clr/1980/1980_1_345.pdf

(1980)25% because "he was not keeping completely to his proper side of the road whilst entering the curve or else the back of the lorry would not be blocking a considerable part of the road"; and that "this fact coupled with the fact that the driver of the lorry saw the land rover keeping to its wrong side of the road 5 from a distance of about 50 ft.," leads to the conclusion that despite of the action taken by him to avoid the accident, i.e. the braking and the stopping of the lorry, he is also to blame for the accident. Upon appeal by the defendant-driver of the lorry: 10 Held,that the finding of the trial Court that the appellant was also guilty of negligence is obviously erroneous in the light of the evidence before the Court; that the appellant, having been faced with the imminent danger which the driver of the land rover has created byhisnegligent driving in blocking completely 15 his path, the appellant had no alternative but to stop in order toavoid ahead on collision,and insodoingheacted asa reasonable prudent man and has taken sufficient precautions to avoid the collision; that in these circumstances, and in the light of the evidence that there was sufficient space for the respondent to 20 pass safely, and once the trial Court has accepted that the appellanthas taken avoidingaction by brakingand stopping the lorry, the appellant was wrongly found to have contributed to the accident once the appellant in the present case has taken the bestpossibleaction inthosecircumstances;and that,accordingly, 25 the appeal must be allowed. Appeal allowed. Cases referred to: Pourikkos v. Fevzi

(1963)2 C.L.R. 24; Theophanous v. Markidesand Another

(1975)1C.L.R. 199. 30 Appeal. Appeal by defendants against the judgment of the District Court of Nicosia (Demetriades, P.D.C. and Nikitas, D.J.) dated the 7th December, 1977 (Action No. 4789/76) whereby they were found guilty of negligence and were ordered to pay to the 35 plaintiff the sum of £598—as general damages. G. Pelayias, for the appellants. A. Magos, for the respondents. Cur. adv. vult. 346 1 CX.R. Panayiotou & Another v. Xenophontos L. Loizou J.: Thejudgment of the Court will bedelivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: This is an appeal by the defendants from thejudgment of the Full District Court of Nicosia dated 5 7th December, 1977, whereby the Court having found that the defendants were also to blame for the accident, awarded thesumof£598asgeneraldamagestotheestateofthedeceased Iacovos Xenofontos involved in the fatal accident. FACTS 10 Thedeceased,IacovosXenofontos,wasinvolvedinanaccident in themorning of 22nd March, 1976,whilst he wasdrivinghis land roverwhichcollidedwiththemotor lorry ofthe defendants Andreas Panayiotou andanother of Spilia. According toP.W. Lyssandros Liasides, who arrived at the scene at Sellai tou 15- Skotomenou locality between Kykko Monastery and Stavros tis Psokas, accompanied by Sgt. Cleanthous, at the scene he met the driver of the lorry which was stationary on the road. Healsosawtheland rover whichwasina precipice approximately 400ft. deep. The road where the accident occurred was 20 a forest road, and from the traffic signs or marks, he noticed that theland rover wastravelling from thedirection of Stavros towards Kambos, and the lorry wascoming from the opposite direction. Andreas Panayiotou, on the fatal date, left his village Spilia 25 at about 5.00 a.m. carrying two passengers, Michael Papaioannou and Heracles Irodotou on their wayto the forest near Yialia which hadbeen destroyed by fire. As he was travelling on entering a curve, he noticed a land rover coming from the opposite direction, notkeeping its proper side ofthe road. As 30 his side wasblocked completely by the land rover, he applied brakes and stopped immediately. The land rover continued travelling,and when thedriverapproached thelorry it suddenly swerved to its left. Theside of the front offside mudguard of the land rover touched thetipofthefront bumper ofthelorry, 35 and continued its way. Immediately he opened the door in order to see the registration number of the land rover. He thensawtheland roverfalling intotheprecipice. Heexplained that he wasusing that road continuously for a period of three years, and when the accident occurred he said he was keeping 40 his proper side of the road. In cross-examination by 347 Hadjianastassiou J. Panayiotou & Another τ. Xenophontos

(1980)counsel, he told the trial Court that he kept to the extreme side of the road. When pressed further by counsel that the land rover was keeping its proper side of the road, his reply was "No, this is not correct, had the land rover kept its proper side of the road, it could safely pass me. In fact, lorries loaded with 5 logs passed by safely after the accident". Therewas further supporting evidence, and HeraclesIrodotou, a co-passenger in the said lorry told the Court that on the date of the accident as they were proceeding, he noticed a land rover coming out of a curve. They were at a distance of about 60 10 feet from the curve, and were keeping their proper side of the road. The driver of the lorry, when he saw the land rover, immediately stopped, but the land rover continued its way in a straight line and was heading towards the front of their car. When the land rover was at a distance of about 10-15 feet 15 away from them,he noticed the driver manoeuvring by swerving suddenly to the left. The side of the land rover touched the right tip of the front bumper of the lorry, and then continued its way. He alighted also and looked round, but he did not see the land rover. He then heard the noise that it made as it 20 was falling into the precipice. He went to the edge of the precipice, looked down, and saw the land rover there, and together with the other passenger, Michael, went down to the precipice. They were joined by the driver of another land rover. He stayed at the scene of the accident till the police 25 arrived. Defence counsel, in challenging this witness, put clearly to him that when he first saw the land rover, it was at a greater distance than 60 ft. from him, and his answer was "No, this is not correct". To the second question that the land rover was 30 keeping to its proper side of the road, the witness stated that that was not correct.

1. FINDINGS OF THE TRIAL COURT The trial Court, having considered the whole evidence before them, and that there was sufficient space for the land 35 rover to pass the lorry safely, as well as thereal evidence, and in particular the brake marks of track ZB which corroborates the evidence of defence witnesses, viz., that the land rover, immediately before the collision was keeping its wrong side of the road, and in so doing touched the offside tip of the front 40 348 1 C.L.R. Panayiotou & Another v. Xenophontos Hadjianastassiou J. mudguard of the lorry. The trial Court reached the conclusion that the deceased driver was to blame for the accident. Then the trial Court proceeded to examine whether the driver of the lorry had contributed to the fatal accident, and 5 had this to say:- 10 15 "The position of the lorry as found by P.W. 1, and which we have earlier described in detail, proves that the driver of the lorry was not keeping completely to his proper side of the road whilst entering the curve, or else the back of the lorry would not be blocking a considerable part of the road—in fact it was beyond the crown of the road. This fact coupled with the fact that the driver of the lorry saw the land rover keeping to its wrong side of the road from a distance of about 50 ft., led us to the conclusion that despite the action taken by him to avoid the accident, i.e. the braking and the stopping of the lorry, he is also to blamefor the accident and'we estimate hisliability at 25%".
2. GROUNDS OF APPEAL Counsel in support of his grounds of law, very ably indeed 20 argued (a) that the Court in finding that the appellant was to blame for the accident by 25%,erred in law and in fact; (b) that the said finding is unjustified and contrary to the evidence; (c) that the finding of the trial Court that the appellant was also liable for the accident was not duly reasoned. 25 On the contrary,counsel for the respondent, in a strong argument, invited this Court not to interfere with the finding of the trial Court that theappellants werealsoto blame for the accident. Counsel relies on Yiannakis Kyriakou Pourikkos v. Mehmet Fevzi,

(1963)2 C.L.R. 24,and GeorghiosTheophanousv. Andreas 30 Markides and Another,

(1975)1 C.L.R. 199. Having considered carefully the arguments of both counsel, the first question is whether the appellants were also to blame for the accident in the circumstances of this case. In Pourikkos case (supra) Wilson, P., delivering the first 35 judgment of the Court, had this to say at pp. 30-31 :"I find theconclusions of the trial Court difficult to accept. The Rule of the Road Law, Cap. 334, provides in section 2'every person driving any vehicle, which term in this 349 Hadjianastassiou J. Panayiotou & Another v. Xenophontos

(1980)law includes a bicycle, tricycle or driving or riding or leading any animal—(a) when he meets another vehicle or any animal, shall keep his own vehicle or animal to the left side.' The plaintiff must be taken to have known of this rule and 5 he must likewise be held to have chosen to disregard it, because he chose to drive at a speed which prevented him from obeying it. The main, if not the only cause of the collision was the excessive speed of the plaintiff which caused him to cross 10 over to the defendant's side of the diversion. The defendant, seeing the plaintiff's vehicle travelling at an excessive speed, slowed down and drove his car partly off the pavement to the extent stated above. In these circumstances the action might well have been dismissed 15 and thecounterclaimmightwellhavesucceededcompletely. However, a careful perusal of all the evidence leaves a doubt whether the trial Court was wrong in the result, applying the principle, as I do, stated in Nancev.British ColumbiaElectric Railways Company Ltd. [1951] A.C. 20 601 at p. 611: 'Generally speaking when two parties are so moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is 25 on foot, and the other controlling a movingvehicle.' The difficulty here isnot whether the defendant took any precautions to avoid the collision, but whether he took sufficient precautions. This is a question of fact, upon which the trial Court has made a finding and it is not to 30 be reversed when, as here, there isevidenceto support it." In Theophanous' case(supra), Triantafyllides, P.,dealing with the question of contributory negligence, had this to say at pp. 205-206:"It is a well-founded principle that when two vehicles are 35 so moving in relation to each other as to be involved in a risk ofcollision,each oneofthem owesto theother a duty to proceed with due care (see Nancev. British Columbia 350 1 C.L.R. 5 10 15 20 Panayiotou & Another v. Xenophontos Hadjianastassiou J. Electric Railway Co. Ltd. [1951] [2 All E.R. 448). This principle has been applied by our Supreme Court on many occasions (see, interalia,Pourikkos v. Fevzi

(1963)2 C.L.R. 24); it is, of course, always a question of fact whether each party has taken sufficient precautions to avoid the collision (seethejudgment of Wilson P. in the Pourikkos case, supra, at p. 31). We are of the view, having considered carefully all the relevant circumstances of this case, and bearing in mind the principles which govern the exercise of our powers to interfere with the decision of a trial Court in a case of this nature (see, inter alia,Christodoulouv. Angeli

(1968)1C.L.R. 338, Ioannou v. Mavridou

(1972)1 C.L.R. 107, and Kyriacou v. Aristotelous

(1970)1 C.L.R. 172), that in the present case the, finding as regards liability, made by the trial Court, is plainly erroneous and should be varied, so as to burden the motor-cyclist with 25% of the blame for the collision, and the appellant only to theextent of 75%. This apportionment of liability cannot, of course, affect the rights of the pillion-rider, because he was not responsible at all for the accident." Having reviewed the authorities and in the light of the circumstances of this case, and fully aware of the principles governing our powers to interfere with the decisions of the trial 25 Courts in cases of this nature, we have reached the conclusion that the finding of the trial Court that the appellants were also guilty of negligence is obviously erroneous in the light of the evidence before the Court, that the appellant driver, having been faced with the imminent danger which the respondent has 30 created by his negligent driving in blocking completely his path, the latter had no alternative but to stop in order to avoid a head on collision, and in doing so he acted as a reasonable prudent man, and has taken sufficient precautions the avoid the collision. 35 In these circumstances, and in the light of the evidence that there was sufficient space for the respondent to pass safely, and once the trial Court has accepted that the appellant has taken avoiding action bybraking and stopping the lorry,the appellants, in our view, were wrongly found to have contributed to the 351 Hadjianastassiou J. Panayiotou & Another v. Xenophontos

(1980)accident, once the appellants in the present case have taken the best possible action in those circumstances. Wewould, therefore,findourselvesinagreement withcounsel for the appellants that the Court erred in law and in fact in holding that the appellant had contributed to theaccident. For the reasons we have given, we reverse the finding of the trialCourt. Appealallowed,butintheparticular circumstances of this case, we are not making an order for costs. Appeal allowed. No order as to costs. 352 5 10