Court allows negligence claim for road accident but reduces damages due to plaintiff's contributory negligence.

[*1226] 1972 March 10

(STYLIANIDES, AG. P.D.C., CHRYSOSTOMIS, AG, D.J. )

IN THE DISTRICT CO RT OP LIMASSOL

Aristotelis Christoforou,

Plaintiff,

and

The Municipality of Limassol,

Defendants.

(Action No, 668/70).

Breach of statutory duty - Whether person aggrieved has a right of action - Depends on the intention of the legislature - Duty imposed under sanction of penalty - Failure to comply with section 3 of the Vehicles (Lights.) Law, Gap. 336 - No separate remedy to person injured.

Negligence - Town road - Unlighted wheel-barrow left stationary at night - Road dimly lighted - Collision with motor-cycle - Contributory negligence - Plaintiff failing to have adequate look out and travelling at speed preventing him from taking avoiding action - Both parties held to have contributed to accident.

Damages - General damages - Road accident - Forty-five year old waiter sustaining concussion, laceration of occipital region and fracture of six ribs and developing post-concussional syndromes - His ability to earn and his employability not adversely affected - Damages assessed at £500.

Ant. Lemis, for the Plaintiff.

J. Potamitis, for the Defendants.

JUDGEMENT

The judgment of the Court was delivered by:-

STYLIANIDES, AG. P.D.C,s By the present Action [*1227] the Plaintiff claims special and general damages for personal injuries and damage to property sustained as a result of the striking of his motor - cycle on a wheel harrow at night time, in the early hours of -22/12/69.

The Plaintiff is a waiter, aged 45. On the night of 21/12/69 he resumed work at 9.00 p.m. at the cabaret of P.W. 2, Takis Fasolas. Some time after 4.00 a.m. of 23/12/69, while he was riding his mobylette under Regn. No. B.Q 798 in Loukis Akritas Street, he struck on a wheel barrow of the Defendants. He fell on the ground, lost consciousness, sustained injuries and his motor - cycle was damaged.

It is the allegation of the Plaintiff that the Defendants, the Municipal Corporation of Limassol, are liable to compensate him as the accident was caused by the negligence and/or breach of statutory duty and/or nuisance of the Defendants, their servants or agents.

The Defendants denied the claim and contended that the accident and any injuries, loss or damage was caused or contributed by the negligence of the Plaintiff.

The Plaintiff (P.W.3), a Police Officer (P.W.1) and the Plaintiff’s employer, Takis Fasolas (P.W.2) testified for the claim. Evripides Ioannides, the coffee - keeper of PEO (D.W.1), Aristodemos Apostolou (D.W.2) a Municipal employee and Theodosis Elia (D.W.3), the road sweeper, servant of the Defendants, who had the control of the wheel barrow at the time of the impact, gave evidence for the Defence. [*1228]

D.W.3 for the last 17 years has been a street sweeper in the employment of the Defendant Corporation. His duties are to clean a number of streets of this town, he starts work very early, in the hours of darkness, before dawn breaks, in order to complete this task before the daily life of the ordinary inhabitants begins.

The Defendants provided him with a wheel barrow which he keeps under his control. It consists of a metal frame fitted on two tyre wheels. On this frame there are two containers - metal

barrels. It is 4 ft. long, 3-3½ ft. high and 2½-2¾ ft. wide. The tyres are black; the metal frame is blackish and the

containers are grey. They are vividly depicted in the photographs (Exh. 2) produced by P. S. 779 Michalis Panayiotou (P.W.l).

He places the wheel barrow at a point; he sweeps a road making thus 3-4 small piles of dirt; he pushes the wheel barrow and by means of a shovel he puts them in the containers. He leaves the wheel barrow there and proceeds further down to sweep the road. He never places the wheel barrow on the pavement but by the pavement. It would be neither easy nor practicable to place the wheel barrow on the pavement every time he had to leave it stationary. This process was followed continuously over the years.

On 22/12/69 he placed it in Loukis Akritas Street, on the street by the pavenent. He cleaned Loukis Akritas Street and turned round the corner in Michael Heracle Michaelides Street. At that time the Plaintiff struck on the stationary barrow. [*1229]

P.W.1, the Police Officer, produced a plan to scale (Exh. 1) and three photographs (Exh. 2).

The Plaintiff contends that the said wheel harrow was an unlit obstacle on the road and constituted a danger.

It is common ground that the wheel harrow itself had no lights on it. The night was clear but there was no moon.

The Defendant's version is that the place was illuminated by the street lights and the light coming from the coffee shop of PEO (the local branch of the Trade Unions).

Street lighting: -

Loukis Akritas Street is a straight road joining Ay. Zone and Michael Heracle Michaelides Streets. The asphalted part is 19 feet wide. The pavement is by ½ foot higher. The wheel barrow was on the left side of the road in the direction the Plaintiff was riding to. He was keeping his proper side of the road.

At a distance of 70 feet from the point of impact, on the opposite side of Loukis Akritas Street, there was an electric pole with a lamp 40/60 watts. About 10 feet from the junction of Loukis Akritas and Michael Heracle Michaelides Streets, in the latter, there was another electric pole with a small lamp of the sort that bend down. Thereafter this lamp was replaced by a bigger one and of different type. The distance from points C, D on Exhibit 1 (the tyre blackness and scratch found at

the scene) up to Michael Heracle [*1230] Michaelides Street is 112 feet and, therefore, the distance of the aforesaid lamp from the

point of impact is not less than 115-120 feet. An olive tree of almost equal height as the height of the lamp, stands in the yard of the house situate at the corner of the two streets. (This tree appears in exhibit 2, photograph 1).

Liftiit coming from PEO: -

D.W. 1, E. Ioannides, is the coffee shop keeper. At the time of the impact two fluorescent lamps were on in the Hall. The distance from the outer wall to the road is about 50 ft. The fluorescent lamps were by five and ten feet respectively inside the premises. They were hanging ½ foot from the ceiling and had covers. The ceiling is more than 13 feet high. The outer wall consists of pillars and doors. The doors are 7 ft. high. They are in effect wooden frames and glass panes but there are also protective grills about thick.

The Plaintiff stated that it was dark. He only saw the wheel barrow from a distance of one metre.

D.W.3 stated that he noticed the wheel barrow and the Plaintiff lying in the street from the corner of Loukis Akritas and Michael Heracle Michaelides Streets.

D.W.1 and D.W.3 stated that the combination of the lights we have endeavoured to describe in detail illuminated the place. It is significant, however, that D.W.1, the coffee keeper said:- [*1231]

"It is not all clear. It is like a dull light. It is not completely clear. You could distinguish something but you could not make out what it is".

D. W.3f the road sweeper, on the night prior to the day he gave evidence in Court, placed the wheel barrow and a black barrel at the scene of the accident and carried out a test. The result is that he could see the wheel barrow from a distance of two donums.

We disregard this test for the following reasons:-

(a) The night of the test was moonlit; the witness did not even notice the moon. We had occasion to notice the moon and we are entitled to take judicial notice of this fact as we brought this to the knowledge of both Counsel during the hearing.

(b) The light in Michael Heracle Michaelides Street is now much stronger than the one existing at the time of the accident, and

(c) The witness himself placed the articles there and, as he admitted, if a person did not know that they were there, he would see an object irrespective of whether he would realise that it was a barrel or something else.

It is unfortunate that P.W.1,, the Police Officer, arrived at the scene at 8.00 a.m. and could not testify on the issue of the lighting of the place. The Constable who [*1232] arrived first and guarded the scene was not called to give evidence.

We watched carefully the demeanour of

the witnesses. None of them was independent. D.W,1, the coffee shop keeper did not prove himself to be an independent

witness. Both sides gave a version to suit their case.

Having regard to all the evidence before us, we reached the conclusion that the street at the point of the wheel barrow was dimly lit. A careful person could notice some object but not from a great distance. The wheel barrow was not plainly visible.

Lights of the motor-cycle; -

The lights of the motor-cycle were not functioning by a battery but with the motion of the

engine. The Plaintiff gave the range of vision of his lights as one pace. D.W. 2 Aristodemos Apostolou, who owns a Honda

motor-cycle of ½ h.p., stated that the range of vision of his motor-cycle is 35 metres when dipped. Even if we make

allowance for the different make of the two motor-cycles and that this witness’s machine is very slightly - by 2 c.c. - stronger that the Plaintiff's, we are of the view that the Plaintiff is either mistaken or deliberately not telling the truth. Lights which throw a beam of one pace serve no purpose at all.

The lights of the Plaintiff's mobylette were tested by the Police and found in order.

The stopping distance of a motor-cycle travelling at 20 m.p.h. is five metres. The Plaintiff stated that he was riding at 20-25 m.p.h. [*1233]

Our findings are in short:-

(a) The Defendant Corporation issued to D.W.3, a road sweepers, a wheel harrow, to enable him to perform his duties as servant of the Municipality of Limassol. The Defendants' servant placed an obstacle - the wheel barrow - on the left side of the road. This he did within the scope of his employment.

(b) That obstruction had no lights of its own. There was no sign or red lamp or any warning of any sort of the existence of the barrow.

(c) The two street lamps of the town and the lights of PEO coffee shop illuminated dimly that place. The night was clear but there was no moon. The obstacle was not clearly visible from a fair distance.

(d) The Plaintiff, while riding his motor-cycle at 4.25 a.m. - the sunrise on that day was 6.51 a.m. - struck on it.

(e) He was keeping his proper side of a 19 feet wide road but for reasons best known to himself he was not keeping a proper look-out. He noticed it only when at a meter from it.

(f) He was travelling at such a speed (20- 25 m.p.h.) that in the circumstances he was unable to stop his motor-cycle or to swerve from the course he was pursuing in such a way as to avoid colliding with the obstruction. [*1234]

(g) As a result of that collision the Plaintiff's motor-cycle overturned, caused the blackness and the scratches on the asphalt and the Plaintiff himself suffered personal injuries, and the motorcycle was damaged.

We now turn to the legal aspect of the case.

Breach of statutory duty:-

The Plaintiff’s advocate argued that the Defendants were in breach of the provision of Cap. 336 and therefore liable in damages to the Plaintiff.

The short title of that law is "The Vehicles (Lights) Law". It was enacted in 1909. It is a short law comprising four sections.

Section 3 provides: -

"Every person in charge of any vehicle on any road shall carry or exhibit a sufficient light between half an hour after sunset and half an hour before sunrise:

Provided that this section shall not apply to a person leading a bicycle".

"Vehicle" means any carriage, cart, motor car, cycle or other conveyance constructed for conveying persons or goods. (S. 2)”

By S.4 a penalty not exceeding five hundred mils is provided for contravention of this law. [*1235]

In Fatma Hussein & another v. The Estate of the Deceased Chr.vsostomos Christodoulou,

20 (I) C.L.R. p. 23 Hallinan, C.J., said at p. 24:-

"Where damages are claimed for a breach of a statutory duty and no express provision is made in the statute giving an individual the right to sue for damages, difficult questions arise as to whether the legislature intended to confer on the individual a right of action against the person who failed to comply with the law",

In Phillips v. Erittania Hygienic Laundry Co., Ltd., (1923) 93 L,J. K.Bo 5, it was held that it was not intended by the Locomotives on Highways Act„ 1896, that everyone injured through a breach of an order made under the Act should have a right of action for damages, but that the duty imposed by the order was a public duty, only to be enforced by the penalty imposed for a breach of it and not otherwise. The particular clause in issue of the order in question provided for a motor car being in such a condition as not to cause or to be likely to cause danger to any person in the motor car or on any highway.

Atkin, L.J., said;-

"In my opinion, when an Act imposes a duty of commission or omission, the question whether a person aggrieved by a breach of the duty has a right of action, depends on the intention of the [*1236] Act. Was it intended to make the duty one which was owed to the party aggrieved as well as to the State, or was it a public duty only? That depends on the construction of the Act and the circumstances in which it was made and to which it relates. One question to be considered is, does the Act contain reference to a remedy for breach of it? Prima facie if it does that is the only remedy. But that is not conclusive. The intention as disclosed by its scope and wording must still be regarded, and it may still be that, though the statute creates the duty and provides a penalty, the duty is nevertheless owed to individuals".

In Cutler v. Wandsworth Stadium Ltd.

(1964) 1 All E. R. p. 544, Lord Simonds said at p. 547-548:-

"It is, I think, true that it is often a difficult question whether, where a statutory obligation is placed on A., B., who conceives himself to be damnified by A's breach of it, has a right of action against him.

I do not propose to try to formulate any rules by reference to which such a question can infallibly be answered. The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the pre-existing [*1237] law, in which it was enacted. But that there are indications which point with more or less force to the one answer or to the other is clear from authorities which, even where they do not binds will have great weight with the House. For instance, if a statutory duty is prescribed, but no remedy by way of penalty or otherwise for its breach is imposed, It can be assumed that a right of civil action accrues to the person who is damnified by the breach. For if it were not so, the statute would be but a pious aspiration. But, as Lord Tenterden, C.J., said in Doe d. Rochester (Bp.) v. Bridges (1831, 1 Bo & Ad. 859).

Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner’".

"This passage was cited with approval by the Earl of Halsbury L.C. (1898 A.C. 394) in Pasmore v. Oswaldtwistle Urban District Council. But this general rule is subject to exceptions. It may be, though a specific remedy is provided by the Act, yet the person injured has a personal right of action in addition".

Further down he said:- [*1238]

"It was urged that the rule has no application where the statutory remedy was by way of criminal proceedings for a penalty, but I see no ground for this distinction. The implication is, if anything, in the opposite direction. For the sanction of criminal proceedings emphasises that this statutory obligation, like many others which the Act contains, is imposed for the public benefit and that the breach of it is a public, not a private, wrong".

Veale, J., in Reffel v. Surrey County Council (1964) 1, All E.R.p. 743 at p. 746 had this to say:--

"The question of whether a private person has or has not a right of action for the breach of a statutory duty is always a very difficult question... I think that the best approach to this kind of question is that set out in Dr, Charlesworth's book on Negligence. "

"It has been said, No universal rule can be formulated which will answer the question whether in any given case an individual can sue in respect of a breach of statutory duty'. In addition to the general rules set out in the preceding section, however, the most important matters to be taken into consideration appear to be: (a) Is the action brought in respect of harm which the statute was intended to prevent?[*1239]

(b) Is the person bringing the action one of the class which the statute desired to protect? (c) Is the special remedy provided by the statute adequate for the protection of the person injured? If the first two questions are answered in the affirmative and the third in the negative then, in most cases, the individual can sue."

This pronouncement was cited with approval by our Supreme Court in Peristeronopighi Transport Co. Ltd. v. Toumazou,

(1970) 10 J.S.C. p. 914 at p. 924.

In Clark v. Brims

(1947) 1A11 E.R.p. 242 in which the question for decision, inter alia, was whether the plaintiff, who was injured in a collision, could recover damages on the ground that there was a breach by the defendant of his statutory obligations under the Road Transport Lighting Act, 1927, S. 1., to carry, during the hours of darkness, one lamp showing to the rear a red light visible from a reasonable distance, the penalty for breach of which, by way of a fine, was provided by S.10 of the Act, it was held that the imposed duties were public duties only and did not impose duties enforceable by any individuals aggrieved and, consequently, the plaintiff could not found a cause of action against the defendant on the ground of breach of his statutory obligation.

The Vehicles (Lights) Law was passed in 1909. At the time the common law was not part of our law "Breach of statutory duty" was an unknown cause of action in the [*1240] system of law obtaining in this country. Furthermore, this law provides a penalty, A perusal of the law points unequivocably to the creation of a public duty punishable by criminal proceedings. It did not intend to protect or to afford a right to a certain class of persons. The penalty provided by this law is today, 63 years later, inadequate. We consider the intention of the legislator in 1909; it was a severe penalty then. It is upon the legislature to review and amend the law.

We hold the view, without deciding whether the wheel barrow in the instant case is a 'vehicle', that the breach of The Vehicles (Lights) Law, Cap. 336 cannot found an action.

Negligence and Nuisance:-

The Plaintiff claims in the Statement of Claim in negligence and alternatively in nuisance.

In Winfield and Jolowicz on Tort, 1971, 9th Edition, p. 358 under the heading "Unlighted obstacles on the Road", we read:-

"It is only because the factual situation became, common before the development of the law of negligence that it was incorporated into public nuisance. With the emergence of negligence it became for the most part irrelevant which cause of action was adopted by the plaintiff as the burden of proof is the same. This duplication of action has given rise to confusion". [*1241]

In the New Zealand case of Everrit v. Martin (1952) N.Z.L.R. 298 at p. 300, Adam, J., said:-

"It is well established that a duty rests on all users of the highway to exercise due care for the safety of other road users; and, in regard to highway accidents arising out of the user of the highway and giving rise to claims for injury to persons or to chattels, the law of negligence is sufficient, for any liability, which can be legitimately founded on negligence. The breach, by act or omission, of the duty to exercise such care is indeed the foundation of liability".

Cohen, L.J., in Hill Venning v. Beszant (1950) 2 All E.R. p. 1151 at p. 1152 said:-

"We have to be very careful before we take the view that there is no negligence in leaving a stationary obstacle on the road after lightingup time when it is not plainly visible to approaching vehicles without the aid of full headlights and when it could easily be moved off the road",

The presence of unlighted vehicles or obstacles on a highway at night time are a danger. (Per Singleton, L.J., in Henley v. Cameron (1949) 118 L.J.K.B. 989 at 997).

"The presence on a dark road at night of a wholly unlit vehicle (and I speak, of course, [*1242] in circumstances where there is no street lighting) is prima facie evidence of negligence on the part of the person responsible for the vehicle, and that if the matter stopped there, negligence would remain established." (Per Edmund Davies, J., in Parish v. Judd, (1960) 3AH E.R.p. 33).

In the present case the Defendants left an unlit obstacle on the road. The road at the point of the obstacle was dimly lighted. It was not plainly visible by approaching traffic.

We have already stated our findings. The Plaintiff by his own negligence in failing to have any or adequate look-out and/or in travelling at a speed which in the circumstances prevented him from taking avoiding action, struck on the wheel barrow.

The Plaintiff cannot avoid this dilemma. We rejected his allegation that the lights of his motor-cycle showed only one pace ahead. But if there were any difficulties in the way of his seeing, he should have gone slower.

We have given careful and anxious consideration to whether the wheel barrow contributed to the present accident. If any precautions, such as the painting of the frame of the wheel barrow or any part of it with some luminous point, had been taken by the Corporation, the Plaintiff’s attention might have been drawn earlier and probably the Plaintiff would have taken some avoiding action. [*1243]

The Plaintiff is mainly to blame for his own predicament. The amount of contribution is not an easy matter. We have come to the conclusion that the contribution of the Defendant is 20%.

Damages

Special damages

The Plaintiff pleaded £213.250 mils special damages. He proved without dispute £2 for medical certificate, £8.125

mils for damage to his motor-cycle, £5.125 mils medicines, £22 medical fees (exhibit 4) but he pleaded only £15 and we shall allow the lesser amount, £3 travelling expenses (though in his

evidence he stated that he spent £5).

The Plaintiff at the material time was in the employment of P.W.2, Takis Fasolas, He was temporarily incapacitated from 22/12/69-23/2/70 (vide exhibit 3 and Plaintiff's evidence). According to the Plaintiff his earnings amounted to £20-£21 per week or between £2.550 mils

- £3.250 mils per diem. The evidence of P.W.2 is to the effect that the

Plaintiff was earning £3-£3.250 mils daily. The Plaintiff was receiving £1 basic wages plus his share of the 10% service charge.

The Plaintiff and P.W. 2 were exaggerating. We shall allow £150 for loss of earnings. The special damages on a full liability basis proved total £189.250 mils.

General Damages

The Plaintiff was conveyed unconscious from the [*1244] scene of the accident to the Limassol Hospital. He was examined and treated by Dr. Xiros, a surgeon. His findings were included in a medical report dated 17/2/70, produced by consent as exhibit 3.

The Plaintiff sustained: -

(a) Concussion.

(b) Laceration of the occipital region.

(c) Fracture of the 3rd to 8th ribs on the right side.

(Six right ribs were fractured).

He was an in-patient until the 31/1/70. The laceration was stitched. He suffered a lot of pain. On 17/2/70 the chest expansion was slightly diminished. He developed a post-concussional syndrome in the form of dizziness and postural giddiness; dimnesss of vision and easy fatigue.

He was examined by Dr. Mikellides, a neuro-psychiatrist, who instituted appropriate treatment, (Exhibit b, report of Dr. Mikellides, dated 23/2/70).

On 19/1/71 the same neuro-psychiatrist examined the Plaintiff and issued the Report (exhibit 4a). On 19/1/71 the Plaintiff’s only complaint was pain at the lower occipital region (site of the head injury) and cervical stiffness which are pronounced when waking up in the morning.

These symptoms were stated by the Plaintiff in his evidence; he added, however, that he suffered amnesia [*1245] and that even now his memory is impaired. We discard this allegation as it is not borne out by the medical reports of his own doctors. The Plaintiff in Court did not refer to any diminution of his chest expansion and, therefore, we take it that he recovered fully.

Dr. Xiros prepared his report less than two months after the accident.

Soon after his sick leave he resumed work as a waiter at another cabaret. Neither his ability to earn nor his employability have in any way been adversely affected.

We assess the general damages of the Plaintiff at £500.- Adding to this £189.250 mils special damages, we find a total of £689.250 mils.

The above figures are on a full liability basis. We shall award to this Plaintiff only the 20 that he is entitled to.

In the result we give judgment for the Plaintiff for £137.850 mils.

With regard to costs, taking into consideration the responsibility of the Plaintiff, the amount claimed and the amount recovered, we adjudge £35 towards costs.

Judgment and order as to

costs as above.