clr/1988/1988_1_25.pdf

(1988)The tnal Court found that the driver of the van was guilty of negligence in that he was dnving at a speed excessive in the circumstances ιe 25 miles per hour In the light of the aforesaid findings the tnal Court apportioned liability as follows Dnver of lorry (appellant) 60%, dnver of van (respondent) 40% Held,dismissingtheappeal

(1)Theduty of aprudentdnver inthe circumstances was to keep as close to the left as possible, a course that would have enabled him to ensure theunobstructed passageof vehicles foreseeably likely to emerge from the opposite side of the road 5 10

(2)The finding thatitwas not impossible for theappellant to keep closer to the edge of the road was not challenged on appeal The appellant merely challenged the impracticability of such a course, a factor mitigating his blameworthiness This submission cannot be sustained 15

(3)Negligence is determined by objective standards referable to one's duty to other users of the road The duty of care nses in proportion tothemagnitudeof thensk inherentintheuse oftheroad and is coextensive thereto Unless the nsk is one that can in reason 20 and good sense be safely ignored, a dnver is under a duty to heed nsks incidental to the hazards of dnving and take precautions commensurate thereto

(4)The test of contnbutory negligence is broadly similar tothatof negligence The pnncipal difference is that in the former case it is 25 dependent on failure, if any, to discharge one's duties to others, whereas in the latter liability is dependent on failure to take foreseeable precautionsfor one'sown safety andthatofhisproperty

(5)The apportionment of liability turnsfirstly on theassessment of ihe respective blameworthiness of thetwo drivers and,secondly on 30 the causative potency of their arts The causative potency of one s negligent acts depends on the damage that the vehicle under his control is likely to occasion The bigger the vehicle the more damage itis likely to cause 26 1CL.R. Charalambousv.Kassapla

(6)Inthiscase thereis noroom for interfering with thefinding of negligence ortheapportionmentof liability. Appealdismissedwith costs. Casesreferredto: 5 StavrouνPapadopoulos

(1969)1CL.R. 172. Appeals. Appeals by defendants against the judgment of the District Court of Nicosia (S. Demetriou, Ag. P.D.C.) dated the 29th September, 1984 (Action Nos.6282/81 - 6283/81) whereby they 10 were adjudged to pay to plaintiff No. 1 the sum of £1,050 and to plaintiff No. 2 the sum of £350.- as damages caused by a traffic accident. A. Dikigoropouhs, for the appellants. St. Erotocritou(Mrs.) for the respondent. 15 TRIANTAFYLLIDES P.: We consider it unnecessary to call upon counsel for the respondent to reply. Pikis, J. will give the judgment of theCourt. PIKISJ.: On the 19th October, 1981, early inthe morning,the lorry of appellants and the van of respondent collided as they 20 travelled in opposite directions through the village of Ayia Varvara. The accident occurred at a dangerous part of the road, described by the trial Court as a «double bend». The visibility of drivers travelling ineither direction,beyond thebend,was very limited, afact that made negotiation of itespecially hazardous.In 25 proceedings before the District Court by the respondent (the driver of the van) the lorry driver was found guilty of negligence but damages were reduced in proportion to his contributory negligence estimated by the trial Court at 40%. Liability was apportioned between the two drivers at the ratio of: appellant 3 0 60% (lorry driver), respondent 40% (van driver). The present appeals are directed against the finding of negligence and the apportionment of liability. Inthe submission of counsel for the appellants, the lorry driver was not guilty of negligence; if at all negligent, his negligence was minimal and its •*5 causative effect insignificant. 27 Pikis J . Charalambous v. Kassapis

(1988)The trial Court had received testimony from both sides illuminating the circumstances of the accident. After ponderation of the evidence, aided, no doubt, by the visit of the Court to the scene of the accident, itconcluded that thelorrydriverwasliable in negligence for failure to approach the scene and negotiate the 5 bend with the care expected of a prudent driver in the circumstances. In negotiating the bend the lorry driver had unreasonably occupied an unduly large part of the road blocking inpart the passage that respondent could anticipate tobe free for use as he negotiated the bend. As a matter of fact, the lorry 10 occupied approximately 13ft. of the tarmac leaving only 9 ft. for use by on-coming vehicles. The folly of appellant was compounded by the fact that on his side there existed a berm of alout 4ft.,useofwhich wouldreducetherisksinherentindriving alongthatpartof theroad. Nosuch amenity existedontheside of 15 thevan driver. The Court dismissed the contention of appellant that it was impossible for him to drive closer to the left side of the road. By failing tosteerclosertohisnearside,heinduced agreater element of risk, and increased the hazards associated with negotiation of 20 the part of the road. Furthermore, the trial Court dismissed faint allegations made by both drivers that their vehicles were at a standstillat thetime of the collision. The narrowness of the road, coupled with the presence of buildingson eithersideof it,limitedvisibilityconsiderably. Drivers 25 using the road came under a correspondingly high duty of care and ought to take precautions proportionate thereto in order to reduce the risk of accident. The finding of the trial Court that the lorry driver failed to discharge that duty of care was perfectly warranted by the findings of the Court. The duty of a prudent 30 driver in the circumstances was to keep as close to the left as possible, a course that would have enabled him to ensure the unobstructed passage of vehicles foreseeably likely to emerge from the opposite side of the road. Equallyjustified was the finding that the respondent wasguilty 35 ofcontributorynegligence.Hisspeed,about25m.p.h., prevented him from exercising the control over his vehicle necessary to enable him to cope with the vicissitudes of that dangerous partof the road. Had he exercised a better control over his car the collision couldhavebeen avertedconsideringthatthewidthofthe 40 road available for passage is9 ft. 28 1 C.L.R. Charalambous v. Kassapls Pikis J. Counsel fortheappellant took a number ofpointsinsupportof hissubmission thatthelorrydriverwasfree ofblame inwhich case he should be exonerated of negligence. More emphasis was laid on the submission that the apportionment of liability was 5 erroneous in that it did attribute to the appellant a degree of responsibility disproportionate to his blame-worthiness. The contention thatthetrialCourtmisconceived theevidence relevant tothevisibilitythatthetwodriversenjoyed astheyapproached the scene, has notbeen substantiated. Farfrom agreeing that thetrial 10 Courtmisapprehended anypartoranyaspectoftheevidence, we find that the analysis made of the testimony of witnesses was thorough and free from any element of misdirection. The trial Court rejected the contention of the lorry driver thatit wasimpossibletokeepclosertothe edge oftheroad.This finding 15 was not challenged on appeal; what counsel pressed before us was the impracticability of such a course, a factor mitigating the liability of the appellant. We cannot sustain the submission. Negligence is determined by objective standards referable to one's duty to other users of the road. The duty of care rises in 20 proportion tothe magnitude of theriskinherent in the use of the road and iscoextensive thereto. Unlessthe risk isone that can, in reason and good sense,besafely ignored, adriver isunder a duty to heed risks incidental to the hazards of driving and take precautions commensurate thereto. The restricted visibility, the 25 narrowness of the road and the fact that the area was inhabited, imposed a dutyon a dnver (lorry driver)following the path of the appellant to keep as close to the left as physically possible. The appellant failed inthe discharge of thisduty and exposed thereby therespondenttoforeseeablerisksforthematerialization ofwhich 30 he wasrightlyfound tobe accountable in negligence. In his address counsel made extensive reference to the principles of negligence and contributory negligence, as they emerge from the caselaw, in support of his submission that an inordinately highresponsibilitywasattached totheappellant. The 35 gravamen of hissubmission isthat appellant was far lessto blame for the accident in comparison to the respondent. The test of contributory negligence isbroadly similar to thatof negligence in that foreseeability and failure to take precautions against foreseeable risks is the key to a finding of contributory 40 negligence. The principal difference between a finding of negligenceandoneofcontributorynegligenceisthatinthe former 29 Plkis J. Charalambous v. Kassapls

(1988)case itisdependent on failure, ifany, to discharge one's duties to others,whereas inthelatterliabilityisdependent onfailuretotake foreseeable precautions for one's safety and that of his property. The apportionment of liability, as ithas often been said, turns, on the assessment of the respective blame-worthiness of the two drivers and, secondly, on the causative protency oftheiracts.The question isresolved from abroadperspective guidedbylogic and common sense. 5 Counsel relied on the decision of the Supreme Court inStelios Stavrou v.Georghios Papadopoulos* inaidof hissubmission that 10 excessive speed is a far more consequential factor for the causation of an accident compared to the partial obstruction of passage occasioned by the fault of the driver of an oncoming vehicle. The Supreme Court in that case upset the even apportionment of liability between the two drivers and attributed 15 80% liability to the driver guilty of excessive speed. Apportionment of liability can neverbe divorced from the factsof a particular case, the dominant factor for the apportionment of liability in every case. And the facts of the present case bear little comparison to those in Stavrou (supra). In that case a principal 20 reason for upsetting the apportionment of liability made by the trial Court was the erroneous finding that the driver of the bus partly blocking the passage of the on-coming vehicle was under duty to sound his horn. The finding was wholly unwarranted as a matter of reality and irrelevant in the absence of an averment to 25 that effect. As the Court pointed out in the case of Stavrou, in addition to fault the causative potency of the acts of the two drivers is a crucial factor for the apportionment of liability. The causative potency of one's negligentactsdepends onthe damage that the vehicle under his control islikely tooccasion.The bigger 30 the vehicle the more damage itislikely to cause. Wearewholyunpersuaded thatthereisanyroomfor interfering either with the finding of negligence or the apportionment of liability. The appeals are dismissed with costs to be assessed by the 35 Registrar. Appeals dismissed withcosts. •{1969)1CL.R 172. 30