Court reduces damages for road accident victim due to their own failure to maintain safe following distance.

[*1674] 1972 March 31

(GEORGHIOU, P.D.C., DEMETRIOU, D.J.)

IN THE DISTRICT COURT OF FAMAGUSTA

Chr.A. Papaellinas & Co.,

Plaintiffs in Act. 1736/70

And

loannis Kyprianou,

Plaintiff in Act. 1737/70,

And

1. Charalambos Pistolas,

2. Andreas Poppos,

Defendants in both actions.

(Actions Nos. 1736/70 & 1737/70).

(Consolidated by Order of the Court dated 13.2.1971).

Negligence - Contributory negligence - Negligent driving - Road Traffic accident - Apportionment of liability - Principles applicable - Collision between motor vehicles driving in the same direction - Lorry suddenly reducing speed without signalling – run into by minivan following at close distance - Duty, of lorry driver to make a hand signal and to drive on to the berm - And duty of driver following to drive at such distance and speed so as to be able to pull up in time.

Chr. Chryssanthou, for Plaintiff in each action.

S. Emphietzis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by: -

DEMETRIOU. D.J.: The present two actions, [*1675] consolidated by order of the Court dated 13.2.1971, concern a road accident, which took place on the Nicosia-Famagusta main road, at a point between the 25th-26th milestones, early in the morning of the 24.2.1970. The accident occurred when the motar-lorry under Reg. No. BK.9, belonging to defendant 2 and driven by defendant 1.in the course of his employment with defendant 2, was run into from behind by mini-van under Reg. No. DR.629, belonging to plaintiffs in Act. No. 1736/70 and driven by plaintiff in Act, No.1737/70.

When the case came up for hearing on the l8.2.1972, the parties agreed on the question of damages as follows: -

In Action No. 1736/70 the damage to the mini-van was agreed at £160,000 mils and in Action No. 1737/70 the general damages for personal injuries to the plaintiff at £1,600.000 mils and the special damages at £290.000 mils, to wit a grand total of £1890.000 mils. The only issue, therefore, which was left to the Court to decide was the question of liability.

As it is usual in such cases, each party charges and counter-charges negligence against the other, claiming at the same time contribution on the agreed amount of damages.

Before dealing with the facts, we find it appropriate at this stage, to refer to the legal aspect of the case, to wit, the law regarding contributory negligence.

Section 57 of our Civil Wrongs Law, Cap. 148, reproducing the provisions of the English Law Reform [*1676] (Contributory Negligence) Act 1945, provides under subsection (1), the following: -

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that, damage shall not be defeated by reason of the fault of that person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility of the damage".

The standard of negligence is in all cases not an absolute standard, but is dependent upon the attending circumstances and in assessing degrees of liability, the commonsense approach has to be adopted. Ever shed L.J. as he then was, in considering questions of apportionment of blame under the English Law Reform (Contributory Negligence) Act 1945 in Davies v. Swan Motor Company (Swansea) Ltd. (1949) 1 All E.R., p. 620, said at p. 627: -

"In arriving at the conclusion which I had arrived, I consider it to be my duty to look at the whole Facts of the case as they emerge at the trial both of the action and of the third part proceedings and then using common sense to try to apportion the blame between the various participants in the catastrophy for the damage which the deceased suffered". [*1677]

In the case of Constantinou v. Salahouris,

(1969) 7 J.S.C., p. 910, our Supreme Court after reviewing the authorities on the point, upheld the principle enunciated in the case of Davies v, Swan Motor Co. (supra). The principles that, touch the question of contributory negligence were also expounded upon by the Supreme Court in the recent case of Ekrem v. McLean, (1971) 11, J.S.C. p. 1377. It was held there that "When it is necessary for the Court to ascribe liability in proportions to more than one person, it is well established that regard must be had not only to the causative potency of the acts or omissions of each of the. Parties but to their relative blameworthiness".

Another recent authority of our Supreme Court which is directly connected with the case in hand, is the case of Eraclis Michael v. Loukis Katsikides, (1971,) 7 J.S.C. p. 975, where the facts, similar to those of the present case, concerned a collision between two vehicles travelling in the same direction. The collision occurred when the plaintiff’s car ran into the rear side of defendant’s car when the latter stopped abruptly and when the two vehicles were keeping a distance between them of 35 ft. and were travelling at a speed of 1.8-20 m.p.h. In that case, the Court found nothing in the defendant’s conduct amounting to contributory negligence, Triantafyllides, P., said at p. 978:-

"It was indeed the appellant who had the Possibility and responsibility to avoid the Collision by driving at such distance and speed [*1678] 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 of him, in an effort to avoid a vehicle 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".

Having directed our minds to the above authorities, we proceed to consider the facts of the present case, in order to ascertain the degrees of liability.

The plan of the scene of the accident (exhibit 1) was prepared by P.W.1, who visited the place soon after the accident and took measurements in the presence of the driver of the motion lorry. He Marked the two vehicles with letters 'E' and 'D' respectively. The width of the asphalted portion of the road is 19ft. 4 ins. and ther are usable berms of 5 ft. wide on each side on the road.

The road is straight and its surface was dry at the time. Brakemarks were also found, measure and marked on exhibit 1. According to the evidence of this [*1679] witness, the length of the brakemarks of the left wheels of the lorry is 172 ft. and of the right wheels 50 ft. The brakemarks of the mini-van are 54 ft. of the left wheels and 76 ft. of the right wheels. The point of impact is marked ’X', and was agreed by both drivers. The left wheels of the lorry, according to exhibit and the evidence before us, were up to the point of impact on the asphalted portion of the road; but the lorry was by the force of the impact pushed forward and resulted partly on the asphalted portion of the road and partly on the berm within

1 ft. 6 ins.

The version of the driver of the mini-van is that on the day in question, he was following the said motor lorry for a distance of about four miles at a distance of about 30-40 metres behind. He noticed that the lorry suddenly reduced speed and he applied his brakes, looking at the same time ahead of him to the right to see if he could overtake the said lorry. He further said that as be could not overtake the lorry because of on-coming vehicles, he ran into the rear side of defendant’s lorry and alleged that no hand signal was given by the driver of the lorry indicating his intention to stop. He admitted in his evidence, however, that he was about 25 metres from the lorry when he realised that the lorry was "reducing, speed suddenly", but he attributed the collision to the time he needed to react in the emergency in which he found himself.

Defendant 1, on the other hand, alleged that he [*1680] did make a hand signal to show his intention of pulling up, hut he admitted in his evidence that he did not look into the driver’s mirror to see if any traffic was coming from behind before he pulled up. Although we do not attach great importance to his failure to look into his driver’s mirror (see on the point the case of Flack v. Withers, "The Times", of the 22.3.1960), yet we do find it to be relevant to his allegation that he made a hand signal. We reject this allegation of the defendant 1 and accept the contention of the plaintiff that defendant 1 did not make such a hand signal. This finding tallies with the evidence of plaintiff, who said in his evidence that immediately after defendant 1 had alighted his motor lorry and approached him, he said: "Isoun piso mou re koumbare ke den se ida na sou nepso?"

From the totality of the evidence before us, we are satisfied that defendant 1, suddenly reduced his speed and pulled up on the side of the asphalted portion of the road and not on the berm as shown on exhibit 1, without first making a hand signal and we take the view that taking-all the circumstances of the case, he had a duty to do so. Further, he had a duty to drive on to the berm and allow as much road as possible for the traffic. The road on which the accident occurred is the main Nicosia-Famagusta junction, well-known for the heavy traffic, and drivers are expected to take precautions and guard against the danger emerging from sudden pulling up on a road as busy as this. We also accept that at the time there was in fact traffic on the road coming from the opposite direction. Admittedly the [*1681] said lorry was fitted with the usual red stop-lights at the hack which were found to be in order. They were, however, dusty and their light was hardly visible, due to such dust, particularly at daytime. The pertinent question is whether he is also liable.

In the case of Panayietou v. Havrou,

(1970) 7 J.S.C. p. 659, Mr. Josephides, J. as he then was, said at p. 663:-

"It is well settled that negligence is the failure to take reasonable care in the particular circumstances and in each case the question whether a person has been negligent is a question of fact".

Having emphasized the factual aspect of negligence, Mr. Josephides went on to refer with approval to the principle enunciated by Lord Dunedin in the House of Lords, in the case of Harden v. Hareourt-Rivinpton

(1932) All E. R., p. 81, at p. 83, to the effect that:-

"If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility, which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions".

It is our finding that the defendant 1 drove at the time on the Nicosia-Famagusta main road, without taking [*1682] reasonable precautions for the safety of the plaintiff and in consequence we find him negligent.

We must, however, not lose sight of the responsibility of the driver behind, the plaintiff, who had a duty to drive at such distance and speed behind the lorry as to be able to pull up in time in case the driver of the lorry had to slow down suddenly and we resolve that his contribution to the cause of the accident is much higher than that of defendant 1.

Having carefully weighed the evidence before us, and bearing in mind the duty of the plaintiff to drive at such distance and speed behind the defendant as to be able to pull up in time, as expounded in the case of Katsikides (supra), we find that the apportionment of liability should be 70% as against the plaintiff in Act. No. 1737/70 and 30& as against the defendant No 1.

It has not been disputed that defendant 2 should be vicariously liable for the negligence of defendant 1. Therefore, as the damages have been agreed upon at £160.000 mils in Act. No. 1736/70 and £1,890.000 mils in Act. No. 1737/70, we find the plaintiffs to be entitled, after making a simple mathematical calculation, to a judgment in their favour, as follows: -

In Action No. 1,736/70 for £48.000 mils; and in Action No. 1737/70 for £567.000 mils.

In relation to costs, we make the following order: [*1683]

Costs in favour of plaintiffs and against the defendants to be assessed by the Registrar as follows: -

In Action No. 1736/70 on the scale of claims between £25-50 - up to consolidation; in Action No. 1737/70 on the scale of £500-2.000 up to consolidation. After consolidation, one set of costs for both actions, on the scale of £500-2000.-

Judgment and order as to

Costs as aforesaid.