Neutral Citation [2016] IEHC 715
THE HIGH COURT
[2012 No. 8784 P.]
CHENG ZHANG
PLAINTIFF
DEFENDANT
INTERIM JUDGMENT on liability of Mr. Justice Barr delivered on the 2nd day of December, 2016.
Introduction
1. This action arises out of a road traffic accident which occurred at approximately 5pm on Sunday, 17th April, 2011, at the junction of Merrion Row and Merrion Street Upper in the city of Dublin. While crossing the top of Merrion Street Upper, the plaintiff was hit by the defendant’s car, which had turned left into Merrion Street Upper from Merrion Row.
2. The hearing of this action has been adjourned to allow the defendant to have the plaintiff examined by a psychiatrist. In the interim, the parties have agreed that the court may proceed to issue its judgment on liability, as all the liability evidence has been heard.
3. The parties have further agreed that the court can have regard to the engineering reports submitted for each side, without the need for hearing oral evidence from the engineers.
4. The plaintiff ran the case herself, as she did not have legal representation at the time that the matter came on for hearing. The defendant was represented by solicitor and counsel.
The Plaintiff’s Evidence
5. In her evidence, the plaintiff stated that on Sunday, 17th April, 2011, she had been attending an accountancy class in a college in Ladd Lane, Dublin 2. When her lectures had finished, a little before 5pm, the plaintiff proceeded to walk up Merrion Row on the right hand footpath going in the direction of St. Stephen’s Green. She stated that the weather was good and the road surface was dry. There were not many people, or traffic, on the road at that time, as it was a Sunday.
6. The plaintiff stated that when she came to the junction between Merrion Row and Merrion Street Upper, the traffic on Merrion Street Upper was stationary, as the traffic lights were showing red against it. She stated that there were two lines of stationary traffic on Merrion Street Upper immediately to her right.
7. The plaintiff stated that she proceeded to cross the top of Merrion Street Upper. She thought that the pedestrian lights were showing yellow when she crossed the road. She stated that she had crossed in front of the two lines of stationary traffic on Merrion Street Upper and was proceeding across the far carriageway, when the defendant’s car came from Merrion Row and turned left into Merrion Street Upper and struck her. The plaintiff stated that she had crossed approximately half way across the far carriageway at the time of the impact.
8. The plaintiff stated that she thought the car was driving at a fast speed, as she was thrown into the air and spun around as a result of the impact with the car. A passerby came to offer assistance. Someone called for the emergency services and a short time later, a Dublin Fire Brigade Ambulance arrived and the plaintiff was taken to hospital.
9. In cross examination, it was put to the plaintiff that her evidence to the court, contradicted the account which she had given to the gardaí in her statement which was taken approximately eight days after the accident on 25th April, 2011. It was put to her that she was mistaken in relation to the colour of the pedestrian lights, showing against her as she crossed the top of Merrion Street Upper. In particular, it was put to her that she had said the following in the course of her garda statement:-
“I glanced at the pedestrian lights but didn’t pay much attention to them. There were no cars coming in my direction so I walked across the road.”
10. The plaintiff stated that she was still in shock at the time that she had made her statement to the gardaí. She stated that she had had a quick look at the pedestrian lights before crossing the road. However, because of the shock of the accident, she stated that she could not recall exactly what colour they were showing. She thought that the lights had been showing a “yellow man” against her when she commenced crossing the road.
11. In the course of cross examination, the plaintiff stated that the defendant’s car had come around the corner very quickly and unexpectedly. It was put to her that this contradicted what she had said in her garda statement in which she had stated:-
“Suddenly I saw a car coming around the corner and at me from the left. It looked like it was driving very slow, so I thought he was letting me cross.”
12. The plaintiff stated that she had thought that the defendant would let her cross the road, but instead he kept coming towards her and hit her. She stated that if the defendant had been driving slowly, she would just have been knocked down, but, in fact, she was spun around by the force of the impact.
13. It was put to the plaintiff that if she had stopped in the middle of the road, the defendant could have passed in front of her without any difficulty. She stated that that was not correct. She stated that she had been very shocked because she had been approximately two thirds of the way across the road, when she was hit. She stated that the defendant should have seen her quite easily. She stated that she had kept walking, trying to reach the other side of the road. She did not run or jump in front of the car.
14. It was put to the plaintiff that in the hospital admission records, there was a comment that she had been hit at “low speed” by a car. It was put to her that she must have told this to the attending nurse, as she was the only person who could have given the nurse that information. The plaintiff stated that she could not recall if she had told the nurse anything about the speed of the defendant’s car.
15. In the course of her evidence, the plaintiff produced a copy of CCTV footage, which had been taken from a camera which had been mounted on Government Buildings on Merrion Street. The camera looked up towards the junction between Merrion Street Upper and Merrion Row. Unfortunately, when the CCTV footage had been viewed by the plaintiff’s engineer in the Garda Station, they could only show it to him running at three times the normal speed. Subsequently, when the plaintiff got a copy of this CCTV footage, a friend of hers was able to slow it down to something approaching normal speed. This footage was played to the court on the plaintiff’s tablet and was shown to the defendant’s legal team. It shows that the plaintiff had crossed approximately two thirds of the way across Mount Street Upper, when she was struck by the car. She had crossed in front of two lines of traffic to her immediate right and had crossed approximately one third of the far carriageway prior to the impact. The plaintiff was the only pedestrian crossing the road at the time. In the footage she appeared to have been walking at a normal speed.
16. The plaintiff’s engineer, Mr. Peter Johnston, submitted a report dated 7th October, 2014. He noted that the width of Mount Street Upper was 12.4m. The centre white line is 6m from the footpath, which the plaintiff left as she crossed the road. On the plaintiff’s account of having crossed in front of two lines of stationary traffic and that she had gone approximately one third to one half of the way across the far carriageway, this meant that at normal walking speed of 1.4m/s, which equates to 5km/h, the plaintiff would have been on the road for approximately six seconds before coming into contact with the defendant’s vehicle.
17. Mr. Johnston was also able to look at other CCTV footage from different cameras which were not shown to the court. From the camera on Merrion Row, Mr. Johnston noted that the defendant had had a green light in his favour as he drove down Merrion Row approaching the junction with Mount Street Upper. The traffic light turned to amber as he commenced making his turn into Mount Street Upper. The CCTV also showed that he had had his left indicator flashing as he approached the junction.
18. In relation to the traffic lights facing the plaintiff, Mr. Johnston noted that if the defendant had a green light in his favour, the pedestrian lights would have been showing red against the plaintiff. The engineer noted that from his observation of the traffic light sequence at the junction, the pedestrian lights would only switch to green, after the green light on Merrion Row had changed to red and after a subsequent green light in favour of traffic exiting from Merrion Street Upper had also elapsed. He noted that conventional traffic lights allow two seconds, or sometimes marginally more, between one set of lights turning red and another set of lights turning green.
19. Having regard to the CCTV footage and the sequence of the traffic lights operating at the junction, Mr. Johnston came to the conclusion, that while there was nothing positively to indicate from the CCTV recordings that the pedestrian lights were red facing the plaintiff, it seemed almost inconceivable that they could have been at anything other than red, unless there was a profound fault in the traffic lights. However, no suggestion had been made of there being any such fault in the traffic lights.
20. Mr. Johnston also noted that, given the lines of sight available to each party at the locus, while the plaintiff could see the defendant’s car approaching the junction, with its left indicator flashing, the defendant also had a good line of sight of the junction. Mr. Johnston was of the opinion that the defendant ought to have seen the plaintiff walking across the junction. However, it appeared that he did not see the plaintiff before the impact, because he said the following in his statement to the gardaí:-
“I checked the corner beside the passenger side to make sure it was clear. I then looked on the right hand side and I hit a female the exact instant that I say here [(sic) - should this read ‘saw her?’]. I did not notice the female before the impact.”
21. Mr. Johnston noted that in his garda statement, the defendant did not describe looking ahead, or to his right, at all. He did mention looking to his left when making the turn into Mount Street Upper. His first description of looking to the right was when he impacted with the plaintiff.
22. Mr. Johnston noted that the plaintiff was there to be seen at the junction. Her direction of travel and likely impact with the defendant’s vehicle, would have been immediately obvious to the defendant, had he looked at the road ahead of him. On his own description of events, it was quite clear that he did not look at that part of the mouth of Merrion Street Upper until effectively, the moment of impact.
23. In his conclusions, Mr. Johnston very fairly conceded that there could be no question of the plaintiff having a green light in her favour. She did not make the case that she had pressed the button for the pedestrian lights, or that she had a “green man” in her favour when she crossed the road.
24. In relation to the allegation of speeding on the part of the defendant, he stated that this could only be determined after a more technical analysis of the CCTV recordings.
25. Overall, Mr. Johnston came to the following conclusions at paras. 10 and 11 of his report:-
“10. In as much as Mr. Farrell’s car was there to be seen by Ms. Zhang, Ms. Zhang walking across the road, was there to be seen by Mr. Farrell as he approached and then entered the junction. Any motorist with even a passing familiarity which this junction would know that this is a busy pedestrian crossing point (certainly on weekdays, though much less so at weekends). Even without such knowledge, Mr. Farrell ought to have had Ms. Zhang in sight for a significant length of time as he prepared to make his turn. At normal walking speed, it would likely have taken her about four seconds to reach the centre line of Merrion Street and another one to two seconds to reach the point where she was struck.
11. In his own statement to the investigating garda, Mr. Farrell admits that his first sight of Ms. Zhang was the ‘exact instant’ that his car hit her. Furthermore, he admits that this happened when, apparently for the first time, he looked in that direction as he continued his turn. Although he does describe checking the corner of the junction to his passenger side, only then turning to look to his right (his car hitting Ms. Zhang at that moment), he makes no declaration of looking at the overall mouth of Merrion Street previously, although Ms. Zhang, walking across the first half of the road, must have been in his most obvious line of vision, crossing the road in a region that would have been in Mr. Farrell’s ‘straight ahead’ orientation once he commenced his turn.”
26. The court also heard evidence from Garda Ultan Flynn. He stated that he had received a call from the control centre to attend a road traffic accident at the junction of Merrion Row and Merrion Street Upper. He arrived at the scene at approximately 17.10hrs. At that time, the plaintiff was being treated by the Dublin Fire Brigade medical team. He could not recall if she was still lying on the road, or had been placed in the ambulance by this time.
27. He stated that he spoke to the defendant, who was completely coherent and was able to give an account of what had happened. He stated that there was nothing to suggest to him, that the defendant had been drinking alcohol.
28. Garda Flynn stated that there were no skid marks or tyre marks at the scene of the accident. He stated that some days later on 22nd April, 2011, he had taken a cautioned statement from the defendant. On the following day, a statement had been given by the plaintiff to Garda Erin Lee. Garda Flynn produced both statements to the court. He confirmed that no prosecution was taken against the defendant arising out of the accident.
The Defendant’s Evidence
29. In his evidence, the defendant stated that on the day of the accident, he had gone into town to pick up his girlfriend in Dawson Street. However, he arrived a little early and, as there was no parking available on Dawson Street, he decided to drive in a loop to pass the time. He stated that he had been driving towards the camera as shown in photograph No. 2 of Mr. Walsh’s photographs. He was in the left lane as he intended to turn left down Merrion Street Upper. He stated that he had been travelling at approximately 25km/h. As he approached the junction, the traffic lights were green in his favour. Just as he was turning to his left into Merrion Street Upper, they changed to amber. He stated that he had slowed down to take the turn and was driving in second gear.
30. The defendant stated that just as he was making the turn, he looked to his left. He then looked up and at that moment struck the plaintiff, who impacted with the right front of his vehicle. He stopped his car and went back to see if the plaintiff was badly hurt. A nurse arrived on the scene and looked after the plaintiff. He moved his car out of the way.
31. He remained at the scene until the gardaí arrived. He was breathalysed by a female garda, but the test had been clear. He stated that he had not been driving fast at the time of the impact, because as he turned the corner he had braked and gone down into second gear. He stated that the assertion in the plaintiff’s garda statement that he had been driving very slowly, was correct. He stated that the plaintiff hit the front right side of his vehicle and landed on the road about 3 or 4ft down the side of his vehicle.
32. In cross examination, the defendant was asked why he had not stopped in view of the fact that the plaintiff was two thirds of the way across the junction. The defendant stated that it was his recollection that he stopped as soon as he heard a noise and felt an impact. It was put to the defendant that the CCTV footage from Merrion Street showed that the plaintiff had walked past two lines of stationary traffic and the defendant then turned left and hit her. It showed that she was clearly visible and that she was not running. The defendant did not comment on this portion of the CCTV footage.
33. In his garda statement dated 22nd April, 2011, the defendant had described the accident as follows:-
“I was travelling down Merrion Row at roughly 25km and as I reached the lights at the junction of Merrion Street they were green, but as I entered the turn they turned to amber. I then dropped into second gear to take the turn. I had slowed down again but I am unsure of exactly what speed I was travelling at. I checked the corner beside the passenger side to make sure it was clear. I then looked to the right hand side and I hit a female the exact instant that I say here (sic). I did not notice this female before the impact. I stopped straightaway and I went to see if she was ok.”
34. The court also had the benefit of an engineering report from Mr. Sean Walsh, on behalf of the defendant. He confirmed the sequence of the traffic lights, that when green for traffic on Merrion Row, they are red for pedestrians standing at the mouth of Mount Street Upper. After that, the next sequence is for traffic exiting from Mount Street Upper, during which time the pedestrian lights would still show red for pedestrians.
35. Mr. Walsh noted that in her garda statement, the plaintiff stated that she saw a car coming around the corner from her left. She confirmed that that car was driving very slowly but stated that she formed the view that the driver was letting her cross the road. The plaintiff continued crossing the road notwithstanding the oncoming car and the collision ensued.
36. In his report, Mr. Walsh came to the following conclusion:-
“At the time of the accident, the plaintiff was walking on a designated traffic light controlled pedestrian crossing at the junction. All available information supports the defendant’s account that at the time of the accident he was being shown a green traffic light in his favour and the plaintiff was being shown a red pedestrian signal on the pedestrian crossing being used by her.”
37. Mr. Walsh stated that in his opinion, the plaintiff had acted in breach of Regulations 46(1) and 46(3) of the Road Traffic (Traffic and Parking) Regulations 1997. Regulation 46(1) provides:-
“A pedestrian shall exercise care and take all reasonable precautions in order to avoid causing danger or inconvenience to traffic and other pedestrians.”
Regulation 46(3) provides:-
“A pedestrian about to cross a roadway at a place where traffic sign number RPC 003 or RPC 004 [pedestrian lights] has been provided shall do so only when a lamp of the facing pedestrian lights is lit and emits a constant green light.”
38. Having viewed the CCTV footage, Mr. Walsh issued an addendum to his report by letter dated 4th September, 2015. He stated that in the CCTV footage, the plaintiff can be seen walking in front of the defendant’s car as it turned the corner. The defendant’s car was towards the centre of its lane. Following the impact, the plaintiff fell back towards her direction of approach, but remained on the defendant’s correct side of the centre white line. He noted that in another camera view, the defendant’s indicator could be seen in use. He stated that the defendant’s car appeared to have been brought to a halt immediately after the incident and towards the centre of its correct lane.
39. He also noted that on a different camera, it showed that notwithstanding the fact that the plaintiff fell towards the direction of travel following the impact, she nonetheless remained on the defendant’s correct side of the road. Thus, it seemed that the defendant’s position at the impact was the normal and correct position on the roadway.
40. Mr. Walsh agreed that it would have taken the plaintiff approximately six seconds to walk across the mouth of Mount Street Upper from the far footpath to the point where she impacted with the defendant’s vehicle. He came to the following conclusion, having reviewed the CCTV footage:-
“In summary, the CCTV footage establishes that the defendant drove around the corner at the end of the green phase of his traffic lights and during the orange phase. The orange phase may not have been visible to him as he had passed the traffic lights on his left. In any event, the driving did not breach any Regulation or good practice relevant to the traffic lights. The defendant drove in an appropriate position on the road and at an appropriate speed. The footage establishes that the plaintiff was being shown a red pedestrian signal as she crossed the road.”
41. In reaching its decision, the court has also had regard to the helpful series of photographs of the locus taken by Mr. Walsh.
Conclusions on Liability
42. I am satisfied that both parties have done their best to give a truthful and accurate account of the accident. In relation to the colour of the traffic lights at the junction, the plaintiff stated in her garda statement that she had “glanced at the pedestrian lights, but didn’t pay too much attention to them”. In her evidence, she stated that due to the shock of the accident, she could not be sure, but she thought that there was a “yellow man” facing her as she crossed Mount Street Upper.
43. The defendant has, at all times, maintained that the lights were green in his favour as he approached the junction with Mount Street Upper and that they turned amber, just as he made the left hand turn. This account is supported by the content of Mr. Johnston’s report, which states that from his viewing of the CCTV footage in the Garda Station, he could see that the defendant proceeded along Merrion Row with a green light in his favour. He further noted that the defendant’s left indicator was flashing. The traffic lights turned to orange as he commenced making the turn into Mount Street Upper. In these circumstances, Mr. Johnston very fairly stated that the pedestrian lights must have been showing red against the plaintiff as she crossed Mount Street Upper.
44. In the addendum to his report, Mr. Walsh came to the same conclusion having viewed the CCTV recordings.
45. I find the evidence of Mr. Johnston and Mr. Walsh compelling in relation to what they saw on the CCTV recordings. Accordingly, I find that when the plaintiff proceeded to cross Mount Street Upper, she did so, when the pedestrian lights were showing red against her. I also find that the defendant had a green light in his favour as he proceeded up Merrion Row. I find that his left indicator was flashing, indicating his intention to turn into Mount Street Upper.
46. In relation to speed, the defendant has stated that he was travelling at approximately 25kph and that he braked and dropped into second gear, as he made the left turn. While in her evidence, the plaintiff stated that the defendant's car was going fast, due to the fact that she was thrown into the air and spun around as a result of the impact; in her garda statement, she had said that because the defendant's car was travelling “very slow”, she thought that the defendant was going to let her proceed across the road.
47. Mr. Johnston very fairly stated that on viewing the CCTV footage it showed the defendant stopping within a short distance of the impact. However, he stated that in order to reach a definitive opinion of the defendant’s speed from the CCTV recordings, it would be necessary to slow down the recording and do a more technical analysis thereof.
48. Mr. Walsh stated that the CCTV recording appeared to show the defendant's car being brought to a halt immediately at the accident locus and towards the centre of its correct lane.
49. The court has also had regard to the evidence of Garda Flynn, who stated that there were no skid marks or tyre marks on the road surface.
50. Having viewed the CCTV recording at normal speed which was taken looking down Mount Street Upper towards the junction with Merrion Row, which shows the impact, the court is satisfied that there was no evidence of speed on the part of the defendant shown in that recording. The car appeared to come to a halt quickly after the impact.
51. Taking all of these matters into account, the court finds that the defendant was not speeding at the time that he made the left turn into Mount Street Upper.
52. From its viewing of the CCTV recording, the court is satisfied that the plaintiff was walking at normal speed across Mount Street Upper. She did not run out in front of the defendant’s vehicle.
53. It is clear from the engineer’s photographs that each of the parties had a good line of sight of the approach of the other. The plaintiff stated that she saw the defendant approach with his indicator flashing. She thought that he had seen her and was going to let her proceed across the road. She was very surprised when the defendant kept coming towards her and struck her.
54. The defendant had a clear view of the junction. The plaintiff was there to be seen walking across the junction. She had been on the road for approximately six seconds prior to the impact. She had walked across two thirds of the road. However, perhaps because he was glancing to his left, the defendant did not see her until the moment of impact. This would explain why there was no evidence of braking prior to the impact. The simple fact is that the plaintiff was there to be seen and if the defendant had been keeping a proper lookout, he would have seen her prior to the impact.
55. Even though the traffic lights were green in favour of the defendant as he approached the junction that is not conclusive of the question of liability. When driving in the city, one must anticipate that pedestrians will cross the road if they see a gap in the traffic. For this reason, a driver must watch the road carefully when coming to a junction. I am satisfied that, the defendant did not keep a proper lookout when turning into Mount Street Upper. In these circumstances, I find that the defendant must bear the greater share of the blame for this accident.
56. However, the plaintiff elected to cross the road when a pedestrian light was showing red against her. She could easily have stopped and pressed the button for the pedestrian lights and waited until she had a “green man” in her favour. In electing to cross the road when she did, not only did she act in breach of the Road Traffic (Traffic and Parking) Regulations 1997, but she also failed to take reasonable care for her own safety. The plaintiff felt that she was not in danger, because she assumed that the defendant had seen her and was going to let her cross the road. Unfortunately, he had not seen her and for this reason, he collided with her as he made the left turn into Mount Street Upper. In these circumstances, I find the defendant, 55% responsible for causation of the accident and the plaintiff is found guilt of contributory negligence in the amount of 45%.
