Court finds accused guilty of careless driving for sudden left turn cutting off motorcycle without due care.

[*218] 1983 Nov.30

(KALLIS, AG. D.J.)

IN THE DISTRICT COURT-OF NICOSIA

Nicosia Police,

v.

Georghios Andreou,

Accused,

(Case No. 12832/83).

Road Traffic - Careless driving - Sudden turn to the left - Collision with following vehicle.

P.S. Michael, for the Prosecution.

A. Paschalides, for the Accused.

JUDGMENT

The following judgment was delivered by:

KALLIS. AG. D.J.:-The accused [*219] in this case is charged of the offence of driving a motor vehicle on a road, without due care and attention, contrary to sections 8 and

19 of the Motor Vehicles and Road Traffic Law, 1972 (Law 86/72). It was the version of the prosecution that whilst driving his motor car along Pouliou Kapota Avenue ("the main road") and whilst he was in the process of turning left into Kerkyras street ("the side road") he cut the path of P.W.2 who was riding his motor-cycle in the same direction; and who in his attempt to avoid a collision he fell from the motorcycle and injured himself.

The Evidence:

According to the evidence of P.W.1, P.C. 543 Andreas Naoum who went to the scene to investigate the accident, the width of the main road is 30'. The car of the accused left brake-marks of a length of 7'. The motor-cycle left traces of friction (ihni tripsimatos) on the tarmac of a length of 14' which were not caused by its wheels but might have been caused by its pedal. The rear right part of the car of accused, as its resultant position was .20'3" from the right edge of the tarmac, and the front right part 24'. Its front left part was 2' from the left imaginary line of the main road towards its junction with the side road; and the rear left part was 4'9" from the left edge of the tarmac. The traces left by the motor-cycle were at a distance of 2' from the left edge of the tarmac. Visibility from the resultant position of the car of accused towards Kaimakli was more than 300 meters and towards Nicosia about 200 meters. The two vehicles did not come into contact. [*220]

In cross-examination he said that the motor-cycle at its resultant position was lying on the ground (yirmeni) as appearing in the plan - exhibit 1 - and one of its wheels was on the tarmac and the other on the pavement. The traces left by the motor cycle did not emanate from use of brakes but from rubbing of a metal object, perhaps the pedal. The distance from the imaginary right line of the side road until the front wheel of the motor-cycle was 7'. The front left part of the car of accused was 2' from the left imaginary line of the main road. The width of the main road was 30' but at its junction with the side road it might, perhaps, be a little wider. The accused must have been driving at a slow speed, he could not tell about the speed of the motor-cycle by reference to the traces it left; they were caused after it had fallen (eyire).

P.W.2 David Nicolaou testified that just before the accident he had been riding his motor-cycle along the main road and towards Nicosia at a speed of about 20 m.p.h. He was following the left-hand side and the road ahead of him was clear. When near the side road he was overtaken by a car, from his right side, which turned abruptly (apotoma) to the left; that he applied brakes but the motor-cycle fell (eyire) and he, also, fell on the tarmac. When accused started overtaking him he was 4-5 meters from the side road, but accused turned abruptly and he (the witness) applied brakes because had he not done so he would have found himself into the wheels of the car. When he applied brakes the car of the accused had already turned in front of him, its face (moutra) was already in front of him and it was in motion. [*221]

In cross-examination he said that he had not noticed accused making any sign with his trafficator nor did he have time to notice (den prolave). When accused overtook him and turned he (the witness) was 2-3 meters from the side road, and within seconds accused turned, it all happened within seconds. He used both the rear and front brakes because it was time of danger and that when he applied brakes the motor-cycle fell and he fell also. When he said that accused turned he went near the junction of the two roads. After he had fallen he was injured and conveyed to hospital. When put to him that after applying brakes the motor-cycle was dragged (etriftin) for about 15' he denied it. He also said that at its resultant position the motor-cycle was within the middle of the side road; and that he has noticed for the first time the car of the accused at a distance of 4 - 5 meters from the side road. He realized that the car of accused was going to the left because he noticed it turning.

To a question by the Court as to how his evidence that the motor-cycle was not dragged (den etriftin) could be reconciled with what P.W.l found on the spot he replied that he could not exclude that it was dragged but when he replied in the negative it is because he could not remember this detail; he, also could not exclude that the resultant position was as found by P.W.l because he was not there when P.W.l went to the scene, he had been conveyed to the hospital because he had been injured.

When the accused was called upon to make his defence he adopted his statement, which he made to the police on the day of the accident, [*222] which, so far as relevant, is to the effect that just before the accident he had been driving at a speed of about 30 m.p.h. and was following the left-hand side of the road; that there were no cars ahead of him; that near the junction of Kapota Avenue with Kerkyras Road and from a distance of about 30 meters there was a motor-cycle which was heading towards the same direction; that he overtook it from the right side and proceeded a little further about 15 meters and started indicating that he will turn to the left; that when his car started turning to the left (epiren klisin aristera) the said motor came from his left and in order to avoid a collision he applied brakes and fell on the tarmac;that the motor-cycle came dragged (trifti) near his car but there was no contact with the car.

Findings

Having followed verycarefully both prosecution witnesses whilst testifying before me, in the course of the trial, and having had the .opportunity to-observe their demeanour in the witness box I have no difficulty whatsoever to accept the testimonyof P.w.1 and to rely on it. Regarding, now, the testimony of P.w.2 it is true that he contradicted himself regarding his distance from the side road when accused-started overtaking and, also, his evidence regarding the dragging of the motor-cycle (tripsimo) and its resultant position is contradicted by the evidence of P.W.l. Having carefully watched him whilst testifying before me, the more so because of these contradictions, I cannot say that he is lying on the main issue namely that after overtaking him near the side road the accused turned abruptly to the left. After all One cannot expect one to be accurate with distances when in the agony of the [*223] collision; and regarding the other contradictions they may be due to the fact that P.W.2 did not remain at the scene, because of his injuries, after the accident. Also, P.W.2 himself did not exclude that things might be as stated by P.W.1.

In the light of my findings as to credibility I find that whilst accused was driving along the main road and when near to side road he abruptly started turning to the left for the purpose of getting into the side road at a time when P.W.2 was near him and following him having overtaken him a little earlier; that in so doing accused cut the path of P.W.2; that in the face of a collision P.W.2, and, when his path was cut, applied brakes, his motor-cycle fell and was dragged at a distance of 14' he, P.W.2, having fallen also.

The Law

It is well-settled that with careless driving the test is an objective one. What the prosecution have to prove is whether the defendant has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. The particular circumstances of each case have to be examined, and that negligence sufficient to establish civil liability is all that is required to support a conviction (per Stylianides J. in Charalambous v. Police,

(1982) 2 C.L.R. 134 at p. 143).

In Charlesworth on negligence, 5th ed. p. 495, the following are stated:-[*224]

"Lookout. It is the duty of the driver or rider of a vehicle to keep a good lookout. He must look out for other traffic which is or may be on the road, whether in front of him, behind him, or alongside of him, especially at cross-roads, junctions and bends, and for traffic light signals and traffic signs including lines marked on the highway. Disregard of traffic signals and failure to keep a proper lookout is evidence of negligence."

In Fardon v. Harcourt-Pivinqton,

(1932) All E.R. Rep. 81, (H.L.) Lord Dunedin enunciated the principle to the effect that if the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

In Nance v. British Columbia Electric Railway Co. Ltd., (1951) A.C. 601. at p. 611 it was said:-

"Generally speaking when two parties are so moving in relation to one another as to involve risk of collision each owes to the other a duty to move with due care and this is true where they are both in control of vehicles or both proceeding on foot or whether one is on foot and the other controlling a motor vehicle".[*225]

The principle enunciated in the above case has been applied by our Supreme Court on many occasions (See, inter alia,Porrikkos v. Fenzi,

(1963) 2 C.L.R. 24 and Theofanous v. Markides and Another, (1975) 1 C.L.R. 199).

In the case of Constantinou v. Katsouris and Another,

(1975) 1 C.L.R. 188, Triantafyllides P., delivering the judgment of the Court of Appeal, said the following at pp. 192-193:

"Having that in mind, we cannot resist the practically nevitable

inference that had the respondent driver of car No. CB109 been keeping at all material times - (and not only when he looked momentarily, at some stage, in his rear view mirror)- a proper lookout as regards other traffic approaching

from behind, when he was to turn sharply across the road to his right, he ought to have noticed, in time, before he turned

right, the car of the appellant which was following him; it is correct that the respondent driver signalled with his hand and with

a trafficator that he was about to turn right, but this cannot, in our view, exonerate him completely from blame. The duty to keep a proper lookout is one that is cast on all drivers at all times and in all circumstances, but it was an especially

heavy one in the case of the respondent driver who was about to turn right cutting across the road (see, inter alia, Charlesworth on Negligence, 5th ed., p. 495,paragraph823) in Mazengarb on Negligence on the Highway, 4th ed., it is stated at pp. 333, 334:- ‘In ordinary circumstances, if a driver turns out of and across [*226] the line of traffic,

after giving the usual signal, he acts negligently unless he has at least reasonable ground, beside' the more fact of his warning, for believing that he can cut across without endangering approaching traffic. There is a heavy burden on the driver turning to establish an excuse for failure to see the other vehicle.’"

Relevant also is the Highway Code which by Regulation 32 provides:

"32. Drive your vehicle to the left hand side unless you are about to overtake another vehicle or turn to thee right, and:-

(iii) when you approach a cross-road or corner, drive the vehicle to the lane of course which corresponds to the direction you intend to follow;

(iv) before changing lane of course, you have to make every effort not to create difficulties to traffic; make use of the driver's mirror and make sure that no other vehicle is following in the lane of course which you are about to enter.

Bear in mind that you may be followed by other vehicles whose speed is greater than what you think."

(See, also, regulation 57(1) (o) which prohibits overtaking at crossroads.) [*227]

Conclusion:

In this case the abrupt turning of the accused to the left at a time when P.V.2 was very near him, indicates that he was driving without a proper lookout and without due regard to other users of the road, and for this reason alone he is guilty as charged. That, also, accused was under a duty not to attempt to turn to the left unless he had at least reasonable ground, beside any warning that he might

have given, for believing that he could cut across the path of P.W.2 without endangering him. (See by analogy the Constantinou case (supra)). Further, accused attempted to turn to the

left at a time when it was dangerous so to do and in so doing he cut the path of P.W.2 and placed him in danger. That, moreover, in view of the proximity of the car of P.W.2 the possibility of danger was reasonably apparent and accused had a duty to see and make sure that the road behind him was clear of any danger before attempting to turn to the left. He, further, had a duty not to attempt to turn to the left in such a manner or at such time as to endanger P.W.2 or to necessitate him to change speed or course or apply brakes to avoid the accident. For all these reasons accused has not exercised that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and the prosecution has, therefore, discharged its burden of satisfying this Court beyond reasonable doubt that the appellant is guilty of driving without due care and attention. Accused is, therefore, found guilty as charged.

Accused found guilty as charged