clr/1984/1984_1_385.pdf

(1984)awardsin circumstances suchasthose in thiscaseand this Court isnot prepared tointerfere with it as it is not satisfied that the trial Judge has actedeitheruponawrongprincipleofLaworhas misapprehendedthefactsor has for some reason made a wholly erroneous estimate of damages suffered, not being enough that there may be a matter of difference of opinion or other preference; that the scale does not go down heavily against the figure for this Court to interfere, the function of a Court of Appeal being to ensure that an award comes within the limits of proper restitution; accordingly the appeal must fail. 5 10 Held, further, that somepartsmakingup theaward ofgeneral damages other than loss of future earnings are not capable of being estimated in terms of money and therefore Courts have to proceed in assessingthem byreference tocomparable awards in comparable cases and follow the trend emanating from such 1 5 comparable awards; that such comparable cases do not, however, constituteasinothercategoriesof judicialpronouncements precedents as the necessary adjustments with regard to changes through the ever decreasing worth of monetary units and all reasonable adaptations to the circumstances of the case, have 20 to be made. Appeal dismissed. Cases referred to: Georghiou v. Planet ShippingCo. Ltd.

(1979)1 C.L.R. 188 at p. 193; 25 Skappoullaros v. Kaishaand Another

(1979)1 C.L.R. 448 at p. 465; LimPohChoo v. Camden andIslinghton Health Authority [1979] 2 All E.R. 910 at p. 920; Paraskevaides (Overseas) Ltd. v. Christofis

(1982)I C.L.R.

1. 30 Appeal. Appeal by defendant against the judgment of the District Court of Limassol (Korfiotis, D.J.) dated the 5th November, 1983(Action No. 2706/81)assessingand/or awardingthe amount of £1000- by way of general damages, on a full liability basis, 35 claimed by the plaintiff in respect of a traffic accident. 386 1 C.L.R. Pavlldes v. Andreou A.S. Myrianthis, for the appellant. St. Hourry(Mrs.) for the respondent. A. Loizou J. gavethefollowing judgmentof theCourt. The sole issue that arises in this appeal is the assessment and/or 5 award of the amount of £1,000.—by way of general damages claimed bytheappellant to be"wholly erroneous havingregard totheevidenceasawholeand,inanycase,asbeingsoextremely high as to make it a wholly erroneous estimate of the damage and/or excessive and justifying the intervention of this Court 10 by greatly or substantially reducing same". Thefacts ofthis traffic accident casearenot indispute. The liability of each party was agreed as being 50%each and the special damages suffered by them were also agreed. What was 15 left for determination bythelearnedtrial Judge wastheamount of the general damages to which the respondent/plaintiff was on a full liability basis entitled to. They further put in by consent two medical certificates as regards the condition of the respondent/plaintiff. The one 20 certificate was from Dr. Kyriacos Andreou, who had treated him from the injuries he received from the accident, and which isdated 13thJuly, 1981,andtheotherfrom Dr.EliasGeoighiou who examined the respondent on the 5th March,
2. Te injuries which the respondent received as described in 25 the certificate of Dr. Andreou are as follows: "Bruise over the distal end of the Lt. leg. Abrasion over the Rt. iliac cresta, and Lt. elbow. His Rt. wrist was immobilized in a forearm plaster. 30 X-Ray showed satisfactory position of the fracture separation of the Rt. radial epiphysis. He was given analgesic tablets and advised rest". in the opinion of this doctor: "This patient sustained the above mentioned injuries in a road traffic accident. 35 These entailed severe amount of pain and suffering initially subsiding slowly. 387 A. Loizou J. Pavlides v. Andreou

(1984)Following the treatment he is making satisfactory progress. Further improvement isexpected withtimeandexercises. Occasional pain and stiffness after active use of the Rt. hand may remain. Hewasgranted sick leavefor over a period of 6weeks". When examined by Dr. Georghiou, the respondent was still complaining that he had some occasional aching of thewrist joint in cold weather. The clinical examination of the resspondent revealed no deformity, thickening or swelling over 10 the.right wrist and.the movements appeared to be full with :no muscle waisting over the right forearm. In the opinion of'this doctor, on the basis of his examination and the X-Ray taken, the crack fracture ofthe ulnar styloid of the respondent had completely healed and the patient's recovery wascomplex 15 there being no 'functional disability following the patient's .accident. The learned trial Judge then concluded that from the said twomedicalceitificates theredidnotarisesubstantial differences regarding what the respondent suffered except that mentioned 20 in the certificate of Dr. Andreou that "occasional pain and stiffness after active use oftherighthand may remain" and the testimony of the respondent himself on this point that when it'is cold or exerting stress his hand still ached. After referring to a number of awardsfrom cases referred 25 to in Kemp and Kemp The Quantum of Damages 4th Edition VolumeII and fiom Cypruscasesthe learned trial Judgetaking into consideration "the age of the respondent being nineteen, the injuries he suffered, the pain and sufferring bom out of the medical certificates and his own testimony, the present value 30 of money, and the aforesaid authorities" —obviously referring to the cases set out in his judgment —found that the amount of £1,000.- on a full liability basis is reasonable and fair. (Learned counselfor theappellant hasarguedthat thisamount was manifestly excessive and in consequence thereof wrong in .35 ;principle, as he put it, and he referred us to awards in other cases decided by this Court. 388 5 t C.L.R. Pavlides \. Andreou A. Loizou J. Whilst on this point we would like to say that some parts making up the award of general damages other than loss of future earnings are not capable of being estimated in terms of money and therefore Courts have to proceed on assessing them 5 by reference to comparable awards in comparable cases and follow the trend emanating from such comparable awards. Such comparable cases do not, however, constitute as in other categories of judicial pronouncements precedents, as the necessaiy adjustments with regard to changes through the ever 10 decieasing worth of monetary units and all reasonable adaptations to the circumstances of the case, have to be made. (See Georghiou v. Planet Shipping Co., Ltd.,

(1979)1 C.L.R. p. 188" at p. 193and Skapouliarosv.Kaishaandanother

(1979)1 C.L.R. p. 448 at p. 465 where reference is made to what Lord Scarman 15 said in Lim Poh Choo v. Camden and Jslinghton Area Health Authority [1979]2All E.R. 910at p.920to theeffect that "there will be a tendency in times of inflation for awards to increase, if only to prevent the conventional becoming contemptible". Furthermore reference may be made to Paraskevaides(Over20 seas) Ltd., v. Christofis

(1982)1 C.L.R. p. 789 where it was pointed out that there "is a steady tendency to liberalize awards for damages by awarding greater amounts to what was regarded as the norm in days past". On thetotality ofthecircumstances before us and having paid 25 due regard tothearguments oflearned counselfor the appellant, we have come to the conclusion that the amount of £1,000.awarded as geneial damages, though on the high side, yet is within the normal brackets of awards made in circumstances such as those in this case and we are not prepared to interfere 30 with it as we are not satisfied that the learned Judge has acted either upon a wrong principle of Law or has misapprehended the facts or has for some reason made a wholly erroneous estimate of damage suffered, not being enough that there may be a matter of diffeience of opinion or other preference. The 35 scale does not go down heavily against the figure for this Court to interfere, the function of a Court of Appeal being to ensure that an award comes within the limits of proper restitution. For all the above reasons this appeal is dismissed but having felt that the award of general damages was on the high side, 40 W3 have decided to make no order as to costs. Appeal dismissed with no order as to costs. 389