Personal injuries claim - brought by the plaintiff arising out of an
accident which occurred on the Five Mile Road on 4th August, 2007.
[2012]JRC127A
Royal Court
(Samedi)
28 June 2012
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Before :
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J. A. Clyde-Smith, Esq., Commissioner, and
Jurats Clapham and Olsen.
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Between
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Grahame George Morley
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Plaintiff
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And
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Benjamin Martin Reed
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First Defendant
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And
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Motor Insurers’ Bureau
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Second Defendant
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Advocate D. S. Steenson for the Plaintiff.
Advocate J. N. Heywood for the First
Defendant.
judgment
the commissioner:
1.
This is a
personal injuries claim brought by the plaintiff against the first defendant
(“the defendant”) arising out of an accident which occurred on the
Five Mile Road on 4th August, 2007. The Court was concerned with whether the
defendant was liable for the accident and the extent to which, if any, the
plaintiff caused or contributed to the injuries he suffered by his own
negligence. The issue of quantum
was left over.
2.
The
hearing took place over some three days and, following closing submissions, the
Court reserved its judgment.
3.
The
accident took place at a junction well known to Islanders, namely opposite Le
Braye car park and slipway, where the Five Mile Road passes the entrance to Le
Braye car park on the western side and the road known as Le Chemin des Basses
Mielles, which leads up to the southern side of the airport, on the eastern
side.
4.
When
approaching the Five Mile Road down Le Chemin des Basses Mielles, there is a
Give Way sign and line. There is a
restricted view to the south caused by the undulating nature of the sand dunes,
but at the junction itself when on the Give Way line, there is no restriction
on the visibility up and down the Five Mile Road.
5.
Le Chemin
des Basses Mielles approaches the Five Mile Road at an angle of some 40 degrees
and the road to Le Braye car park leaves the Five Mile Road slightly to the
south at a similar angle. Just
prior to the Give Way line, Le Chemin des Basses Mielles turns slightly to the
right so that you do not get the impression as you approach the junction of the
Five Mile Road that the road continues straight on (across the Five Mile Road)
into Le Braye car park.
6.
The Five
Mile Road at this junction is some 6.3 metres wide, with both lanes being of
equal width, and straight, extending some 600 metres to the north and some 500
metres to the south towards what was referred to at the hearing as an S bend.
7.
We will
first set out the evidence we heard from the parties and their witnesses in
relation to the accident itself and the moments immediately leading up to it as
they saw it. The plaintiff and
Sophia Roberts had filed witness statements with a statement of truth. The defendant and his three passengers
had filed affidavits.
The plaintiff
8.
The
plaintiff was 25 at the time of the accident and was proceeding northwards
along the Five Mile Road towards the junction just after 9.00pm on his motor
cycle, a Honda CBR 900RR Fireblade, a 900cc sport machine with six gears,
capable of a top speed of 170 mph and of accelerating from 0 to 60 mph in 3.1
seconds. His then girlfriend,
Sophia Roberts, was riding pillion; she was not suitably attired in terms of
protection in that she was wearing flip-flops and three quarter shorts. He was not happy with this and this
caused him to be extra cautious.
When they had set off from his father’s home at Clos Orange he had
put on his sidelights which he said was standard procedure for him whether
night or day.
9.
He said it
was a lovely day with a clear sky and plenty of light. There was no need for him to engage his
headlights. Going through the
S bend, he checked his speedometer at 40 mph and maintained that speed. He was in 5th or 6th
gear. There was a vehicle in the
distance ahead of him but no cars coming the other way. The visibility was very good.
10. As he approached the junction, he checked to
the right (Le Chemin des Basses Mielles) to see whether there was a car on the
Give Way sign or ahead for any cars coming towards him; both were clear. Then there was a flash of blue of a
vehicle side on to him on his carriageway coming from right to left. He went to brake, but before he could do
so, he had already hit the vehicle. He had no chance to take evasive
action. It was a loud and violent
impact. He felt his girlfriend slip
up his back and over the top of him and the car. The motor cycle fell on to its side and
slid with him along the road. He
did not know what had happened to the car, but he was lying on his back looking
for his girlfriend. She got up and
walked over to him and appeared to be fine, but he could not feel his left
knee. It was numb at first but then
the pain kicked in and he saw a pool of blood on the road. It did not look good.
11. He was certain that he was doing 40 mph. It was impossible, in his view, that he
was doing more; in fact, he told us that he had never exceeded the speed limit.
He accepted that his jacket had no
reflective or high visibility strips, but pointed out that the jacket (of which
we had a photograph) was designed for motor cycle riders, was coloured bright
red over the top one third and the motor cycle itself was brightly coloured,
being (seen from the front) predominantly red.
12. He was definite that there was no one coming
towards him indicating to turn right (across his path) into Le Braye car park
and no one waiting at the give way line on Le Chemin des Basses Mielles to pull
out. If there had been, he would
have seen. He was paying attention.
As he said in his statement, he had
given a lot of thought about the accident since it happened, and it was his
belief, and indeed this was the case put forward by him, that the driver of the
car must have been travelling along Le Chemin des Basses Mielles, exited the
road without stopping at the Give Way line and crossed directly over the Five
Mile Road into the Le Braye Car park.
Sophia Roberts
13. Sophia Roberts (who was aged 19 at the time of
the accident) could not say whether the plaintiff had switched on his
sidelights as they left his father’s home but it was sunny and clear when
they left with really good visibility.
She could not see the speedometer as it was obscured by the plaintiff’s
head, but it didn’t feel to her that he was driving fast; it felt normal
to her. Again, like the plaintiff,
she saw a flash of blue and then blacked out. She landed in the gravel car park to the
left (going north) 25 metres away from the estimated point of the collision
with, amazingly, only a cut leg and grazing. She went over to the plaintiff. Someone from the car was smoking and she
told them in no uncertain terms to keep away as there was petrol on the road.
14. She said it was really bright at the time of
the collision. She had ridden
pillion a few times (she had her own 50cc motor cycle) and the plaintiff always
drove sensibly when she was riding pillion. He never normally went fast. She could not remember if he braked or
took evasive action.
The defendant
15. The defendant was 17 at the time of the
accident. He had obtained his
driving licence in March of that year.
He had just acquired a VW Golf hatchback 2.0 GTI which was capable of a
top speed of 123 mph and of accelerating from 0 – 60 mph in 9.8
seconds. He was intending to get
the car insured the following Monday and was therefore driving on the day of
the accident uninsured; hence the involvement of the Motor Insurers’
Bureau as the second defendant.
16. The defendant had three passengers. In the front passenger seat, was Matthew
Boyle, then aged 18. In the
nearside rear passenger seat was Jamie-Lea Baudains, then aged 16 and in the
offside rear passenger seat (behind him) was Megan Pople, then also aged 16
years. They were going camping that
night (together, it would seem on the evidence given by the two girls, with
others in their group of friends). He
was driving south along the Five Mile Road to go to Le Braye car park to
retrieve camping gear from his other car, a Renault Clio, which was parked
there. He was not driving down Le
Chemin des Basses Mielles.
17. There had been a red sunset and it was starting
to get dark. He had put on his
sidelights and then his headlights, dipped. He was doing about 40 mph along the Five
Mile Road. When he came to Le Braye
junction, he saw a car coming the other way with its headlights on and slowed
down to let it pass. He said in his
affidavit that he had stopped but in evidence said he may have been creeping
forward for this purpose. He could
not remember what was happening in the car in the moments before the accident,
but there was no music as the car had no radio unit. He looked in his wing mirror to check
behind, put on his right-hand indicator, looked in his mirror again, looked up
ahead – all was clear and he made his right-hand turn into Le Braye car
park. When he or the front half of
the car was over the yellow line marking the exit from Le Braye car park he
felt an impact to the back of the car on the passenger side and the car spun
round 180 degrees. He could not
understand what had happened.
Matthew Boyle went over and switched the motor cycle engine off. He did not think its lights were on. When shown Matthew Boyle’s
affidavit where he said that that he, the defendant, had switched the motor
cycle engine off, the defendant accepted that this must have been the case.
18. He had not been drinking; he was subsequently
breathalysed by the police with a nil result. He said he didn’t smoke then. He saw a skid mark in the centre of the
road, angling slightly towards the yellow line marking the exit of Le Braye car
park. He just had not seen anything
at all and therefore assumed that the motor cycle had no lights and was
travelling at an excessive speed.
At the time of the impact, he estimated that he was travelling not more
than 1 – 3 mph. At the time
of the impact it was dark enough for lights and by the time the police arrived,
it was pretty much pitch black.
Matthew Boyle
19. At the time of the accident, he had not known
the defendant long. They had picked
up the two girls to go camping. He
had not been drinking. The
defendant was driving sensibly. They
approached the junction at Le Braye car park going south along the Five Mile
Road. They did not go down Le
Chemin des Basses Mielles. It was
getting dark and the defendant had his lights on. There was a normal level of chat in the
car. They had to stop (according to
his affidavit) before turning into Le Braye car park in order to let a car
pass. In evidence he said they
could have been rolling forward but they were virtually stopped. The indicator was on. He looked ahead and saw nothing
coming. They were more than half
way over the opposite lane when they were hit and spun round 180 degrees. They were practically in the car park
when they were hit. He saw the
motor cycle at the point of impact – when it was virtually in the side of
the car. He did not see any lights
on the motor cycle. At the time of
the impact, they were doing 3 – 4 mph. After the collision the defendant went
over and switched the motor cycle engine off. He did not remember anyone smoking.
Megan Pople
20. She was in the passenger seat behind the
defendant. They were proceeding
along the Five Mile Road going south towards the junction at Le Braye car park.
They did not go down Le Chemin des
Basses Mielles. It was dark enough
for lights to be on and she thought that the defendant had switched the car
lights on. They had to stop to
allow a car to pass. They turned
into the car park. She was looking
towards Jamie-Lea Baudains, who was in the other rear passenger seat when she
saw a motor cycle coming towards the car through the back seat passenger
window. The motor cycle was very
close to the car when she first saw it (about a foot away) and there was
nothing that could have been done to prevent the impact. She heard the driver of the motor cycle
shouting as it hit the car. She did
not remember seeing any lights coming towards the car prior to the impact.
21. She thought that Jamie-Lea Baudains may have
had an iPod, but did not know whether it had been plugged in. At the time of the impact, they were not
going fast. She recalled the
defendant having a cigarette after the accident and someone telling him to put
it out.
Jamie-Lea Baudains
22. She had had a vodka and coke before being picked
up. She was in the rear nearside
passenger seat behind Matthew Boyle.
They were proceeding south down the Five Mile Road towards the junction
at Le Braye car park. They did not
go down Le Chemin des Basses Mielles.
The light was turning but she could not remember whether the defendant
had his lights on. They had stopped
to allow a black Fiesta hire car to pass before turning into Le Braye car
park. She remembered looking up the
road towards the S bend and seeing something in the distance but it was too far
away to be hit. She did not
register it as being a motor cycle but was just conscious of something. She couldn’t say whether it had
lights on. As the car turned she
leant forward between the front seats (with her seat belt still on) to change
the song on the iPod (which she says was not hers), fortuitously, as she then
heard a weird sound and a massive bang. The car swung right round. If she had been sitting normally she
might have been injured by the impact into her door.
23. The defendant had not been speeding before the
accident. She was a nervous
passenger and would have said something if he had been. There was a level of chat. She had been physically sick after the
accident.
Brendan Flaxman
24. Mr Flaxman was a member of the police force in
2007 and carried out a specialist collision investigation role. He was asked to prepare a collision
investigation report on the accident and had prepared the plan used at the
hearing, which showed the junction, the final resting place of the motor cycle
and the defendant’s car and the 25 metres of scratch marks made by the
motor cycle after the impact.
25. When he attended the scene, there were a number
of skid marks on the western side of the road, one of which in particular could
have been from the motor cycle. It
was not included in the plan because, in his view, it was not associated with
either vehicle. There had been a
sprint event very recently on that road involving the Jersey Motor Cycle and
Light Car Club which used the Le Braye car park. The mark had the characteristics you
would expect from a locked rear motor cycle tyre. If a vehicle leaves a mark on the road,
there will be a corresponding mark on the vehicle called a “foot”
mark. He carefully examined as much
of the front wheel that was visible (it was not possible to turn the front
wheel) and the rear wheel, using a “dragon light”, which is a
powerful hand-held torch. Because
he could not find a corresponding foot, he could not link the tyre mark to the
motor cycle of the plaintiff and did not therefore include it in the plan.
The experts
26. The plaintiff called Ian Paine and the
defendant John Johnston as expert witnesses. Both have prepared reports and following
a meeting a joint statement.
Further progress in narrowing their differences was made during the
hearing, to the point where, very helpfully, there was broad agreement between
them. We would summarise their
evidence and the remaining differences between them as follows:-
(i)
The
collision took place at 21:10 pm on the north bound lane of the Five Mile Road
when the plaintiff’s motor cycle hit the defendant’s car at the
middle point of the rear nearside passenger door at an angle of approximately
45 degrees.
(ii) Sunset occurred at 20:44 pm that day. Pursuant to the Road Traffic Lighting
(Jersey) Order 1998, sidelights have to be switched on at sunset and
headlights half an hour after sunset.
The accident therefore took place 26 minutes after sunset when it was a
legal requirement for sidelights to be switched on and 4 minutes before the
time at which it was a legal requirement for headlights to be switched on.
(iii) There was insufficient physical evidence to
accurately pinpoint the exact position of the collision but it must have been
within the north bound lane of the Five Mile Road south of the first scratch
marks left by the motor cycle and in a line extending back from those
marks. The motor cycle was
travelling north along the Five Mile Road before the collision but as for the
defendant’s car, both agreed there was insufficient physical evidence to
determine whether it had been travelling south along the Five Mile Road or west
along Le Chemin des Basses Mielles.
(iv) If the defendant’s evidence as to the
route he was taking was accepted by the Court and if the plaintiff had his
lights on, then at the time the defendant was starting his turn into the car
park it is more likely than not that the plaintiff was in a position whereby he
could be seen approaching the junction.
(v) Again, on the basis that the defendant’s
evidence as to the route he was taking was accepted by the Court, the
defendant’s car was in a position whereby the plaintiff should have seen
the car as it was turning into the car park.
(vi) The post-impact speed of the defendant’s
car was 14-16 mph.
(vii) There was a small difference between the
experts as to the post impact speed of the motor cycle. Mr Paine placed it in a range of 29-35
mph and Mr Johnston 31–37 mph.
Mr Johnston had added the 2 mph difference to take into account the
speed loss caused by the motor cycle falling to the ground before sliding along
the road.
(viii) Initially, there were substantial differences
between the experts as to the pre-impact speed of the motor cycle. Mr Paine had placed it at 10 mph above
his estimate of the post impact speed which would give a range of between 39
and 45 mph. Mr Johnston had
initially placed the pre-impact speed at 17-20 mph above his estimate of the
post impact speed, which would give a range of between 48 and 54 mph. However, he discovered a mistake in his
calculations during the course of the hearing so that in evidence he reduced
his estimate of the pre-impact speed to 11 or 12 mph above his estimate of the
post impact speed, giving a range of 42-49 mph, which is close to that of Mr
Paine. Both experts agreed that one
would normally look towards the higher end of the speed range.
(ix) The experts agreed that the generally accepted,
typical or likely reaction time is 1.5 seconds.
27. Mr Paine had attended at the junction and found
that vehicles going south along the Five Mile Road took less than 3 seconds to
complete a right turn into the car park from a standstill position. Mr Johnston had not had the opportunity
to perform the same exercise and pointed out that much depended on how far back
(to the north) the turn was commenced.
At 12 metres back, it would take some 4 seconds to clear the main
road. At the hearing, the defendant
was asked to indicate on the plan where he thought he had stopped in order to
make his turn into the car park, an exercise which one has to treat with some
caution bearing in mind that he was being asked to do this some 5 years after
the accident. In any event, he
pointed to a position some 20 metres away, and from that position, Mr Johnston
calculated that it would take some 5.6 to 6.4 seconds to complete the turn.
28. In their joint statement, the experts advised
that at 40 mph the plaintiff would have been covering the ground at the rate of
17.88 metres per second. Allowing 3
seconds for the defendant to completely clear the road, the plaintiff would
have covered some 53.64 metres.
With a reaction time of 1.5 seconds and applying emergency braking (a
manoeuvre not itself without risk) he would have been able to stop within 52-54
metres. In Mr Paine‘s
opinion, he would not therefore have been able to come to a complete stop but
the impact with the defendant’s car may well have been less. If the turn had taken 4 seconds to
complete, then the plaintiff would have been 72 metres from the junction and in
Mr Johnston’s opinion, this would have been sufficient distance for him
to stop with moderate braking. It
follows that the longer the defendant took to turn and the faster the plaintiff
was driving the further away from the junction the plaintiff would have been. At 45 mph, allowing a 3 second turn, he would
have been 60.34 metres away and allowing a 6.4 second turn, 128 metres
away. Mr Paine advised us that the
beam of dipped headlights extended some 30–40 metres (and this was not
challenged) and therefore, on the basis of any of these calculations, the
plaintiff would not have been illuminated by the dipped headlights of the
defendant’s car.
29. Mr Paine had attended the junction on Sunday 13th
May. 2012. at 21:10 pm, when the sunset had been at 20:43 pm – only a
minute different from the time of the sunset on the day of the accident. The weather was clear and he told us
that from the middle of the road, he could see the 500 metres to the south to
the S bend. He could see a cyclist
coming towards him on the gravel path.
The cyclist had his light on.
There was vehicle traffic; some were displaying sidelights and some
headlights. Mr Johnston did not
challenge these observations, but pointed out that there was a difference
between standing in the road at dusk, in order to ascertain how far you could
see and what a normal driver might see if looking momentarily before making a
turn.
30. Whether the plaintiff’s motor cycle would
have been visible was a question of its conspicuity. Both experts agreed that this came down
to how the motor cycle would have contrasted with its background. Moving across one’s line of
vision, the contrast is better than moving straight towards one. Mr Johnston in his report referred to an
American study (Olson and Fabre Forensic
Aspects of Driver Perception and Response) which concluded that the
most common daylight car/motor cycle collision is that where a car turns across
the path of a motor cycle that has right of way. In such collisions, where a car driver
attempts to cross an opposing traffic lane, the driver is more likely to fail
to detect an approaching motor cycle than another car or lorry. He referred us to another paper by Hurst
et al (Human Factors in Motor Cycle
Accidents SAE 770103) where the authors indicate that where vehicles
are in opposing traffic lanes, the conspicuity due to motion is very low, if it
exists at all, and that consequently, recognition of the motor cycle by the car
driver will depend entirely on conspicuity due to contrast. They go on to say that if the
approaching motor cycle and rider blend well with the background scene, and if
the car driver has not developed improved visual search habits, i.e. searching
for motor cycles and bicycles, the motor cycle will not be recognised as a
vehicle. An important counter
measure was the use of an illuminated motor cycle headlamp during daylight
hours.
31. The experts’ opinion as to the post
impact speed of the defendant’s car, namely 14-16 mph contrasted with the
evidence of the defendant and Matthew Boyle as to how fast they thought they
were going. Mr Paine thought it
unlikely that they could have achieved this speed from a standing start. Mr Johnston advised that allowing 4
seconds to make the turn from a standing start, then 14-16 mph was achievable
by most cars and certainly this car.
32. When giving evidence, Sophia Roberts was asked
to indicate where on the plan she had finally come to rest and she indicated a
point approximately 25 metres from the likely impact position. Using that, the experts were able to
make “Pedestrian Throw Calculations” to estimate the pre-impact
speed of the motor cycle. Mr Paine
estimated the pre-impact speed at within a range of 28-40 mph. Mr Johnston at between 36.6 and 41.2
mph. Both advised that one would
normally look to the higher end of the range. However, Mr Johnston advised that Sophia
Roberts would have lost speed when impacting on and sliding over the back of
the plaintiff. Something must be
added for this factor which was difficult to quantify. Again, we think we must treat Sophia
Roberts’ evidence with some caution.
She had been badly shocked by the accident and was being asked for the
first time some five years later to indicate on a plan which she had not seen
before, where she finally came to rest.
It was however useful as a check to confirm that the pre-impact speed of
the motor cycle was not in the higher realms originally put forward by Mr
Johnston.
The law
33. As made clear in Rudd (née Lowry)-v-Hudson
[1977] JJ 2055 at 2062, the essential ingredients of actionable negligence
are:-
(i)
The
existence of a duty to take care owing to the plaintiff by the defendant;
(ii) Failure to attain that standard of care
prescribed by the law;
(iii) Damage suffered by the plaintiff which is
causally connected with the breach of duty to take care.
34. As further made clear in Rudd, the
driver of a motor vehicle owes a duty to exercise reasonable care and skill
towards all persons using the highway and therefore both the plaintiff and the
defendant owed to each other a duty of care. The relevant standard of care is set out
in Goad-v-Butcher and another [2011] EWCA Civ 158 at paragraph 10:-
“…. to take reasonable
care to avoid causing injury to other road users whom he should reasonably have
foreseen might be affected by his actions. That means he had a duty to act as a
reasonably prudent and careful driver….”
This is not a counsel of perfection as the
court in the same case observed at paragraph 11:-
“a driver will not be held
negligent simply for failing to achieve that.”
35. The question which must be asked and answered
is whether the defendant’s decision either on the plaintiff’s case
to cross the Give Way line and proceed straight over the Five Mile Road to Le
Braye car park or on the defendant’s case to turn right across the
carriageway was negligent at the time he took it in the light of the position
he was in, and what he knew or ought to have known at that moment (Lambert-v-Clayton
[2009] EWCA Civ 237 at paragraph 30).
As to the latter, the English High Court held in the case of Taylor-v-Tyler
QBD, 29th November 2000:-
“….a motorist who is
performing a manoeuvre of turning right must make sure that the road ahead is
either clear or the traffic is so far away that it will not be inconvenienced
by the vehicle turning right impeding the carriageway which it is about to
cross.”
36. It has always been the case that exceeding the
speed limit, though an offence, is not in itself negligence imposing civil
liability (Barna-v-Hudes Merchandising Corporation (1962) Crim LR 321
106 SOL JO 194 CA).
37. Turning to contributory negligence, Article
4(1) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960 provides
as follows:-
“Where any person suffers
damage as the result partly of the person’s own fault and partly of the
fault of any other person or persons, a claim in respect of that damage shall
not be defeated by reason of the fault of the person suffering the damage, but
the damages recoverable in respect thereof shall be reduced to such extent as
the court thinks just and equitable having regard to the claimant’s share
in the responsibility for the damage.”
38. Fault is defined by Article 4(9) to mean any:-
“…wrongful act (faute),
negligence (négligence) lack of skill (impéritie), breach of
statutory duty or other act or omission which gives rise to liability in
damages or would, apart from this Article, give rise to the defence of
contributory negligence.”
39. These provisions enable the Court to reduce the
damages in proportion to the degree of responsibility for the accident; and the
Court may take into account not only the share of each party in causing the
accident, but also the degree of blameworthiness (see Louis-v-Troy and
others (1970) JJ 1371 at 1404).
40. In Hacquoil-v-Troy & Sons and Harbours
and Airport Committee (1970) JJ 1305, the Court referred (at 1333-1334) to Halsbury’s
Laws of England (Third Edition) to define the test to be applied:-
“…the test to be
applied is whether the defendant’s negligence was nevertheless a direct
and effective cause of the misfortune.
The existence of contributory negligence does not depend on any duty
owed by the injured party sued and all that is necessary to establish a plea of
contributory negligence is to prove that the injured party did not in his own
interest take reasonable care of himself and contributed by this want of care
to his own injury.
The standard of care depends upon
foreseeability. Just as actionable
negligence requires the foreseeability of harm to others, so contributory
negligence requires the foreseeability of harm to oneself. A person is guilty of contributory
negligence if he ought reasonably to have foreseen that, if he did not act as a
reasonably prudent man, he might hurt himself.”
41. In Jones-v-Livox Quarries (1952) 2 QB
608 it was established that contributory negligence does not require a
plaintiff to reasonably foresee the particular risk to which he succumbs but
only that a plaintiff should foresee the general risk.
42. The Court of Appeal in Jersey Post-v-Chartier
[2007] JLR 187 at 196 held that:-
“It is obviously logically
impossible for the court making the deduction to do so with mathematical
precision. In truth, it is really a
matter of impression, the court looking at the conduct of the claimant and of
the other person or persons and doing the best it can to be fair. The phrase “just and
equitable” is suggestive of a discretion and, as in the case of the
exercise of a discretion vested in a lower court, an appellate court should be
slow to interfere.”
43. Mr Heywood, for the defendant, accepted that
where contributory negligence is alleged, the burden is on the defendant to
prove that the plaintiff’s fault contributed to the injuries suffered.
Submissions
44. We have limited our summary of the evidence
given by the witnesses as to fact to the accident itself and to the moments
immediately leading up to it. Much
of the hearing, however, was taken up with thorough, if not exhaustive,
cross-examination by Mr Steenson of the defendant and his passengers as to
inconsistences he saw in their conduct in particular before and after the accident. For reasons which will become clear, we
have not set out that wider evidence in this judgment, although we have taken
it into account.
45. Mr Steenson submitted that there could be no
doubt that the defendant and his three passengers were unreliable historians
(an expression, he said, that came as close as possible to saying that they
were lying in their evidence). He
said that they had been blasé about the court process and cavalier with
the need for accuracy and truth. We
should dismiss the defendant’s case out of hand, as it was riddled with
inconsistencies and inexplicable occurrences. He gave a few examples of inaccuracies,
inconsistencies and lies on the part of the defendant, such as what he described
as his cavalier approach to the issue of insurance and the insurance
documentation, his failure to make reference to the two girls as witnesses in
his statement given to the Motor Insurers’ Bureau in June 2009, his
statement that he and Matthew Boyle were good mates at the time of the accident,
when it would appear from Matthew Boyle’s evidence that they had not
known each other that long, the question mark over the route taken before
arriving at the Five Mile Road, the general purpose of that evening, who it was
who turned off the motor cycle after the accident, whether there was music in
the car, whether the defendant had smoked and whether the car had come to a
complete stop or was creeping forward before making its turn.
46. At its most basic level, he said the
defendant’s case was inexplicable and hopeless for two obvious reasons,
firstly that he and his passengers had absolutely no sensible explanation as to
why they never saw the plaintiff’s motor cycle and they had no
explanation at all as to how the defendant’s car could have been
travelling at at least 14-16 mph at the time of impact.
47. All of these gaping holes in the
defendant’s case could be accounted for if the Court accepted that he was
not travelling south along the Five Mile Road but came down Le Chemin des
Basses Mielles, crossing the Five Mile Road without stopping to give way. That would explain entirely why the
plaintiff failed to see the defendant’s car. Motor cyclists do not simply drive into
cars, at least without attempting to take some form of evasive action. In short, he said, the defendant’s
case did not make sense. In
contrast, the plaintiff’s case was logically sound, his evidence and that
of Sophia Roberts was credible and not in any material way undermined through cross-examination.
48. Furthermore, he submitted, the Court should
have regard to the simplistic admissions of liability made by the defendant in
two respects. On 28th
August, 2007, Transport and Technical Services Department wrote to him, asking
for £410 to meet the cost of clearing and cleaning the collision site. The letter stated that if he did not
consider that he was responsible for the accident, then he should advise them
as soon as possible. He did not do
so and paid the sum required. On 7th
May, 2009, Islands Insurance wrote to the defendant seeking reimbursement of
the cost of repairing the motor cycle in the sum of £2,300. The letter stated that there was no
doubt that he was responsible for the accident, in that he drove over the Give
Way line into the plaintiff’s motor cycle that was already established on
the main road. The defendant paid
the sum demanded. Mr Steenson did
not seek to argue that these constituted admissions binding upon the defendant
but that they were probative of his state of mind at the time, namely that he
regarded himself as responsible.
49. Mr Heywood submitted that the credibility of
the defendant and his passengers had been unjustly impugned. Although they knew each other at the
time, they had all gone their separate ways and it was simply untenable to
suggest that they had conspired together to fabricate an account of events in
order to deceive the Court.
Discrepancies in their accounts of the surrounding events were precisely
the kind of discrepancies one would expect from honest witnesses and indeed, in
his view, similar discrepancies could be found in the accounts of the plaintiff
and Sophia Roberts. Neither the
plaintiff nor Sophia Roberts had seen the defendant’s car emerge from Le
Chemin des Basses Mielles and the Court was being asked to accept their theory
as to the route the defendant was travelling against the actual evidence of the
defendant and his three passengers.
50. Mr Heywood submitted that the defendant had
done everything that a reasonably prudent and careful driver would have
done. He had his headlights on. He had slowed to almost a complete stop
and indicated that he was turning right having let a car with its headlights
illuminated pass him going northward.
He checked the road and began his turn. He did not see the plaintiff or anyone
else and thus considered the road was clear. At the point he began his turn, the
plaintiff was well outside the range of his dipped headlights. The ambient light was not good and the plaintiff
had failed to illuminate his headlight or his front sidelight. The plaintiff’s conspicuity was
such that it was reasonable for the defendant not to have seen him and thus
begin his turn.
51. Far less explicable said Mr Heywood is why the
plaintiff failed to see the defendant’s car. Its dipped headlights were illuminated
and its indicator was on. The only
explanation was that he cannot have been paying attention – in other
words, he was not acting as a reasonably prudent and careful driver.
52. If the Court found the defendant was
responsible for the accident, then, in the alternative, Mr Heywood submitted
that the plaintiff must bear by far the majority of the responsibility or
blameworthiness. The plaintiff must
have known, or ought to have known, that travelling at speed in poor light
without wearing appropriate clothing or illuminating his headlights he put him
and other road users at significant risk of harm. Furthermore, if he had been travelling
at a reasonable speed and paying attention, he would have seen or ought to have
seen the defendant’s car and would have had sufficient time to brake
safely and/or avoid the car.
Findings
53. We make each of our findings on the civil test,
namely on the balance of probabilities.
Route taken by the defendant
54. We have not set out all of the evidence covered
in the extensive cross-examination by Mr Steenson of the defendant and his
three passengers, because it relates to their credibility and credibility is a
matter of judgement for the Jurats, who saw their demeanour and heard their
evidence given live before them. Mr
Steenson made much of the fact, for example, that the defendant had been
“frantically mopping his brow” while he was giving evidence; the
Court also noticed this, but considered it to be indicative of the stress of
the circumstances rather than mendacity. The Court had also noticed that the
plaintiff was very nervous but we were conscious that this was a stressful
situation for both these young men.
55. The evidence has been carefully considered in
its entirety and in the view of the Court, the defendant and his passengers
were truthful in the evidence that they gave. The inconsistencies and inaccuracies over
which Mr Steenson laboured did not, in the Court’s view, undermine their
credibility. The Court did not find
them either blasé or cavalier.
56. These four young people went their separate
ways many years ago. The defendant
has settled down with his partner and young child and is working full time for
a local carpentry business. Matthew
Boyle remains a bachelor and is working as a plumber. Megan Pople has settled down and has two
young children to look after. Jamie–Lea
Baudains is forging a career in the finance industry. We cannot and do not find that these four
witnesses have conspired together to lie on oath about the route they were
taking. We found nothing suspicious
about the defendant and Matthew Boyle going back to the scene of the accident
the next day to look at what they thought was the skid mark caused by the
plaintiff’s motor cycle or about all four of them (with others in their
group it would seem) going to see the damaged motor cycle at the DVS.
57. During the hearing Matthew Boyle, Megan Pople
and Jamie-Lea Baudains had been placed in the witness room together before
giving evidence and were overheard by the Court usher discussing their
evidence. They had not been warned
against discussing the case and in the absence of such a warning it was
understandable in our view that they would have done so. They were examined about this and we are
satisfied that there was nothing conspiratorial about their discussions.
58. On this key issue, therefore, the finding of
the Court is that the defendant was travelling south along the Five Mile Road
before turning into Le Braye car park.
He did not go down Le Chemin des Basses Mielles. It follows that each vehicle was or
should have been visible to the other.
Post and Pre Impact Speeds
59. The Court accepts the evidence of the experts
that the post impact speed of the defendant’s car was 14-16 mph.
60. In terms of the post impact speed of the
plaintiff’s motor cycle, the Court prefers the evidence of Mr Johnston
that 2 mph should be added to take into account the loss of speed caused by the
motor cycle falling over. We
therefore find that the post impact speed of the motor cycle was in the range
of 31-37 mph.
61. The experts were very close on the loss of
speed caused by the impact itself.
Mr Paine estimated it at 10 mph and Mr Johnston between 11 and 12
mph. The evidence therefore is that
the pre impact speed of the plaintiff’s motor cycle was in the range of
41 mph (the lowest figure put forward by Mr Paine but adding the 2 mph as
above) to 49 mph (the highest figure put forward by Mr Johnston). We accept the advice of the experts that
we should look to the higher end of the range and we find therefore that the
plaintiff was travelling at a speed in the range of 45 mph to 49 mph. For the reasons set out above, we did not
take into account the pre impact speed as calculated using the Pedestrian Throw
Calculations.
Level of light
62. Perhaps understandably the plaintiff and Sophia
Roberts have tended to accentuate the amount of light there was and the
defendant and his passengers how little.
However the fact is that the sun had set 26 minutes before the accident;
indeed the accident occurred only 4 minutes before headlights became compulsory
as a matter of law. We find that
whilst it was still possible to see, as Mr Paine informed us in the exercise he
conducted and as made clear by the evidence of Jamie-Lea Baudains, it was
getting dark and conspicuity was reducing.
The stage had been reached, we find, where a cautious and prudent driver
of a motor vehicle and certainly a motor cycle would have switched on their
headlights.
Lights
63. The evidence of the defendant and Matthew Boyle
that the defendant’s headlights were on and the right-hand indicator
engaged was not expressly challenged and we accept it. The plaintiff accepted that he did not
have his motor cycle headlights on but said that he did put on his sidelights;
it was his standard procedure to do so. However none of the other witnesses saw
any lights on the plaintiff’s motor cycle before the accident and none
gave evidence of seeing any lights when the motor cycle was on the ground
afterwards and accordingly we find that on this occasion he had not put his
sidelights on.
Skid mark
64. We accept the evidence of Mr Flaxman that the
skid mark he had seen on the road was not connected with this accident. That is consistent with the
plaintiff’s evidence, which we accept, that he did not have time to
engage his brakes before the accident occurred.
Decision
65. In our view, the defendant must bear primary
responsibility for this accident.
He was under a duty to make sure that the road was clear before crossing
the carriageway. It was getting
dark but it was still possible to see.
The fact that the collision took place before he had cleared the
carriageway means that the plaintiff must have been visible if the defendant
had looked properly. Depending on
the time the defendant took to make the turn, and on the basis that the
plaintiff was travelling at 45 mph, then he would have been between 60 and 128
metres away. It may be that the
defendant focused only on what was within the beam of his dipped headlights,
but in failing to see the plaintiff, who we find must have been visible, means
that he did not make sure that the road was clear. He cannot have looked properly. He did not act as a prudent and careful
driver would have acted.
66. In reaching this conclusion we have not taken
into account the admissions referred to above. The defendant was young at the time and
he said he felt under pressure to pay the bill from the Transport and Technical
Services Department. As to the
demand from Island Insurance he told us, and we accept, that he attended the
legal aid department and was advised that he should pay it as it would cost
more to challenge. In any event we
took the view that the defendant’s opinion as to his liability was
irrelevant. As it transpires we
have now found that he was primarily responsible.
67. However, we find that the plaintiff must share
a degree of responsibility for this accident for the following reasons:-
(i)
Despite
the plaintiff’s insistence that he was not doing more than 40 mph and
indeed, his somewhat surprising assertion (we felt) that he had never exceeded
the speed limit, the expert evidence showed this was not the case. It is true that he was not doing the
excessive speeds originally mooted by Mr Johnston, but he was approaching a
junction with no lights on when it was getting dark. In those circumstances a speed in the
range of 45 mph to 49 mph was too fast, in our judgment
(ii) Although it was not quite yet a legal
requirement to switch on his headlight, a prudent and careful rider of a motor
cycle 26 minutes after sunset would have done so in addition to the side lights
(which were a legal requirement).
The Highway Code recommends dipped headlights for motor cycles even in good
daylight (see rule 86), let alone when it is getting dark, in order to make a
motor cycle more conspicuous, recognising as it does the need to be aware that
other vehicle drivers may still not have seen an approaching motor-cycle, or
may have judged its distance incorrectly, especially at junctions.
(iii) His evidence was that he did not see any car
facing him. The first he saw was a
flash of blue in front of him, leaving him insufficient time even to brake
before the impact. Allowing for the
1.5 seconds’ reaction time that must mean that he was within 1½
seconds of the collision point when he first saw the defendant’s
vehicle. A necessary consequence of
our finding as to the route the defendant was taking means that the
defendant’s vehicle was facing him with its dipped headlights on and its
indicator showing. He failed to see
it and it must follow inexorably that he was not paying attention.
68. If the plaintiff had been travelling at a more
reasonable speed, had his side light and dipped headlight switched on and been
paying attention, either the defendant would have seen him and not crossed in
front of his path, thus avoiding the accident altogether, or he would have been
able to apply his brakes and take evasive action, in which event even if a
collision could not be wholly avoided the impact could have been much reduced.
69. We conclude that the plaintiff, for these
reasons, contributed to the accident to the extent of 40%.
70. In conclusion, we apportion blameworthiness for
this accident as to 60% to the defendant and 40% to the plaintiff.
Authorities
Olson and Fabre Forensic Aspects of
Driver Perception and Response.
Human Factors in Motor Cycle
Accidents SAE 770103.
Rudd
(née Lowry)-v-Hudson [1977] JJ 2055 at 2062.
Goad-v-Butcher and
another [2011] EWCA Civ 158.
Lambert-v-Clayton
[2009] EWCA Civ 237.
Taylor-v-Tyler QBD, 29th November
2000.
Barna-v-Hudes Merchandising
Corporation (1962) Crim LR 321 106 SOL JO 194 CA.
Law Reform (Miscellaneous Provisions)
(Jersey) Law 1960.
Louis-v-Troy
and others (1970) JJ 1371 at 1404.
Hacquoil-v-Troy
& Sons and Harbours and Airport Committee (1970) JJ 1305.
Halsbury’s Laws of England
(Third Edition).
Jones-v-Livox Quarries (1952) 2 QB
608.
Jersey
Post-v-Chartier [2007] JLR 187.