Sk v R

• Jurisdiction: Cayman Islands
• Judge: Levers, J.
• Judgment Date: 03 April 2004
• Court: Grand Court (Cayman Islands)
• Docket Number: 1751 of 2002; S.C.A. No. 50 of 2002
• Date: 03 April 2004

SK

and

Regina

Levers, J.

1751 of 2002; S.C.A. No. 50 of 2002

Grand Court

Criminal Law - Appeal against conviction — Careless driving contrary to section 69 of The Traffic Law (2001 Revision) — Whether the defendant drove without due care and attention — Whether the driver had sufficient time to avoid the accident.

Appearances:

Mr. Ramon Alberga, Q.C., instructed by Mr. Shaun McCann of Campbells for the appellant.

Mr. Scott Wilson – Crown Counsel.

Levers, J.

1 The accused in this matter was charged with careless driving contrary to section 69 of The Traffic Law (2001 Revision). After a full hearing in the Summary Court he was convicted of careless driving and he now appeals against that conviction. Several grounds of appeal have been filed on his behalf by counsel and they are that:

1

The learned magistrate erred in concluding that the prosecution had proved beyond a reasonable doubt that the accused was not exercising the degree of care required of a reasonable and prudent driver. 2. The learned magistrate having found that:- (a) the appellant was driving at a speed of 40 mph which was not in excess of the prescribed speed limit; (b) the distance between the appellant's vehicle and the pedestrian with whom he collided when a dragonfly entered his vehicle and flew in his face was between 40–50 ft; (c) the distance between the point of impact and where the vehicle driven by the appellant came to rest was 118 ft; (d) a vehicle traveling at a speed of 40 mph would travel a distance of 58.66 ft in one second; (e) at that speed a driver would require a thinking distance of 40ft before reaching his brake and could not come to a complete stop before traveling 120ft; (f) that the tables in Bingham & Berrymans' Motor Claims Cases, 10th Edition at p. 76 were correct and judicial notice should be taken of such tables; and (g) that she accepted the defendant's evidence, ought to have found that the collision constituted in the circumstances an unavoidable and/or inevitable accident and that nothing that the defendant did or omitted to do amounted to failure on his part to exercise ordinary care, caution and skill. 3. In all the circumstances, the conviction of the appellant for careless driving was wrong and ought to be set aside. 4. The conviction was unsafe, unreasonable and ought to be set aside. 5. There was no excessive speed, no element of bad driving and nothing that the appellant could have done once he was confronted with the entry of the dragonfly into his vehicle to avoid colliding with the pedestrian who was walking in the roadway directly in the path of his oncoming car and the learned magistrate's conclusion was wrong as a matter of law. 6. Once the appellant was confronted with the dragonfly, the appellant did everything that a reasonable person in that situation could have done. He was not in any way careless and the learned magistrate should have so found and acquitted him of the criminal offence of careless driving. She was wrong to have done otherwise. 7. The finding that the time period between the entry of the dragonfly into the car and the collision had to be longer than 3 seconds and that the appellant had sufficient time to execute a manoeuvre that would have taken him past the pedestrian in safety before the dragonfly flew into his face is farfetched and completely speculative. 8. The conviction of the appellant for careless driving is generally wrong and should be set aside.

2 Mr. Ramon Alberga, Q.C., appearing on behalf of the appellant submits that the facts of this case are a textbook example of inevitable accident. Mr. Scott Wilson for the Crown, on the other hand, submits that although the reasoning of the Magistrate may be faulty the conclusion she arrived at is the correct one and that is that the accused is guilty of careless driving.

THE FACTS

3 The facts in this case are simple. The appellant was driving his vehicle on the 16th December, 2001 at about 6:30 a.m. along the Crewe Road by-pass when a dragonfly entered his vehicle and as a result of the disruption caused thereby in the manner of driving he was unable to avoid a pedestrian who was walking in the middle of the road. It is admitted that he had previously seen the pedestrian before the fly had entered the vehicle, and had it not been for the fly, the pedestrian could have easily been avoided.

4 The Crown's case was that the defendant was not driving in a manner that was careless prior to the accident. They accept the defendant's evidence that had the fly not entered his vehicle he could have maneuvered around the pedestrian.

5 Having carefully reviewed the evidence the learned magistrate went on to find that:

“The defendant stated clearly that at first he used his right hand to try and get the insect out of his car, thereafter it flew into his face. I find the time period between the entrance of the insect and the collision had to be longer than three seconds.”

6 Another of her findings was:

“I am of the view that having observed an obstacle proceeding directly ahead, the defendant...