(1989)1988April21 (A LOI20UΡ ,DEMETR1ADES, STYUANIDES,JJ) MELETIOSROUSSOU, Appellant-Defendant, ν CHRISTOSARISTODEMOU, Respondent-Plaintiff (CivilAppeal No 6818) Appeal — Findings of fact — Interference with,on appeal — Pnnciples applicable — Court does not interfere,unlessthe reasoning behind them is unsatisfactoryor theyarenot wan-antedby the evidence — But it will interfere with conclusions from pnmary facts, if such conclusions could not be reasonablydrawn 5 Neghgence/Contnbutory negligence — Road collision— The test is objective — A motonst placed in agonizing position has to take a step, which areasonable carefuldnver would fairly be expected to takeinthecircumstances — Curveslimitingvisibilityofboth dnvers, who were coming from opposite directions — Respondent, keeping \0 on proper side of the road,faced with appellant, coming on the wrong side of the road— Respondent turned left and applied brakes,but a collision wasnot avoided —Finding that respondent wasnot guilty of contnbutory negligence upheld Thefactsofthiscase,aswellasthepnnciplesappliedbytheCourt, 15 in dismissing the appeal, sufficiently appear in the hereinabove headnote Appeal dismissed with costs Casesreferred to Mamasν TheFirm *Arma> Tyres
(1966)1CLR 158; Nearchou ν Papaefstathiou
(1970)1CLR 109, Vamakides ν PapamichaelandAnother
(1970)1CL.R 367; 12 20 1C.L.R. Roussouv.Aristodemou S.S. Hontestroom v. S.S. Sagaporack, S.S. Hontestroom v, S.S. DurhamCastle[1927]A.C.37; Charalambousv.Police
(1982)2 C.L.R. 134; Haloumiasv. ThePolice
(1970)2 C.L.R. 154; 5 Charalambousv.Pillakouris
(1976)1C.L.R. 198; loannou andAnother v.Michaelides
(1966)1C.L.R. 235. Appeal. Appeal by defendant against thejudgment of the District Court of Nicosia (Ioannides, D.J.) dated the 10th September, 1984 10 (ActionNo.6220/83) wherebyhe wasfound solelytoblamefora road traffic accident. A. Pandelides, forthe appellant. P.Angelides, for the respondent. A.LOIZOUP.:TheJudgment of the Court willbe delivered by 15 Mr.Justice Stylianides. STYLIANIDES J.: This is an appeal from the Judgment of a Judge of the District Court of Nicosia, whereby the appellant defendant in the Court below - was found solely to blame for a road accident that occurred on the4th September, 1982,atKato 20 Deftera andinwhichmotorcar, RegistrationNo.JL144,drivenby the appellant and motor car/Registration No. GT590, driven by the respondent, were involved. The appellant sustained bodily injuries and hiscarwas damaged. The trialJudge, having found thatthe appellant wasentirely to 25 blame for the accident, ordered and adjudged him to pay to the respondent £991.- damages to his car. The counterclaim of the appellant for damages for personal injuries and material damage tohiscarwasdismissed. Furthermore, thetrialJudge, following a commendable practice of first instance Courts, assessed the 30 damages of the appellant. The two drivers and the accident investigator - P.C. Charalambous -testified on the issueof liability. The accident occurred inthebuiltup area ofthevillageof Kato Deftera on the main road leading to Nicosia. The two cars were 35 driven in opposite directions.There are curvesinboth directions 13 StylianidesJ. Roussouv. Aristodemou
(1989)and thereby thevisibilityofthedriverswaslimited: 100metresof theappellant and 60-70 metresof the respondent. Twosharplyconflictingversionsweregivenbythetwodrivers. Theversion of the respondent wasthathe waskeeping his left side of the road. When on a slight bend he noticed appellant's 5 oncoming car running uncontrolled on itswrongsideofthe road. He pulled more to his left and applied brakes. Hiscar came to a standstill.Theoncomingcarswervedtoitsleft,itsleftwheelhitthe pavement. It reversed, turned and with its right rear side hit the frontrightof respondent's carand then mounted itsleft pavement 10 id with its rear knocked the railings of an abutting yard and -topped facing thedirection itwascoming from. The appellant, on the other hand, claimed that he was driving onhisproper side and respondent onthemiddleoftheroad. The front part of respondent's carhitthe rear wheel of hiscar. Due to 15 thecollision,helostcontrol ofthe carand hecouldnot remember whathappened afterwards. The Police investigator, who visited the scene shortly after the impact,took measurements and prepared a plan inthe presence ofthe respondent, but intheabsence of theappellant, whointhe 20 meantime had been removed from the scene. He gave very helpful evidencetotheCourtabout thecondition andwidthofthe road, the brake marks caused by the respondent's car, the resultant position of the cars, the damage to them and his other findings atthe scene. The two drivers indjcated different points of impact, each one indicatedapointtotallywithhisversion,markedXI andX3onthe plan. XI, pointed out bythe respondent, isatthe end ofthe right brake mark caused by his car on his left moiety of the road.X3, shown bytheappellant, isonhisside,threefeetfrom thecentreof 30 the20 feet wide road. Inallotherrespectstheplan constitutescommon ground inthis case. The learned trial Judge in a reserved and careful Judgment analyzed and evaluated the oral evidence in the light of the real 35 evidence before him. He accepted the version of the respondent and rejected that of the appellant. He accepted that the point of impactwasXI,wherethePoliceConstablefound scatteredpieces 14 25 1C.L.R. Roussou v.Aristodemou Stylianides j . of glass of the broken front right light of the respondent's car, whereas nothing was found at or near point X3, shown by the appellant to be the point of impact. The trial Judge found the appellant guiltyof negligence. 5 Havingconsidered thequestionofcontributorynegligence,the Judge exonerated the respondent from any responsibility, as he took avoiding action by pulling more to his left and applying brakes, as, in the circumstances, a prudent careful driver would do. 10 TheappellantbythisappealcontendedthatthetrialCourterred in finding that the point of impact was XI and not X3; that the impacttookplaceontheappellant'swrongsideoftheroad.Itwas argued that,even onthefindingsofthetrialCourt,the respondent wastoasubstantial degreeresponsiblefortheaccident,duetothe 15 fact that he did not pullto his extreme left and didnotsound the horn. Themaincomplaintofcounsel onbehalf oftheappellantisthat the findings of the trial Judge were wrong, so far as the pointof impactandthemode ofoccurrenceoftheaccidentare concerned 20 and invited thisCourt tointerfere with thesaid findings. The findings of the trialCourt willnot be disturbed on appeal, unless the appellant satisfies thisCourt that the reasoning behind such findings is unsatisfactory, or that they are not warranted by the evidence considered as a whole. This Court interferes very 25 reluctantly with thefindingsof fact and incases where itisonly a matter of justice and judicial obligations so to do. It will only interfere with conclusions drawn from primary facts if the conclusions cannot reasonably be drawn from the primary facts {SofoclisMamas v. The Firm *ARMA» Tyres
(1966)1C.L.R. 158; 30 Marikkou Nearchou v. MariaDemetri Papaefstathiou
(1970)1 C.L.R. 109; VamavasG. Vamakidesv. ChristosPapamichaeland Another
(1970)1 C.L.R. 367; S. S. Hontestroom v. S.S. Sagaporack, S.S. Hontestroom v,S.S. DurhamCastle[1927]A.C. 37, atp.47; Charalambous v.Police
(1982)2 C.L.R. 134). 35 Incollision casesthe Court, when confronted, asinthe present case, with the oral evidence of the parties, in weighing and evaluating such evidence should test it with the real evidence, which in these cases in more credible than that given by the personswhohaveaninterestintheoutcomeofthetrial.(See,inter 15 StylianidesJ. Roussouv.Aristodemou
(1989)alia, Georghios Prokopiou Haloumias v. The Police
(1970)2 C.L.R.154;Demos Charalambousv.CostakisPillakouris(197'6)1 C.L.R. 198). Thereal evidence wasinsharpconflict with theevidenceofthe appellant, both as to the point of impact and the mode of the 5 collision. The pieces of broken glass, found by the policeman at point XI,the brake marksofthe respondent's car,the damage to the cars, support the finding that XI was actually the point of impact. Havinggiven due weightto allthat hasbeen ablysubmitted by 10 counsel, in the light of allthe material before the Court, we are unabletodisagreewiththeconclusionsofthetrialCourtaboutthe actualpoint of impactandastohowthisaccident took place. With regard to the plea that the respondent contributed to the accident, we find no reason to interfere with theJudgment of the 15 trial Court. The duty of a driver isto act as a reasonable prudent driverwould do inthe particularcircumstances of each case.The testisobjective. Amotoristplaced inan agonizing position has to take a step which a reasonable careful driver would fairly be expected to take in the circumstances. (Christakisloannou and 20 Another v. Hvos Michaelides
(1966)1 C.L.R. 235; Kyriacos Antoniou v.Iordanishrdanous andAnother
(1976)1 C.L.R.341). The respondent was keeping hisproperside of theroad; faced withan oncoming caron itswrong side ofthe road,steered more tohisleft and simultaneously applied brakes.Inourviewhetook 25 reasonable, inthe circumstances, avoiding action. The appellant complains, also, about the assessment of his damages claimed by counterclaim. In view of the fact that his negligence is the sole cause of the accident, itisunnecessary to considerthisground of appeal. Fortheforegoing reasons,thisappeal failsandisdismissedwith costs. Appeal dismissed with costs. 16 30