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  • Unreported Judgment

Kenneth Frederick Newton v John Vernon Roll

 

[1979] FC 50

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 14 of 1979

FULL COURT

BEFORE:

Mr. Justice Lucas

Mr. Justice Matthews

Mr. Justice Connolly

BRISBANE, 25 JULY 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

------

KENNETH FREDERICK NEWTON

v.

JOHN VERNON ROLL

Ex parte: KENNETH FREDERICK NEWTON

JUDGMENT

MR JUSTICE LUCAS: This is an appeal by way of order to review from the acquittal by a stipendiary magistrate at Gladstone of the respondent who was charged with an offence under regulation 20 sub-regulation 9 of the Traffic Regulations in that he failed to give way to other traffic which had entered or was approaching an intersection upon which there was an official traffic sign inscribed with the words “Give Way”.

The appellant relied upon two decisions of this Court: Linnane and Wuersching (1964) Queensland Weekly Notes, 1933 and Begg against Zantos, an unreported decision of the Court given on 25 February 1970. Neither of these cases in our opinion intended to impose an absolute liability upon drivers of motor vehicles and they should not be read as though they did. The argument for the appellant comes very close to such a proposition, to the proposition that the mere occurrence of a collision upon an intersection which is governed by a “Give Way” sign of itself establishes that there has been a failure to comply with either regulation 33 or regulation 34. The decisions do establish that the test to be applied under regulation 34 is an objective test and, since regulation 34 and regulation 33 are descriptive of different aspects of the duty to give way, it is reasonable to accept that where regulation 33 is in question the test is also an objective one. But the test is, of course, to be applied in the factual situation found to exist by the tribunal.

In this case the stipendiary magistrate found that the streets in question intersected each other and made findings as to the nature of the locality on all sides of the intersection. He found that the defendant who was driving a motor car towing a trailer was approaching along Auckland Street towards its intersection with Coon Street, that there was a “Give Way” sign governing the intersection which was on the defendant's left as he approached the intersection and it was therefore directed to him, that he approached the intersection at a speed of about 25 miles per hour, that he looked to his right in which direction the sun was and that there was no traffic visible within the range of his vision, nor was there any traffic audible to him, that he then proceeded to cross the intersection at a speed of about 25 miles per hour. He also found that a man named Strohfeldt was driving a motor cycle eastbound along Coon Street towards the intersection but he made no finding as to the speed at which the motor cycle was travelling. He found that when the defendant's vehicle was approximately half way across the intersection the defendant then saw and heard the motor cycle and that at that stage it was about 20 feet away, that the driver of the motor cycle saw the defendant's vehicle when he was about 10 to 15 metres away, applied his brakes and skidded towards the defendant's vehicle and that a collision occurred.

Then the magistrate in our opinion correctly described the test which he should apply and expressed his conclusion in these words:

“The circumstances existing at the time the defendant's vehicle approached the intersection and at or about the ‘Give Way’ sign was that there was no traffic or vehicle audible to the defendant nor visible within his range of vision so that there has been no factual situation in existence demanding of the defendant to give way in the manner prescribed by regulation 33.”

In our opinion the magistrate correctly apprehended the test which he was bound to apply and it seems to me that there is no reason why his decision should be interfered with.

I should add that in cases of this nature the provisions of section 24 of the Criminal Code may well give rise to a defence.

This is the judgment of the Court and for the reasons which have been expressed the order to review will be discharged.

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Editorial Notes

  • Published Case Name:

    Kenneth Frederick Newton v John Vernon Roll

  • Shortened Case Name:

    Kenneth Frederick Newton v John Vernon Roll

  • MNC:

    [1979] FC 50

  • Court:

    QSC

  • Judge(s):

    Lucas, J., Matthews J., Connolly J

  • Date:

    25 Jul 1979

Litigation History

No Litigation History

Appeal Status

No Status