clr/1966/1966_1_235.pdf

(1)as regards the complaint that the respondent (plaintiff) failed t o take avoiding action, it has been held that where " a wrong " step is taken by a driver in the agony of the collision it does not follow that the step was a negli­ gent step if the other driver by his negligence placed the first driver in a position of danger, (see Chaplin v. Η awes 3 C. & 235 IOANNOU AND v. Fivos MlCHAELlDES 1966 June,10 P. 554 ; Swadling v. Cooper [1931] A.C. 1, at p. 9 ; and Wallace v. Bergins

(1915)S.C. 205). CHRISTAKIS IOANNOU AND ANOTIItR n. Fivos MlCHAELlDES

(2)There is no doubt in this case that the appellant-defendant driver by his negligent action in emerging from an open space in the respondent's-plaintiff's path on the main road put the respondent in a dilemma and, even assuming that the latter did the wrong thing, we think that, having regard to the circumstances of this case, including the short space of time , the respondent (plaintiff) did not have the time or the opportunity to take effective avoiding action in the agony of the collision. Appeal dismissed. No order as to costs in the appeal. Cases referred to ; Chaplin v. Howes. 3 C. & P. 554; Swadling v. Cooper [1931] A.C. I, at p. 9; Wallace v. Bergins

(1915)S.C. 205. Appeal. Appeal against the judgment of the District Court of Limassol, (Loizou. P . D - C & Malachtos D.J.) dated the 31st March, 1966, (Action N o . 1055/64) whereby the defendants were adjudged to pay to the plaintiff the sum of £334 by way of damages for bodily injuries he received at a road collision. X. Clerides with N. Pelides, for the appellant. /. Maounis with E. Mkhaelides, for the respondent. VASSILIADES, J. : Mr. Justice Joscphides will deliver the the first judgment. Josiii'HiDEs, J. : In this appeal the appellant admits that the accident was caused by his negligence but he alleges that he was only partly to blame and that the respondent contributed to the accident. The trial Court found that the appellant was fully to blame and that the respondent did not contribute at all to the accident. The accident occurred between the 46th and 47th milestones on the Nicosia-Umassol road. As the respondent was driving to Limassol in an Austin A50 car, the appellant, who was driving a Pontiac Parisienne, emerged from an open spa236 ce on the kll hand side ol tin. respondent, he tut aciess the path of the icspondenl and he had gone for a distance of ^8 ft diagonally win.η the two cais collided The admitted point of impact is within M^inch lioni the Lentil of the asphalt road on the appi Hani's side iyC)6 un l' CHRJSTAKIS IOANNOU AND ANOTHI-R /) I' I he evidence ol the plaintiil, as sumniaiiscd in the |udgFI\OS ment ol the lual Couit, ib to the effect that, while he was dnvMnn\Liiuhs nig his <_.ιι ,u about A'j m ρ h on his propei side of the ι cad, joscnh7d.es f he saw the defendant's eai suddciidy emerging tiom the open space on Lis (plamlifl'

1. s)neaiside and proceeding in the direc­ tion of N u o ' i a holding its ollside of the road I'lauitilf last hied ίο zo luilhu to his rtghl but then he saw the detendaal , Ko luiiiing lo the same side and he again turned lo Im kll He Ί ι α Ι lo apply his hi ikes, he said, but beloic he eouM app'v .hun haul enoimh Ihc accident occulted The defend pit's WIMOII, on the other hand, is that he was driving hi1· ear out ol an open space into the highwav Relore doing so he looked lo his 'ell and right to see whether lli- road vva , clear He did not see
2. an)vehicle and he enter­ ed the asplkih road and proceeded in the direction of Nicosia Alter lu1 piot-eded on the asphalt load foi some distance i'L >a\v the plaintiil s car from a great distance coming to­ ward Inm lie Ihe η proceeded lo get to his nearside of the to ul Μ\Δ wh*n he saw that Ihe plaintiff was going on the •vioiig side brought his cai to a stand-still and sounded his horn Ivi lac plaintiff d u n e on and the two \ehiclcs collided wi.h lhen 11nni olbides A·, a lesult of the impact the plaintill s icspoiidoni's ear came to a stand-still 6 ft from the point oi impact whilst that of the defendant-appellant was pushed back about 8 ft The Inal Couit found the lacts in accordance with the plaintiil s version and they went on to say that it was quite evident that the defendant came on to the road wilhout first ascci taming wheihei Ihe road was clear and at a lime when it was not in l a d clear and, on the contrary, was \c\\ dangeious loi him lo have done so Having done so he proceed­ ed on his ollside of the road and thus placed the oncoming pJatnlill in a diflicult predicament and in such a position that he could not reasonably be expected to avoid the accident In those cticumstances the trial Court found for the plarntiffie>pondcnt and concluded that the defendantVappeilant's negligence was the sole cause of the accident 217 J96ci It was argued before us today thai the respondent did not take proper avoiding action which a reasonable man could have taken under the circumstances. There were no brakemarks on the road and it was submitted on behalf o f the appellant that the track marks o f his Pontiac car of 58 ft. on the main road were straight dust tyre marks and that there w a s IU1 zigzagging, which is inconsistent with the plainliff'srespondent's version. It should be borne in mind, however, MI1C ' CHRISIAKIS IOANNOU AND ΛΝΟΤΠΙ'Κ Fiviw MUMAHIDHS ivnhid-s \ , ' i a l a s i l £ a m s t t n a t ln(-* respondent was driving along an open main road, which was nor in a built-up area, thai there was no speed limit and no " slow " sign, that he was driving on his proper side of* the road, ihat his speed was 45 miles per hour on a straight stretch o f the road, and that even if his speed was higher he could not be held to be negligent in these circumstances. As regards the complaint thai the respondent failed to take avoiding action, it has been held ihat where a " w r o n g " slcp is taken by a driver in the agony o f the collision it does not f o l l o w thai that step was a negligent step if the other driver by his negligence placed ihe first driver in a position of danger; but the latter is lo take a step which a reasonably careful man would fairly be expected to lake in the circumstances (Chap/in v. Howes, 3 C & P. 554 ; Swadllng v. Cooper 11931] A.C. 1, 9 ; and Wallace v. Berlins

(1915)S.C. 205). This is a ques­ t i o n o f fact in each case. There is no doubt that the appellant by his negligent action in emerging from an open space in the respondent's path in the main road put the respondent in a dilemma and, even assuming that the killer did the wrong thing, I think that, having regard to the circumstances o f this case, including the short space o f time taken by the appellant's ear to cover the distance o f 19'/, yards up to the point o f impact, the respon­ dent d i d not have the time or the opportunity to take effective avoiding action in the agony o f the collision. I am o f the view thai on the evidence before the trial Court it was open to them to f i n d as they d i d , that the appellant was solely to blame for the accident, and I would, therefore, dismiss the appeal. VASSII.IADI'.S, J. : M r . Justice Triantafyllidcs will deliver the second judgment. T H i A N T A i Y t u m s , J. ; I would like to say only that I agree with the conclusion reached"by M r . Justice Josephides in this case, but my approach is slightly different. Though 238 I do think thai there is material on record on which the trial Court could possibly have found the respondent guilty of contributory negligence, silting here on appeal I do not think that the view taken by ihe trial Court, to the effect that appellant was solely to blame, is so erroneous or unwarranted as to make it proper or necessary for this Court to interfere in the matter. I, therefore, would dismiss ihe appeal, too. VASSILIM>IS, J : After exhaustive discussion I still find myself unable lo agree thai there are no circumstances justifying the intervention of this Court in the findings of the trial Court. It is common ground thai the collision was the result of negligence ; and thai it resulted in damage amounting to a considerable sum, nearly a thousand pounds. The trial Court reached the conclusion that no blame could be attributed to the driver of the smaller car involved in this collision; (the plaintiff in the action ; and respondent in this appeal) They have reached this conclusion on the evidence before them', consisting of the sworn versions of the two drivers and also of the real evidence in ihe ease, regarding which, there is no dispute. The sworn evidence of ihe driver of the smaller car, is to lire- effect Ihat at the material time he was driving at 45 m.p.h. Ncveitheless, when he came into collision with the other car, a much bigger and heavier vehicle, moving on the opposite direction, or having jusl come to a stand-still, the resultant positions were ihat the bigger ear was pushed backwards some eight ft. towards the oilier side o\~the road, while the smaller car went further on for 6 ft. to the other side of the roadThis, to my mind, is real evidence inconsistent with the estimate of his speed by the driver of the smaller car ; and consistent with the version of the driver of the bigger car, that the smaller car was travelling at a great speed.There is another material point where the real evidence contradicts, in my opinion, the version of the driver of the smaller car, which was accepted by the trial Court ; and'supports the version of the driver of the bigger car, which was rejected. This is the dust tyre-marks found on the asphalted road, as shown in the plan. This real evidence shows that the bigger car covered a distance of about 20 yards in a somewhat oblique direction, from the entrance of the parking place (which was on the smaller ear's proper side of the road) towards the bigger car's proper side, but running in about 239 1966 June, 10 CHRISTAKIS IOANNOU AND ANOTHER f>. Fivos MlCHAELIDFS Triantafyllides. J. !%6 June, to CnmsiAKis loANNoti AND i-'ivi* MKHAIIinrs the middle οΓ the road. This evidence is also inconsistent l i ) c v c l s i o n u f t i l c driver of the smallercar, that the olhcr W{in car was moving in his path ; and that in so doing, it put Ihe driver o f the smaller car in a predicament. This seems lo me, reading the judgment o f the trial Court, to have been the main factor which led the trial ( o u r l l o their conclusion that the blame for the collision musl be placed entirely on the driver o f the bigger car. It seems to me thai this conclusion ignores the undoubted fact that the smaller car must have been travelling at a speed considerably bigger than thai stated by its driver. It also, I think, ignores the fact thai the driver o f the smaller car failed lo lake the proper avoiding action by taking more to his pro­ per side, which il was his legal duly to do, in the circumstances. Had the driver of the smaller car taken the proper avoiding action, ihat is to say, had he kept to his proper side o f the road, and had he reduced his speed, he would, I think, have avoided the collision, which, according to the police-plan, occurred about an inch further f r o m the middle o f the road, towards the proper side o f the big car, and on the wrong side o f Ihe smaller car. According to ibis plan there is no doubt, that from the point o f impact, the smaller car had at its disposal nearly 10 ft. o f asphalted road, plus 3 ft. o f berm. I cannot sec how the driver o f the smaller car can be said to be entirely free ol all blame, for this collision, when he failed, in the circums­ tances, to make use o f these 13 ft. o f road, on his proper side, for .avoiding action. It is in Ihcse circumstances that I f i n d myself not only un­ able to agree w i t h the conclusion that the blame and liability for this collision must be placed exclusively on the driver o f (he bigger car ; but I also f i n d myself unable to agree that, in the .circumstances, Ibis Court should not intervene in the findings o f the trial Court. It may well be that a bigger share o f blame rests on Ihe driver o f the bigger car. It may also be that the liability o f the driver o f the smaller car must be found at a correspondingly smaller percentage than that o f the driver o f the bigger car ; but 1 cannot see how the driver o f the smaller car can be held entirely unconnected with the negligence which caused the collision. In view o f the result o f Ihe majority judgment in the pre­ sent appeal, I do not think that it is any use my going further 240 into the question of how the blame for the collision and the corresponding liability of the two drivers should, be apportioned. I, therefore, leave the matter at that. 1966 June, 10 OlRlSTAM'S IOANNOU In the result Ihe appeal will be dismissed as decided b> the judgments of the majority of the Court. As regards costs, we all agree that in the circumstances, there should be no order as lo costs in the appeal Appeal dismissed. Noorder as to costs in the appeal. 241 AND ANOTHER n. • Fivos MlCHAELlDES Vassiliades, J.