Jersey Unreported Judgments

[2003]JRC207

royal court

(Samedi Division)

14^th November, 2003.

Personal injury - Liability.

Advocate P.D. James for the Plaintiff.

Advocate D Cadin for the Defendant.

judgment

the DEPUTY bailiff:

INTRODUCTION

1.        At about 1.30 p.m. on 5^th March 1997 the Yahama BWS 50cc motor cycle driven by the plaintiff collided with the Renault driven by the defendant as a result of which the plaintiff was injured.  We are asked to decide the issue of liability only.

2.        Much is not in dispute.  The plaintiff was driving her motor cycle along La Route du Fort in a westerly direction from Georgetown towards the tunnel.  She came to the junction where St Clement's Road crosses Route du Fort.  Part of St Clement's Road lies to the south of Route du Fort and part lies to the north.   She was intending to turn right into St Clement's Road so as to proceed up that road in a northerly direction towards the bottom of Mont Millais near the entrance to Howard Davis Park ("the Mont Millais junction").  Just before the junction with St Clement's Road, the west going lane of Route du Fort sub-divides into two lanes, one for traffic intending to continue towards the tunnel and one for traffic intending to turn right into the northern part of St Clement's Road. 

3.        At the date of the accident the traffic lights at the junction operated under a phased scheme.  In general, the lights for the east going and west going traffic on Route du Fort would be the same i.e. both green, both amber or both red.  But if there were west going traffic wishing to turn right into the northern part of St Clement's Road (and assuming the detector cables had registered the presence of such traffic) the lights for west going traffic remained green for some 5-7 seconds after the lights for east going traffic had turned to red.  During these 5-7 seconds, a green arrow pointing right would be displayed for west going traffic wishing to turn right into St Clement's Road.

4.        On the day in question the plaintiff turned right into St Clement's Road.  There she collided with the car driven by the defendant.  He had been parked in Peel Terrace which lies immediately to the north of Route du Fort and to the west of the junction with St Clement's Road.  The exit from Peel Terrace on to St Clement's Road lies immediately to the north of the junction and on the western side of St Clement's Road.  That part of St Clement's Road which lies to the north of Route du Fort is one way in a northerly direction and the defendant was therefore intending to turn left out of Peel Terrace and proceed up St Clement's Road towards the Mont Millais junction.  As he emerged from Peel Terrace on to St Clement's Road and turned to the left, his car collided with the plaintiff's motorcycle.    

5.        In essence each party blames the other.  The plaintiff asserts that she turned right when the traffic light was in her favour and that the accident was caused by the defendant emerging from Peel Terrace on to a main road when it was not clear to do so.  The defendant, on the other hand, asserts that the plaintiff turned into St Clement's Road against a red traffic light and that the accident was her fault.  To resolve this dispute we must consider the evidence given by each side. 

THE EVIDENCE

6.        The plaintiff gave evidence through an interpreter.  She said that she left the nursing home near Green Island where she worked at about 1.20 p.m.  She was going to pay a cheque into a bank in St Helier before going home.  She came through Georgetown and went along Route du Fort intending to turn right into the northern part of St Clement's Road and then into Colomberie at the Mont Millais junction. 

7.        She said that, as she approached the junction with St Clement's Road, the traffic light was showing green for her to turn right into St Clement's Road.  The east going traffic coming in the opposite direction along Route du Fort had stopped at the lights but they were green for traffic in her direction.  She was travelling at about 10-15 mph as she went through the junction and turned right into St Clement's Road.  The next thing she knew was that she was hit from behind.  She never saw the defendant's car before the impact; it hit the rear of her motorcycle.  She fell.  When the police arrived she was still sitting on the ground.  The police asked her for her details but did not ask her what had happened.  She did not agree that an ambulance had been called.  After a while she felt well enough to go and accordingly she got back on her motorcycle and drove off.  There was no significant damage to the motorcycle.  She denied that she had gone through a red traffic light and blamed the defendant for pulling out when it was not clear to do so.

8.        The defendant stated that he had been visiting the printers at the eastern end of Peel Terrace.  This was something that he did regularly, perhaps 10 to 15 times a year.  He knew the exit from Peel Terrace on to St Clement's Road extremely well.  He realised that it was potentially a difficult junction if the lights on Route du Fort were green because you were not in a position to see traffic which turned off Route du Fort into St Clement's Road.  He had developed a system for exiting from Peel Terrace.  This involved waiting until he saw the north going traffic on the southern part of St Clement's Road beginning to move forward on to the junction with Route du Fort.  This meant that the lights for that traffic were now green with the consequence that the lights for the traffic on Route du Fort in both directions must be red.  Once he saw the north going traffic begin to move and enter the junction he would move out in order to turn left into St Clement's Road.  As he put it, once the north going traffic in St Clement's Road was on the move, you were safe to exit from Peel Terrace.  However, he said that you had to move fairly quickly when coming out of Peel Terrace because the north going traffic from St Clement's Road tended to accelerate quite quickly across the junction into the northern part of St Clement's Road.  It was therefore not safe to exit from Peel Terrace after the first north going vehicle had reached the crown (i.e. the centre) of the junction. 

9.        The defendant said that he had followed his normal system on this occasion.  He had waited until he saw the traffic in the southern part of St Clement's Road moving north into the junction.  He knew then that the lights were red on Route du Fort in both directions.  He then started to move out into St Clement's Road.  He was absolutely certain that, when he did so, the plaintiff's motorcycle was nowhere on the junction.  If it had been he would have seen it.  As he moved out and swung to the left with the intention of driving up to the Mont Millais junction in the right hand lane (i.e. east lane) of St Clement's Road, he was hit by the plaintiff's motorcycle towards the rear of the driver's side of his car.  He had not seen the motorcycle prior to the moment of impact.  The motorcycle bounced along the driver's side and then fell over, ending up in front of the car.  He was only doing some 10-15 mph at the time of the impact.

10.      He got out to see if the driver of the motorcycle was alright.  The motorcyclist was sitting on the ground wearing a helmet with a shaded visor.  He asked her if she was alright.  Shortly afterwards the police arrived and they decided to call the ambulance, which arrived not long thereafter.  However the plaintiff did not wish to go with the ambulance and it left.  Subsequently she drove off on her motorcycle.

11.      It was put to him that the police report referred to `minor scuff off-side front wing' in relation to his car.  The defendant said the car was an old one with a number of bumps and scratches.  The scuff may have been pre-existing damage to the car.  He could not be sure that the scuff arose from the incident.  He got out and inspected his car at the time towards the rear driver's side but did not notice any damage. 

12.      He was quite clear in his mind that the plaintiff must have come through the red light on Route du Fort from the Georgetown direction.  She had definitely not been on the junction at the time that he had come out from Peel Terrace.  Because the lights for Route du Fort must have been red at the time when the traffic in the southern part of St Clement's Road started to move, it followed that she must have crossed a red light.  Furthermore she must have been travelling at some speed in order to be in a position to strike his vehicle by the time he had pulled the short distance across St Clement's Road and begun to turn to the left in order to proceed north up St Clement's Road. 

13.      In most road traffic accident cases the Court can gain some assistance either from independent witnesses or from the report of the police officer who attended on the scene.  There are no independent witnesses in this case.  Furthermore PC Kennea, who attended the scene, very properly treated this as a non-reportable accident.  There appeared to be minimal damage to either vehicle and no injury to either party.  Apart therefore from making an approximate sketch and filling in certain parts of the report form, he did not record statements from either party as to what had happened.  We emphasise that we do not criticise PC Kennea in any way for this.  On the evidence as it appeared to him at the time it was entirely reasonable for him to treat this as a non-reportable accident and proceed in that manner.  No one could know at that stage that the plaintiff had in fact suffered rather serious injuries. 

14.      Some months later, in August 1997, the plaintiff came to see him with a letter from the hospital, from which it was clear that she had in fact suffered injuries.  It would seem that she made certain comments which he recorded in the report.  He then invited the defendant to comment and the defendant sent him a typed signed statement as to what had occurred.  The police officer then prepared his report.  One might have hoped that the location of the damage to the vehicles would have helped to resolve the dispute between the parties as to whether the defendant struck the motorcycle from behind (as the plaintiff says) or whether the motorcycle struck the rear off-side of the defendant's Renault (as the defendant says).  Unfortunately the report merely records `minor scratches to n/s and o/s' in relation to the motorcycle and `minor scuff to off-side front wing' in relation to the Renault.  As stated earlier the defendant states that the damage to his car might have been pre-existing damage and the police officer, quite naturally, has no independent recollection of the incident so many years after it occurred. 

15.      We are left therefore to decide the case entirely on the evidence of the plaintiff and the defendant.  It is true that each side called an expert but their evidence was directed towards the traffic lights signal system.  They ultimately agreed and we have set out the result of their evidence at paragraph 3 of this judgment.

DECISION

16.      We find that both the plaintiff and the defendant were honest witnesses doing their best to assist the Court.  They have each convinced themselves that their recollection is correct.  But we find that the plaintiff did not drive through a red traffic light or at an excessive speed and that the primary cause of this accident was that the defendant drove out from Peel Terrace on to St Clement's Road when it was unsafe to do so; he did not keep a proper look out.  Our reasons are as follows:-

(i)        We have seen and heard the plaintiff give evidence.  On this particular aspect we found her evidence convincing.  We are satisfied that, on the balance of probabilities, the plaintiff did not drive through a red light; on the contrary we think it was a green light in her favour.  Furthermore we accept her evidence that, as she went through the junction to turn right, she was travelling at a modest speed. 

(ii)       The defendant is convinced that the plaintiff must have driven through a red traffic light.  However the basis of that belief is the fact that he did not see her in the junction at the time the traffic in the southern part of St Clement's Road started to move forward.  He is convinced that, because he did not see her, she was not there.  But sadly the courts are familiar with the fact that it is an everyday occurrence for drivers to fail to see a vehicle which is in fact within their field of vision.  The fact that the defendant did not see the plaintiff does not prove that the plaintiff was not there at the time.

(iii)      We are satisfied, on the balance of probabilities that, at the time that the traffic in the southern part of St Clement's Road started to move forward, the plaintiff was already on the junction somewhere between the traffic light which marks the entrance to the junction on the approach from Georgetown and the point of impact.  The defendant simply failed to see her.  It is some distance from the entrance to the junction from the Georgetown side to the point of impact.  On the defendant's case, the plaintiff must have entered the junction after the traffic (coming from her left) started to move from the southern part of St Clement's Road into the junction.  She therefore decided to try and sneak ahead of that traffic as it approached from her left and crossed a red light to do so.  The defendant had moved only a short distance from the exit to Peel Terrace to the point of impact, which was before he had completed his turn to the left in order to proceed up St Clement's Road.  Yet in that short time, according to the defendant, the plaintiff must have driven from the traffic light marking the entrance to the junction from the Georgetown side through the junction and into St Clement's Road to the point of impact.  That would clearly have required the plaintiff to have been travelling at some speed.  Yet there was minimal damage to both vehicles.  The lack of any material damage points towards the collision being at slow speed.  In short we think it unlikely that, in the short time it took the defendant to move from the exit of Peel Terrace to the point of impact, the plaintiff could have travelled all the way through the junction unless she were travelling at some speed and the result of the collision points against that being the case. 

(iv)      A far more likely explanation is that the defendant was concentrating on the traffic to his right as it moved off from the southern part of St Clement's Road.  As he said in evidence, you had to be quick once that traffic had started to move from the south.  It tended to accelerate quite quickly across the junction into the northern part of St Clement's Road.  Once the first vehicle reached the crown of the junction, it was too late to exit.  He therefore had only a small window of opportunity.  We can therefore well understand the defendant concentrating exclusively on the traffic in the southern part of St Clement's Road in order to see when it started to move.  His mindset was that once that traffic started to move, it was safe for him to proceed because the lights were red in Route du Fort.  But he knew he had to be quick in getting into St Clement's Road in order to beat the traffic coming up from the south.  We conclude that he probably was not concentrating on the direction from which the plaintiff was approaching on her motorcycle.  Because of that he simply failed to see her as he pulled out once the traffic upon which he was concentrating, namely that coming from the south, had started to move.  We conclude that she had entered the junction just before the traffic started to move and the defendant simply did not see her. 

(v)       Mr Cadin submitted that there was evidence that the plaintiff had changed her story.  Thus he referred to the fact that it appears from the sketch plan, which the police officer prepared at the time, that the plaintiff had said to him that she was coming from the southern part of St Clement's Road rather than from the Georgetown end of Route du Fort, although it is clear that the defendant at the time was saying that she had come from Georgetown.  We think it highly unlikely that she told the police that she had been coming from the south.  Her pleadings and her evidence are clear that she was coming along Route du Fort from Georgetown.  Furthermore not only did the defendant say that at the time but he said so in his pleadings and made it clear in evidence that she definitely was not coming from the south but had come from Route du Fort.  We have seen the plaintiff give evidence through an interpreter.  The interpreter had great difficulty at times in making himself understood to the plaintiff and in understanding what she said to him.  If there was this amount of difficulty for two people speaking in their own language, how much greater was the possibility for confusion and misunderstanding where the conversation was taking place in English.  We think it highly likely that there was simply confusion between the police officer and the plaintiff.  The same applies in relation to a conversation with Dr Naidu to which we were referred by Mr Cadin, where she apparently said she was hit on the left side.  We have no doubt that Dr Naidu was concentrating on the medical injuries of the plaintiff.  His report made clear that she had a limited command of English and that there was no interpreter present.  We can place no weight on the exact wording that he used to summarise her description of the accident.  The same comments apply in relation to remarks attributed to her in the police report prepared in August.  We think that the risk of misunderstanding and confusion for anyone speaking to the plaintiff in English is simply too high to place any weight on the comments attributed to her by the police or Dr Naidu.

17.      However the Court finds on the balance of probabilities that the impact itself took place as the defendant says.  In other words the motorcycle struck the off-side of the defendant's car towards its rear as he was close to completing his turn to the left into St Clement's Road rather than by the defendant's car striking the rear of the plaintiff's motorcycle from behind, as the plaintiff alleges.  The Court's reasons are as follow:-

(i)        The Court has seen and heard the defendant give evidence.  Unlike his evidence that the plaintiff must have driven through a red light - which was a conclusion which he inferred from the fact that he had not seen the plaintiff before the impact - the defendant was able to give direct evidence as to the nature of the impact.  The Court accepts his evidence on this point. 

(ii)       Conversely it is clear that the plaintiff was fairly shaken immediately after the accident.  For example, she stated in evidence that no ambulance had been called whereas the Court is quite satisfied from the evidence of PC Kennea and the defendant that an ambulance did indeed attend.  She was also adamant that the police officer had not asked her any questions about how the accident had happened.  We accept that the questioning was fairly perfunctory because the officer considered it a non-reportable accident but it is clear to the Court that he did make some general enquiries of her as to what had happened because it can only have been from her that the officer gained the impression - albeit mistaken - that she had approached the junction from the southern part of St Clement's Road rather than from Georgetown.  The Court believes that her recollection of the impact itself and the immediate aftermath may be somewhat uncertain and it prefers the evidence of the defendant on this point.

18.      In summary the Court finds that the plaintiff did not cross a red light nor did she take the junction at excessive speed.  The primary cause of the accident was that the defendant pulled on to St Clement's Road from a side turning when it was unsafe to do so because the road was not clear.  He failed to keep a proper lookout.  We therefore find the defendant liable to the plaintiff.

19.      The next question is whether the plaintiff was guilty of contributory negligence.  The defendant has essentially alleged that the plaintiff was at fault in three respects; she drove through a red light; she drove at excessive speed; and she failed to keep a proper lookout.  We have already found against the defendant in respect of the first two of these allegations.  However we find that the plaintiff did fail to keep a proper lookout.  On her evidence, which we accept in respect of the events prior to the impact, she was taking the junction at a modest speed which she put at some 10-15 mph.  As she drove through the junction and turned into St Clement's Road, the defendant would have been stationary in the exit to Peel Terrace and must then have pulled out in front of her so that she struck the offside of the car towards its rear.  Yet she stated that she never saw the defendant's car at all before impact.  There can have been no valid reason for that and it can only have occurred because she too failed to keep a proper lookout.  Given the speed of 10-15 mph, there must a reasonable likelihood of her having been able to avoid or minimise the accident by braking or swerving had she had seen the defendant's car in time.  The Court therefore finds her to have been negligent in this respect. 

20.      As to the respective proportions, the fact remains that the primary fault for this action must lie with the defendant.  He was emerging from a terrace on to a road which had right of way.  His duty was only to emerge on to St Clement's Road when it was clear and safe for him to do so.  This he failed to do because the Court has found that he pulled on to the road at a time when it was unsafe to do so because the plaintiff was approaching on her motorcycle through the junction from the Georgetown direction.  He simply failed to see her, probably because his attention was directed towards the southern part of St Clement's Road.  He must therefore take the lion's share of the blame.  The plaintiff's fault is somewhat less, namely a failure to see a car which was stationary at an exit on to her road and which then pulled out unexpectedly in front of her.  It is only because of her modest speed that we find that her failure to keep a proper lookout probably contributed to the accident.  However we find her far less at fault than the defendant and we conclude that the proper finding is that the defendant is liable to the plaintiff but that she was guilty of contributory negligence to the extent of 25%.

21.      Finally, we wish to say this.  This accident took place in March 1997.  It has therefore taken some 6½ years to get this simple road accident case to trial.  When we asked counsel why there had been this long delay, we were told that there were difficult issues in relation to quantum.  However that is no excuse for the delay in hearing this case on liability.  It is quite unacceptable for witnesses to have to give evidence so long after the event.  Hopefully the case management measures which the Court has recently put into effect - namely the requirement for a directions hearing before the Master coupled with the invariable practice of the Master at such a hearing to order the parties to fix a trial date within a specified delay - will ensure that such a delay in such a straightforward case does not occur in future.

No Authorities.