(1988)1988March 29 {A LOIZOY, SAWIDES, KOURRIS JJ ) CHRISTOSNICOLAIDES, Appellant -Defendant, ν DEMETRIOS ZACHARIADES, Respondent -Plaintiff (CivilAppeal No 7074) Negligence — Road traffic collision — Overtaking at a considerable speed a stationary queue of cars from the left hand side, using the berm and colliding withacar,crossingthe roadinfrontof the queue in order to enter asidestreet — Inthe circumstances,dnver oflatter car could not reasonably anticipatesuch an action by dnver of first 5 car — Dnver of firstcarsolely to blame Evidence — Findings of fact— Road traffic collision— Speed — Force of collisionand length ofbrakemarks — Inference thatappellant was not dnving at alow speed asalleged Respondent was dnving his car along Athalassa Avenue towards Strovolos, intending toturntothenght,inordertoenteraside road There was a queue of cars coming from the opposite direction headed by a tanker \Q The respondent stopped hiscar,indicating hisaforesaid intention Thednver of thetankerstopped toallowtherespondenttopass The 15 other cars in the queue stopped behind the tanker The respondent proceeded to enter the aforesaid side road However, at thattime, appellant was overtaking the queue headed by the tanker from its left, using the berm of the road There followed the collision of the two cars 20 It must be noted that at that point of Athalassa avenue there is a white line leaving a space of only 10 feet and 6 for use by those coming from the direction of the queue The tnal Court found that appellant was fully to blame for the collision Hence this appeal Held, dismissing the appeal
(1)Though one cannot reach a conclusion as to what was thespeed of theappellant, inthe absence 168 25 1C.LR. 5 Nicolalde*v.Zacbariades of anyexpert evidence inthe case,thefact thatthe collision wasa violentoneandthelengthofthebrake-markswhichwereleftbythe caroftheappellant,leadtotheinference thatthespeedofthecarof the appellant wasnot lowasalleged byhimbutitmusthave been considerable. 10
(2)Thespaceoftenandahalffeetleftdidnotallowroomforcars travelling from Strovolos to Nicosia to overtake at that particular pointandinanyeventaccordingtotheruleoftheroadwhenacar overtakesanotherithastoovertakefromtherightsideofoncoming car.
(3)Therespondent couldnotreasonablyforesee thatacarwould suddenly emerge from thesideof theothercarsinthewaythatthe caroftheappellantsuddenlyemerged. Appeal dismissedwithcosts. 15 Appeal. Appeal bydefendant against thejudgment of the District Court of Nicosia (Hji Constantinou, S. D. J.) dated the 16th October, 1985 {Action No. 3698/84) whereby he was adjudged to pay to the plaintiff the sum of £1,350 damages as a result of a traffic 20 accident. A. Drakos,for the appellant. A. Dikigoropoulos, for the respondent. A. LOIZOU J.: The judgment of the Court willbe delivered by Mr.Justice Sawides: 25 SAWIDES J.: This is an appeal from the District Court of Nicosia in civilaction No.3698/84 for damages arising as a result of a road traffic accident. The accident which gave causetotheabove action occurred in Athalassa Avenue, Nicosia, as a result of the collision of motor 30 vehicleLG240driven bytheappellantandmotor-vehicle LR467 drivenbytherespondent.Itwastheallegationoftheappellantthat the accident was the result of the negligence of the respondent whereastherespondentallegedthattheaccidentwastheresultof thenegligence and/orcontributorynegligence oftheappellant. 35 The quantum of damages both in respect of the claim and the counter -claim had been agreed and the only issue which had to be determined bythe trialJudge wasthe question of liability. On the evidence before him the learned trial Judge came to the 169 SawldesJ. NicoUkle*v.Z*cbarUde·
(1988)conclusionthatthe appellantwassolelytoblameforthe accident and gavejudgment accordingly. Hence the present appeal. The facts of the case arebriefly as follows: Theaccident occurred atthejunction ofAthalassaAvenuewith Dassoupolis street and atapoint ofabout 150feet from thetraffic 5 lights of the main Nicosia/Umassol road. The width of Athalassa Avenue at the point of the accident is 30 feet and that of Dassoupolis street 22 feet. Before the junction of Athalassa Avenue and Dassoupolis street there isa berm four feet wide on the left -handsidetowardsthemainNicosia/Limassol roadandas 10 the junction isonly at a short distance from the traffic lightsthere isontheleft-hand sideacontinuouswhitelineatapointof 10feet 6 inches from the left -hand side of the road whereas the right hand side of the road is left free for traffic coming from the opposite direction. Ashort distance from the junction of the two 15 roads the white continuous line breaks into two doted lines forming two lanes, the left -hand side one tobe used by vehicles proceeding towards thetraffic lightsand intendingtoturn towards Nicosiaand theright-handsideone forusebyvehiclesintending to turn tothe right inthe direction of Limassol.Such white lineis 20 an indication that cars coming from the direction of Strovolos could at that point travel only onthe space of 10 feet, 6 inchesof the asphalted road which ismarked with a continuous white line and leave 19 feet, 6 inches for use by the cars coming from the opposite direction. Respondent was driving his car along Athalassa Avenue following the direction from Limassol/Nicosia road towards Strovolos intending to rum to his right into Dassoupolis Street which isa side road. Atthe materialtime there wasa long queue of cars coming from the opposite direction infront of whichthere 30 wasatanker.The respondent indicated with histrafficator that he intended to turn to the right. The tanker which was coming from the opposite direction followed by the other carsstopped to give waytotherespondent toturntotheright.Atthesametimeallcars which were following stopped behind the tanker. Whilst the 35 respondent was proceeding to enter into Dassoupolis Street his car collided withappellant's carwhich insteadofstopping behind the row of cars was driven on the berm of the road on the left hand side of the cars and proceeded straight ahead to overtake improperly all cars ahead of him. The collision wasa violent one 40 and this is manifested by the extensive damages caused to both' vehicles. 170 1CL.R. Mcokddesv.Zacharlades SawideeJ. It was the allegation of the appellant that the respondent wrongly triedtoturn tohisrightwithoutmakingsurewhether any car was coming from the opposite direction and in anyway the speed of hiscar wasexcessive. 5 The learned trial Judge accepted the evidence of the respondent and came to the conclusion that the appellant was solely to blame as he was overtaking the long queue of the cars which were in front of him from the left and in so doing he was driving all along his car on the berm. He also found that the 10 appellant wasdrivinghiscarata great speed. The learned trial Judge drew his inference that the speed was excessive bearing in mind the brake -marks left bythe car of the appellant and also the force of the collision. Though one cannot reachaconclusionastowhatwasthespeedoftheappellant,inthe 15 absence of any expert evidence in the case, the fact that the collision was a violent one and the length of the brake - marks which were left by the car of the appellant, lead to the inference thatthespeed ofthecaroftheappellant wasnotlowasallegedby him but itmust have been considerable. 20 Though AthalassaAvenueatthatpointis30feet widethe space which was available on the left - hand side for use by cars proceeding from the direction of Strovolos towards Nicosia was onlyten feetsixincheswide asexplained above.Thespace of ten and a half feet left did not allow room for cars travelling from 25 StrovolostoNicosiatoovertake atthatparticularpointandinany event according to the rule of the road when a car overtakes another ithastoovertake from the rightside of the oncoming car. In the present case the appellant being in a hurry thought fit to overtake a long queue of cars by driving his car on the berm at 30 considerable speed and proceeding on theleft -hand sideofsuch carswhich wasinany event wrong. The learned trial Judge found that if the intention of the appellant was to turn to the left it could have been thought probable that he might have a right to overtake the other cars on 35 the left for thepurpose of entering intotheside road.Thisfinding of the learned trialJudge isbased on a hypothetical situation and not on the facts of the present case where the actual intention of the appellant was not to turn to the left but to overtake the other cars and take heed of them. We find it unnecessary to deal with 40 such hypothetical finding of the trial Judge. We consider it 171 SawldesJ . Nlcolaldee v. Zachariadee
(1988)doubtful whether, inthe circumstances of the case and bearingin mind the condition of the road and the existence of a continuous straight white line marking the area which could be used by cars keeping the left -hand side of the road which was only ten and a half feet, it was reasonable and safe for any cartotryto overtake 5 from theleft usingpartoftheasphaltandthefourfeet berm which was on the left even ifhe had anintention to turn tothe left. The sole question which poses for consideration before us is whether it was reasonable for the respondent to expect that another car might be overtaking the queue of the carsheaded by 10 the tanker which stopped to afford him the opportunity to turn right into the side -road, byproceeding on the left -hand sideof such cars and travelling along the berm at a point where the part of the road for use did not leave room for overtaking. We have no difficulty infindingthat the respondent could not 15 reasonably foresee that a car would suddenly emerge from the side of the other cars in the way that the car of the appellant suddenly emerged. In the result we find that thelearned trialJudgerightlycame to the conclusion that the accident wassolely due to the negligence of the appellant and, therefore, this appeal fails and is hereby dismissed with costs. 20 Appeal dismissedwithcosts 172