Court apportioned liability 40% to defendant and 60% to plaintiff in a road traffic collision case.

[*426] 1982 March 5

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

IN THE DISTRICT COURT OF NICOSIA

Avgoustis Neocleous Pafitanis,

Plaintiff,

v.

Eleni Priki,

Defendant.

(Action No. 1865/77).

Damages - General damages - Mild concussion - Award of £200.

Negligence

- Road accident - Collision between motor vehicles moving in the same direction

- Defendant driving on the berm after giving a signal of her intention to do so

- Colliding with plaintiff when she. suddenly emerged on the road and whilst plaintiff was in the process of overtaking her. - Apportionment of liability - on defendant 4 on plaintiff.

B.Vassiliades, for the. Plaintiff,

D. Liveras, for the Defendant,

JUDGMENT

The following judgment was delivered by

ARTEMIDES, AG. P.D.C.:- The cause of action arises

[*427]from a road traffic accident which occurred on 20.12.1973.The action was filed on 28.4.77 but proceedings, as it is obvious, have been protracted for a long time for the reasons appearing on the record.

The plaintiff claims damages for loss and injuries he has suffered as a result of a collision between his car driven by him and that of the defendant on the main Nicosia-Limassol road whilst both vehicles were proceeding towards Nicosia.-

There are two versions, as to how the collision had occurred and I shall first deal with that of the plaintiff. At the material time he was driving his pick-up motor vehicle, registration No. GL.973, which was loaded with foodstuffs destined to be sold in Nicosia. At the same time the defendant was driving her. saloon car FW 264 and was preceding the vehicle of the plaintiff. When both cars had arrived at a point of the road near "Carlsberg" always according to the version of the plaintiff, the defendant drove her vehicle on the left-side berm and proceeded on it slowly. She did that after she had signalled with her left trafficator. From the opposite side there was a stream of cars coming, but since the vehicle of the defendant had gone onto the berm the plaintiff decided to overtake the car of the defendant. When he was in the process of doing so, the defendant drove again on the asphalted part of the road and stopped thus cutting into the free path of the plaintiff. The plaintiff, so his allegation proceeds, applied brakes but the collision [*428]could not be avoided; he ran onto the rear of the vehicle of the defendant. The defendant then alighted from her car and went to the plaintiff who asked her why, since she had gone onto the berm, had suddenly returned on the asphalted part of the road and. stopped. Again, and according to the version of the plaintiff, the defendant replied that she was trying to engage a gear in, which presumably she had some difficulty in doing.

The defendant denies that she drove onto the berm. She says that she was proceeding quite normally and straight on the road but when she arrived at a pathway, which was adjoining the fields with the main road to her left, she saw a vehicle on it coming towards the main road.She was rather vague in her evidence on this point, but she said that she had formed the presumption that the driver would not stop before entering the main road and so she had slowed down to avoid a possible risk. When she had slowed down her vehicle for this purpose the car of the plaintiff ran onto the rear of her vehicle.

I have examined the evidence before me with care and after having had the opportunity of watching the demeanour of the witnesses whilst testifying before me, I have come to the firm conclusion that the version of the plaintiff is a true account of . what had happened. The version of the plaintiff is in fact supported by the testimony of Soteroulla Charalambous, a witness for the defendant, who was her passenger at the time sitting besides her. [*429]As I have said earlier on the defendant denied that her car was driven on the berm of the road but Soteroulla Charalambous confirmed that She said that for about 20 (feet) to 30 (feet) the vehicle of the defendant was being driven on the berm. With regard to the allegation that there was a car coming from the pathway towards the main road again Soteroulla Charalambous supports the testimony of the plaintiff. She said that in actual fact that vehicle had nothing to do with the collision between their car and that of the plaintiff because it had already entered safely the main road and proceeded to its direction and thus the defendant had not in any way been affected by the driving of this unknown car. So the version of the defendant that she had any cause whatsoever to slow down whilst driving on the main road is not correct. In view of the above, the allegation of the plaintiff that the defendant told him that she was trying to engage a gear, and that is why she first drove on the berm and then had come again on the asphalted part of the road and stopped, is true.

Having arrived at my findings regarding the factual aspect of the case it is now the. proper time GO consider the responsibility of each driver for the collision that had occurred. This is not a case in which the driver of a car who is behind and who runs onto the rear of the preceding vehicle must he presumed prima facie to be responsible for the collision. The question of negligence is always one of fact and must be decided on the particular circumstances of each case. In the case of Omiros Constantinou v. Stavros Katsouris and Another (1975) 1 C.L.R. 188, a case which relates [*430]to a collision between vehicles moving in the same direction, Triantafyllides, P. had this to say at page 192:-

"Having that in mind, we cannot resist the practically inevitable inference that had the respondent driver of car No. CB

109 been keeping at all material times - (and not only when he looked momentarily, at some stage, in his rear view mirror) - a proper lookout as regards other traffic approaching from behind, when he was to turn sharply across the road; to his right, he ought to have noticed, in time, before he turned right, the car of the appellant which was following him; it is correct that the respondent driver signalled with his hand and with a trafficator that he was about to turn right, but this cannot, in our view, exonerate him completely from blame. The, duty to keep a proper lookout is. one that is cast on all drivers at all times and in all. circumstances, but, it was an especially heavy one, in the case of the respondent driver who was about to turn right cutting across the road (see, inter alia, Charlesworth on Negligence, 5th ed., p. 495, paragraph 823): in Mazengarb on Negligence on the Highway, 4th ed., it is stated at pp. 333, 334:- 'The ordinary circumstances, if a driver turns cut of and across the line of traffic, after giving the usual signal, he acts negligently unless he has at least reasonable ground, [*431] beside the mere fact of his warning, for believing that he can cut across without endangering approaching traffic. There is a heavy burden on the driver turning to establish an excuse for failure to see theother vehicle' “.

Relevant to the facts of the present case is also the case of Eraclis Michael v. Loukis Katskides (1971) 1 C.L.R. page 346 in which again Triantafyllides,

P. said the following at page 349 :-

"We might add, regarding the appellant's point that the trial Court ought, in the circumstances of the present case, to put some of the blame for the collision, by way of contributory negligence, on the respondent that we are of the view that it was properly open to the said Court, on the material before it, not to do so. It was, indeed, the appellant who had the possibility, and responsibility, to avoid the collision, by driving at such distance and speed behind the respondent as to be able to pull up in time, in case the respondent had to slow down suddenly; and, indeed, the respondent had to slow down considerably because of the fact that as soon as he was overtaken by a, lorry, which was proceeding in the same direction as he was, the lorry swerved and came to be very closely in front to him, in an effort to avoid a vehicle [*432] coming from the opposite direction; therefore, we cannot see how the respondent could have been held to blame at all for acting as he did when faced, himself, with the just described emergency situation. For instances in Which the Supreme Court declined to intervene and substitute a different conclusion in the place of a properly open to it, on the evidence before it, decision of a trial Court that a party to a collision was not to blame at all, see Ioannou v. Michaelides (1966)

1 C.L.R.235, and Charalambous v. Koutsides (1966) 1 C.L.R. 271".

In the present case the defendant was not faced with an emergency which had forced him to stop. She had been driving on the berm of the road after signalling to do so and the plaintiff could therefore presume that he could proceed and overtake her car. Whilst proceeding to do so the defendant drove again on the asphalted part of the road and stopped. The defendant tried to avoid the collision by applying brakes but he did not manage to do so.

It has been suggested by counsel for the defendant that the plaintiff was driving at an excessive speed, if one takes into consideration the length of the brake marks

left by his vehicle, i.e., 46 (feet), and that the collision was a violent one. Speed is something that has to be proved

by expert evidence which is lacking in the present case.In fact there Is no reliable material on which I could conclude that the plaintiff was speeding at the time. The [*433]plaintiff however, is not to he exonerated fully from liability. He was following the car of the defendant, and since he had noticed that it was being driven almost wholly onto the berm, he must had presumed that something was not going well because, if the defendant had done so to allow him space to overtake her car, there was no reason for her to drive in such a way onto the berm; the plaintiff should have therefore proceeded with caution whilst approaching the car of the defendant. In the circumstances I would find that the defendant is to be blamed for the accident whilst the plaintiff 40%

I now turn to the question of damages dealing first with the special damages’ items. On 24.9.1980 counsel have agreed before the Court on the following figures: travelling expenses £10.-, towing the car of the plaintiff £10.-, medical expenses £50.-, medicine £5.700 mils, i.e., a total of £75.700 mils. These are the few items agreed from those claimed in the Statement of Claim. The expenses for the repair of the plaintiff’s vehicle as well as his loss of earnings have not been agreed.

The plaintiff has given evidence himself and said that his car was repaired by a certain Melis Theocharous at the cost of £250.- which he paid. Melis Theocharous has not been called to give evidence; there is therefore no evidence before the Court regarding this item except from that of plaintiff himself on which, however, I cannot rely in view of the fact that special damages must be proved strictly.There is no evidence before me even for the extent of the [*434]damage to the vehicle of the plaintiff or any details regarding same. The testimony of the plaintiff himself that he paid £250.- for the repair of his vehicle is wholly unsatisfactory and I cannot therefore allow this item.

In regard to

the loss of earnings which the plaintiff puts at £50.- for nine weeks, i.e., totalling £450.-, this claim is depending on the

evidence relating to the personal injuries the plaintiff has suffered. I am Very sorry to say that the plaintiff has not adduced medical evidence to prove his injuries which he had suffered as a result of the collision. A certain Kyriacos Andreou, a practising doctor in Limassol, was summoned after counsel for the plaintiff had applied for a short service which he was granted, hut the witness had not been served with the summons. Counsel for the plaintiff said that he had tried to contact the doctor personally and request him to come before the Court but it seems that the doctor was unwilling. There was no application before me to remedy that situation and counsel for the plaintiff elected to close his case. This being the situation, the plaintiff has failed to prove his injuries by proper evidence, except from the post-concussional syndrome, that is, the usual headaches and dizziness for which Dr. Evdokas has testified. Dr. Evdokas has assessed the case of the plaintiff as being that of a mild concussion following the collision. In the circumstances in my judgment an amount of £200.- would amply compensate the plaintiff for this Injury. [*435]The plaintiff claims also £70.- for the destruction of the merchandise hewas carrying in his pick-up vehicle and after listening to his evidence on this point, in which he gives details of what had happened to his olives, honey, oil, cheese-halloumi etc. , I think therefore that he is entitled to that amount, and the total figure is brought at £345.700 mils. The plaintiff is entitled to 60% of the amount, i.e., £207.420 mils. Judgment is therefore entered for the plaintiff for the above amount with costs to he assessed by the Registrar on the proper scale.

Judgment for £207.420 mils

with costs.