1977 Febr. 17 PANOS KYRIAKIDES AND ANOTHER v. ANDREAS PAPASAVVAS [L. LOIZOU, HADJIANASTASSIOU, MALACHTOS, JJ.] PANGS KYRIAKXDES AND ANOTHER, Appellants-Defendants, v. ANDREAS PAPASAWAS, Respondent-Plaintiff. (Civil Appeal No. 5397). Retrial—Claim for damages for negligent driving—Contributory negligence—Pleaded—Not considered by trial Judge—Proper casefor retrial, on the issueof contributory negligence, by the samejudgeand in the lightof the evidence already adduced— Section 25
(3)of the Courts of JusticeLaw, 1960 (Law 14 of 5 1960). ι. Negligence—Contributory negligence—Pleaded but not considered by trialCourt—Order ofretrial. The appellant-defendant, in this traffic accident case appeal ed against the judgment of the trial Courton theground, inter 10 alia, that the trial Court was wrong in not finding "contribu tory negligence on the part of the plaintiff in that contribu tory negligence was pleaded by paragraph
(8)of the defence and ample evidence was before it tothis effect". The trial Court did not consider the question of contributory negligence because, as it stated, it "has neither been pleaded nor argued". 15 This statement of the trial Court was obviously wrong be cause in so far as .the pleadings went, the contributory negli gence was clearly pleaded at paragraph 8 of the defence. The 20 Court of Appeal was not in a position to say with any degree of certainty whether the question of contributory negligence was argued, mainly because it did not have before it the ad dresses of counsel. Counsel for the appellants submitted and counsel for the respondent conceded that this was a proper case for retrial. Held,that this Court is in full agreement with theview that this is a proper case for retrial; and that in the exercise of its powers under section 25 of the Courts of Justice Law, 1960 92 25 5 it orders that this case be retried on the issue of contributory negligence by the same Judge and in the light of the evidence already adduced at thetrial. Appeal allowed. Retrialordered. Appeal. Appeal by defendants against the judgment of theDis trict Court of Nicosia (Kourris, S.D.J.) dated the 15th February, 1975, (Action No. 5250/73)whereby the plain10 tiff was awarded the sum of £880.- as damages for inju ries sustained by himinatraffic accident. L. Papaphilippou, for theappellants. St.Erotokritou (Mrs.), for the respondent. Cur?adv. vult. 15 Thejudgment of theCourtwas delivered by:L. LOIZOU,J.: This is an appeal from thejudgment of the District Court of Nicosia in a traffic accident case. The learned trial Judge found for theplaintiff and award ed a total of £.880.- by way of damages with costs. The 20 defendants appealed against this judgment on three grounds:
(1)thetrial Courtwas wrong both in law andin fact;
(2)the trial Court was wrong in not finding contri butory negligence on the part of the plaintiff in thatcon tributory negligence was pleaded by paragraph
(8)of the 25 defence and ample evidence was before it to this effect; and
(3)the award of general damages isexcessive. The respondent cross-appealed on the ground that the damages awarded arevery low. In thecourse of thehearing of this appeal learnedcoun30 sel for the appellants abandoned ground 3 of his grounds of appeal. Going through thejudgment, there appears at p. 23 the following passage: "Bearing in mind the evidence of the plaintiff, I would have been prepared toconsider the ques35 tion of contributory negligence, but as this has neither been pleaded nor argued, I am not prepared to consider it". This statement is obviously wrong because in so far as thepleadings go, the contributory negligence is clearly pleaded at paragraph 8of thedefence. We are notin apo- 93 1977 Febr. Π PANOS KYRIAKIDES AND ANOTHER r v. ANDREAS PAPASAWAS 1977 Febr. 17 PANOS KYRTAKIDES AND ANOTHER v. ANDREAS PAPASAVVAS sition to saywith anydegreeof certaintywhether thequestionofcontributorynegligencewasargued,mainlybecause we do not have before us the addresses of counsel, allwe can say is that in the brief hand-written note of the addresses made by the trial Judge no mention is made of contributory negligence. It has been submitted by learned counsel for the appellants and conceded bylearned counsel for the respondent that this is a proper case for retrial. We are in full agreement with this view and in exercise of our powers under s.25 of the Courts of JusticeLaw 1960,weorder that this case be retried on the issue of contributory negligence by the same Judge and in the light of the evidence already adduced at thetrial. The costs of this appeal whichwefix at £ 14.-willfollow the event. In so far as the cross-appeal is concerned, counsel for the respondent is at liberty to pursue it after the determination of the case before the District Court. We think it would bein the interest of justice that every possiblepriority shouldbegiventothiscase. Appealallowed. Retrialordered. Order for costsasabove. 94 10 15 20