clr/1966/1966_1_271.pdf

[ V A S S I I I.ADIS. A C . P. ΤΚΙΛΝΙΛΙΎΙ.Ι.ΙΙΪΓ.Ν, JOSCPIIIDJS J.J.] INOV. ο ZENON CHARALAMBOUS, Appellant- Defendant, Z E N O N CHARALAMBOUS V, IK lOANNIS M l C H A H . IOANNIS MICHAEL KOUTSIDES, Respondent- {Civil Cml Wiongs lision Negligence-- Road uf motor Appeal Traffic —Road KOUTSIDES Plaintiff. No. 4565). Accident- vehicles - Negligence- -Liability— Col­ Approach of an Appellate Court to the findings of trial Courts on the issue of liability bindings of trial Courts on the issue of An Appellate trial Conn, Court negligence— will consider whether it was open to the on the evidentc before them, to make the in question -- Regardless oj what view findings the Appellate Court might take of the evidence in the first instance—Petro-i Anto- n t m i r. Yasliar L l m a z . {reported principles Practice- in this Part at p. 210 ante) laid down ubi supia at p. 212 ante a p p l i e d - - . tppeal -Findings of <m Appellate Court of c/c. etc. -See under Civil Praci'uc - Appeals Application in tivil fact by Wrongs t ircumstum es of the present Motor Wrongs Findings Veh'ule.s Cases referred liability appeal—Amendment— of notice of appeal to cover previously —Refused the m the case. . Collision- - Liability —Sec under Civil abo\e. of fact by trial Appellate Courts- - Approach above. eases- Notice of lor amendment tftiesturn of damages not tovered Negbgcmc trial to such findings on the issue of Court -Approach Court—Sec under Civil to such findings Wrongs, Practice by an above. to : Petros Antoniou v. Yashar FAtnaz, ( r e p o r t e d in this Pait at p. 210 ante): principles laic! d o w n at p. 212 ante, applied. Appeal. A p p e a l against the j u d g m e n t οΓ t h e " D i s t r i c t C o u r t of Li- massol ( L o i z o u P.D.C. & Malachtos D J . ) dated the 3 r d Ja271 1966 May, 6, 19, Nov. 8 nuary, 1966 (Action No. 373/63) whereby the defendant was adjudged to pay to the plaintiff the sum of £5,670.450 mils by way of damages for negligence in a road accident case. Zl-NON CHARALAMBOUS o. lOANNlS MlCIIAtL A. P. Anastassiades, for the appellant. L. Clerides with J. Mavronicolas, for the respondent. KoUTSIDfS Cur. adv. vult. The judgment of the Court was delivered by : VASSILIADES, A C P. : This is an appeal by the defendant from the judgment of the District Court of Limassol in an action for damages for negligence in a road accident case, where the trial Court found that the accident was due to the negligent driving of the defendant-appellant, and awarded £5,670.450 mils damages, and costs. In the trial Court, the action was fought mainly on the issue of negligence, each party alleging that the collision between the two vehicles involved, was due exclusively to the negligence of the other side, the parties being the respective drivers of the vehicles; or, in any case—the defendant alleged— the plaintiff was guilty of contributory negligence, and liability as well as damages, should be apportioned accordingly. In the course of the hearing, the parties agreed on some of the main items of the damages claimed ; and the appeal was taken against the trial Court's finding on the issue of negligence, leaving the award for damages unchallenged. The notice of appeal expressly stated that the appeal was "against so much of the judgment as it does not attribute any blame to the plaintiff for the accident". During the hearing of the appeal, however; it appeared that the long and complicated treatment to which the plaintiff was subjected for his injuries—which naturally affected the amount of damages—raised questions of importance, both to the parties of this action, " and generally to all concerned with this type of claim ", as to make it appear thai further investigation in that direction might be desirable. Opportunity was, therefore, given to the appellant to apply to amend his notice so as to cover the question of damages as well. A formal application was filed on behalf of the appellant for the purpose, supported by affidavit evidence, which was opposed on behalf of the respondent, with affidavit evidence in opposition. 272 After hearing Counsel on the merits of the application for amendment, we think that we can dispose of this matter by saying that in the special circumstances of this case, we should refuse the application for amendment; and we direct accord­ ingly. May, 6, 19, Nov. 8 ZENON CHARALAMBOUS P. Returning now to the merits of the.appeal as it stands on the original notice, we have no difficulty in deciding the ques­ tion raised therein. The approach of an Appellate Court to the findings of the trial Court on the issue of liability (which is the only question for decision at this stage) was the subject of discussion in a number of cases decided in this Court. In a similar case Petros Antoniou v. Yashar Elmaz (reported in this Vol. at p. 210 ante) delivering the judgment of the Court, I am reported to have said (at p. 212): " T h e findings.of the trial Court arc crucial in this ap­ peal, as the issue of liability is the main dispute ; and the appeal, turns on such findings. Our approach, as an Appellate Court, at this stage of the case, must be to consider and determine the question whether it was open lo the trial Court, on the evidence before them, to make the findings in question. Regardless of what view we might lake of the evidence in.the first instance, we think that it was open lo the trial Judges to find as they d i d " . Kurther down on the same page, the judgment reads : " T h e position regarding findings of facts made by the trial Court, when considered on appeal, is now wellsettled in a number of cases, to which I need not speci­ fically refer, except for Mamas v. The Anna Tyres (reported in this Vol. at p. 158 ante) where the matter was again raised". We do not think that we need go further with the matter. In this particular case we unanimously take the view that on the evidence before them as it appears on the record, it was certainly open to the trial Court lo find as they did; and we may, moreover, add that we are, again unanimously, of the opinion ihal the finding of the trial Court on the question of negligence in this case was fully justified. This appeal must, therefore, fail and be dismissed with costs, excluding costs for the 19.5.1966 for which day we make no order for costs. Appeal dismissed. Order for costs as aforesaid. 273 lOANNIS ΜΚΗΑΓ KOUTSIDES