e (
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OPEN COURT
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO: 200/92
BETWEEN
EDITH ALEXANDRA BODDEN
AND
TRUMAN MURRAY BODDEN
&
(Executors of the Estate
D. Bodden, Deceased)
AND
ANDY'S RENT-A-CAR
1st
AND
PETER DELROY WILLIAMSON 2ND
Mr. Pierre Lamontagne Q.C. with Mr. Phillip Boni for
the plaintiffs.
Mr. Michael. Parkinson for the defendants.
Schofield J.
PLAINTIFFS
of Arthur
DEFENDANT
DEFENDANT
On the sea side of North Church Street, George Town, is the 7-11
Store which was owned by the late Mr. Arthur Bodden (to whom I
shall refer as "Mr. Arthur") before he met his death on 19th
August 1991. Mr. Arthur was a vigorous 85 year
opposite the 7-11 Store, on the other side of North
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street.
Next to his home was Mr. Arthur's printing business.
Mr.
Arthur spent his time between his home, and his two businesses
and, according to his former employee Ivy Velonie Ebanks, often
worked very long hours.
The afternoon of the 19th August,1991 was a wet one in George
Town.
When Mr. Arthur left the 7-11 store at around 4 p.m. it
was raining heavily so he used a soft drinks carton to protect his
head from the rain.
He turned left out of the front door of the
shop and stood there waiting to cross to his home or to his
printing business.
Mr. Arthur was holding the box in his right
hand
and either did not see a truck
on the nearside of the road
travelling in the direction of West Bay or misjudged its speed or
the intentions of the driver because he stepped into the path of
the truck and collided with it, sustaining injuries from which he
died.
The truck was driven by Peter Delroy Williamson (the second
defendant),
who has since left for his home in Jamaica.
The
second defendant had left the airport on that day after performing
some work there.
He had with him in the truck his co-workers
Irvin Carlon Bush and Johnson Robert Ebanks who were with him in
the front cab, and a very wet Ashley Eddington Hydes who was in
the back of the truck, behind the second defendant.
They
proceeded from the airport into Eastern Avenue and cut across into
North Church street entering it by what was then a liquor store in
Bodden
Avenue.
Bodden Avenue is 141 feet from the door of the
7-11 store.
The second defendant turned right into
street and was not picking up speed because he
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stop at the 7-11 store for Hydes to collect some cigarettes.
There is evidence that the second defendant
turned on his left
hand indicator to indicate his intention to pullover.
His speed
cannot have been more than 15 m.p.h. and was quite possibly less.
The second defendant gave a witness statement to Police Constable
McLean on the date of the accident. He also gave evidence to a
Coroner's Inquest held on the 28th October,1992.
His witness
statement and a transcript of his evidence to the Coroner were
admitted in evidence.
In his witness statement the second
defendant said he saw Mr. Arthur standing in front of the shop
under the eaves.
Upon reaching very close to him Mr. Arthur
stepped out into the road "very fast".
The second defendant
applied his brakes and tried to avoid Mr. Arthur by swerving to
his right but his front nearside bumper hit Mr. Arthur.
In the
Coroner's Court the second defendant said that Mr. Arthur was
standing with a box over his head and his head was turned away
from him.
Mr. Arthur ran into the road when he, the second
defendant, was three feet away from him.
He ran five feet before
the collision.
Police Constable McLean was called to the scene
of the accident.
She drew a sketch plan which was exhibited and
she took the witness statements from the second defendant and the
other occupants of the truck.
According to Ivy Velonie Ebanks,
Mr. Arthur's employee, after the accident she was approached by
the second defendant who said to her: "I saw him
but me didn't know he wanted to cross the road".
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As is not unusual in such cases the evidence of the three other
eye witnesses to the accident did not correspond exactly to that
of the driver of the vehicle, or for that matter to each other's
evidence.
Hydes, who was in the back of the truck, first saw Mr.
Arthur as he was standing at the edge of the road, not, as the
second defendant first saw him, under the eaves of the shop.
The
preponderance of evidence shows that there was a van parked in
front of the shop in the West Bay direction of its entrance.
other smaller vehicles were parked behind the van, but we are
unsure as to the numbers of such vehicles.
Hydes placed Mr.
Arthur at the edge of the road immediately behind the van when he
saw him.
He testified that when the truck was ten feet away from
Mr. Arthur, Mr. Arthur walked across the street without looking in
the direction of the truck.
The second defendant applied his
brakes and pulled over to the right to avoid Mr. Arthur but a
vehicle coming in the opposite direction prevented him from
pulling all the way over to the right.
The truck came to a stop
and as it did so Mr. Arthur turned around, panicked, bumped into
the truck, tripped and fell.
Not surprisingly Hydes had
difficulty explaining how Mr. Arthur came to rest on the street
eight to ten feet from the stationary truck, as demonstrated by
the sketch plan prepared by the police officer.
Irvin Carlon Bush also testified that his first sight of Mr.
Arthur was when he was standing at the edge of the road towards
the back of the stationary van.
Mr. Arthur
position for a few seconds and when the truck was
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away from him he tried to cross the road.
The truck was almost at
a stop and the driver applied the brakes.
Bush could not tell
whether the driver pulled to the right or skidded in that
direction.
As the truck came to a stop Mr. Arthur turned in its
direction and bumped into it.
Mr. Arthur struck the truck rather
than the opposite way about.
Johnson Robert Ebanks testified that he first saw Mr. Arthur when
he was in the middle of the shoulder of the road, that is between
the eaves of the store and the road's edge.
When the vehicle was
about eight feet from him Mr. Arthur walked right out into the
road.
He did not look in the direction of the truck.
The driver
applied his brakes and hit Mr. Arthur, who fell down.
The plaintiffs called Miles Elliott Moss of Miami, Florida,
U.S.A., who is the President of Miles Moss and Associates and who
provides analysis of pedestrian and vehicular accidents.
Moss'
original report was furnished to the defendants' attorney pursuant
to an order for directions granted by this Court.
A second report
was sought to be tendered at the date of trial and outside the
time limits of the directions.
I formed the view that the late
appearance of the second report was not a deliberate attempt to
take the defendants by surprise and that no real prejudice would
be caused to the defence because (a) the second report, whilst
differing slightly from the first, was not so materially different
as to throw the defence off balance, and (b) an adjournment of
trial would be offered to the defence.
In those circumstances
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Court should not exclude the evidence (see Rover International
Ltd. and Others v Cannon Film Sales Ltd (No2) [1987J 3 All ER
986) •
Moss reviewed the documentary evidence available to the Court.
He
visited the scene of the accident and interviewed Velonie Ebanks
and Police Constable McLean.
He based his calculations on the
second defendant's statement that Mr. Arthur embarked on his dash
across North Church Street from under the eaves of the 7-11 Store.
Mr. Arthur travelled 9.1 feet from the eaves to the edge of the
road, and a further 5 to 7 feet into the road ( a total of 14 to
16 feet) before he was hit by the truck.
That is assuming he
crossed the road at a 90 degree angle.
Moss also computed the
travel velocity of Mr. Arthur basing that computation on a
standard textbook on the subject.
The computation takes account
of Mr. Arthur's age.
From the distance travelled and the travel
velocity Moss estimated that it took Mr. Arthur between 3.3 and
4.4 seconds from start to finish on his fatal journey.
Moss then computed the travel distance of the truck and the time
it would take the second defendant to perceive and react to the
hazard.
Basing his findings on the official Road Code of the
cayman Islands and other published studies, Moss concluded that
the second defendant's "thinking time" would be between .. 68 and
2.5 seconds. Given a 15 m.p.h. speed, the truck would travel
between 14.9 and 55 feet in the time it would take the second
defendant to perceive and react to Mr. Arthur's appearance
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road.
Moss measured the coefficient of friction of the roadway when wet
to ascertain how long it would take the truck to stop after its
brakes were applied.
The value was 0.61. He calculated the
stopping distance to be 12.2 feet at 15 m.p.h.
He testified that
the total distance to perceive, react and stop was determined by
combining the 14.9 to 55 foot perception/reaction distance and the
12.2 foot stopping distance, a total of 27 to 67 feet to react and
stop.
For a vehicle travelling at 15 m.p.h. this would take 1.2
to 3 seconds before impact.
Moss then worked back basing his computation on the travel time of
Mr. Arthur of 3.3 to 4.4 seconds and a speed of 15 m.p.h. for the
truck, which resulted in a calculation that the truck was 72 to 97
feet away when Mr. Arthur began to cross the road.
Moss concluded
that as the second defendant needed only 27 to 67 feet to react
and stop from first sight of Mr. Arthur as a hazard he could have
stopped the truck in time to avoid an impact with a safety margin
of 5 to 70 feet.
I am sure that Moss was giving the Court his fair analysis of the
accident and that where possible in that analysis he gave the
second defendant the benefit of the doubt.
However, doing the
best he could Moss had to base his calculations on various
assumptions such as that Mr. Arthur was travelling
at a 90 degree angle, that the road was
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November 1995 as in August 1991 and, most importantly, that Mr.
Arthur started his dash across North Church street from under the
eaves of the 7-11 store.
It cannot be doubted that Mr. Arthur
started his journey across the road from under the eaves, and that
is where the second defendant first saw him, but the preponderance
of evidence is that Mr. Arthur stepped to the edge or near the
edge of the road and started his final dash across it from that
position and when the truck was very close to him.
I prefer to
rely on the evidence of the eye witnesses.
Thiel was a tragic accident made no less tragic by what I regard as
an inevitable finding that in stepping out into North Church
street as he did Mr. Arthur contributed to the accident.
To my
mind the only issues which really merit lengthy consideration are
whether the second defendant was in breach of his duty of care to
Mr. Arthur and if he was the proportion of responsibility to be
attached to each party.
I should say that it has been argued by
the parties, and the Court endorsed this course, that the question
of liability only should be determined at this hearing, and that
the question of quantum should be left to a later date, if it
arises at all.
Mr. Arthur must have dashed into the road.
The evidence of the
eye witnesses leads to that conclusion and the fact that it was
raining at the time, supports a conclusion that he was anxious to
get across the road as quickly as an eighty five year old man in
good health could.
He. started his journey from under the
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of the 7-11 shop and this is where the second defendant picked up
sight of him.
Not surprisingly the passengers in the truck picked
up sight of Mr. Arthur at various stages of his journey into the
road.
From where did he make his final dash into the road?
The
preponderance of evidence leads me to the conclusion that it was
from the edge of the road just at the corner of the van which was
marked on the plan.
I should also say that I am satisfied that
the truck hit Mr. Arthur and that the evidence of Hydes that the
truck hit Mr. Arthur and that is supported by the fact that Mr.
Arthur was found several feet away from the truck by the police
officer.
The second defendant had a duty to drive with reasonable care
given the circumstances presented to him.
section 52 of the
Traffic Law (Revised) sets out the general duty of road users in
the following terms:
"52. It is the duty of every
road user to exercise care and
attention when using the road
and to have due regard to the
safety and
comfort of other
road users and the preservation
and protection of public and
private property.
section 55 sets out such duties with more particularity.
I need
not set those duties out in full save to comment that by s.55 (0)
it is the duty of a driver of a vehicle to comply with the Road
Code.
Paragraph 4(j) of the Road Code is relevant to the issues
before me.
It reads:
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"Whatever the speed limit, no
speed can be justified, even in
an open road devoid of traffic,
if the driver would not be able
to pull up in time to avoid
such an accident as might occur
if a child suddenly ran into
the road; it is important to
realize that acceleration can
be as vital as braking capacity
and that the driver who keeps
in
hand
a
reserve
of
acceleration
affords
himself
two
ways
of
avoiding
an
accident in a sudden emergency,
while the driver who
leaves
himself no such reserve is left
to
rely
entirely
on
his
brakesi"
Does a breach of the Road Code automatically make a driver of
negligent?
I think not.
This matter was considered by the
\
English Court of Appeal in Croston v Vaughan [1938] 1K.B. 540
where Greer L.J. said, at pp.551-2:-
(
"There has been a
good deal
said about the effect of the
statutory Rules and Orders made
under the
Road Traffic Act,
1930, and of the Highway Code
which
was
made
under
the
provisions of the 1930 Act.
I
do not find it necessary to
refer to the provisions of the
statute, but I want to say this
with reference to the statutory
Rules and Orders: that though,
of course, they can be used as
a guide to see whether there
ought
to
be
a
finding
of
negligence or no negligence,
when
nothing is done
except
putting
the
light
on
and
putting
it
on
too
late, I
disagree with the view that a
compliance
with
the
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requirements of the statutory
Rules and Orders would prevent
a finding of negligence.
They
do not provide that in any way,
and a learned trial judge (or,
it may
be,
a
jury)
is not
confined
to
the
question
whether
the
action
of
the
driver
is
consistent
or
inconsistent
with
the
Regulations.
The Highway Code
is not binding as a statutory
regulation;
it
is
only
something which may be regarded
as information and advice to
drivers.
It does not follow
that if they fail to carry out
any provision of the Highway
Code
they
are
necessarily
negligent.
The Road Traffic
Act provides that a failure to
observe any provision of the
Code may in any proceedings be
relied
upon
as
tending
to
establish
or
rebut
any
liability which is in question
in those proceedings.
Nor is
it sufficient excuse for any
person to say, in answer to a
claim for negligence, that he
carried out every provision of
the Code."
The duty to follow the Road Code is set higher in these Islands
than was the duty in England to follow the Highway Code set out
in the passage above, for in these Islands the duties set out in
the Road Code are applied by the Traffic Law.
However that does
not mean that every breach of those duties amounts to negligence
because a breach of a duty may not satisfy the test of
unreasonableness necessary to found an action for damages.
For
example for every driver to comply strictly with the counsel of
perfection contained in paragraph 4 (j) of the Road Code would
slow down the traffic in many parts of these Islands to
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5 m.p.h.
All must depend on the circumstances.
A person driving at a slow speed in a built up area may not be
able to avoid colliding with a child who darts, previously
unseen, from between two tall vehicles in chase of a ball.
In
those circumstances , all other things being equal, can the
driver be said to be driving outside the requisite standard of
care if he was keeping a proper look out?
The answer must be no,
even though the driver may be in strict breach of paragraph 4(j)
of the Road Code.
On the other hand if the driver sees the
child in advance playing on the side of the road with a ball he
is on notice of a hazard and may well be under a duty to keep the
child in his concentrated vision.
In this case we have it from
the second defendant that he had first sight of Mr. Arthur when
he was under the eaves of the 7-11 store.
Here was a man
carrying a box in the hand closest to the truck, partly obscuring
his face and concentrating on the traffic coming in the opposite
direction.
The second defendant should have seen him move to
the side of the road and should have perceived the danger of Mr.
Arthur crossing the road in front of him.
In the circumstances
there was a want of reasonable care on the part of the second
defendant in not reacting to the hazard he had in his sight or
should, with reasonable care, have kept in his sight.
What, then, is the extent of the second defendant's liability?
I have been referred to the case of Baker y Willoughby [1969] 3
All E.R. 1528 where the House of Lords affirmed the trial judge's
apportionment of 25 per cent liability
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cent liability to the driver of a motor car in the following
circumstances.
The pedestrian started to cross a road on which
there was a 40 m.p.h. speed limit and on which the parties had a
clear view of each other for 200 yards.
The pedestrian saw a car
coming from his right.
He was struck in the centre of the road
by a vehicle which he had not seen and which was overtaking the
car he had seen, and as he was looking away from that car.
The
trial judge found that the driver of the motor car had been
driving at an excessive speed or had failed to keep a proper look
out, or both, and that the pedestrian had been negligent in not
seeing more than one car and in not waiting until they had
passed.
In my judgment the negligence of the driver in that case exceeded
the negligence of the second defendant in this case.
In Baker v
willoughby the driver was undertaking an inherently dangerous
manoeuvre, that of overtaking.
In this case the second defendant
was not undertaking any improper or dangerous manoeuvre.
The
negligence of the pedestrian in Baker y Willoughby
was less than
the negligence of Mr. Arthur in this case.
The pedestrian in
that case did look to his right, although he failed to see all
that was there.
In our case, on the other hand, Mr. Arthur
failed to look right and darted into the road.
Balancing one thing with another and doing the best I can I
apportion liability at 25 per cent to the second
percent to Mr. Arthur.
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The first defendant has been brought in to these proceedings
because it is the owner of the truck driven by the second
defendant.
No other basis of liability has been sought to be
proved and it is simply insufficient to establish liability
against it.
I find the action proved as against the second defendant in the
terms set out above.
Costs will follow the event.
I dismiss
the action as against the first defendant and it will have its
costs against the plaintiffs accordingly.
Dated this 16th day of January,1996.
D. Schofield
Judge