clr/1981/1981_1_657.pdf

(1981)All E.R. 756atp\ 766,that sincethepoliceinvestigating officer has found at the point of the collision only marks of the1amplication of the-brakes on the righthand side wheels of the vehicle of the respondent, it must be inferred, at least prima facie, that the brakes 5 •'uf'.thev vehicle of the respondent were defective, in the sense that the brakes on the left-hand side wheels of the said vehicle could not be applied effectively and it was upito-the respondent to adduce evidence 10 rin order to show that they were not defective. (

1. b)That the respondent was guilty of contributory negli"gehce because he was driving at an excessive speed in approaching a bend and because he did not give _ sufficient warning of his approach by sounding his horn. 15 Held, that there is not the slightest evidence in this case .that the brakes of the vehicle_pf the respondent were found, :after thecollision,tobedefective,n,oristhereanyexpertevidence before this Court which could lead it to,the conclusion that it should have been -inferred,, even prima facie, that they .were 20 defective, so as to shift the evidential burden of proof on to the respondent; accordingly contention (
2. a)should fail (facts of this case distinguishable from those of the Henderson case, mpra); in the circumstances of this case there can be no doubt that the sole cause of the accident was the manner in which the 25 appellant was driving his car in trying to overtake on a blind bend a lorry ahead of him, with the result that he was found blocking the way of the respondent who was driving his vehicle from the opposite direction and, therefore, it cannot be accepted that any blame for'the accident attaches to the respondent; 30 accordingly contention (
3. b)should, also, fail. Appeal dismissed. Cases referred to: Henderson v. Henry E. Jenkins & Sons [1969] 3 All E.R. 756 at p. 766. Appeal. Appeal by defendant against the judgment of the District Court of Nicosia (Stavrinakis, P.D.C.) dated the20th November, 658 35 1 C.L.R. Procopiou v. Panayi 1979 (Action No. 5835/74) whereby he was ordered to pay to theplaintiff thesumof C£2,602.-bywayofdamagesfor injuries suffered by the respondent in a traffic accident. X. Syllouris,for the appellant. 5 G. Mechanikos, for the respondent. Cur.adv. vult. TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant, who was the defendant before the trial Court,hasappealedagainstthejudgmentofsuchCourtbymeans 10 of which hewas ordered to pay to be respondent, as the plaintiff, the sum of C£2,602bywayof damagesfor injuries suffered by the respondent in a traffic accident. Thefactsofthiscase,aswellasthetwoversionsoftheparties, appear from the following extract from the judgment of the 15 trial Judge: 20 25 30 35 "The plaintiff in this action claims against the defendant damages for personal injuries received in a road traffic accident which occurred on 15.10.1974 along the NicosiaClerou Road. Thegeneral andspecialdamageshavebeen agreed ona full liabilitybasisat£2,602-and what remains to bo determined is the issue of liability on which three witnesses testified in support of ths plaintiff's case and one in support of the defendant's case. At the material time,the plaintiff wasdriving motorlorry under Registration No. CT576 along the Nicosia-Clerou road,proceeding towardsCleroudirection. Thedefendant was driving a small saloon car along the same)road but in the opposite direction. It is the allegation of the plaintiff that on a blind bend he was confronted with an on-coming lorry and a small car which was about to overtake ths said lorry. The plaintiff, in an effort to avoid hitting the small car which. ashesaid,wasblockinghisway,appliedbrakesandswerved to hisright,comingthus intocollision with the on-coming lorry. It is, further, the allegation of the plaintiff that he could not swerve to the left because there was high ground on that side. 659 Triantaf}Hides P. Procoptou v. Panayi

(1981)The version of the defendant in short is, that he is not toblameat allfor theaccidentandtheactionsoftheplaintiff, because he was quite some distance behind the lorry he was about to overtake, and he created no emergency justifying the taking of such a dangerous avoiding action 5 by the plaintiff. In any event, it was argued on the defendant's behalf that even if the defendant had some responsibility for the accident the plaintiff's contribution to it should be by far greater". The trial Judge went on to say that he accepted theversion 10 of the respondent—(the plaintiff)—as more probable than the version of the appellant—(the defendant)—who, in any event, did not impress him as a reliable witness, and that he found that the respondent was not at all to blame for the collision because, when faced with an emergency created by the driving 15 of the appellant, he tried to avoid the accident as best as he could under the circumstances. Counselfor theappellant hassubmittedthat theaboveconclusions of the trial Judge are wrong and that they should notbe upheld; one of his main arguments in this respect being that, 20 since the police investigating officer has found at the point of the collision only marks of the application of the brakes on the right-hand side wheels of the vehicle of the respondent, it must b ; inferred, at least prima facie, that the brakes of the vehicle of the respondent were defective, in the sense that the 25 brakes on the left-hand side wheels of the said vehicle could not be applied effectively and it was up to the respondent to adduce evidence in order to show that they were not defective. We have been referred, in particular, in this connection, to the case of Henderson v. Henry E. Jenkins & Sons, [1969] 3 30 All E.R. 756,where(at p.766)LordPearsonstated thefollowing in delivering his judgment in the House of Lords:"My Lords, in my opinion, the decision in this appeal turns on what is sometimes called 'the evidential burden of proof, which is to be distinguished from the formal 35 (or legal or technical) burden of proof. Passages which bear on this distinction will be found in Esso Petroleum Co., Ltd. v. SouthportCorpn., per DEVLIN, J., and per LORD RADCLIFFE, and in Barkway v. South Wales Transport Co., Ltd. per LORD PORTER and per LORD 40 660 1 C.L.R. 5 10 15 20 Procopiou v. Panayf Triantafyllides P. NORMAND. For the purposes of the present case the distinction can be simply stated in this way. In an action for negligence the plaintiff must allege, and hastheburden of proving, that the accident was caused by negligence onthepartofthe defendants. Thatistheissue throughout the trial, and in giving judgment at ths end of the trial thejudge has to decidewhether heis satisfied on a balance of probabilities that the accident was caused bynegligence on the part of the defendants, and if he is not so satisfied the plaintiff's action fails. The formal burden of proof doesnot shift. Butinthecourseofthe trialthereisproved a set of fact which raises a prima facie inference that the accident was caused by negligence on the part of the defendants, theissuewillbedecidedin theplaintiff's favour unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In thissituationthereissaid tobean evidential burden of proof resting on the defendants. I have some doubts whether it is strictly correct to use the expression 'burden of proof with this meaning, as there is a risk of it being confused with the formal burden of proof, but it is a familiar and convenient usage". It must be pointed out that thefacts of the Henderson case, supra,are distinguishable from those of the case now before 25 us because in the Henderson caseit wasascertained as a matter offact that the brakes of one of the vehiclesinvolvedin a collision were defective and, therefore, it was hald that evidence hadtobeadduced bythoseresponsiblefor the vehicleconcerned that in all the circumstances which they knew, or ought to 30 have known, they took all proper steps to avoid danger. Thereis not the slightest evidence in thiscase that tht brakes of the vehicle of the respondent werefound, after the collision, to be defective, noristhere any expert evidence before uswhich could leadustotheconclusionthatit shouldhavebeen inferred, 35 even prima facie, that they were defective, so as to shift the evidential burden of proof on to the respondent. The version of the appellant was, in our opinion, rightly disbelieved by the trial Judge because the appellant, inhisown evidence, stated that he sawjust before the curve, at a distance 40 of about one hundred to one hundred and fifty metres, the 661 Triantafyllides P. Procopiou v. Panayi

(1981)lorry of the respondent, whilst he himself was driving towards that lorry behind, allegedly, another lorry which was ahead of him, and with which the respondent eventually collided. It is obvious, in our view, that the appellant could only have seen the lorry of the respondent if he had gone away from his 5 proper side of the road and swerved to his right in an effort to overtake the lorry ahead of him. This tallies with the evidence of the respondent who says that he did see, before the collision, the car of the appellant driven in an effort to overtake the lorry which wasproceedingahead ofit inthe same 10 direction,withtheresultthattherespondent hadtotakeavoiding action and, eventually, he collided with the said lorry. Counsel for the appellant has submitted that the respondent was guilty of contributory negligence because he was driving at an excessive speed in approaching a bend and because he 15 did not give sufficient warning of his approach by sounding his horn. In the circumstances of this case there can be no doubt that the sols cause of the accident was the manner in which the appellant was driving his car in trying to overtake on a blind bend a lorry ahead of him, with the result that he 20 wasfound blocking the way of the respondent who wasdriving hisvehiclefrom the opposite direction and, therefore, wecannot accept thatanyblamefor theaccidentattachestothe respondent. In the result, this appeal has to be dismissed with costs. Appeal dismissedwith costs. 25 662