(1988)1988March31 (A.LOIZOU, DEMETRIADES,KOURRIS,JJ) PETROSTZIANNAROS, Appellant-Defendant, v. SAWAS CONSTANTINOU KAMELARIS, Respondent-Plaintiff. (CivilAppeal No. 6771). Appeal —Fresh evidence— The Civil Procedure Rules, 0.35, r.8 — Discretion of Court —Principlesgoverning itsexercise, especially asregardsassessment ofdamages forpersona!injuries. The responded/plaintiff filed an action against the appellant/ defendant for damages for personal injuries suffered by him in an 5 accident as a result of the negligent driving of the appellant/ defendant. Thetrialcourtawarded totheplaintiff, interalia,£9,000for future lossof earnings. Theappellant/defendant applied«forleavetoproducefurther oral 10 and documentary evidence toprove facts which arose after the trial and/or thejudgment of thetrialcourt». The affidavit in support of the application states that the respondent/plaintiff as from May, 1984, to February, 1985, was regularlyworkingandhadnolossofwages.Insupportthereofatable 15 containting theearningsoftherespondent/plaintiff wasappended to it,which arealsosetoutinitsparagraph 7,showingearningsranging from £644 per month to £1,244.There is,however, nocomparable tableasregardstheearningsof the other two witnesses aswasthe case of Exhibit 12forthe months 20 of October 1982, to January, 1983, which had been taken into account by the trial court. Nor isthere any evidence to show what wasthe increase inthe rateofremuneration of allportworkerssince twoyearshad elapsedbetween theperiodcoveredbyExhibit 12and the period covered by thisnew fresh evidence. 25 188 1 C.LJL 5 10 15 20 Triannaio»τ.Kamdaiis Held, dismissingthe application:
(1)Itappears that, in the lightof the authorities, though the Courthas a discretion to receive further evidence, where there has been a «dramatic change of circumstances» after thedateof thetrial,such thatthebasison which the case was decided was suddenly and materially falsified, nonethelessthereshould beafinality inlitigation -interest republicae ut sit finis litium - especially so in personal injury cases where damages must be assessed onceand for all.
(2)Any possibilities of an increase or decrease of an injured plaintiff's earning capacity or of wages paid to persons in his profession, or in the cost of livingor in the supply and demand for such persons, orchanges for[thebetterorworse of hisstateofhealth are among the contingencies taken into consideration by the trial Court when assessing damages and therefore such awards should not be disturbed as a result, so long as such changes do not dramatically change the basis on which the trial Court made its assessment.
(3)Inthiscase theincrease of therespondent's earnings after trial does not necessarily amount to events which «materially falsify the expectations» onwhich thetrialcourtassessed thedamages payable totherespondent. Application dismissed withcosts. Casesreferredto: Pourikkos (No.2)v.Fevzi,1962 C.L.R. 283; 25 Ashiotis v. We/ner<1966) 1C.L.R. 274; Evdokimou v. Roushias
(1975)1C.L.R. 304; Kyriakouv. CD. Hay and Sons
(1978)1C.L.R. 100; Athanasiou v.Attorney-General {1966}1C.L.R. 160; Koliasv.Police
(1963)1 C.L.R. 52; 30 Felekkis v. Police
(1968)2 C.L.R. 151; Udd v.Marshall[1954] 3 All E.R. 745; Mulholland v. Mitchell [1971) 1All E.R. 307. Application. Application by appellant for leave to produce further oral and 3 5 documentary evidence. St. Erotocritou (Mrs.),for the appellant. K. Hadjipieras, for the respondent. Cur. adv. vult. 189 Tziannaros v.Katnelaris
(1988)A. LOIZOU J. read the following judgment. This is an application by the appellant/defendant «for leave to produce further oral and documentary evidence toprove facts which arose after the trial and/or the judgment of the trial Court, which evidence may be given by the examination vivavoce before the 5 Court, of Andreas Sawa and AndriMakriof Limassot». The application is based on the Civil Procedure Rules, Order 35, rule 8 Section 25
(3)of the Courts of Justice Law 1960, Law No. 14 of
- The facts relied upon are set out in the affidavit of one of the managing directors of K.M. Tillis and Co. Ltd., which represented in Cyprus, the «Kosmos» Insurance Company with which the vehicle of the appellant/defendant was insured under the provisions ofthe MotorVehicles (ThirdParty)Insurance Law, Cap.
- They are briefly these. The respondent/plaintiff had filed an action against the appellant/defendant for damages for personal injuries suffered by him in anaccident asa result of the negligent driving of the appellant/defendant. The hearing of the case was concluded on the 21stJanuary, 1984.ThetrialCourt reserved its 20 judgment which it delivered on the 30th May,
- By it the respondent/plaintiff wasawarded onafullliabilitybasis£23,400.general and special damages. Out of this amount the amount of £9,600.- was awarded for future loss of earnings. The relevant passage of thejudgment of the Court readsas follows: 25 «Ihave further considered the arguments of both Counsel and the cases cited concerning the issue of damages. Justice and fairness are the guiding principles to the award of damages. (See dicta of Geoffrey Lane, L.J. in Service Europe Atlantique v. Stockholmes [1979]2AllE.R. 764).Asum mustbe found ineach 30 case that doesjustice to the loss ofthe injured partybutfairtothe defendant aswell,inthesencethat itshould notimpose asocially unacceptable burden upon him. (See Fletcher v. Autocar and Transporters Ltd., [1968] 1 All E.R. 726; Constantinou v. Salahouris
(1969)1C.L.R. 416). 35 Applying the above criteria to the case in hand and, in particular, bearinginmind thattheplaintiff isfifty-two yearsofage, the nature of hiswork and the hazards involved, I have arrived at the conclusion that eight isthe appropriate multiplier. Thus, the 190 10 15 1 CLR. Tztannarosv.Kamelaris A.LoizouJ. further loss of earnings of the plaintiff amount to £100 χ 12 = £1,200 per year. Therefore the multiplicand is £1,200 per year which, if multiplied by eight, gives us the total sum of £9,600 for future lossof earnings.» 5 Itwas contended onbehalf of the appellant/defendant thatthe trialJudge inassessingthealleged future lossof earnings reliedon the evidence of plaintiffs witness No. 11, Andreas Sawa, an employee of theProvident Fundof thePortWorkers in Limassol, who produced Exhibit 12, which related to the earnings of the 10 respondent/plaintiff between October 1982 andSeptember 1983 and that of two other colleagues of the appellant, namely port workers 23 and24 forthesame period.OnthisissuethetrialCourt had thisto say: 15 20 25 30 35 40 «As a result of this partial incapacity, the Plaintiff adduced evidence tothe effect thathis income has been reduced. The Plaintiff was not in a position to substantiate his loss and for this purpose P.W.I 1 Andreas Sawa produced Exhibit 12 which indicatestheincomeofthePlaintiff from October, 1982 to September 1983, as well as the income of two other stevedores, who have a serial number close to No. 26 which isthenumberof the Plaintiff andwhich isrelevant tothegangs thatareformed andaresenttowork onboard theships. These people are usually employed together and they do the same work, thus they are expected more or less to have the same income.Fromthisevidence itappears thatthePlaintiff during that year, which is the time when he was not helped by his colleagues, lost fifty-seven days wagesand hislosswas about £3,125. In the light of the evidence adduced on this issue and bearing in mind the argument of learned Counsel for the Defendant aswellas theauthoritiescited, Iamof theviewthat thePlaintiff proved thatloss, but,as intheStatementofClaim he is only claiming an amountof £100 per month, his loss is limited tothatamount. The condition of the Plaintiff will not only remain unchanged permanently, but, due to the post-traumatic osteoarthritis, itwill gradually get worse; thus, the future loss of the Plaintiff continue' to be at least £100 per month. Proceeding, therefore, to the quantification of general damages, 1propose todecideseparately thetwocomponents 191 A. L o b o a J. Tzlannarosv. Kamelaria
(1988)that comprise the general damages in this case, namely the future lossof earningsanddamagesforpain andsuffering and lossof amenities.» It was further alleged in the said affidavit that the respondent/ plaintiff as from May, 1984, to February 1985, was regularly 5 working and had no loss of wages. In support thereof a table containing the earnings of therespondent/plaintiff was appended to it which are also set out in itsparagraph 7, showing earnings ranging from £644 per month to£1,244.-.There is,however, no comparable table as regards the earnings of the other two 10 witnesses aswas the case of Exhibit 12for the months of October 1982, to January 1983. Nor isthere any evidence to show what was the increase in the rate of remuneration of all port workers since two years had elapsed between the period covered by Exhibit 12 and the period covered bythisnew fresh evidence. 15 Theapplication hasbeen opposedandwehadtheadvantageof extensive argument reference topractically every decided caseof thisCourtonthequestion ofadmittingfurther orfresh evidence on appeal, both in civil and criminal cases, as wellas to the relevant English authorities most of which were cited with approval and 20 followed by thisCourt. Asfar asthe Cyprus cases are concerned reference may be made to Yiannis Pourikkos (No. 2) v. Fevzi, 1962 C.L.R. 283; Yiannis Ashiotis v. Michael Weiner
(1966)1 C.L.R. 274; EfthaliaEvdokimou v. Damianos Roushias
(1975)1 C.L.R. 100; Sawas Athanasiou v. Attorney-General
(1966)1 25 C.L.R. 160;PeriklisKoliasv.ThePolice
(1963)1 C.L.R.52; Nicos Felekkis v. The Police
(1968)2 C.L.R. 151. In considering the English authorities the basic principles have been stated by Lord Denning in the case of Ladd v. Marshall [1954]3 AllE.R. 745tobe asfollows atp. 748: 30 «Theprinciples tobe applied arethe same asthose always applied when fresh evidence is sought to be introduced. In order tojustify the reception of fresh evidence ora new trial, three conditions must be fulfilled: first, itmust be shown that the evidence could not have been obtained with reasonable 35 diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive:third,theevidence mustbesuch asispresumably to bebelieved, orinotherwords,itmustbeapparently credible, 40 although itneed notbe incontrovertible.» 192 1C.LR. Tziannarosv.Kamdarts A.Lo*xouJ. It appears that though the Court has a discretion to receive further evidence where there has been a «dramatic change of circumstances» after the date of the trial such that the basis on which thecasewasdecided wassuddenlyand materially falsified, 5 nonetheless there should be a finality in litigation - interest reipublicae utsitfinislirjum -especiallysoinpersonal injury cases where damages mustbe assessed once and for all. In the words of Lord Wilberforce in Mulholland v. Mitchell [1971] 1AllE.R.307 atp.311: 10 15 20 25 30 35 «Thetrialjudge hastoform an opinion, thebest hecan, as tothesematters,andhavingdoneso,toexpresshisopinionin theform ofalumpsumorsums.Themethodcommonly used is by applying a multiplier, which involves an estimate of duration and probability, to an annual figure of earnings or expenses, and small differences in the parameters may produce large differences inthefinal award.Thejudge hasto take into account all the uncertainties, foreseen and unforeseen, of the future; ithas been said that he must use a compound of prophesy and speculation. This abbreviated and over-simplified description shows at least what limitations must inherently exist to the Court of Appeal'sdiscretiontoadmitfurther evidence.Itmakesitclear thatanimpossiblesituationwouldariseifevidenceweretobe admitted of every change which may have taken place since the trial. In the nature of things medical condition will vary from yeartoyear, ormonth tomonth:earningprospects may change, prices may rise, or even fall. If the Court of Appeal weretoadmitevidenceofchangesofthiskind(anditmustnot; be overlooked that a facility given to one side cannot be deniedtotheother),notonlywouldamassofappealsinvolve the hearing of evidence, but the Court of Appeal would merely be faced with the same uncertainties as faced by the judge, and of which the judge has, ex hypothesis, already taken account. Inother words, an appellant's contention that factors such as these have changed since the trial must, in normal cases, be met with the answer that the judge, in his estimate,hasalready taken account of them.» .AstothelawapplicableinCyprus,extensivereference hasbeen madebythisCourtinthecaseofEfthaliaEvdokimou v. Damianos 40 Roushias
(1975)1C.L.R.304,whereafterdealingwiththevarious 193 A.LoizonJ. Tztannaroev.Kamelirie
(1988)English authorities and the effect of rule8 of Order35of theCivil Procedure Rulesthatasregard matters occurringsubsequently to thetrialitisnotnecessarytoputforward specialgrounds justifying but thematter liesinthediscretion of theCourt, itwasconsidered thatitwasnotaproper caseof exercisingsuchdiscretioninfavour 5 of allowing the calling of evidence as regards further developments, as such developments did not amount to events which had «materially falsified the expectations on whichthe trial Court had assessed the damages payable to the appellant» (Efthalia Case supra p. 313), and furthermore that «the further JQ evidence to be adduced on appeal could nothave been obtained with reasonable diligence for useat thetrial». We feel that we need not expand on the principlesfurther than we have done above as such have already been stated by this Court inthe aforesaid decided cases. 15 Generally we also feel that great heed should be paid to the principle of finality of litigation, a principle which should apply equally to both sides and that damages should be assessed once and for all. Any possibilities of an increase or decrease of an injured plaintiff's earning capacity or of wages paid topersons in 20 hisprofession, orinthe cost of livingorinthesupplyand demand for such persons, or changes forthe better orworseof hisstateof health are among the contingencies taken into consideration by thetrialCourtwhen assessingdamagesandtherefore such awards should notbe disturbed asaresult,solongassuchchangesdonot 25 dramatically change the basis on which the trial Court made its assessment and inthe present instancethey do not. We consider therefore that, asalready explained above, thisis not a proper case in which to exercise our discretion in favour of allowing further evidence. Though itdoes appear thattheoverall 30 earnings of the respondent/plaintiff may have increased, it does not necessarily amount to events which «materially falsify the expectations» on which the trial Court assessed the damages payable to the respondent In any event, inour mind, itdoes not necessarily lead to any conclusion asto whether such increase in 35 hisearnings wasdue toan increase inthe rate ofremuneration of port workers generally or whether it was due to changes in his physical capacity allowing him thusto earn more living. Forthereasonsstatedabove,thisapplication failsand ishereby dismissed with costs. Application dismissedwithcosts. 194 40