clr/1983/1983_1_559.pdf

(1983)the directioι of Morphou and whilst overtaking an omnibus he collided with the car of the appellant (defendant) which had emerged and/or entered that road from a side road. In actions by the respondents against the appellant the trial Court found that the appellant was 65% and respondent 2, 35%toblamefor 5 the accident and awarded to respondent 2 damages for the per­ sonal injuries he had sustained and to respondents 1compensa­ tion for the loss of theuse of their car: In awarding such com­ pensation the trial Courtpreferred the estimate in a report pre­ pared by an expert, who had subsequently died and not that of 10 the technical manager of the garage thatrepaired the company's carasregards theperiodoftimerequiredfor repairingit. Therewas evidence from theappellant that at theintersection of the side road, along which he was travelling, with the main road there was a halt sign and that he was under a statutory 15 duty to stop before entering the main road. Thetwo actions of the respondents were consolidated and the trial Court did not awardcosts to themup to the consolidation of the two actions; and awarded to them half of their costs. Uponappeal by the defendant and cross-appeal by the re- 20 spondents: Held,

(1)in arriving at his decision regarding liability thetrial Judge failed to give any significance to the evidence of the ap­ pellant that at the intersection of the side road, along which he was travelling, with the mainroad therewas a halt signandthat 25 he was under a statutory duty to stop before entering the main road; that in the light of the failure of the Ccurt to take into account the above-mentioned evidence of the appellant, the appellant's contribution to the accident was 80% and that of respondent 2, 20%.

(2)ThatthetrialCourtwrongly based its finding onthereport of the expert who had died and rejected the evidence of the technical manager of the garage where the car was repaired.

(3)That the reasons given by the trial Court in not awarding costs to the plaiotifis up to the consolidation of the two actions 35 concernedand, also, in awarding half of thecosts of the hearing, werewrong; that the trial Court ought to have awarded costs for both actionsup to theirconsolidation and full costs for one action for all proceedings that followed the consolidation. 560 30 1 CX.R. Polycarpoa v.SiouUoaroglou Per curiam: 5 We take this opportunity to express the opinion that in cases where the evidence of the plaintiff is taken preparatory to the trial, after the conclusion of the pleadings the Judge who took it should continue the hearing and such evidence should be treated as part of the trial. Appealdismissed. Cross-appeal allowed. 10 15 Appeal. Appeal bydefendant and cross appeal by plaintiffs against the judgment of the District Court of Nicosia (Hadjiconstantinou, S.D.J.)dated the23rd February, 1981(Actions Nos. 1539/79 and 584/79) apportioning liability at 65% against the defendant and at 35% against the plaintiffs. E. Vrahimi (Mrs.), for the appellant. A. Pandelides, for the respondents-cross-appellants. Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of this Court will be delivered by Mr. Justice Demetriades. 20 DEMETRIADES J.: The appellant, was the driver of motor car under registration No. HZ. 363when it collided with motor van under registration No. JS. 843 driven by respondent 2, Andreas Antoniou who, at the material time, was an employee of respondent 1, Shukuroglou Ltd. (hereinafter to be referred as the 25 "company"). The company and Antoniou were the plaintiffs in the consolidated Actions in the District Court of Nicosia Nos. 1539/79 and 584/79,respectively,filed againstthe appellantas defendant. Motor car under registration No. JS. 843 was the property of 30 the company. The accident occurred on the 26th June, 1978, at about 06.30 hrs. on the Nicosia - Morphou main road, outside Akaki village. Antoniou, who was driving along that road from the direction of Morphou, whilst overtaking an omnibus collided with thecar of the appellant which had emerged and/or 35 entered that road from a side road. 561 Demetriades J. Polycarpou v. Sioukiouroglou

(1983)By their respective actions the company claimed special and general damages for damage caused to its car and Antoniou claimedspecialandgeneraldamagesfortheinjurieshesustained. The appellant had filed a counterclaim claiming damages for damagecaused to his car. The respondents, by their defence 5 to the counterclaim of the appellant, admitted that his car had suffered C£783.950 mils damage. Thetrial Courtfound that theappellant was65%andAntoniou 35% to blame for the accident; that the respondent company wasentitled to receivecompensation for thelossof theuse 10 of its car, but not to the extent claimed by it and, also, for the diminution ofthevalueofsuchcarandawarded tothecompany the amount of GE795.990 mils. With regard to the claim of Antoniou for personal injuries, the Court awarded tohim the sum of C£68.200mils by way of special damages and C£48.700 15 mils by way of general damages. The damages awarded in favour of the threelitigantswerebased on thepercentage ofthe blame of the two drivers. The appellant complains that the apportionment of liability by the trial Court was wrong in law and infact and that the 20 damagesawarded byitfor the lossoftheuseandthediminution of the value of the van were not warranted by the evidence adduced. The respondents filed a cross-appeal based on the following grounds:

1. The court was wrong in finding that Antoniou was guilty of contributory negligence to the extent of 35%.
2. The court waswrongin preferring theestimate contained in a report prepared by an expert who had subsequently died and not that of the technical manager of the garage 30 that repaired the company's car as regards the period of time required for repairing it.
3. The quantum of general damages awarded to plaintiff in Action No. 584/79, namely Antoniou, was low.
4. The court was wrong in not awarding costs for Action 35 No. 584/79or at leastcostsuntiltheconsolidation ofthis action with the action of the company. 562 25 1 C.L.R. Polycarpou v. Siouklourogloa Demetriades J.
5. The court was wrong in awarding only half of the costs of the plaintiffs-respondents. With regard to the issue of liability, the trial Judge had this to say in reaching his assessment: 5 10 15 20 25 30 "In the present case the plaintiffs' employee admitted, as stated earlier, that he had not noticed the traffic sign warning of the junction ahead; this was obviously due to an insufficient look-out. On the other hand, in the Motor Vehicles and Road Traffic Regulations of 1973 there is a prohibition in respect of overtaking at crossroads, and in the Highway Code an admonition not to overtake at a road junction. Though acting contrary to these does not in itself indicate negligence, yet they do in a sense set a standard of prudence to be followed by drivers. This driver ought to have guarded and/or reasonably have anticipated the danger, not uncommon, of other drivers emerging from the side-roads. In my view, all the facts in this case, establish negligence on the part of the employee of the plaintiffs, and in respect of this the plaintiffs are vicariously liable. The defendant, on the other hand, as found earlier, failed to stop before entering the main road. He must, in addition, have failed to notice in time and before entering the main road thetraffic coming from thedirection of Morphou although he should and could have so noticed it before reaching even the asphalted part of the main road. He appears, in my view, to have shown complete disregard for the traffic travelling on the main road and stopped only after having seen the traffic coming from the direction of Morphou and only after having covered 7 ft. into the main road. For these reasons 1 find that the defendant ismuch more to blame than the plaintiffs' employee. 35 In the above circumstances, exercising my duty in apportioning the degree of negligence exhibited by the two drivers, in the best of my judgment I find the plaintiffs' employee 35% and the defendant 65% to blame for this accident." 563 Demetriades J. Polycarpou v. Sioukiouroglou

(1983)In arriving at this decision the trial judge, however, failed to giveany significance to theevidenceof the appellant that at the intersection of thesideroad, alongwhichhewastravelling,with the main road there was a halt sign and that he was under a statutory duty to stop before entering the main road. 5 In thelight of thefailure oftheCourttotakeintoaccount the above-mentioned evidence of the appellant, we find that the appellant's contribution to the accident was 80% and that of the respondent Antoniou 20%. Withregardtotheissueofthelossoftheuseofthecar bythe 10 company, the Court found that the time required for repairing thecar was 19days. Suchfinding wasbased on a report of an expert,produced inevidence during cross-examination, but who did not give evidence as, in the meantime, he had died. The Court found that the estimate of this expert was preferable to 15 that of the technical manager of the firm that had repaired the car,because,it saio,therewasno evidenceat all before it tothe effect that the plaintiffs had taken any steps for the purpose of havingtheirvan repaired the soonestpossible soas to minimize their loss. In our view, the trial Court wrongly basedits finding ODthis report and rejected theevidence of thetechnical manager of the garage where the van was repaired. For this reason we find that the respondent company is entitled to be compensated in full for the 52 days that it took the garage to repair the van. 25 The Court hadfound further,on thisissue,that it wasreasonable for the respondent company to recover C£5.- per day for the loss of the use of its van. We are in agreement with this finding, especially sinceno evidence was allowed to beadduced on this issue after an objection by counsel for the appellant to 30 the production by the witnesses of the company in verification of this claim. WithregardnowtothefindingoftheCourtthattherespondent company wasentitled toC£300.-asdepreciation oftheirvan,we seenoreasontodisturbthisfinding inviewofthefact that there 35 was no conflict of evidenceon this issue and of the evidenceof the technical manager of the garage. Counsel for the appellant had submitted that the evidence of Antoniou, which wastaken preparatory to the hearing,wasnot 564 20 1 C.L.R. Polycarpou v. Sioukiouroglou Demetriades J. properly put before the Court and that the Court erroneously took it into account. Even if this submission was correct and the evidence is discarded, the real evidence, coupled with that oftheappellant,aresufficient towarranttheconclusionsreached 5 by the trial Court on the issue of negligence with theexception of the percentage of contribution. We take this opportunity to express the opinion that incases where the evidence of the plaintiff is taken preparatory to the trial,after theconclusion of thepleadings thejudge whotook it 10 should continue thehearingand suchevidenceshould betreated as part of the trial. Respondent Antoniou by his cross-appeal had complained that thespecialandgeneraldamagesawarded tohimasa result of the injuries sustained byhim wereinadequate. On thisissue 15 the trial Court had found that Antoniou wasentitled toreceive the sum of C£105.-as special damages for wages and medical expenses and C£75.- general damages. In the light of the evidence which was before the trial Court, we find no reason to disturb thisfinding, but the necessary variations must be made 20 to the figures of thejudgment in view of the apportionment of the liability as found by this Court. Wenowcometothetwogroundsofappealregardingthecosts awarded bythetrial Court. Bythefirst ground the respondents complainthat thetrialCourtfailed toawardcostsforActionNo. 25 584/79oratleastcostsuptotheconsolidationofthetwoactions, and bythe second ground the respondents complain against the award to them by the Court of only half of their costs. Wefind that thereasonsgiven bythetrialCourtinnotawarding costs to the plaintiffs up to the consolidation of the two 30 actionsconcerned and, also,in awardinghalf ofthecostsof the hearing,werewroDg. Wefeel that thetrialJudgeoughttohave awarded costs for both actions up to their consolidation and full costs for one action for all proceedings that followed the consolidation. 35 In view of our finding on these two grounds, we direct that the judgment of the trial Court be varied accordingly. In the result thejudgment of the trial Court isvaried as follows:565 Demetriades J. Polycarpou v, Sioukiouroglou

(1983)(

1. a)There will bejudgment in favour of respondent 1for C£l,191.600 mils. (
2. b)Judgment in favour of respondent 2 for C£144.-, and (
3. c)Judgmentinfavourof the appellantfor C£l56.790mils. As regards the costs of the present proceedings, wefind that the respondents are entitled to their costs for the cross-appeal. Appeal dismissed. Cross-appeal allowed. Appealdismissed. Cross-appealallowed. Order for costs asabove. 566