clr/1966/1966_1_45.pdf

(1)After carefully weighing the factor relating to the respective parts which the appellant-plaintiff and respon­ dent-defendant had played in the accident and to the extent to which each of them was negligent, and in view parti­ cularly ot the existence ol the ' slow-down stgn at the material point, to which wt consider the trial Court did not give the weight which it deserved, we come to the tonclusion. that, on balance and on the lindings of lact made by the trial Court, the apporlionment ol the degree ol negligence between the parties should be that ihcy each contributed 50 per cent to the negligence which caused the accident, (instead of 80 per cent to the plamtill-appellant and 20 per cent to the defendant-respondent as found by the trial Court)

(2)Ίhe apportionment of liability where there is negligence on both bides, is a question of fact, primarily within the functions of the trial Court. But it is generally a matter of inference Irom the surrounding material facts, from which the Court of appeal are in as good a position as the trial Court, to draw their own inference is to the apportionment of negligence And in the circumstances of this case, as found b> the trial Court or as they stand undisputed on record, wc unanimously take the view that the negligence which caused the accident rests, moic or less. coually, on the two sides And that liability must, therefore. be apportioned aceoidmgh as aforesaid. <6 not 1965 Dec. 10 1966 Feb. 4 Held. //. As to the quantum of general damages :

(1)On the question of the quantum of damages, we should point out at the outset that an appellate Court will lightly interfere with the discretion of a trial Court in the PHOTIOS IOANNOU assessment of damages unless such assessment is found to be so manifestly excessive or so manifestly inadequate as to D. JOHN VINCENT justify the making of a re-assessment of damages on appeal. PETER. HOWARD

(2)In view, however, of ;i great number of factors (v. infra in the judgment) and having regard to all the circumstances of the case, we are of opinion that the general damages of £1,800 which have been assessed by the trial Court on a full liability basis arc manifestly inadequate and constitute wholly erroneous estimate of the damage suffered. In the circumstances, we consider that we should increase the amount of general damages by 50 per cent which we accor­ dingly do and we award on a lull liability basis the sum of £2.700 instead of £1.800 awarded by the trial Court as general damages. In all. therefore, the damages on full liability basis, together with the £512 special damages awarded by the trial Court, brings the total assessment of damages to £3,212.

(3)In the result the judgment of the trial C o u r t awarding lo the plaintiff-appellant the sum of £462.400 mils should be set aside and there be substituted therefor judgment in lavoui of the appellant-plaintiff for the sum of £1.606 (viz. half of the sum of 3.212 on a full liability basis, as aforesaid) plus interest, at 4,,1/, from to-day, with costs. Appeal allowed Cases ιeferred to : with costs. ' Patsalides v. Afsharian

(1965)1 C.L.R.

1. Tessi Cfiristodoulou v. Nito\ Menicou and others {reported in this vol. at p. 17 ante). Ward v. James [1965] 2 IV.LR. 455, at p. 470, per Denning Per curiam: Lord M.R. Wc wish to refer to Ward v. James [1965] 2 W.L.R.
2. whcie Lord Denning M.R., with the support of a full Court of Appeal, dealt in a masterly judgment, if we may say so with respect, with, inter aim. the matters affecting the assessment of damages in cases of personal injuries and at p. 470 is-reported to have said : " I would add this. T h e assessment s i C 47 I96S damages is almosl as difficult as the sentencing of offenders . But cannot wc do moic than at present, to secure some measure of uniformity ''* r>cc to 1966 l·eb 4 PHOTIOS IOANNOU υ J O H N VINCFNT PFIER HOWARD Appeal. Appeal against the judgment of the District Court of Limassol (Lotzou Ρ D C & Malachtos D J ) dated the4th August, 1965 (Action No 302/63) whereby the deiendant was adjudged to pay to plaintiff the sum of £462 400 mils by way damages for injuries he sustained in a traffic accident C/ti Demetitath*\, for the appellant Chat D loanntdcs, fot the icspondent ( in a(f\ xitlt VASSII lAuis J i shall ask Mr Justice Munu to deliver the first judgment MUNIR, J This is an appeal from a judgment of the District Court ot Limassol (sitting as a Full Court) dated the 4th August, 1965, in Action N o . 802/63, wiierebv it was found that the plaintiff, a pedestrian, who was injured when the M.G 8 horse-power motor-vehicle No A.V 672 driven by the defendant along the Limassol-Akrotiri main road collided with him on the morning of the 6th Maieh, 1963, was negligent but that the defendant had contnbuted to the negligence of the plamlifl Ίhe Distuct Couit, in apportio­ ning the degree of negligence between the plaintiff and the defendant, held that the plaintiff hadcontnbuted 8 0 % to the negligence and that the deiendant had contributed 2 0 % On the basis of this apportionment of thenegligence the District Court gave judgment in favour of the plaintiff for thesum of £462.400 (plus legal mlcrc^l at 4 % p a ) The said sum awarded being 2 0 % of the damages, which were assessed on a full liability basis, by Ihe Iral Court t o be £2,312 Of this total amount of damages, the ium of £512(ιe. £312 toi loss of earnings for twelve months at £6 per week, together with medical fees of £150 and transport expenses of £50) were assessed as special damages and Ihe sum of £1,800 as general damages. By his notice of appeal da'ed the 14th September, 1965, the Appellant-plaintiff appeal· against the whole of the judgment of the District C o u i t on the following grounds 48 " ( a ) That thejudgment o f the C o u i t was erroneous in law, and/οι in fact, being against the weight o f evidence and/or against the only positive evidence as to how the collision occuned, which evidence stands uncon­ tradicted 1965 Dec 10 1966 Feb 4 PHOTIOS IOANNOU Ρ (b) The Couit below ened in law in considering the point ot impact and the presence o f any other vehicles on the road, of secondary importance (c) T h e Court below was w i o n g in f i n d i n g that the defen­ dant was only 2 0 % to blame f o r the collision having rcgaid to all the uieumslances o f the accident (d) The C o u i l below cired in awarding to the plaintiff the sum o f £2,312 on l u l l liability, special and geneial damages, having rcgaid to the seriousness o f the mj u i v , pain and suffering and the resulting incapacity, as well as the length ol medical treatment and damage sutleied by the p l a i n t i f f " At tiie hearing ol the appeal counsel foi appellant confined his arguments, and quite nglitlv so in our view, to theques­ tions o f

(1)the appoilionment o f the dcgicc ol negligence between the plaintiff and the d e k n d a n l , and

(2)ι ΐ κ assessment ol the quantum ol damages , o n the assumption that the IHidings ol lacl made by the trial Court had bi-en piopcrlv made and that such findings o f iact would not be distuibed We piopose dealing Inst with the question o f the appottionmenl o f negligence between the plaintiff and the defend m l The Inal C o u r t , in making the appoilionment o f negli­ gence in the manner in which it d i d , l o o k into consideialion the following loui specific inulings ol fact w h i c h it h i d made ( i t ρ 46, letters A I ) , ol the appeal record)

(1)' that ihe plainlifl darted to cross the road without I U I M P I : .ι p i o p c i look out , (•>) ihat no oihei vehicle was al ihe time o f the accident on the load ,

(3)dial i\w point ol impa< l was the poinl indicated to SJ.M I'aMrlla . bv the dclend.ini which is on the betI T al a distance o f two feet away Irom the edge o f the asph ill , I1) JOHN VINCLNT PntR HOWARD Munir, I 1965 Dec. 10 1966 Feb. 4 PHONOS IOANNOU I). JOHN VINCFNI' P L I I K . HOWARD M u n i r , J.

(4)that ihe defendant al no time sounded his horn ". It was after taking ink consideration the above four factors and having regai d to "the time and place at which this accident occurred ", lhal the trial Court found that the defendant had contribute •d lo the negligence of the plaintiff lo the extent of 20% Counsel for appellant-! ilaintiff argued that the trial Court had erred, even on theI acU as found by it, in finding that the respondent-defendanl had only contributed 2C% of the negligence and counsel I or respondent-defendant was heard in reply. We consider that it might be convenient, in examining this question of the apportionment of the degree of negligence, to set out the findings oi' fact relating lo the negligence of the appellant-plaintiff (the pedestrian) and the respondentdefendanl (the driver), icspectively. The determining facts relating lo the negligence of the appellant, on the evidence as found by the trial Court, may be itemised as follows : (

1. a)the appellant-plaintiff darted to cross a main road without having a proper look out; (
2. b)the fact that the appellant-plaintiff always crossed that part of ihe road at about the same lime every morning and his knowledge ofthe traffic on that road at that time should have put him on his guard as regards the dangers of crossing such a main road without a proper look out ; (
3. c)the rest of thegroup ofabout ten laboureis, of which the appellant wasa mrmber, hadall successful!) crossed the road at about that time. As to the determining fads relating to the respondentdefendant's share of the negligence and the part which he played in the accident, again on the facts as found by the trial Court, these may be itemised as follows : (
4. i)there was ho other vehicle on the road at ihe time of the accident ; (
5. ii)the point of impact was on the bcrm of the road at a distance of two feet away from the edge of the asphalt on the left-hand side of the vehicle, that is, 50 the pedestrian (appellant) had crossed more than 24Y2 ft. of Ihe road before he was knocked down by the respondent ; (iii) the main road in question was a straight asphalt toad, the asphalt of which alone was 2 2 % feel wide ; (
6. iv)there was nothing lo obstruct the visibility of the respondent-defendant as he was travelling along the part of road at which the accident occurred ; (
7. v)as staled in the evidence of Sgt. Savvas Pastcllas (p.9 of the appeal record) there was a " slow-down " sign as indicated at point Β on the sketch-plan Exhibit \, which was about 195 feet from the spot where the accident occurred. Sgt. 1'astellas explained that although ihe area in question was not in a "speed limit" area the " slow-down '* sign was placed there " because the parking place is there with entrances and exits " (p. 9 Idler Ci). The parking place is as indicated on the sketch-plan Exhibit 1, on the opposite side of the road from point ΙΪ al point C ; (
8. vi)the main road, just beyond ihe place of the accident, comes to an end with the main gate to the entrance of the Guard-Room, Akroliri ; (vii) the respondent-defendant worked at Akroliri and he travelled along that road every morning and passed ihe " slow-down ". sign and ihe main gate at the end of the road every morning ; (viii) on ihe morning of the accident ihe respondentdefendant, according to his own evidence {vide p. 32 of the record, at letters Κ lo F) was two or three mi­ nutes late in arriving at his work due to heavy traffic which he had encountered on his way. After carefully weighing the factors relating lo the respe­ ctive parts which the appellant and respondent had played in the accident and to the extent lo which each of them was negligent, and in view particularly of the existence o\' the "slow-down" sign at point Β on Exhibit 1, to which we consider the trial Court did not give the weight which it deserved, we have come lo the conclusion, that, on balance and on the findings of fact made by the trial Court, the apportionment of the degree of negligence between the appellant-plaintiff and the respondent-defendant should be that they each contributed 5 0 % to the negligence which caused the accident. 51 1965 Dec 10 1966 Feb. 4 PHOTIOS IOANNOU n. JOHN VINCENT PETER. HOWARD Munir. J. 1965 Dec 10 1966 Feb 4 PHOTIOS IOANNOU I> JOHN VIN< Ι Μ PI Π Κ HOWARD Mumr. ) On the question of the quantum of damages, we should point out at the outset thai an appellate Court will not lightly interfere with the discretion of a trial court in the assessment of damages unless such asstssment is found to be so mani­ festly excessive or so manifestly inadequate as to justify the making of a re-asscssmeiil of damages on appeal In view, however, of the following fat tors, namely, that the appellantplaintiff(
9. a)is a young man ol 32 years of age , (
10. b)was in ihe Nicosia General Hospital for two months lor a bonc-grafling operation and subsequently for another period of a month , (
11. c)had to have his m|uied leg m plaster toi months , about 17 (
12. d)was slill using ci utel.es at I h c h e a i i n g of the action, some twenty months after the accident , (
13. e)has diminished earning capacity, (I) has sufleied a considi'iable loss of amenil'e^ , (
14. g)has been pievenled from working foi mnie than one yi.u , a penod ol (
15. h)was .1 labouier and would not now be able lo do heavy manual w o i k in the f u t u r e , and having regard to all I lit circumstances ol the ease, we arc of the opinion lhal the geneial damages of £<,H00 which have been assessed by the Inal Court on a full liability basis are manifestly inadequate In Ihe circumstances, ΛΟconsider that we should increase the amount of general damages b> 5 0 % which we accordingly do, and we award on a full liability basis the sum of £2,700 instead of £1,800 awaided by the trial Court. In all, thercfoie, the damages on full liability basis, together with the £512 special damages awarded by Ihe trial Court, bungs the total assessment of damages lo £3,212 In ihe result the judgmeiil awarded by Ihe D r l n c l Court in favoui of Ihe appellant-plaintiff ftu the sum of L462 400 mils should, in our opinion, l>e set aside and theii be substituled fherefor judgment in favour of the appellant plaintiff for the sum of £1,606, plus legal interest at 4 % from today with costs S2 VASSILIADLS, J : This appeal was argued on two issues : 1965 Dec. 10 1. ihe apportionment of ihe negligence which caused the accident ;" and 1966 _; PHOTIOS IOANNOU 2. theamount of the damages awarded by the trial Court. v. JOHN VINCENT The first turns mainly on facts; and must be decided on the PETER. HOWARD ,"*•% . principles lastly restated in Patsalides v. Ajsharian

(1965)1 ; \i'' 'C.L;R.' 134.' The second is a mixed issue of fact and law. '•'•• The findings of the trial Court regarding negligence are shortly these : The pedestrian (appellant-plaintiff) alighting from a la­ bourers' transport, hastened across the road, following a group of fellow-workmen, to get into a side road leading to their place of work. When about a couple of feel ou: <idc the asphalted part of the road he had just crossed, (cxlunt 1 and p. 46 C of the record) the pedestrian was knocked down by the nearside mudguard of an 8 h.p. M.G. car driven by the respondent, who was arriving just a little late for his work, inside the Guard Room Gate, of Akrotiri cantonment, some 35 yards from the point of impact. At the time, there was no other vehicle on the road, which ending at the Gate, and next to a parking place, had a "slow-down" sign some 65 sards before reaching the side-road in question. Accepting the version of the driver, the District Court found that he swerved lo his near side to avoid the pedestrian who had " darted " suddenly in his path, without taking a proper look out before crossing the road, in those circum­ stances, the trial Court found also contributory negligence in the driver who, they say " ought to be more careful ; and apportioned liability for the consequence of the collision at 80% on the part of the pedestrian and 20% on that οΐ the driver. Counsel for the appellant-pedestrian attacked these find­ ings, relying on undisputed facts to which, apparently, the trial Court did not give sufficient importance. The fact, for instance, that the driver had a clear view on a straight asphalt road, ending at a gate, next to a parking place, where a la­ bourers' bus had just arrived; that a group of men who had apparently alighted from thebus, were actually crossing the road; that the "slow-down" sign should have given the driver ample warning, had he paid due attention to it ; that he had been 53 19h5 Dec 10 1966 Feb 4 delayed on the road in getting to his work , that the collision was obviously violent , and that it had taken place after the pedestrian had actually crossed the road A point which the trial Court considered " of secondary importance " (p 46 Β ) PHOTIOS I O A N M X l J O H N VINC Ι Μ PbTfcR H O W A R D Vassi hades J As pointed out, the appoilionment ot liability where there is negligence on both sides, is a question of fact, primarily within the functions of the trial Court But it is generally a mattei of inference from the surrounding material facts, from which the Court ol Appial are in as good a position as the trial Court, to draw then own inference as to the apportion­ ment ot negligence And in ihe circumstances of this case, as Xpund by ihe ttial Couil or as they stand undisputed on thfjpecord, we unanimously lake Ihe view that the negligence which caused this accident rests, more or less, equally, on the two sides And that liability must, therefore, be appor­ tioned accordingly As lo the assessment ol Hie general damages in this case, I have veiy little lo add to what has been said by my brother Mi Justice Munir regarding the injuries sustained by the appellant , and their undisputed consequences to him 1 only wish to refer to Ward ν James [19651 2 W L R , 455, where Lord Denning, Μ R, Willi the support of a full Court of Appeal, dealt in a masterly |udgment, if I may say so with great respect, with, intci aim, the matters affecting the assess­ ment ot damages in cases of personal iniury Under the heading of " Lessons of Recent Cases", at ρ 470, the Mastei of the Rolls is reported to have said " I would add this The assessment of damages is almost as difficult as the sentencing of offenders In each it is important that similar decisions should be given m similar cases Some measure of uniformity is achieved in criminal cases by leaving the sentence always to the Judge, with an appeal to the Court οΓ Criminal Appeal We can hardly put damages on a like footing But cannot we do more than at present, to secure some measure of umfoimily 9 " The accepted test wairanting intervention by the Court of Appeal in the assessment made by the trial Court, is whether it is, in the circumstances, " a wholly erroneous estimate of the damage suflcred ". That means, the assess­ ment is too high or too low Here for the very serious injuries 54 described in the judgment o f the District Court (pages 46-48) and referred to in that o f M r . Justice M u n i r , we are unanimously o f the opinion that £1,800 is far too low a figure to compensate the loss sustained by the appellant. We think it should be al least 5 0 % higher, viz. £2,700. In a recent case o f serious limb injuries to a young girl the trial C o u r i awarded £4,000. A n d on appeal against that award, this Court declined to intervene. (Tcssi Chrl.stodoulou v. Nicos Sawa Menicou and others (reported in this vol. at p. 17 ante)) I n delivering the judgment o f the C o u r t , M r . Justice Joscphides put the matter in these words : Having given the matter our best consideration wearenot convinced either that the Court acted upon some wrong principle of law, or that the amount awarded was so very small as to make it, in ihe judgment o f this Court, an entirely erroneous estimate o\' the damage to which the plaintiff is entitled ". The loss resulting from personal injuries, especially that resulting from incapacity lo work same as before the accident, must naturally change with the times. What may have been considered as sufficient compensation ten or fifteen years ago in certain conditions, may be very inadequate under similar conditions today. Most o f the relevant factors change with ihe limes, and compensation, inevitably affected by such changes, must follow step. I would allow this appeal and vary the judgment o f the trial Court on both the apportionment o f liability and' the assessment o f damages, as indicated in the judgment o f M r . Justice M u n i r . Josi;i'iiii)i:S, J. : I have had the advantage o f reading both judgments, with which I am in full "agreement, and 1 have nothing to add. VA.SKII lAhi-s, J. : In the result the appeal is allowed and the judgment o f ihe District Court varied to one o f £1,606 with 4 % interest from today. A n d costs on the appropriate scale, both in the District Court and in the appeal. Appeal allowed with costs here and in the Court below. Judgment of District Court varied accordingly. 55 1965 Dec. 10 1966 Feb. 4 PHOTIOS IOANNOU r. JOHN VINCENT PETER. HOWARD Vassiliades, J.