Fiona Miller v Dennis Webb

• Jurisdiction: Bermuda
• Judge: S. Subair Williams J
• Judgment Date: 15 October 2020
• Court: Supreme Court (Bermuda)
• Docket Number: APPELLATE JURISDICTION
• Date: 15 October 2020

In The Supreme Court of Bermuda

APPELLATE JURISDICTION

2019: 47

Fiona Miller

(Police Sergeant)

Appellant

and

Dennis Webb

Respondent

Appellant Mr. Alan Richards for the Director of Public Prosecutions

Respondent Ms. Susan Mulligan ( Christopher's)

Prosecution's Appeal against finding of No Case to Answer in the Magistrates' Court

Causing grievous bodily harm by driving without due care and attention

Meaning of grievous bodily harm and meaning of careless driving

Sections 37A of the Road Traffic Act 1947

JUDGMENT delivered by S. Subair Williams J

S. Subair Williams J

Introduction

1 This is an appeal by the Crown against Acting Magistrate's Leopold Mill's finding of no case to answer on Information 18TR04170 to a charge of causing grievous bodily harm by driving without due care and attention contrary to section 37A of the Road Traffic Act 1947 (“RTA”).

2 By Notice of Appeal filed on 13 December 2019 the Crown has appealed this decision under sections 4(1)(a) and 4(2)(a) of the Criminal Appeal Act 1952 on the ground that “the Learned Acting Magistrate Mills erred in law when he found there was insufficient evidence on which a trier of fact, properly instructed, could convict…”.

The Evidence

3 The Crown called two live witnesses at trial, namely the Complainant Ms. Sherrylnn Farrell and an eye-witness civilian witness, Ms. Helen Dill.

4 The Complainant is noted on the Record of Appeal (“the Record”) to have described the 13 March 2017 collision during her evidence in chief as follows:

• “7 left home to go for a walk, about 5:50am, by the time I reached the East Broadway area, my pace had slowed. I was walking west and was knocked down along the bottom of Spurling Hill. I had just passed the center of the line when I was knocked down. I had looked both ways and I saw the other witness coming down the hill as I was going across; she was in a taxi; I was at the dotted line at the foot of Spurling Hill…I remember landing close to the sidewalk, about 2 feet from it. I remember Mr. Webb being about 10 feet away from me and I remember him saying ‘lady, I didn't see you.’ I also remember the other witness, Ms. Dill, asking me for a phone number and I gave her my brother's number; it was a bit of a blur; I recall the ambulance being there…”

5 For visual aid purposes, photo images of the junction between Spurling Hill and Front Street were placed before Acting Magistrate Mills. Exhibit IF [page 120 of the Record] closely depicts a sidewalk railing at the bottom of Spurling Hill at the edge of the double white line on the road and near a streetlight pole. As the Complaint crossed the road starting from a point near the streetlight pole, she walked on the path of the double dotted and single dotted line.

6 In crossing the street at the foot of Spurling Hill, the Complainant stated that she looked towards both directions. She said that she saw a taxi travelling down Spurling Hill as she was walking across the dotted line. She further described, when cross-examined, that she recognized the taxi driver and made a ‘back-wave’ hand-gesture to the taxi driver while she walked across the street. Ms. Mulligan put it to the Complainant in cross-examination that she had to cross the road quickly to get out of the pathway of the taxi coming down Spurling Hill. However, the Complainant disagreed stating that when she greeted the taxi driver, the taxi was at the top of Spurling Hill at such a distance from her that it was unnecessary for her to walk at any fast pace.

7 The Complainant's evidence was that immediately prior to the moment of impact she was already halfway across the road and that the Appellant's vehicle hit her from behind. This part of the evidence was unchallenged at trial. Also without controversy, the Complainant described the traffic to be light around the time of the accident. She further stated that it was still ‘a bit dark’ but that the street lights were on as the sun had just started to rise.

8 During Ms. Mulligan's cross examination of the Complainant at trial, the Complainant was challenged on the safeness of her decision to walk across the bottom of Spurling Hill [pages 24–27 of the Record]:

“…

Question: You recall Mr. Webb saying ‘lady, I didn't see you’; but did you see him?

Answer: When I looked back, I didn't see any traffic at that time.

Question: You said there was a cross-walk and a dotted line?

Answer: The cross walk was not where I was crossing, it was further ahead.

Question: Do you know what the dotted line on the road means?

Answer: My interpretation of the dotted line means ‘cross carefully.’

Question: Would you agree that, if it was a cross-walk, it would look like the one further across the road at the bottom of Spurling Hill?

Answer: I would agree that any pedestrian on the road has the right-of-way.

Question: My question was if that was meant to be a cross-walk, it would be laid out the same way.

Answer: I got struck from behind; I'm not endangering anyone?

Question: Did you start out walking on the white dotted line?

Answer: Yes.

Question: And it's the same white dotted line at the bottom of Spurling Hill?

Answer: Yes

Question: Did the dotted line extend, easterly?

Answer: Yes

Question: In your recollection, is there any barrier along the east side of the road?

Answer: I don't recall seeing a barrier but there is a sort of hand-rail but that is further up

Question: If the dotted line means ‘cross with caution’, what does the double dotted line mean?

Answer: The same.

Question: Are you sure what it means?

Answer: I assume it means just to cross with caution.

Question: The metal railing on the east side of the road from where the double lines start, what was it there for?

Answer: So you wouldn't be confused as you go up the sidewalk; there are a lot of reasons why the rail would be placed there.

Question: Did it occur to you that the… [reason the handrail] was there was because it was unsafe to cross there?

Answer: I didn't know that and there was no sign saving [sic] [saying] ‘do not cross'…

Question: I suggest that the single dotted line and double-dotted lines are not markings for pedestrians.

Answer: I don't know — I didn't see anything wrong with crossing there;

9 Ms. Dill's description of the accident given in evidence in chief was unchallenged by the Defence [pages 32–33 of the Record]:

“I'd just dropped off someone in Hamilton and as I was coming down Spurling Hill, I noticed a young lady on the sidewalk — at the end of the sidewalk on the right-hand side; as she was stepping to go across the street; she was looking at me to make sure I was looking and that's when I heard her scream and I jumped out; she was in a split position; her leg was split open- the back of her calf; I noticed that her hand was very disfigured; I then called 911 for the ambulance….

Question: When you first saw the lady, where were you?

Answer: As I was driving down the hill, she was looking like she was wanting to cross the street;

Question: Where were you when you first noticed the bike?

Answer: When she was walking up and trying to cross;

Question: When the accident occurred, where was the young lady?

Answer: I can't say I saw the rider hit the lady, but I did hear the collision; I

reached the bottom of Spurling Hill, stopped and got out of the taxi;

Question: You said you didn't actually see the collision view?

Answer: Yes

Question: Where was the lady before the collision?

Answer: The lady was in the road when the collision occurred”

10 A notice of the agreed facts in this case was filed pursuant to section 30 of the Evidence Act 1905 (“the Agreed Facts”). The Agreed Facts broadly surmised the general layout and road signage where the collision occurred. Paragraph 4 of the agreed facts reads:

• “4. In relation to the junction at Front Street and Spurling Hill;

  • a. The broken double line near the junction of Crow Lane where motorists are leaving Spurling Hill is part of the Give Way road markings. These double white lines indicate the furthest point of travel and motorists are to give way at this point unless the Crow Lane is clear.

  • b. The single broken line between Spurling hill and Crow Lane it [sic] [at] the edge of Crow Lane roadway. This line provides alignment for motorists to keep in their lane when departing from Front Street.

  • c. The hand railing is put in place to discourage pedestrians from crossing this location. Motorists traveling down along Spurling Hill tend to look to the right so they most likely will not see a pedestrian near this give way markings [sic]. This railing system directs pedestrians to travel uphill so that they can use the traffic signals on top of Spurling Hill to cross this street. As well as move away from this Give Way, and junction.

  • d. Additionally if there is traffic queue on Spurling Hill waiting behind this Give Way, the vehicles will hide pedestrians and make visibility impossible for motorists approaching Spurling Hill from Front Street to see them trying to cross this street. This will make this section of [the] street dangerous as a cross walk location. However, if a pedestrian decides to cross at this location they do so at their own peril and clearly have not considered this fencing device in place here.

  • e. There is one warning sign posted to alert motorists [that] there is [a] cross walk ahead on Front Street. This is warning motorists about the cross walk at the Crow Lane and Front Street junction. Motorists are required to take notice of this warning regardless of [the] road way they wish to travel and therefore need to take necessary steps to watch out for pedestrians.”

11 It was also agreed by both sides that the Appellant was the rider of motor cycle BS359 at the time of the collision and that such collision was visually captured by CCTV motion sensor cameras obtained from Mr. Mark Eldridge,...