(1982)1982 May20 [HADJIANASTASSIOU, LORIS AND PIKIS, JJ.] DEMETRIOS KKAFFA, MINOR THROUGH HIS FATHER GEORGHIOS KKAFFA AS NEXT FRIEND ANDKIN, Appellant-Plaintiff, v. KYRIACOS PETROU KALORKOTIS AND ANOTHER, Respondents-Defendants. (CivilAppealNo.6155). Negligence—Road accident—Collision between bicycle and motor car movingin thesame direction—Version of motor car driver that whenhe approached the cyclistthelatterswerved suddenly to hisright withoutgivinganysignalbelieved by trial Court— Court of Appealnotpersuadedtointerfere with thefindingof the 5 trialCourtthatthecyclist was entirely toblamefor the accident. Findings offact—Appeal—Principles on which Court of Appeal interferes withfindingsof fact made by a trial Court—Itwill only doso when afindingisnotwarranted bytheevidence considered as a whole andthereasoning behind afindingis unsatisfactory. 10 Whilst the appellant-plaintiff was riding his bicycle keeping the left side of the road he was followed by a car driven by respondent-defendant 1. At a certain point oftime theappellant tried to move over tothe other side ofthe road andinthe process of doing so he washit by the car of the respondent. 15 In anaction fordamagesbytheappellant thetrial Court having believed the version of therespondent, which wasto the effect that when he was about to overtake the appellant, the latter, without giving any signal, swerved suddenly to hisright, found that the appellant was totally lo blame for the accident and 20 dismissed the action. Hence this appeal. Held, that this Court, when hearing and determining an appeal, is not bound by any determinations of questions of fact made by the trial Courts, and it has power to review the 372 1 C.L.R. 5 10 Kkaffa τ. Kalorkotis whole evidence in drawing its own inferences; that it will only doso,whenafindingis notwarranledby theevidenceconsidered as a whole, and thereasoning behind afindingis unsatisfactory and/or is of the opinionthat the trial Court was cleaily wrong, and that the Court of Appeal should interfere to put right that which has gone wrong in the Court below, bearing always in mind that the making of such findings and the appieciation in general of the evidence at the trial is what the trial Judges are there for; that having considered the evidence as a whole, this Courthas not been persuaded by the appellant to interfere with the findings of fact of the trial Court on whom the onus rested, and the acquittal of the defendants of any contributory negligence; that, therefore, the appellant was entirely to blame for the accident; accordingly the appeal must fail. 15 Appeal dismissed. Cases referred to: Ekrem v. McLean
(1971)1 C.L.R. 391; Charalambides v. Michaelides
(1973)1 C.L.R. 66. 20 25 Appeal. Appeal by plaintiff against thejudgment of theDistrictCourt of Nicosia (Stavrinakis, P.D.C. and Orphanides, S.D.J.) dated the 3rd July, 1980, (Action No. 4576/78) whereby his claim for damages for personal injuries received in a traffic accident was dismissed. A. Danos, for the appellant. G. Pelaghias, for the respondent. HADJIANASTASSIOU J. gave the following judgment of the Court. This is an appeal against the judgment of the Full Court of Nicosia dated 3rd July, 1980, whereby the appellant30 plaintiff was found totally to blame for the accident. THE FACTS: 35 The plaintiff in this actionis a young boy who at the material timewas 11years of age. Hesues throughhis father, the defen dants Kyriacos Petrou Kalorkotis and Petros Kyriacou for negligence claiming damages for personal injuries received in a road traffic accident involving the plaintiff on theonehand and defendant No. 1 on the otherhand. Defendant No. I at the ma- 373 Hadjianastassiou J. Kkaffa v. Kalorkotis
(1982)terial time was driving motor car Reg.No. BS915belonging to defendant No.
- It isindeed an admitted fact in the pleadings that defendant No. 1 wasdriving the said cai for and on behalf oftheownerdefendant No.
- Justbeforetheaccidentoccurred the plaintiff was riding his bicycle keeping the left side of the 5 road. At the same time, defendant No. 1was proceeding to the same direction following the bicycle. At a certain point of time the plaintiff tried to move over to the other side of the road and inthe process ofthis manoeuvre hewashit by the car of the defendants. After the accident, the plaintiff was taken to the hospital where, after an examination, he was found to have suffered a comminuted fracture of the trochanteric region of the right femur (upper third of the femor) with displacement of the fragments. The plaintiff had also scratches on the head and he 15 was complaining of dizziness and headaches. He was treated conservatively withtractiontoreducetheswellingandtostraighten the leg and then he was placed in a plaster cast enveloping thetrank from thenaveldowntothetoesoftherightlimb. He was in the hospital till the 29th February,
- Later on, 20 he was removed by his father to the private clinic of Doctor Papasawas. On admission at the clinic x-iays were taken which showed that the fracture ends in a displaced position. The plaster was removed for the purpose of localizing the surgical area. It was then found by Dr. Papasawas that there 25 was paralysis of the peroneal neive. An operation was performed on the 2nd October, 1978, under general anaesthesia aiming at repairing the displaced union of the fracture. For the peroneal nerve paralysis Dr. Papasawas put the patient under a special therapy as a result of which the sensitivity in 30 the affected area was restored gradually in four weeks' time. Aftei persistent therapy, mobility of the affected limb started appearingintwomonths'time. Theplaintiffafter havingshown considerable improvement, was released from the clinic on the 25th November, 1978,in order to enable him to attend classes, 35 but continued being under observation as an out-patient, and was having physiotherapy treatment for quite some time thereafter. On the 18th January, 1979, his condition was considered satisfactory and loading cf the right lower limb was allowed 40 progressively. He was le-examined on the 23id February, 374 10 1 C.L.R. Kkaffa τ. Kalorkotis Hadjianastassiou J. 1979, and thenagain on the 3rd July,
- On thelatter date the plaintiff's condition was considered satisfactory and was admitted at the clinic for a second surgical operation in order to remove the pins used for joining the fracture. On the 29th 5 August, 1979, the plaintiff's condition was revalued and the doctor's findings were the following: 10 "The patient was complaining of headaches and dizziness after mental exertion. There was pain and restriction of movementsof the right hipto a small degree after exertion and during weather changes". Objectively, the doctor noted a surgical scar 9 inches long of the outer aspect of the right thigh, 1.5 cm shortening of the right lower limb. X-rays showed full healing of the fracture. The doctor's conclusion is that with theexception of the above 15 objective findings there were no other residuals despite the severity of the traumatization. Indeed, the patient was also examined by Dr. Pelides whose opinion does not differ in substance from the findings of Dr. Papasawas despite the fact that Dr. Pelides had a different 20 view regarding the treatment extended to the plaintiff. The netresult of themedicalevidencewas thattheplaintiff sustained seveie injuries in consequence of which he had to undergo two operations. He must have gone through considerable pain and inconvenience during the periods he was undergoing 25 treatment,firstlyas a patient and thereafter during the period when the treatmentcontinued on an out-patientbasis. Fortu nately,the lesiduals of the initial severe traumatization arenot serious. He may experience pain after physical exertion and during changeable weather but as Dr. Pelides stated, this may 30 resolvein time. Also the shorteningwillresolve and theplain tiff will, have as theonly visibleevidence of his misfortune the scars on his thigh, leg and forehead. Finally, the Couit had this to say:35 "Viewing the plaintiff's condition as a whole, and having taken into consideration the pain and suffering andincon venience he must have gone through until his condition was stabilized, we feel thatalthough noserious after effects if atall,remained,neveitheless,heisentitledtoasubstantial 375 HadjianastassioD J. Kkafla v. Kalorkotis
(1982)compensation. We find that a reasonable fair compensation in the circumstances would be an award of £2,000.—". SPECIAL DAMAGES: Then the Court had also dealt with the general damages claimed by way of special damages and reached the conclusion that as far as the defendant wasconcerned a reasonable amount for the doctor's services (not including the uncompleted second operation) should be£1,000.—. The result is that on a full liability basis the plaintiff would be entitled to £3,000.—including special damages. 5 LIABILITY: The defendant denied liability alleging that the accident was due solely to the plaintiff's negligence. Counsel for the defendant, in addressing the Court, maintained that the defendant was not liable at all, not only according to his own version, 15 but also according to the version of the plaintiff put before the Court. The version of the plaintiff is that on the day in question he was cycling along Dorieon Street, followed by a fellow cyclist; they were keeping the left side of the street, when plaintiff 20 reached the area of the accident an old lady standing in the yard of the house situated on the other side of the road called him for something. The plaintiff stopped, looked behind him, and having seen no cars moving about, tried to cross over to the other side of the street in a diagonal manner. When he 25 was in the process of crossing, he heard the sound of a car approaching from behind; he looked back and saw a car about 20 feet away. He tried to avoid it by pressing on to reach the other side of the street, but did not manage to do so, as in the meantime, he was hit by the defendant's car, in consequence 30 of which he was thrown off his bicycle and onto the toad. Thetrial Court, having gonethroughtheevidenceofthe fellow cyclist and having compared his evidence with the statement he gave to the police, found certain serious contradictions casting serious misgivings, as the Court put it, as to his veracity. The 35 Court further stated that it noted a tendency on his part to make his evidence as favourable as possible to the plaintiff. Finally, the Court came to the conclusion that it cannot safely rely 376 10 1 C.L.R. Kkafla τ. Kalorkotis Hadjianastassiou J. on the evidence of this witness, and added, even if the Court Wastoaccepthisevidence,thesituationwould nothavechanged, for the reasons the Court in due course will explain. VERSION OF THEDEFENDANT: 5 Theversion of thedefendantonthecontraryis thatthe plain tiff was cycling on the left side of the road alongside another cyclist. Hesounded his hornand thefellow cychst fell behind and was following the plaintiff. When he approached them andwas abouttoovertaketheplaintiff, thelatter,withoutgiving 10 any signal, swerved suddenly to his right. The defendant applied brakes but the accident was not averted. FINDINGS'OF FACT BY THE TRIAL COURT: The triarCourt, having in mind both versions, had this to say:15 20 25 30 "If the plaintiff's version is accepted, then his position becomes worse for the simple reason that it would have beenextremely unlikely for anyreasonable drivei on seeing a cyclist intheposition as alleged by theplaintiff to foiesee a ciossing of the road. However, we cannot accept the version of the plaintiff not only because we have notbeen satisfied as to his veracity but also because as a whole it is an unlikely unnatural story. We find the version of the defendant more probable, andwe acceptitinpreferencetotheevidenceof the plaintiff and of his fellow cyclist. The accident was solely due to thesuddenswerving of theplaintiff andwhatever thedefen dant did after the creation of the emergency were steps in theagony of the momentand hecannotbe saddled with liability if the said steps weie not effective. For all the above reasons, we find that theplantiff was totally to blame for the accident and theiefore theaction is dismissed". APPEAL: On appeal, counsel for the appellant argued that the trial 35 Couit wrongly found that the accident was due to the sole 377 Hadjianastassion J. Kkafla v. Kalorkotis
(1982)negligence of the plaintiff and wrongly lefused to admit and accepttheevidenceoftheappellant andhiswitnesses. Counsel further complained that there was no evidence to support the findingsof the Court. Havinglistenedtothecontentionsofcounselfoi theappellant, 5 we have not deemed it necessary to call on counsel for the respondents to address us as wehavefound no mertit at all in the appellant'scontentions. Havingfurther consideredtheevidence as a whole, we have not been persuaded by the appellant to interfere with the findings of fact of the trialCourt onwhom 10 the onus rested, and the acquittal of the defendants of any contributory negligence. We would,therefore,findthat the appellant was entirely to blame for the accident. As it has been said time and again, this Court, when hearing and determining an appeal, is not bound by any determinations of questions of 15 fact made by the trial Courts, and it has power to review the whole evidence in drawing its own inferences. But it will only do so, when a finding is not warranted by the evidence considered as a whole,and thereasoningbehind a findingisunsatisfactory and/or is of the opinion that the trial Court wasclearly 20 wrong,andthattheCouitofAppealshouldinterferetoputright that which has gone wrong in the Court below, bearing always in mind that the making of suchfindingsand the appreciation in general of the evidence at the trial is what the trial Judges are there for. (See Ekrem v. McLean,
(1971)1 C.L.R. 391; 25 and ChristosCharalambides v. Polyvios Michaelides,
(1973)1 C.L.R. 66). For the reasons we have given at length, we would dismiss the appeal with costs in favour of the respondents. Appeal dismissedwith costs. 30 378