Supreme Court dismisses appeal against general damages award for traffic accident injury, upholding trial court's finding on earning capacity reduction.

[*1173] 1966 November 25

(TRIANTAFYLLIDES, STAVRINIDES, JJ. ,HADJIANASTASSIOU , AG. J.)

APPELLATE JURISDICTION

Kyriakos Costi,

Appellant-Defendant,

v.

Katerina Christoforou,

Respondent-Plaintiff,

(Civil Appeal No.4582).

Civil Wrongs - Road Traffic - Road Accident - General Damages - Appeal against the award of general damages for injuries received in a traffic accident - Finding of trial Court regarding the quantum of the diminution of the earning capacity of Respondent - Reasonable and properly open to trial Court on the totality of the material before it to find as it did.

Damages - Road Traffic - Road Accident - General Damages - Appeal against award of general damages by trial Court - Reasonably open to trial Court to reach the conclusion it did.

Findings of fact - Road Traffic - Road Accident - Finding of trial Court regarding the quantum of the diminution of the earning capacity of Respondent - Upheld by Court of Appeal.

Damages - Road Traffic - Road Accident - General Damages - Assessment - Cross appeal that amount of damages awarded to Respondent inadequate - No proper ground requiring Court of Appeal to disturb award - Principle reiterated in Constantinou v. Hji Ioannou, 1965 5 J.S.C.620,applied.

X, Syllouris, for the Appellant.

I. Mavronicolas, for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by:-

TRIANTAFYLLIDES, J. : In this appeal the appellant-defendant complains against the award of general damages, of £1,000, made in favour of the respondent-plaintiff, in respect of injuries received in a traffic accident. [*1174]

The parties having reached agreement regarding the apportionment of liability and the amount of special damages, it was then left to the trial Court to assess the amount of general damages.

The appellant has contended that the finding of the trial Court to the effect that the respondent's earning capacity had been diminished by one third, as a result of her injuries is erroneous and against the weight of evidence; and particularly against the weight of medical opinion which was common ground between the parties, and which reads as follows (at page 12 of the record):-

"The patient having had a crushing injury on the first metatarsal, there is no doubt that she now has a post-traumatic arthritis of the joint above and the joint below the fracture. As a result of this there will be pain in walking, but mostly the pain will be felt after exertion. Taking into consideration her job (i.e. washerwoman) which entails prolonged standing, she will be somewhat inhibited and she will be in a position to carry out her job with a certain amount of pain and discomfort. In our opinion the pain and discomfort are of a permanent nature. She must have had a certain amount of pain and suffering during the treatment and the two operations. To-day's examination revealed no swelling of the injured part". (That examination was on the 21st April, 1966).

We are of the opinion that the trial Court had to quantify the diminution of the earning capacity of the [*1175] respondent, on the basis of all the material before it including, of course, the medical opinion, and also any other evidence, such as the evidence of respondent herself.

We take the view that on the totality of the material before the Court it was reasonable and properly open to the trial Court to find as it did, regarding the quantum of the diminution of the earning capacity of the respondent. Even if any member of this Court might have held a slightly different view regarding such quantum, it is not for this Court to substitute its own evaluation of the relevant material, once we are of the opinion that it was reasonably open to the trial Court to reach the conclusion which it did reach, on the evidence before it.

For these reasons the appeal fails.

There is, next, a cross-appeal by respondent who contends that the amount of damages awarded to her is inadequate, mainly on the ground that the trial Court has failed to take into account the earnings she has lost during the period between the filing of the statement of claim and the date of the trial.

The trial Court has stated in its Judgment that, in assessing general damages, it had in mind "all the circumstances of this case and especially the pain, suffering and inconvenience of the plaintiff, both past and future and her diminished earning capacity".

We see no reason to accept that when the trial Court was taking into account both past and future pain, suffering and inconvenience, it did not likewise, address its mind to the totality of the question of the diminished [*1176] earning capacity of respondent, including any loss of earnings which could not fairly be said to be covered by the agreement regarding special damages which had been reached between the parties. We, therefore, find that the trial Court has not misdirected itself in any way in this respect.

Bearing, further, in mind the correct principle regarding the approach on appeal to awards of general damages, as such principle has been reiterated recently in cases such as Constantinides v. HjiIoannou, (1966 5 J.S.C. p.620), and the cases referred to therein, we do find that there exists no proper ground requiring this Court to disturb the award of general damages made by the trial Court in this Case.

In the circumstances the cross-appeal fails also.

The appeal and cross-appeal are hereby, dismissed with no order as to costs.

Section 1.01 Order in terms.

Section 1.02