Court holds both pedestrian and driver negligent in road accident, apportioning 75% liability to driver.

[*140] 1972 MAY 11

(LORIS, AG, P, D.C., HADJITSANGARIS, D.J.)

IN THE DISTRICT COURT OP LIMASSOL

Reveka Christodoulou,

Plaintiff,

And

David John Passmore,

Defendant.

(Action No. 1737/70).

Negligence - Contributory negligence - Road traffic accident - Pedestrian struck by motor car when crossing road - Duty of pedestrians and motorists with regard to keeping a proper look out - Pedestrian and driver with clear view of each other - Driver not slowing down or halting on entering main read - And not keeping as close as possible to the left hand side of the road in rounding a corner - Regulation 58(1)(n)(s) of the Motor Vehicles Regulations 1959 - No evasive action - Pedestrian attempting to cross though she saw car from distance of about 70 ft. and while still on the pavement - Both parties liable - Apportionment of liability.

Contributory negligence - See under "Negligence".

A. Lemis, for the Plaintiff.

R. Michaelides, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by: -

LORIS, AG. P.D.C.: The present action arose out [*141] of a traffic accident which occurred on the 3.4.70 at about 2 - 2.30 p.m. at the T junction of Makarios III Avenue and Nicos Kizis str. in Limassol, when defendant driving his m/car under Reg. No. CS.387, knocked down the pedestrian-plaintiff and injured her.

Prior to the hearing of this action special and general damages have been agreed at £680, therefore the only issue which falls for determination is liability.

On this issue the plaintiff gave evidence herself (P.W.2) and called one more witness, namely Andreas Limnatitis, (P.W.1), the police constable who was summoned to the scene of this accident shortly after its occurrence, took measurements in the presence of both litigants and prepared a sketch which was produced and it is Exh, 1 before us.

The defendant gave evidence himself and called no other witnesses.

Before dealing with the versions of the litigants as to how this accident occurred, we consider it pertinent to examine the scene of this accident in the light of Exh, 1 and the evidence of the Police constable.

Nicos Kizis Str. is a side street. It forms a T junction with Makarios III Avenue which is the main road. Kizis Str is an asphalted street about 50 meters long; the 'width of the asphalt is 26 ft. to the left as one faces south, (towards the avenue), there is a pavement about 5 ft. wide. On this side, after the pavement there are buildings; [*142] (according to P.W.1, visibility is good though. to one's left as one proceeds down Kizis Str. towards the avenue). On the other side of this street there is an open space.

A few feet before Kizis Str. joins the Avenue, it becomes wider and its width at the. mouth.of the T.junction, (imaginary line D - on Exh. 1) is 46 ft.

Makarios III Avenue is about 2 miles long. It is one of the busiest roads in Limassol; it is asphalted and the width thereof is 33 ft. After the asphalted portion of the avenue to the north, there is a pavement approximately 5 ft. wide.

The point of impact is marked X on Exh. 1. It was agreed and shown to P.W.1 by both litigants shortly after the accident. The distance from point X up to the extreme edge of the pavement to the right as one faces north, (marked E on Exh. 1), is 14 ft. Point X is also situated within Makarios III Avenue; it is 2 ft. to the south of the imaginary line of Kizis Str. (marked D - E on Exh.1).

The m/car driven by the defendant at the material time was a Mini Fiat 500. It is 9 ft. long and 4 ft. wide. Before us we have 2 conflicting versions as to how this accident occurred. They may be conveniently summarized as follows:

The version of the Plaintiff: The plaintiff, a

60 year old illiterate lady, was walking on the northern pavement of Makarios III Avenue, proceeding from east to [*143] west; at the T junction she proceeded from the pavement of the avenue into Kizis Str. and started crossing same. (Here we must mention that there is no evidence whatsoever before us that a pedestrian crossing existed at the material time of this accident). Before starting to cross Kizis Str. when she reached the edge of the 'pavement of the avenue, she saw the car of the defendant from a distance of about 70 ft. away, coming down Kizis Str. towards the avenue; she thought that she could pass and started crossing Kizis Str. When she was about up to the middle of the street, she was knocked on her right foot by defendant’s car and thrown down.

The version of the Defendant: The defendant, a British serviceman residing at Akrotiri was driving at the material time his Mini Fiat 500 car under Reg. No. CS.387, along Kizis Str. with direction towards the south intending to turn left into the avenue; on the front seat of his car he had his 18 month old child sitting without any safety belt and unaccompanied by anybody else.

The defendant in his examination in chief alleged the following: he was proceeding to turn left when he saw the plaintiff walking upon the road about 9 ft. away; he immediately stopped and changed gear. Then he decided to go on. When he attempted to go on, the plaintiff hurried along in front of his car. He applied brakes and stopped within one foot; and the defendant continued: "When I hit the lady, I hit her right in the middle of the bumper; it is a small car and as I turned over to the left, she went over the bumper." [*144]

In cross-examination the defendant admitted that he saw the plaintiff from a distance of 20 yards away. The following is an extract of what the defendant has stated verbatim in cross-examination: -

Q. "How far were you from the T junction when you saw the plaintiff walking as you have described?

A. From 20 yards; there are some shops you see.

Q. And she gave you the impression that she was going to cross the road?”

A. I cannot say."

We heard the litigants giving evidence before us and we have had the opportunity of watching their 'demeanour in the witness box. We must say that we prefer the evidence of the plaintiff, the illiterate 60 year old woman, who gave a satisfactory account as to how this accident occurred, an account which is consonant with Exh. 1 and the relevant evidence of P.W.1, the police constable whom we have no reason to disbelieve.

From the evidence as we have accepted it, the following facts have been established:

a) That defendant was driving the said car on a side road and was proceeding to enter a main road, intending to turn left.

b) That the defendant saw the plaintiff from a distance of 20 yards away as he himself admitted. [*145]

c) that the defendant knocked down the plaintiff at point X (to which he agreed despite his attempt in cross-examination to deny), which is 14 ft. to the south of the imaginary line of Kizis Str. (D - E on Exh. 1).

d) That the defendant proceeded and knocked down the plaintiff without taking or even attempting to take any avoiding action.

e) That the plaintiff started crossing Kizis.Str.despite the fact that she saw the car of the defendant proceeding towards her, thinking she could pass.

Regulation 58(1) of the Motor Vehicles Regulations 1959, provides that:

"Any person driving or having the charge or control of a motor vehicle on any road shall,

.........................................

(n) "When entering into any main road, or when coming from any village road, slow down or halt and give way to traffic on any main road;

........................................

(s). ... in rounding any curve or crossing, shall keep as close as possible to the left hand side of the road. . . ."

In Despotis v. Tseriotou (1969) 5 J.S.C.669, at page 671 our Supreme Court commenting on the view of the [*146] trial court that the pedestrian had the primary duty to take extreme care in crossing the road, had this to say: -

"There we do not agree fully with the view of the Trial Court as regards the high degree of duty placed on the pedestrian. She certainly had a duty to take care hut we need not go further than that. There is no evidence that there was any 'pedestrian 'crossing' nearbyand the cyclist owed a duty to the pedestrian to be careful….."

In Baker v. Willoughby (1969) 3 E.R. 1528, the House of Lords held that the duties of pedestrians and motorists with regard to keeping a proper look out were different and the potential danger of each to other users of the road was very different.

Lord Reid had this to s y on the matter (at page 1530, Letter I): "A pedestrian has to look to both sides as well as forwards. He is going at perhaps 3 m.p.h and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways although he may have to observe over a wide angle ahead; and if he is going at a considerable speed he must not relax his observation for the consequences may be disastrous and it sometimes happens, although I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian. And in the present case I can see no reason to disagree with [*147] the trial judge's assessment. I would therefore restore the trial judge on this issue ..." (Apportionment of liability, 25% to the appellant and 75% to the respondent).

From the above facts as we have found them, bearing in mind the legal position both of motorists and pedestrians as stated above, we are of the view that both sides were negligent as follows: -

a) The defendant did not slow down or halt on entering Makarios III Avenue which was the mainroad. Had he complied with the relevant regulationhe would not have collided with the pedestrian, 2 ft. within the main road.

b) The defendant did not keep as close as possible to the left hand rounding the corner formed by Kizis Str. and the Avenue. Had he complied with the relevant regulation he would never reach point X which is 14 ft. away from his nearside edge of the pavement, (In this connection it is important to remember that the width of defendant's car is only 4 ft. and the defendant alleged that he hit the plaintiff in the middle of the front bumper).

c) The defendant saw the plaintiff from a distance of 20 yards away walking on the road; the possibility of plaintiff crossing the road was apparent. It should have occurred to his mind as it would have occurred to the mind of any reasonable man; yet the defendant failed to have a proper look out or slow down or halt or take any other avoiding action required under the circumstances. [*148]

On the other hand the plaintiff-pedestrian was negligent to a certain degree; she saw the car of the defendant from a 'distance of about 70 ft. whilst she was still on the pavement; despite the fact that she realized that the car was driven at a considerable speed, thinking that she could manage, she attempted to cross the road; she alighted from the pavement and she managed to proceed only 14 ft. when she was knocked down.

Under the circumstances we do hereby apportion liability as follows: -

75% to the defendant and 25% to the plaintiff.

In the result, as damages have been agreed at £680, judgment is hereby entered in favour of the plaintiff and against defendant in the sum of £510 with costs to be assessed by the Registrar on the scale of the amount awarded.

Judgment and order as to costs

as aforesaid.