(1984)1983 September 26 [TRIANTAFYLLTDES, P., HADJIANASTASSIOU, DEMETRIADES JJ.] PANAYIOTIS STYLIANOU TAVELLIS, Appellant-Plaintiff. v. ELIAS IOANNOU EVANGELOU AND ANOTHER, Respondints-DeJenaants. (Civil Appeal No. 5702). Negligence—Contributory negligence—Apportionment oj liabilityCausation—Blameworthiness—Pedestrian knocked downby motor -vehicle at night-time, whilst walking on asphalted part oj the road mid not along the berm—Apportionment oj liability 50 per cuit on each side set aside—Pedestrian found liable to the $ extent of 30 per cent. Damages—General apanages—Personal injuries—Cerebral concussion with short loss of consciousness andpost-traumatic amnesia— Lacerated wound on left ear and left parietal area of the skull two inches long and contusion of the chest—Hearing of left car \Q reduced by about 10 to 15per cent—Award of £1,000 sustained. Whilst the appellant-plaintiff was walking along the Nicosia -Limassol main road, at night time, he washit by a car driven by the respondent-defendant. He sustained a cerebral concussion v/ith short loss of consciousness and post-traumatic 15 amnesia, a lacerated wound on the left ear, a lacerated wound on theleft parietal areaoftheskulltwoincheslongand contusion of thechest, but he didnot suffer injury to any bone. Because of the wound on his left ear and infection which ensued the appellant had to undergo medical treatment, including an oper' 20 ation, and there has resulted serious stenosis of the left ear canal with the consequence that the hearing of the left ear of the appellant was reduced by about ten to fifteen per cent. Such stenosis could be corrected by a further operation which, at the time of the assessment of thedamages bythe trial Court, 25 had not yet taken place. 460 1 C.L.R. 5 10 15 20 25 30 35 40 TarelUs v. Evangelou and Another in an action for damages by the plaintiff the trial Court held that he was liable to the extent of fifty per cent for the accident on the ground that hewaswalking at the time on the asphalted part of the road and not along the berm and that he had failed to notice in time, through lack of proper look-out on his part, the approaching car of tbe defendant and to move away from its path. Upon appeal byplaintiffagainst the apportionment of liability and againstthe amount of C£1,000.- damagcs-wluch included C£29specialdamages-onafull liability basis: Held. U) that'the main blameworthiness for the happeningof theaccident lieswith thedefendant, inthat had hekept aproper look-out heoughttohaveseenintimetheappellant andhecould have avoided the accident; that there are two elements in an assessment ofliability,causation andblameworthiness; that,on the basis of the aforesaid two elements and, particularly, that of blameworthiness,thedefendant wasmuchmoreresponsiblethan the appellant for what has happened; and that, therefore, this Courtwillinterfere with theassessment of liability and alter itso that appellant isto betreated as beingcontributory negligent to the extent of only 30 per cent.
(2)That thisCourt hasnot been persuaded by the appellant onwhomtheonuslaytodoso-thatthisisapropercaseinwhich tofind tliattheamountofdamagesawardedtohimissolowthat it should intervene, on appeal, in order to increase it. Appeal partly allowed. Cases referred to: Omer v. Pavtides
(1971)1 C.L.R. 404; Papadopoulosv. Pericleovs
(1990)1C.L.R. 576atp.579; MunicipalityofNicosia v.Kythreotis
(1983)1 C.L.R. 154atp.I75; Baker v. Willoughby [1969] 3 All E.R. 1528 at p. 1530; Mentesh v. HadjiDemetriou
(1983)1 C.L.R. 1 at pp. 11, 12. Appeal. Appeal by plaintiff against thejudgment of the District Court of Nicoi-ia (Oiphanides, S.D.J.) dated the 7th April, 1977 (Action No. 6767/71) whereby he was found equally to blame with the defendant icgarding the occurrence of a tiafnc accident. Ph. Clerides, for the appellant. G. I. Pelaghias, for the respondents. Cur. adv. vult. 461 Tavellis v. Evangelou and Another
(1984)TRIANTAFYLLIDESP. read thefollowingjudgment ofthe Couit. The appellant, who wasthe plaintiff before the trial Couit, has appealed against itsjudgment by means of which he was found equally to blame with respondent 1(to be referred to heieinafter as "the defendant") regarding the occurrence of a tiaffic 5 accident, along the Nicosia-Limassol main road, at night-time, in thecourse ofwhich theappellant, whowasatthetime walking towards Nicosia along thesaid load, washit bya cardriven by the defendant and suffeied injuries. It is common ground, according to the pleadings, that re- 10 spondent 2was,at allmaterial times,theowner ofthe carwhich wasdriven bythedefendant when theappellantiwas hitbyitand that the defendant was driving such cai in the course of his employment by respondent 2. The liability of respondent 2 towards the appellant does not appear to have been disputed at 15 all at thetrial and,ofcourse,itdepends on,anditisco-oxtensive with, the liability of the defendant. It was not contested by the defendant that when he hit the appellant he was driving negligently since the appellant must have been visible to him within thedistance of therange of his 20 lights and yet he failed to notice in time the presence of the appellant and take the necessary .avoiding action. What has been in issue during the hearing of this appeal was whether theappellant wastoblame atalland,ifso,totheextent of fifty per cent, as was found by the trial Court ontheground 25 that hewaswalking at thetime ontheasphalted part ofthe road and not along the berm andthat hehad failed to notice intime, through lack of proper look-out on his part, the appioaching car of the defendant and to move away from its path. It would not, of course, be correct to state that whencvci a 30 pedestrian ishit bya carthedrivei ofsuch cai issolely to blame and the pedestiian cannot be found guilty of any contributory negligence. They are both of them users of a road at the materLi time and they owea duty of care to each other and to other o a d users; and if they fail to discharge such duty then, 35 depending on the circumstances of theparticular case, either or both of them could befound guilty of negligence which hasled to the accident (see, foi example, Omer v. Pavlides,
(1971)1 C.L.R. 404). 462 1 C.I..Κ. Ta\clli!k v. l£\anj>eloii and Another Triantafyllides P. It is useful to refer, also, at this stage, to the following passage from Halsbury*s Laws of England,4th ed., vol. 34, p.40, para.49: 5 10 "49. Pedestrians. Persons on foot have a light to be on ihe highway and are entitled to the exercise of reasonable care on the pait of persons driving vehicles on it, but they must take reasonable care of themselves, andmay be answer able if they occasion accidents to vehicles. The amount of care teasonably to be required of them depends on the usual and actual state of the traffic, and on the question whether oi not the foot passengci is at an approved and indicated pedestrian crossing. A driver owes no special duty to infirm persons on the highway unless he knows or should have known of their infiimity." It is well settled that this Couit, as an appeal Court, will not 15 inteifore with the apportionment of the liability made by a trial Court except in an exceptional case where there exists an error in principle or the apportionment is clearly erroneous (see, inter alia, in this respect, Papadopoulhs v. Pericleous,
(1980)1 C L.R 576, 579, and the Municipality of Nicosia v. Kythreotis, 20
(1983)1 C.L.R. 154, 175). In the present case we think,indeed,that theie exists a "cleaily discernible erroi" (see Baker v. Wiiloughby,[1969] 3 All E.R. 1528, 1530) in the judgment of the trial Court in relation to the apportionment of liability and we have, therefore, found it 25 necessary to interfere with such apportionment. We do agree with the trial Judge that the appellant was negli gent too, but, in the circumstances of this case, it is clsarly obvious that the main blameworthiness for the happening of the accident, in which the appellant was hit by the car driven by the 30 defendant, lies with the defendant, in that had he kept a propei look-out he ought to have seen in time the appellant and hi could have avoided the accident. 35 In the Baker case, supra, where a pedestrian was knockec' down by a car, it was stressed by Lord Reid (at p. 1530) tha" "there are two elements in an assessment of liabihty, causatioi and blameworthiness" and wc are quite satisfied that, on th< basis of the aforesaid two elements and, particularly, that ο blameworthiness, the defendant was much more responsibl than the appellant foi what has happened. 463 riantafyllides P. Tavellts v. Evangelou and Another
(1984)We have, therefore, decided to interfere with the assessment f liability inthiscaseand alter it sothat instead of each oneof *embeing, aswas found by the trial Court, equally to blame, le appellant is to be treated as being contributorily negligent ) the extent of only thirty per cent and the defendant to the 5 <tent of seventy per cent. The next issue which wehave had to consider is whether the mount ofdamages awarded in favoui oftheappellant issolow sto entitle ustoincreasesuchamount onappeal inthelightof lewell settled principles governing the exercise of oui relevant 10 owers in a case of this natuie (see, intei alia, in this lcspect, fentesli v. HadjiDemetriou,
(1983)1 C.L.R. 1, 11, 12). The special damages amounted only to C£29 and did not ppear to be disputed and the trial Court assessed a global mount of damages, including the aforesaid special damages, of 15 £1,000 on the basis of full liability. The injuries which the appellant was found to have suffered, hen he was taken to hospital after the accident, werecerebral .mcussion with short loss of consciousness and post-traumatic ninesia,a lacerated woundontheleft ear,alacerated woundon 20 le left parietal aiea of the skull two inches long and contusion fthe chest, but he did not suffei injuiy to any bone. Because f the wound on his left eai and infection which ensued the ppellant had to undergo medical treatment, including an Deration, and there has resulted serious stenosis of the left ear 25 malwith theconsequencethat thehearing oftheleft eat ofthe ppellant was leduced by about ten to fifteen per cent. Such enosis can, accoidingtomedical evidenceadduced at the trial, $ corrected by a further opeiation which, at the time of the isessment of thedamages bythe trial Court, had not yettaken 30 lace and, as was rightly held by such Court, it is up to the ppellant to decide whether he wishes to submit himself to an Deration with the hope of impioving his hearing but without ty guaiantee that such operation will be successful. Havingtaken alltheforegoing into consideration wehavenot ?'j ;en persuaded by the appellant -on whom the onus lay to do > -that thisisapropercaseinwhichtofind that theamountof images awaided to himisso lowthat weshould inteivene,on jpeal, in ordei to increase it. 464 1 C.L.R. Tavellis v. Evangelou and Another Trianfaf}Hides I We,therefore, havedecided to allowthisappeal onlyinsofa as the apportionment of liability is concerned and to dismissi in respect of the amount of damages. On the basisof the apportionment of liability which we hav< 5 found tobethecorrectonethedamagespayabletotheappcllan shouldbeincreasedfrom C£500toC£700,andthecostsawarde< by the trial Court should be reassessed on the basts of sue! amount; and, furthermoie, the appellant is awarded half thi costs of this appeal. 10 Appeal partly allowed. Orde. for costsas above. 465