Court apportioned liability 75% to lorry driver and 25% to shepherd for road accident negligence.

[*8] 1976 June 4

(PIKIS, AG.P.D.C.)

IN THE DISTRICT COURT OF LARNACA

Christodoulos Constantinou and Others,

Plaintiffs,

v.

Costas G. Prepi,

Defendant.

(Action No. 965/75).

Negligence - Road accident - Animals

- Duty of persons leading animals across a road - And duty of drivers to guard against injury being caused to animals on the road - Lorry running over animals (sheep) whilst they were crossing the road - Ample opportunity for lorry driver to take appropriate precautions to avoid the accident - Guilty of negligence - Shepherd guilty of contributory negligence through his failure to keep a closer watch and control over the animals while they were crossing the road.

A. Mathicolonis, for the Plaintiffs.

A. Andreou, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

PIKIS, Ag.P.D.C.: On 13th January 1975, a [*9] lorry loaded with pyrites, driven by the defendant, ran over a number of ewes and one lamb, the property of the plaintiffs at a point on the main Nicosia/Limassol road between the 34th and 35th milestone. As a result two ewes and a lamb were killed instantly and three other ewes badly injured. The plaintiffs, in an effort to mitigate their damage, sold two of the injured ewes on the spot for £10. The third was taken to the veterinary surgeon the following day but all in vain; three days later they had to slaughter the animal. This did not help because the animal had suffered crashing injuries and its meat was inedible and was thrown away.

The accident occurred shortly after noon on a fine day. A Police Constable serving in a nearby station was detailed to investigate the accident and arrived at the scene shortly after its occurrence. P.C. Sofroniou (D.W.1) surveyed the scene and prepared a plan produced with the consent of both parties. The point of impact, the resulting position of the lorry of the defendant as well as a side road from which the animals had emerged on the main road are marked on the plan. The accident occurred at a point three to four feet from the left edge of the tarmac, as one proceeds in the direction of Limassol, at a distance of approximately 20 feet from the right edge of the side road and some 40 feet from the centre of it. It is manifest from the resulting position of the lorry, 30 feet long, that it was brought to a standstill soon after the collision. [*10]

The parties advanced conflicting versions as to the circumstances under which the accident happened and the extent of the damage suffered by the plaintiffs. Reference will be made below to these versions and the evidence adduced in support thereof. We shall begin our analysis with examination of the question of liability.

1 . Liability

A. The Version of the Plaintiffs

In the contention of the plaintiffs their flock, number about one hundred sheep, were led along the rural road, sketched on the plan, with the ultimate purpose of driving the animals to Tohni. When they reached the main road the animals were herded in a small area on the berm of the road for the purpose of preparing their crossing and safe passage to the other side of the street. It is the evidence of the shepherd of the plaintiffs, their servant, Mr. Pavlos HadjiSotiris (P.W.5) that aided by his thirteen year old son they collected the animals on the berm of the road. Then having done so he examined from a point on the berm the state of traffic on the road and having noticed, as he said, that no vehicles were coming from either direction he went, with his son, behind the sheep-fold and started banging a tin bucket in order to urge the animals to cross to the opposite side of the road. This witness maintained that from the position he occupied on the side road behind the flock he had the same visibility to his right as the one enjoyed while standing on the berm, extending to between three to four donums. [*11]

The story of the shepherd is supported in practically every respect by the evidence of the rural constable, Mr. Takis Spyrou (P.W.4) who happened to witness the accident, having arrived at the scene on horseback shortly before it happened. This witness testified that he was on the berm when the animals began crossing the main road, at a time when there were no vehicles coming from either direction. When the bulk of the animals had crossed to the other side of the road, some seventy of them, the lorry of the defendant, carrying a load of metals, emerged from the right and knocked into the animals that were then crossing the road, killing and injuring six or seven of them. Mr. Spyrou maintained that his visibility to the right, that is in the direction from which the defendant’s vehicle emerged, extends to about 360 feet. He qualified a statement made on oath on a previous occasion before another Court to the effect that visibility to his right extended to only 120 feet.

If the evidence of Mr. Spyrou is accepted a fair inference therefrom is that the animals started crossing the road before defendant rounded a bend to the right and the presence of his car on the road became noticeable from the position of the rural constable. If this is accepted it indicates failure on the part of the defendant to slow down or stop or in any event take appropriate preventive action, having ample opportunity to do so, to avoid running into the animals; conduct, betraying failure on his part to drive with the requisite [*12] care and exercise the appropriate control over his vehicle rendering him liable in negligence.

B. The Version of the Defendant

It is the contention of the defendant, contrary to the testimony of plaintiffs’ witnesses, that a small number of animals dashed suddenly on the road from the side rural road when a distance of approximately 20 feet separated him from the animals, leaving him little opportunity to avoid the accident. In the face of this emergency he applied brakes and managed to bring his vehicle to a standstill, a short distance beyond the point of impact. The investigating officer found no traces of brake marks at the scene of the accident, a fact that casts doubts on the allegation of the defendant that brakes were applied. It is also relevant to note, in this respect, the evidence of Mr. Sotiris Michael (P.W.2), one of the plaintiffs’ witnesses, who alleged that on arrival at the scene of the accident the defendant, in response to his reprimand for failure to take preventive action, attributed his inability to do so to the fact that he carried a heavy load at the time.

The case for the defendant is that he is free from blame for the accident and that the accident was solely due to the failure of plaintiffs’ servants to control the animals in their charge. Alternatively they allege contributory negligence consisting of failure on the part of their servants to lead the flock across the main road with the care that the hazards of the operation required. [*13]

The investigating officer made a test as to the visibility obtaining at the scene of the accident and measured the visibility obtaining from the point of impact towards the direction from where defendant emerged. In his evidence visibility extends to 250 feet. He added, however, that visibility is longer in relation to events happening further to the right of the point of impact, that is towards the opposite side of the road from where the animals started crossing the road. In the testimony of this constable a person moving along the main road has no visibility towards the side road on account of the difference in the level of the two roads and the presence of a number of trees. In this he is supported by the evidence of Mr. Christodoulos Constantinou (P.W. 1) who, unlike Mr. Sotiris Michael and Pavlos Georghiou Evangelides, testified that a person standing on the side road can gain no visibility on the main road.

C. Liability in Law of persons leading animals across a Road - Duty of Drivers to guard against injury being caused to animals on the road or near the road.

Learned counsel for the defendant, in his final address, made reference to the duties of a person leading animals along or across the highway. A person having control of animals leading them along or across the highway must take reasonable care that the animals cause no damage to other users of the highway or to property adjoining the highway. (See Charlesworth On Negligence, 5th edition, paragraph 846). The duty of a person having charge of [*14] animals and driving them along the highway to take reasonable steps and avoid injuries to his neighbour and their liability in negligence, if they fail to do so, has been recognized a long time ago by Lord Atkin, the Judge mostly responsible for formulating the contemporary rule for liability in negligence. (See Fardon v. Harcourt - Rivington (1932) 48 T.L.R. 215 - see also Clerk & Lindsell On Torts, 14th edition, paragraph 1560). When liability depends on negligence responsibility for negligence may be ascribed both to the person guilty of the acts making up negligence as well as to his master where circumstances exist justifying a finding of vicarious liability.

In Charlesworth On Negligence (supra) reference is made to the obligations cast in England by the Highway Code on the driver of a vehicle to take appropriate precautions for the safety of animals on or near the road and the corresponding duties prescribed by the same Code of a person leading animals across the highway. The discharge of these duties is a question of fact.

The presence of sheep on or near the street should, in the first place, put a driver on his guard in order to afford himself the ease necessary to cope with the vicissitudes of the situation, knowing that animals have no sense of the road. He must therefore at all times endeavour to keep at some distance from the animals and where animals cross the road he must stop in order to make feasible their passage therethrough. Also he must refrain from engaging in any act that may cause a stampede of the animals. On the other hand a person leading the animals must take steps [*15] to keep the animals off the road unless it is safe to allow them to pass; therefore he must ensure that the road is free of traffic or that traffic is at such a distance that drivers can reasonably be expected to heed the presence of the animals and take appropriate precautions to avoid collision.

When it comes to crossing a busy thoroughfare such as the main Limassol/Nicosia road, which accommodates a heavy flow of traffic, particular care must be taken not only in ensuring that it is safe to start leading animals across the street but one must remain on his guard until the animals are safely through to the other side of the road so as to be in a position to cope with any eventuality that may reasonably arise on the road in the meantime. In such a case one or more persons may assume the task of warning drivers of the presence of animals or of hurrying the sheep across the street.

D. Findings

I have given careful consideration to the evidence and had occasion to see the witnesses testify before me. The version of the defendant and in particular his allegation that the sheep suddenly dashed before him emerging from the side road is, to an extent, contradicted by the location of the point of impact, some 20 feet from the edge of the side road and 40 feet from the centre of the side road to its junction with the main Limassol-Nicosia road. This is suggestive of the fact that the animals had covered a short distance on the main road before the collision and therefore defendant ought to have seen them earlier than he suggested. [*16]

I accept the evidence of the police constable who investigated the accident as to the range of visibility towards the point of impact and from the point of impact towards Nicosia. I was extremely well impressed by the evidence of the rural constable who, on the whole, gave, in my judgment, an accurate account of the circumstances of the accident. I find as a fact that the accident occurred at a time when a number of animals had already crossed the road and when many sheep were still in the street. In all, seven animals were killed or injured, a fact indicating in itself the presence of a good number of animals on the road. The traces of sheep-skin and blood on the right rear wheel of the lorry also tends to suggest that there were animals at several parts of the road. Of course it would have been wiser and a more prudent thing to do for the shepherd to keep with the aid of his young son and assistant a closer watch and control over the sheep while the animals were crossing the road. One of them should have stepped forward and be in the street urging the animals with vigilance to cross without delay and be, if necessary, in a position to signal oncoming traffic to slow down or stop. On the other hand, the defendant had ample opportunity to take, had he been driving with a proper look out and had he exercised proper control over the vehicle, appropriate precautions to avoid the accident. He failed to take any. As the rural constable observed, he sensed no reduction in the speed of the vehicle driven by the defendant. It is possible, though I am not required to make a finding on this and I make none, that defendant, on account of the heavy load that he carried, as he stated to one of the [*17] plaintiffs, felt it unwise to take avoiding action that he should have taken in the circumstances.

I find the defendant guilty of negligence and answerable in damages. Also I ascribe some liability to the plaintiffs for failure, through the acts of their servant, the shepherd, to take sufficient precautions for the safety of their sheepfold, that is their property. As indicated above, their shepherd should have been more alert to the possibility of traffic emerging on the road after the animals had begun crossing the road. In ascribing liability regard must be had to the blameworthiness of the acts of the parties and their causative potency. In the end, apportioning liability is a matter of fact and degree and impression on examination of the totality of the circumstances of the case. Liability is apportioned between the parties as follows: Plaintiffs 25 per cent; defendant 75 per cent.

2. Damages

In accordance with the testimony of the plaintiffs the value of each ewe that was destroyed in the accident was between £30 to £35 and that of the lamb £15. To the same effect is the evidence of their shepherd Pavlos HadjiSotiris. It is their evidence that the ewes killed were with young, a factor that enhanced their value. I find as a fact that two ewes and a lamb were killed instantly whereas three other ewes were, in consequence of the accident, badly injured. The plaintiffs acted reasonably in seeking to dispose of two of the three injured ewes on the spot and there is nothing to suggest that the price received was, [*18] in any sense, low. In this way they mitigated their damage. Despite efforts to save the third injured ewe it was all in vain and it proved to be a total loss for the owners on account of the injuries received.

It is the case for the defendants that the ewes were not as valuable as the plaintiffs suggested. Mr. Paraskevas Kizis, a witness for the defence, testified that at the material time the value of each ewe in the open market was £15 or less and that of a lamb between £7 to £8. As he stated he spoke of the value of ewes of Cyprus breed and his evidence was of no direct relevance to the value of ewes of a cross breed which was the case with the animals of the plaintiffs as they testified. I cannot, however, overlook the evidence of the plaintiffs to the effect that they had purchased the ewes a few months earlier, in October 1974, for £15 each. Though the animals had been purchased from Turks who planned to leave their village and move elsewhere in Cyprus on account of the events of 1974, the animals were sold, as Mr. Sotiris Michael testified, in open market conditions since the Turks of Tohni had the option of moving with them their animals had they so chosen. The value at which the animals had been purchased is indicative of the value of ewes a few months before the material date.

In my judgment the plaintiffs rather exaggerated the value of their ewes. Having carefully considered the evidence in its totality my finding is that five ewes and a lamb perished as a result of the accident; each ewe was [*19] with young. I find that each ewe was worth £20 and the lamb was worth £10. In all, I estimate the loss of the plaintiffs at £110. After deduction of the amount of £10 received by the plaintiffs in their effort to mitigate damage, the net loss of the plaintiffs amounts to £100.

In the result, judgment is given for the plaintiffs for £75, with costs to he assessed by the Registrar on the scale of claims between £50 and £100.

Judgment and order for costs

as above.