I WILSON, P.. ZI:KIA, VASSII.IADKS and JOSEPHIDES, JJ.] H A U L KEMAL, Appellant HALIL KEMAL (Defendant), v. GEOROHIOS Μ . Κ ASTI v. G I O R G H I O S M. KASTI, Respondent {Plaintiff). (Civil Appeal No. 4382). Civil Wrongs—Negligence—Personal Injuries—General DamagesQuantum—Specialdamages—Cannot be chimed or awarded for a period after conclusion of the hearingof the action. Practice—Special damages—Procedure to be followed. r Practice—Amendment of pleadings—Civil Procedure Rules, Order2S, r.I—Duty to file withthe Registrar amended pleading. The respondent sustained personal Injuries on a road acci dent due to the negligence of the appellant. He was awarded £1500 general damages, plus £1806 special damages covering the period between the date of the accident (i.e. 12/9/59) and the delivery of the Judgment (i.e., 16/6/62). Judgment was delivered many months^after.the conclusion of the hearing of the action (i.e., 22/12/61)". On appeal by the Defendant both on the Issue of negligence and the quantum of damages, the High Court, upholding the judgment of the trial Court on the issue of negligence and the quantum of general damages, and, partly reversing it, on the issue of special damages. Held : (I) As regards the period from 12/9/59 to 12/9/60 (52 weeks) loss of wages at £12 per week : This is the period from the date of the accident and the delivery of the statement of claim ; it is clear that the plaintiff is entitled to recover judgment on theamount now claimed by thestatementofclaim
(2)As regards the period from 22/12/61 to 16/6/62 at £12 per week : This is the period between the conclusion of the hearing and the delivery of the judgment:. It is well-settled that nospecial damages in respect of a period after the date of the hearing of the action can be recovered. Consequently, the sum representing this period will have to be deducted from the judgment of the trial Court.
(3)As regards the period from 12/9/60 to 22/12/61 at £12 317 1962 Dec. 13 1962 Dec. Π HALII KLMAI l'.' < jHUM·Η(OS Μ KAMI per week : This Is the period f r o m the date o f the filing of the statement of claim t o t h e date of t h e conclusion of the hearing and is not included in the statement of claim, and no objection was taken t o the admission of evidence on this point. The trial C o u r t awarded the sum claimed in respect of this period (in addition t o t h e o t h e r t w o periods) after allowing the amend ment o f the statement o f claim o n t h e application o f plaintiff's counsel. The C o u r t had p o w e r , under O r d e r 25, rule I of the C i v i l Procedure Rules, t o allow the amendment o f the statement of claim ; and such an amendment was necessary as otherwise the plaintiff w o u l d not be e n t i t l e d t o judgment in respect of t h e aforesaid period and his judgment w o u l d be bad t o that extent.
(4)The plaintiff, however, failed t o have his statement of claim actually amended and filed in C o u r t . For this reason w e n o w direct t h a t an amended statement o f claim w i t h a formal order shall be filed in C o u r t and that until such amended pleading and o r d e r are filed the execution of t h e judgment is suspended.
(5)W h e n e v e r a C o u r t amends a pleading it is the d u t y o f a party in whose favour the amendment is made t o file w i t h the Registrar an amended statement of claim o r defence, as t h e case may be, so t h a t t h e record is in o r d e r . This has been stated over and over again by this C o u r t , and if any a u t h o r i t y need be quoted that is the case of London Passenger Transport Board v. Moscrop
(1942)A.C. 332. Appeal against negligence and general damages falls but as regards special damages appeal succeeds for the period 22.12.61 - 16.6.62 to be deducted from judgment. District No alteration of Court costs but each party to bear own costs in the appeal Cases r e f e r r e d to :— Cbattell v. Daily Mail
(1901)18 T.L.R. 165 : ί>ν3ΛΤΛ'> Wyatt v. The Rosberviite Gardens Co.
(1886)2 T.L.R. 282 ; 318 Modera v. ModeraondBarclay
(1893)10T.L.R. 69 ; London Passenger Transport Board v. Moscrop
(1942)k.C. 332 ; 1962 Dec. 13 HAUL KVMAI, v. The Dictator
(1892)9 T.L.R. 64. Appeal. Appeal by defendant against the judgment o f the District < ourt o f Nicosia (V.R. Dervish, P.D.C. and L. Savvides, D.J.) dated the I3lh A p r i l , 1962 ( A c t i o n N o . 2343/60) whereby judgment was given for plaintiff in the sum o f £3,306.— plus £27.350 mils costs in an action f o r damages f o r negligence, arising from a road collision. A. Berberoahhu for the appellant. A. Triantajyilulcs for the respondent. The facts sufficiently appear in the judgments delivered by VASSILIADHS, J. and JOSEPHIDES, J. W I L S O N , P. : M r . Justice Vassiliades and M r . Justice Josephides w i l l give the reasons for judgment in this case. I agree w i t h them. VASSIUADES, J. : This is an appeal against the judgment o f the District Court o f Nicosia in' an action for damages for negligence, arising from a road collision. "*•'(,•'- ι " ' 4 * * , «• .While'the defendant-appellant was driving his private motor-car N. 8537, on the 12th o f September, 1959, on a wide public road outside the walls o f Nicosia old town, his (appellant'
- s)vehicle knocked down the respondent-plaintiff as he was about to mount his stationary motor-cycle at the side of the road, and caused him scscre injuries on the right leg. The respondent-plainlilf was immediately removed to Nicosia Cieneial Hospital where he was admitted on the same day and was treated by Ihe Hospital specialist. The main iiijuiy consisted of a complicated fiaetuie o f both bones of ι he lower leg. p a i t o f which wcic pioirudinj· from the wound. The patient was subjected to ihe indicated tieatmeni and was eventually, put in a long leg plaster, l i e continued under treatment for ihe next eight months, at the end of which the fracture was still not united and an operation was advised. 319 GK>K<:HIOS M. K A M I 1962 Dec 13 H A U L KEMAL ν GEORGHIOS Μ KASTI Vassilndts I The respondent consulted another specialist and eventually on the 16th October, 1961, more than two years after the in jury, he had to undergo, another major operation on his leg. The surgeon who performed it, (Dr Thahs Michaelides, I* W 1) stales at ρ 15 of the lecord ' I opened up (he fracture, I freshened the edges, Icut a guilt from the same tibia which I locked into the lower fragments and fixed the two grafts and I got also grafts from the iliac crest to the fractured part". In December, 1961, when this Doctor was giving evi dence in the case, he elated that the respondent-plaintiff would have to be under treatment for a few more months. And the District Court in connection with damages say this in theirjudgment, at p.37 of the record — "In any case both he(Dr Michaehdes)and Dr. Pelides gave it as their opinion that besides the usual physiothe rapy and occasional pains which the plaintiff would have to suffer later, he would have at least a 20% permanent incapauU. Though the accident occurred on the 12th Septembci, 1959, the plaintiff is still unable to use his leg, and according to Dr Pelides, if the bone does not unite, there is danger of the leg being amputated". This was the position when the District Court gave judg ment for the plaintiff-respondent, on the 13th Apnl, 1962, for £3,306 — damages, made up of two main items viz• £1806.— special damages, and £1,500.— general damages Against this judgment the appellant-defendant appeals both on the facts connected with the issue of negligence, and on the amount of the damages awarded The notice of appeal contains several grounds which, however, can be grouped under these two headings :— (
- a)negligence, and (
- b)dam ages Learned counsel for the appellant dealt exhaustively with alt his grounds, but as far as the issue of negligence is concerned, it issufficient for us to say that wc are unanimously of the opinion that no reason has been shown, on the record, why the trial-court could not reach their conclusions ; nor that their findings should be in any way disturbed Thev. therefore, stand as made As regaids damages, we see no reason for interfering with the amount awarded as general damages ; but as re- 320 gards special damages we have here a case where the amount awarded is bigger than the amount claimed. And in order to do this, the District Court,acceding to the request made by counsel'for the respondent-plaintiff in his final address on the 22.12.61, treated the statement of claim as amended, so as to include in the item of special damages by way of loss of wages, the period from the conclusion of the trial (22.12.61) to the 16.6.62 viz.a period of about six monthsafter the closing of the whole case and about three months after judgment which was reserved until the 13th April, 1962. The District Court were invited on behalf of the plaintiff, to do this under or.33, r. 14 of our Rules, and the corres ponding or.28 r.l of the English Rules. In their judgment, however, the trial-court say that having considered this point they decided that they "should grant the plaintiff leave to amend his claim of special damages", so as tocover the period in question. (Record p.37, G). It is not clear whether the District Court in doing so purported to act under or. 33, r.14; or under order 25, pertaining to amendment of the pleadings. But it isclear, in our opinion, that theamendmentin question, could not be effected in the circumstances. It was not done as required by the Rules ; it was never made effective by the required formal order ; and it could not be treated in the judgment, as part of the statement of claim. Counsel for the respondent rightly conceded, in our opinion, that appel lant's attack on this part of thejudgment must succeed. The result is that the appeal against the findings of the District Couit on the issue of negligence fails ; it also fails as regards the amount of general damages ; but as regards special damages, the appeal succeeds to the extent of a sum equal to £12 per week for the period 22.12.61 to 16.6.62 which shall be deducted from the judgment. Execution to slay until the required amendment to the statement of claim be properly effected. As regards costs, we do not propose altering the order for the costs in the District Court ; but we think that in the circumstances, each pauy should bear own costs in the appeal. Judgment varied aeeoidingly. Order for costs in the Disiiici Court to stand as made. Each party to bear own eosis in (he appeal. Jusi.minis. J. : On the question of special damages I 321 1962 Dec. 13 HAUL KEMAL v. OEOROHIOS Μ . ΚASTl Vnssiliades, S. 1962 Dec. ΙΛ MAI II. K t M A I V. CitMROHIoS Μ ? ΚAS11 Josvphiilvs. .1. would like to say this. With regard to loss of wages plaintiff claimed, in paragraph 5(A) of his statement of claim, special damages, inter alia, as follows : "(
- c)daily wages for 52 weeks at CI2 per week C624". The accident occurred on ihe 12th September. 1959 and Ihe statement of claim was filed cxacily one year later i.e. on the 12th September. I960. In theirjudgment the trial Court said "Wc have decided that wc should grant the plaintiff leave to amend his claim of special damages and, particularly, item 5(
- c)of ihe statement of claim so that it should read as follows : '(
- c)daily wages for 138 1/2 weeks from 12.9.59 to 16.6.62 at £12 per week £1,664; (d)fees of Dr. Michaclides £142' consequently, our judgment is that the defendant pay to ihe plaintiff the sum of £1,806as special damages plus £1,500 general damages. a tolal of £3,306". The period from 12.9.59 to 16.6.62, for which the trial Court awarded special damages for loss of wages, may con veniently be sub-divided into three priods for the purposes (»f this case. Period "A": Prom 12.9.59 to 12.9.60 (52 weeks) at £12 per week. This is the period claimed in ihe statement of claim ; Period1'B": From 12.9.60 to 22.12.61 at £12 per week. This is the period from the date of the tiling of the statement of claim to the date of the conclusion of the hearing and is not cover ed by the statement of claim ; Period "C": From 22.12.61 to 16.6.62 at £12 per week. This is the period after the conclusion of the hearing. As regards period "A" it is clear that the plaintiff is entitled to recover judgment and no question arises. As regards period " C " this period, as already slated, refers lo special damages, i.e. loss of wages, in respect of a period after the conclusion of the hearing. It is well-settled that no special damages for loss of wages in respect of a period after Ihe dale of ihe hearing of the action can be lecovered. Con sequently,- the sum representing this period will have to be deducted from the judgment of the trial Court. 322 Period " Β " ι e from the date o fthe filing o fthe statement o f claim to the conclusion o f the hearing o f the action (12 9 60 to 22 1261) was not included in the statement o f claim, but no objection was taken to the admission of evidence on this point The trial Court awarded the sum claimed in respect o f this period (in addition to the other Iwo penods) after allowing the amendment o f the slalcmcnt ol claim on the application o l plaintilt's counsel The Court had power, under order 25, IUIC I o f the Civil Pioccdurc Rules, to allow the amendment o f the statement o f claim ; and such an amendment was neccssaiy as otherwise the plaintiff would not beentitled to (udgmenl in icspect o f the aforesaid period and his judgment would be bad to that extent Chat tell ν Dailv Mad
(1901)IX Τ I R 16^ See also Wvatl ν The Roshcndlc (Jaidens Co
(1886)2 T L R 2<S2 The Mutator
(1892)9Τ Ϊ R ρ 64 , Modeiav Modeta andBarckn
(1893)10 T L R 69. The plaintiff, however, failed to have his statement o f claim actually amended and hied in Court For this reason we now direct that an amended statement o f claim with a formal order shall beΠled in Court and that until suJi amend ed pleading and order aie filed theexecution o f the |udgment is suspended Whenever a Couit amends a pleading it is the duly o f a parly in whose favour theamendment is made to lilc with the Registrar d\\ amended statement o f claim or defence, as the case may be,so that the record is in order This hasbeen stated o\ei andover agnin by this C o u r l , andi f an\ authotily need be quoted that is the case of London Fassengei transport Boaid ν Moscrop
(1942)A . C 132 at page 347, where it is stated " A n y depaiture from the cause o f action alleged, or the relief claimed in the pleadings should be preceded ο ι at .ill e\culs, accompanied, by the iele\ant amcndmuils, so thai ihe cxaci cause o f action alleged ,UK\ ichef claimed shall form pail of ihe conn's record, and he capable o f being u l n n d lo tliLicatlei should iKoessit\ a ι ise Pleadings should notbe 'deemed lo be amended' ot l u I U Iasamended I he> should In amended in facl ' /ι MA I I ague wrlh the (udgiiKni as j n i p l i l i e d by my b i o l l i u Judge Josephides ippeid ί/v to /ηc/'s'tnic and\>emnd 323 1962 Dec 13 H A U L KEMAL v. GtUROHIOS Μ KASTI Jotiphides, J 1962 Dec. 13 Η ALII. K F M A L V. <it-nK<;tii(is M. KASII damagesfails. But it succeeds as regards special damages for the period 22.12.61 - 16.6.62, the relative, amount to he deducted accordingly. No alteration of the orderas to the District Court costs hut each party to hearowncosts in the appeal. 324