clr/1966/1966_1_17.pdf

(2)(<) of Cap. 148 .(supra)—Onus—// passenger suffered an accident of a type which would not normally red if the vehicle had been properly defendant to show that ha \e occur­ driven, then the onus i\ on the he was not negligent- Negligent e-- Standard of negligence is not in all cases an absolute one if is dependant upon the attendant (use of contributory negligence circumstances— consisting But And in the of ncg/ei f of ones own personal safety regard must be had to the distractions (or deceased) at the time of the accident and to the strain fatigue anil necessarily etc.— Contributory a conduct amounting to the defendant—// Wrongs Court negligence—// to award not owed to show a lack of reasonable safety. -Negligence - - Damages — General is entitled is to breach of any duty is sufficient care by the passenger for his own Civil of the plaintiff a global damages — The sum without apportioning it under the various heads of damage. Civil Wrongs - Negligence- Contributory ment (ή degrees oj liability- negligence—Apportion­ In assessing degrees of liability the common sense approach has to be adopted. Pratt it e - Contributory negligence — Pleadings — Contributory negligent e must be specially pleaded and full particulars I he Civil Procedure rule 15 of the llnglish Rules, Order 19, rule 13; (cfr. Order Rules of the Supreme 17 given— Court prior 19, to 1< fl<l o v * " ι.ιιι * η thai ictent rcusion) In the instant case, howexcr a mete depaitiire fiom the tide urn held not to bt fatal m ucw id the fait that in the \\a\ the defeme was drafted the plaintiff was not lukin h\ \itrp>>\* Γΐ iM ( tin is n .1» mi m ι Nl< (IS S W \ A Mt «.It i ' U ΛΝΙ) OlIIIKS pUH lul Appeal Damages Court will Pimt iples upon nInch the diKturh finding of trial Court tppellate regarding general tlaintint's /'/tn in e \ppeal itwrstd Imdmi>\ <·/ jat f In n tal C oiirts b\ tin Apptllate Cowls it/// not be when sitppoiied In adequate <Ί idente In this LU .e the plaintill claimed (lanugos for the severe I n j u n s MISI. nml by hei while a passengei lor icw.ml in the hns of the SJICIKI drlcndanis due 10 negligent dnving of the lust defendant Ihe s p i o a l damages wcie agreed at 11,000 and the l u l l Dislncl C o n n ol Kyrenia assessed [lie general damages al 14,000 but found that the plaintiff (now appellant) was 60",, ίο Name Γοι the accident, reduced the damages accoidmgly, tmi\ a wauled lier the sum of 12 000 MIL cue uinstances ol ιhe accident are shoilly as follows I he at cult ul look plan in I'hiyne --Heel, l.apnhos on the Sih DecLinbei IW* ,ΙΙ about ο ρ m At the lime the phtnlill a 17 years old mil was a passengei lor reward in MIL hus ot sicond delendanls which was being d m e n bv the hist deleudanl Ihe plamtilt was sitting in the third row of seats on the kit hand side of the bus, close to the window reading a maga/ine which she was holding in such a way as lo have hei lowei lelt arm listing on the frame ol the window When the bus ictched I apuhos and whilst it was proceeding in M a k a i i o s II Sheet, someone in the bus called out to the dnvu l a k e Tessn. (Μκ plaintiff) home m Phivne Street " fhcieupon the diivei Is. LOIKI d i l c n d a n t ) swerved MU\ cliove into Pluync street and tie had proceeded lor a distance of about ^ Itvl when thi accident happened This was at a point inail.cd Ι Ϊ " i>i the plan pioduced al the tnal Phiyne Sheet is a n a n o w sticel and a veiy narrow one at the point " I i ' (supia). On the left hand side ol that street llieie is a nine-foot well beginning Ιιοιη the junction of the two sjul sties-Is v\/ M.tkarms Street and Phrync Street and extending beyond point " Ι Ϊ - " which is 33 feet fiom that junction Ihe street at point " H " was, bumpy and had potholes Ί he width of tlie street at the same point is 8 feet paved suilace and I loot ΛΙΗ\9 inches berm made by big 18 river stones The width of the bus was 7 feet 2 inches and its length 23 Icel The driver was not acquainted with Phryne Slrecl The plaintiffs house is situated in that street and she was, therefore well aware that it was a very narrow street at point "M ' It is c o m m o n ground that the plaintiff s left arm was crushed al that point on the wall There was no impact, howevei between the bus and the wall The plaintiff denied the allegation ol the dclendant that at the muteiial time her lelt arm was piotruding from the near side of the bus lint ihe trial C o u r t lound that the plaintiffs arm was so pioirudmg outside the bus immediately bclorc the a c u d e n t and iciccled hei version thai hei arm was pushed outside the window of the bus because ol the condition of the Mieel and the sudden swerving ol the bus With regard lo ihe diivei (second dclendant) the tii.il Court found that had he (the d n v c i ) who was not .it all acquainted with the road al that place ami who swerved suddenlv into Phryne Street proceeded moic c iiiliouslv and r e d u ^ d speed instead ol increasing it ho would have been in a position to appreciate better the daiii'ei of approaching too near the wall and since there was no olhei tiatlic, he would have driven faither away from the wall, .is there was ample space even not allowing ihe usage ol the width ot the irrigation ditch On this finding the tnal ( oiirt came to the conclusion that the driver was negligent in not realizing that ihe wall constituted an obstruction ol such a natuic that a piudenl driver should have seen it and ought to have realised the lact that he would ot nntihl hit a passenger on the bus and ought to have given it a widci berth On the above findings of fact to the effect that the plainhlf (appellant) sufleied damage as the result paitly οΐ her own fault and partly ol the fault of the diivei. the trial Court went lo appoilion the liability as to 60 per cent to the plamlifl and 40 per cent to the duver, awarding the plamtifl on that basis 12,000 damages (supra) Ihe plaintiff appealed against defendants The that judgment and the cross-appealed. appeal was argued on behalf of the appellant- plaintifi on three grounds (a) that the finding οι the trial Court as to the plaintiffs contributory negligence was not supported by the evidence; (b) that, m any event, the Court could not in law find contributory negligence against the plaintiff as this has not been specially pleaded in the defence, and 19 1965 Nov 25, 26 1966 Jan 27 TESSI CHRISTODOULOU η Niros SAWA MfcMCOU AND OTHERS it)<iS (c) that lhe amount o f general damages assessed by the ' "' t r i a l C o u r t was unreasonably .Ian -'7 T ~~ s l CmsioiMiHioii O n behalf o f the defendants-respondents it that the f i n d i n g o f OMI'HS the trial Court that was argued the driver (second defendant) c o n t r i b u t e d l o the accident was w r o n g . "1C Niro\ S A W M I N K O ' J AND low. llll( Supreme J allowing C o u r t , in partly the dismissing the cross-appeal appeal by directing that liability should be apportioned equally instead o f 60 per cent to the p l a i n t i f f and 40 per cenl l o the d r i v e r : Held, (I) ground with regard to the cross-appeal and the first of appeal (supra i:--

(1)N o doubt this Court is f i n d i n g s of fact o f ihe lower C o u r t s where competent ιο reverse there is no adequate evidence l o support such f i n d i n g s ; and to reverse conclusions based o n an e r r o r in law. Therefore, the question w h i c h falls for our d e t e r m i n a t i o n is: D i d the trial C o u r t o n the f i n d i n g s they made, il such f i n d i n g s were supported by the evidence, apply the law correctly?

(2)N o w , what is the law o n this p o i n t ? (a) Section 51 o f the C i v i l Wrongs L a w , C a p . 148, which reproduces the provisions o f the c o m m o n law on this point provides Ihat negligence consists o f d o i n g some act which in the circumstances a reasonable prudent person w o u l d not d o o r f a i l i n g to d o some acl w h i c h , in the circumstances, such person would do, and compensation for thereby such damage is causing only damage. Hut recoverable by a person l o w h o m the person guilty o f negligence owed a d u t y in Ihe circumstances nol to be negligent. The owner of a vehicle owes such d u l y not l o be negligent to all persons w h o are carried f o r reward in his vehicle (section 51

(2)(

1. c)o f Cap. 148, (
2. b)supra). The general principle appears lo be that those i l r i v i n g o r h a v i n g c o n t r o l o f vehicles owe a d u l y o f care to their passengers, and thai if Ihe p l a i n t i f f can show he l a w f u l l y in Ihe defendant's vehicle and suffered an o f a type w h i c h w o u l d not was accident n o r m a l l y have occurred i f that vehicle had been properly d r i v e n , then the onus will be o n the defendant l o show he was not negligent. Such case o f this k i n d must depend on its o w n facts. (
3. c)T h e standard o f negligence is i n all cases not as absolute one but is dependent upon Ihe attendant circum­ stances, and in the case o f c o n t r i b u t o r y negligence consisting 20 o f neglecl o f ime's o w n personal safely the C o u r t must have regard to the distractions, strains a n d fatigue o f the p l a i n t i f f or deceased al the l i m e o f the accident. Principles laid d o w n Associated Collieries 730-731 per Lord in Ltd. Caswell [1939] 3 v. All Powell E.R. A l k i n . and al p. 737 per 722. Duffryn Tissi pp. CHUISTODOCIOI.' at Lord 1965 Nov. 25. 26 196tS Jan. 27 Wright. applied. p. Ntoos S.WVA MENICOU AND OTHERS ( d ) As regards Cap. I4S {.\upra) Law c o n t r i b u t o r y negligence section 57 of reproduces the provisions o f the English Reform (Contributory Negligence) A c t . 1945. To constitute c o n t r i b u t o r y negligence it is not necessary t o show that the conduct o f the passenger amounted l o the breach o f any d u l y which he owed l o the defendant, but it is s u f f i ­ cient lo show a lack o f reasonable care by ihe passenger l o r his o w n safely. Davies v. Swan Minor Co.(Swansea) L.R. Ό ( | ;ind Nunre v. Hritish Columbia Ltd. [1949] I All Llectric Railway Co. I id. [l l J5ll 2 All E.R. 448. followed. (
4. e)In assessing degrees o f liability and in a p p o r t i o n i n g blame the rule ol c o m m o n sense approach has to be a d o p t e d : sec Davies case .supra, was: and at p. 627 per Ever-shed L. .1.as he t h e n . " The George l.ivanos "

(1965). "The limes Newspaper. December 14.

(3)We are o f o p i n i o n t h a i in ihe present case there was adequate evidence t o support the f i n d i n g s made by the (rial C o u r t that ihe d r i v e r was g u i l t y o f negligence in d r i v i n g his bus a n d thai the plaintiff-appellant passenger was like­ wise g u i l l y o f c o n t r i b u t o r y negligence having regard t o the f o l l o w i n g circumstances, Ihat is l o s a y : — Phryne Street was a very narrow street at the material place (9 feet 9 inches w i t h b c r m ) ; there was a p r o j e c t i n g w a l l a n d the bus was 7 feet 2 inches w i d e : Ihe r o a d was b u m p y a n d had potholes. Therefore, the w a l l was a p o t e n t i a l source o f danger and it was the d u l y o f ihe driver t o reduce speed a n d leave a reasonable safety m a r g i n between his bus a n d the w a l l , o n ihe f o o t i n g that o w i n g t o the c o n d i t i o n o f the road a n d the sudden swerve i l was reasonable t o foresee that the passenger in the bus m i g h t be k n o c k e d against the w a l l . Instead o f d o i n g that the driver increased speed a n d d r o v e t o o close t o the wall causing, thus, the plaintiffs crushed b c i w c c n the hus a n d the w a l l . a r m t o be I 9 h ? v ' " 19W< . ,? T h e f i n d i n g o f the trial Court lhat Ihe plaintiff, although acquainted with ihe road, d i d not use reasonable care f o r her o w n safely in leaving her a r m p r o t r u d i n g out o f the bus.is adequately Mipporled bv the evidence. Τ ι ssi i'»'»""»»" 1 '·"" μ > |, i s , l t l c ii,;,, ii' ( |u· p l a i n t i f f had not been i n that ' p o s i t i o n (vi/.. leaving her left a r m p r o t r u d i n g out o f the bus) Ν Μ i;s S A V V A MiNninj A M I OUHI'S ' s n o . . W ( H 1 I 1 ' n u l n a v c been i n j u r e d , but a d o p t i n g the c o m m o n sense a p p r o a c h as laid d o w n in Ihe Davies easy (supra), we are o f Ihe view thai the p l a i n t i f f , in the circumstances o f ι his case, was not lo blame more than ihe driver, so that, although we agree w i t h all ihe other conclusions in the careful and well reasoned j u d g m e n t o f ihe trial C o u r t , we d o not feci lhat we can u p h o l d their apportionment of liability as to 60 per cent t o Ihe plaintiff-passenger a n d 40 per cent t o the driver, second defendant. W e are o f the view that, i n ihe cireuin­ stances. this liability should be a p p o r t i o n e d equally, that is to say 50per cent l o thep l a n t i f f a n d 50per cent to the driver. O n that basis the a p p e l l a n t - p l a i n t i f f must be awarded £2.500 damages instead o f C2.000. Held. (II) with regard lhat ιfie trial Court to the second ground was pieeluded from negligence on the purl of tin plaiiiiiff'tippellant been specially of appeal finding i.e. contributory as ii hadnot pleaded:

(1)O u l c r I'). rule 13 o f the C i v i l Procedure Rules ( c o r r e s p o n d i n g l o ihe English Order 19, rule 15, p r i o r tothe recent Revision o f the English Kule.s o f the Supreme C o u r t ) provides, inter alia, lhat Ihe parly must raise by his pleading all such g r o u n d s o fdefence or reply, as thecase maybe. which i f not raised " would be likely l o lake the opposite parly by surprise, o r w o u l d raise issues o f fact not arising out o{(he preceding pleadings as. \Όν instance, f r a u d , prescription o r l i m i t a t i o n o f time, release, payment, performance, o r facts showing illegality o f any <ind, o r counterclaim unenforceable" That reducing the claim o r i l is i h e d u t y o f the defendant t o raise in liis defence all such g r o u n d s i f not raised w o u l d he likely which l o l a k e the p l a i n t i f f b y surprise o r w o u l d raise issue:· o f fact not arising out o\'the preceding pleading.

(2)(

1. a)I n ihe present eas-. the defendants d i d not use the conventional words whereby c o n t r i b u t o r y negligence is usually pleaded ( v i z : " The iccidenl was caused o r buted l o by the negligence o f the p l a i n t i f f " ) , 2! contri­ b u t . after '"ί,ς denying any negligence on their p a n . went on to allege that " a n y injury and/or loss l o the p l a i n t i f f was the result o f her v own negligence " ; and then they gave full particulars o f the . plaintiff's alleged negligence. In substance they ' "•' "'' ,_ pleaded c o n t r i b u t o r y nctiligcncc l o the full extent. CHRISTCIDOULOU (
2. b)A l t h o u g h we consider lhat contributory should be speeiallv pleaded and particulars ' " ' negligence ' " MKNICOI: AND ihe defence, we do not think that in the way that the defence was drafted in the present case the p l a i n t i f f was, in any way. taken by- surprise because f u l l particulars o f the defendants' defence were actually given in their pleading. The case was fought t h r o u g h o u t o n that basis and no objection was taken o n p l a i n t i f f ' s behalf l o the leading o f evidence by the defendants l o prove c o n t r i b u t o r y negligence. It seems thai this point was taken f o r the first time in the f i n a l address o f p l a i n t i f f s counsel l o Ihe trial C o u r t . //('/(/. {Ill) with regard lo the third ground of appeal viz. thai the sum of £4.000 assessed as general Court was unreasonably ( I ) The trial Court damages w i t h o u t damages by the trial low : awarded a global sum as general' a p p o r t i o n i n g it under the various heads o f damage. They were entitled to do so. 12) H a v i n g given ihe mailer our best consideration we are ,not convinced either lhat the trial Court acted upon some w r o n g principle of law or that the amount awarded was so very small as l o make it. in the judgment oi~this C o u r t , an entirely erroneous estimate o f the damages to which the p l a i n t i f f is entitled (see : flint v. LovelL infra. Cacoyianni los. Newspapers inl'iti. Kemsley Co. Ltd. K.H.O.. v. Cyprus v. Papatlopoul- Wines and Spirits infra.) (}) Lor these reasons we w o u l d not be justified in disturb­ ing the f i n d i n g o f Ihe damages. trial C o u r t as to the a m o u n t of In any event, we do not t h i n k that, t a k i n g all Ihe circumstances into consideration, the amount of £4,000 assessed as general damages o n the basis o f f u l l l i a b i l i t y is on the l o w side. Held, (IV) judgment of in the result the the District j u d g m e n t for the appeal is C o u r t varied to allowed and the the extent that p l a i n t i f f is entered i n the sum o f £2,500 agaist both defendants w i t h costs for one advocate here and in the C o u r t below. "· thereof mven in OTHIRS 196*! Nov 21 26 I96f> Jan 27 1 he cioss-appeal is dismissed appeal allowed Judgment of the District Court \aried auordingly (}rder for costs as afousatd Crossappeal dismissed TlSM C IIRISlODOULOl' η Νκ os SVWA M I N K mi A N D OintKs Cases rejeind to Ο llara ν Central SΜ 7 Co Ltd

(1941)S C 163 Doonan ν Stottish Motoi Irattion Ltd

(1950)SC Π6, Parkinson ν Lnerpool C oiporation [1950] 1 All I R 367, Caswell ν Am*// DuJJr\n tssoaated Collieries ltd [1939] 1 All Ε R 722, al pp 719-731 pei Lord Atkm and ρ 737 pci Lord Wnghl Daves ν Swan Motoi Co (Swansta) ltd. [4949] I All t R 620, Name ν British Columbia flettru 2 All ΕR 448 , Ihe Geoine Inanos Ratlwax Co Ltd [1951] Ihe /tines " Newspapei December 14, 1965 Ihe Owners of s s ' Pfeiudts ν Page [1891] A C 259 , Ja\ and Sons ν Veewis III [1946] I All ΕR 646, Hint ν loxefl [1915] Ι Κ It 154 al ρ 160 , CatoMunnt ν Papadopoullos IS C I R 205 , Ktmsle\ Newspapers I/</ \ Cyprus ltd

(1958)21 C [ R I, al ρ IS Wines ami Spirits Co Appeal. Appeal against the |udgment of the Dislnct Court of Kyrenia ( H J IAnastassiou, Ρ I)C , & Savvides, I")J ) dated the 19-thMay, 1965 (Action No 115/63) whereby the defen­ dants were adjudged to pay fo the plaintiff the sum of £2,000 by way of damages for injury sustained by her while a passcngei in the bus of the second defendants driven by the first defendant St Pavluies with Ph C let ides, for the appellant X Clettdes, lor the respoiuent Cm adv ιall "M Ihe facts sufficiently appear in the judgment of flic Court. Ζι ΚΙΛ, I*. . The judgment of the Court will be delivered by Mr. Justice Josephidcs. 1%5 Nov. 25, 26 l%6 Jan. 27 TESSI Josi.iMiim s, J. : In this case the plaintiff claimed damages for injury sustained by her while a passenger in the bus of the second defendants by the negligent driving of the first defen­ dant. The "special damages were agreed at £1,000 and the Full District Court οΐ Kyrenia assessed the general damages at £4,000 but found that the plaintiff was 60 per cent to blame for the accident,, reduced the damages accordingly, and awarded her the sum of £2,000. The plaintiff appealed against lhat judgment and the de­ fendants cross-appealed. The appeal was argued on behalf o\' the plaintiff on three gi omuls— (

1. a)that the finding of the trial Court as to the plaintiff's contributory negligence was not supported by the evidence; (
2. b)lhat, in any event, the Court could not in law find contiibutory negligence against the plaintiff as this had not been specially pleaded in the defence; and (
3. c)that the amount of general damages assessed by the Court was unreasonably low. On behalf of the defendants it was argued that the finding of the trial Court that the first defendant contributed to the accident was wrong. The second ground in the defendants ctoss-appcal was that the award of general damages was excessive, bul this was abandoned in the course of the hearing of the appeal. The accident took place on the 5th December, 1962, at about 6 p.m. in Phryne Street, Lapithos. At the time the plaintiff, who was 17 years old, was attending the American Academy in Nicosia and was a passenger for reward in the bus of the second defendants which was being driven by the first defendant. The plaintiff was sitting in the third row of seats on the left hand side of the bus, close to the window, reading a magazine, which she was holding in both hands and in such a way as to have her lower left arm resting on the frame of the window. When the bus reached Lapithos, 25 CHKISTODOUIOU υ Nicos SAVVA MENICOU AND OTHERS i9(,s v ' , " :7 Ί ι ssi CHRISIOUOULOU / NKOS s-..v\ Mi sit or VNI> OmfRx and whilst it was proceeding in Makarios II Street, someone in the bus called out to the driver " Take Tessic home in Phryne Slice! Lessie is (In plaintiff's name Ihc dnver ( l u s t defendant) sweived and diovc into Phiyne Street, and he had proceeded foi a drst tnce of about 33 ft when the accident happened This was at a point marked " B " on a sketch plan produced al the tnal When the bus had reached point " Β " the driver heard -.omcone calling out to him to n c d i d so and when he alighted he saw that the plain­ S|0p tiff's left a i m had been iniuied and he then drove hei to her house in that slrect As is usual in these accidents, there were two shaiply con fhcting vcisions but we shall icvcrt to this piescntly Shoitly after the accident, ihc plaintiff was taken to the clinic o f D r Thalis Michachdes in Nicosia, where she was admitted at about 8 30 ρ in m the same evening She was found to be sulfei ng from a severe compound f i a c l u i e o f the left uppci a i m , an extensile wound on the lower arm w i t h crushing o f the skin, and seveiancc and ciushing o f all muscles and the radial neive She was operated upon twice and both operations weie very painful Hei tieatmcnl lasted f r o m December, 1962, lo August, 1963, but the bone did not unite and a bone g i a l t i n g opeiation will be needed 'lhat kind o f operation is not always successful and rvtoie opeiations may have to be performed m ordei to put the a i m tight W i t h icg.ud lo hei gencial condition, accoidmg to the medi­ cal evidence, she would he unable to do work o f a l\pe icq u t t i n g fine movements and, although she could hold some­ thing, she could not exert pressure with her lingers Her gripping powei in the left hand had diminished and she would be handicapped in c u r v i n g out hei houscwoik Ugly and icpulsivc scars would prrmanenlly disfigure her arm and .she would need expensive plastic operations abroad (costing between £500 and £1,000) for skin grafting in order l o icduce the scars Phiync Sheet in Lapilhos, where the accident o n uired, is a n a i t o w street, ils width at the j u n c t i o n with Makarios II Street being 13 feet and ri niche , bill il narrows d o w n as one proceeds furlliei inlo lhat siιeel On the left hand side theic is a nine-foot wall beginning f i o m ihe j u n c t i o n Λ\ν} exten­ ding beyond p o i n t ' H " which :, 33 feet and 10 inches Worn (lie j u n c t i o n The wall p i o l i tides slightly inlo the street f o r m i n g an angle at that point A piece o f flesh was found at point t<> " Β " by the police sergeant who investigated the case and it is common ground that the plaintiff's arm was crushed on the wall at that point. The width of the street there (point " Β " ) is 8 feet paved surface and 1 foot 9 inches berm made of big river stones (chakiles) and earth, with grass in between, and a water channel made of concrete next to the berm. The road al point " Β " was bumpy and had potholes. The width of the bus was 7 feel 2 inches and its length 23 feet. 1965 Nov. 25, 26 1966 Jan. 27 TESSI CHRISTODOULOU o. Nicos S A W A MENICOU AND OTHERS The driver was not acquainted with Phryne street and this was the first time that he was driving along it. The plaintiff's house is situated in that street and she was, therefore, well aware that it was a very narrow street at point " Β " . It was the plaintiff's version that while the first defendant was driving the bus in Militaries II street he swerved abruptly, and withoul slopping, first to the right into Phryne street, and then to the left, and in doing so he increased his speed to 15 miles per hour in reaching the narrow part of Phryne street at point " Β " . In consequence of the sudden swerving there was a jerk in the bus and the plaintiff felt a sudden pain in her left arm which she saw dropping in her lap. The bus did not stop there but proceeded for another 15 yards and it then slopped after someone had called out to the driver to stop. It then proceeded on and stopped in front of plain­ tiff's house.. When her mother came out she rushed at the driver shouting at him and threaten ng to kill him, where­ upon ihe plaintiff, in order to calnv h< r down, told her to stop making a scene as nobody was to \)lame and that she was going to explain to her later on. The plaintiff was emphatic that her arm was not protruding outside the bus. On the other hand, the defendant's (driver'
4. s)version was that the plaintiff's arm was protruding and that he had to drive very close to the wall as the road was so narrow as to leave hardly any room for the bus to go through. The trial Court after weighing the JLwo versions found as a fact that there was no impact between the bus and the wall and that the appellant's left arm was protruding from the near side of the bus. They further found that, had the driver who was not at all acquainted with the road and who had swerved suddenly inlo Phryne street, proceeded more cau­ tiously and reduced speed instead of increasing it, he would have been in a position to appreciate more the danger of approaching too near the wall and, since there was no other 27 Μ1,Λ t i a f f i c , he could have d n v c n larlhei away f r o m ihc wall as '" ' " ' " ' thcic was ample space even not allowing the usage of the , ,7 width o f the irrigation dit-:h On this finding o f fact the trial — C o u r t came t o the conclusion that the driver was negligent iSM in not realizing that the wal' constituted an obstruction o f such a nature that a pruoenl driver should have seen it and Ni<os SAWA o u g h l to have realized th · tact lhat he would or might hit M i M i m ΛΜ> a passengci on the bu·- a i d ought to have given it a wider Onim, bcith l W i t h icgard to the plait itfl the trial Court found that the plaintitV's .irm was p r o i i u d m j . outside the bus immediately hcloic Ihc accident and tin \ ejected her version thai hei arm was pushed outside ihe window ol the bus because of the condition o f the load ano i h ; sudden swetving of the bus They were fur her salelied that the spontaneous statement made by the plamtifl to her molhei immediately aftei the accident that no one was lo blame for it can only be interpicted l o mean that lL«. plaintiff must have know.i all along lhat she was negligent in opening the window o f Ihe bus and allowing hei a i m to ptojecl ot tside H Pausing there for a moment, we do not think that, in the eiiuiins|ance-v ol this case, it would be sale to draw any con­ clusions f r o m the plaintiff's .stitenienl A t the t m u she was a gul oi 17 and it is well known that girls o f thai aue icact d i f f c i c n l l y i i o m the ordinary, cool and reasonable man It may well be thai being in icttible patn heiself f r o m the cru­ shing ol her arm she wanted lo spate hei mothei and appease her in order to avoid scenes \ girl of the platnti'l s uge is notinalK vciy shv, Λ\ΊΟ sensitive and would not Liiuuituiaily tiy ίο avoid scenes O n t h ; above f i n d i n g - ol Put, t o the effect lhat ιI K plaint i l l .sulkied d image as the lesult paitl) of" her own ι ·till and partly ot the faull of the dnvcr, the tiial Court wc it on to appoilio-i (he h..bihty l u v . n ; ' cgaid lo the p l a i n l n l - . Uiare m Ihc η sponsihdiiy ΙΌι the damage , and they υ ι κ lo ihc conclusion that on the (acts of the case the p r o p e r . p p o j t i o n nicnt ol liability would be oO pel cent to the plaint-fI and 40 pei cei.i to the dnvcr If i-. now convenient lo deal with the plaintiff's I n J «loiind o f appeal, Ό ihc effect ll.ai the finding ol the tiial <o m t that -he was guilty ol ι oniribtit ity negligence was not aippoitcd by the e idenre, hid w i t h the »'•oss-appeal o f the cl· le:nlants, is to the effect that the finding of the trial Court that the driver was guilty o f contributory negligence was likewise not supported by the evidence. In considering this matter it should be borne in mind that ihe conclusions reached by ihe trial Court were conclusions o f fact. There is no doubl that -this Court is competent lo reverse findings o f fact o f the Courts below where there is no adequate evidence to support such findings ; and to reverse conclusions based on an error in law. The question which falls for our determination is : D i d the trial Court on the findings they made, if such findings were supported by Ihe evidence, apply ihe law correctlyV Now, what is the law on this point ? Section 51 of our Civil Wrongs Law, Cap. 148, which reproduces the provisions ol' the common law on the point, provides that negligence consists o f doing some act which in the circumstances a reasonable prudent person would not do or failing lo do some act which, in the circumstances, such person would do, and thereby causing damage. But compensation for such damage is only recoverable by a person to whom the person guilty o f negligence owed a duty in the circumstances not lo be negligent. The owner o f a vehicle owes such a duty not lo be negligent to all persons who are carried for reward in his vehicle-(section 51

(2)( c ) ) . In t w o Scottish cases ii was held that a sudden swerve which causes injury to a passenger is evidence o f negligence : In O'flaru x. Central S.M.T. Co. Ltd.,\94\ S.C. 363, a passenger was thrown from the platform o f an omnibus when it swerved lo avoid a pedestrian. The Court of Session held lhat ihe onus wason the defenders to displace theprima facie presumption o f negligence arising f r o m the swerve, and that they had discharged this onus. In Doonan v. Scottish Motor Traction Ltd., 1950 S.C. 136, a passenger was injured when a bus swerved and hit a fence to avoid a child. The Court o f Session held that the onus was on the defenders and that the admission by the pursuer o f the presence o f the child on the road did not a fleet this onus. In an English case Parkinson v. Liverpool Corporation 11950] 1 A l l l i . R . 367, a standing passenger was injured when an omnibus suddenly stopped to avoid running over a dog. The Court of Appeal. held that the driver had given an explanation showing that he was not negligent. It should be observed lhat these cases do not lay down any principles o f law but ihcy simply show 2*) 1965 Nov. 25, 26 1966 Jan.27 Ttssi CHRISTODOULOC; P. Nicos SAVVA MENICOU AND OTHERS I"if,-. N.>!

1. ?.'\ 26 t.'6n .l.iv. 17 f S· t ,/'. M l . M i n l . ΛΝΙΙ ; i n n i,s the particular application of ihe law of negligence to the facts o f those cases. The general principle would appear to be lhat those driving or having control o f vehicles owe a duty o f care to their passengers, and that il the pi lintiff can show he was lawfully in the defendant's vehicle anc suffered an accident of a type which would not normally have occurred if thai vehicle had been properly driven, then th·· onus will be on the defendant to show he was not negligent. Kach case of this kind must depend on its own facts, and the simple lest to be applied is " d i d the driver in the circumstances act reasonably or unreasonably by doing somcl ling which a reasonable person would not do and leaving t ndone .something a reasonable person would i\o 7 "· As regards contributory negligence, section Ί7 o f our Civil Wrongs I aw, reproducer the provisions o f the English Law Keforni (Contributory Negligence) Act, 1945, on the point. One o f the leading cases on contributory negligence in I'.ngland is the House o\' l o r d s case of Caswell v. Powell niiffryi, Associated Collieries Ltd. J1939] 3 All L.R. 722, although it was decided prior lo ihe 1945 Acl when contri­ butory negligence was a c o m p i l e defence. As Lord A t k i n said (al page 730) : " T h e injury may, hoν ever, be the result κ^' two causes operating ai the same tinu\ a breach o f duty bv the de­ fendant and ihe omission on the pan t>f the plaintiff to use the ordinary care for the pioteclion o f himself or his properl) that is usee! I > the ordinary reasonable man in those circumstances. In that case' the plaintiff cannot rcco\ cr bee ιuse ihe uijin / is partly caused by what is imputed to him as his own default. On the other hand, i f the piaiplili were iK.j'iigent, but his negligence was not a cause operaling to produce ihe damage, there would be no defence " A m i at page 731 : " I think 'hat Ilie defend.11it will succeed if he proves that the injury was eai;\ed solely or in part by the omis­ sion tA' the phiintiff to l a i . ; the ordinaiy care tiial would be expected of him in ihe circumstances. Hut, having come lo lhat conclusion I ain ^\' opinion that the care lo be expected o f the plaintiff in the circumstances will varv with the eireuinstance- ; and that a different deizree of care may well be expected from a workman in a factory or a mine from that which might be laken by an ordinary man not exposed continually lo the noise, strain and manifold risks of factory or mine " . 1965 Nov.
2. 26 1966 Jan. 27 TESSI And Lord Wright had this lo say (al page 737) : CHRISTOIKWLOU P. "Negligence is the breach of that duty to take care, which Ihc law requires, either in regard to another's person or his properly, or where contributory negligence is in question, of the man's own person or properly. The degree of want of care which constitutes negligence must vary with the circumstances. What that degree is, is a question for the jury, or the Court in lieu of a jury. It is not a matter of uniform standard. Il may vary according to the circumstances from man to man, from place to place, from time lo time. It may vary even in ihe case o\' the same man. Thus, a surgeon doing an emer­ gency operation on a cottage table with the light of a candle might not properly he held guilty of negligence in respect of an act or omission which would be negli­ gence if he were performing the same operation with all ihe advantages of (he serene atmosphere of his ope­ rating theatre ; the same holds good of the workman. It must be a question of degree. The jury have to draw . the line where mere thoughtlessness or inadvertence' or forgelfulness ceases, and where negligence begins ". The effect of the Caswell decision is that ihc standard of negligence is in all cases not an absolute standard but is de­ pendant upon the attendant circumstances, and in the case of contributory negligence consisting of neglect of one's own personal safely the Court must have regard lo the distractions of the plaintiff or deceased al the time of the accident and lo the strain and fatigue of the work which may make a work­ man give less thought to his personal safety than persons with less trying surroundings and preoccupations. Thus, though their is only one standard of negligence that standard is sub­ j e c t ' t o qualification in all cases. The Caswell case was consi­ dered and applied in Davies v. Swan Motor Co. (Swansea) Ltd.. |1949| I All li.R. 620, where it was held thai, in any event, to constitute contributory negligence it was not neces­ sary to show that the conduct of Ihe passenger amounted lo ihc breach of any duly which he owed lo the defendant, but it was sufficient to show a lack of reasonable care by the passenger for his own salely. This principle was subsequently .11 Νιcos SAVVA MENICOU AND OrnrKS ''"'^ Nov. :s. 26 1966 Ji,lv ~ TIASI CMKisifiiM)i;n>u Νιrus S.w v,\ MiiNirm.'\ N D OUIIHS applied in the Privy Council case of Nance v. British Colum.. fiaiiW(iy Co. Ltd [1951] 2 All K.R.
3. Elccll i( J ' In assessing degrees of liability the common sense approach had to he adopted, livershed L.J., as he then was, in considcring questions of apportionment of blame under the Engli h Law Reform (Contributory Negligence) Acl, 1945, in the Davies case (supra), at page 627 said : " In arriving at l h c conclusion at which I do arrive, I conceive ii to be my duty to look at the whole fu:ts of the case as ihey emerged at the trial both of ihe aclioi and of the third party proceed­ ings, and then, using common-sense, lo try fairly to apportion ihe blame belwecn the various participants in the catastrophe lor the damage which the deceased suffered " . See also page 629 in the same Report. b i Ihe /hivies case, which ..bowed lhat the common sense approach had to be adopted, was referred to with approval in a recent case by ihe Court of Appeal in Lngland : Sec lite George Livanos "

(1963), " The limes " Newspaper, December 14. Reverting now to ihe present ease, learned counsel for the appellant invited our attention to a number of extracts from the evidence in support of bis submission that ihe finding of the trial Court that the plaintiff was guilty of contributory negligence was not supported by the evidence. Likewise learned counsel for the respondent drew our attention to a number of extracts from ihe evidence in support of his sub­ mission lhat the driver was not guilty of negligence. Having fully considered lhe>c submissions and having read the whole record of the evidence, we are of the view that in the present case there was adequate evidence to support the findings made by ihe trial Court thai the driver was guilty of negligence in driving his hu; and that the plaintiff was like­ wise guilty of contributor) negligence. Having regard to the following circumstances, that is lo say, that Phiν ue street was a very narrow street ( ( t feel 9 inches with the berm), that there was a projecting wall, that the bus was 7 feet 2 inches wide and thai ihc road had potholes and was bumpy, wc are of Hie view thai the wall was a potential source of danger and that il was the duty of Pie driver to reduce speed and leave a reasonable safety margi.i between his bus and ihc wall, on ihc fooling ihal owing lo ihc condition of the road and the sudden swerve il was reasonable to foresee lhat the pas\2 sengeis in the bus might be knocked against the wall Instead of doing that, the diivei ιικι eased speed and diove too close to the wall causing the plainldt's aim to be ciushcd between the bus and the wall 1 %(> Nov : s 26 1966 Ian 27 ThSSI The finding ol the tiial ( o u i t that ihe plaintiff although acquainted with the road did not use leasonablc c u e lot her own safely in leaving heι aim piotiudtng out ot the bus, is adequately suppoited b\ the evidence It is true that il the plaintill had not been in lhat position she would not have been iii|incd, but adopting the common-sense appioach, as laid down in Ihe f)tt\tts ease we ate ot Ihe view that the plaintill, m the ciicumsiaiiccs of this case, wa^ not to blame more than the dnvei, so (hit although we agree with all ihc other conclusions in the caielu! and well icasoned judgment of the trial ( o u i t , we do not leel that wc can uphold then apportionment ol liability as to 60 per cent to the plaintiff and 40 pei cent to the diivei Wc aie of the view that, in the circumstances ot this case, this liability should be appoitioncd equally, that is lo say, 50 pci tent lo the plamlift and 50 per rent lo ihe driver The setond ground ol appeal was lhat the trial Court was piecluded from finding conliibuloiy negligence on the pait of the plamlifl as it had not been specι illy pleaded In sup port of that ground learned counsel foi the appellant icfci led to Order 19, rule 13, of oui ( ivil Procedure Rules, which toi responds to the Lnghsh Oidci 19, mle 15 (pnoi to the iccenl Revision ol the I nghsh Rules of the Supicme ( ourl), and lo Atktn's Court b o n u s and Piecedcnls, volume 12, page 27 He also icleried to the note unilei the heading Negli­ gence' lo the I nghsh Oidci l u lule 15, in the Anntwl Piae lice 1961, al page 467, which states " C o n l n b u t o i v negli­ gence should be specially pleaded " Il should be noted how ever, that this statement is based on the F nghsh case ol I fie Owners of S S "Pleiades" \ Page [1891] A C 259, which was decided prior to (he enactment ot the bnghsh Law Reform (Contributory Negligence) Act 1945 , but in Atktn's Couit Iaims (ubi supia), at page 27, tt is stated * Contri­ butory negligence must still be specially pleaded *', although no case is quoted in support ol that statement No ease onall-fours was cited by plamtill's counsel and we have been unable to trace any ouiseKcs (n a case, however, tried hi Lynskey J (la\ & Sons ν I V t w n Ltd [1946] I All Γ R 646), the claim and coun erclaim aiosc out ol a collision and Jav Ά Stms claimed dam igcs liom f avtis ltd and the delen"U t HRisionouioi ( Nicos S\\\,\ MlNICOl \SD Orm RS IVi.S Ν.η 25 Κ. I'l(,6 I | Π -,-j l-ssi ( IlkllJeinul ι ()> /' Nu u s S A W Λ M I M I O I I ANI> ° " danls counleielaimed against the plamtilfs foi damage to their motor lorrv. I i was lot-nd on the facts that the drivers of both vehicles weie guilty of negligence, that the negligence o f each contributed to the accident but lhat the driver of the plainliffs lorry had the grc;ler share of blame Although c o n t r i b u t o r negligence was 'iot expressly pleaded the Court held thai under the I aw Reform (Contributory Negligence) Act, 1945, both parties weie able lo succeed on their claim for damages notwithstanding ιthen contributory negligence, with the result lhat the plan tiffs were only to recover onethird and the defendant^ iwo-thirds o f the respective sums claimed by them O n ι m l e Π o f Ordei l u , ntei alia, provides llial a party must raise by his pleading all such grounds of defence or reply, as the case may be, .vimh if not raised " w o n i d be likely lo lake the opposite pailv h·/ surprise, or would raise issues o f fact not arising out of liie preceding pleadings as, for instance, fraud, prescnption ot limitation o f time, release, payment, peifoimance, οι facts showing illegality of any kind, οι rendering ihe claim or counterclaim unenforceable". It will ihus be seen thai it is the duty of the defendant to raise in his defence all such giounds which if not laiscd would be likely to take the plaintiff by siirpnse or would taise issues of fact not aiismg out of Ihe pieceding pleadings Λ defence pleading contributory negligence is usually draft­ ed in the following way ' The accident was caused or contributed to by the neglige ice o f the p l a i n t i f f , " and then particulars o f the plaintiff's negligence are given See Bullen and Leake's Precedents ol Pleadings, 11th edition, page 1081 No 1026 , and A t k m ' s C o m t f o r m s (supιa), page 27, L o r m No 20 In the piesent case (he clc'endauis in the first paragraph ol their defence denied gener; lly that they were guilty o f ne­ gligence and they went on to allege in the second paragraph that " anv in|uiv and/or loss to the plaintiff is lite result o f hei own n e g l i g e n c e " ; and then they gave full particulars o f the plaintiff's negligence in two paragraphs to the effect that, although the bus at ihc time was passing along a very i n n o w street, with buddings on either side, leaving only a lew inches between Ihe l-iis ;md wall, the plaintiff had her arm outside the bus and failet lo put it inside and/or in such a po.sit'on as lo avoid the danger which was in any way obvious. U It will thus be seen that ihe defendants did not use ihe conventional woids " or c o n l n b u l c d t o ' by ihe negligence o f the plainlilT, but they expicssly denied any negligence and they expicssly pleaded lhal the mjuiy w.is the result i^f he ι own negligence as set out m detail in ihc p a r t i c u l a r I h i t is to say, m substance they pleaded contributory netihgenec to the full extent Although wc consider that conltibuioiy negligence should be specially pleaded and p a i t i c u l a i , ol the alleged negligence given in the delencc, we do not t l u n l that in the way that the defence was drafted in the prc^-nt ease the plaintiff was, m any way, taken by surpnse bee. use full particulais ol ihe defendants defence were actually "iven in then pleading The case was loughl thioughoul on t i n t basis, and the recoid of the pioeecdings does not show that anv objection was taken on plai'ihtl's behalf to the lea ling of evidence by the defendants to prove conlnbutorv, nedigeiice It seems thai llns point was laken l o i Ihc fust lime in the final addicss o l plainliU's counsel to the tn.it ( o u i l The thud and Jmal ttotmtl ot appeal -vas lhal the sum of f.4,000 assessed as genet.11 damages by the trial ( o u i t was unreasonably low Ihc Inal ( « n u t aw.iidcd a global sum as geneial d.images without a p p o i i i o m n g it under the v i n o u s heads ol damage, which ihev weie entitled lo do I he C ourt staled in Mien judgment that in assc -am1 the damages they look into eoiisideiatton the following ιli.it at the lime, of the accident the plainlilt was a gut ol 1/ yeais o f age and had been studying, shorhand and tvping, Ί Η Ι that as a result ol the accident she was pieventcd f r o m c o n p l e t i n g her studies and working as a shoilhand typist, and thai her earning caji.ictty was diminished as well as her chotei ol em ploynicnl , the pain and sullenng o f two operations and the probable necessity ol l u i t h c i operations ot bone gialitng with the consequential pain and suffering and the conside­ rable expense , the ugly and repulsive scars that would pel manentl) dtsligure her a i m and that she would need expen- ' sive plastic opeiation abroad lor skin grafting in trdet lo reduce the seais , llie loss o| amenities, such as spoils and hei being handicapped in Ihe cariying out o f hei du ic as a housewife and in doing otliei woik l e q u i n n g tine movements o f the fmgeis , and, linally, tin injury to her heallli ansing (tut ol the non-union ol ihc liacture o f ihe bone w h i J i has remained l o i a long p u i o d in iiilei-niclallaiy nail and testiic lion of Ihc niovcmenls ol the tingcis due lo paralysis to the nerves Is Iy6 v * " Jan 27 HS··! (. MKIS10DOI m u υ. \ICOSSVA\ V^NICOUAND OTHFHS ,l,f>6 7 A p p e l l a n l ' s counsel s u b n i i l i e d t h a t the i r i a l C o u r t d i d n o t ; ; _'"''' Ι*Κ"J Jan. 11 take i n t o sufficient Ίϊν:ι effect o f her i n j u r i e s . T h i s d o c t o r staled l h a t , in his o p i n i o n , ( '||K|Sh)lil>tJI.DI /'. c o n s i d e r a t i o n t h e evidence o f Dr. T. L v d o k a s , a p s y c h i a t r i s t , whose e v i d e n c e it was stated w e n t m u c h f u r t h e r t h a n the i r r i t a b i l i t y o f the p l a i n t i f f as a n a f t e r ­ i r r e s p e c t i v e o f t h e plastic o j e r a t i o n s , t h e p l a i n t i f f w o u l d be N i l OS S\C'V.\ handicapped MiM'i.t A M I ι"ίty c o m p l e x and l h a t , besices t h e e m o t i o n a l aspect of the mums psychologically scars, her prospects of added that and liable m a i "iage were a successful to develop inferio- p r e j u d i c e d ; hut plastic o p e r a t i o n would he improve her p s y c h o l o g i c a l c o n d i t i o n . H a v i n g given the m a i l e r ot r best c o n s i d e r a t i o n we are n o t c o n v i n c e d either l h a l ihe ' V.uri a c t e d u p o n s o m e w r o n g p r i n ­ c i p l e o f law or l h a l the a m o u n t a w a r d e d was so v e r y s m a l l as t o m a k e i l , in the j u d g m e n t of i b i s C o u r t , an entirely e r r o n e o u s e s l i n i a l e o f i h c d a m a g e l o w h i c h the p l a i n t i f f is e n t i t l e d (Hint Cacoyianni Ncwsfuipcr.s K. L. (). v. Lovell 11935] i K. t i . 354 al page 360, C . A . ; v. I'tiptidapottllos, Ltd. v. ( yprus IK C. L. R. 205 ; and. W ines and Spirits Kvmsley (Ό. Ltd.

(1958)23 C. L. K. I at page 15). b o r these reasons we w o u l d not be j u s t i f i e d in d i s t u r b i n g Ihc f i n d i n g o f t h e t r i a l C o u r t as l o the a m o u n t of d a m a g e s . I n a n y event, we d o n o t think t h a t , t a k i n g all i h e c i ' v u m s t a n c e s the a m o u n t o f £.4,000 assessed as into consideration. general d a m a g e s on the basis o f f u l l l i a b i l i t y is o n the l o w .side. I n (he result the a p p e a l is a l l o w e d a n d the j u d g m e n t o f t h e District Court v a r i e d t o lire extent that j u d g m e n t f o r the p l a i n t i f f is e n t e r e d i n the sum o f £2,500 a g a i n s i b o t h defend­ ants w i t h costs f o r one a d v o c a t e here a n d in the C o u r t b e l o w . The cross-appeal is d i s m i s . e d . Ippetd ιί//"ΐιν,7. Judgment District Court varied ( hder for costs as aforesaid. appeal ':> dismissed. of the accordingly. C ross