ulcer became the cause of his absence from work. The defendant further admitted that if the Court found that the ulcer was included in the damage suffered in consequence of the accident the total liability for loss of wages would be 929 pounds 7s. 4d. In the result Philp J. awarded that sum for such loss. He gave special damages for other items of pecuniary loss and as stated above assessed general damages at 1,500 pounds. The plaintiff's cross-appeal called into question the adequacy of 1,500 pounds as general damages. (at p95)

4. The learned judges who constituted the Full Court did not differ from the opinion of Philp J. that the plaintiff broke reg. 13 by not giving the right of way to the defendant. They differed from him on the question whether the breach of the regulation amounted, in the circumstances, to contributory negligence. (at p95)

5. The onus was on the defendant to prove his allegation of contributory negligence. In order to prove the allegation it was necessary that the evidence should show that the plaintiff failed to take reasonable care for his own safety and that the damage which he suffered resulted from such want of care. The proof of the breach of the regulation did not necessarily amount to proof of contributory negligence. It was not negligence per se (see Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, at p 461 ). Whether it was contributory negligence depended on all the circumstances. This was a question of fact and the trial judge's finding in the negative should not have been set aside on appeal unless it was clearly wrong. I think that it was a reasonable finding in all the circumstances. There was, I think, an element of conjecture in the reasoning of Stanley and Mack JJ. as to what was the particular default of the plaintiff. Stanley J. said in the course of his reasons for judgment "The defendant gave no warning by sounding his horn. He did not give a stopping signal so far as is known. The plaintiff acted on a too hastily formed judgment - a reasonable judgment when made on the facts as they appeared to him but made on unnecessarily brief observation when there was a duty to look longer - and failed thereafter to look at the defendant's vehicle. The defendant failed at all times during which he could have taken avoiding action to see the plaintiff because the defendant was unsighted by his own negligence in driving when it was impossible to see through his windscreen". With respect I do not agree that the evidence is sufficient to justify a finding that the plaintiff was careless in respect of his observation of the defendant's vehicle. The evidence merely shows that the plaintiff made an error of judgment in thinking that that motor vehicle was giving him right of way. The test is whether an ordinarily prudent cyclist would have thought from the extremely slow speed of the motor car that its driver was not concerned to take the right of way. It seems to me that, as the plaintiff was riding a bicycle, it was not unreasonable for him to take the opportunity of crossing the intersection in front of the almost stationary motor vehicle. The plaintiff was entitled to assume that the defendant could and did see him riding towards and on to the intersection. The facts found by Philp J. as to the misty condition of the defendant's windscreen and windows were, of course, unknown to the plaintiff. The plaintiff did not observe the letter of reg. 13. In fact he was ignorant of it and though a vehicle on the road on which he was travelling had the right of way as against a vehicle on the road from which the motor car came on to the intersection. But it was not unreasonable for the plaintiff to conclude from the extremely low speed of the defendant's motor car that its driver was giving him the opportunity to go first. The plaintiff could reasonably have thought it was safe to keep going. With only the defendant's motor vehicle, which was going so slowly, on this right, I cannot agree that it is a correct finding that the plaintiff took an undue risk by not stopping or not looking again at the motor vehicle, preferring to keep going and get over the intersection. Mack J. said that the plaintiff "was aware of the motor car approaching on his right but ignorant of the right hand rule. He saw the motor car moving slowly almost onto the intersection: he, aware of danger turned his head away and proceeded blind to any vehicle approaching from his right". With respect I do not think that the evidence shows that the plaintiff behaved as rashly as this statement suggests. On the contrary, I think that the plaintiff did not, in the circumstances, take any undue risk at all if his assumption that the defendant saw him was correct. It was without doubt a reasonable assumption. (at p96)

6. In my opinion Philp J. was justified in finding that the damage suffered by the plaintiff did not result to any extent from his breach of reg. 13. I am not prepared to hold that the learned judge was wrong in finding that the damage resulted solely from the negligence of the defendant. I think that a clear line can be drawn between the plaintiff's breach of the regulation and the negligence of which the defendant was found guilty. (at p96)

7. I turn now to the question whether the sum of 1,500 pounds was sufficient to be regarded as a reasonable amount of general damages. Stanley J. referred to some evidence showing a rather serious degree of personal inconvenience caused to the plaintiff because of the way in which the injury restricts the movements of his arm. The learned judge also referred to evidence showing how the plaintiff's ability as a welder is affected by the impairment of his arm. He stated the substance of that evidence in these words: "As an electric welder he has to have his hand in all positions - right angle, overhead, and vertical - and his work has been affected. His right arm is much shorter than it was and he indicated an inability to turn it: apparently he cannot stretch it out completely, nor turn it sufficiently to get the palm of his right hand facing up". There follows a passage in the reasons of Stanley J. which is as follows: "(The plaintiff) is only a young man. There is no evidence that he lost his earning capacity as a welder. There is evidence that he resumed work owing to the goodness of his employer in putting him on light work". The learned judge concluded that 1,500 pounds "is arguably inadequate". He was, however, of the opinion that the amount was not "so demonstrably inadequate that this court should interfere". Mack J. said: "With regard to damages I have come to the conclusion that they are not manifestly inadequate and therefore this court should not interfere". Wanstall J. said: "There is something to be said for the view that the award of 1,500 pounds for general damages appears inadequate on the face of it. But applying the well-known limits on this Court's power to interfere with assessments of damages, I am not prepared to replace this assessment by my own". In mentioning the elements of a fair and full assessment of general damages in this case the handicap which the impaired condition of the plaintiff's arm is likely to be to him in the labour market should not be left out of account. A sum of some hundreds of pounds should be allowed for the pain, suffering and discomfort suffered by the plaintiff in consequence of the injury. What would remain out of the sum of 1,500 pounds strikes me as scant compensation for a young tradesman, as the plaintiff is, to receive for so serious an injury to his arm for very little, if any, remains to compensate him for ensuing loss of equality with other workers in the competition of the labour market. This could result in future loss of earning power. In my opinion this should not be left out of account in assessing general damages. I reach the conclusion that the sum of 1,500 pounds is not reasonably adequate. I would increase the general damages to 2,500 pounds. (at p97)

8. For these reasons I would set aside the judgment of the Full Court and restore the judgment of Philp J. but vary it by increasing the damages by 1,000 pounds. (at p97)

9. A point was raised when this appeal began whether it was competent under s. 35(1) of the Judiciary Act 1903-1950. What was said in support of the objection to the competency of the appeal was that it does not appear to involve more than 975 pounds. The plaintiff would receive under the judgment of the Full Court that amount less than he would receive under the judgment of the trial judge. This argument fails to take into account that the sum of 5,000 pounds was claimed in the action and that the judgment of the Full Court dismisses the plaintiff's cross-appeal against the adequacy of the damages awarded by the trial judge. (at p98)

10. In fact, because the Full Court found contributory negligence on the part of the plaintiff they reduced the damages awarded by the trial judge from 2,515 pounds 19s. 4d. to 1,635 pounds 7s. 7d. This is the amount actually awarded by the judgment under appeal. The difference between that sum and the amount claimed, that is 5,000 pounds, shows that the appealable amount of 1,500 pounds is involved. In my opinion, the appeal is competent. I would allow it and order that judgment be entered for the plaintiff in the sum of 3,515 pounds 19s. 4d. (at p98)

FULLAGAR, KITTO AND MENZIES JJ. The proceedings giving rise to this appeal were concerned with an accident which occurred at about 4.30 in the afternoon of 7th February 1956 in which the plaintiff, who is also the appellant, was injured when his bicycle and the defendant's car collided. Although there was some difference of opinion about the degree of visibility, it was common ground that the day was wet and dull and the clouds were low-lying. (at p98)

2. The collision occurred in Brisbane at the intersection of Fairfield Road and Ashby Street. Fairfield Road runs approximately north-east and south-west. It is sixty-six feet from building line to building line to the south of Ashby Street, and it is nearly twice that width to the north of Ashby Street, although the two building lines on the west side of Fairfield Road are in line. Ashby Street runs east and west and it is sixty-six feet from building line to building line. The intersection formed by these roads is an irregularly shaped area some one hundred and eighty feet wide on the north side, and about seventy feet wide on the south side. What happened was that the plaintiff, a man in his thirties who was riding his bicycle north along Fairfield Road, and the defendant, who was driving his Nash car in a westerly direction in Ashby Street, collided at a point not far east of the projection of the western building line of Fairfield Road across Ashby Street and a few feet to the north of the centre line of Ashby Street, so that the defendant had practically completed crossing the intersection and the plaintiff was a little more than half-way across. (at p98)

3. Before entering the intersection, the plaintiff had been riding close to the western kerb of Fairfield Road at a speed which he estimated at about five miles per hour. When he was about twenty-five feet back from the building line of Ashby Street, he looked to his right and saw the defendant's car travelling west and about seventy-two feet back from the eastern building line of Fairfield Road on the south side of Ashby Street. He observed the car was travelling slowly and at a decreasing speed, and when it reached the building line at Fairfield Road it had virtually stopped. Thinking the defendant was stopping to give him right of way, the plaintiff, so the evidence showed, looked to his left, entered the intersection, and did not look to his right again, and it was not until he had travelled some thirty feet that he noticed the defendant's car to his right and almost upon him. He could then do nothing to avoid the collision. (at p99)

4. The defendant, having made a U-turn in Ashby Street at the eastern end of the intersection, travelled west towards the eastern building line of Fairfield Road on the south side of Ashby Street, and did so in low gear and at a slow speed. When he reached Fairfield Road he paused and then, accelerating, drove across the southern part of the intersection but still at a slow speed. The defendant did not see the plaintiff until the bicycle was in front of the car and only a couple of yards away. The defendant swerved but could not avoid striking the bicycle. The reason for the defendant having failed to see the plaintiff earlier seems to have been that the windscreen of the car was obscured by mistiness on the inside. (at p99)

5. On the foregoing facts, Philp J. decided that the collision was due entirely to the defendant's negligence and that notwithstanding the plaintiff was careless in entering the intersection with a car on his right and without making sure that that car had stopped, his negligence was not a contributory cause of the accident. He entered judgment for the plaintiff for 2,515 pounds 19s. 4d., including 1,500 pounds general damages. The defendant appealed on the ground that the negligence of the plaintiff was contributory negligence. The plaintiff, who by his writ had claimed 5,000 pounds damages, cross-appealed on the quantum of damage. The Full Court dismissed the cross-appeal but allowed the appeal, having come to the conclusion that the plaintiff's damages should be reduced by thirty-five per cent because such damage as he suffered was suffered partly as a result of his own fault. This reduction amounted to 880 pounds 11s. 9d. The plaintiff has appealed to this Court against the whole of the judgment of the Full Court, claiming that the appeal is of right or, alternatively, that special leave to appeal should be granted. (at p99)

6. The case involves consideration of two statutory provisions - first, The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act of 1952, s. 10, and secondly, reg. 13 of The Traffic Regulations. Section 10 applies where a a person suffers damage as a result partly of his own fault and partly of the fault of another person. It provides that in such a case the claim in respect of that damage shall not be defeated by reason of the claimant's fault but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. The definition in s. 4 of "fault" includes "negligence, breach of statutory duty or other act or omission which . . . would, apart from this Act, give rise to the defence of contributory negligence". Regulation 13 imposes upon a road user the obligation to yield right of way to another road user on his right when both users are approaching or using any intersection at the same time "under such circumstances that there is a reasonable possibility that if both continued, they might arrive at the same point simultaneously or a dangerous situation might be created". (at p100)

7. Although the plaintiff was not aware of reg. 13, it seems to us that the account we have given of the events leading up to the accident shows that it did apply and that it was the obligation of the plaintiff to yield right of way to the defendant. The plaintiff and the defendant were both not only approaching but were travelling on the intersection in circumstances that, neither giving way to the other, they did arrive at the same point simultaneously, and looking back at what happened, it seems clear that prior to the collision there was a reasonable possibility that this would happen. The plaintiff therefore contravened the regulation. (at p100)

8. Upon the view we take of this case, we consider that s. 10 of the Act also applied, and accordingly it is not necessary for us to determine whether it would have applied if we had reached the same conclusion as Philp J. that the plaintiff was guilty of negligence but not of contributory negligence. It does seem to us, however, that the section applies only when the plaintiff's damage was partly due to his own fault and in a case where, notwithstanding the plaintiff's negligence, his damage was entirely due to the fault of the defendant the section would not require any reduction of the damage to be awarded to the plaintiff. At the same time, in a case where an accident would not have happened without the negligence of both parties concerned, it is, we think, only in a clear case that it should be decided that the damage was due to the negligence of one to the exclusion of the other: see Alford v. Magee [1952] HCA 3; (1952) 85 CLR 437, at p 461 where it is said that a distinction between two negligent persons should not be drawn "on light or trivial or dubious grounds". (at p101)

9. Here we consider that the Full Court was right in its conclusion that the plaintiff's negligence did contribute to his damage. The defendant had the right of way and we do not regard his slowing down almost to a stop before crossing as an invitation to any traffic on his left to cross in front of him. It may be that the plaintiff so understood it but, if he did, he did so without sufficient justification, for many careful drivers intending to exercise their right of way at an intersection slow down before entering it. Had the plaintiff known of reg. 13, it seems to us unlikely that he would have acted as he did. In any case, for the plaintiff to proceed across the intersection ignoring a car on his right when he did not know whether it had stopped or not amounted to negligence - and to negligence contributing to the collision and the plaintiff's damage. Each failed to keep a proper look-out, and neither was aware of the other on the intersection until it was too late to avoid colliding. The trial judge and all the judges of the Full Court considered that the plaintiff was negligent in entering the intersection and riding as he did. The judges of the Full Court also decided that his negligence was partly the cause of his damage, and we agree with them in thinking that the plaintiff's riding across the inter-section disregarding the car on his right that had right of way was a fault that contributed to the collision and to his damage. (at p101)

10. It is notoriously difficult to determine how responsibility for a collision should be divided between two parties whose negligence causes it. The Full Court in this case thought that the defendant was nearly twice as much to blame as was the plaintiff, and that is an apportionment of responsibility which we think should not be disturbed. (at p101)

11. The Full Court also considered that although the damages awarded were low, they were not so low as to warrant interference by a court of appeal. With that too we agree. (at p101)

12. Because we think this appeal wholly fails, we do not find it necessary to determine whether the plaintiff has an appeal as of right or, if not, whether special leave to appeal should be granted. (at p101)

13. We think this appeal should be dismissed. (at p101)

ORDER

Appeal dismissed with costs.