clr/1982/1982_1_213.pdf

(1982)Thetrial Courtfound thatthesolecauseof thecollision wasthe fact that the appellant was wronglydrivinghiscaronthewrong side of the road on which at the same time the respondent was properly driving his own carand that the respondentwas unable in the circumstances to take any other avoiding action and by 5 applying his brakes he did what could reasonably be done to meet the dangerous situation created by the negligent driving of the appellant. Uponthese findings it held that the collision was caused entirely by the negligence of the appellant. Upon appeal Counsel for the appellant contended that once the respondent had admitted that he had seen the on-coming vehicle from a distance of 100 meters, he was also negligent and in any event contributed to the accident by his own failure to take reasonable care for his own safety. 10 Held,that the mere fact of saying that he had seen the on- 15 coming vehicle from a distance of 100 meters, does not imply that that was the momentthat the appellant started overtaking; that nothing of this sort is suggested by the trial Court in its reference to that fact which, on the contrary, accepted that the appellant started overtaking at such proximate distance that 20 hecould take no otheravoiding actionthanwhat therespondent did inthecircumstances;thatonthetotality of thecircumstances this Courthas cometo theconclusion thatbefore therespondent saw the car driven by the appellant coming on the wrong side of the road for the purpose of overtaking the preceding car, 25 he had no reason to take any extraordinary precaution once hewas keeping its proper sideof theroad;thattheonly question, therefore, to be resolved is whether the measures taken by the respondentonfacing thedangersuddenlycreatedbythe negligence of the appellant fell short of what a reasonable driver might, 30 in the agonizing circumstances, take for his own safety; that on the findings of the trial Court, which were duly warranted by theevidence before it,andrightlynotcontested inthis appeal this question hasto beanswered inthenegative andconsequently this appeal must be dismissed. 35 Appeal dismissed. Appeal. Appeal by defendant against the judgment of the District Court of Nicosia (Boyadjis, Ag. P.D.C. and G. Nicolaou D.J.) 214 1 CL.R. Pftnteli v. Heracleoos dated the 30th January, 1981 (Action No. 2852/78) whereby hewasadjudged topaytothe plaintiff the sum of C£l,975.-as damages suffered by him in a traffic collision. P. Angelides, for the appellant. 5 Chr. Chrysanthou, for the respondent. A. Loizou J. gave the following judgment of the Court. This is an appeal from thejudgment of a Full Court sitting in Nicosia by which the appellant/defendant was adjudged to pay totherespondent/plaintiff thesumofC£l,975.-beingtheagreed 10 damages suffered by the respondent from a collision of his vehicle with that of the appellant which the trial Court found to have been caused entirely by the negligence of the appellant and atthesametimeexoneratedtherespondentfrom anyblame and consequently found him not liable either for negligence 15 or contributory negligence. The facts of the case as found by the trial Court and which are not contested in this appeal, are briefly these:In the early evening of the 24th June, 1976, the respondent was driving his Mercedes car, under registration No. GH.541, 20 on the Morphou—Nicosia road in the direction of Nicosia, keepingwellto hisleft-hand side ofthe road, when at a certain point hesawa red Rovercar(registration No.E.F. 160)—which ultimately was found to be driven by the appellant from the opposite direction—overtaking a preceding light blue van and 25 indoingsotakingitsright-handsideoftheroad,thusobstructing the path on which the respondent was properly driving his own car and causing the collision in question. The distance between them at that crucial moment was so short that the respondent realized theimminent danger of a head-on collision 30 between the two cars, applied brakes hard and engaged third gear, whereas the driver of the other car tried the last moment to swerve to his proper side of the road but that proved to be too late and a collision occurred on the respondent's side of the road. 35 The Policewerecalled in and after surveying the scene, P.C. Georghios Karaolis took various measurements and prepared a sketch plan not to scale which showed the formation of the road and othei pieces of real evidence bearing on the case. It appears therefrom that the tarmac of the road at the scene 215 Λ. Loizou J. Pantell v. Heracleons

(1982)was 18 ft. wide divided along its length by a broken white line. On the left-hand side of the road with reference to thedirection of Nicosia therewas a berm,onefoot wide, beyond which there was a deep ditch followed by a high bank. On the opposite side of the road there was a berm 4 ft. wide. The accident 5 occurred at or mar a bend and more specifically just after the respondent had come out of a left-hand bend. Both vehicles had their lights on at the time and in the collision the righthand side of the front of the respondent's car and the offside of the appellant's car were involved. It appears that when 10 at the last moment the appellant tried to regain his proper side of the road, the latter's car was facing diagonally to its left on therespondent's side of theroad and that was thereason why its offside was the part involved in the collision. Thebrake-marks found onthesceneby thePoliceInvestigator 15 were attributed tothetyres ofthecar of therespondentand were 79 ft. long andwithin his side of theroad;attheirstarting point, offside one was 2 ft. from the said white line and ended only one foot from this line. On the aforesaid facts the trial Court concluded that the sole 20 cause of the collision was thefact that the appellant was wrong­ fully driving his car on thewrong side of the road on which at the same time the respondent was pioperly driving his own car a.id that the respondent was unable in the circumstances to take any other avoiding action and he did, by applying his 25 brakes, dowhat could reasonably be doneto meetthedangerous situation created by the negligent driving of the defendant. Upon that they held that this collision, from which arose the agreed damage suffered by the respondent, was caused entirely by the negligence of the defendant. 30 Ithasbeenargued onbehalf oftheappellantthattherespondent once he had admitted that he had seen the on-coming vehicle from a distance of 100 meters, hewas also negligent and in any event contributed to the accident by his own failure to take reasonable care for his own safety. In our view the mere fact of sayingthat he had seen the on­ coming vehicles from a distance of 100 meters, does not imply that that was the moment that the appellant started overtaking. In fact, nothing of this sort is suggested by the trial Court in 216 35 1 C.L.R. Panteli v. Heracleous A. Loizou J. its reference to that fact which, on the contrary, accepted that the appellant started overtaking the blue van at such proximate distance that he could take no other avoiding action than what the respondent did in the circumstances. 5 On the totality of the circumstances before us, we have come to the conclusion that before the respondent saw the car driven by the appellant coming on the wrong side of the road for the purpose of overtaking the preceding car, he had no reason to take any extraordinary precaution once hewas keeping its proper 10 side of the road. The only question, therefore, wo have to resolve is whether the measures taken by the plaintiff on facing the danger suddenly created by the negligence of the appellant fell short of what a reasonable driver might, in the agonizing circumstances, take for his own safety. 15 On the findings of the trial Court, which were duly warranted bythe evidencebefore it, and rightly not contested in this appeal, we find that this question has to be answered in the negative and consequently we dismiss this appeal with costs. Appeal dismissed with costs. 217