ASHLEY v SCHONBERGER

[1968] VR 22·WINNEKE (1) CJ, LITTLE (1) and GOWANS (1), JJ
[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
AppealStatutory negligenceIntersectionObligation to "give way" to approaching vehicleFailure to give wayNegligenceRoad traffic regulationSubjective elementMisdirection of lawNew trial ordered where the jury may have been influenced by the misdirectionRoad 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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