clr/1962/1962_1_1.pdf

(3)of the Courts ofJusticeLaw, I960 (Lawof the RepublicNo. 14of I960)—Negligent crossing of the roadby pedestrians The appellant (the first named defendant in this action) was found liable by the trial Court for damages in respect of the injuries caused to the respondent-plaintiff who was knocked down by the motor cycle which belonged to the second defendant and driven by the appellant. Against this decision the defendant No. I now appeals on the ground that there was no evidence t o support the finding of the trial Court that he was guilty of negligence. The High Court considering the evidence found there was no negligenceonthepart of the appellantdefendant No. I and allowed the appeal. Held. {VASSIUADES J paitly dissenting) • (t) There was a clear caseof negligence on the pareof the respondent-plaintiff

(2)It isestablished by the evidence that when the appellant was ten yards from the respondent there was sufficient room for the former to pass,but at that crucial moment the respondent proceeded to cross the road. In other words he moved A R I F AHMED MEHMET PORTOKALLIS V. LEFTERIS HJI THEODOSSI 1961 Nov. 8, Dec. II laterally across the space of gap between the two groups of pedestrians. ARIF AHMED MEHMET PORTOKALLIS

(3)Whatever the appellant was guilty of, he was not guilty of fading to keep a proper look out. V.

(4)What the trial Court found as a fact was that when some ten yards away from the pedestrian the motor cyclist (the appellant),who wastravelling at aspeedthat is not clearly found bythe trial Court or deposed t o byanyof the witnesses, observed a gap. He drove at sortie speed towards that gap and at that moment the respondent's negligent crossing of the road blocked the opening and that was the result ofthis collision taking place. LEFTERIS HJI THEODOSSI

(5)The net point is or wasit ID those circumstances unreasonable for the appellant on his motor cycle to have failed t o avoid colliding with the pedestrian? The matter Is to be decided not on the basis of what an expert like Sir Malcolm Campbell would or could have done but what an ordinary reasonably competent motorist In these circumstances might be expected to do. W e are unable t o agree that the motor cyclist in the circumstances was unreasonable or negligent. It seemed that the accident was caused by the unexpected and abrupt crossing by the respondent-plaintiff of the road in a lateral direction right across this gap, without warning and only a short distance in front of the defendant. In the circumstances we decide that the finding that the defendant was guilty of negligence Is without evidence. Appeal allowed. Judgment for the defendant with costs. Per VASSIUADES J., In his dissenting Judgment: I am Inclined t o the view that this Is a proper case for an order of retrial by the Court which heard the action. Section 25

(3)ofthe Courts ofJusticeLaw, I960,was,In myopinion.Intended t o give this Court, asthe Highest Court of Justice in the new Republic of Cyprus, regarding claims of this nature, very wide powers, including the power to order a retrial, where the circumstances of the casejustify, in the opinion of the Court, the taking of such course. Appeal. Appeal against the judgment of Ihe District Court of Larnaca (Attalides, P.D.C. and Zihni, D.J.) dated the 3rd 2 May, 1961(Action No. 280/60) whereby the sum of £725.500 mils; with costs, was awarded as damages in respect of the injuries caused tothe plaintiff bya motor-cycle driven bythedeferidant.. Ali Danafor the appellant. George Uidas for the respondent. Thefacts sufficiently appear inthejudgment delivered by: O'BRIAIN, P.: *ϊη this case the first-named defendant was found liable by,the trial Court for damages in respect of the injuries caused ,to the respondent-plaintiff who was knocked down by.the motor cycle which belonged tothe second defendant anddriven by the first-named defendant. Defendant No. 1appeals on the^ground that there wasno evidence tosupport the finding of the trial Couffthat he wasguilty of negligence. ".„ In thecircumstances found by the trial Court, I think, the case is reasonably; clear. Λ %A case was made-on behalf of the plaintiff, .alleging circumstances which"! may summarize by saying that-, it would beacaseofres ipsaloquitur. Italleged that defendant's' motor cycle was driven right off the road onto the Ohtoon which the plaintiff at the time was a pedestrian. There it, struck andinjured the plaintiff. * As 1read thejudgment, this case wascompletely rejected by the trial Court and the learned judges, in my opinion, quite propelly took the view that the plaintiff himself was guilty of negligence. In thejudgment they state in consider-, able detail the case pro and contra. They proceeded then to consider what evidence istobeaccepled bythe Court. They rejected theevidence of the plaintiff and' his witnesses other than P.W.I, andtheir findings as set oulat page 33of their judgment, read asfollows (Para. B): "We, theiefoie, find thai at the lime when theaccident happened theplaintiff was onthemud and\\;is;iileui|>ting tocross theroad to theother side in order tojoin his companions on the right hand >ide of theroadand while doing so the motor cyclist hit him andwas ilnown at point ' Conthe sketch plan and wasseriously injured. The plaintiff himself stated that though he heard llie 3 1961 ., Nov; 8," Dec. 11-' "ARIE-'AHMFD MEHMLT . POKTOKALIIS LrtTtRIS H J I TlH-ODOVil 1961 Nov. 8, Dec, Jl ARIF AHMED MEHMET PORTOKALLIS V. LEFTERIS HJI THEODOSSI O*Briain,P. noise'of the motor cycle coming from behind he did not look back at all and continued in his way'1. I must confess I find myself entirely in agreement with the trial Court that on that finding there was a clear case of negligence on the part of the plaintiff. Then the learned judges go on to say : "Defendant I was travelling on a straight road. He saw the party of men from a considerable distance and in spite of that and in spite of the fact that he was a learner he failed to slow his motor cycle to an extent which he could control". That as I read it is an indication that whatever he was guilty of, he was not guilty of failing to keep a proper look out. He saw the people ; he saw the emergency which in the opinion of the trial Court was about to arise, and they say he failed to slowhis motor cycle. That ischallenged here : "There was sufficient .room for him to pass when he was 10yards behind the plaintiff when the plaintiff attempted to pass to the other side of the road". That is a finding of fact. I should say that I agree with it and I think it is established by the evidence that when he was 10 yards from the plaintiff there wassufficient room for defendant to pass, but at that crucial moment the plaintiff proceeded to cross the road. In other words he moved laterally across the space or gap between the two groups of pedestrians. Now, at page 34 of the judgment, paragraph *A*which is as follows, is challenged : "We find it as a fact from the evidence that both plaintiff and defendant 1were to blame. Since the plaintiff was about to cross the road from one side to the other without looking behind him to see whether it was safe for him to do so after hearing of noise of a motor cycle and since defendant I was not driving his motoi cycle as a prudent man could do wc find lhat both are equally to blame'*. I must confess that it seems to me lhat what they found as a fact was that when some 10yards away from the pedestrian the motor cyclist, who was travelling at a speed that is not 4 clearly foundry the trial Court or deposed to by any of the witnesses, observed a'gap. He drove at some speed towards that gap and at that moment the plaintiff's negligent crossing of the road blocked, the opening and that was the result of this collision taking place. •*- *The net point isor wasit inthosecircumstances unreasonable for the defendant,on his motor cycle to have failed to avoid colliding with the pedestrian. .The matter is to be decided 'not on the basis of what an expert like Sir Malcolm Campbell would or could have done but what an ordinary reasonably competent motorist in these circumstances might be expected to do. 1 find myself unable to agree that the motor cyclist in the circumstances was unreasonable or negligent. It seems to me that the accident was caused by the unexpected and'abrupt-crossing by theplaintiff of the road in a lateral direction right across this gap; without warningand only a short distance in front of the defendant. In the circumstances I am of opinion that that finding that the defendant was guilty of negligence is without evidence. 1 would, therefore, allow this,appeal. ZEKIA, J. : I agree with' the judgment given by the learned.President,pand^have only a few words to add as to whether this is a proper case for a new trial. I am satisfied after going through the authorities that this is not an instance which may come within the recognised principles governing orders for retrial. In this connection one may usefully refer to pages 473-477 of Halsbury's Laws of England, 3rd Edition,-Vol. 30, entitled "When New Trial will be granted". • VASSILIADES, J. : I am inclined to the view that this is a proper case for an order of retrial by the Court which heard ' the action. Section 25

(3)of the Courts of Justice Law, 19fi

1. was in my opinion, intended to give this Court, as the Highest Court of Justice in the new Republic of Cyprus, regarding claims of this nature, very,wide powers, including the power to order a retrial, where the circumstances of the ease justifv, in the opinion of the Court, the taking of such course. In this case, thejudgment of the irin! Court seems to me rather an attempt" to find a fair and reasonable settlement of the dispi tc, considering the gr;i\e injuiiesol* the plaintiff. than ajudicialdecision-on the issues raised by the pleadings. 5 1961 Nov.
2. Dec. 11 A W F AHMED MEHMET PORTOKALUS V. LEFTERIS H J I THEODOSSI O' Briain, P. 1961 Nov. 8; Dec. 11 AMP AHMED MEHMFT FDRTOKALLIS Ψ. LEFTERJS H J I THEODOSSI Vassiliades, i. The trial Court apparently took the view that both the driver and thepedestrian were somehow to blame ; and that they should shareequally theblame for theaccidentas wellas theconsequences resulting therefrom. And upon this view, the Courtmadetheirfindingsof fact in thejudgment. In my opinion this was a wrong approach. The Court should have proceeded first to make their findings from the evidence on the issues of fact raised by the pleadings, and thenshould proceedtodecideonthefacts sofound, themerits of the claim and the liability, if any, of the defendants. Tn this respect the judgment is, in my opinion, unsatisfactory and makes a proper case for an order of retrial by the same Court. I may moreover say that in my view there is more subs­ tance in the claim against the second-defendant, the owner of thevehicle, than thetrial Courtseemed tohave thoughtin the last part of theirjudgment, against which therespondentplaintiff has cross-appealed. In the circumstances, I would set aside the whole judg­ ment and make an order for retrial of theaction by the same Court under section 25

(3); with costs in cause. JOSEPHIDES, J. : I agree with the judgments delivered by the learned President and Zekia, J. I am satisfied that on the findings of fact made by the trial Court it has not been proved that the defendant was negligent. As to the question of retrial, Mr. Ladas for the respon­ dent, frankly admitted that he did not ask for it in his crossappeal ; and that it only occurred to him to do so in the course of the argument. But the grounds put forward by him do notjustify themaking of an order of retrial. I would allow the appeal and dismiss the cross-appeal. O'BRIAIN, P. : In the result the appeal is allowed and judgment entered for the respondent, with costs. Appeal allowed. Judgment for the defendant with costs. 6