Bodden v Solomon

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, Ag. J.)
• Judgment Date: 05 May 2005
• Court: Grand Court (Cayman Islands)
• Date: 05 May 2005

Grand Court

(Sanderson, Ag. J.)

BODDEN

and

SOLOMON

P.A.K. Broadhurst and P.A. Broadhurst for the plaintiff;

R.D. Alberga, Q.C. for the defendant.

Cases cited:

(1) Dowsing v. Goodwin(1997), 27 M.V.R. 43, considered.

(2) Eagle v. Chambers, [2004] RTR 115, considered.

(3) Harvey v. Road Haulage Exec., [1952] 1 K.B. 120; 96 Sol. Jo. 759, referred to.

(4) Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608; [1952] 1 T.L.R. 1377, followed.

(5) Marpesia (Owners) v. America (Owners), The Marpesia(1872), 4 L.R.P.C. 212, considered.

(6) Maszlar v. Wiens, (1994) B.C.J. 744, considered.

(7) Nance v. British Columbia Elec. Ry. Co. Ltd., [1951] A.C. 601; [1951] 2 All E.R. 448, followed.

(8) S. v. Lombard, 1964 (4) SA 346, referred to.

(9) Sinclair v. NyeholdUNK(1972), 29 D.L.R. (3d) 614, followed.

(10) Wong v. Gonzalez, 2000 B.C.P.C. 205, followed.

Legislation construed:

Torts (Reform) Law (1996 Revision), s.8(1): The relevant terms of this sub-section are set out at para. 22.

Tort-negligence-inevitable accident-defence fails if no immediate threat and driver not stung, injured or out of control as result of flying insect entering vehicle-driver”s duty to exercise reasonable skill and self-possession

The plaintiff brought an action against the defendant in respect of injuries allegedly caused by the defendant”s negligent driving.

The plaintiff was walking with his back to the traffic approximately 1ft. on to the paved surface of a straight and wide road, with his brother walking on the shoulder of the road beside him. The weather was clear, bright and dry with unlimited visibility. The defendant was driving his car at approximately 40 m.p.h., the maximum permitted speed, when he hit the plaintiff from behind. The lane was wide enough for the defendant to pass the plaintiff, whom he had seen from a distance of more than 400ft., without entering the vacant on-coming lane.

Evidence was given that at 40 m.p.h. the defendant had at least seven seconds to steer his car around the plaintiff but when he was 400ft. away from the plaintiff a dragonfly came in through the window. The defendant knew he was on a collision course with the plaintiff but was distracted by the dragonfly and did not look at the pedestrians again. At no time prior to the accident did he apply the brakes or attempt to drive around the plaintiff, but hit him from behind.

The plaintiff submitted that (a) the defendant was negligent; and (b) under the Traffic Law he was entitled to walk on the edge of the road, and was therefore not acting negligently in so doing.

The defendant submitted in reply that (a) the collision was an inevitable accident caused by the dragonfly”s entering his car, flying around and hitting him in the face, thereby creating an involuntary distraction; or (b) the plaintiff was contributorily negligent by walking on the roadway, since if he had been walking on the shoulder he would not have been hit and injured.

Held, finding the defendant negligent and the plaintiff contributorily negligent:

(1) The defence of inevitable accident failed as the dragonfly posed no immediate threat and the defendant was not stung, injured or out of control as a result of its entering the car. The defendant was negligent as

he became completely distracted by the dragonfly and did not stop or even slow down, having had ample opportunity to do both. He was under a duty to exercise reasonable skill and reasonable self-possession which he did not, resulting in a collision that would otherwise have been avoided (para. 19).

(2) Whilst the plaintiff was entitled to be on the road and was not legally required to walk facing the traffic, had he been on the shoulder, where there was ample room and no good reason not to walk, he would not have been hit. It followed that he had failed to take reasonable care of himself and failed to take into account the possibility of others being reckless, thereby contributing to his own injury. The plaintiff was therefore contributorily negligent, to the extent of 20 per cent (paras. 30–32).

1 SANDERSON, Ag. J.: In the early morning on Sunday, December 16th, 2001, Alexander Bodden was walking on the edge of the Crewe Road Bypass. He was hit from behind by a motor vehicle driven by the defendant, Shane Solomon. He sues Mr. Solomon in negligence. Mr. Solomon defends on the basis that-

(a) the collision was an inevitable accident caused by a dragonfly entering his vehicle, flying around and hitting him in the face, thereby creating an involuntary distraction; alternatively,

(b) Alexander Bodden was contributorily negligent by walking on the roadway.

2 The defendant was convicted of careless driving in the Summary Court by Ms. Hall. That conviction was set aside by Levers, J. in this court on the basis of inevitable accident. This trial is limited to a determination of civil liability.

3 The accident occurred at approximately 7 a.m. The morning was clear, bright and dry. Visibility was unlimited. That portion of the Crewe Road bypass is straight and wide. The paved road has one lane going in each direction and is 24ft. wide in total, 12ft. for each lane. The shoulder on each side of the road is approximately 24ft. wide, is level, clear and well packed.

4 The plaintiff was walking approximately 1ft. on to the paved surface. He was with his brother David who was beside him walking on the shoulder. They were going to work.

5 The defendant was 18 years old and was alone, driving a 2001 Mitsubishi Mirage which is approximately five feet wide. He had obtained his driver”s licence a few months earlier. He was travelling at approximately 40 m.p.h., which is the maximum posted speed. He said he first observed the plaintiff and his brother from approximately 400ft. away, although he later admitted in cross-examination that:

(i) ‘I didn”t see them before that because I wasn”t looking that far ahead.’

(ii) Then he said ‘I probably saw them before 400ft. but didn”t take notice of them.’

(iii) Then he said ‘I probably saw them from more than 400ft. away.’

6 The defendant knew that he was going to have to move his car to the right in order to drive around the plaintiff. That is, he agreed he was on a collision course with the plaintiff. At a speed of 40 m.p.h., he was travelling at a rate of 58.6ft. per second. At that speed it would take 6.8 seconds to travel 400ft. Since the plaintiff was only 1ft. on to the roadway the defendant was, therefore, driving on the left-hand side of the 12ft. lane. The defendant could have passed the plaintiff within his 12ft. lane without having to enter the on-coming lane. Further, there was no evidence of traffic coming from the opposite direction such as to prevent the defendant from moving in to the on-coming lane had it been necessary to do so, in order to pass the plaintiff.

7 The defendant never changed his course or applied the brakes from the time he first saw the plaintiff until after he hit him. In his evidence-in-chief the defendant testified that he was approximately 40–50ft. from the

plaintiff and was just about to steer his car around the plaintiff when a dragonfly flew into the car. He said he panicked and did not notice the plaintiff after that. The distance between the plaintiff and the defendant at the moment when the dragonfly flew into the car is important in determining the outcome of this case.

8 The defendant said that the dragonfly flew in and hit the inside of the windshield in front of him. He said it stopped on the windshield and he had time to identify it as a dragonfly. The defendant then said he tried three times to shoo it away with his right hand while holding on to the steering wheel with his left. He said he missed the dragonfly on those three occasions, that the dragonfly then flew up and around his face and head and that he tried once more to hit it away with his right hand but missed. He said the dragonfly then hit him in the face. It was...