Court acquits accused of causing death by want of precaution due to lack of proof of negligence.

[*353] 1973 November 15

(ARTEMIDES, D.J.)

IN THE DISTRICT COURT OF LARNACA

Police,

v.

Andreas loannou,

Accused.

(Case No. 6493/73).

Criminal Law - Causing death by want of precaution through careless driving - Section 210 of the Criminal Code, Cap.

154 - Degree of negligence required.

Causing death by want of precaution

- Section 210 of the Criminal Code, Cap. 154 - Degree of negligence required for a conviction thereunder.

Road Traffic - Negligent driving - Skidding - Whether evidence of negligent driving.

Skidding - See, under “Road Traffic”.

Police Sergeant C. Papageorghiou, for the Prosecution.

A. Pouyiouros, for the Accused.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES, D.J.: The accused is charged [*354] with causing death by want of precaution not amounting to culpable negligence contrary to section 210 of the Criminal Code, Cap.

154. The want of precaution, alleged to have been shown by accused, was in respect of the driving of his motor lorry registration No.GB288.

The undisputed facts of the case are shortly the following:-

On the 7/4/73, at about. 6.00 a.m., accused was driving his aforesaid lorry on the trans-urban Nicosia/ Limassol road, going from his village Dherinia through Larnaca town to Limassol. When accused arrived at a point between the 30th and 31st milestone, where the road is downhill towards Limassol direction, he suddenly left his proper side of the road, crossed to the other, swerved on 180° angle and thus came to such a position On his off-hand side of the road so as to be facing Nicosia direction i.e., the direction he was coming from. When the car of accused was reversed, as hereinabove described, motor lorry of registration No. EG250, driven by Costas Miltiadous (P.W.5), (hereinafter in this judgment to be referred to as the complainant), from Limassol towards Nicosia direction, collided with its front part on the rear of the lorry of accused.

The collision was violent. The lorry of the complainant was stuck underneath the lorry of accused. From the collision the passenger in the lorry of the complainant, Costas Panayi Koliari received fatal injuries and died instantly whilst the complainant was injured. [*355] Both the deceased and the complainant were trapped inside the car which could not be removed. Accused on instructions from bystanders started forwards his lorry in order to disconnect it from that of the complainant, but when this was done the latter, due to the downhill road, proceeded backwards and fell over a cliff and was damaged, beyond repair.

Accused, who gave evidence on oath in support of his case, alleged that his lorry came to such violent a reversing on the road due to a skid which had occurred

from no fault of his. He said that at the material time it was raining, though not heavily, the road was wet and slippery and at the point where

his car skidded, muddy. It was on this mud that the tyres of his car slipped.

Accused said that the speed of his vehicle, Just before the accident, was 30-35 mph. On noticing the mud on the road, so his evidence proceeds, he tried to engage in a lower gear and when the

lever was in the neutral position the skidding started. He engaged the fourth gear but his vehicle continued skidding towards the Petrolina pump station which is situated on the other side of the road. He applied brakes to avoid the wall and a ditch but his vehicle, upon the application of the brakes, swerved completely thus facing Nicosia direction. When his lorry had come to a standstill and he was about to alight from it, the lorry of the complainant came and collided on the rear part of his vehicle.

The case for the prosecution rests on two conflicting legs. P.C. Lambrianides (P.W.1), the expert who [*356] investigated the accident and prepared a sketch plan on scale (exhibit 1), said that in his expert opinion the version of accused, i.e., that his car skidded, is untenable in that, if it was true, he would expect to find on the road the skid marks of such a violent skidding. He would also expect the lorry of accused to collide on the Petrolina wall. From the cross-examination of accused and the final address of the Police Sergeant appearing for the prosecution, however, it appears that the skidding is accepted by the prosecution as a fact but it is submitted that it was due to the want of care of accused, in that he failed to take all reasonable precautions whilst driving on the wet, slippery and muddy road.

Having considered very carefully the case for accused and that of the prosecution I may put the issues I have to decide under the heads:

(a) Was the collision, at which the deceased met his death, due to the skidding of the vehicle of accused or to any other cause? and

(b) If the car of accused skidded, did such skidding occur because of any fault in his driving falling under section 210, or was it an event unavoidable by any reasonable driver driving under the same circumstances.

Before I proceed to examine the evidence and arrive at my findings, I will advert briefly on the legal implications pertaining to the present case. Section 210 reads as follows:- [*357]

“Any person who by want of precaution or by any rash or careless act, not amounting to culpable negligence, unintentionally causes the death of another person, is guilty of a misdemeanour and is liable…… etc.”.

In our country the first, if I may say so, important consideration of section 210, may be found in the case of Christos Rayas v. Police 19 C.L.R., p. 308. In this case the Supreme Court examined the kind of negligence required to he proved by the prosecution under the relevant section of the Criminal Code, then section 204. Hallinan, C.J said the following at p. 311 of the Report:-

“The next question to consider is whether the act or omission punishable under section 204 must be criminal negligence of the second category or whether it also includes negligence at civil law. We are clearly of opinion that only criminal negligence which amounts to more than negligence at civil law is punishable under section 204. Our first reason for this view is that to make negligence at civil law which results in death a misdemeanour would be a grave departure from the law of criminal liability for negligence in force in England and, so far as we are aware, in all other territories where criminal justice is based on British jurisprudence. In these circumstances, one would naturally expect that so serious an [*358] innovation would be in clear and unequivocal language and not merely left as a matter of possible inference”.

In a more recent line of authorities, the Supreme Court had occasion to discuss and consider the legal implications

of the relevant section under which accused is charged. In the case of Nicolas Nearchou v. Police (1965) 2 C.L.R. p. 34, the ingredients of the offence have been cited to

be the causing of death of another person by:

(a) Want of precaution;

(h) or by any rash act; or

(c) by any careless act, and of course, the combination of the above alternatives.

The “Nearchou” case has been cited with approval in a number of later cases.

Useful reference in this respect may be resorted to Panayiotis Foka Kannas alias Bombas v. Police (1968) C.L.R. Part

2, p. 29, Koumas

Georgiou Koumas v. Police (1967) C.L.R. Part 2, p. 230, Pavlos loannou Spiritos v. Police (1969) 2 J.S.C. p. 240, Evripidou v. Police (1969) 3 J.S.C. p.

433.

Although Vassiliades J., in the case of “Nearchou” (see page 45) expressed an opinion that the “Rayas” case is not good law, the Supreme Court has not, however, shared such a view. It has come to my knowledge that the Supreme Court has very recently had occasion to consider the “Rayas” case in the ease of Paula Mcleod v. The Police*. However, I have not had the advantage of considering that decision [*359] and derive any assistance from it due to the fact that it has not as yet “been reported, as it has been heard quite recently.

The present case raises the important issue of whether skidding is evidence of negligent driving, of the kind envisaged by section 210.

A number of authorities, mostly in civil cases, have been decided on this issue. In the case of Hunter v. Wright (1938) 2 All E.R. p.621, it was decided that when a car skids and the skidding is not due to negligent driving i.e., there is no fault for which the driver is responsible, then there Can be no action for negligence against him.

Lord Goddard, J., as he then was, had this to say at page 265:-

“Once it has been decided ...... that the car in which the lady was driving got into a skid through no

fault of her own, it seems to me that it is absolutely impossible to say that she had either the time or the space to correct the

consequences of that skid”.

In the case of Laurie v. Ragland Building Co. Ltd., (1941) 3 All E.R. p. 332, it was held that the fact of a skidding, is neutral, and the onus lies upon the defendant to show that he was not negligent in the particular circumstances of the case.

Lord Greene M.R., said the following at page

336 of the Report: - [*360].

“The skidding by itself is neutral. It may or may not be due to negligence. If, in a case where a prima facie case of negligence arises, such as that with which I have been dealing, it is shown that the accident is due to a skid, and that skid happened without fault on the part of the driver, then the prima facie case is clearly displaced, but merely establishing the skid does not appear to be sufficient for that purpose”.

It is useful to state here that in

that case a lorry was being driven at a speed of about 10-12 m.p.h. on a road which was in a dangerous condition at the time due

to frozen snow on it. The lorry skidded and dragged and killed the plaintiff‘s, husband. On these facts, Lord Greene had this to say at page 336:-

“I am quite unable to accept the proposition that, when the roads are in that well-known condition, a lorry of this kind, loaded in the way in which it was loaded, is entitled to proceed at such speed. If the roads are in ‘such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go more than a foot pace, his duty is to proceed at a foot’s pace”. [*361]

In a recent case, i.e., Richley v. Faull (Richley Third Party), (1965) 3 All E.R. p. 109 it was decided that skidding, if unexplained by the defendant, is evidence of negligence.

MacKenna, J., said the following at p. 110:-

“……. I, of course, agree that where the respondents’ lorry strikes the plaintiff on the pavement, or, as in the present case, moves on to the wrong side of the road into the plaintiff’s path, there is a prima facie case of negligence, and that this case is not displaced merely by proof that the defendant’s car skidded. It must be proved that the skid happened without the defendant’s default. But I respectfully disagree with the statement that the skid by itself is neutral. I think that the unexplained and violent skid is in itself evidence of negligence. It seems hardly consistent to hold that the skid which explained the presence of the respondent’s lorry on the pavement or, as here, on the wrong side of the road, is neutral, but that the defendant must fail unless he proves that this neutral event happened without his default. Whether I am right in this or wrong, the

conclusion is the same; the defendant fails if he does not prove that the skid which took him to the wrong place happened without his default”. [*362]

In the case of Butty v. Davey (1972) R.T.R., 75, (Div. Ct), a summary of which may be found at page 100 in Bingham’s Motor Claims Cases, 7th ed., it was decided that the test in a criminal case, whether skidding is by itself evidence of negligence is different. In a criminal case the prosecution has to prove its case beyond any reasonable doubt whatsoever.

Having considered the above authorities regarding the issue of skidding, I am of the opinion that it depends on the facts of each particular case whether the skid was brought about by the negligence of the driver. The skid should be brought about by the fault of the driver which fault means “falling beyond the standard of care of a competent and experienced driver”, see R. v. Evans (1962) 3 All E.R. p. 1086.

I now proceed to examine the evidence and reach my findings in order to answer, what to my mind, are the crucial issues in the case, i.e., (a) and (b) above.

The investigating police officer Lambrianides testified that in his expert opinion the car of accused did not skid. He based this opinion on the fact that he found no tyre marks of such violent skidding on the road. He would also expect a broad collision on the Petrolina Wall of the vehicle of accused.

I do not agree with the opinion of Lambrianides for the following reasons: He arrived at the scene of the accident sometime after it had occurred, and according [*363] to his own evidence, the rain continued falling. It was quite probable, therefore, due to the rain and traffic on the road, that the skid marks were erased. He agreed that the asphalt was slippery and at places muddy from soil dragged by the rain water from the embankments on to the crown of the road. A strong indication also that

the skid occurred, is the other accident which happened in exactly the same circumstances. These are as follows: Whilst the police were

investigating on the spot the circumstances of the present case, a police constable who was directing the traffic on the road, signalled to a lorry coming from the direction of Nicosia to stop. The driver applied brakes and his car skidded for about 300-400 feet, went to the other side of the road, collided with the lorry of accused, which was stationary at its resultant position after the material to these proceedings collision, and resulted in a position parallel to it, thus facing Nicosia direction. This clearly supports the allegation of accused that the road was muddy and slippery.

The lorry of accused left a tyre mark on point “G” and on a trunk of a tree at point “H”, which shows that it was heading towards the Petrolina wall and I do not see how it should be expected to collide on it, as police constable Lambrianides said he would expect to happen.

The complainant put forward a very important allegation which, I regret to say was not properly investigated. He alleged that he saw the lorry of accused turning from its [*364] proper side of the road to the right, it then reversed inside the cafe’s yard at point “I”, and then came backwards at a tremendous speed thus going with its rear part against his lorry. To avoid the collision, so his allegation proceeds, applied brakes and nearly brought his vehicle to a standstill but the vehicle of accused continued reversing until the collision occurred.

Apart from the evidence of the complainant on this issue there is no other evidence. The real evidence which would help the Court to check the allegation of the witness are lacking. With some more diligence, however, on the part of the investigating authorities, probably this evidence would have been forthcoming. There was a tyre mark on the tree trunk; if the tyres of the vehicle of accused were examined probably the corresponding mark on them would have been found. If that mark was on the left tyres of the lorry, then it would mean that from that point at least it was going backwards. If on the other hand the marks were found on the right tyres, it would mean that the lorry reversed after that point and the allegation of accused would have been supported.

P.C. Lambrianides admitted that accused, when asked by himself at the place of the accident, how it had occurred, he put forward the allegation of skidding on the mud. He Insisted on that allegation in his reply to the formal charge (see exhibit 3). He also insisted on it in his evidence on oath. The prosecution, however, did not adhere to the opinion of Lambrianides and accepted [*365] the fact that the car of accused skidded but submitted that the skid was due to the fault of accused.

Having considered very carefully the evidence on this issue, I find that the lorry of accused had in fact skidded and I, therefore, proceed to examine the second issue, that is, whether the skid occured due to any want of precaution on the part of accused. In this respect there is only the evidence of accused who described how the skid was brought about. Contrary to the allegation of accused is the evidence of the complainant who alleged that after the lorry of accused had reversed it proceeded backwards for quite some distance before it stopped due to the collision. If the allegation of the complainant would be accepted, then there would be no doubt that accused was guilty for want of precaution because, although the skid had occurred, he had a duty to correct it by bringing his vehicle to a standstill instead of allowing it to proceed backwards. He had both the time and the space to do that.

What I have, therefore, to decide is whether I accept the evidence of accused or that of the complainant. As I have said before, the real evidence before me do not help me at all in deciding this issue and I must therefore rely completely on the credibility of the witnesses. I have examined the evidence of accused and that of the complainant with great care. The evidence of accused regarding the skidding have already been accepted. He admitted that the speed of his vehicle before the collision [*366] was 30-35 m.p.h. I have no other evidence regarding the speed of the vehicle of accused and in the circumstances I cannot say that the speed at which accused was travelling was particularly high in view of the fact that the lorry was unloaded and was driving on a highway.

Having considered most carefully the evidence as a whole, I cannot exclude the version of accused and I am not ready to act and convict accused only on the evidence of the complainant. In the circumstances I find that the prosecution have not proved any element of negligence as required by section 210 to sustain the charge and, I, therefore, acquit and discharge accused.

Accused acquitted and discharged.

*Vide (1974) 1 J.S.C. p. 5.