clr/1988/1988_1_791.pdf

(1)The question when a breach of statutory duty confers on a member of the public a right to claim damages in a civil action has been expounded in Coot and Another v. Stone [197111 All E.R. 657. 791 ,ή Flourentzou,v.Christodoulou

(2)Inthe light of the language used in the regulation forbidding parking along double yellow lines the conclusion is that the Regulationsdonotconfer onamemberofthepublicanghttoclaim damages inacivil action

(3)Theactionof theappellantdoes notconstitutenegligence on herpart 5

(4)There will be no Bullock orderas tocosts because itwas not reasonable for theplaintiff-respondent 2tosuetheappellant Appealallowedwithcosts 10 Casesreferredto Katsiou ν Shakalhs

(1969)1 CLR 346, Despohsν Tsenotou

(1969)1CLR 261, Brown andAnother ν Thompson [1968] 2All Ε R 708, Uddm ν AssociatedPortland CementManufacturers Ltd [1965]2 AI1ER 213, 15 CootandAnotherν Stone[1971]1 All ΕR 657, Kythreotis ν Constantmou

(1984)1 CLR 811 Appeal. Appeal by defendant 2 against the judgment of the District Court of Nicosia(Demetnou,Ag Ρ DC) datedthe28th February, 20 1986 (Action No 2987/81) whereby the sum of £5,600 -general and special damages for injunes suffered in a traffic accident was awarded to the plaintiff. A Dikigoropoulos, for the appellant A Hadjioannou, for the respondent2 25 Respondent 1 appeared in person Cur adv vult STYLIANIDESJ TheJudgment of the Courtwillbe delivered by Mr.Justice Kourris. KOURRIS J This is an appeal by the appellant-defendant 2 30 from the Judgment of the Distnct Court of Nicosia in case No 2987/81 whereby respondent2-plaintiff was awarded the sum of £5,600 general and special damages for injunes she sufferred ina 792 1 C.L.R. Flourentzou v. Christodoulou Kourris J. traffic accident. The appeal isdirected against the apportionment of liability made by the trial Court whereby the trial Judge has apportioned liability 70% against respondent-defendant 1 and 30% against appellant-defendant 2. 5 Theapproach ofthisCourttoappealsagainstapportionmentof responsibility iswell-settled.The Court willnot interfere withsuch apportionment madebytrialCourts,save inexceptional cases,as wherethereissomeerrorinprincipleortheapportionmentisclearly erroneous; and an appellate court will not readily substitute its 10 own discretion for that of the trial Court. Some of the cases are Katsiou v. Shakallis

(1969)1 C.L.R. 346; Despotis v. Tseriotou,

(1969)1C.L.R. 261;Brown andAnotherv. Thompson, [1968]2 AllE.R. 708;Uddinv.Associated PortlandCement Manufacturers Ltd. [1965]2AllE.R. 213 atp.218. 15 The findings of the learned trial Judge are not in dispute and counsel for theappellant contended.that on the factsasfound by the trialJudge the appellant should not have been found to have contributed at alltothe accident in question. The appellant, on 9.4.1981, parked her car No. FK595 along 20 GrivasDhigenisAvenue, Engomi,outsidetheLedraHotel.Atthat stretch of the road, there were two yellow lines which isa traffic sign prohibiting the parking of cars.Theappellant parked her car in breach of the traffic regulations. The respondents 1 who was driving motor car No. JE 570 and carrying respondent 2 as a 25 passenger, ranintotheparked caratitsrearoffside part,asaresult of which both cars sustained damage and the respondent 2 suffered injuries. Theaccident happened atabout3.00 inthe afternoon in broad daylight, with bright weather on a straight stretch of the road with 30 a line of vision of about 500 meters. The width of the road at the scene of the accident is 40 ft. and it is divided by a continuous white line,thus,leavinga width of20 feet for each direction. The version of respondent 1was that whilst driving along the roadanothercarovertook himandgotinfront ofhim,andthen he 35 sawtheparkedcaroftheappellantatadistanceof 10-15 feet and hecould notavoidthecollision.The.trialJudge alsofound thatthe appellant parked her car for about 2 minutesbefore the collision and that the respondent 1wasdriving atabout 30 m.p.h. Counsel for the appellant suggested that on the evidence the 793 KourrisJ. Flourenizouv.Christodonlou <1988) appellant was not negligent at all and the breach of the traffic regulations on her part did notgivea civilrighttothe respondent 2 tobringan action against her, The question when a breach of a statutory duty confers on a member of the public arighttoclaimdamagesinacivilaction has 5 been admirably expounded in the case of Coot and Another v. Stone [1971] 1AllE.R. 657.Thiscase was adopted by our Court in the case of Kythreotis v. Constantinou

(1984)1C.L.R. 811.It was held inthat casethatthe general rulewasthatwhere a statute ora regulation imposed apublicdutyand provided aremedy, e.g. 10 a fine orotherpenalty inrespectofabreach ofthatduty,itdid not confer on a member ofthepublicarighttoanalternative remedy, e.g a rightto claim damages ina civilaction, unlessthe language and purpose of the relevant statutory provision was such as to bring it within an exception to the general rule, such as where it 15 was enacted for the protection of a particular class of persons. Davis, L.J. in his Judgment at p. 661, referred to the case of Phillips v. BrittaniaHygenic Laundry Co. Ltd., where LordAtkin put the test asfollows:«Thequestion iswhethertheseregulations, viewed in the circumstances in which they were made and to 20 which they relate, were intended to impose a duty which is a publicdutyonlyorwhethertheywereintended,inadditiontothe public duty, to impose a duty enforceable by an individual aggrieved. We are of the view, bearing in mind the language used in the 25 regulation forbidding parking along the double yellow lines that the Regulations do no confer ona member ofthe publicarightto claim damages ina civilaction. We now propose to deal with the question whether there was common law negligence on thepart of the appellant. 30 Counsel for respondent 2 contended that the appellant was negligentinthatshe parked hercaralongadoubleyellowline,in a road frequented by heavy traffic, and that she did not heed the traffic atall,but she wastalkingtosome person. We do not think that the contention of learned counsel for the 35 respondent 2 givesriseto negligence onthepart of the appellant. Neither do we uphold the opinion of the learned trialJudge that she wasnegligent because shefailed toparkhercarinthe parking place ofthe Ledra Hotel and thatshespoke toa person who was 794 1 C.L.R. Flourentzou v. Christodoulou Kourris J. coming from the yard of the hotel. The appellant had her car parked for 2 minutes before the collision. The respondent 1was driving hiscar at about 30 m.p.h. in broad daylight on a straight stretch of the road with a line of vision of about 500 meters and 5 with a space of about 14feet topass.The fact that he ran intothe back of the parked car obviously shows that he failed to have a proper lookout and that he issolely toblame for this accident. Inthe circumstances, we are of the view that on the findings of fact of the trial Court, the apportionment isclearly erroneous: we 10 hold theviewthatrespondent 1-defendant 1 issolelytoblame for thisaccident.The appeal isallowed, and theJudgment ofth«• trial Court isset aside. There will be Judgment for the respondent 2 plaintiff for £5,600 against respondent 1- defendant 1only. 15 With regard tocosts, we are oftheviewthatthe respondent 1 defendant 1should.pay the costs of respondent 2 -.plaintiff here and,in the Court below. We do not propose to apply the wellknown Bullock order in the present .case because it was not reasonable for the respondent 2 - plaintiff to sue both 20 defendants, as looking at all the facts which the plaintiff knew. beingapassengerinrespondent's 1-defendant's 1carwhenthe writ was issued she has a choice to sue either of the defendants. Consequently, the respondent 2 -plaintiff willpaythe costsof the appellant -defendant 2 here and inthe Court below. 25 Appeal allowed. 795