clr/1978/1978_1_103.pdf

(1978)a patient at the hospital up to the end of October

1. From September 29, 1973, until March 18, 1974, he was being treated by a specialist orthopaedic surgeon and from October 5,
2. until April 22, 1975 he was being treated, too, by a neuropsychiatrist. 5 Up to April, 1975, that is nearly a year and a half after the accident, he was complaining of occipital headaches every now and thenand of dizziness and diminutionof work efficiency which were he result of the concussion he had suffered. The respondent was defendant 1 at the trial and there were two other defendants. But as no evidence at all was adduced to substantiate the case against them the action against them was dismissed and they were not parties to the appeal. The trial Court awarded to the appellant C£730.900 mils as damages, out of which GE455.900 mils as special damages and C£ 275 as general damages; and made no order as to the costs of the action on the ground that it was " partly successful, having failed against defendants 2 and 3". 10 15 In assessing the general damages the trial Court stated that this was a case of moderate amount of pain and suffering for 20 not more than six months which—except for about the first seventeen days—did not prevent the plaintiff from working or from exercising his normal activities or his enjoyments in life. The plaintiff appealed and contended (a) that the trial Judge took an erroneous view of the seriousness of the after-effects of the injuries which he suffered and (b) that the trial Judge erred in depriving the plaintiff of the costs of the action and/or in failing to make an order for costs in favour of the successful plaintiff. Held,

(1)looking at the evidence as a whole, particularly the evidence relating to the complaints of headaches and dizziness in April 1975, we think that the Judge underestimated and took an erroneous view of the seriousness of the after-effects of the injuries which the appellant has suffered. This case is more serious, when looked at as a whole, than the cases of Lysandrou v. Aloneftis

(1975)1 J.S.C. 57, 59,and Kamarlingos and Another v. Economides

(1975)6 J.S.C. 839, 842 and since the Judge has proceeded to assess the general damages on a wron« tooting as 104 25 30 35 1 C.L.R. Stavrou v. Laos regards the after-effects of the injuries, his estimate of such damages is so erroneous as to necessitate our intervention; we, therefore, increase the general damages from C£275 to C£450. (pp. 108-109 post). 5 10 15 20 25 30

(2)Costs were within the discretion of the trial Judge (see section 43 of the Courts of Justice Law, 1960 (Law 14/60) and lule 1of Order 59 of the Civil Procedure Rules) but such judicial discretion has to be exercised in accordance with certain well established principles unless there exists good and sufficient reasons for departing from them. (See Supreme CourtPractice, 1976, vol. 1, p. 901). In the light of the principles governing the question of awarding costs where there were successful defendants and an unsuccessful defendant (see pp. 110-111 post and Butterworth's Costs 1951, vol. 1, pp. 73-75, Beaumont v. Senior and Bull, [1903] 1 KB., 282. 284, Ellingsen and Another v. Del Skandinaviske Compani and Others [1919] 2 K.B. 567, at p. 570, Kornerv. H. Korner ά Co. Limited[\95\] Ch. \0,and Doan v. Lion Mediterranean Shipping, Agency and Another

(1966)1 C.L.R. 8 at pp. 12, 13) we do not think that this is a proper case in which we should burden the unsuccessful defen­ dant, that is the respondent, with the totality of the costs of the appellant; but, on the other hand, we do not think that there existed, either, any justification for the exercise, in the way in which it has been exercised, of the relevant discretion of the trial Judge, namely his decision that it was not fair to make any order as to the costs of the trial; in doing so, he acted contrary to principle, and, therefore, we should intervene to order the respondent to pay to the appellant one third of the costs of the appellant at the trial; the appellant is entitled, as against the respondent, to the costs of the appeal. Appeal allowed. Cases referred to: Aristodemou v. Angelides & Philippou

(1976)3 J.S.C. 487, at p. 491 (to be reported in

(1976)1 C.L.R.); 35 Karaolis and Another v. Charalambous and Another

(1976)9 , J.S.C. 1414, at p. 1426 (to be reported in

(1976)1C.L.R.); Antoniou v. Iordanous and Another

(1976)10 J.S.C. 1509, at p. 1518 (to be reported in

(1976)1 C.L.R.); 40 Lysandrou v. Aloneftis

(1975)1 J.S.C. 57, 59 (to be reported in

(1975)1C.L.R.); 105 Stavrou v. Laos

(1978)Kamarlingos and Another v. Economides

(1975)6 J.S.C. 839 at p. 842 (to be reported in

(1975)1C.L.R.); Georghallides v. Constantinides, 1961 C.L.R. 95; Beaumont v. SeniorandBull [1903] 1K.B. 282, at p. 284; Ellingsen andAnotherv. DetSkandinaviske Compani andOthers 5 [1919] 2 K.B. 567, at p. 570; Korner v. H. Korner andCo. Limited[1951] Ch. 10; Doan v.LionMediterranean Shipping, Agency andAnother

(1966)1 C.L.R. 8, at pp. 12,

1. Appeal. 10 Appeal by plaintiff against that part of the judgment of the District Court of Limassol, (Pitsillides, S.D.J.) dated the 4th March, 1976, (Action No. 2235/74) relating to the award of C£275 as general damages, as a result of a traffic accident, and to the order as to the costs of the proceedings at the trial, 15 P. Pavlou, for the appellant. Ph. Clerides, for the respondent. Cur. adv. vult. Thejudgment of the Court was delivered by: TRIANTAFYLLIDES P.: The appellant appeals against that part of a judgment of the District Court of Limassol which relates to the award of general damages and to the order as to the costs of the proceedings at the trial. 20 The said judgment was given in an action brought by the appellant, as plaintiff, against the respondent, as the defendant; 25 by means of such action the appellant claimed damages for negligence; what gave rise to the proceedings was a collision which occurred on September 21, 1973, on the LimassolPaphos road, between a car driven by the appellant and a lorry driven by the respondent. 30 The respondent was defendant 1 before the trial Court and there were two other defendants at the trial, who had been sued as owners of the lorry or as employers of the respondent. But no evidence at all was adduced at the trial to substantiate the case against them and, therefore, the action, in so far as 35 they were concerned, was dismissed by the Court below; and they arc not parties to this appeal. 106 1 C.L.R. Stavrou v. Laos Triantafyllides P. The trial Court awarded to the appellant C£730.900 mils as damages, out of which GE455.900 mils as special damages and C£275 as general damages. It made no order as to the costs of the action on the ground that it was "partly successful, 5 having failed against defendants 2 and 3". Thefindings of a surgeon at Paphos hospital, Dr. Gregoriades, who examined the appellant on admission to the hospital on the date of the accident, are set out in the judgment of the trial Court as follows:. ' ^ 10 15 " 1 . Dizziness due to mildcerebral concussion.
2. Oedema of2centimetres in diameter on the right parietal region of the skull. "'"" *"
3. Scratches with oedema oT"b~ne centimetre in diameter a little over the tail of the right eyebrow, r . .^
4. Severe pain in the lower part of the neck. /
5. Severe pain on the axillary line of the right chest wall due to a crack fracture of the 4th right rib. .)
6. Severe pain in the lower part of the lumbar spine." The above findings are not disputed. 20 25 30 35 — _^z=-i—r What is contested is the view taken by the trial Court of the after-effects of the injuries which the appellant has suffered; in this respect, the trial Judge stated the following in assessing the general damages:_~~v " To summarise, I believe that the plaintiff had moderate pain and suffering in his neck and lower back for a period of about seventeen days with probable occasional aching during changeable weather for three to six months from the accident, that he had a fair amount of pain and breathing discomfort in his axillary area on account of the fracture of a rib for about three weeks at the most and that he had symptoms from concussion which lasted for about five months from the accident. Thus, this is a case of moderate amount of pain and suffering for not more than six months which—except for about the first seventeen days—did not prevent the plaintiff from working or from exercising his normal activities or from his enjoyments in life." The appellant was kept at the, Paphos hospital 'up to" 107 Triantafyllides P. Stavrou τ. Laos

(1978)September 25, 1973, he was granted sick leave thereafter up to October 7, 1973, and he resumed his work on October 8, 1973, as a District Inspector at the Office of the District Officer of Paphos; he was, however, being followed as a patient by Dr. Gregoriades up to the end of October 1973. 5 From September 26, 1973, until March 18, 1974, the appellant was being treated, also, by Dr. Andreou, who is a specialist orthopaedic surgeon in Limassol; and, from October 5, 1973, until April 22, 1975, he was being treated, too, by Dr. Doritis, a neuropsychiatrist in Limassol. 10 Another doctor, who did not treat the appellant, but who examined him on April 23, 1975, prior to giving evidence as a witness called by the respondent's side, is Dr.Pelides, a specialist orthopaedic surgeon in Nicosia. The appellant was, also, examined, on April 23, 1975, by a prospective defence witness, 15 Dr. P. Sofocleous, a neuropsychiatrist of Nicosia, who, how­ ever, was not, in the end, called to give evidence, but whose report was produced by the defence at the trial and was put in evidence by consent of both sides. The principles on thebasis of which this Court decides whether 20 or not to interfere with the assessment of damages are well established; it is not necessary to repeat them all over again and it is sufficient to refer to three recent cases in which they have been expounded and applied, namely Aristodemou v. Angelides & Philippou Ltd.,

(1976)* 3 J.S.C.487, 491,Karaolis 25 and Another v. Charalambous and Another,

(1976)* 9 J.S.C. 1414, 1426 and Antoniou v. Iordanous and Another,

(1976)* 10 J.S.C. 1509, 1518. We agree with counsel for the appellant that the trial Judge took an erroneous view of the seriousness of the after-effects 30 of the injuries which the appellant has suffered; in doing so he attributed undue importance to the fact that the appellant returned to his work soon after the accident without asking for further sick leave, even though he was still suffering from the said after-effects. Moreover, the Judge relied, wrongly, too 35 much on the evidence of Dr. Pelides, who had examined the appellant only once and for a very short period of time and, consequently, not as thoroughly as the other doctors who had treated him for, and followed his recovery from, his injuries. • To be reported in

(1976)1C.L.R. 4 108 Q 1 C.L.R. Stavrou v. Laos Triantafyllides P. It is perhaps useful to point out, in this connection, that due to the use of different medical terminology by Dr. Gregoriades and Dr.Andreou, the trial Court thought that there was a striking discrepancy between their respective opinions, 5 even though, in actual fact, they more or less said substantially the same things. Inany event, even on the basis of only the evidence of Dr. Andreou itis proper toconclude that the appel­ lant suffered, in addition to a fractured rib,serious injuries to the soft tissues in the cervical and lumbar areas of the spine, 10 which were of such a nature that, as Dr. Andreou had testified, it is very rare for the patient concerned not to have trouble from them for a period of, at least, one year; andDr.Andreou has stated, in particular, that the sprain in thearea of cervical spine was of a most serious degree, namely of the third degree. i5 20 25 30 35 Also, we think that thejudge underestimated the after-effects of the injuries of the appellant, because of the fact that the appellant admitted quite frankly that his concussion was"practi­ cally cured" in about five months' time; but,theevidence has to be looked at as a whole and thefact remains that even up toApril 1975, that is nearly a year and a half after the accident. the appellant was,still, complaining, according to the evidence of Dr. Doriiis, of occipital headaches every now and then, especially after concentrating on anything for some lime,and that, according to Dr.Doritis. these headaches were the resell of the concussion which, as this doctor said, was of a niiid to a moderate degree. What is even more important, in our view, is the report of Dr. Sofocleous. which was produced by the defence, that isthe respondent's side, and wasput in evidence by consent of both sides; this report confirms that on.praetically, the same day on which the appellant was last examined by Dr. Doritis, Dr.Sofocleous recorded that hewas still com­ plaining of occasional headaches anddizziness end dimiiHtiion of work efficiency, which he described as a clinical picture consistent with the residual syrntomatology of a posi-concussional syndrome. Taking all theforegoing into account we do think that tins case is more serious, when looked atas a whole, than tiie cases of Lysandrou v.Aloneftis,

(1975)* ί J.S.C. 5 7. 59.a:id cS,\ai:mrlingos andAnother v. Eeonomides,

(1975)*.6 J.S.C. S?.9. S42— 40 * Tobe rcporlcd in

(1975)1C.L.R. I \J,' Triantafyllides P. Stavrou v. Laos

(1978)which was referred to, also, by the trial Judge—and we are of the view that,since theJudge has proceeded to assess the general damages on a wrong footing as regards the after-effects of the injuries of the appellant, his estimate of such damages is so erroneous as to necessitate our intervention; we, therefore, increase the general damages from C£275 to C£450. 5 As regards the order about the costs of the trial it is correct that, under section 43 of the Courts of Justice Law, 1960 (Law 14/60), as well as under rule 1 of Order 59 of the Civil Pro­ cedure Rules, such costs were within the discretion of the trial 10 Judge; and, Georghallides v. Constantinides, 1961 C.L.R. 95, shows how very difficult is for this Court to interfere, on appeal, with the exercise, in a matter of this nature, of the discretion of a trial Court; but, on the other hand, we are faced with a specific situation in which there was an unsuccessful defendant, 15 the respondent, and two other successful defendants; it is a situation which is governed by well established principles and the judicial discretion of the trial Judge had to be exercised in accordance with such principles unless there existed good and sufficient reasons for departing from them. 20 In this connection the following are stated in the Supreme Court Practice, 1976, vol. 1, p. 901:" Wide though the discretion is, it is a judicial discretion, and must be exercised on fixed principles, that is according to rules of reason and justice, not according to private 25 opinion (Sharpe v. Wakefield, [1891] A.C. 173); or even benevolence (Kierson v. Joseph L. Thompson & Sons, Ltd., [1913] 1 K.B. 587), or sympathy {Bevingtonv. Perks, [1925] 2 K.B., p. 231), and the exercise of discretion even by a Judge silting alone must be justifiable (Ritter v. Godfrey, 30 [1920] 2 K.B. 47);'* As regards the specific question of awarding costs where there are successful defendants and an unsuccessful defendant, useful reference may be made to Butterworth's Costs

(1951), vol. I, pp. 73-75, and to Beaumont v. Senior and Bull, [1903] 35 1 K.B.

1. 284, Ellingsen and Another v. Del Skandinaviske Compani and Others, [1919] 2 K.B. 567, 570, and Korner v. /-/. Korner & Co. Limited, [195!] Ch. 10, as well as to our own case of Doan v. Lion Mediterranean Shipping Agency and Another, (Ϊ966) 1 C.L.R. 8, 12,
2. 40 110 1 C.L.R. Slavrou v. Laos Triantafyllides P. The principle to be derived from the above cases h that where both defendants, the successful one and the unsuccessful one, were defended by one and the same advocate it is pre­ sumed—(unless there was some specific agreement between 5 them,and nothing of this sort has been established in the present case)—that they were liable to share, equally, the costs of their advocate; of course, as it appears, in particular, from the Korner case, supra, this is not an inflexible principle which may not be departed from in a proper case. Also, in a proper 10 case, the costs payable by an unsuccessful defendant may be increased by the costs of a successful defendant which the plaintiff would have to pay, if it was reasonably open to him to have added the unsuccessful defendant, as a defendant, together with the successful defendant. But. here, we are 15 faced with the difficulty that the two successful defendants, who are not parties to this appeal, were joined as parties initially and, later on, when by their statement of defence tiiey denied all responsibility, the appellant has offered no evidence what­ soever in order tojustify their having been joined as defendants. 20 In the light of all the foregoing, we do ικ.ίΐ think that this is a proper case in which wc should burden the unsuccessful defendant, that is the respondent, with the totality of the costs of the appellant; but, on the other hand, we do not think that there existed, either, any justification for the exercise, in the way 25 in which it has been exercised, of the relevant discretion o( the trial Judge, namely his decision that it was not fair to make any order as to the costs of the trial; in doing so. he acted contrary to principle, and, therefore, we should interxene to order the respondent to pay to the appellant one third of the 30 costs of the appellant at the trial; and, of course, the appellant is entitled, as against the respondent, to the costs of the appeal as well. 35 The appeal is, therefore, allowed with the amount of general damages being increased, as stated, from C£275 to C£450, and with the order of costs at the trial being varied, so that the respondent shall pay one third of the costs of the appellant at the trial; also, the respondent has to pay the costs οΐ the appellant in this appeal. Appeal allowed. Order for costs as above. Ill