clr/1988/1988_1_391.pdf

(1988)At a point inthe road respondent turned suddenly to the nght, inordertoenterasidestreet Theappellantappliedhisbrakes,buthis carturnedand hitplaintiff scar The tnal Judge apportioned liability 30% to the appellant and 70%totherespondent Thereasonwhyhefoundappellantliableas 5 aforesaid isthatbecauseheconcluded,notwithstandingtheabsence ofevidence,thathewa;.dnvingatanexcessivespeedandthathedid nottaketheproperavoidingaction,becausehefailedtouseanopen spacetohisleft, inordertoavoidcollisionwithrespondent' scar. Held,allowingtheappeal (I)ThetnalJudgewasnotentitled to 10 find that the speed was excessive from the way appellant's car collidedwithplaintiff's car

(2)Even assuming that appellant's speed was excessive, such speed was not sufficient per se in the circumstances to establish negligence 15

(3)The sudden action of the respondent put the appellant ina dilemma and, if the latter, in the agony of the moment, took the wrongaction,hecannotbeheldguiltyofnegligence

(4)In the absence of a forewarning, the appellant could not anticipatethatanothercarintheconvoyfromtheoppositedirection 20 wouldsuddenlyturntothenght Appealallowed Casesreferredto: Alexandrouv. Gamble(1974} 1 CLR 5, loannouandAnotherv.Michaehdes

(1966)1 CLR.235, 25 Panayiotouv. Mavrou

(1970)1 C.L.R 215; KaraolisandAnotherv. Charalambou

(1976)1 CL.R.

1. Appeal. Appeal by defendant 1 against the judgment of the District Court of Nicosia (Artemides, P.D.C.) dated the 19th June, 1985 30 (Action No. 5154/83) whereby the liability in respect of a traffic accident was apportioned at 30 per cent on him and 70 per cent on defendant
2. A Dikigoropoullos, for the appellant. St. Erotocritou (Mrs), for the respondent. 35 Curadv. vult. 392 1 CL.R. Avraam v.Andreou & Another A.LOIZOU P.:Thejudgment of the Court willbe delivered by Mr.Justice Kourris. KOURRISJ.:Thisisan appealfrom thejudgment ofaJudgeof the District Court of Nicosia by which he determined the liability 5 with regard to a collision involving the vehicles of defendant No. 1 appellant and the plaintiff on 5.9.1983, by holding that the appellant was to blame 30 per cent and the respondent 70 per cent for thesaid collision. It was agreed between the parties that, subject to the issue of 10 liability being decided by the Court, the damages to which the plaintiff wasentitled were £300 special and general damages and £975 for damage sustained to hiscaron full liabilitybasis. The facts as found by the learned trial Judge shortly are these; On 5.9.1983, the plaintiff -whoisnot aparty to thisappeal -was 15' driving his car No. NL 99 along Anthoupolis - Nicosia road towards the direction of Anthoupolis and was following car No. DM007 driven by defendant 2 who is the respondent in this appeal. Behind these two cars, there were other cars proceeding in the same direction. At the same time, defendant 1, who isthe 20 appellant in this appeal, was driving his car No. KY595 in the opposite direction. When respondent approached the side road, AlexandrosPanayoulisStreet,whichisontherightsideoftheroad towards the direction of Anthoupolis, he turned suddenly to the right in a diagonal position to enter into the said side road thus 25 blockingthewayoftheappellant, althoughhesawappellant's car coming from the opposite direction. Respondent testified that he estimatedthathecouldturnintothesideroadbefore the approach ofappellant' scar.The appellant faced withthissituation, applied the brakes of his car which made a turn and hit plaintiffs car. The 30 respondent's car had, in the meantime, entered the side road and drove away. On these facts, the trial Judge found that both drivers are to blame for this accident and apportioned the liability by holding that the appellant is30 per centtoblame for thisaccident and the 35 respondent 70per cent. Healsosaidthatrightlycounselfortheappellantconceded that his client contributed to the accident. Counsel for the appellant, however, complained before us that he had made no such 393 Koorrla J. Avraam v.Andreou &Another

(1988)concession. We have perused the record before us and, indeed, there is no such admission by counsel for the appellant and we shall dismiss from our mindsthat such admission was ever made. The trialJudge found that appellant was guilty of contributory negligence in that hisspeed was excessive, that appellant should have anticipated that some driver from the convoy of the cars coming from the opposite direction should turn intotheside road, and that the appellant did not take sufficient avoiding action. 5 Appellant's counsel contends that the trial Court was wrong in finding that his client was guilty of contributory negligence by 10 holding that he did not take sufficient avoiding action, this being against the evidence adduced. He, further, alleges that the evidence proves that he acted reasonably in the circumstances and that he took allthe stepswhich areasonable man could have taken inthecircumstances.Itis,further, contendedthatthefinding 15 of the trial Court that the appellants speed may have been oneof the reasons of the collision is wrong and not warranted by the evidence. He also contended that the appellant could not anticipate, unless he has some fore-warning, that another userof the road wouldswervetothe rightto enterintothesideroad. 20 With regard to the question of speed, the learned trial Judge, although he found that there was no evidence as to the speed of appellant's car, he went on to say that having regard to the circumstances of the collision, it is evident that appellant's speed wasexcessive buthe gave no reasons,assumingthatthe speed of 25 appellant's car was excessive, why the speed contributed to the accident. The accident occurred on a road where the speed limit is 50 miles per hour and as there was no evidence as to the speed of appellant's car,we do notthinkthat the trialJudge wasentitledto 30 find that the speed was excessive from the way appellant's car collided withplaintiff's car. Buteven ifwewere toproceed on the basis of the assumption that the appellant was, just before the collision driving at a high speed, we cannot, in any case, accept that doing so, was, inevitably sufficient per se and irrespective of 35 the circumstances ofthepresentcasetoestablish negligence, (see Alexandrou v. Gamble

(1974)1 C.L.R. 5), and, in the circumstances ofthiscaseitcannotbesaidthatthespeed atwhich the appellant wasdrivingwas causative of thesaid collision. 394 1C U R . Avraamv.Andreou &Another Kourris J. Thesecondquestionrelatestotheavoidingactiononthepartof theappellant.Thedifficulty hereisnotwhethertheappellant took any precautions to avoid the collision, but whether he took sufficient precautions. This isa question of fact, upon which the 5 trial Court has made a finding and it isnotto be reversed if there is evidence to support it. The learned trial Judge found that the appellant didnottakesufficient precautionstoavoid the accident. Heheldthattheappellantcoulddrivehiscarontoanopen space on the left of the road towardsthe direction of Nicosia. 10 15 20 In the case of Christakis Ioannou and Another v. Fivos Michaelides

(1966)1 C.L.R. 235, the Court had thisto say at p. 238: «Asregardsthecomplaint thattherespondent failed totake avoiding action, ithasbeen held that where a 'wrong' stepis taken byadriverintheagonyofthecollisionitdoesnot follow that that step was a negligent step if the other driver by his negligence placed the first driver in a position of danger; but the latter is to take a step which a reasonably careful man wouldfairlybeexpected totakeinthecircumstances(Chaplin v. Hawes, 3 C. &P.554; Swadling v. Cooper [1931]A.C. 1, 9; and Wallacev.Bergins

(1915)S.C. 205).Thisisa question of fact in each case». Thereisnodoubtthattherespondent,byhisnegligentactionin suddenly turning to the right, ina diagonal direction, to enter the 25 sideroad,blockedtheappellant'spathinthemainroadandputthe appellant in a dilemma, and even assuming that the latter did a wrongthing,wethinkthat,havingregardtothecircumstancesofthis case, the appellant did not have the time or the opportunity to take effective avoiding action inthe agony of the collision. 30! With regard tothe pointwhether theappellant could anticipate that another userof the road coming from the opposite direction wouldsuddenlyrumtotherightfrom amainroadintoasideroad, wethinkthatinthecircumstances of thiscasetheappellant could not anticipate such eventuality, unless he had some fore warning; 35 and there wasnosuch fore warninginthepresent case. Inthe case of Panayiotou v. Mavrou,

(1970)1C.L.R. 215, the Court adopted the English case of Fardon v. Harcourt Rivington and atp. 219statedthe following:«It is well settled that negligence is the failure to take 395 KourrisJ. Avraamv.Andreou&Another

(1988)reasonable care in the particular circumstances, and in each case the question whether a person has been negligent is a question of fact. We could usefully refer to the principle enunciated byLordDunedin intheHouse ofLordsinFardon v.Harcourt-RMngton [1932]AllE.R. Rep.81, at page 83,to 5 the effect that if the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging isonly a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having 10 takenextraordinaryprecautions.Thisstatementisregardedas applying generally toactionsinwhich thenegligence alleged is an omission to take due care for the safety of others; and it must follow thataprudent man willguardagainstthe possible negligence of others, when experience shows such 15 negligence to be common (see Grarjf v. Sun Shipping Co. Ltd. [1948]2AllE.R. 238atpage 247 H.L)». This principle was followed in the case of Nicos Karaolisand Another v. Charalambous

(1976)1C.L.R. 310.Wethink that the Court erred inprinciple in expecting a driverwho istravellingon 20 hispropersideoftheroadtoanticipatethatanotherdrivercoming from the opposite direction could suddenly swerve to hisrightto enter into the side road. This possibility of danger isonly a mere possibility which would never occur to the mind of a reasonable __ man. Foralltheabove reasons,weareoftheviewthatdefendant 2is solelytoblame for thisaccident and weallowtheappeal and the judgment is varied accordingly. In the result, there will be judgment againstdefendant 2 onlyfor£1,275withcostshere and in the Court below. Appeal allowed with costs hereand inthe Court below. 396 ZD 30