I C.L.R. 1988 July 11 (DEMETRIADES, STYLIANIDES, PIKIS JJ.) GEORGHIOS CHRISTOFOROU ASADMINISTRATOR OFTHE ESTATEOFTHEDECEASEDANTONIS CHRISTOFOROU {No.2) Appellant-Plaintiff. v.
- GEORGHIOSASPROFTAS,
- ANDREASMALIOTISLTD., Respondents-Defendants. (CivilAppeal No. 7142). Negligence —Road trafficcollision —Userofmajorroad—Absence of duty to anticipate, in the absence of forwaming, emergence of motoristfromasideroad. 5 Negligence —Road traffic collision—Avoiding action by userof major road— Thepressure from an unforeseen risk —Importance of. Amotorcyclistenteredajunction ofamajorroad withaminorroad from the minor road without stopping at the'|hait sign or anywhere elseand, asaresult,collided withthe rearsideofalorrydriven along the major road. 10 15 20 Th e brakes of the motorcycle were def-'cti- e. The nv torcyclist made an effort tobnng hismotorcycle toa haltby applying pressure on the ground withhis feet. Visibility of the lorry driver towards the direction of' the motorcyclist was limited by a row of trees. The lorry driver noticed the motorcyclist when a short distance separated the two vehicles. Thus he felt that, if he applied brakes, he would, in all probability. make collision a certainty. He swerved to the right. But he did not manage toavoid the collision. Asaresultofthecollisionthemotocyclistdied.Theaction brought byhispersonal representatives wasdismissedon theground that the lorrydriverwasnottoblameforthecollision.Hence thisappeal. Held, dismissing the appeal
(1)The amenity of the lorry driver to manoeuvre his rar in a way other than that in which he, in fact. 441 Christoforou (No.2)v.Asproftas&Another
(1988)manoeuvredit,waslimitedbytheproximityofthemotorcycleandthe auscr.te ot a real opportunity to change direction or increase his speeddramatically.
(2)From Vakanasv. ThomasandAnother{1982}1C.L.R.530and AdamisandAnotherv.Eracleous
(1982)1 C.L.R.746thereemerges 5 the absence of a duty on the part of the user of a major road to anticipate, in the absence of fore warning, the emergence of a motoristfromasideroadwithoutstoppingandwhenunsafesotodo; and thepressure under whichthedriveroperateswhen confronted withanunexpected andunforeseen nskontheroad. 10 Appeal dismissed. No order astocosts. Casesreferredto: Vakanasv.ThomasandAnother
(1982)1 C.L.R.530: AdamisandAnotherv. Eracleous
(1982)1 C.L.R. 746. 15 Appeal. Appeal by plaintiff against thejudgment of the DistrictCourtof Nicosia (Artemides, P.D.C.) dated the 31st March, 1986 (Action No.6200/83) whereby hisclaimfordamagesasaresultofa traffic accident was dismissed. 20 P.Lysandrou, for the appellant. N.Zomenis, for the respondents. Cur.adv. vult. DEMETRIADESJ.:Thejudgment oftheCourtwillbe delivered byPikis, J. PIKISJ.: Thisisan appeal by the administrators oftheestateof Antonis Christoforou against the judgment of the DistrictCourtof Nicosia, dismissing their action for damages raised under s.58 of the Civil Wrongs Law (Cap. 149), and section 34 of the Administration of EstatesLaw(Cap. 189). The deceased, a young man of 20, met with hisdeath ina road accident at the junction of Pentelikon and Vyzantion Street, Nicosia. There was hardly any dispute about the facts that led to the collision. The deceased drove a motorcycle along Vyzantion Street and was heading in the direction where the road intersects 35 with Pentelikon Street. Entry into the junction from the side of Vyzantion Street is controlled by a halt sign; whereas no like 442 25 30 1 C.L.R. Christoforou (No.2) v. Asproftas & Another Pikis J. restrictionaffects theusers of PentelikonStreet.Therealitiesof th.· junction were that Pentelikon Street was a major and Vyzantion Streeta side road. The deceased entered the junction without bringing his 5 motorcycle to a standstill at the halt sign or anywhere else and. entered thejunctionatatimewhen thelorry driven by Georghios Asproftas was crossing it.As a result he collided with therear side of the 24 feet long lorry, his motorcycle overturned and himself suffered fatal injuries. 10 Thereason for thefailure of thedeceassed tostopatthehaltline was likewise not in issue. The brakes of the motorcycle were defective, a fact that made it impossible for the deceased to exercise control over the vehicle he was driving. He made, what must have been,anagonizing effort tobring hismotorcycletoahalt 15 by applying pressure on the ground with his feet. Thesoles of his shoes bore evidence of that. For his part the lorry-driver, on sensing imminent risk of a collision, swerved his car rightwards. away from the direction of the motorcyclist, and proceeded forward in the hope of averting a collision. Any other course, he 20 explained, would have precipitated the collision in view of the short distance that separated his lorry, loaded as it was with h\v tonsofmerchandise,withthemotorcycle.Visibility inthedirection of the motorcyclist was limited by a row of trees on the cornerof ,theroad.Therefore, hehadnoopportunitytonoticethedeceased 25 earlier. Henoticedthemotorcyclist when ashortdistance nf30 ft. separated thetwovehicles. Thushefelt thatifheapplied brakes he would; in all probability, make collision a certainty. The learned trial Judge exonerated the lorry-driver of negligence, holding there was little he could do-to avoid a 30 collision. The course he followed was not only reasonable but possibly the only course that offered some hope of averting the accident. Hetherefore, dismissed theaction. Before debating theground of appeal itis opportunetorecord the circumstances,again uncontested,underwhich the deceased 35 assumed control of the motorcycle: It belonged to a friend who parked itoutside a games club (σφαιριστήριο), with instructions that no one should drive it in his absence. Notwithstanding the injunction the deceased assumed control of it, an inevitable inference from the evidence: soon he realised to his peril that its 443 Pilds J. Cfiristoforou (No.2) v. Asproftas &Another
(1988)brakeswere defective. Because ofhisinabilitytobringthevehicle under control he entered thejunction and collided with a lorryin the circumstances and with theresults earlier explained. The appeal presented undervariousheadings,revolved on the suggested error of the trial Court to find the lorry-driver liable in 5 negligence for failure to take avoiding action reasonably warranted in the circumstances of the case. The lorry-driver should have followed, in the submission of counsel, one of two courses: Either apply brakes -an option open tohim -or increase his speed considerably to get through the junction as quickly as 10 possible -analternative option equallypropitioustothe discharge of hisduty to the motorcyclist. Both submissions overlook the basic fact that when the lorrydriver noticed the motorcyclist on the road - and had no opportunity to sense his presence earlier - only a distance of 30 feet separated thetwovehicles.Theinabilityofthemotorcyclistto bring his vehicle under control made the collision virtually inevitable. As the trial Court observed the application of brakes and any reduction of the speed of the lorry incidental thereto, would have made the collision a certainty; whereas the course followed offered a chance of avoiding the accident.The amenity of the lorry-driver to manoeuvre his car in any other way, was limited by the proximity of the motor-cycle and the absence of a real opportunity to change direction or increase his speed dramatically. Counsel complained that thetrialCourtdidnotpayheed tothe principles adopted or evolved in two decisions of the Supreme Courtcited tohim,namely, Vakanasv. Thomas andAnother* and Adamis and Another v.Eracleous**. Although not specifically cited, the principles espoused in the 30 above cases find expression in the judgment of the trial Court, particularlytheabsence ofadutyon thepartoftheuserofa major road toanticipate, inthe absence of fore-warning, the emergence of a motorist from a side road without stopping and when unsafe so to do; secondly, the pressure under which the driver operates 35 when confronted with an unexpected and unforeseen risk on the road. In those circumstances, as explained in Adamis, supra, he •
(1982)1 C.L.R. 530. "
(1982)1 C.L.R. 746. 444 15 20 25 1 C.L.R. Christoforou (No.2) v.Asproftas &Another Pikis J. does not have the coolness or the breathing space necessary to ponderrivalcourses. Far from agreeing that the trial Court misdirected itself in any way, we are of the view that itsfindings were perfectly warranted 5 bythe evidence, ifnot inevitable, whatever viewone maytakeof the facts. The exoneration of the lorry-driver from liability in negligence and the sequential dismissal of the action against his employers, too, sued as vicariously liable for his acts, make unnecessary examination of any other issue taken on appeal, 10 including the assessment made of the damage to which the appellants would be entitled ifsuccessful. We consider itpertinent. nonetheless,tocommend ononesubmission ofcounselfounded, as it appears to us, on a misconception of the issues that may be legitimately explored incivilproceedings. Counsel submitted that 15 theconduct of the owner ofthemotorcycle inallowinghisbrakes to be defective, should not be divorced from the issue of liability raised in the cause. The obvious answer is that the issues are limited by the pleadings and confined to the parties to the proceedings. Very sensibly we think that the owner of the 20 motorcycle was not joined as defendant. The deceased after all, assumed control of his motorcycle without his consent and contrary tohis instructions. Theappealisdismissed.Beitwithreluctance,weshallnot make an order asto costs. 25 Appeal dismissed. No orderasto costs. 445