clr/1988/1988_1_595.pdf

(1988)per month for five months) — Trial Judge not entitled to award anything for a penod beyond that referred to m the medical reports —Award reduced to £200 Damages —Interest ihneon - The Civil Wrongs Law. Cap 148 section 5oA, as amended by Law 156/85 —Its application is confined to damages formjunes orforcausingdeath —Itdoes not apply todamage to property 5 Respondent 1was nding respondent' s2 motorcycle at Strovolos Avenue, towardsNicosia Therewasheavy traffic inboth directions Appellant, who at the time was dnvmg his motor car, stopped at a 10 side street of the said Avenue, with intention of entenng itand turn nght towards Strovolos A dnver of a car in the queue of cars going towards Nicosia stopped, in order to allow the appellant to enter the Avenue Atthe same time a driver of another car in the queue of carscoming from 15 the direction of Nicosia stopped in order tofacilitate the entry of the appellant totheavenue Asaresultthe twoopposite queues of cars came to astandstill The appellant proceeded slowly toenter the avenue Atthe same time respondent 1was overtaking the queue facing Nicosia from its 20 right side In fact, the motorcyclist was occupying the middle of the road As a result the motorcyclist collided with the appellant The trial Judge, who found that neither party had an opportunity to see the other pnor to the collision apportioned liability 70% on appellant and 30% on respondent 1 25 By reason of the collision respondent 1 sustained the injuries hereinabove desenbed The trial Judge awarded £850 general damages In accordance with the medical reports the penod of the first 3 0 respondent' s temporary incapacity was two months However, in the light ofa letterbyhisemployersthathe wasdismissed from work by reason of his mjunes and evidence coming from the department of social insurance that forapenod of fivemonths (which penod did not include the two months' penod referred to in the medical 3 5 1eports) he wasunemployed, thetnalJudge awarded£500aslossof earnings {C£100 per month) The issues raised by the appeal and cross-appeal are. (a) The apportionment of liability, (b)Thequantum ofthe general damages, (c) The award of £100 to respondent 2 for the damage to his 4 0 motorcycle, (d) The award of £500 for loss of earnings, (e) The 596 1CL.R Petrouv. Socratous award of interest on the amountof thespecial damages as from the date of theaccident. 5 Held,

(1)This Courthas notbeen convinced that, inapportioning the blame,thetrialJudge misapprehendedavital fact bearing onthis matterorthathis assessment was in any way wrong in law.

(2)The amount of £850.- is manifestly excessiye in the circumstancesand itshouldbe reducedto£500. 10 15

(3)The trial Judge was wrong in assessing loss of wages for a period beyong that which was not attributable to any incapacity resulting from theaccident. Thebasisof theaward shouldhave been the period referred toin the medical reports.Therefore, the amount is reduced to£200.

(4)Section58A of Cap. 148,providing for thepaymentofinterest, applies todamages for personal injuries orfor causing deathandnot toany damage to property. Appeal allowed to the above extent. Cross-appealdismissed. Costs of appeal in favour of appellant. No order as to costs for thecross-appeal. «n Casesreferredto: Covotsos Textiles Ltd. v.Serghiou (1981} 1CL.R. 475; Christoforou v.Solomou

(1981)1CL.R. 612; Antoniouv. Serghis

(1979)1CL.R. 169; 25 Kikav. Lazarou

(1979)1CL.R. 670; Christodoulou v.Angeli

(1968)1CL.R. 338; Brown v. Thompson [1968] 1W.L.R. 1003. Appeal and cross-appeal. Appeal and cross-appeal against the judgment of the District 3 0 Court of Nicosia (Laoutas,.S.D.J.) dated the 14th April, 1986 (Action No.5648/82) whereby the defendant was orderedto pay ίο the plaintiffs the sum of £940.- as damages due to a road traffic accident. Chr. Clerides, for the appellant. 35 A. Pandelides with Th.Zervos, for the respondents. Cur. adv. vult. 597 Petrou v. Socratous

(1988)A.LOIZOU P.:The judgment of the Court willbe delivered by L. Sawides, J. If SAWIDES J.: This isan appeal from the judgment of a Judge of the District Court of Nicosia in Civil Action No. 5648/82 for damages arising as a result of aroad-traffic accident. 5 The accident occurred along Strovolos Avenue, Nicosia, as a result of the collision of a motorcycle belonging to respondent 2 and driven by respondent 1and proceeding towardsNicosia and motorcar No. GC 919 which wasdriven by the appellant coming out of a petrol filling station, which was on the left-hand side 10 towards Nicosia, and was entering into the main road to proceed towards Strovolos direction. At the material time there was a heavy traffic coming from both directions and the long queue of cars which was proceeding on the left-hand side of the road stopped as the driver of the car which was heading the queue 15 stopped and signalled to the appellant to come out of the petrol station into the main road and gave him wayforsuch purpose.At the same time cars coming from the opposite direction also stopped to offer an opportunity to the appellant to enter into Strovolos Avenue. Respondent 1who was riding his motorcycle 20 proceeded and overtook the queue of carswhich wason his lefthand side and travellingabout the middle of the road reached the first car which had stopped and collided with appellant' s car which was coming outside of the petrol station. According to a sketch which was produced before the trial Judge the collision 25 took place approximately inthemiddleof theroad, the asphalted part of which was 19 feet wide. The learned trialJudge found that the motorcyclist was driving ata moderatespeedalongtheroadwhichwasbusyatthetime.He started to overtake a queue of stationary cars which was at his 30 nearside and upon reaching theleveloftheexitofthepetrol filling station he collided with the car of the appellant which had emerged between the gap. He found that the appellant emerged ataslowspeed and thatneitherofthedrivershadseeneach other as their visibility was obstructed by the queue of cars and that 35 neither of them had the opportynity or the hine^c take any avoiding action before the collision. On the facts before him the learned trialJudge found that the appellant wasnegligent inthat though hehad adifficult task to do inenteringtheroad neverthelesshehadtobearinmindthatitwas 40 598 1 C.L.R. Petrou v.Socratous Sawides J. dangerous to emerge into a main road at a busy time and he had to be very careful. On the other hand he found the motorcyclist negligentinthatthoughtherewasnothingwronginhisovertaking the long queue of stationary cars neverthless when he was 5 appoachingthefirstcarandcouldseethatthecarswere stationary on both directions he should have put himself on his guard and thusbeabletoseethegapbetweenthecars.Hefound, onthebasis of the above fact combined with the fact thathefailed totake any avoidingaction,somethingheshouldhaveeasilyachieved having 10" regard to the type of vehicle he was riding that the motorcyclist contributed alsoto the accident and apportioned liability of 70% on the motorcar driver (theappellant)and 30% on the cyclist (the respondent). The finding ofthetrialJudge thatthefailure ofthecyclisttotake 15 an avoidingaction wasone of the elements ofhisnegligence isin controversy with his previous finding that «neither of the two drivershadtheopportunity orthetimetotakeanyavoidingaction before thecollisionastheirvisibilitywasobscuredbythe presence of the long tail of vehicles». Notwithstanding however such 20 discrepancy allthe facts are before usaswellasthefindings of the trial Judge on such facts and the evidence before him so as to enable us to consider whether his assessment of contribution of the two driversin the accident was correct or not. Respondent 1 suffered personal injuries as appears from the 25 variousmedical reports which,by consent, were made exhibitsin the case.The first report wasissued bya government doctor who examined respondent 1 onhisadmission tothehospital according to which he presented the following injuries: His ankle was swollen and painful; abrasions were present. No fracture was 30 revealed. Hehad asprain oftheleftanklewhichwasimmobilized byplasterofParisandattended severaltimesasanoutpatient. He had a scar over the anterior aspect left lower leg. Sick leave was granted from 12th December, 1981till 18th February, 1982. The other medical report was that of Dr. Thalis Michaelides 35 issued on 7th April, 1983,after he had examined respondent 1a fewdaysbeforesuchdate.Whatismentionedinsuchreportisthat respondent 1felt numbnessand pain atthe area of thescarwhich would abate with time but the scar, three and a half inches long, would remain permanent. 599 SawfdesJ. Petrou v. Socratous

(1988)The last report was that of Dr. Tornaritis dated 21st March, 1984, who examined respondent1attherequestof theinsurance company. Dr.Tornaritisin his reportmentions the following: «

1. 6 χ2 cmscar ontheleft lower leg, tendertothe touch.
2. Nolimitationof therange of motionof the left anklejoint. 5
3. Nomuscle wasting of the left thigh or calve.
4. Canstand on tip-toeandonthetoes.
5. Squatting is possible.
6. X-rays of the leffankle andfoot showed no abnormality.» and concludedhis reportby givinghisopinionas follows: JO «Thispatientsustainedinjuries inatraffic accidenttwoyears and three months ago. The injuries sustained entailed ε moderateamount of pain,suffering initiallyfor a few days.The injuries resulted inatenderscarof theleft lowerleg;otherwise there is no functional deficit resulting from the injuries 15 sustained.» Respondent 1 in his evidence complained of achingwhen he gets tired.Alsothathe felt numbnessontouchingthescar. The learned trial Judge relying on the medical reports before him found that respondent 1 was not left with any functional 20 incapacity andthatthe only permanentinjury isthescarinrespect of which he toundthatthoughvisiblewas notanugly scar.Onthe basis of his findings he assessed the general damages at £850.Concerning thespecial damages of respondent 1 he did not find satisfactory the evidence of respondent 1 concerninga claim of 25 £30.- for travelling expenses, £10.- for the value of a pair of trousers,£10.-for the valueof hisshoes and £50.-asmedical fees of Dr. Michaelides, which he rejected. Concerningthe loss of his emoluments, the tri.il Judge found that respondent 1 failed to adduce evidence in this respect although the burden was cast 30 upon him. Nevertheless, relyingon the evidencecomingfrom the Social InsuranceDepartment to the effect thatrespondent 1 was unemployed from 10th May, 1982 until 27th October, 1982, which was adducedby the appellant, he found thatthatwas the period of his unemployment as a resultof the accidentwhich on 35 the basis of his earnings as a door attendant (porter) at Manglis buildingat£100.-a monthamountedto £500.600 1 CL.R. Petrouv.Socratous SawidesJ. Respondent 1 produced in fact a letter from the General Engineenng Co Ltd which appeared tobe hisemployers, dated 7th January, 1982 to the effect that as a result of the accident he wasdismissed from hisworkonthe 14thDecember, 19811e two 5 daysafter theoccurrenceof theaccident,beingunableto perform hisduties In respect of the damage to the motorcycle for which respondent 2 wasclaiming£279 250 mils,the learned trial Judge awarded £100 - which according to his findings, based on the 10 evidence of a wimess called by respondent 2, was the market valueof such motorcycle atthe matenal time The appellant as a defendant in the action felt dissatisfied with thejudgment oftheCourtand filedthepresent appeal challenging ooth the apportionment of liability and the award of damages as 15 found by the trial Judge Thegrounds ofappeal which were raisedand argued before us were to the effect that the finding of the Court that the defendant wasguiltyofanynegligence wasnotsupported bythe evidencein the case and that the apportionment of liability was erroneous in 20 fact and in law Also that the award of interest on the amount of damages toproperty from adatepriortothedateofthe judgment was wrong Counsel for the appellant also contested by his appeal the findings of the tnal Court as to the quantum of general damages, 25 the emoluments of respondent 1and the award inrespect of loss of earningsfor a penod of five months. The respondents filed anoticeofcross-appeal eighteen months after the filing of the appeal by which they complain as to the apportionment of negligence and also as to the quantum of 30 damages awarded and argued that both findings of the trial Court were wrong and that respondent 1, on the evidence before the Court, could not have been found guilty of contributory negligence atall or to the extent found by the trial Court and that the amount of damages awarded ismanifestly low 35 The issues which pose for consideration before us are the following (a)The apportionment of liability (b)The quantum of damages 601 Sawides J. Petrou v.Socratous

(1988)(c)The award of interest on the sum of £100 -damage to the motorcycle ' It is well established that the question of apportionment of liability is aprimary matterfor thetrialjudge todecide,and unless there is some error in law or in fact in his judgment his finding 5 ought nottobe disturbed (see,interalia, Covotsos Textiles Ltd ν Serghiou

(1981)1 C LR 475, Chnstoforou ν Solomou

(1981)1 C L R 612, Antoniou ν Sergis

(1979)1 C L R 169, Kika ν L a e a r o u ( 1 9 7 9 ) l C L R 670). In Chnstodoulou ν Angeh

(1968)1 C L R 338 the following 10 was said at ρ 346, after reference was made to the pnnciples enunciated on this matter in Brown ν Thompson [1968] 1 W L R 1003 «Where no error of principle has been shown and no misapprehension of thefacts on thepartof thetrialCourthas 15 been madetoappear on appeal,thisCourtwillbe reluctantto interfere with theapportionmentmadeby thetrial Courteven ifsomewhat differently inclined» We have not been convinced that, in apportioning the blame, the learned tnalJudge misapprehended avital fact bearing onthis 20 matter or thathis assessment was inany way wrong inlaw and we affirm his decision apportioning liability by 30% on the plaintiffs and 70% on the appellant-defendant We come next to consider the second issue which is the quantum of damages Both appellant and respondent

(1)complain as tothequantum of damages assessed by the trial Court As to the damage caused to the motorcycle respondent

(2)has not advanced any sound argument against the assessment of damage tothis motorcycle at £100 - The learned tnaljudge was correct inawarding thesum of 30 £100 - for the damage caused to the motorcycle which was its market value atthe material time As tothe injuries suffered by respondent

(1)we have before us the findings of the teamed tnal Judge which are based on the medical reports produced by consentreference towhich hasbeen 35 made earlier on On the basis of such reports and the evidence of repondent 1 the learned tnalJudge made the following findings 602 25 1 C.L.R. 5 Petrou v. Socratous S a w i d e s J. «From the contents of the medical report I am satisfied that the plaintiff 1 has not any functional (incapacity. The only permanent injury isthescar.TheCourthadan opportunity to look at it.Although visible isnot an ugly scar. Having regard to the medical evidence and the nature of the injuries sustained and having in mind a number of authorities on the subject, I am of the opinion that asum of£850.-would be an adequate and reasonable compensation.» The findings of the learned trial Judge as to the nature and 10 extent of the injuries suffered by respondent

(1)are warranted by the medical reports and the evidence before him and we agree with him inthis respect. Bearing however in mind the nature of the injuries of the plaintiff and inparticularthefact thatthewh'ole'period, according 15 to the medical report -juring which he was on sick leave for treatment was as from 12th December. 1981 till 18th February, 1982, that isa period of just over two months, that he endured a moderate amount of pain initially for a few days and then discomfort due tothepresence ofthe plastertillthe 19th January, 20 1982when itwasremoved,that nofunctional deficit resulted from the injuries sustained and the only permanent injury is the scar overthe anterior aspect ofthe left tower|leg which though tender on touch did not bring about any functional deficit tothe leg and which according to the trial Court «although visible isnot an ugly 25 scar», we have come to the conclusion that the amount of£850.ismanifestly excessive inthecircumstances and that such amount should be reduced to £500.On the question of special damages the learned trial Judge awarded a sum of £500.- for loss of wages. In justifying this 30 amount the learned trialJudge had thisto say: 35 40 «Thisplaintiff produced a letterfrom hisemployers (Exh.3) to the effect that he was dismissed from his job due to incapacity in the performance of hisduty, being theresultof a traffic accident.Theburden ofproof isontheplaintiff on the balance ofprobabilitiestosatisfy theCourt astohisloss.Asto thesmallitemshehasnotconvinced methathehassustained the amounts set inhisStatement of Claim. With regard tothe lossof"earningshe hasnotadduced any satisfactory evidence as to the length of time he wab employed. There is evidence coming from the defendant, 603 SawldesJ. Petrouv.Socratous

(1988)which Iaccept, according towhichtheplaintiff 1wassigning, in the Social Insurance Department, as unemployed from 10.5.82 until 27.10.82.1find asafactthatthiswasthe period of time he was outof work i.e.5 months. Hisemolument has notbeenchallenged,therefore hislossofearningsamountsto 5 £500.-» We shall deal first with the letter (exhibit 3)to the effect that he wasdismissed from hisjobduetoincapacityintheperformance of his duties. The accident in which respondent

(1)was involved occurred as already mentioned, on 12th December, 1981, and 10 according to the contents of such letter he wasdismissed from his job as from the 14th December, 1981. Under the provisions of s.5{a) of the Termination of Employment Law, 1967 (Law 24/67 and its subsequent amendments) temporary incapacity of an employee to perform hisdutiesdue to illness,injury etc.does not 15 entitle the employer toterminate the services of the employee.If respondent

(1)wasaregularemployee andnotacasualworker he could only be dismissed under the provisons of the law. Respondent

(1)never raised any claim against his employers for terminating his employment immediately, without any notice. 20 Furthermore, according to the evidence of Defence Witness 5, respondent

(1)was not entitled tounemployment benefits which isan indication that eitherhe hadnotbeen declared tothe LabouOffice asa regularemployee orthathehadnotworkedassuch fo: the minimum period contemplated by Law. According to his 25 evidence respondent

(1)signed as unemployed once a month a.% from 10th May, 1982 -27th October, 1982 and never attended again after that date up to the end of

1. From the medical evidencetheperiod duringwhichhewasincapabletoworkwasas from 12th December, 1981 till 18th February ,
2. After such 30 period he could resume work. The fact that in the meantime he had been dismissed and was for a certain period out of work was not duetoanyincapacity from theaccident butduetothefact thai there was nojob for him. In the present case the period during which respondent

(1)35 could not work as a result of the accident was the period as from 12.12.81, thedate of the accident, till 18.2.82, the date tillwhich a sick leave certificate was issued to him, that isa period of two months. On the basis of hisemoluments of £100.- the amount of special damages for lossof wagescould notbemore than £200 -. 40 The learned trialJudgewaswrong inassessing lossofwagesfora period beyond that which was not attributable to any incapacity resulting from the accident. 604 1 C.L.R. Petrou v. Socratous S a w i d e s J. We finally come tothe question of award of 6% interest on the amount of £100.- damage to the motorcycle as from the 3rd November, 1982 instead of the 14th April, 1986, the date of the judgment. 5 10 15 20 Provision for the award of interest on damages awarded on a claim for negligence in personal accident cases has been introducedby S.58Aof Law 156/1985amendingtheCivil Wrongs Law Cap. 148. Such section provides as follows: «58A. Τηρουμένων των διατάξεων των εδαφίων

(2)και

(3)τ ο υ άρθρου 33των περίΔικαστηρίωνΝ ό μ ω ν τ ο υ 1960 έως 1985, καθ' οιανδήποτε ενώπιον οιουδήποτε Δικαστηρίου διαδικασίαν δια την είσπραξιν αποζημιώσεων δια σωματικήν βλάβην ή θάνατον συνεπεία αστικού αδικήματος το Δικαστήριον δέον να επιδικάζη, εκτός εάν είναι ικανοποιημένοι ότι συντρέχουν ειδικοί περί του αντιθέτουλόγοι, τόκον με επιτόκιον 6% ετησίως επί ολοκλήρου ή μέρους του π ο σ ο ύ των επιδικασθεισών αποζημιώσεων, δι' ολόκληρον ή μέρος της περιόδου μεταξύ της ημερομηνίας ότε εγεννήθη το αγώγιμον δικαίωμα και της ημερομηνίας εκδόσεως της α π ο φ ά σ ε ω ς ,ως θέλει κρίνει πρέπον». And the translation in English: 25 30 «(Subject to the provisions of sub sections

(2)and

(3)of section 33 of the Courts of Justice Law 1960 to 1985. at any proceedings before any Court for the payment of compensation for bodily injury or death on account of a civil wrong the Court must adjudge, unless satisfied that special reasons to the contrary exist, interest at 6% annually on the whole orpart of theamountof theadjudged damages, for the whole or part of the period between the date on which the cause of action arose andthedateof issueof thejudgment, as itmay deem fit.}» The above provision expressly applies todamages for personal 35 injuries or for causing death and not to any damage to property. Therefore the learned trial Judge though correct in awarding interest at 6% on the amountof damages for personal injuries to respondent ί from a date prior to the judgment was wrong in awarding such interest to respondent 2 for damage to his 40 motorcycle.The appeal therefore inthis lespect succeeds. 605 Sawides J. Petrou v. Socratous

(1988)In the resultthe appeal isallowed and thejudgment of the trial Court isamended accordingly. Costsoftheappeal infavour ofthe appellant. Crossappeal dismissed with no orders astocosts. Appeal allowed. Cross appeal dismissed. 606 5