clr/1988/1988_1_317.pdf

(1988)When he reached the edge of the asphalt and stretched his leg to move forward he was hiton the legbytherear left hand side wheel of the taxithe front part ofwhich had already passed him. ThetrialJudge found thatappellant 1 hada dutytomovetowards the centre of the road so that he might tum, aswas hisintention, to 5 the left and enter the side road. He, also, found that appellant' s speed of20-25 mph wasexcessive. In the light of such findings he apportioned liability equally between the appellant and the pedestrian. Hence this appeal. Held, allowing the appeal:

(1)This Court does not interfere on 10 appeal to disturb the apportionment of liability as found by a trial Court unless a strong case is made out justifying such review of apportionment and provided it is satisfied that the trial Court has erred inprinciple or hasmade an apportionment ofliability whichis clearly erroneous.

(2)There are two elements which the Court should always take intoconsideration inassessing liability.Theone isthe causation and the other one isblameworthiness.

(3)Astothe dutyofa pedestrian when makinguseofthe highway useful reference may be made to Halsbury' sLaws of England, 4th 2 0 edition,vol.34,paragraph 49.

(4)Bearinginmindthefactthattheappellanttooktheextremelefthand side in view of the fact that there was a thick flow of traffic coming from the opposite directionand alsothathisintention wasto tum tohisleft a short distance ahead of him and alsothe factthatat 2 5 no moment he had gone off the asphalt onto the berm and that his speed, at 15-20 m.p.h., wasnot unreasonable inthe circumstances, thewayhe drovewasnotinanyway negligent.

(5)Accordingtotheruleoftheroaditisonlywhereadriverintends to tum to the right that he should proceed and stopinthe centre of 3 0 the road opposite thejunction and then after makingsure that there isnotraffic comingeitherfromtheopposite direction orthesideroad totum intotheside road atangle of90 degrees. The inference that the same duty exists,when a driver intends to turn tothe left, iswrong. Appeal allowed with costs in favour of appellants. Casesreferred to: Papadopoullos v. Perideous

(1980)1C.L.R. 576; 318 35 1C.L.B. Christodoulou&Anotherv.Peppis MunicipalityofNicosia v. Kythreotis

(1983)1C.L.R. 154; G.I.P. ConstructionsLtd. v.NeophytouandAnother

(1983)1 C.L.R. 669; Tavelisv. Evangelou

(1984)1 C.L.R. 460; 5 Nicolaouv. Louka

(1985)1 C.L.R. 91; Ekrem v. McLean

(1971)1 C.L.R.391; BrownandAnotherv.Thompson{1968]2AllE.R.708, Bakerv.Willoughby[1968]2AllE.R. 708; Soteriouv.KyprianidouandAnother

(1981)1 C.L.R.61. 10 Appeal. Appeal bydefendants againstthejudgment oftheDistrictCourt of Nicosia (Artemides, P.D.C.) dated the 9th July, 1985 (Action No. 5435/83) whereby the liability of the parties in an action for damages for personal injuries as a result of a road traffic accident 15 wasapportioned equally between them. G.J. Pelaghias, for the appellants. M.Christodoulou, for the respondent. Cur.adv. vult. A.LOIZOU, P.:Thejudgment ofthe Court willbe delivered by 20 Mr.Justice Sawides. SAWIDES, J.: This is an appeal against the judgment of the District Court of Nicosia whereby the liability of the parties in an action fordamages forpersonal injuries asaresult ofa road traffic accident, wasapportioned equally between the parties. 25 Thequantum ofspecialandgeneral damageshadbeen agreed, with the approval of the Court, inviewofthe fact thatthe plaintiff wasa minor atthe material time,at £1,900.The facts of the case are as found by the trialJudge, briefly as follows: 30 Theaccidentoccurredinthemorningofthe22ndJuly, 1982,at Strovolos Avenue in Nicosia. Defendant 1 was driving taxi No. TJB485 the property of defendant 2 in the course of his employment with defendant 2 and was proceeding from the direction of Nicosia towards Strovolos and was in the processof 35 turning into Pericleous Street which was on his left-hand side. 319 S a w i d e s J. Christodoulou &Another v. Peppis

(1988)Whilst so doing he hit the plaintiff who was attempting to cross Strovolos Avenue from left to right intending to proceed to the opposite direction. The width of the road was 19 feet and on the left-hand side of defendant 1,near thejunction, therewasa berm 13 feet wide on which, at the material time, there was parked a 5 lorry facing in the direction of Strovolos at such position on the bermthatitsright-hand sidewheelswerethree feetawayfrom the edge oftheasphalt.Atthematerialtimealsotherewasathick flow oftraffic from both directions. Theplaintiff whowasabouttoascentonthe lorryandsitnextto 10 thedriver,wasasked byitsdrivertocrosstheroadandbuyforhim a cake.The plaintiff proceeded from the left-hand side front door of the lorry, walked in front of it, and moved towards the edgeof the asphalt. When he reached the edge of the asphalt and stretched hislegto move forward he washiton thelegbythe rear 15 left-hand sidewheel ofthetaxithe front partofwhichhad already passedhim.Accordingtodefendant 1 hedrovethecaratthe edge of the asphalt due to the fact that there was thick traffic coming from the opposite direction.Thespeed ofhiscarwas 15-20 miles perhour asthecondition oftheroadespeciallyattheedgewasnot 20 very good due togroves on the asphalt. The learned trial Judge found that the plaintiff proceeded to crosstheroad inanormal paceand thathedidnotruntocrossthe road and wefind no reasontodisturbthisfinding ofthetrialCourt. In the circumstances he found that the plaintiff was negligent in 25 that he fail to stop at the berm before enterina the road and keep a proper look out in either direction to see whether a car was coming. The learned trial Judge concluded that had the plaintiff stopped and looked he couldsee the car driven bythe defendant coming from his right which was very near to him especially 30 bearing in mind the fact that the visibility was very good for a distance of 200 meters. On the other hand he found that though defendant 1, as alleged by him, was driving at a speed of 15-20 milesper hour he drove hiscarvery close tothe berm and in fact his left-hand side wheels travelled over the groves at the edge of 35 the asphalt and went on as follows: «Itisobvious thatthe intention ofthedefendant wastoturn and enter intothesideroaddiagonallyfrom theopenspace at thejunction ofStrovolosAvenue insteadofproceeding tothe centre of the Avenue and takingan angle of 90 degrees. Itis, 40 320 1 C.L.R· 5 Christodoulou &Another v. Peppis S a w i d e s J. also, common ground that the traffic at the time of the accident was thick and Ido not think that the speed of the defendant wassafe inthecircumstances. He,himself assessed hisspeed at 15-20milesanhour. Itshould, however,betaken intoconsideration thatthedefendant wasabout totum to the sideroadand,therefore, heshouldhavereducedhisspeed.» Inthe light of hisfinding he found that both parties are equally to blame. Bythisappeal counsel for theappellant-defendant disputesthe 10 said apportionment ontheground thatinthe lightofthe evidence before thetrialCourttheapportionment ofliabilitywas manifestly wrong and not warranted bytheevidence before itandthat inthe circumstances the respondent-plaintiff issolelyto blame. Itiswell settled that this Court does not interfere on appeal to 15 disturb the apportionment of liability as found by a trial Court unless a strong case is made out justifying such review of apportionment and provided it issatisfied that the trial Court has erred inprinciple orhasmade anapportionment ofliabilitywhich isclearlyerroneous. (See,inthisrespect, interalia, Papadopoulos 20 v. Pericleous

(1980)1C.L.R. 576 at p. 579; The Municipalityof Nicosia v. Kythreotis

(1983)1 C.L.R. 154 at p. 175; G.I.P. Constructions Ltd. v. Neophytou and Another

(1983)1 C.L.R. 669; Taveilisv. Evangelou

(1984)1 C.L.R. 460 and Nicolaou v. Louka

(1985)1C.L.R. 91atp.100.AlsoEkrem v.McLean

(1971)25 1C.L.R. 391inwhichreference ismade tothecaseofBrown and Another v.Thompson [1968]2AllE.R. 708). Asstated byLord ReidinBaker v. Willoughby [1969]3AllE.R. 1528at1530(H.L.)aground forinterferingwiththeassessmentof the trial Court is when «some error in the judge' s approach is 30 clearly discernible». On the totality of the evidence and the material before thetrial Court and the findings of the trial Court as to the sequence of eventswhich ledtotheaccidentwefind ourselvesunabletoagree withthetrialCourtthattheapportionmentofliabilityinthe present 35 case istheproper one. Itisanundisputed factthatthe respondent moved from the left-hand side ofthelorryand proceeded in front of it intending to cross the asphalt from left to right to go to the opposite side of the road. Notwithstanding the fact that there was considerable traffic ontheroad therespondent attempted tocross 40 the road without having sufficient regard to hisown safety before 321 S a w i d e s J. Christodoulou &Another v. Peppis

(1988)entering the asphalt. He failed to stop on the berm before attempting to step on the asphalt and keep a look out in both directions to see if any car was coming especially from the direction the appellant was coming, particularly having regard to the fact thatwhilstwalkinginfront of the lorryhisvisibilitytowards 5 the direction of Nicosia was obstructed by the lorry and also the factthathechosetoproceed infront ofthelorryinsteadofitsback. Had heproceeded tocrossthebermfrom thebacksideofthelorry he could see and be seen bya cartravelling towardsthe direction of Strovolosand thisaccident wouldhavebeen avoided. Astothe 10 duty of a pedestrian when making use of the highway useful reference may be made to Halsbury's Laws of England, 4th edition, vol.34, paragraph 49which readsas follows: «49.Pedestrians. Persons on foot have a rightto be on the highwayand areentitledtotheexerciseofreasonable careon 15 the part of persons driving vehicles on it, but they must take reasonable careofthemselves,andmaybeanswerable ifthey occasion accidents to vehicles. The amount of care reasonably to be required ofthem depends on the usual and actual state of the traffic, and on the question whether or not 20 the foot passenger isatan approved and indicated pedestrian crossing. Adriver owes no special duty to infirm persons on the highway unless he knows or should have known of their infirmity. In Tavellisv. Evangelou (supra) Triantafyllides, P., had this to 25 say in delivering thejudgment ofthe Court ofAppeal, atp.462: «Itwould not,of course,becorrecttostatethatwhenevera pedestrian is hit by a car the driver of such car is solely to blame and the pedestrian cannot be found guilty of any contributory negligence. They are both of them users of a 30 road atthe material time and they owe a duty of care to each other andtoother roadusers;and iftheyfailtodischarge such duty then, depending on the circumstances of the particular case, either or both of them could be found guilty of negligence which has led to the accident, {see, for example, 35 Omer v.Pavlides

(1971)1C.L.R. 404).» Concerning whethertherewasanynegligenceonthepartofthe appellant, bearing in mind the fact that he took the extreme lefthand side in view of the fact that there was a thick flow of traffic comingfrom theopposite direction and alsothathisintention was 40 322 1 C.L.R. 5 10 15 20 25 30 Christodoulou &Another v.Peppis S a w i d e s J. toturntohisleftashortdistanceaheadofhimandalsothefactthat atno moment he had gone off theasphalt onto theberm and that his speed, at 15-20 m.p.h., was not unreasonable in the circumstanceswedonotfindthatthewayhedrovewasinanyway negligent.The factthatthere wasastationarylorrythreefeet from the edge of the asphalt was not, in the circumstances, such as to operate as a warning to him that itwas likely that any passenger from the lorryorany otherpedestrian would suddenlyproceed in front of the lorry in an attempt to cross the road without stopping first on thethi'eefeet free part of theberm between the lorry and the asphalt and keep aproper look out to make sure ifitwas safe for him to proceed on the asphalt. In fact inthiscase the car had already passed clearly the respondent before he stepped on the asphalt and the respondent was hit by the rear wheel of the car when he stretched his leg to step onto the asphalt. As to the inference ofthelearnedtrialJudgethataspeedof 15-20milesper hourwasnotsafe inthecircumstanceswefind ourselvesunable to agree with him in the absence of any evidence supporting such inference. Asto the inference of the trial Court that the failure of the appellant to proceed to the centre of the road and take an angle of 90 degrees before turning to the left amounted to negligence onhispartwefindsuchinference aswrong.According to the rule of the road it is only where a driver intends to turn to the right that he should proceed and stop inthe centre of the road opposite thejunction and then after makingsure that there isnotraffic coming eitherfrom the opposite direction or the sideroadtoturnintothesideroadatanangleof90degrees (useful reference maybemade torule59oftheRoadTraffic Code).Inthe present case the appellant was intending to turn to his left and, therefore, he had totake the extreme left-hand side of the road. In Soteriou v. Kyprianidou and Another

(1981)1C.L.R. 61 in which apedestrian whilstwalkingon thepavement stepped on to the road while the motor-vehicle was passing him, the Coun found asfollows (A Loizou. J., ashe then was.atpp 63,64): 35 40 «Furthermore, on these facts as found by the trial Court there was nothing negligent in the conduct of the respondent to render her liable for damages to the plaintiff. She could not reasonably foresee, in the circumstances, that ihe appellant whilst walking on the pavement to her left and when overtaking him with sufficient room between her car and thepavement, he wouldhave moved insuchawayasto 323 S a w i d e s J. Christodoulou &Another v. Peppis

(1988)hit himself on the rear of her car. In fact, she had already passed himclearlybefore hestepped downsuddenlyfrom the pavement withouthimself makingsure thatitwassafe forhim to move to the direction he did. The respondent was driving at such a safe distance from the edge of the pavement that it 5 could notbesaidthatshewasnegligent inanyway.Itwasthe appellant's negligence thatwasthe cause oftheaccident and veryrightlythe trialJudge dismissedhisclaim.» TherearetwoelementswhichtheCourtshouldalwaystakeinto consideration in assessing liability. The one isthe causation and 10 the other one is blameworthiness. Having examined carefully all the material before us respecting the part which respondent and appellant had played in the accident we have reached the conclusion that the apportionment of liability bythe trialCourt is clearly erroneous and that the conduct of the it .ipondent in 15 connection with the causation ofthe accident andthe blametobe attributed to him was entirely on him. In consequence we find no contributory negligence on defendant 1 and the appeal is, therefore, allowed and the judgment of the trial Court issetaside. ^0 In the result this appeal is allowed with costs in favour of the appellants. Appeal allowed with costs. 324