clr/1989/1989_1_387.pdf

(1989)Markantonisv.Demakis (Action No. 7749/84) whereby his claim for damages for negligence against the defendant was dismissed on the ground thathe wassolelyresponsible forthe collision. C.Melas, forthe appellant. C.Demetriades, for the respondent. 5 Cur.adv. vult. SAWIDESJ.: Thejudgment ofthe Courtshallbedelivered by MrJustice Boyadjis. BOYADJISJ.: This appeal isdirected against thejudgment of the trial Court whereby the appellant's claim for damages for 10 negligence againsttherespondent,defendant intheaction below, was dismissed on the ground that he (the appellant), was solely responsibleforthecollisionresultingtohisinjuries.The sub-judice decision is being challenged on the ground that, on the facts as found by it, the trial Court drew the wrong inferences regarding 15 the issue of liabilityfor the collision. The quantum of special and general damages claimed by the appellant, plaintiff in the action, was byagreement of the parties fixed at £8,795 on a full liability basis.The trial proceeded solely on the issue of liability. The collision between the appellant's 20 autocycleandtherespondent'scaroccurredduringthenightof 13 December 1983 in Limassol within Paphos Street by itsjunction withAnagennisis Street.Asitisusuallythecase,each drivercame forward with hisown versionastohowand whythecollision had occurred.Theappellant'sversion wasthat,though hewashimself 25 guilty of contributory negligence, the respondent was also to blame in that he failed to react in time by taking proper avoiding action when he had or ought to have realised that the appellant wouldnothave stopped, asheshould havedone,before entering intothemainroadalongwhichtherespondentwastravelling.The 30 version of the respondent was that he had realised that the appellant wouldnotstopbefore enteringintothemainroadwhen the latter was on the imaginary line marking the entrance into Paphos Street, and he had then reacted byflashing hislights and by applying his brakes immediately thereafter and also by 35 swervingslightlyto thisright. The trialCourtaccepted theversion of theappellant and made detailed findings regarding the circumstances of this collision. These findings areaccepted byappellant's counsel ascorrect.Itis 388 1 C.L.R. Markantoimv.Demakis RoyadjisJ. pertinent toquote verbatim these findigns. Atpages50 and 51of therecord the trialCourt stated the following: «InthelightoftheevidenceasIhaveaccepted it,1makethe following findings of fact: 5

(1)At the material time the Defendant was driving his motor-caralongthemainroadataspeed of20-25m.p.h.and the Plaintiff wasdrivinghisautocycle alongthesideroadata very slow speed. Both drivers were approaching the road junction. 10

(2)Atadistanceofabout60ft.priortothejunction towards east,therewasastationarycarontheleft handsideoftheroad towardsthe direction that the Defendant was following. 15 20 25 30 35

(3)Because of the stationary car, the Defendant was not driving on his extreme left, but atadistance of 10ft. 6 inches awayfrom theedgeof theroad tohisleft.Thiscanbe inferred fromhisevidenceandthelineofhisbrakemarksontheroad.

(4)The said stationary car did not obscure the visibility of eitherdriver.TheDefendant could freely seethePlaintiff from a distanceapproaching thejunction.Thatdistancemusthave been well over 60 ft., bearing in mind the thinking distance and the fact that the brakemarks of the motor-car started ata point60 ft.prior tothejunction.

(5)The Defendant did not apply hisbrakes when he first saw the Plaintiff along the side road. He first saw him at a distance of about20 -30ft.priortothejunction The Plaintiff wasproceeding ataveryslowspeed and on approaching the junction, he reduced speed as if he was going to stop at the road junction. He then proceeded on and entered the main road. When the Defendant realised that the Plaintiff failed to stop,heusedhisflasher twiceandheimmediatelyapplied his brakesand swervedveryslightlytohisright.Thelastfindingis not onlybased on the evidence ofthe Defendant b"t also on the real evidence, i.e. the direction that the brakemarks followed on the road.

(6)The Plaintiff having failed to stop at the road junction, entered the main road diagonally and proceeded on to his right hand side at a slow speed, without taking any avoiding action. 389 BoyadjisJ. Markantonisv.Demakis

(7)The head-on collision occurred at point «X- of Exh. 1 whichwasatapoint 14ft.awayfrom theleftedgeofthemain road towards the direction that the Defendant was following and 26 ft. away from the right edge ofthe side road, towards the direction thatthe Plaintiff wasfollowing. 5

(8)TheDefendant infacthadalmostsucceededtoavoidthe collision as his car came to a standstill one foot after the impact.» The trialCourtreferred expresslyto allegation ofthe appellant that the respondent could and should have taken his avoiding 10 action at an earlier stage and answered itwith the following very clearfinding atp.52 ofthe record: «...Onthecontrary,asIhavealreadyfound, the Defendant flashed his lights to warn the Plaintiff and he immediately applied hisbrakes,thuslosingnotimetotakeavoiding action 15 when the emergency wascreated bythe Plaintiff». After referring to the several authorities* establishing that a motoristtravellingalongthemainroadneednotanticipate,unless hehassomeforewarning ofsuch aneventuality,thatanother user oftheroad willemerge on themainroadfromasideroad without 20 firststoppingand makingcertain thatitissafesotodo,the learned trialJudge formulated his final conclusion inthe following words at p.53 and 54 ofthe record: «In the light of the evidence, as Ihave accepted it, of my findings and with the above considerations in mind, Ihave 25 considered the conduct of both parties and Ihave arrived at theconclusion thatthe Plaintiff hasfailed toprove negligence or contributory negligence against the Defendant. Although the Plaintiff saw the oncoming vehicle of the Defendant approaching thejunction, nevertheless he emerged onto the 30 mainroad withoutfirststoppingandmakingcertainthatitwas safe forhimtodoso.He failed totakeanyavoidingaction and unfortunately he isthe author of hispredicament». One would have thought thatafter the above clearfinding and conclusion in the judgment of the trial Court there was nothing 35 elsethatcould usefully besaid bytheCourt.Yet,ourattention has * Vamakidesv.PapaMichaelandAnother

(1970)1 C.LR.367,Panayiotouv.Mavrou

(1970)1C.L R. 215, andKarikatouv. Sotenou. Sotenouv.Apseros,

(1979)1 C.L.R. 150. 390 1C.L.R. Markantonis>.Demakls BoyadjisJ. been drawn to a statement which the trial Court made immediately after its last aforementioned final conclusion, upon which learned counsel for the appellant relies in support of his submission that the trial Court should have inferred that the 5 respondent was also negligent in that his avoiding action was taken very belatedly. The trial Court had added the following statement immediately after itsconclusion setout hereinabove: 10 15 20 25 «The fact that the Defendant said thathe formed the view, that the Plaintiff did not intent tostop before emerging, does not, in my view, entitle the Plaintiff to a finding that the Defendant was guilty of negligence or contributory negligence asargued bylearned Counsel forthe Plaintiff. TakingintoconsiderationtheevidenceasIhaveacceptedit and my findings, I am unable to accept that there was a reasonably apparent possibility of danger emerging, as the Plaintiff was driving along the side road at a veryslow speed and even ifthe Defendant assumed thathe was nottostopat the junction, there was no real justification, in his mind, that the Plaintiff was inevitably bound to be negligent. Had the Plaintiff been travelling at a high speed, things would have been different. Furthermore, the test concerns the mind of a reasonable man and not of the driver involved. In the circumstances of thiscase and even ifthe Defendant thought that the Plaintiff did not intend tostop,the Defendant cannot beheldliablefornottakinganyprecautionsatanearlierstage than he did. He had no dutytodoso,because hewas wrong with hisassumption asin fact and intruth he wasnot justified to make such an assumption. What the Defendant did was sufficient toexonerate himfromliability». 30 Relyingonthelastaforementioned extractfrom thejudgmentof the trial Court, learned counsel for the appellant put forward a twofold argument. First, he submitted that itemerges therefrom (a)thattherespondenthadadmittedinthewitnessboxthathehad formed the impression that the appellant would not stop before 35 emerging into the main road, when he (the appellant) was about 30 ft. away from the junction, inside Anagennisis Street; (b) that the trial Court had accepted this admission as true; and (c) that, having considered the admitted fact that the respondent flashed thelightsandapplied thebrakesofhiscarwhen theappellantwas 40 ontheimaginarylinemarkingtheentranceintothemainroad,the only inference to be drawn was that the respondent was late in 391 SoyadjisJ. Markantonisv. Demakis

(1989)taking his avoiding action since he had remained totally inactive during the wholeperiod oftimewhichtooktheappellant to cover the distance of 30 ft. and reach the junction. Secondly, counsel submitted that, once on his own admission the respondent had formed the impression from the appellant's behaviour on the 5 road, that the latter would notstopbefore entering the main road and such impression was formed by the respondent whilst the appellant wasstill30 ft. away from thejunction, there isno room fortheapplication oftheobjective testsuggested bythetrialCourt which had wrongly ignored the admitted actual impression 10 formed bythe respondent onthe assumption that the respondent waswrong informing such an impression. Counsel for the respondent answered the arguments put forward bytheappellantbysayingthatthepassage reliedupon by the appellant is not part of the operative judgment, it does not 15 contain any findings different from those referred to earlier and that there is no evidence whatsoever emanating from the respondent or from any other source justifying the appellant's allegation that the respondent had realised that the appellant would notstopbefore enteringthemainroad,atanystagepriorto 20 the moment when he had actually seen the appellant proceeding beyond the imaginary line marking the entrance into the main road along which he was driving. Our first remarkon the matter now under consideration isthat we do not uphold the statement of the trial Judge that, in case 25 where thedriverinvolved inacollisionrelatestotheCourtatwhat stage he had formed a certain impression from the behaviour of the other driver, from which statement it can be inferred that he could have taken avoiding action earlier than that which he had actually taken, he cannot be relieved from liability on the ground 30 that«thetestconcernsthemindofareasonablemanandnotofthe driver involved» and that he must have formed a wrong impression. Be that as it may, the use by the Court of the words «evenif»twiceintheaforesaid passagesuggeststhattheCourtwas dealing, obviously ex abudanti cantela with the unsubstantiated 3F version or theory put forward by the appellant, which the Court had earlier rejected. We might add in this respect that learned counsel for the appellant was unable to point out to us from the record of the evidence of the respondent the latter's alleged admission that he had formed the impression that the appellant 40 wouldnotstopwhenthelatterwas30ft.insideAnagennisisStreet. 392 1C.L.R. Markantonis v.Demakis BoyadjisJ. Finally,itispertinenttoadd that learned counsel forthe appellant hasconceded that the respondent cannot be held responsible for the collision if he had formed the impression that the appellant would not stop only when the latter was crossing the imaginary 5 line marking the entrance from Anagennisis Street into Paphos Street. The factual substratum of thesubmission of the appellant remained unsubstantiated. The respondent has never made the admission suggested bythe appellant. Inthe circumstances, weaffirm the conclusion ofthe trialCourt 10 that the appellant wasthe only person toblame for the collision resultingtohisinjuries. The appeal isdismissed withcosts. Appeal dismissedwithcosts. 393