clr/1982/1982_1_619.pdf

(1982)undisputedevidencethatthepointofimpactwas about thecentre of the road; that, therefore, the appeal must be dismissed. Appeal dismissed. Cases referred to: Baker v. Market Harborough Co-Operative Society [1953] 1 W.L.R. 1472; Howard v. Bemrose[1973] R.T.R. 32 at p.

1. 5 Appeal. Appeal by defendants against the judgment of the District Court of Nicosia (HjiConstantinou, S.D.J, and Nikitas, D.J.) 10 dated the 9th July, 1981 (Consolidated Actions Nos. 3060/77, 3367/77, 2658/78 and 2659/78) whereby they were adjudged to pay to all( the plaintiffs the sum of £7,400.- as damages for personal injuries received as a result of a traffic accident. A. Dikigoropoulos, for the appellants. /. Avraamides, for the respondents. 15 A. Loizou J. gave the following judgment of the Court. This appeal which has been taken in these four consolidated actions, has been argued only in so far as the issue of liability is concerned as a discrepancy that appeared in thejudgment of 20 the Court with regard to the amounts adjudged to be paid to the plaintiffs has been corrected by statement of counsel made at the outset of the case. Thestatement is as follows and speaks for itself: "Dikigoropoullas: On the facts as they appear in the 25 record of the proceedings, and assuming the apportion­ ment of liability is correct, then the correct judgment would have been in Actions Nos. 3367/77, 2658/78 and 2659/78, the amounts agreed without any reduction because these people were passengers as follows: 30 In Action No. 3367/77, £1,500.In Action No. 2658/77, £1,400.ln Action No. 2659/78, £600.-. In Action 3060/77, the judgment would have been £1,950.-, that is half of the quantum agreed and there 35 would be judgment against the plaintiff in favour of the 620 1 CX'R. 5 Evegorou and Others v. Kefalas and Others Λ. Loizou J. defendants for £120 agreed special damages and £1,750 as indemnity and/or contribution of the amounts paid or payable by defendants to the plaintiffs in the other three actions and the net result would have been that the plaintiffs in the three actions would get £3,500 but the plaintiff in Action No. 3060/77 would only get £
2. In fact, this is ground 4 of my appeal which is accepted by my learned friend on the other side, and themainissue is the liability. 10 Avraamides: I agree." Thefacts of thecaseas acceptedby thetrial Courtandasthey are born out from theevidence and the plans and photographs produced whichpresenttherealevidence inthecase,inaddition to the oral testimony of the experts that prepared them,are as 15 follows: On the 2nd January, 1977, on.the Kalo Chorio -Pharmacas road,thetwo vehicles, aminicar underregistration No. FT.774 owned and driven towards Pharmacas village by the husband and having as passengers his wife and his two daughters, and 20 motor lorry under registration No. HH. 482 driven from the opposite direction by the first defendant, now appellant 1,and owned by defendants 2 and 3 in all actions, now appellants 2 and 3collided on a left curve of the road having regard to the direction towards Pharmacas. The trial Court after analyzing 25 the evidence came to the following conclusions:- 30 35 "The rear right part of the lorry, in view of the leftward inclination of those marks, should be placed even nearer to the right edge of the asphalt having regard to thedire­ ction of the motor lorry. Thus, the above real evidence proves that at the time of the collission or at least at the time when those marks were caused the motor lorry was occupying almost the middle of the asphalted part of the road, whereas prior to the causing of those marks the motor lorry must have been occupying a position even closer to the right edge of theasphalt than to theleft edge of the asphalt having regard to its direction. The marks caused by the Mini car are of not much help due to thefact thatthey were caused after thecollision and 621 A. LOIXOQ J. Evagorou and Others r. Kefahu aad Other·

(1912)in the course of that Mini car being pushed backwards until it reached its resultant position; but having regard to the fact that the part of the Mini car which must have forcibly collided on to the motor lorry is approximately the middle front part, it shows that at the time of the 5 collision this Mini car was not keeping very close to the left edge of the asphalt having regard to its direction. In other words, it was a head-on collision approximately inthemiddle of theasphalted part oftheroad; wedo not overlook the fact that the motor lorry was proceeding jo uphill and the Mini car downhill. The fact that after the collision and the probable application of the brakes by the driver of the motor lorry this motor lorry proceeded and fell into the ditch whereas the Mini car pushed uphill for quite a distance, shows that the speed of the motor 15 lorry must have been higher than that of the Mini car". Learned counsel for the appellants has argued that certain of these findings of fact and certain of the conclusions drawn therefrom were not warranted by theevidenceand in particular by the real evidence. He further pointed out that the correct 20 approach in Law should have been the one enunciated in the caseof Bakerv. Market Harborough Cooperative Society [1953] 1 W.L.R. 1472, as explained and understood in the judgment of Stevenson L.J. to which Davies L.J. agreed in the case of Howard v. Bemrose [1973] R.T.R. 32, at p. 35 which reads as 25 follows:"The principle enunciated in Baker v.MarketHarbourough IndustrialCooperative SocietyLtd [1953] 1 W.L.R. 1472, is,asIthink,correctly setout intheheadnote ofthereport: 'Wheretheevidenceestablishedthatacollisionbetween 39 two motor vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness, when both drivers were killed, the inference, in the absence of any other evidence enabling the court todraw a distinction between them, 35 was that each driver was committing almost the same acts of negligence-failing to keep a proper look-out and todrivehisvehicleon thecorrectsideofthe roadand accordingly both were equally to blame'. 622 1 C-L.R. 5 15 20 Evagorou and Others v. Kefates and Others A. Loizoo J. I read that case as deciding no more and no less than that, and I do not find any extension of that decision in Davidson v. Leggett, decided in 1969 and rather briefly reported in

(1969)113 S.J. 409 and also in

(1969)133 \P. 552. There can, of course, be no difference between a case in which both drivers are dead and one in which one is dead and the other was so injured that he cannot giveany account or explanation of the accident. There may be, I think that there is, a difference between a case in which a collision isproved to haveoccurred on onesideofthe road and acaselikeBaker'scase [1953] 1 W.L.R. 1472,inwhich the collision was proved to have taken place in the middle of the road. It seemsto methat the real point in thiscase is whether the collision between this motor-cycle and this motor car did, on a balance of probabilities, take place on the car driver's wrong side of the road or whether it took placeinthecentre,orapproximately thecentre,oftheroad. If, on a balance of probabilities, it took place in the centre of the road, it seemsto me that the principle enunciated in Baker's case applies and the judge's judgment cannot possibly be impugned. If, on the other hand, Mr. Wild is right and theevidence not merely entitled but compelled the judge to draw the inference that the probable point of impact where the collision took place was substantiallynot just, but substantially-on the car driver's wrong side, then as it seems to me Baker's case has no application and this appeal ought to succeed." Wehaveconsidered theposition and on the basis of the find30 ings of the trial Court which were duly warranted by the evidence, we have come to the conclusion that its apportionment of liability was the correct one. There was nothing in the evidencetoindicatethat theaccident occurred on thesideofthe roadwhichbelongedtotheoneortheotherparty. Infact,they 35 were obviously both to blame inasmuch as in approaching and negotiating a curve none of them took the precaution of taking to the extreme left and also they both failed to keep a proper look-out in time in order to avoid the collision. The principles of Law hereinabove set out and with whichwe 623 A. Loizou J. Evagorou and Others v. Kefalas and Others

(1982)agree, cover also a fortiori the present case as in addition there is clear and undisputed evidence that the point of impact was about the centre of the road. For all the above reasons the appeal is dismissed as regards the question ofthe apportionment of liability but thejudgments entered in the respective cases should be rectified in accordance with the statement made by counsel of both sides and earlier set out in thisjudgment. The appeal, therefore, is allowed to that extent. 5 In the circumstances the appellants to pay half the costs of 10 this appeal. Appealpartly allowed. 624