REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE H.C.A. 46 of 2003 BETWEEN TEWARY TOTA MAHARAJ v AUTO CENTRE LIMITED Plaintiff ANDRE RICHARDS & BEACON INSURANCE COMPANY LIMITED Defendants Before the Honourable Mr. Justice Peter Rajkumar Appearances: Mr. Asaf Hosein for the Plaintiff Mr. Lennox Sanguinette for the Defendants JUDGMENT Facts. Arvind Tota Maharaj (“the Deceased”), died on 9th January 1999. The accident occurred while the Deceased, was crossing the Priority Bus Route, Tacarigua in the vicinity of the intersection of the Priority Bus Route and the Orange Grove Road. It is not in dispute that he died as a result of a collision (“the collision”) with motor vehicle RAZ 4664 driven by the Second Defendant. The Third Defendant is the insurer of the First Defendant. The First Defendant is the owner of the motor vehicle RAZ 4664. There is no issue in the Witness Statements as to whether or not the Third Defendant is the insurer of the Second Defendant. Issue. It was contended that the Deceased’s own negligence wholly caused the collision and inter alia that he crossed or attempted to cross the roadway at a time at which the conditions of traffic made it unsafe to do so. It was also contended that the Deceased failed to pay any regard to his own safety, failed to keep any proper lookout, or that he ran across the road into the path of RAZ 4664. The issue therefore is whether the collision occurred as a result of the negligence of the Second Defendant in driving, management of or control of motor vehicle RAZ 4664, or whether the Deceased’s own negligence wholly caused the said collision. Contributory negligence was not pleaded. Neither was inevitable accident. Disposition The Court finds that in the circumstances the deceased was not negligent in whole or in part, and liability for this collision resides with the driver of RAZ 4664. Analysis. The evidence An inquest was held into this incident before the Coroner’s Court. (i) It was agreed that the notes of evidence of that inquest would be admitted into evidence by consent. (ii) Witness Statements were filed on behalf of the Defendants by the Second Defendant and by Phyllis Murray. (iii) In addition, two of the witnesses who had testified at that inquest were called on behalf of the Plaintiff: (a) Camille Richardson, who was a driver of a vehicle at the scene of the accident, and (b) Acting Assistant Superintendent Koon Koon who was one of the investigating officers appointed to investigate incident. (iv) On behalf of the Defendants, the Second Defendant alone testified. Phyllis Murray did not attend for cross-examination. It is, therefore, necessary to consider the evidence of each witness and in particular how such evidence assists the Court many years later in determining whether the Second Defendant was responsible for the demise of the Deceased or whether, as contended by the Defendant, the Deceased was wholly responsible for his own demise by crossing the roadway or attempting to cross the roadway at a time when it was unsafe to do so, or by running across the road and into the path of RAZ 4664. the circumstances surrounding the The following further facts were not in dispute: (1) That the Deceased attempted to cross the roadway from north to south. Before he completed that crossing, upon the traffic light controlling the intersection changing from red to green in relation to westbound traffic, he reversed course or turned around and attempted to run back to the northern pavement. (2) The Deceased was wearing dark clothes at the time. Oral Evidence of Camille Richardson. This witness was evasive and uncooperative in the extreme. She made it quite clear that she had no wish to testify. She claimed not to remember facts and appeared to make no effort to do so. It was necessary for Counsel to draw her attention to evidence that she had given before the Coroner’s Court, which evidence she did not resile from. Her evidence before this Court was to the following effect: (1) That she was driving along the Priority Bus Route heading West. (2) That her vehicle came to a standstill before the traffic light at the intersection of the Priority Bus Route and the Orange Grove Road. (3) That while at a standstill she noticed a pedestrian. She also testified that when she first saw him he was to the front of her vehicle’s right front fender. (4) After a short while, the traffic lights facing her changed from red to green and she moved her foot from the brake to the gas. (5) That when she noticed him, he was close to her vehicle’s right front fender. (6) That when she first noticed him, she was just about to move her foot from the pedal. When the traffic light changed she moved her foot from the brake pedal to the gas then moved her foot back to the brakes. (7) That the pedestrian, (who would have been approaching from the northern side of the road) “attempted to move back from [her] car” and tried “to get back across the road”. By this, the Court understood that he turned and attempted to retreat to the northern side of the road instead of completing his attempt to cross to the southern side. This item of evidence was given by her before this Court. As pointed out by Attorney at Law for the Defendant, this had not been stated by her before the Coroner when she gave evidence. However this evidence is accepted by this Court. Statement of Camille Richardson Ms. Richardson’s evidence before the Coroner was more helpful than it was before this Court. There she stated: (1) (2) (3) (4) (5) That she was driving west along the Priority Bus Route. She was in the left lane heading to Port of Spain. She got the traffic light on red so she stopped. The light changed to green. She was about to drive off when she observed somebody close to her car. She got a glimpse of somebody to the right side of her car. (6) She applied her foot back to the brakes and the next thing she knew, the person got “bounce”. (7) The person was very close to her car. That person was moving south. They were crossing, to the front of her vehicle more to her right. (8) She “mashed back” her brakes because it was clear to her the person was looking to cross the road. (9) The person did not pursue or continue crossing in front of her vehicle. The person froze for a minute. In cross-examination before the Coroner, she made it clear that she was heading west into Port of Spain from D’abadie. To her immediate right would have been the lane heading east. “The first time I saw the person was when he was close to my front fender….. I observed the person and I mashed back my brakes. My foot was on the brakes while I was at the light. The lights changed and I was about to mash the gas pedal, the car moved and I saw him and I mash my brakes again: ……. The car that bounced the person was facing west when I first saw it. He did pass my car a bit. He was a bit in front my car…... I can’t say if this car made any attempt to turn…… I saw the person get bounce. The person froze a bit and next thing there was a bang.” “I saw him [the Deceased] attempt to move back from my car. He did try to get back across the road.” Statement of Phyllis Murray. Also in evidence before the Court was the statement/testimony of a passenger in her vehicle, Phyllis Murray to the Coroner on April 17, 2000. Her testimony was to the following effect: (1) (2) (3) She was a passenger in the vehicle of Camille Richardson. She was in the front seat. They were travelling from east to west and were at the intersection of the Orange Grove Road and the Priority Bus Route. (4) While they were slowing down, because the traffic lights were changing from green to yellow, she observed a male person at the curb on the driver’s side attempting to cross. (5) She commented to the driver, Camille, “what’s wrong with people like them, looking for their death, because this is a dangerous place to cross”. (6) Within a few seconds the lights began to change from red to amber to green; (7) (8) (9) They were on the left lane and he was to her right. She saw him start to walk. He was about an arm’s length from their vehicle. vehicle was barely moving. Their (10) She saw light coming through the rear view mirror. She observed that he looked up at the lights and then he looked east and then he ran back to the curb he came from. (11) He tried to run to the right lane and the car that was coming up hit him. (12) She saw everything. At the time, they were at the traffic lights and moving slowly. (13) When Ms. Richardson came to a stop at the traffic lights, there was no car in front of her on the westbound lane. (14) He was in the lane to her right. She could not say which lane he was in when he was struck. (15) The car (whose lights she saw in the rear view mirror) was coming to overtake them. (16) When she saw the car coming to overtake them, it was at an average speed. (17) She could not say whether the car was going fast, however, because she was not a driver. (18) The front left side of that car by the lights hit the boy. (19) The area is not very bright, nor is it very dark, but there is a big building that gives off a lot of light. (20) Also at that intersection, she noticed street lights lower down closer to the main road. If in fact the evidence of Phyllis is accepted in its entirety as set out, then in fact Camille Richardson would have seen or had drawn to her attention the fact that the Deceased was attempting to cross since it had been the subject of comment and conversation by the two of them. This witness was not present for cross-examination and, accordingly, her evidence, though admitted by consent, at least in so far as it is contained in the Notes of Evidence from the Coroner, must be tested against other objective evidence and undisputed facts. It is necessary to consider this evidence in the context in which the Deceased was allegedly the “author of his own demise” as contended for by the Defendants. Oral Evidence of André Richards. Mr. Richards, the Second Defendant, driver of the vehicle involved, also testified. The Court found that this witness gave his evidence in a straightforward manner, that he tried to assist the Court, that he did not attempt to embellish his evidence and that he tried to clearly make the distinction between matters that he recalled and matters that he did not recall. He freely admitted that he did not have a Priority Bus Route pass but explained that he was diverted onto the Bus Route because of a traffic blockage by “PH” drivers plying for hire along the route he normally would have taken. He therefore took a chance and diverted onto the Priority Bus Route. The Court finds that nothing turns on this, the issue being whether or not while he was on that road his actions could be construed as negligent. In his witness statement he testified that: “On approaching the intersection of the Priority Bus Route and Orange Grove Road, I was travelling at around 40 kilometers per hour. I observed the traffic light was on red and there was another vehicle at the intersection on the extreme left side of the road. When I made that observation I was about 200 – 300 feet away from the intersection. I began to decrease my speed. When I was about 100 feet from the traffic light I observed the light change to green. The vehicle at the intersection started to move off and then stopped again. I put my indicator to turn right on Orange Grove Road. I was travelling about 35 kilometers per hour at that time. Upon reaching close to the vehicle to my left, I noticed a pedestrian facing south as though he was crossing the Priority Bus Route from north to south. He was almost an arms length away from the right front fender of this vehicle and somewhat towards its front. The pedestrian then suddenly stopped, turned around and ran back to the north. I applied brakes and pulled to the right to avoid hitting him but he still ran straight into the left front fender of my vehicle nearer to the left front door. He rolled onto the bonnet of the vehicle then fell off unto the roadway on the left of the car.” He testified in cross-examination: (1) (2) That he was travelling along the Priority Bus Route. That he saw the traffic lights (at the corner of Priority Bus Route and Orange Grove Road. (3) That he first saw them about 400 to 500 feet away, though he made it clear that he was not good with distances; (he said 200-300ft away in his Witness Statement) but I do consider this in the context that he was reconstructing a scene after many years and making estimates in relation to situations that evolved over seconds. (4) (5) That when he first saw those lights, they were on red; That at the time that he first saw the traffic lights, he saw one other vehicle on the Bus Route in front of him. (6) That at the time when he first saw the traffic lights and this vehicle, he was travelling at 35 to 45 kph. (7) (8) That his headlights were functioning properly. That the intersection was very dark and that he would have been very close to the Deceased when he first saw him. He pointed out a distance of approximately 10 feet to the Court. (9) That he could see the tail lights of the car in front of him. (10) That in the intervening 390 feet between when he first saw the traffic light (400ft away) and when he first saw the Deceased (10ft away) he did not previously see the Deceased. (11) That He was about 100 feet from the traffic light when he first saw the vehicle (in front of him) start to move off. He stated: “I would presume the vehicle started to move off because the lights changed from red to green.” (12) He made it clear that he was about 100 feet away from the intersection when the lights changed from red to green and that was about the same time that he saw the vehicle in front of him begin to move off and then stop. (13) He also made it clear that there were no oncoming vehicles and. (14) That the vehicle to his front was not directly ahead of him. It occupied the southern lane. He stated that he was not waiting to cross the intersection, that he was waiting to turn right onto the Orange Grove Road and that everything after the collision was a bit of a blur. He stated that he did not stop at the intersection and that at no point did he get the red light. The Deceased, he said, ran from the southern side into his vehicle. He did not start to turn his vehicle (to make a right turn) as he didn’t get a chance to. He admitted that he was familiar with the fact that a lot of people cross the road to get from one side of the Eddie Hart grounds to the other, but he qualified this by saying “during the day, yes”. He conceded, however, that he was also familiar with the fact that during the night time there would be people crossing this road. Statement of Mr. Richards to Police. In a statement given by the Second Defendant, however, at the Aripo police station on 2nd May 1999, he stated that: “When I was about 80 to 100 feet away from the traffic lights, I saw the light change from red to green. I then noticed another vehicle at a standstill at the intersection facing west. I saw this vehicle start to pull off and then it stopped. I put on my right indicator to turn right to go into Orange Grove Road. I was now travelling at around 35 kph at this time. The vehicle that I saw at a standstill on the Priority Bus Route was occupying the extreme left side of the Priority Bus Route. When I was about 10 feet behind this other vehicle and to its right, I saw a pedestrian facing south as though he was crossing the Priority Bus Route from north to south. He was about an arm’s length away from the right front fender of this other vehicle and somewhat towards its front. I suddenly saw the pedestrian pivot to his left and stopped as though he froze. At that time I started to pull more to my right to put some more distance between the pedestrian and my vehicle. I was also slowing down as I applied brakes. At almost the same point, the pedestrian ran into the left front fender of RAZ 4664 nearer to left front door.” This is very similar to that in his witness statement filed in these proceedings and some of the phrases are identical. It is clear from the evidence therefore that on his own admission, the Second Defendant was travelling at a speed slowing down from approximately 35 k.p.h At 36 k.p.h a vehicle is travelling at 36000 metres per hour (or per 3600 seconds) which is approximately 10 metres per second. At this rate of speed that should have given him approximately (1/3) one-third of a second to react to any person he saw 10 feet away and approximately 3 seconds to react to any person or thing at the intersection 100 feet away. ( maybe slightly more as he was slowing down ) I am mindful that these speeds are approximations based on the imperfect recollection of the witness. He testified that he was approaching a vehicle. In his witness statement he said that that vehicle was occupying the extreme left side of the Priority Bus Route. However, this was contradicted by the evidence of the other witnesses referred to earlier. In that statement, he said that: “I saw this vehicle start to move off and then stopped again.” . It was suggested by Counsel for the Plaintiff that this should have put him upon enquiry, and that he should have exercised caution as a result of this fact alone. It is necessary to return to this later in this Judgment. EVIDENCE OF ACTING ASSISTANT SUPERINTENDENT KOONKOON However, there is further evidence in relation to the point of impact. The following measurements were given in evidence by Acting Assistant Superintendent Koon Koon (hereinafter referred to as “the investigating officer”). He testified that the Bus Route is 48 feet wide at the point of that intersection, that there were three lanes – one for westbound traffic, one for eastbound traffic – and one to the extreme left of the lane for westbound traffic (which was described as the southern shoulder) for traffic turning left (south) onto the Orange Grove Road. To the right, (that is, north) of the eastbound lane, was a shoulder for taxis to drop off and pick up passengers (the northern shoulder). This, however, was not a driving lane for traffic. Further however the Southern shoulder was 12 feet wide. Both East bound and West bound lanes together measure 23ft 7 ins. The Northern shoulder was 12ft 5ins. wide. The Court was therefore required to infer that each lane Eastbound and Westbound would be of approximately equal width, that is, 11ft 9½ inches. Complicating matters slightly is the fact that there was a dispute as to whether or not the point of impact was that allegedly pointed out by the Second Defendant to the initial investigating officer, Corporal Mark, and reflected in a photograph which was tendered into evidence as “KK2” or whether the point of impact was that accepted by him as the one he pointed out to Acting Assistant Superintendent Koon Koon and reflected in a photograph which was tendered into evidence as “KK1”. The point of impact on exhibit “KK1” was on the westbound lane of the Priority Bus Route. That point of impact was 21ft. 11ins. from the southern edge of the Priority Bus Route (which would pIace it on the Westbound lane). The Second Defendant agreed with the point of impact (in his Witness Statement). The point of impact allegedly pointed out by him initially to Corporal Mark (which he denies) was on the eastbound lane of the Priority Bus Route 18ft 8ins. from the Northern side (edge) of the Priority Bus Route. Corporal Mark also measured the width of shoulder (Northern ?) as 10ft and the width of the Priority Bus Route as 46 feet. It can be seen that these measurements differ from those of Acting Assistant Superintendent of Police Koon Koon though they place the point of impact on the eastbound lane a few feet to the north of the dividing line between eastbound and westbound lanes. Findings of Fact - Manner of Impact. It was necessary to set out at length the evidence of the witnesses in relation to how the accident took place in order to extract the common threads from that evidence and to explain the Court’s findings as to how the accident took place. I find as a fact that the Deceased began crossing the Priority Bus Route at that intersection at a time when the lights controlling traffic travelling from east to west were showing red. I find that the Deceased was therefore entitled to be on the roadway at the time when he was, having begun to cross at a time when it was safe for him to do so. I also find that the Second Defendant’s vehicle came into contact with the Deceased when the Deceased was forced to abort his attempt to cross the road in front of Camille Richardson’s (Camille’s) vehicle which had begun to move when the traffic light changed from red to green. It was regrettable that he was not permitted to continue crossing to the Southern side. The Deceased then found himself in the emergency that presented itself with the following options: (1) continuing to attempt to cross from north to south hoping that Camille would stop her vehicle which had already started to move, (2) (3) stopping and remaining perfectly still, or attempting to reverse course. It would have been entirely reasonable for the Deceased not to pursue the first option. The second option may not have been a viable option either for the Deceased since it is unclear whether at that time he was to the front of Camille’s vehicle and in its path wherefore he would have been at the clear risk of being collided with by her vehicle. In fact some of the evidence suggests that he was to the front of that vehicle and in its path at some point. It was an entirely reasonable option, therefore, for the Deceased to reverse course (to get out of the path of Camille’s vehicle). I conclude that the evidence is clear that at the time of collision there was no traffic proceeding from west to east. The Second Defendant admits that there was no oncoming traffic at the time. Therefore, the Deceased, if he had remained in the westbound lane of the Priority Bus Route, could reasonably have expected to be in danger only from westbound traffic , that is Camille’s vehicle and vehicles that were proceeding from east to west behind Camille’s vehicle. Alternatively, if he decided, as he did, to remove himself from the westbound lane and to proceed to the eastbound lane, he could reasonably have expected to be in danger only from eastbound traffic on the eastbound lane. The evidence is that there was no such traffic. In the emergency that presented itself, the Deceased could not have been sure that Camille Richardson was going to apply brakes (as she in fact subsequently did shortly thereafter ). As best can be inferred at this point, based upon the evidence, he would have assumed that if he had continued his attempt to cross the lights in front of Camille’s vehicle that he would have been run over by her. This is the most logical explanation for his spur of the moment decision to reverse course on that road. In fact, the Deceased found himself in collision with the Second Defendant’s vehicle. It is clear that it made contact with him (whether he ran into that vehicle or the vehicle collided with him) via its left front fender. This, therefore, addresses the question of whether the Deceased was 100% negligent by virtue of (a) his position on the road or (b) his decision to reverse course into the path of the Second Defendant. Deceased was not negligent. I find that the In the circumstances of emergency that presented themselves his seemingly illogical act on that night was in fact quite logical and consistent with him taking care for his own safety. Point of Impact. The issue of the point of impact is directly affected by the position of Camille’s vehicle. Was she in the southernmost turning lane as contended by the second Defendant. Camille herself was extremely and curiously unhelpful on this point. Having assessed the evidence as I have set out previously I find on balance, that if Camille were heading West into Port of Spain she would have been on the Westbound lane and not the Southernmost turning lane. There was never any suggestion by her that she was turning off the Priority Bus Route. Accordingly I find that her vehicle was occupying the westbound lane just before the collision. Necessarily therefore the second Defendant would have had to be overtaking her vehicle for his vehicle to have come into contact with the Deceased. This is also consistent with his stated intention to turn right off the Priority Bus Route at that intersection. The Court finds as follows. The first point of impact allegedly pointed out to Corporal Mark is more consistent with the likely course of events, namely: (1) That the Plaintiff on his own admission attempted to turn right, that is, north onto the Orange Grove Road. (2) That in so doing, he would have been approaching from behind and to the right of Camille’s vehicle. Camille’s vehicle was in the westbound lane and not on the southern shoulder of the Priority Bus Route. (3) That it would have been reasonable for the Second Defendant to have approached from behind Camille’s vehicle, slowing down and making a turn from the westbound lane. Instead he came out of the westbound lane into the eastbound lane overtaking Camille’s vehicle .He thereby placed his vehicle in a position that the Deceased was entitled to expect would not be occupied by a vehicle coming from the east. I also find that it is conceivable though less likely that the point of impact was as pointed out to the Acting Assistant Superintendent of Police Koon Koon – that is on the Westbound lane – 21ft. 11ins.from the Southern edge being 9ft. 11ins. into the Westbound lane which in all probability was 11ft 9½ins. wide. Counsel for the Plaintiff contended that either point of impact would have placed part of the Second Defendant’s vehicle on the eastbound lane, that his position on the eastbound lane was best explained by the fact that he would have been overtaking, that in so overtaking, especially approaching an intersection where the light had just changed from red to green, that he had a duty to ensure that the intersection was clear of both traffic and pedestrians and that he was in breach of that duty. Counsel for the Defendant, however, contended that the Second Defendant had a perfectly good explanation as to why he was partly on the eastbound lane, namely: (1) he had swerved to the right to avoid hitting the Deceased, not expecting the Deceased to have reversed course and to have begun to move to the northern side of the road and/or, (it is not clear whether this was an alternative submission but I treat it as such) (2) that the Second Defendant was entitled to begin to make his turn north onto the Orange Grove Road from the Priority Bus Route at the traffic light as there was no oncoming traffic and he could reasonably have expected it to be safe and for the intersection to be clear as at the time that he began his manoeuvre to the right, the Plaintiff would have been crossing in the opposite direction, that is, towards the southern side of the road. Factors affecting visibilty (1) Whether the area was lit. It was not possible to say whether there was, at the particular point where the impact occurred, lighting from bright lights from adjoining buildings. (The photograph tendered into evidence does show a street light. The evidence was also that there was a building in the vicinity that gave off some light. It was not very dark not very bright). In any event, however, nothing much turns on this as the Second Defendant states that he had his headlights on and they were functional. (2) The Deceased was wearing dark clothes. The Court finds that nothing much turns on this as the Deceased was lawfully crossing the road and, therefore, had not posed a danger to himself or to oncoming traffic by the circumstances in which he crossed the road. While it may have enabled the second Defendant to see him more easily if he had been wearing lighter coloured clothes, the deceased had a legitimate reason for being on the roadway where he was.. The second Defendant had a duty being out of his own lane, whether wholly or partly to exercise greater caution and maintain greater vigilance precisely for the potential and foreseeable contingency of a pedestrian emerging from the front of Camille’s vehicle which was at that time stationary at a green light. Whether the second Defendant’s rate of speed was excessive in the circumstances (3) I find that the Second Defendant, was not exceeding the speed limit, and was probably slowing down to some extent to make the right turn at the intersection. I so find because (i) there is no evidence that brake impressions were made by any sudden application of brakes by the second Defendant (ii) because there is no evidence of any damage to the vehicle involved as would be consistent with a high impact collision, (in fact the evidence on the record is that there was no such damage) and (iii) I find that the vehicle did not travel very far after the collision, just beyond the intersection (and not as far as 75ft. claimed by Corporal Mark before the Coroner) I turn to the circumstances. These were, that he was approaching an intersection, was about to make a right turn and had evaded the necessity of slowing down behind Camille’s vehicle by swinging out to the right of her in order to make that turn without slowing down. In itself, I find that would not have been a negligent act, but in the circumstances where Camille’s vehicle had started and then stopped, he should have been put upon enquiry that there was a reason for her to be stationary at a green light. He should have slowed down in the event that that reason happened to be an obstruction in the road or, as it turned out, a pedestrian. He had a duty to ensure that the intersection was clear, the lights having changed from red to green; and in the circumstances he should have kept a better lookout or paid greater attention to the fact that there was a vehicle at a standstill in the lane directly ahead of him. His options were (1) to slow down and come to a halt behind that vehicle. (2) Alternatively, if he chose not to do so but rather pull to the right of that vehicle into the eastbound lane to make and complete his turn northwards onto the Orange Grove Road, he had a duty to ensure that it was safe to do so maintaining a proper lookout and driving at a rate of speed in those particular circumstances that would have entitled him to evade the foreseeable and equivalent danger of a pedestrian crossing from south to north in front of Camille’s vehicle. Evasive action taken by the Second Defendant Does it make a difference that as the second Defendant claimed, the Deceased froze and then turn and ran into the path of his vehicle?. I hold that it does not. This case is quite different from one where a pedestrian wearing dark clothing suddenly dashes across a highway into the path of an unsuspecting motorist who has no chance to avoid him. The distinguishing circumstances are: (i) (ii) This collision took place at a traffic light, The second Defendant knew persons crossed there at least in the daytime, (iii) (iv) The lights had just changed, There was a vehicle at a standstill before a green light in front of him, (v) He was manoeuvring or preparing to manoeuvre out of his own lane, (vi) He saw the deceased an arms length away from Camille’s vehicle and somewhat towards the front. At that point the option of overtaking Camille’s vehicle should have been aborted. If his speed permitted he should have tried to come to a stop before reaching the deceased. The fact that the manoeuvre he implemented was to apply brakes and pull to his right to put some more distance between the deceased and his vehicle suggests that he was travelling at too great a speed in the circumstances to halt in time to avoid a collision. Contributory Negligence Contributory negligence was not pleaded by the Defendant In those circumstances this defence in reduction of the Plaintiff’s liability would not have been open to the second Defendant. Fookes v Slaytor (1978) 1 All ER 1293 See also Charlesworth on Negligence para 3 – 13 p. 198 11th Ed. “If the Defendant intends to rely upon averments of contributory negligence, such allegations must be specifically pleaded. In the event of a failure to plead them, the trial judge is disentitled to apportion liability between the parties of his own motion and there is no obligation upon him to take contributory negligence into account.” In any event as I have expressly found, the plaintiff was not negligent. He was entitled to expect not to be in further danger from westbound traffic if he reversed course while crossing and posed no danger or obstruction to westbound traffic that remained in the westbound lane. In the circumstances, on a balance of probabilities, the Court finds that there was sufficient evidence of negligence on the part of the Second Defendant as to render him liable for the collision. The Court is of the view that these circumstances were unfortunate and unusual and that the actions of the Deceased were not such as to constitute dangerous driving in the criminal sense of the word. However, (on a balance of probabilities), they were sufficient to constitute him liable in negligence for the purpose of civil liability, and the Court so finds. Accordingly there will be Judgment for the Plaintiff with damages to be assessed against the Second and Third Defendants. The Second and Third Defendants are to pay the Plaintiff’s costs certified fit for advocate Attorney. Liberty to Apply. Dated this 12th day of February, 2008. Peter A. Rajkumar Judge.