Court of Appeal allowed appeal, increasing damages and re-apportioning negligence liability in a road traffic accident case.

[*124] 1966 February 4

(VASSILIADES, MUNIR, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Photios Ioannou,

Appellant-Plaintiff,

v.

John Vincent Peterson Howard,

Respondent-Defendant.

(Civil Appeal No.4540).

Civil Wrongs - Road traffic - Road accident - Motor vehicle colliding with a pedestrian - Injury of pedestrian - Negligence - Contributory negligence

- Apportionment of degree of negligence between parties by trial Court on balance and on findings of fact - Re-apportionment by Court of Appeal.

Negligence - See under "Civil Wrongs" above.

Damages - Road traffic - Road accident - Injury to pedestrian - Assessment of damages - Re-assessment of damages on appeal- Principles on which Court of Appeal will disturb the finding of a trial Court as to amount of damages.

Chr. Demetriades, for the Appellant.

Char. D. Ioannides, for the Respondent.

JUDGMENT

VASSILIADES, J.: I shall ask Mr. Justice Munir to deliver the first judgment.

MUNIR, J.: This is an appeal from a judgment of the District Court of Limassol (sitting as a Full Court) dated the 4th August, 1965, in Action No.802/63, whereby it was found that the plaintiff, a pedestrian, who was injured when the M.G. 8 horse-power motor-vehicle No.A.V.672 driven by the defendant along the Limassol-Akrotiri main road collided

[*125] with him on the morning of the 6th March, 1963, was negligent but that the defendant had contributed to the negligence

of the plaintiff. The District Court, in apportioning the degree of negligence between the plaintiff and the defendant, held that the plaintiff had contributed 80% to the negligence and that the defendant had contributed 20%. On the basis of this apportionment of the negligence the District Court gave judgment in favour of the plaintiff for the sum of £462.400 (plus legal interest at 4% p.a.). The said sum awarded being 20% of the damages, which were assessed on a full liability basis, by the trial Court to be £2,312. Of this total amount of damages, the sura of £512 (i.e. £312 for loss of earnings for twelve months at £6 per week, together with medical fees of £150 and transport expenses of £50) were assessed as special damages and the sum of £1,800 as general damages.

By his notice of appeal dated the 14th September, 1965, the Appellant-plaintiff appeals against the whole of the judgment of the District Court on the following grounds:-

"(a) That the judgment of the Court was erroneous in law, and/or infact, being against the weight of evidence and/or against the only positive evidence as to how the collision occurred, which evidence stands uncontradicted.

(b) The Court below erred in law in considering the point of impact and the presence of any other vehicles on the road, of secondary importance.

(c) The Court below was wrong in finding that the defendant was only 20% to blame for the collision having regard to all the circumstances of the accident. [*126]

(d) The Court below erred in awarding to the plaintiff the sum of £2,312 on full liability, special and general damages, having regard to the seriousness of the injury, pain and suffering and the resulting incapacity, as well as the length of medical treatment and damage suffered by the plaintiff".

At the hearing of the appeal counsel for appellant confined his arguments, and quite rightly so in our view, to the questions of -

(1) the apportionment of the degree of negligence between the plaintiff and the defendant; and

(2) the assessment of the quantum of damages; on the assumption that the findings of fact made by the trial Court had been properly made and that such findings of fact would not be disturbed.

We propose dealing first with the question of the apportionment of negligence between the plaintiff and the defendant. The trial Court, in making the apportionment of negligence in the manner in which it did, took into consideration the following four specific findings of fact which it had made (at p.46, letters A-D, of the appeal record):-

(1) "that the plaintiff darted to cross the road without having a proper look out";

(2) "that no other vehicle was at the time of the accident on the road";

(3) "that the point of impact was the point indicated to Sgt. Pastellas by the defendant which is on the berm at a distance of two feet away from the edge of the asphalt"; [*127]

(4) "that the defendant at no time sounded his horn".

It was after taking into consideration the above four factors and having regard to "the time and place at which this accident occurred", that the trial Court found that the defendant had contributed to the negligence of the plaintiff to the extent of 20%.

Counsel for appellant-plaintiff argued that the trial Court had erred, even on the facts as found by it, in finding that the respondent-defendant had only contributed 20% of the negligence and counsel for respondent-defendant was heard in reply.

We consider that it might be convenient, in examining this question of the apportionment of the degree of negligence, to set out the findings of fact relating to the negligence of the appellant-plaintiff (the pedestrian) and the respondentdefendant (the driver), respectively.

The determining facts relating to the negligence of the appellant, on the evidence, as found by the trial Court, may be itemised as follows:-

(a) the appellant-plaintiff darted to cross a main road without having a proper look out;

(b) the fact that the appellant-plaintiff always crossed that part of the road at about the same time every morning and his knowledge of the traffic on that road at that time should have put him on his guard as regards the dangers of crossing such a main road without a proper look out;

(c) the rest of the group of about ten labourers, of which the appellant was a member, had all successfully crossed the road at about that time. [*128]

As to the determining facts relating to the respondent-defendant's share of the negligence and the part which he played in the accident, again on the facts as found by the trial Court, these may be itemised as follows:-

(i) there was no other vehicle on the road at the time of the accident;

(ii) the point of impact was on the berm of the road at a distance of two feet away from the edge of the asphalt on the left-hand side of the vehicle, that is, the pedestrian (appellant) had crossed more than 24½ ft. of the road before he was knocked down by the respondent;

(iii) the main road in question was a straight asphalt road, the asphalt of which alone was 22½ feet wide;

(iv) there was nothing to obstruct the visibility of the respondent-defendant as he was travelling along the part of road at which the accident occurred;

(v) as stated in the evidence of Stg. Savvas Pastellas (p.9 of the appeal record) there was a "slow-down" sign as indicated at point 'B' on the sketch-plan Exhibit 1, which was about 195 feet from the spot where the accident occurred. Sgt. Pastellas explained that although the area in question was not in a "speed limit" area the "slow-down" sign was placed there "because the parking place is there with entrances and exits" (p.9 letter G). The parking place is as indicated on the sketch-plan Exhibit 1, on the opposite side of the road from point 'B' at point 'C';

(vi) the main road, just beyond the place of the accident, comes to an end with the main gate to the entrance of the Guard-Room, Akrotiri; [*129]

(vii) the respondent-defendant worked at Akrotiri and he travelled along that road every morning and passed the "slow-down" sign and the main gate at the end of the road every morning;

(viii) on the morning of the accident the respondent-defendant, according to his own evidence (vide p.32 of the record, at letters 'E' to 'F') was two or three minutes late in arriving at his work due to heavy traffic which he had encountered on his way.

After carefully weighing the factors relating to the respective parts which the appellant and respondent had played in the accident and to the extent to which each of them was negligent, and in view particularly of the existence of the "slow-down" sign at point 'B' on Exhibit 1, to which we consider the trial Court did not give the weight which it deserved, we have come to the conclusion, that, on balance and on the findings of fact made by the trial Court, the apportionment of the degree of negligence between the appellant-plaintiff and the respondent-defendant should be that they each contributed 50% to the negligence which caused the accident.

On the question of the quantum of damages, we should point out at the outset that an appellate court will not lightly interfere with the discretion of a trial court in the assessment of damages unless such assessment is found to be so manifestly excessive or so manifestly inadequate as to justify the making of a re-assessment of damages on appeal. In view, however, of the following factors, namely, that the appellant-plaintiff -

(a) is a young man of 32 years of age; [*130]

(b) was in the Nicosia General Hospital for two months for a bone-grafting operation and subsequently for another period of a month;

(c) had to have his injured leg in plaster for about 17 months;

(d) was still using crutches at the hearing of the action, some twenty months after the accident;

(e) has diminished earning capacity;

(f) has suffered a considerable loss of amenities;

(g) has been prevented from working for a period of more than one year;

(h) was a labourer and would not now be able to do heavy manual work in the future; - and having regard to all the circumstances of the case, we are of the opinion that the general damages of £1,800 which have been assessed by the trial Court on a full liability basis are manifestly inadequate. In the circumstances, we consider that we should increase the amount of general damages by 50% which we accordingly do, and we award on a full liability basis the sum of £2,700 instead of £1,800 awarded by the trial Court. In all, therefore, the damages on full liability basis, together with the £512 special damages awarded by the trial Court, brings the total assessment of damages to £3,212.

In the result the judgment awarded by the District Court in favour of the appellant-plaintiff for the sum of £462.400 mils should, in our opinion, be set aside and there be substituted therefore, judgment in favour of the appellant-plaintiff for the sum of £1,606, plus legal interest at 4% from today, with costs. [*131]

VASSILIADES, J.: This appeal was argued on two issues:

1. the apportionment of the negligence which caused the accident; and

2. the amount of the damages awarded by the trial Court.

The first turns mainly on facts; and must he decided on the principles lastly re-stated in Patsalides v. Afsharian (1965) 5 J.S.C., 488. The second is a mixed issue of fact and law.

The findings of the trial Court regarding negligence are shortly these:-

The pedestrian (appellant-plaintiff) alighting from a labourers' transport, hastened across the road, following a group of fellow-workmen, to get into a side road leading to their place of work. When about a couple of feet outside the asphalted part of the road he had just crossed, (exhibit 1 and p.46 C of the record) the pedestrian was knocked down by the nearside mudguard of an 8 h.p. M.G. car driven by the respondent, who was arriving just a little late for his work, inside the Guard Room Gate of Akrotiri cantonment, some 35 yards from the point of impact. At the time, there was no other vehicle on the road, which ending at the Gate, and next to a parking place,had a slow-down sign some 65 yards before reaching the side-road in question.

Accepting the version of the driver, the District Court found that he swerved to his near side to avoid the pedestrian who had "darted" suddenly in his path, without taking a proper look out before crossing the road. In those circumstances, the trial Court found also contributory [*132] negligence in the driver who, they say "ought to be more careful;" and apportioned liability for the consequence of the collision, at 80% on the part of the pedestrian and 20% on that of the driver.

Counsel for the appellant-pedestrian attacked these findings, relying on undisputed facts to which, apparently, the trial Court did not give sufficient importance. The fact, for instance, that the driver had a clear view on a straight asphalt road, ending at a gate, next to a parking place, where a labourers' bus had just arrived; that a group of men who had apparently alighted from the bus, were actually crossing the road; that the slow-down sign should have given the driver ample warning, had he paid due attention to it; that he had been delayed on the road in getting to his work; that the collision was obviously violent; and that it had taken place after the pedestrian had actually crossed the road. A point which the trial Court considered "of secondary importance" (p.46.B.).

As pointed out, the apportionment of liability where there is negligence on both sides, is a question of fact, primarily within the functions of the trial Court. But it is generally a matter of inference from the surrounding material facts, from which the Court of Appeal are in as good a position as the trial court, to draw their own inference as to the apportionment of negligence. And in the circumstances of this case, as found by the trial Court or as they stand undisputed on the record, we unanimously take the view that the negligence which caused this accident rests, more or less, equally, on the two sides. And that liability must, therefore, be apportioned accordingly. [*133]

As to the assessment of the general damages in this case, I have very little to add to what has been said by my brother Mr. Justice Munir regarding the injuries sustained by the appellant; and their undisputed consequences to him. I only wish to refer to Ward v. James (1965) 2 W.L.R., 455, where Lord Denning, M.R., with the support of a full Court of Appeal, dealt in a masterly judgment, if I may say so with great respect, with, inter alia, the matters affecting the assessment of damages in cases of personal injury.

Under the heading of "Lessons of Recent Cases", at p.470, the Master of the Rolls is reported to have said:-

"I would add this. The assessment of damages is almost as difficult as the sentencing of offenders. In each it is important that similar decisions should be given in similar cases. Some measure of uniformity is achieved in criminal cases by leaving the sentence always to the judge, with an appeal to the Court of Criminal Appeal. We can hardly put damages on a like footing. But cannot we do more than at present, to secure some measure of uniformity?"

The accepted test warranting intervention by the Court of Appeal in the assessment made by the trial court, is whether it is, in the circumstances, "a wholly erroneous estimate of the damage suffered". That means, the assessment is too high or too low. Here for the very serious injuries described in the judgment of the District Court (pages 46-48) and referred to in that of Mr. Justice Munir, we are unanimously of the opinion that £1,800 is far too low a figure to compensate the loss sustained by the appellant. We think it should be at least 50% higher, viz. £2,700. [*134]

In a recent case of serious limb injuries to a young girl the trial Court awarded £4,000, And on appeal against that award, this Court declined to intervene. (Tessi Christodoulou v. Nicos Savva Menicou, Civil Appeal 4531 decided on 27.1.66).* In delivering the Judgment of the Court, Mr. Justice Josephides put the matter in these words:-

"Having given the matter our best consideration we are not convinced either that the court acted upon some wrong principle of law, or that the amount awarded was so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled".

The loss resulting from personal injuries, especially that resulting from incapacity to work same as before the accident, must naturally change with the times. What may have been considered as sufficient compensation ten or fifteen years ago in certain conditions, may be very inadequate under similar conditions today. Most of the relevant factors change with the times, and compensation, inevitably affected by such changes, must follow step.

I would allow this appeal and vary the judgment of the trial Court on both the apportionment of liability and the assessment of damages, as indicated in the judgment of Mr. Justice Munir.

JOSEPHIDES, J.: I have had the advantage of reading both judgments, with which I am in full agreement, and I have nothing to add. * Published in (1966) 1 J.S.C. , at p.94.

VASSILIADES, J.: In the result the appeal is allowed and the

judgment of the District Court varied to one of £1,606.- with 4% interest from today. And costs on the appropriate scale, both

in the District Court and in the appeal.

Appeal allowed with

costs here and in the

Court below.

Judgment of District

Court varied accordingly.