clr/1977/1977_1_15.pdf

(1)that in the absence of an error of law, where an appellate tribunal accepts thefindings of fact of the Oourt below, it should only revise the apportionment in very exceptional cases (see, inter alia, British Fame(Owners)v. MacGregor (Owners)[1943] A.C. 197 (pp. 24-31 post); that having regard to thisprinciple and to section 57

(1)of the Civil Wrongs Law, in the present case no error in law can be detected on the part of the trial judgeand hisfindings of fact are accepted; that this alone would be a sufficient reason for not interfering with his apportionment; that theoverriding consideration was thefact that the driver of the pick-up, an inexperienced driver, started overtaking the lorry without any warning at all and when he was doing so he drove too close to the lorry in spite of the fact that he himself thought there was ample space to 'pass;that both as a matter of blameworthiness and as a matter of causation the .pick-up driver was far more to be blamed than the driver of the lorry; that, accordingly, the trial judge in arriving at his apportionment of fault came to a proper conclusion and this Oourt ought not to disturb it; and that, therefore, both the appeal and the cross-appeal will be dismissed (pp. 31-32 post).(Observations on Christodoulou v.Menicou andOthers

(1966)1C.L.R. 17).

(2)That once the trial judge accepted the evidence of the expert of the defendants in toto he was not entitled, in the absence of any evidencebefore him, to increase the amountof £50.- for any other unforeseen damage because he acted contrary to the principle that damages are of a compensatory nature (p. 38post).

(3)That it was for the plaintiffs to prove their claim for special damages; that in the absence of any evidence to that effect the learned Judge was not entitled to determine the quantum of damages and introduce the method suggested by •him i.e. to take into consideration an amount of capital without taking into consideration that there was evidence that du"kg that season the vehicle was not in demand; that the trial Judge misdirected himself because what he ought to have done 17 1977 Jam. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU ANDANOTHER was to consider only the estimated loss of profits for the period of 100 days irrespective of whether the amount of money spent for the purchaseof the lorry was (a) or (b) figure. (See Dixons (Scholar Green) Ltd. v. J.L. Cooper Ltd., [1970] R.T.R. 222); that in the absence of evidence as to the loss of $ profit the calculations made by the trial Judge were wrong in law and that, accordingly, the appeal on the issue of quantum of damages for loss of profit will be allowed (pp. 32-42 post).

(4)That this Court will not interfere with the award of a Judge although they might themselves have awarded a diffe- 10 rent amount unless satisfied that the Judge in assessing the damages applied a wrong principle of law (as for instance by taking into account some irrelevant factor or leaving out some relevant one) or, short of this, that the amount awarded was so extremely high or low as to make it a wholly erroneous es- 15 timate of the damage. (See Antoniou v. lordanous

(1976)1 C.L.R. 341); that the award of the trial Judge is not out of line with some of the figures of other awards which this Court has in mind; and that, accordingly, the appeal on this issue will be dismissed. 20 Appeal partly allowed. Cross-appeal dismissed. Cases referred to: Zarpeteas v. Touloupouand Others

(1975)1 C.L.R. 454; British Fame (Owners)v. MacGregor(Owners) [1943] A.C. 25 197 at p. 201; The British Aviator [1965] 1 Lloyd's Rep. p. 271 at p. 278, 279-280; Christodoulouv. Menicou and Others

(1966)1 C.L.R. 17; Davies v. Swan Motor Co. (Swansea)Ltd. [1949] 1All E.R. 620 atp. 627; 30 Koningin Juliana [1974] 2 Lloyd's Rep. 353 and on appeal [1975] 2 Lloyd'sRep. I l l ; The "Miraflores" and the "Abadesa" [1966] 1 Lloyd's Rep. 97; 35 Kyriacouv.Aristotelous

(1970)1C.L.R. 172; Gregoriouv. Mehmet and Another, 24 C.L.R. 112; 18 Admiralty Commissionersv. S.S. Susquehanna [1926] A.C. 655; Greta Holme[1897] A.C.596; TheMediana [1900]A.C.113; 5 TheMarpessa [1907]A.C. 241; Stroms Bruks Aktie Bolag v. John & PeterHutchison [1905] A.C. 515 atpp.525-526; British TransportCommission v. Gourley [1956] A.C. 185 at p. 206; 10 Hartleyv.Sandholme [1974] 3AHE.R. 475; Parry v.Cleaver [1969] 1 AllE.R. 555; Daish v. Wauton[1972] 1AllE.R. 25; Perestrello Ltd. v. UnitedPaintCo.Ltd. [1969] 1W.L.R. 570 at p. 579; 15 TheBernina [1886] 55 L.T.781; /. & E. HallLtd., v. Barclay[1937] 3 All E.R. 620; The Argentino [1883] 13 P.D. 191 C.A. at p. 201; affirmed on appeal [1889] 14App.Cas.519; 20 Carslogie SS. Co. Ltd. v. Royal Norwegian Government [1952] A.C.292; Ownersof Strathfillan v. Ownersof Ikala [1929] A.C. 196 at pp. 200,205; Sunley(B.) & Co. Ltd. v. Cunard White Star, Ltd. [1940] 1 K.B. 740 at p.748; 25 ^ e Trent and Humber Co. Ex parte CambrianSteamPacket Co:[1868]4Ch.App. 112; TheGazelle [1844] 2Wm. Rob.279; Dixons (Scholar Green) Ltd. v. J. L. Cooper Ltd. [1970] R.T.R. 222; 30 Antoniou v.Iordanous

(1976)1C.L.R.

1. 19 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jen. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER Appeal and cross-appeal. Appeal and.cross-appeal against the judgment ofthe District Court of Nicosia (Stavrinakis, P.D.C.) datedthe 13th September, 1974,(Actions Nos.2339 and 2342/72) whereby it was held that the plaintiff wasliable to the 5 extentofone third and thedefendants totheextentoftwo thirds in respect of a collision between a car driven by plaintiff andacardrivenbydefendant
2. L. Papaphilippou,fortheappellants. G.LadaswithA. Paikkos,for therespondents. 10 Cur.adv. vult. The judgment oftheCourt wasdelivered by:— HADJIANASTASSIOU, J.: This is an appeal by the defendants from thedecisionof aJudgeoftheDistrict Court of Nicosia dated September 13, 1974,holding that the 15 plaintiffs in their action for damages against the defendants—the owners ofthepick-up vehicle—in respect ofa collision between thetwo vehicles on March 28, 1972, were one-third to blame, and the defendants two-thirds. The plaintiffs cross-appealed andgavenotice of their in- 20 tention that the decision of theJudge that they wereonethirdtoblameshouldbevaried. The facts are stated in the judgment of the learned Judge and are these:- Mr. Andronicos Nicolaou isthe plaintiff inactionNo.2339/72 andtheownerofthelorry 25 under Registration DA 588,and its driver wasMr. Kypros Constantinou, plaintiff in Action 2342/
3. Defendant 1wasMr.Demetrios Emmanuel, thedriver ofthe pick-up vehicle, under Registration No. ET 310.Defendant 2wastheUnitex Trading Co. Ltd., the ownerofthe 30 said pick-up, and both are defendants in both actions which have been consolidated byorder ofthetrial Judge on January 11,
4. The lorry driver,inexplaining how theaccident occurred, said that whilst hewasdrivingonthat dateataspeed 35 of 25 m.p.h., he noticed the presence of the pick-up through hisdriving mirror at a point where theroadwas still straight, and before reaching thecurve. Hedid not expect that cartoovertake him because ofthe curve. The 20 driver did notgivehimany warning, nor did he soundhis horn to indicate that he was about to overtake him,and he did not give any signal that it was allright to be over­ taken. As hewas negotiating a left handcurve and before 5 reaching the place where the accident occurred, he kept on theleft hand side of theroad where he was overtaken by the car. It cut suddenly in front of him by turning to the left. Heimmediately applied brakes, turnedslightly to the left in order to avoid the collision,but as thatcar was 10 so close, he did not manage to avoid it. Heturned further to theleft, and as a result his lorry overturned intoanear­ by ditch. He further explained that the front right mud­ guard of the lorry hit the left side of that pick-up. Just after the collision the pick-up veered to the left into the [5 fields. Then he added that shortly after the accident he saw the driver of the pick-up whom he knew before, and asked how it all happened.His reply was "Ta echasa ego, mou arpaxe ke ο alios to timonike se emplexamen keesena". Later on both drivers were taken by someone who 10 was passing by to theGeneralHospital for treatment. On the otherhand,the driver of thepick-up in explain­ ing how the accident occurred, said that on his way from Kyrenia to Nicosia via Yerolakkos, he was following a lorry proceeding in the same direction as he was. He fol25 lowed it for a distance as therewas a continuouswhitedi­ viding line and when the line started becoming dotted,he moved to therightside of theroad and started overtaking _ the.lorry. In overtaking thelorry he accelerated his speed to about 30 - 40 m.p.h.,and when hehad almostcomplet30 ed the overtaking procedure hefelt something pulling his car to the right, he did not hear anything, and as there were some road markers on the right hand side of the road,hetried to bring thecarback to theroadbecause he was too near the road markers. As he was doing so the 35 car started travelling in a zig zag manner and then he found himself on theleft hand side ditch. He did not re­ member anything else. At thetime,hefelt this force pull­ ing to theright,hewas onthe right side of theroad. In cross-examination he said that he was the holder of 40 a learner's licence, and Anastassios Petrou (a holder of a driving,licence)was with himin thepick-up truck. He was following the plaintiffs lorry for about a mile, evenmore, andwas keeping a distanceof about 40 metresfrom it.He 21 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER could not say whether he was keeping this distance away from thelorry constantly or whetherhewasreducingit or increasing iL When he started overtaking the lorry, the road was straight, but at the place where the accident happened theroad starts taking aslight turning to theleft. 5 Hehad completedtheovertakingbefore reachingtheturning. The accident happened after he had completed overtaking. He said he did not notice whether at the place where the collision occurred the road ,was divided by a continuous or abroken whiteline. Hedid not try to over- 10 take at a place where the road was divided by a continuous whiteline.He only madehis attempt when theline started being broken. He also said,Jhat at the particular moment when he was trying tobringHhe car back on to the road, his co-driver got hold of the steering wheel, but 15 as he was holding it tight, he did not permit him to take control of it. Hedenied, however, that theplace at which hetriedtoovertakewasslightlydangerous. I. After the accident, hewas approached byKypros Constantinou (the driver of the lorry) whomhe knew before, 20 and as he was worried about the accident—it was thesecond day he was working for his employers—Kypros, in order to calm him down and give him courage, told him that "this matter would be settled by our employers". He didnot remember whatwasexchangedbetweenthetwoof 25 them. The learned Judge, having considered the evidence before him as to the cause of the accident, said that he had no doubt that the collision between the two vehicles occurred when the pick-up was alongside and leading the 30 lorry with the left side of its cargo caseopposite theright front corner of the lorry. He then added that the finding could be inferred also conclusively from the place where paint and tyre marks were found on the left side of the pick-up which in its turn corroborates the already more 35 probableversionof thepick-updriver. Then, in order tosubstantiate theposition hehas taken, he says that it ismostunlikely,infact impossible,that the collision occurred when the pick-up swerved in front of the lorry as under such circumstances the pick-up would 40 have been literally run over by the heavier vehicle. It is obvious that the damage to the small car was nothing 22 more than a glancing blow which, however, with theim­ petus of the heavier vehicles was strong enough to send thepick-upoff courseandoutofcontrol. Then,in dealing with thepointof impact,hewas of the 5 view that it could not have been theoneindicatedby the lorry driver, andwhat is more, it was inconsistentwith his version as to the starting point of the brake marks. The point shown by thedriver of thepick-up,he said, iscom­ patible with hisversion andwith thedamagefound onthe 10 sideof hisvehicle.ThispointisΤ 6" from therightsideof the road and it comes to corroborate the theory of the lorry being at the crucial momentover thedividing line, andas theasphaltedwidthof theroadis 18*8", that shows that thelorry crossed over the dividing broken white line 15 by nearlytwo feet. Finally, the trial Judge dealing with the question as to who was responsible for theaccidentmadehis findings of fact basedoninferences thatbothdrivers wereatfault and in dealing with the apportionment of blame, he reached 20 theconclusion that the liability of thepick-up driver was greater thanthatof thedriver of thelorry and theappor­ tionment of blame was made as follows: pick-up driver— two-thirds; and lorry-driver—one-third. We donotproposetoundertakea moredetailedexami25 nationof theevents which led tothecollision, but thedis­ pute now is as to the faults committed by each driver. There is no doubt thatthetrial Judge found thatthe con­ duct of the driver of the pick-up was the predominant causeof thecollision andhefound threefaults onthepart 30 of thedriver of the pick-up;

(1)that thepick-up swerved to the left and in front of the lorry after the overtaking procedure was completed;

(2)that thepick-up driver did not sound his horn before starting the overtaking pro­ cedure andthatthelorry driver didnotgivea 'ready tobe 35 overtaken' signal or any other signal whatsoever;

(3)that he passed too close to thelorry inovertaking it; andone fault on the part of thedriver of thelorry: that the lorry at the time its.wheels locked after the application of brakes, was on the extreme right of the left side lane of 40 theroad as divided by thebrokenlineandbearing in mind their direction,it is safely inferred that the off-side of the 23 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Ian. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER lorry wasover the dividing line before the application of brakes. Such being the faults of each side, as found by the Judge, it becomesin my view a matter of appreciation to decide how they should weigh in order to arrive at a just 5 apportionment, and the question remains, in view of the contentions of counsel in this appeal and cross-appeal, whether we could or should interfere with the apportionment of the trial Judge. We agree, of course, that thepredominant cause of the collision was the conduct of the 10 driver of the pick-up vehicle, and we approach the question of apportionment on the basis that both driverswere at fault. As it was stated in Zarpeteas v. Touloupou& Others,

(1975)1 C.L.R. 454, apportionment of fault is not an easy task for anyJudge,but itmustbesaid that the 15 trial Judge, who has the benefit of hearing the evidenceat first hand and sensing the atmosphere of the case, enjoys an enormous advantage over an appellate tribunal. It has been established by a long series of decisions, — and we propose dealing with someof these cases culminating in a 20 case of the House of Lords, in BritishFame (Owners)v. MacGregor(Owners) [1943] A.C. 197 — that in theabsence of an error of law, where an appellate tribunal acceptsthefindings offact of theCourtbelow,itshouldonly revisethe apportionment in veryexceptional cases.In that 25 case, Lord Wright, speaking in the House of Lords, said at p.201:"Apportionment is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in es- 30 sence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law,but of proportion, of balance and relative emphasis, and of weighingdifferent considerations. It involves an individual choice or dis- 35 cretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment". 40 The next case is The BritishAviator, [1965] 1Lloyd's Rep. 271. In that case, the trial Judge's apportionment, 24 (two-fifths—three-fifths) was altered by the Court of Appeal to equal apportionment. No fresh findings of fact were made by the Court of Appeal nor were the findings of the Judge disagreed with. The revision was made on 5 the basis that the Judge had taken "a wrong view of the facts"; and that he did not appreciate the seriousness of the fault of the ship Crystal Jewel. Lord Justice Willmer, clearly thought the caseto be on the border line and said at p.278:10 15 20 25 30 35 \Q "It has been argued on behalf of the respondents, with considerable force, that all that the Court is being asked to do here is to attach greater weight to thehelm actionof oneof thevessels thanwasattachedby thelearned Judgebelow.It issaid that, evenif wewere to think that theCrystal Jewel's helmaction wasmore blameworthy than thelearned Judgeseemedto think, that wouldbeonly amatter of individual opinion, with which, having regard to what was said by Lord Wright in the passage I havejust cited, an appellate Courtis not entitled to interfere. AsI have said, this was a very forceful and very attractive argument; andI ambound to confess that I wasvery nearly persuaded by it. But in the end I have come to the conclusion that this is. a case in which the learned Judge's apportionment of blame is properly open toreview. I reach that conclusion because I do not think that the learned Judge ever really did appreciate the"seriousness of the fault of the Crystal Jewel in altering her courseto starboard when shedid and in themanner she did. This, I think, did amount to taking a wrong view of the facts and was not amere expressionof individual opinion". Finally,hesaidatpp.279-280:"This means that inmyjudgment theCrystal Jewel's fault in starboarding in theway inwhich shedidhas much, much greater significance than was attributed to it by the learned Judge. By that I mean that not only was it more blameworthy than he appears to havethought it,but alsothat as amatter of causation it had more effect in bringing about this collision 25 1977 Ian. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER than any other single factor. On a true view of the facts, therefore, I find myself unable to agree with the learned Judge's view that this fault on the part of the Crystal Jewel was a lesser fault than theBritish Aviator's turn to port in the last two minutes 5 before the collision. That being so, I do not think that the learned Judge did have any good ground for differentiating between these two vessels. In my judgment the liability ought tohave been apportioned equally between them; and to that extent, there- 10 fore, Iwould allowtheappeal". Turning now to our caselaw,in TessiChristodoulou v. Nicos Savva Menicou and Others,

(1966)1 C.L.R. 17, the trial Judges' apportionment (60% to the plaintiff and 40% to the defendant) was altered by the Supreme Court 15 of Cyprus to fifty-fifty. No fresh findings of fact were made by the Court, nor were the findings of the judges disagreed with. The revision was made on the basis of Davies v. Swan Motor Co. (Swansea)Ltd. [1949] 1All E.R. 620, following the rule of common sense approach 20 adopted by Evershed L.J. at p.

1. Josephides, J., dealingwith the submissions of counsel that thefinding of the trialCourt that theplaintiff wasguilty of contributory negligencewasnot supported bytheevidence,saidatpp.32, 33:"...we are of the view that in the present case there was adequate evidence to support the findings made by the trialCourt that the driver wasguilty of negligence in driving his bus and that the plaintiff was likewise guilty of contributory negligence. Havingre- 30 gard to the following circumstances, that is to say, that Phryne street was a very narrow street (9 feet 9 inches with the benn), that there was a projecting wall, that the bus was 7 feet 2 inches wide and that theroad had potholes and wasbumpy, weareof the 35 view that the wall was a potential source of danger and that it was theduty of thedriver toreducespeed and leavea reasonable safety margin between hisbus and thewall, on the footing that owing to the condition of the road and thesuddenswerveit wasreason- 40 able to foresee that the passengers in the bus might be knocked against the wall. Instead of doing that, the driver increased speedand drove too closeto the 26 25 wallcausingtheplaintiffs arm tobecrushedbetween thebusandthewall. 5 10 15 20 The finding of the trial Court that the plaintiff, although acquainted with the road, did not usereasonable care for her own safety in leaving her armprotruding out of the bus, is adequately supported by the evidence. It is true that if the plaintiff had not been in that position she would not have been injured, but adopting the commonsense approach, as laid downin theDavies case,weare of theview that the plaintiff, in the circumstances of this case, was not to blame more than the driver, so that, although weagreewith all the other conclusions in the careful and wellreasoned judgment of thetrial Court, wedo not feel that we can uphold their apportionment of liability as to 60 per cent to the plaintiff and 40 per cent to the driver. We are of the view that, in the circumstances of this case, this liability should be apportioned equally, that is to say, 50 per cent to the plaintiff and 50 per cent to thedriver". Wethink theonly observation wecan makein thiscase is that the Supreme Court has given emphasis to the age of the plaintiff (she was 17 at the time) and in making their own apportionment did not consider theeffect of the 25 decision of the House of Lords in the MacGregorcase (supra)that an appellate court should only revise the apportionment inveryexceptionalcases. In Koningin Juliana, [1974] 2 Lloyd's Rep. 353, the trial Judge's, Mr. Justice Brandon's, apportionment of 30 blame was two-thirds—one-third and was altered by the Court of Appeal by majority to fifty-fifty. On appeal by the owners of the KoninginJuliana,in [1975] 2 Lloyd's Reports, 111, it was "held by H.L. (Lord Wilberforce, Viscount Dilhorne, Lord Simon of Glaisdale, Lord Ed35 mund-Davies and Lord Fraser of TuUybelton), that, on the issues involved, the case was one where an appellate Court ought not to disturb the trial Judge's apportionment: It had not been shown that the Judge had failed to giveproper weightto the elements forming the composite 40 fault of the KoninginJuliana(see p. 113, cols. 1 and 2; p. 115, col. 2; p. 116, cols. 1 and 2);—TheMacGregor [1943]A.C. 197;[1942] 74LI.L.Rep.82, applied—The 27 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 19 " 26 ^ P™^™^ Jaj EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOIBER British Aviator [1965] 1Lloyd's Rep. 271, doubted—The Almizar, [1971] 2 Lloyd's Rep. 290 explained". Lord Simon of Glaisdale, speaking in the House of Lords, adopted theview of Sir GordonWillmer, support­ ing the apportionment of Justice Brandon, and said at p. 115:"But I also agree that this is notin any event a case where an appellate tribunal is entitled to substitute its own view of relative responsibility for that of the trial Judge. Where an appellate Courtfinds no error 10 of law and accepts the findings of fact of the trial Judge, it is only in quite exceptional circumstances that it should revise the apportionment of the trial Judge". Then, Lord Simon proceeded and made these observa- 15 tions as to why the apportionment of the trial Judge should notbe revised by an appellate tribunal, atpp. 115, Ϊ16:"Thirdly, therefore, any other rule would encourage a proliferation of appeals, in the hope of finding an 20 appellate tribunal which might attach different weights to the various considerations. It is an un­ doubted advantage of our own system of judicature that so few of thecases which cometo trial aretaken to appeal. This brings me to a fourth reason for the 25 rule, though it is one which I feel some diffidence in expressing. No Judge, instance or appellate, is pro­ perly equipped without both intuition and a capacity for logical analysis. But thelatter quality is themore called-for in an appellate tribunal; while intuition, 30 as Roscoe Pound was wont to emphasize, is the prime and essential quality required in a trial Judge. The balancing of a number of conflicting considera­ tions of fact (such as is called for in matters likeap­ portionment of fault or quantifying damages or exer- 35 cising discretion as to the custody of a child) is ge­ nerally more a matter of intuition than of logical analysis. Finally, thetrial Judge deals with suchmat­ ters day in day out;andhis judgment is thereby rein­ forced by constantexperience". 40 Finally, in dealing with the decision of themajority of theCourtof Appeal, hisLordship said:28 5 10 15 20 25 "The majority of the Court of Appeal thought thai Mr. Justice Brandon, in arriving at his apportionment of blame, might have 'totted up'the numberof faults on each side (taking the Koningin Juliana's as one only) and translated theresultant ratio into apportionment of liability. With all respect I do not think that the passage from the -judgment of the learned trial Judge which I have just quoted justifies such aninference, andI canfind no reflection of any such obvious error in approach to apportionment elsewhere in the judgment. As Sir Gordon Willmer said (p. 364): 'With all his experience the learned Judge must be taken to know as well as anybody that apportionment of blame in the Admiralty Court is notto be arrived at by 'totting up' and comparing thenumber of faults inthenavigation of eachvessel'. Although, perhaps, the phrase 'single composite fault' could lend itself to misunderstanding, all the errors in the navigation of the Koningin Juliana did result from her pilot's faulty look-out (or the defective communication between him and the captain) resulting in the incorrect appreciation that the Thuroklintwasstopped;whereastheThuroklint's various errors were entirely separate, indicating in totality an extraordinary failure to navigate with due care. In my view, therefore, the apportionment of liability made by the learned trial Judge should not be disturbed; andI wouldallowtheappeal". Lord Wilberforce, in delivering the first*judgment, said 30 interalia atpp. 112,113:"All of these faults being found, it became a matter of appreciation todecidehowtheyshouldbeweighed so as to arrive at a just apportionment of blame. 35 40 MyLords, this summary of theissueis,I believe, sufficient to makeit clear that the caseis onewhere, the trial Judge having made an apportionment, taking all factors into account, a Court of Appeal, including this House, ought not to disturb it. The modern authority which reflects this principle is the decision of this House in the MacGregor,British Fame (Owners) v. MacGregor (Owners), [1943] A.C. 197; [1942] 74 LI. L. Rep. 82,where the rea29 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER sons for the rule are clearly and authoritatively stated. I shall not repeat them: they are as valid and as generally applicable today. Of subsequent cases relied on as to some degree diminishing the force of the MacGregor I need only refer to two.In The Almizar, [1971] 2 Lloyd's Rep. 290, the apportionment of the trial Judgewas reversed after his crucial finding, on advice, had, on different advice, beenrejected by the Court of Appeal. On further advice in this House, the apportionment was further varied. I think that it is clear that in both appeal Courts the new apportionment wasbased upon the advice those Courts had received, so that the factual elements upon which the apportionment has to bebased were not thesame.Variationof theapportionmentinthese circumstances is clearly authorized by The MacGregor(sup). In TheBritishAviator, [1965] 1 Lloyd'sRep. 271, the trial Judge's apportionment (two-fifths—threefifths) was altered by the Court of Appeal to equal 20 apportionment. No fresh findings of fact were made by the Court of Appeal nor werethefindingsof the Judge disagreed with. The revision was made on the basis that the Judge had taken *awrong view of the facts': he did not 'appreciate the seriousness of the 25 fault*of theCrystal Jewel.MyLords,I must saythat I doubt the validity of this decision and I note that Lord Justice Willmer, whose authority lends its weight, himself clearly thought the case to be on the borderline (see p. 278). I deprecate the use of this 30 case asa basisfor weakeningof theMacGregorrule. Attempts were made by learned Counsel for Thuroklint to discover errors, or errors of appreciation, in the judgment of the trial Judge, but in my opinion these were not made good. The only criticism which 35 appeared possibly to have any substancewas thathe had grouped threefaults of theKoninginJuliana into one'compositefault'. Butit doesnot follow from this that he failed to give proper weight to the elements forming the composite fault, or that he would have 40 given more weight to them if he had regarded them as separatefaults. I certainly find itimpossible tobe lieve that he was led, by his description, into the 30 10 15 5 10 crude mathematical sum suggested by the learned Master of the Rolls.Theefforts of Counsel werestill lesssuccessful when applied to thejudgment of Lord Justice Willmer. This, in my respectful opinion, is clear, correct and unanswerable and I would becontent to accept the whole of it. The majority of the Court was unable to establish the necessary foundation for departing from the Judge's apportionment. I wouldallow the appeal and restore thejudgmentof Mr. Justice Brandon". See also The "Miraflores"and the "Abadesa", [1966] 1 Lloyd's Rep. 97, where Lord Justice Willmer explained his stand in the British Aviator (supra) and upheld the apportionment of blame in that case at p.
2. See also 15 the majority judgment of Winn and Danckwerts L.JJ. at pp. I l l -113, where they expressed a different view and interfered with theapportionment madebythetrialJudge. 20 25 30 35 40 Having reviewed the authorities and having regard to s.57(l) of our CivilWrongs Law Cap. 148, we think we can state that in the present case we can detect no error in law on the partof thelearned Judge, and weaccept his findings of fact statedbyhiminhiscareful judgment.This alonewould in our view,be a sufficient reason for not interfering with his apportionment of fault, but on the facts of this case, we, for ourpart, might entertain some doubt as to whether the lorry was 2 feet over the dividing line, and had we.been trying thecase at first instance,wethink we would feel fairly confident, having regard to the"evidence,that weshould in allprobability havearrived at the same result.In our judgment, theoverriding consideration was the fact that the driver of the pick-up who started overtaking the preceding vehicle without any warning at all, when hewas doing so, being an inexperienced driver, drove too close to the lorry—in spite of the fact that he himself thought that there was ample space to pass—nevertheless, he collided with the lorry. Because of that collision, he lost control of the pick-up, and to make things worse, his co-driver who was an experienced driver, in trying to help him to keep the pick-up in control, which started zig-zagging across the road, he was prevented by the defendant and inevitably the pick-up continued being out of control and.finally it crashed in front of the lorry and overturned into the fields. It was this fact that above 31 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER all gave rise to theposition of difficulty and dangerwhich ultimately, aswesaid,resulted in thecollisionbetween the lorry and the pick-up. It is true that the learned Judge found that the lorry at the time of the accident was 2 feet over the dividing line.But at the same time when the 5 driver saw the pick-up going zig-zag he applied brakes with a viewto avoidingtheaccident, andbecausethepickup which continued travelling out of control, and found itself in front of and too close to the lorry, the accident could not have been avoided. With this in mind, the very 10 persuasive argument which we heard on behalf of the appellants entirely failed, in my view, to overcome this overriding consideration. Both as amatterofblameworthiness and as a matter of causation we think that the pickup driver isfar more to be blamed than the driver of the 15 lorry. Directing ourselves with those weighty judicial pronouncements,weareof theopinion that thelearned Judge in arriving at his apportionment of fault came to a proper conclusion and, this Court ought not to.disturb it. We 20 would, therefore, dismiss both the contentions of counsel on the appeal and cross-appeal. (Kyriacouv.Aristotelous

(1970)1C.L.R. 172). The next question is whether the amount of £400 awarded to the owner of thelorry for loss of use and losi 25 of profits is recoverable having regard to the evidence. The plaintiff in Case No. 2339/72 has been a contractoi for road constructions for the last 25 years and had a number of contracts in hand. He owned three lorries to carry out his business including the one which had beer» 30 involved in the accident. He alleged that because of the loss of the use of the lorry he was deprived of a profitof £ 5 - £ 8 per day and in order to repair it he spent an amount of general damages for the repairs of the said extra amount of £ 5 0 for painting the said lorry. In his 35 statement of claim, the plaintiff, apart from claiming an amount of general damages for the repairs of the said lorry, claimed also the amount of £500 for loss of use and profits due to the immobilization of the lorry, but without putting forward figures or any other calculations 40 to represent hisloss. On the contrary, the defendants in their turn, although 32 in their defence have challenged the right of the plaintiff to claim special damages, nevertheless, they had never asked for particulars—to which no doubt they were entitled—Maritsa Gregoriou v. Emir Hussein Mehmed and 5 Another, 24 C.L.R. 112—and they havenever calledevidenceto rebut the allegation of theplaintiff. Furthermore, it was added that the damages sought were too high and remote,butitis equally true to saythat when the plaintiff was pressed in cross-examination to give some figures as 10 to his income, or indeed to produce some calculations as tohowhereached that figure of makingtheprofit, hewas more evasive and his answer was that he could not say how much he earned from the whole of hisbusiness. We thinkthatin acaseof thisnature,wewouldhaveexpected 15 the plaintiff, once he was claiming an amount for special damages, to have tried at least to call his accountant, in whosehands his accounts were, or, to call someotherevidence and not simply to state that he was earning from eachlorryan amountof £ 5 or £ 8 perday. 20 Wethink it wouldservea useful purpose torefer tothe case of Admiralty Commissioners v. S.S.Susquehanna [1926] A.C. 655whereViscount Dunedin, after referring to the cases of GretaHolme [1897] A.C. 596, The Mediana [1900] A.C. 113; and The Marpessa [1907] A.C. 25 241,concludedasfollows atp.662:- 30 "This is not a case where special damage has been attempted to beproved. If it could have"been shown that the disabled oiltanker had, by contract, beenlet to some party at a stipulated rate for the period during it was disabled, or that owing to its disablement it had missed a contract, then the terms of the contract it had secured or would have secured would have served rightly as the basis of the sum to be allowed as damages". 35 And in Stroms Bruks Aktie Bolag v. John &Peter Hutchison, [1905] A.C. 515, Lord Macnaghten, after stating that the division into general and special damages was more appropriate to tort than contract, said at pp. 525-526:- 40 " 'General damages', as I understand the term, are such asthelaw will presume to be the direct natural 33 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 **^J* DEMETRIOS EMMANUEL AND ANOTHER v · or probable consequence of the act complained of. 'Special damages', on theother hand,are such as the ^ a w w ^ n o t ιη^^τ ^ r o m ^ nature of the act. They do not follow in ordinary course. They are exceptional in their character, and, therefore, they must be claimed specially and proved strictly". 5 ANDRONICOS T h e n h i^J^L AND ANOTHER e concludesin these terms:- "In cases of contract, special or exceptional damages cannot be claimed unless such damages were within the contemplation of both parties at the time of the 10 contract. Now the appellants are not claiming here exceptional damages. They are claiming nothingbut ordinary damages ascertained and limited by the special circumstances of thecase". The present distinction is set out also with regard to 15 personal injury cases by Lord Goddard in British Trans­ port Commissionv. Gourley [1956] A.C. 185 where he said atp. 206:"In an action for personal injuries the damages are always divided into two main parts. First, there is 20 what is referred to as special damage, which has to be specially pleaded andproved. This consists of outof-pocket expenses and loss of earnings incurred down to thedate of trial, and is generally capable of substantially exact calculation. Secondly, thereis ge- 25 neral damage which the law implies and is not spe­ cially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suf­ fered are such as to lead to continuing or permanent disability, compensationfor loss of earning power in 30 the future. The basic principle so far as loss of earn­ ings andout-of-pocket expenses are concernedisthat the injured person should be placed in the same fi­ nancial position, so far as can be done by an award of money, as he would have been had the accident 35 not happened, and I will endeavour to apply this in the first place to the special damage claimed in re­ spectof lossof earnings'*. See also thecase of Hartleyv.Sandholme,[1974] 3 All E.R. 475 where this case was applied, also the case of 40 34 r Parry v. Cleaver,[1969] 1 All E.R. 555; and Daish v. Wauton [1972] 1 All E.R. 25 where this case was explained. In Perestrello Ltd. v. United Paint Co. Ltd., [1969] 5 1W.L.R. p. 570, Lord Donovan, speaking about special damages and theobligation of theplaintiff to particularise aboutsuchdamagesaidatp.579:- 10 "The obligation to particularise in this latter case arisesnot because thenatureof thelossisnecessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculationpossible. 15 The matter is clearly stated in Mayne and MacGregor on Damages, 12th ed.

(1961), p. 813, para. 970,wheretheeditorssay:- 20 25 30 35 'Special damage consists in all items of loss which mustbe specified by (the plaintiff) before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary and useful to warn the defendant of the type of claim and evidence, or of the specific amount ofclaim,whichhewillbe confronted with atthetrial*. - - y The claim which the present plaintiffs now seek to prove is one for unliquidated damages, and no question of special damage in the sense of a calculated loss prior to trial arises. However, if the claim is one which cannot with justice be sprung upon the defendants at the trial it requires to be pleaded so that the nature of the claim is disclosed. As Lord Dunedin said in The Susquehanna [1926] A.C. 655 atp. 661:If the damage be general, thenit must be averred that such damage hasbeen suffered, but the quantification of such damage is a jury question'. What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiff claims 'damages*isnot sufficient to letin evidenceof apar35 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER ticular kind of loss which is not a necessary consequence of the wrongful act and of which the defendantisentitled tofair warning. Not only was there no mention at all of loss of profits in the statement of claim in the present case, 5 but, as has been pointed out, the case pleaded was inconsistent with such a claim. We agree with the view of the trial judgethat theplaintiffs werenotentitled without amendment to lead evidence of this loss*'. It is said that where a car hasbeen damaged by negligence the owner of the said car may recover the costsof repairing it. (The Bernina[1886] 55 L.T. 781), and the difference, if any, is between the value of the car before itwas damaged and its value after repair. (Ownersof No. 15 7SteamSandPumpDredgerv. Owners of Greta Holme., The GretaHolme,[1897] A.C. 596,H.L.).If thesaid car was damaged beyond repair, its value is recoverable, and this is ordinarily the market price of a similar article,the cost of replacement. (J. &E. HallLtd. v. Barclay [1937] 20 3AllE.R. 620). In the case of achattel, of course, which is of commercial value or is employed on a profitable trade, damages for the loss of usewillgive compensation for what, apart from uncertain, speculativeor specialprofits, wouldother- 25 wise have been earned by its use during theperiod when byreason of the tort that usewasnot available totheperson entitled to it, for such is the directloss suffered. (See The Argentino [1883] 13 P.D. 191 C.A. at p. 201; affirmed sub nom. Owners of Grade v. Owners of Argenti- 30 no, The Argentino [1889] 14 App. Cas. 519 H.L.). The plaintiff must show that the chattel was capable of profitableuse, (CarslogieS.S. Co.Ltd. v.RoyalNorwegian Government [1952] A.C. 292 H.L.), for otherwise, lossof profits doesnot enter in as an element of loss; (Ownersof 35 Strathfillan v. Ownersof Ikala, The Ikala, [1929] A.C. 196, H.L. at p. 205, per Viscount Sumner. See also B. Sunley & Co. Ltd. v. Cunard White Star, Ltd., [1940] 1 K.B.740,C.A., atp.748) andwheredamages aregiven for loss of profits the plaintiff cannot also in respect of 40 thesame period havedamages for loss of use; (Ownersof Grade v. Owners of Argentino, The Argentino [1889] 36 10 14 App. Cas. 519, H.L., at p. 524, per Lord Herschell). Thus the damages will normally be such loss in trade profits as are proved and where a substitute chattel lias been hired to take the place of the damaged chattel, in 5 order to avert or minimise the loss, the hire paid would prima i'acie be the amount of the damage sustained; ii no other chattel could be found to replace the one damaged the measure of damage it not altered but the court is deprived of one possible means of assessing it. (Owners of 10 Strathfillan v. Owners of Ikala, The Ikala [1929] A.C. 196, H.L. at p. 200 per Lord Hailsham L.C.). The lost profits which are to be considered are those which would have been earned in the ordinary course of employment of the chattel during the period of lost use (Re Trent and 15 flumher Co. Ex parte Cambrian Steam Packet Co. [1868] 4 Ch. App. 112 at p. 117 per Lord Cairns) and in computing the loss allowances will ·be made for expenses saved. (See The Gazelle

(1844)2 Wm. Rob. 279): Then., in dealing with the allegation of the plaintiff that 20 he had paid £ 1.592.000 to the person who had carried out the repairs, the Judge reached the conclusion that the e^dence and the veracity of the plaintiff "leave? much to be desired and that his allegation that he paid that amount was uncorroborated, unexplained, and indeed contradict25 ed by the very signature of Theoklis Andreou on Mr. Liasides' assessment; and that his allegation could not be accepted". This was indeed the assessment of the trial Judge regarding the veracity of the plaintiff', and in making ur. his mind which of the two reports of the experts he should 30 accept, he preferred that of Mr. Liasides. and said that the assessment of Mr. Polycarpou might be too perfect for an old heavily used and probably imperfect vehicle. and added:35 "The defendant is bound to pay only for the restoration of the vehicle in its pre-accident position and not makeitbetter than it was". Having accepted the assessment of Mr. Liasides, as we said earlier; the Judge thought that the amount of £.50 allowed'by the expert for unforeseen damages was too 40 low; and increased it himself to £ 1 5 0 because of the extensiveness of the damage. 37 1977 Jan. 26 DEMETRIUS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER With the greatest respect to the learned Judge, wedo agree with the counsel for the appellants that he was not entitled—onceheaccepted theassessment of Mr. Liasides in toto, and in the absence of any evidence beforehim— to increase the amount of £ 5 0 for any other unforeseen 5 damage, and he acted contrary to the principle that damagesareof acompensatorynature. Then the Judge dealt with the question of what is the correct period required to carry out the repairs on the said lorry on the assumption that there were available 10 spare parts. Having considered the evidence on this point given by both experts, hethought that a period of 40days for carrying out the repairs, together with the previous period which wasneeded for theexpertsto concludetheir assessment the reasonable period was one hundred work- 15 ingdays. Finally, and having regard tothe calculations he himself made,hereachedthisconclusion:"The loss of use, will be therefore confined to about 100 working days, at an average of £ 4 per day for the following reasons: The vehicle in question was 20 on its last trip and then it would have been delivered to Messrs. Demades and Sons Ltd. in part exchange for a new vehicle, under Registration No. FT 316. Theplaintiff-owner, clearly stated so and then intrying to escape from the trap in which he fell during 25 the cross-examination, he alleged that it would have been given in part exchange for an unregistered vehicleof which hefailed to giveanyparticulars.However, the vehicle in question represents a certain capital, income producing outlay which is assessed at 30 £ 4 per day. Furthermore, thisfigure is also allowed by Mr. Liassides, a man with experience in vehicles and vehicular transportation". Weconfess that wehave somedifficulty in understanding the conclusion reached by the learned Judge and we 35 have been invited by counsel on behalf of the appellants to take the view that in the absence of any evidence in support of the loss of use of the vehicle in question, the conclusion of the learned Judge was wrong and that he misdirected himself in law in choosing that method, and 40 in reaching the conclusion that income producing outlay was £ 4 per day. With respect, the Judge's duty was to 38 determine what was the estimated loss of profit for the. period of one hundred days only, and not to speculate in the absence of evidence by acceptable figures and calculations. 5 We would reiterate what we have said earlier in this judgment that it is for the plaintiffs to prove their claim for special damages, and we do not think that in the absenceof any evidencetothat effect thelearned Judge was entitled to determine the quantum of damages and intro10 duce the method suggested by him i.e.to take into consideration an amount of capital without taking into consideration that there was evidence that during that season the vehiclewasnot in demand. With this in mind wehave reached the conclusion, therefore, that the Judge misdi15 rected himself because what he ought to have done was toconsider onlytheestimated lossof profits for theperiod of 100daysirrespective of whether the amount of money spent for the purchase of the lorry was (

1. a)or (
2. b)figure. If authority is needed we think the answer can be pro20 vided from the judgment in Dixons (Scholar Green) Ltd. v. J. L. CooperLtd., [1970] R.T.R. 222.In that case the plaintiffs, whowerehauliers,owning a fleet of articulated vehicles in constant use for transporting loads over long distances, lost theuse of one of the vehicles for 11weeks 25 because of the defendant's negligence which was admitted in an action against them by the plaintiffs. The plaintiffs claimedonly specialdamage, namely the estimated lossof profits for the 11 weeks, they provided particulars and called evidence, putting forward figures to represent the 30 loss. The defendants challenged the figures, but called no evidence and contended that the plaintiffs had failed to prove the loss by acceptable figures and calculations. The trial Judge, stating that special damage had to be quantified and proved, and that it was not part of the Court's 35 function toguessorthink of anumber,held that theplaintiffs have failed to establish theamount of their loss, and awarded nominal damagesof £ 2 . Edmund Davies, L.J. delivered the judgment of the Court, and having observed that onceliability was admit40 ted the only issuefor the Judge waswhat damages should be awarded to the plaintiffs by reason of the fact that for 11 weeks, from 19th November, 1965 until the 3rd February, 1966, that vehiclewas in consequence out of commission, said atp. 223:39 1977 lam. 26 DEMETRIOS EMMANUEL AND ANOTHER • v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL \NDANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER "I find myself compelledto say thatI thinkthat such a result was singularly unfortunate,for it would be impossible to thinkthat anyonecould go away from the court feeling that, punctilious though this judge is in his work, he had on this occasion arrived at a 5 just result. For this was a valuable vehicle; it had cost over £5,000. The evidence was thatit andthe six other vehicles forming part of theplaintiffs' fleet were in constantdemand; and thereis no doubtthat it was immobilised for 11 weeks. Accordingly, on 10 those unchallenged facts the award of a mere £ 2 does not,on the face of it seem to bejustifiable. As was said in thecourse of argument,even the lossof use of a private car for thatperiod should resultina substantially greater award than the derisory sum 15 these plaintiffs recovered". Then his Lordship, having observed that the problem that was confronting the Judge was how to calculatethe loss of profit, and having in mindthattheplaintiffs sought to do it by having regard to the trading position during 20 the eleven weeks preceding the date of the accidentand the eleven weeks beginning the 3rd February, 1966, and taking further into consideration that the income of the plaintiff company for the relevant year was said to have been in theregion of £8,000, reachedtheconclusionthat 25 "this court must also arrive at a roundsum which,when onelooks at thefigures as awhole,strikes oneas notbeing immoderate—that is to say, notderisory on theone hand or extravagant on theother—and, in seeking to arrive at the happy mean,neverlosing sight of thefundamentalfact 30 that the plaintiffs must prove their case. But they had a just claim and, however difficult it might be to determine its exact proportions,it was the duty of the court togive recognition to it and do the best it could in thecircum­ stances. 1 have listened with interest and absorption to the submissions of counsel on both sides and I have had to come to a conclusion what Τ think is the fair sum to award, having regard to thesizeof thisvehicle, thecostof the vehicle, the cost of running the vehicle, and its un- 40 doubted immobilization for the period of 11 weeks. I think thesum lies between the £396 which, uponcertain hypotheses, Mr. Tucker, suggested to this court was the 40 35 maximum amount recoverable, and the £500 which Mr. Crowe said was the most moderate figure to which his clients were entitled. I think that the proper amount to award here would be the sum of £450. Accordingly, I 5 would allow the appeal and substitute that sum for the £ 2 awarded inthelowercourt". In the Ownersof the Steamship"Grade" {supra), referred to'earlier in this judgment, the principle laid down was that where damages are given for loss of profits the 10 plaintiff cannot also in respect of the same period have damages for loss of use.Speaking, therefore, in theHouse of Lords, Lord Herschell put the matter in these termsat p.523:15 20 25 30 35 "I think that damages which flow directly and naturally, or in the ordinary course of things, from the wrongful act, cannot be regarded as too remote. The loss of the use of a vessel and of the earningswhich would ordinarily be derived from its use during the time it is under repair, and therefore, not available for trading purposes, is certainly damage which directly and naturally flows from a collision. But, further than this,I agree with the Court below that the damageisnot necessarilylimitedto themoneywhich could have been earned during the time the vessel was actually under repair. It does not appear to me to be out of the ordinary course of things thata steamship, whilst prosecuting her voyage, should have secured employment for another adventure. And if at the time of a collision the damaged vessel had obtained such an engagement for an ordinary maritime adventure, the loss of the fair and ordinary earnings of such a vessel on such an adventure appear to me to be the direct and natural consequence of the collision. I observe that no mention was made in the judgments of the learned judges in the Courts below of the claim for demurrage and the allowance of theregistrar inrespectof it". Then hisLordship goeson: 40 "The matter was pointedly brought before your Lordships in the arguments at the bar on behalf of the appellants, and it was urged that if the judgment 41 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER of the Court below were affirmed the respondents would get the damages twice over. I think it right, therefore, to state how this matter ought in my opiniontobedealt with. Where no claim is made in respect of loss arising 5 from the owner having been deprived of the earnings of a voyagewhichwas in contemplation, and theengagement for which had been secured, it would be right, and isnodoubt the usual course,to award damagesunderthenameof demurragein respect of the 10 loss of earnings which it must reasonably have been anticipated wouldensueduringthe timeof detention. But where such a claim is made as in the present case, the owner cannot, I think, be allowed in addition, as a separate item, demurrage in respect of the 15 time the vessel was under repair. If he obtains asdamages the loss which he has sustained owing to the loss of the employment he had secured he is put in thesame position as if there hadbeen no detention". Fo)r the reasons we have advanced, in our opinion this 20 is not a case wherethe respondents had ever attemptedto prove special damages relating to loss of profits and/or of useof the vehicle in question, and wewould therefore accept the contention of counsel for the appellants that in the absence of evidence as to the loss ofprofits, the calcu- 25 lations made by the learned Judge were wrong in law. Accordingly, we would allow the appeal on the issue of quantumofdamagesforlossof profit. Finally, it was urged upon usby counsel for the appellants that the award of the sum of £360 in favour of 30 respondent 2 in action No. 2342/72 was unreasonably high and invited this Court to interfere and reduce it. It seems to us that on the evidence which the learned Judge has summarized in his judgment, the plaintiffs doctor found a severe contusion, bruising and haematoma on his 35 right thigh andrightbuttock. He also noticed that hewas limping and had bruising on his shoulder and his movements were painful. Furthermore, he found abrasions on the right elbow but when he was x-rayed no fracture was revealed. He was kept in the clinic for a period of 5 days 40 and after hewas treated hewasdischarged, but duetothe accident he continues to have pain over the right greater 42 trochanter and right shoulder and he is expected to experience somepain duringweatherchanges.Then, thelearned Judge, after observing that this would disappear in a fewyears time, awarded an amountof general damagesin 5 thesumof £360. Having considered the facts and the judgment in this case, we think that the judgment of the learned Judge is not out of line with some of the figures of other awards which wehave in mind. In a recent case, KyriacosAnto10 niou v. loannislordanous,

(1976)1C.L.R. 341,wesaid that thisCourt willnotinterfere with theawardof aJudge although they might themselves have awarded a different amount unless satisfied that the Judge in assessingthedamages applied a wrong principle of law (as for instance 15 by taking into account some irrelevant factor or leaving out some relevant one) or short of this that the amount awarded wasso extremely high or low as to makeita wholly erroneous estimate of the damage. We would, therefore, dismiss thiscontention of counsel also. 20 __25 But with regard to the amounts of loss of use and the unforeseen damages,wepartly allow the appeal andorder that the sum of £500 be deducted from the original award.Wealsodismissthecross-appeal,butinthecircumstances,.we are not prepared to make an order for costs. _ Appeal partlyallowed._ Cross-appealdismissed. No orderastocosts. 43 1977 Jan. 26 DEMETRIOS EMMANUEL AND ANOTHER v. ANDRONICOS NICOLAOU AND ANOTHER