Court holds Republic liable for negligence in failing to warn of invisible minefield on public road.

[*56] 1978 October 5

(DEMETRIADES, P.D.C. AND NIKITAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Kypros Michaelides,

Plaintiff,

v.

The Attorney-General of the Republic,

Defendant.

(Action No. 5954/74).

Negligence - Mine-field - Injuries to plaintiff due to explosion of anti-tank mine - Construction of mine-field by defendants on earthen road abutting a highway - Mines not visible and no steps taken to indicate their existence - Easily foreseeable that someone might drive along the earthen road - Defendants should have guarded against the possibility of accident by taking measures to avert the risk of accident - In breach of their duty of care to plaintiff - Liable to him in negligence.

Damages - General damages - Personal injuries - Eye, ear and face injuries - Slight bilateral loss of hearing, slight photophobia and moderate disfigurement - Award of £1600.

N. Zomenis, for the Plaintiff.

C. Kypridemos, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by: -

NIKITAS, D.J.: The plaintiff brings [*57] this action against the Republic through the Attorney- General claiming damages for negligence. On December 9, 1974, round about 10.30 p.m., the plaintiff was injured when his car entered a mine-field and came into contact with an anti-tank mine that exploded wrecking his car and causing him injuries. The plaintiff's passenger, a certain Vassos Stylianou, was killed instantly.

Particulars of the alleged negligence are pleaded in para. 3 of the statement of claim. In substance it is alleged that the Republic laid mines on a road which was used or reasonably expected to be used by the public or members of the National Guard and failed to shut off the said road or give any warning of the danger.

The defendant denies negligence and pleads, inter alia, that plaintiff, being a soldier, knew or ought to have known of the existence of the mine field and that he abandoned his post without permission from his superiors.

The mine-field in question was constructed by the National Guard for the defence of the country and it lies on the left side of the main Larnaca-Nicosia road, as one travels in the direction of Nicosia.

There existed two other mine-fields in the area adjacent to the main road. The evidence establishes that these mine-fields, unlike the first, were fenced and had notices warning people of the danger.

The defendant accepts that at all times the plaintiff was serving in the National Guard. In actual fact, he was the Sergeant-in-Charge of a firing post [*58] known as "Phylakion ton Mandron". It was situated on the main Nicosia-Larnaca road between Koshi and Athienou. Enemy positions are to the north-east, less than a mile from the firing posts. The plaintiff had been serving in the area for approximately three months, but was transferred to the guard-post in question only ten days prior to the accident.

Early in the evening of the 9th December, the plaintiff had left his firing post in the company of Vassos Stylianou, a fellow soldier, on the latter's motor-bicycle, which was kept at the firing post. According to the plaintiff they had set out for Lymbia, four or five miles away, where he intended to buy sugar, coffee and other provisions for himself and his men. As there were orders against keeping cars at the guard post, he used to park his own car in the vicinity of the firing post, about one mile away. The arrangement with Stylianou was that they should go to the place where the car was parked and from there continue their trip to Lymbia by car. About 11/2 hours elapsed before they reached Lymbia because, as plaint iff stated in evidence, on their way to the motor-car the rear tyre of the motor-bicycle was punctured and so they had to push it all the way to the car.

The plaintiff further stated that at Lymbia he had a meal with his companion at a coffee-shop and bought some sugar and coffee, being unable to get any other supplies because the shops had closed down by the time they arrived at the village. After spending 1½ hours [*59] at Lymbia they set off for their guard-post.

The accident giving rise to the present claim occurred about 1 km. from the firing post when the plaintiff attempted to run over a hare which happened to cross his path. The plaintiff's account of the way the accident happened, stands uncontradicted and may be summarised as follows:-

Having failed to hit the hare while on the main road, he pursued it into a dirt road. He missed again and the hare disappeared into the darkness. The plaintiff had already travelled the length of his car into the dirt road and had to re-enter the main road but could not do so owing to the condition of the dirt road. The plaintiff had stated earlier in his evidence that it had been drizzling from the time they had left for Lymbia and as a result the dirt road was muddy. After his companion refused to alight and help push the car back into the main road, he proceeded further on the earthen road for finding a more suitable place to turn back. After driving for about 40 meters along the dirt road he tried to make a 'U' turn. It is appropriate here to quote his own words: "I drove for about 40 meters, I stopped and engaged the reverse, and I turned, coming backwards into the adjoining field. The rear wheels entered the field. The front wheels were on the dirt road. I then engaged gear, moving off forward and when I travelled about four or five meters from the point where I turned, everything went dark At first, I thought that my engine exploded; without realising it, I was thrown out of the car". [*60]

The plaintiff denied in cross-examination that he had gone to Lymbia without permission asserting that he was authorised by the area commanding officer to visit nearby villages from time to time for the purpose of buying supplies for his guard-post.

There is evidence by Adamos Adamou the only witness of the defence who was, at the material time, a corporal serving at plaintiff's guard-post, that breakfast was not provided and soldiers had to make their own arrangements. Adamou told the Court that soldiers used to go to Lymbia for supplies secretly without obtaining permission from their superiors. Further plaintiff was cross-examined at some length about a statement he made to the military authorities after the accident admitting a trip to Nicosia on the date in question. Plaintiff denied going to Nicosia adding that he had no recollection of what he said in his statement. It is to be noted that the statement was not put in to contradict him. In this state of evidence we incline to accept the plaintiff’s evidence and we find that plaintiff's journey to Lymbia was not unauthorised.

The explosion was heard in a nearby position of the National Guard approximately 300 meters from the scene. The Commanding Officer of the area and some National Guardsmen proceeded to the place of explosion. P.W.1, Pieris Hamalis, was one of the soldiers manning the said guard post. He gave us his account of what he [*61] saw when he came on the scene. He said in effect, that when his Commanding Officer switched on the lights of his motor-car to illuminate the place of explosion, he was able to see a wrecked car in the dirt road that joins the main road and leads to Louroudjina village. The car was approximately 30 meters from the main road. In cross-examination, it became apparent that the witness could not really locate the car in relation to the dirt road.

Tryphon Pissourios, P.W.2, had occasion to see the plaintiff's car before it was removed. On the following morning, at 6 a.m., the witness with other soldiers were on their way to Larnaca Hospital and had stopped at the junction of the earthen road with the main road. Pissourios told the Court that the car was in the dirt road 30 to 40 meters from the main road. The defence disputed the existence of a dirt road, but there is ample evidence to support a finding that there existed such a road clearly formed and visible which leads to Louroudjina, a village under Turkish occupation.

On the night of the accident, at about 11.30 p.m., a party of men from the Engineers company, headed by an Officer, visited the site of the explosion.

This unit is stationed at B.M.H. Camp, Nicosia, and is responsible for the laying and removing of minefields. Demetrakis Vassilopoulos, a member of the team, gave evidence for the plaintiff. He stated that the mine-field, which was unfenced, is on the left side of the main Larnaca-Nicosia road as one travels towards Nicosia. The first line of mines, which were anti-tank [*62] mines the witness continued, were laid some 40 meters from the main road and there were also a few mines buried in the rural road which passed along the side of the minefield.

With the aid of a mine detector and a plan of the mine-field it was discovered that a mine was missing. In the opinion of this witness the missing mine exploded when the car passed over it, forming a crater at the spot of explosion. The witness asserted that the crater corresponded with the position of the mine that exploded marked on the plan. Vassilopoulos Insisted that the mine in question was located in the rural road. The wrecked car, the witness said, was also in the dirt road, 2 meters from the crater, and a dead body was lying another 2 or 3 meters from the car.

Vassilopoulos testified further that at about 9.30 a.m. of the 10th December 1974, that is, on the morning following the explosion, his band of men surrounded the mine-field with a barbed wire fence and put up warning notices. The witness added that the portion of the rural road that adjoined the mine-field was also fenced and became part of the mine-field.

On the other hand Adamou stated that the minefield was at all material times fenced. From his answers in cross-examination, we do not hesitate to say that he was, to say the least, mistaken.

Vassilopoulos impressed us as a truthful and reliable witness and we accept his evidence. If the evidence of Adamou on this point were correct and this [*63] mine-field was fenced, we fail to see how an accident would have occurred. At any rate neither Vassilopoulos nor any other witness was cross-examined on this matter.

We further accept the evidence of the plaintiff which we recited earlier and we find accordingly. Lastly there is not a shred of evidence suggesting that plaintiff knew about this mine-field and there can be no doubt that he was unaware of its existence.

Negligence is the breach of a duty to take care which results in damage. The standard of care required of the defendant is that of the reasonable man. Lord Atkin in his classic pronouncement in Donogue v. Stevenson (1932) A.C. H.L. , at p. 580 sets out the extent of the duty and the circumstances giving rise to it.

"You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour. The answer seems to be - persons who are so closely affected by my act that, I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".

The concept of duty as expounded by Lord Atkin is capable of expansion and may always be applied to new situations. This view was confirmed by the recent decision, of the House of Lords in Anns v. London Borough of Merton (1977) 2 All E.R. 492 where Lord Wilberforce giving the leading judgment of the House said at page 498. [*64]

"Through the trilogy of cases in this House, Donoghue v. Stevenson, Hedle. Byrne & Co. ,Ltd. , v. Heller & Partner Ltd.[1] and Home Office v, Dorset Yacht Co., Ltd.[2] the position has now ''been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two. stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such, that, in the reasonable contemplation of the. former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise”.

It must have been apparent to the military authorities of the Republic that the construction of a minefield in close proximity to a highway would endanger road [*65] users including members of the national guard moving about in the area. The laying , of mines in the earthen road would make the danger even greater. Further it will be remembered that the mines were not visible and no steps were taken to indicate their existence. Accordingly it was easily foreseeable that someone might drive along the earthen road or perhaps would drive off the main road for some reason or other in which case he would be faced with a mortal hidden danger.

Having in mind the above principles we consider that the military authorities owed a duty of care to the plaintiff. The measures to be taken for averting the risk of accident were obviously those taken after the occurrence. The fencing of other minefields in the same . area and the posting of warnings demonstrates that the authorities were well aware of the risks created by the mine-field and took those steps in their effort to prevent the kind of accident which happened to the plaintiff. It is obvious that the authorities should have guarded against the possibility of accident by taking the same measures as regards the present mine-field. It is our finding that the authorities broke their duty of care to the plaintiff and accordingly they must be held liable to him in negligence.

Even if we assume that the plaintiff was a trespasser, we would still hold the defendant liable on the principle laid down by the House of Lords in British Railways Board v. Herrington (1972) 1 All S.R. 751 H.L. [*66]

Contributory negligence was not specially pleaded in the statement of defence. However, particulars of negligence had been given and evidence was led in unobjected. On the authority of Christodoulou v. Menicou (1966) 1 C.L.R. 14 we have considered this plea, but on the facts as we have found them, contributory negligence was not established.

DAMAGES

The special damages to which the plaintiff is entitled had been agreed at £765.- subject to liability. There remains only the question of general damages.

Following this accident, the plaintiff was taken to Larnaca Hospital where he remained until the 16th December, 1974. After his discharge, he was treated at the Out-Patients' Department of the same hospital for a period of about three months.

The nature and extent of the injuries suffered by the plaintiff can be ascertained from the six medical report? which both sides produced in evidence by consent. They are marked Exhibits 1-6. All these reports were prepared by Government doctors of the Larnaca Hospital. In addition we have heard the oral evidence of Dr. Pamborides and Dr. Kaimis, two doctors in private practice, who were called by the plaintiff. Further, the plaintiff himself gave evidence of his injuries and their effect.

Because of the explosion, the plaintiff has suffered an injury to his left eye and there was bleeding from both ears and the tympanic membranes were perforated. In addition, he sustained facial injuries, that is to say, [*67] multiple foreign bodies were embedded on the skin of his face. We shall now deal with each set of injuries separately. First, the eye injury.

On admission to hospital it was found that the plaintiff had multiple foreign bodies embedded on the skin of his face and on the conjunctiva and cornea of his left eye - see the Report, Exhibit 1 , of Dr. A. Vorkas, dated 24.2.75.

The assessment of Dr. Vorkas in February, 1975, was as follows: -

"Apart from minimal reduction of visual acuity of the injured eye, there is no other pathology. Prognosis is good".

This doctor made his final assessment in March, 1977. He states in his Report, Exhibit 2, dated 26.3.77:-

“The left eye has multiple small scars and a few foreign bodies. The conjunctiva has also a few foreign bodies embedded superficially. There is no other pathology. The visual prognosis is excellent and the patient may experience "slight photophobia".

Indeed, the plaintiff stated in evidence that his eyesight, as far as the left eye is concerned, is allright but he complained of some trouble when exposed to the sun. He was asked:

Q. How does the sun affect the eyesight of your left eye?

and he answered, [*68]

A. "Stazi dakrya".

In the light of the evidence, we find that plaintiff has regained full vision of his left eye but he still experiences slight photophobia which is checked, as he himself, admitted, when he wears sun-glasses.

EAR INJURIES: when the plaintiff entered hospital he was also examined by Dr. S.D. Georghiades the E.Ν.Τ. Registrar of Larnaca Hospital. His findings were as follows - see the Report, Exhibit 3:-

1. Bleeding from both ears.

2. Deafness in both ears.

3. Both tympanic membranes were perforated.

4. Tinnitus and giddines.

Both middle ears were infected a few days after the accident, a complication which the doctor attributed to the original injuries. With treatment, the infection subsided and the tympanic membranes healed well.

In February, 1975, the plaintiff was still suffering from some tinnitus and deafness in the right ear. Audiometry done on 24.2.75 showed "almost normal hearing in the left ear" but there was a hearing loss in the right ear of about 30. dbs.

Then comes the prognosis.

"There is a minimal possibility of some improvement in the condition of the deafness and tinnitus of his right ear within a period of six months since the injury. After this [*69] period, any persisting symptoms must be considered as permanent".

A second audiometric examination was made by Dr. Pamborides on May 5, 1976. Dr. Pamborides testified in effect that his examination revealed a permanent loss of hearing in both ears1which he ascribed to the explosion. He assessed the loss at 16.3% in the right ear and 15% in the other and described such deafness as "noticeable". He also found that the drum of the right ear was perforated and the ear was discharging because of microbial infection of the right middle ear, a condition which he attributed again to the accident. It was clarified, however, that plaintiff's condition did not cause pain. The plaintiff has to wear earplugs for preventing water getting in that ear, Dr. Pamborides added.

The last occasion the plaintiff was seen by an E.N.T. doctor was in March, 1977, when examined by Dr. Papageorghiou of Larnaca Hospital, on behalf of the defendant. This doctor states in Exhibit No.5, dated 26.3.78, that the plaintiff was found suffering from perforation of the right ear drum with slight deafness which had to be ascertained by an audiogram.

We open a parenthesis here to say that Dr. Papageorghiou referred to a nose injury in. his report and some other evidence as well went on record on the same issue. In the course of the hearing we intimated to counsel that in the absence of proper amendments the Court could not consider such a claim. No such course having been followed by the plaintiff we shall disregard [*70] the evidence adduced in relation to any nose injury.

Having reviewed the evidence, we have reached the conclusion that because of the accident the plaintiff suffered a slight bilateral loss of hearing more marked on the right side. We may point out that plaintiff had no difficulty in answering questions and following the course of the proceedings and in our view this strengthens our finding about his hearing loss. In addition, he suffered perforation of the right ear drum.

Dr. Kaimis described the injuries to the face in great detail and we have also before us the report of Dr. Kaesaris of Larnaca Hospital. Dr. Kaimis, who is a specialist in skin diseases stated in evidence: -

"I examined him for the first time on

25.2.75 and found that he was suffering from the following:- Disfigurement of the left side of the face, of the left side of the forehead, the left upper eyelid and the left ear. The disfigurement on the left side of the face was above the left cheek. On examination I found brownish spots and patches on the left side of the face and the other parts which I mentioned before which probably were due to burns. I also noticed dark bluish spots on the above areas".

Dr. Kaimis said, and we accept his evidence, that these injuries must have been painful for the first two or three weeks following the explosion and that plaintiff is left with permanent disfigurement. There was [*71] some evidence about plastic surgery to the effect that it may improve the plaintiff's appearance, but we cannot really attach any importance to it because it became clear that the subject was outside the witness's field of knowledge.

Dr. Kaimis characterised plaintiff's condition as a "nasty disfigurement" but / we would not put it as high as that. In cross-examination, he conceded that plaintiff's appearance improved on account of the disappearance of the brownish spots. He also said that the affected area nearer to the left temple could be covered by the hair growing. We have had opportunity to see the plaintiff ourselves. His disfigurement is, of course, visible but only from a close distance.

Our next task is to assess the damages to which this young plaintiff, who was a batchelor at the time of the trial and about 25 years old, is entitled.

Having regard to the amount of pain and suffering he suffered, the moderate disfigurement and its probable psychological effect on the plaintiff, the slight photophobia and loss of hearing, we think that a reasonable amount to award is £1,600.-.

With regard to the loss of hearing, we have gained guidance from Aristodemou v. Angelides & Philippou Ltd. , (1976) 3 J.S.C. 487, in which the Supreme Court made an award of £1,100.- mainly for complete loss of hearing in the right ear. As regards disfigurement, we have usefully considered the authorities Karavallis v. Economides,(1971)l C.L.R. 271 and Iacovou v. Hadjinicolaou [*72] (1975) 12 J.S.C. 2009.

Taking into account the amount of the agreed special damages, the total amount to which the plaintiff is entitled is £2,365.-. Accordingly, we enter judgment for plaintiff against the defendant for £2,365.- with costs on the appropriate scale to be assessed by the Registrar and approved by the Court.

Judgment for plaintiff for £2,365.- with costs.

[1] (1963)

2 All E.R. 575

[2] (1970)

2 All E.R. 29k.