clr/1966/1966_1_191.pdf

(2)that I h c a m o u n l o f c!.700 . general damages is w h o l l y inadequate in the circumstance 1 * o f the case. The d i a l C o m l f o u n d that the appellant was an average n o n n a l person before the aeeidenl anil that after the accident he was suffering f r o m i n s o m n i a , dizziness, vertigo auu head­ aches and dial he became partially scxuall) i m p o t e n t . I'll H J I IOANNO, ''->«' April 15, ;1V M 10 Held. (I) On ground (I) . We can dispose right away of the first ground of appeal COSTAS CH. by saying that though ii might have been open lo the trial OtNsiANiiNinis Court lo assess separately as special damage the loss οΐ carn- ''• ,AN ,I,S ' ll.il lOANNOU ings ol" appellant until the date of trial, we. nevertheless, are of the opinion that, in the particular circumstances of , . , , - • II · , this case (and taking especially into account that il appears lo exist some uncertainly as lo whal extent appellant did work during the period pending trial) il was equally open to the trial Court lo ileal with the question of the past loss of earnings under the heading of general damages, as it did ; and in this respect, therefore, this appeal fails. field, ill) On ground

(2);

(1)In the present case, we are not simply l;u:ed with the usual case of a person whose earning capacity has been dimi­ nished permanently, for the future, because of some partial physical incapacity due to injuries as e.g. is the case of a person who has been incapacitated lo some extent regarding the use of" an arm. but who can take up sonic oilier employm a i l not necessitating such use and who can (lien in such other employment perform as effectively as the normal aver­ age person : we are dealing here with the tragic case of a person who suffered a vetv appreciable menial deierioialiou icndering him indeed unfit, lo a large extern, for any kind of cmploMiienl. and also eondemning him to the life of a person with subnormal reactions mentally, as well as sexually. M o r e o v T . there does not appear to be really much prospect of recovery.

(2)Il must, fuilher. be borne in mind that out of the 11.700 awarded lo appellant, a considerable pari thereof musl be attributed to the loss of earnings of appellant over the period of two years which ran between the accident and the d i a l of this case ; the trial Court did expressly say in its judgment that it includetl this special damage, by way of loss of earnings, in the general damages,

(3)Il is c o m m o n ground (hut appellant's average earnings at the lime οι ιhe accident were £2 per day : so. even if we make a!! possible allowances for any fluctuations in such earnings as appellant is a self-employed person and for the fact that appellant may have earned some reduced earnings during die said ( n o years, we slill d o not think thai anything less than half of the a m o u n t of £1.700 can pro192 perlv be .illrihuted lo the loss ol earnings oi appellant until lhe dial Ihvis. we aie lelt with the Kiel dial, in d i e d . the olhei halt of i 1,700 was all ili.il was awarded lo appel­ lant, by way ol genet al damages, lor future hiss ol earnings due lo diminished earning capacity because ol the mote 01 less p e i n u n e n t consequences ol his injuries as well as lor his pain and sullenng and loi ihe general delcnor.ilion ol his menial health and sexual potency (A) In the hghl ol all ιhe loiegoing we have come lo the conclusion dial Ihe award ol the (rial Court by way ol genetal damages, is so cle.uly inadequate as lo necessitate our intervention . and we think that anything less than a global figure ol 12.^00, by wa> of general damages, including past loss ol earnings mil11 Ilie dial, cannot piopeily meet the situation , we. iherctoie set aside the award ol £1,700 and we substitute one lot L \MH) a n d this appeal is allow­ ed lo dial extent with cosis Ippeal allowed with · osts Inal Com f's awaid id tlamages set asirh and stihstitufed as alum· Cases lefened lo Christodindon ν Mennou η pm led in fhis Iol alp 17 ante. loannou \ Ilow aid, η pot ted in this Iol at ρ 45 ante. Muhaelides v. PidvMou, repotted m tins Sol at ρ \^5 ante. Appeal. Appeal against the itidgment ol the Distnct Couit ol Limassol (Malyah & Heha UJJ ) dated the 4th Decernhir. 196b, (Action No 1360/63) whereby the defendants weie adjudged to pay jointly and severally lo the plaintiff the sum of £1700 by way of damages in respect of injuries he received in a tiafl'ic aeeidenl, while being a fare-paying passenger in a eai belong­ ing to defendant 1 and driven by defendant 2 Ί /' iiKistassiades,for the appellant. (J C(t<o\tamiis'. for die respondents Cur (hl\ vufi VASSIIIADIS, J. : Mr Justice rriantafyllidcs will deliver the judgment of Ihe Couit. 193 I -)wu Λριιΐ l \ May 10 COSTAS CM CONSTANT INIDI S υ YIANGOS HJ! lOANNOl |lJi, i,' ΛριιΙ la (OSIAS Cn O»NMAMIMI.»S ΙκίΛΝίΛΐ νι ιtots, J Ihe plaindll-appellanl challenges by , | l l s anneal that pail ol the ludgment of the Distiicl Court ol" l imassol, in civil action No 1360/63, by which he was awaided £1700 genetal damages in respect of injuncs which he loth May, 1963, in a traffic accident, while r c c e l v c t ) o n l h c Yi\s. os idi IOVNSJOI being a tare-paying passcngei in a car belonging lo delcndantlespondent 1, and driven by defendant respondent 2 Appellant challenges this award of damages on two giounds first, that the Couit erred in not awarding to him special damage in respect of his loss of earnings up to the date of lital, and including such damage in the global ligure of £1,700 as above , and, secondly, that the amount of £1,700 general damages in wholly inadequate in the ciicumstances ol this Case Wc can dispose nght away of the fust ground of appeal by saying that though it might have been open to the trial Couit to assess sepaialely as special damage the loss of earn­ ings ol appellant until the date of dial, we, iicxeilheless, aic ol lhc opinion that, in the pardculai circumstances of tin. Case (t\m.\ taking especially into account that it appears lo exist some unceitamly as lo what extent appellant did woik dining the penod pending dial) it was equally open lo the dial Couit lo deal with the question ol the past loss ol earnings undei the heading of general damages, as n did , Ληό Μ fin-, icsp^cl, (heiefoie, this appeal fails ( nming now lo the question of the adequacy of general damai'cs it is useful to relei tirst lo the relevant facts as found bv the trial C o m ! We quote horn pp i7-58 ol the record of appeal As a result ol this accident, the Plainlill leecived mjunes and was taken lo Nicosia Gencial Hospital wiieie he was examined by Di. Ρ Theodondes, who found Ihe plamdll sulleiing from* (

1. a)Modeialcly seveie Concussion l"
2. b)(wo laccialcd wounds on his face, one about 2" toim and Ihe oihei about 1" long (
3. e)λ lay ic'vcaled no fractuie I he plainlill" was treated, his wounds were stitched and diessed, and the plaintiff was kept under observa­ tion and liealmcnl up lo 25lh May, 1963 194 After his treatment, the plaintiff conlinucd to suffer from insomnia, dizziness, vcitigo, and headaches. Vhesc subjective symptoms which lhc plaintiff complained oi, constitute paiI of a post-concussion syndrome and are consistent with a head ιημιιν and brain concussion. On 16/9/1963. the plaintiff was examined b\ Or. lakis I vdokas, a specialist -nemo-psychiatrist. This Doctoi examined the plaintiff on a number of o'.her occasions and gave evidence before this Court as to his findings, we accept the evidence of Dr. Evdokas and we believe that the subjective symptoms plaintiff com­ plained of arc genuine and that they resulted from ihe said accident due ιο moderately severe concussion. This doctor classified die plaintiff's group of symptoms into two l h c fust one neuiological and consist of in­ somnia, di/vine:>s or at times vertigo, headaches and the second group of symptoms as mental or emotion.il na­ ture and consist o\" depression, sluggishnes:·. and paitial · sexual impotence lhc fact that two yea is have elapsed from the dale ol" lhc aeeidenl and the plainlill' continues lo have the second gioup of symptoms, will render these group o\' symptoms permanent The plaintiff is a mamed man aged 50. lie is a barber by profession and owns a barbei shop. He also had a novejty or a gift shop. Me used to employ appicnlices in his barber shop lo assist him. The plaintiff's earnings at the time of the accident, admittedly was £2. per day. The plaintiff was a healthy man and had hone -of these symptoms before Ihe accident. From the date of lhc accident up to, the piesent date the plaintiff has not been able to work, due lo these symptoms but Or. Rvdokas stales that it is time for the plaintiff to try his job as Ihe usual period that all these symptoms take is 2 years, although in some cases it may be more and in oilier less. From our above findings we come to the conclusion lhal the plaintiff up to the present date was unable to work as a barber. If the plaintiff starts to work as a barber now, and il is lime for him so to start, he will be in a disadvantageous position, to some degree, due to the permanency' o f the second group of symptoms, i.e. depression and sluggishness. On the other hand, the m 1966 April li, Mav 10 ( OSTAS C I I . CONSTANT IMDI-S P. YlANC.OS Mil lOANSOl' 1966 p n j' (nsrAs CM. plaintiff, after the lapse o f a reasonable lime l o cover his treatments, was able to carry on with the manage­ ment of his gift shop as ihis did not require much m o vemenl. ( ONMANl'INiniS /'. ^ IAN(; IS ' As to the sexual capacity o f the plaintiff, we believe thai he became impotent as a result o f this a c c i d e n t " . t i l l lOAMS'H! On the material before us, we can do nothing else, in this appeal, than lake il as a fact -as the trial Court has, also, d o n e thai appellant was an average normal person before the aeeidenl. The presumption, in the case o f any person who has been injured in an accident, should, normally, be that he was an average normal person before the accident, unless the contrary be proved. In this case, the evidence o f the wife o f appellant strengthens considerably this presum­ ption and, even though appellant himself has not been called lo give evidence, we arc o f the opinion that, on the prepon­ derance o f evidence before lhc trial Court, there could be no other conclusion than dial appellant was an average nor­ mal person al the time of the aeeidenl. In die light o f the. above lei us now examine whether the genera! damages o f CI ,700 awarded by the trial Court, are so inadequate, as lo warrant the intervention o[' this Court in tin: mailer. 1:: considering the question o f tiie adequacy of damages we have borne in mind die principles reiterated recently by this Court in the cases o f ChristoiUnilon v. Menieott (reported in this Part al p. 17 anif), louimou v. Howard, (reported in the Part al p. 4b ante) and Μ iehaeiules v. folyviou (reported in the Part and the p. 15') ante) regarding the approach by this Court, on appeal, to such a matter. In Clnistodoiilini v. M-micoii (supra) this Court refused to interfere wilh the assessment ol" general damages by the d i a l Court on the ground that it was " not convinced either thai the Court acted upon some wrong principle o f law or thai lite amount awarded was so very small as to make it, i n the judgment o f this Court, an entirely erroneous estimate o f ihe damage lo which the plaintiff is entitled (per Jo.sephidesV .1. al p. 36). In loittmou v. Howard (supra) this Court said : " O n the question of the quantum o f damages, we should point out al the outset thai an appellate Court w i l l not lightly inter­ fere with the discretion o f a trial C o u r t in the assessment o f 1% l966 damages unless such assessment is found lo be so manifestly excessive ov so manifestly inadequate as lo justify the making J A n f *- ' Max I'1 ol a icasscssiiienl ol damages on a p p e a l " (per Munii, .1 at ( 1,,AS ( ρ by.) , and also ' Ihe ncc-plcd test waiianling intuven " " ( don by the Cum Ι Ά Appeal in ihe assessment made b\ ihe ONXIAMIMIM trial Couil, is whelhei il is, in the circumstances, 'a wholly YUNCOS erroneous estimate o\' the damage suffered'. That means, HJI (OANSOU the assessment is too high 01 too low " (per Vassihades .1 al p. r)4). In the icsull, the amount of geneial damages in that case was inc. ιcased on appeal by 50% In Mtihaeliiles v. I'idwioii (supra) ihis Couit, applying lhc above principles, proceeded lo increase general damages again by !J0%, having taken the view that "the amount awatded to compensate the appellant for his loss in this tespeet, is cleatly an enoneous estimate of his damage at piescnl mo­ ney v a l u e " (per Vassiliades J al ρ Γϊ7) In the last analyas, of course the question of the adequacx of an award of geneial damages, is a question pumatiK de­ pendent upon the paideulai h u t s and circumstances of each speedn ca'-e The lad th.tt in two of the above icfeiied to cases this Court inleivened to increase general damages by b0°/o, docs not m any way establish that this Court would intervene onlv if in its opinion general damages are eithci loo high or loo low by at least r >0%; il is a question of decree, Λϋύ the said two cases meiefy show that such degiee must be a substantial one before this Court would disturb an awaid ol general damages as made hv a dial Court. Ihe task of ι 1MS Court on appeal, in eveiy such case, is, in effect, lo ensure that such an award comes within the limits of proper ICMItution , if thai is so, then this ί ourt will not substitute its own views m the place of those of a ttial Court as icivid-. the exact amount assessed ; if that is not so, then it is this Court's duly to intervene and reassess. In the present case, we arc not simply faced with the u-aiai case ol" a person whose earning capacity has been diminished permanently, lot Ihe future, because of some partial phx-teal incapacity due lo injuiies as e g is the ease of a pei^on who has been incapacitated to some extent regarding the u v of an arm, but who can lake up some other employment not necessitating such use and who can then in such othei employ­ ment peifoim as effectively as the noimal average peisou ; we aie dealing hot ο with'lhe trai'ic case ol" a person who suffe­ red a very appiecinble mental deterioration, reiidei mg In in indeed until, to a laige extent, ί·>; any kind of employment. 197 , ^ 1966 April 15, May 10 and also condemning himto the life of a peison with subnormal reactions mentally, as well as sexually. Moreover, there does not appear to be really much prospect of recovery. L'OSTAS C H CONSTANTINII1I-S I· YlANl.OS H J I IOANNOU We think it might be useful to refer, at this stage, directly to the evidence of Dr. T. livdokas, the specialist neuropsychiatrist, who was called by appellant, and whose evidence has been accepted by the trial Court ; his evidence, we must say, we find to be a very lucid exposition of the appellant's relevant health aspects. At pp. 16-17 of the record Dr. Evdokas summarized the position as follows : " Actually I see m this mantwo groups of symptoms. The first oneis what I call more or less neurological and I specify them, first insomnia, i.e. difficulty in sleeping ; second, dizziness orat timesvertigo andthird, headaches. The second group of symptoms is what I would call more on the mental side or of emotional nature ; these are two, his depression and partial impotence, that is his sexual energy is diminished. When I first saw him, I had ihe impression, about lhc first group of symptoms especially, that in time they would disappear ; and more or less, what was mental would persist, but as 1 understand he still continues having dizziness and headaches, and he presents the picture of whal I would call psychomotor retardation, depression and sluggishness ; his whole reaction is slow, and I do not mean only in terms of" muscles, emotionally his reactions are slow, and even intellectually he is slow ; for instance when you talk to him" he does not respond right away, he is not alert chough and youhaveto wait; if he starts a conversation he reaches a point and then stops or waits for a while and then starts again ; he is hot alert. His general depression had also affected the sexual sphere". And later on (al p. 17) 'die doctor proceeded lo state that he regarded the mental picture and the dizziness as permanent features, from now on, of appellant's medical condition ; and he explained that, taking into consideration the fact that, al the time he was giving evidence, two years had elapsed since the accident, and that the relevant symptoms usually disappear ina period between 6 lo 18 months, it was very difficult for himtosee much progress being made byappellant froni then on. P)8 Dr. I vdokas also slated (at p. 20) that il "would be very h a r d " for him lo see appellant working again as a haι her, in view of his being very slow and very sluggish ; and (al pp. 23-24) on being asked to say whether appellant could manage a novelty shop, he testified lhat he .would not say that appellant was unable to do this, if il did not require much movement, but he added lhat appellant would be at a ' disadvantage, in view of his sluggishness, in competing in the novelty-shop business. It must, further, be borne in mind that out of the £1,700 awarded to appellant, a considerable part thereof must be attributed lo the loss of earnings of appellant over period of two years which ruii between the aeeidenl and the trial of this case ; the trial Court did expressly say in its judgment that it included this special damage, by way of loss of eatilings in the general damages. It is common ground lhat appellant's average earnings at the time of die accident were £2 per day ; so, even il we make all possible allowances for any fluctuations in such earnings-as appellant is a self employed person-and for the fact that appellant may have earned some reduced earnings during die said two vears, we still do iiol think thai aiivthing less than half of lhc amount of Π,700 can properlv be attri­ buted to the loss of earnings of appellant until die trial. thus, we are lefl with the fact thai, in effect, the other half of £1,700 was all that was awarded to apjVellanl by way of general damages, for future loss of carhiiigs-due to dimi­ nished earning capacity because of the more or less per­ manent consequences of his injuries- as well as for his pain and suffering and for the geneial deterioration of his mental health and sexual potency. In the light of all the foregoing we have come to the con­ clusion that the award of lhc trial Court, hy way of general damages, is so clearly inadequate as to necessitate our inter­ vention ; and we think that anything less than a global figure of £2,500, by way of general damages, including past loss of earnings until the trial, cannot properly meet the, situation; we, therefore, set aside the.award of £1,700 and we substi­ tute one for £2,500 and this appeal is allowed to that cxieiit with cost's. Appeal 'allowed With easts. Trial '('m'th'χ mviird^ of-damage's set aside and substituted as above. I*W |t Λ -'6ft ? ,' ΓΙ COSTAS CH. CONSTANT ISIDIS υ. YlAMiOS HJI IOANNOO