Road Traffic Code 2000

Commentary Paper No. 3

The rule at inoperative Traffic Lights

Synopsis

Regulation 46 is badly drafted and incapable of logical analysis. Furthermore it is not even necessary. Without Regulation 46 the default provisions of giving way to the right and the give way rules at T-intersections would apply. Those rules require no clarification. Regulation 46 ought to be repealed.

Prepared by Ted Leech LLB (Hons.), B. Comm

41 Woodbine Road

Pickering Brook WA 6076

Telephone: 9293 8170

Email eleech@perthlaw.biz

18 December 2004

Road Traffic Code 2000

Commentary Paper No. 3

The Rule at Inoperative Traffic Lights

Introduction

The Road Traffic Code 2000 repealed and superseded the Road Traffic Code 1975. Although the earlier regulations made provision for flashing yellow signals at intersections, there was no provision for inoperative or defective signals. Regulation 46 of the current regulations set out the law in such a situation.

In this paper I intend to set out the effect of the current law and explain why it is not acceptable.

Drafting Techniques of Regulations

Any statement in a law or regulation which is part of a legal macrocosm seeking to regulate human behaviour can be classified in one of 5 ways. It can be (i) prohibitive; (ii) permissive; (iii) definitive; (iv) informative; and (v) (rarely and arguably) advisory.

It is not relevant to deal with category (v) here. Categories (iii) and (iv) are obvious. If the legislature wishes to define an elephant to be a horse then until that law is repealed all elephants will be horses. That is a definitive rule. Where a penalty is set out after a restrictive rule that is informative. Interpretive difficulties arise with the combination of restrictive and permissive rules.

In the absence of any law, no actions or omissions[1] are prohibited. As the law comes to grips with the minutiae of possible behaviour, it must first proscribe some behaviour. If, for example, we only wish people to drive motor vehicles on the left side of the road the regulation must proscribe driving on the right hand side of the road. This can be done in two ways. Either with a purely restrictive law i.e. one that proscribes driving on the right hand side of the road or by a combination of restrictive and permissive rules i.e. a restrictive law which proscribes driving on roads at all and a permissive law which then permits people to drive on the left hand side of the road. The result is the same and it is a choice for the draftsman as to which results in the most unequivocal and easily understood script.

Under each restrictive rule there may be exceptions but all the exceptions will be permissive. Similarly under a permissive rule there may also be exceptions but each exception must be restrictive. There may be exceptions to exceptions ad infinitum but each layer will be opposite to, and a microcosm, of the previous one.

If, for example, the possession of widgets is banned (a restrictive law) then a subsequent rule banning left handed widgets is otiose whereas a subsequent rule which allows the possession of right handed widgets (a permissive law) is perfectly logical. Subsequently white right handed widgets might be banned but there would be no point in specifically allowing the possession of red right hand widgets.

If one rule is said to be a microcosm of a previous rule but is of the same type (i.e. restrictive or permissive) then the result is a nullity and confusion is created. This is the error which has been made in the drafting of Regulation 46 and it is the reason for it being unintelligible.

The Relevant laws

Regulation 401 of the 1975 regulations addressed the flashing amber situation but did not address defective or inoperative lights at all. There was no legal vacuum created because the applicable rules could be discerned from the more general regulations i.e. Regulations 602, 603 and 609. Reg 602 laid out the general ‘give way to the right rule’, Reg 603 pertained to give way rules for turning traffic (pedestrians and oncoming traffic) and Regulation 609 governed give way rules at T-intersections.

It is worthy of note that the old rule pertaining to flashing yellow lights gave right of way to pedestrians crossing the road from which a vehicle was approaching whereas, if the traffic lights were simply inoperative, vehicles were only obliged to give way to pedestrians on the intersecting road if the vehicle was turning.

The current rules are contained in Regulation 46 which reads (diagram omitted):

46 . Giving way at an intersection with traffic-control signals not operating or only partly operating

(1) If all the traffic-control signals facing a driver approaching an intersection do not appear to be functioning, or are displaying a flashing yellow signal, and there is a traffic light-stop sign, the driver shall treat that intersection as if the driver were facing a "stop" sign and no traffic control signals.

Points: 3 Modified penalty: 3 PU

(2) If all the traffic-control signals facing a driver approaching an intersection do not appear to be functioning, or display a flashing yellow signal and there is no traffic light-stop sign facing the driver, the driver shall treat that intersection as if the driver were facing a "give way" sign and no traffic control signals.

Points: 3 Modified penalty: 3 PU

(3) Despite sub regulations (1) and (2), a driver may only proceed beyond the stop line associated with traffic-control signals facing a driver that do not appear to be functioning, or display flashing yellow signals, or (in the absence of a stop line) beyond a point adjacent to the nearest signals, if the driver —

(a) does not conflict or interfere with pedestrians crossing the roadway;

(b) does not turn the vehicle contrary to an instruction on a traffic sign at the intersection;

(c) gives way to any vehicle on the right and, if turning right, gives way to any vehicle that has entered or is approaching the intersection from the opposite direction; and

(d) complies with any direction by a member of the Police Force, if a member of the Police Force is in attendance regulating traffic.

Points: 3 Modified penalty: 3 PU

For the sake of simplicity I intend to omit those parts of this regulation which do not impact on its interpretation. The only effect of Sub regulation (1) in addition to Sub regulation (2) is to require vehicles to stop when there is a traffic light-stop sign.

In Sub regulation (3), subclause (b) appears to be redundant since obedience to traffic signs is required by Part 8 of the regulations and there is no reason to suspect that Part 8 is ousted by reason of the sign being present in an intersection at which inoperative traffic lights are erected.

Similarly subclause (d) is redundant since such a requirement is imposed by Regulations 272 and 273.

For the purposes of interpretation therefore, the regulation can be simplified to:

46 . Giving way at an intersection with traffic-control signals not operating or only partly operating

(a) does not conflict or interfere with pedestrians crossing the roadway;

(b) …;

(c) gives way to any vehicle on the right and, if turning right, gives way to any vehicle that has entered or is approaching the intersection from the opposite direction.

Analysis

The structure of the regulation is that the basic situation is that set out in sub regulation (2) but that position is amended by sub regulation (3).

The meaning of sub regulation (2)

Sub regulation (2) provides that a driver treat the intersection as if he is facing a ‘give way’ sign. That imports regulation 52 which reads (so far as is relevant):

52 . Giving way at a give way sign or give way line at an intersection

(1) A driver at an intersection with a "give way" sign or give way line shall give way to a vehicle in, entering or approaching the intersection except —

(a) an oncoming vehicle turning right at the intersection, if a "stop" sign, stop line, "give way" sign or give way line applies to the driver of the oncoming vehicle;

(b) a vehicle turning left at the intersection using a slip lane; or

(2) If a driver at an intersection with a "give way" sign or give way line is turning left or right or making a U turn, the driver shall give way to any pedestrian at or near the intersection on the carriageway, or part of the carriageway, the driver is entering.

In this case there is a restrictive rule preventing a driver from proceeding under given circumstances, i.e. if there is another vehicle in, entering or approaching the intersection in a give way situation[2]. There is then a list of permissive rules i.e. those contained in subclauses (a) – (c).

If this is the law at intersections where there are inoperative traffic lights, in practice, a major difficulty arises because all vehicles approaching the intersection have identical obligations. Everyone must give way but nobody has right of way[3]. Obligations to give way cannot be hierarchical in that one vehicle has a greater obligation to give way than another; either a driver must give way or he has right of way. This creates an impasse because all vehicles must give way to other vehicles whether on the left or on the right. Therefore any two vehicles approaching the intersection not on the same road must both give way. Under the previous (1975) regulations the position would revert to the ‘give way to the right rule’ or the ‘T-intersection rule’ but Regulation 46 does not allow for that.

It is therefore necessary to examine sub regulation (3).

The meaning of sub regulation (3)

The use of the word ‘Despite’ in sub regulation (3) implies that what follows, at least in part, will contradict and overrule the previous subsection.

The use of the phrase ‘may only proceed’ [my emphasis] indicates that subsection (3) is restrictive where the previous rule is permissive,.

The effect of (a) is easy to discern since it prohibits a driver proceeding past the relevant point if there are pedestrians crossing the approach road. Under the rule in (2) the driver would only have to give way to pedestrians on a road he was entering if he was turning or those on a slip road[4].

Subclause (c) defies logical analysis. It consists of two rules the first of which, i.e. “gives way to any vehicle on the right”, is not a microcosm of any of the permissive rules in (2). It is a microcosm of the superior restrictive rule in (2) and therefore seeks to proscribe something that has already been proscribed. Under (2) the driver must already give way to vehicles approaching the intersection from both the right and the left[5].

The second rule in subclause (c), “if turning right, gives way to any vehicle that has entered or is approaching the intersection from the opposite direction” is restrictive and is grafted on the permissive subclauses of Regulation 52.

Under (2) and therefore Regulation 52, if the driver is turning right, the driver must already give way to a vehicle approaching from the opposite direction except if the approaching vehicle is turning left using a slip lane[6]. Therefore, the only restrictive effect of the second rule in (c) is that it requires the driver who is turning right to give way to all oncoming traffic whether they are using the slip lane or not.

I am as certain as I can be that this was not the intention of the drafters of the regulation. However, it is what the regulation says.

In summary a driver encountering an intersection must give way to all vehicles approaching the intersection from all directions except those approaching from the opposite direction and turning right. The driver must also give way to all pedestrians on the roadway wherever they may be. All other drivers are under identical obligations.

This situation is intolerable. It means that there are no rules concerning who should proceed first and if a collision occurs (except where one vehicle proceeding straight on or turning left collides with a vehicle approaching from the opposite direction and turning right), every driver involved is at fault because every driver is obliged to give way to every other driver.

There is no warrant to interpret Regulation 46 (3) (c) as imposing a give way to the right rule. That may have been the intention of the drafter of the regulation but the semantics used are not capable of creating a right of way over traffic approaching from the left. Furthermore, if that was the case, Regulation 46 would be rendered completely redundant and meaningless and the word ‘only’, which clearly is intended to apply to all the subclauses below it, would have to be ignored.

Traffic Lights at T-Intersections

The above discussion has centred on a cross road intersection where traffic lights are erected. However, traffic lights can also be erected at T-intersections.

The default situation for T-intersections is given in Regulation 56. However, there is no doubt that the existence of Regulation 46 ousts Regulation 56 if traffic lights are erected at the location but not operating. Once again the effect of Regulation 46 is to remove a perfectly logical and well understood system with an amorphous system where everyone must give way to everyone else. Even if my analysis is wrong and the Regulation 46 (3) (c) establishes a give way to the right regime, I doubt if this was the intended result. What is the point in changing the well-known rules of giving way at T-intersections?

Conclusion

Sources:

This paper was compiled using information from any or all of the following sources and no others (unless explicitly stated);

The Road Traffic Code 2000 and amendments current until 10 November, 2003.

The Road Traffic Code 1975 reprinted as at 23 September 1997.

“Drive Safe: A Handbook for Western Australian Road Users” Department for Planning and Infrastructure, published by the Road Safety Council of Western Australia, Revised Edition 1 December 2001.

“How to Pass Your Driving Assessment: A Candidate’s Guide to the Practical Driving Assessment” Transport, published by The Road Safety Council of Western Australia 1 September 2001.

[1] Hereafter for the sake of simplicity only actions will be considered.

[2] The term ‘give way’ was explained in regulation 601 of the 1975 regulations but there appears to be no such explantion in the current regulations. In any event, ‘give way’ is such a notorious term that it does not require any explanation or definition.

[3] I appreciate that ‘right of way’ is not a term that is favoured by traffic technicians because it connotes licence to force one’s right of way to the danger of others. I appreciate that point and I use the term here simply as the antithesis of having to give way.