clr/1982/1982_1_609.pdf

(1982)tomakeitproper ornecessaryfor thisCouittointeift.iv; accordingly the appeal should fail. Appeal dismissed. Cases referred to: Lang v. London Transport Executiveand Another [1959] 3 All 5 E.R. 609; loannou andAnother v. Michaelides

(1966)1C.L.R. 235 at pp. 238, 239; Kkafa y. Kalorkotis

(1982)1 C.LR.

1. Appeal. Appeal by plaintiff against thejudgment of the District Court of Nicosia (Stylianides, P.D.C. and Fr. Nicolaides, D J . ) dated the 21st August, 1981 (Action No. 1587/78) whereby plaintiff's action for damages for personal injuries alleged to have occurred as a result of the negligence and/or breach of statutory duty by 15 defendant was dismissed. P. Demetriou, for the appellant. S. Erotocritou (Mrs.), for the respondent. 10 TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Mr. Justice Sawides. 20 SAWIDES J.: This is an appeal against the judgment of the Full District Court of Nicosia, whereby the action of the appellant-plaintiff for damages for personal injuries alleged to have occurred as a result of the negligenceand/or breach of statutory duty by the respondent, was dismissed. 25 The grounds on which counsel for the appellant based this appeal, is, first, that the trial Court wrongly found that the respondent was not to blame for the accident which gave cause to the action, and, second, that the quantum of damages awarded by the trial Court was manifestly low. 30 The question of damages as assessed by the trial Court on the assumption of full liability, was £800.- agreed special damages and £1,750.- general damages. The facts of the case are briefly as follows:The plaintiff, an infant, raised this action by his father and 35 610 1 C.L.R. EpiCanlouτ.Hadjigeorghiou Sawides J. next friend claiming special and general damages for injuries received in a road traffic accident due to the negligence and/or breach of statutory duty by the defendant. The plaintiff was born in August,
2. On 21.10.77 whilst 5 crossing Kantara Avenue in Kaimakli Quarter of Nicosia, he came into collision with the front left door of motor car Reg. No. DB.919 owned and driven by thedefendant. The plaintiff was injured and was conveyed to the Nicosia General Hospital. The police on information arrived at thesceneat 1.30 p.m.and 10 P.C 1683, Andreas Pettemerides (P.W.I), the police investiga­ tor found the motor car in its resultant position. In the pre­ sence of the defendant he took measurements and prepared a sketch (exh. 5). Kantara Avenue is 40 ft. wide and is separated by a straight 15 continuous white line into two moieties. Each half of the avenue can well accommodate two cars running in the same direction. At a distance of 60 - 70 meters from the point of impact marked 'X' on the sketch there is a round-about known as "Bata round-about". On the left of this avenue in the 20 direction of Nicosia, there is a pavement 7 ft. wide. The plain­ tiff and another boy, Marios Gregou, one year his elder, were standing on that pavement. The defendant drove his car towards Bata round-about and he turned back driving along the same avenue towards town. Then this accident occurred, 25 whilst the plaintiff and his companion were trying to cross the road. None of the two children was called to give evidence. The trial Court found that the only probable justification for their absence from the Court was their tender age. The trial Court having considered the evidence before it, 30 accepted the evidence of the respondent-defendant and came to the conclusion that the respondent had taken all reasonable steps to avoid the accident and hewas not to blame in this case. The version of the defendant, as accepted by the trial Court, was as follows: 35 "The defendant's version is that at about 1.00 p.m. he drove to Bata round-about and back towards Nicosia along Kantara Avenue. Whilst he was driving towards the round-about, he noticed on the right pavement two children who appeared talking. He was keeping the left 611 Sawides J. Epifaniou v. Hadjigeorghioa

(1982)lane of the avenue. On his way back he was doing about 31m.p.h. Ashehad inmind thepresenceof the children, hethought that they might intend to cross and so hedrove on the inside lane, meaning on thepart of the left moiety nearer to the centre of the avenue. The children on his 5 way to the round-about did not exhibit any manifestation or any intention to cross the road. On his way back he saw that they were on the edge of the pavement. The elder child had his head turned to the left and the other child was not visible. He hooded the horn of his car 10 to warn them and makethem realisethat there wasdanger. At that very moment the elder child pulled the other by the hand and they dashed to cross the road. He veered his vehicle to the right and applied brakes. The plaintiff knocked on the handle of the left front passenger's door. 15 The defendant maintained the same speed all along until he applied brakes. He sounded the horn on approaching thechildrenandwithoutnoticinganymanifest actindicating that they would cross". Thetrial Court madereference to the caseof Lang v.London 20 Transport Executive andAnother[1959] 3 All E.R. 609, as to theprinciplesgoverningtheprecautionswhich haveto betaken in cases of traffic accidents and, in particular, to the following passage: "If the possibility of the danger emerging is reasonably 25 apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibilitywhichwouldneveroccurtothemind ofareasonable man, then there is no negligence in not having taken extraordinary precaution". 30 And, then, concluded as follows: "From the evidence of the defendant it is plain that the possibilityofthedangeremergingwasreasonably apparent. Hestated that thechildren,whowerestanding onthepavement, though they did not do any act indicating that they 35 wouldtrytocrosstheroad,thedefendant realised thatthey might possibly cross the road. The area where the accident happened isa speed limited area. Thereisnoevidencebefore usthat any othervehicles 612 1 C.L.R. 5 10 15 Epifaniou v. Hadjigeorgfaiou Sawides J- or pedestrians were moving on the road at the time. The defendant was doing before he applied brakes 31 m.p.h. Driving, however, at a high speed or exceeding the prescribed speed-limit in a built-up area is not inevitably sufficient per se, irrespective of the circumstances of a case, to establish negligence. (Marios Chr. Alexandrou v. Geoffrey Charles Gamble,

(1974)1 C.L.R. 5; Christos Demou v. Polykarpos Constantinou and Another,

(1979)1 C.L.R. 21). The vehicle of the defendant imprinted 19ft. long brakemarks, which means that the accident would in any event have taken place even if the speed of the defendant was even lower. In the light of the evidence we cannot attribute the accident to the speed of the defendant. The collision occurred soon after the application of the brakes of the defendant". The trial Court went on to deal with the question as to whether, in the circumstances, the respondent acted negligently 20 °y failing to take all reasonable precautions in the circumstances and found that the respondent took sufficient precautions in thecircumstances of thecaseand, therefore, he was not to blame at all for the accident. Such precautions were the sounding of the horn, the application of the brakes and the manoeuvring 25 to the right to avoid the accident. The trial Court concluded as follows: 30 35 "The precautions required to be taken are those expected from an ordinary reasonably competent motorist. This accident was caused by the abrupt crossing by the plaintiff of the road in lateral direction right across the road. The unfortunate child is the sole author of his predicament. The defendant took sufficient precautions in the circumstances of the case and is not, therefore, to blame at all for the accident". It is well settled that this Court in determing an appeal, will normally not interfere with the findings of fact of thetrial Court, unless such findings are so erroneous or unwarranted by the evidence as to make it proper or necessary for this Court to 613 Sawides J. Epifaniou τ. Hadjigeorghiou

(1082)s interfere. In Christakis Ioannou and Another v. Fivos Michaelides

(1966)1 C.L.R. 235, in which this Court was considering an appeal from the findings of the trial Court on the apportion­ ment of negligence, one of the Judges had this to say at pp. 238, 239: "Though Ido think thatthereis material on record onwhich the trial Court could possibly have found the respondent guilty of contributory negligence, sitting here on appeal I do not think that the view taken by the trial Court, to the effect that appellant was solely to blame, is so erroneous 10 or unwarranted as to make it proper or necessary for this Court to interfere in the matter". (Per TriantafyHides, J., as he then was). In a recent decision of this Court in Kkafa v. Kalorkotis

(1982)1 C.L.R. 372, the Court reiterated the principles as to 15 the circumstances under which an appellate court will interfere with the findings of fact made by a trial Court. Hadjianastassiou, J., at p. 378, said: "As it has been said time and again, this Court, when hearing and determining an appeal is not bound by 20 any determinations of questions of 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 theevidence considered as a whole, and the reasoning behind a finding is unsatis- 25 factory and/or is of the opinion that the trial Court was clearly wrong, and thattheCourtof 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 appreciation in general of the evidence at the trial 30 is what the trial Judges are there for. (See Ekrem v. McLean,

(1971)1C.L.R. 391; and Christos Charalambides v. Polyvios Michaelides,

(1973)1 C.L.R. 66)". We have heard the argument of counsel for the appellant but we have not been convinced that the findings of the trial 35 Court were so erroneous or unwarranted by the evidence, as to make it proper or necessary for this Court to interfere. As this appeal fails on the question of liability, we find it 614 5 1 CLR. Epifaniou τ. Hadjigeorghiou Sawides J- unnecessary todeal with thesecond ground ofappeal concerning the question of damages. For these reasons this appeal stands dismissed but in view of thefact that counsel for therespondenthasclaimed nocosts, 5 we make no order as to costs in this appeal. Appealdismissed. No order as to costs. 615