[1968] VR 22
ASHLEY v SCHONBERGER
SUPREME COURT OF VICTORIA FULL COURT
WINNEKE (1) CJ, LITTLE (1) and GOWANS (1), JJ
20, 21, 24 April 1967
[1968] VR 22
Appeal — Statutory negligence — Intersection — Obligation to "give way" to
approaching vehicle — Failure to give way — Negligence — Road traffic
regulation — Subjective element — Misdirection of law — New trial ordered
where the jury may have been influenced by the misdirection — Road Traffic
Regulations 1962, reg601, reg603(2)(a).
.
Reg603(2)(a) of the Road Traffic Regulations 1962 required a driver if turning
to the right at an intersection to give way to any other vehicle which had
entered or was approaching the intersection from the opposite direction.
Reg601 provided that "where these Regulations require a driver to give way to
a vehicle..., the driver shall, in circumstances where if he proceeded there
would be a reasonable probability of his colliding with that vehicle...or
otherwise creating a dangerous situation, slow down to such an extent, or stop
and remain stationary for such time, as is necessary to allow that
vehicle...to continue on its... course without risk of collision or as is
necessary to avoid creating a dangerous situation".
The plaintiff was a passenger who was injured when an intersection collision
occurred between a station wagon proceeding easterly along a highway and a
motor car which had been travelling westerly along the highway and was turning
north. There was no evidence that the defendant driver of the motor car
turning north saw the station wagon approaching the intersection. The trial
judge charged the jury in effect that though the defendant car driver may have
been negligent in failing to see the approaching station wagon, she was under
a duty imposed by the Regulations to give way to the station wagon only if she
saw it approaching the intersection. The jury returned a verdict for the
plaintiff against both drivers, apportioning 90 per cent responsibility to the
driver of the station wagon and 10 per cent to the driver of the motor car. On
appeal by the driver of the station wagon,
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[1968] VR 22
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