Court dismisses vicarious liability claim against car owner and limits damages for minor mason injury.

[*743] 1972 July 19

(STYLIANIDES, AG. P.D.C., CHRYSOSTOMTS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Pambos Demetriou,

Plaintiff,

and

Christima Margaret Baker and Another,

Defendants.

(Action No. 370/71)

Negligence - Contributory negligence - Running down case - Collision between motor-vehicle and bicycle at ' T’ junction Duty of driver entering main road and duty of driver on main road - Standard of care in contributory negligence.

Vicarious liability - Negligence - Motor-car - Car owned by husband and driven by wife with his permission – Wife neither the servant nor the agent of the husband - And not using car for any purpose of her husband - Accident when car driver negligently by wife - Husband not vicariously liable.

Damages - Special damages - Expenses for medical treatment Disallowed for not being reasonably incurred.

Damages - General damages - Road accident - Assessment

- Twenty-four year old mason sustaining, inter alia, fracture of his right wrist - His productivity affected only to a slight or minimal degree.

Contributory negligence - See under "Negligence".

Ant. Lemis, for the Plaintiff.

A. Myrianthis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by: -

STYLIANIDES. AG. P.D.C.: The present Action [*744] arose out of a traffic accident in which the Plaintiffs, pedal cyclist, and Defendant 1, motorist, were involved. Defendant 2 is sued as vicariously liable for the negligence of Defendant 1.

At about noon of 30/9/70 the Plaintiff, a young builder, was cycling along Irini Street in Limassol. Defendant 1 was driving motor car under Registration No. EQ851, owned by her husband, Defendant 2, in Rotsare Street, intending to enter Irini Street and turn northwards, At the “T” junction formed by the two aforenamed streets an impact occurred. As a result thereof the Plaintiff sustained personal injuries and his bicycle was damaged.

As it usually happens in most cases of this nature one party throws the blame on the other.

P.W.1, P.C. 907 Phedias Thecdorou Lemoniates, visited the scene an ' in the presence of the parties involved, he took measurements and prepared a plan/sketch, exhibit 1 in these proceedings.

Irini Street is the main street. It runs from south to north and joins Limassol hewn with villages. It is 20 a busy road. The asphalted part thereof is 12' 6" wide but its overall width including the berms is 29' 10". Marcos Botsare Street is an uncontrolled side street. The opening of the said junction is 53 ft. On entering Irini Street from Marcos Rotsare Street the visibility to the north is somewhat obstructed by a building standing at the corner.

The Plaintiff and Defendant 1 indicated two [*745] different points of impact, marked "X" and "XA" on exhibit

1.70 ft. to the north of these points, at point G on the sketch, there was one

- according to the Plaintiff - and two - according to Defendant 1 - stationary cars.

It is the version of the Plaintiff that whilst driving along Irini Street, 2 ft. inside the asphalt, he saw from a distance of 2-3 metres (before the Criminal Court he gave the distance of 3 - 4 ft. only) a moving car driven by Defendant 1. He swerved to the right to avoid a collision which, however, was not averted. The front left overrider of the bumper of the motor car hit the left pedal of the bicycle. The bicycle fell on its right, and the right pedal thereof scratched the asphalt for a short distance. The spokes were cut, the gears and the rear wheel were bent and the pedals were damaged. The car was moving slowly with an inclination to the right. Both vehicles were removed prior to the arrival of the Police.

Defendant 1 testified that at the material time her husband was the owner of motor car EQ 851. With his consent or permission she drove same to some friends. At about noon she was travelling along Marcos Botsare Street intending to enter Irini Street and proceed northwards to her own house. On reaching the junction she stopped behind a stationary car. When that car moved on, Defendant 1 drove to the junction. As her view, however, was obstructed by the stationary cars at point G, she edged slowly out and veered slowly round. When she saw the cyclist coming behind one of the cars at point G, she stopped to accord him the [*746] precedence to which he was entitled. The pedal of the cycle tipped the left overrider of her stationary car.

It is common ground that there were no other moving vehicles on the road at the time. The car to which the Defendant referred entered Irini Street when the Plaintiff 5 was 50-60 metres away from the point of impact. We wonder, if the version of Defendant 1 is accurate and correct, why she did not drive on herself following that front car.

The point of impact is neither "X" nor "XA". The actual point of impact must have been, and we so find that it was, just under 2 ft. from the imaginary line. We reached this conclusion having regard to the scratches caused on the asphalt by the right pedal of the bicycle. They are 2' 4" from the imaginary line. It is in evidence that scratches caused by the right pedal of a bicycle hit or pushed from the left are about half a foot from the line of the wheels.

Having heard and observed the witnesses and having regard to the totality of the evidence before us, we find the true facts to be as follows

The Plaintiff was riding his bicycle in a straight line, about 2 ft. inside the asphalted part of Irini Street, which is the main street. Defendant 1 was driving motor car EQ 851 along Marcos Botsare Street, an uncontrolled side street. Defendant I, on reaching the "T" junction, did not stop to accord to the user of the main street the precedence to which he was entitled but drove slowly into Irini Street. The building at the corner and the stationary vehicle, or [*747] vehicles, at point G did not play any part and did not prevent the parties from seeing each other. There was no other moving vehicle on the road at the time.

The Plaintiff was riding without adequate look-out and failed to see in time the moving vehicle of the Defendant. The Plaintiff became aware, due to his own fault, of the presence of the moving Defendant's vehicle when he was very close to it. We shall not venture to say whether he did so from a distance of 4 ft. or 2 or 3 meters. At any rate, he took no avoiding action.

The scratches on the asphalt indicate not only the correct point of impact - just under 2 ft. from the imaginary line of the asphalted part of Irini Street - but also that the Plaintiff rode in a straight line as before without any deviation.

It is the duty of a driver when entering a main road to slow down, or halt and give way to traffic on the main road.

It was pronounced in Nance v. The British Columbia Electric Railway Co. Ltd. (1951) 2 All.E.R. p. 448 that:-

"Generally speaking, when two parties are so moving in relation to one another as to involve risk of collision each owes the other a duty to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other controlling a moving vehicle". [*748]

This principle has been applied by the Courts of this country and by the Supreme Court, (vide inter alia Nicolaides v. Economides.

(1963) 2 C.L.R. p. 78; Pissourlos v. Mustafa. (1972) 2 J.S.C. p. 152).

In Varnakides v. Panamichael. (1971) 2 J.S.C. p.147, at p. 152 it was stated:-

"The cases in point, impose on every user of the road a duty of care to himself to take avoiding action for his own safety".

In Williams v. Fullerton. (1961) 3 C.L.

498 Ormerod, L.J., said: -

"A driver on a main road is not entitled to take his precedence for granted; drivers on the minor road may be reckless or careless, and therefore, it is the duty of the driver to keep a proper look out as he comes to the junction and not just go straight ahead".

"A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself".

(Jones v. Livox Quarries Ltd. Same v. Same (1952) 2 Q.B. p. 608 at p. 615).

The standard of care in contributory negligence is what is reasonable in the circumstances and this in most cases corresponds to the standard of care in negligence. [*749] (Patsalides v. Yiapani & Another, (1969) 2 J.S.C. p. 263 at P 278; Varnakides v. Papamichael and Another. (1971) 2 J.S.C, p. 147 at p. 156).

It is a well settled principle 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 extra precautions. (Fardon v. Harcourt-Rivington.

(1932) All E.R (Rep.) 81; London Passenger Transport Board v. Upson

(1949) A.C. 155; applied by the Supreme Court in Panaviotou v. Mavrou

(1970) 7 J.S.C. 659; Varnakides v. Papamichael (supra) and Pissourios v. Mustafa (supra)).

In Nicolaides v. Economides (supra) it was said: -

"Failure to see what is plainly visible is negligence".

In the case in hand Defendant 1 was negligent because she failed to stop before entering the main road and did not give way to the cyclist on the main road.

The Plaintiff, however, was negligent in that he did not keep a proper look-out, he failed to see in time the Defendant and thus deprived himself of the opportunity of taking avoiding action and precautions for his own safety. The danger of traffic emerging from the side road was apparent.

In the light of the foregoing we find that the [*750] degree of respective liability of the parties involved in this accident is on the part of Defendant 1 and 30on the part of the Plaintiff.

Is, however, Defendant 2 liable vicariously? He is the owner of the car driven with his permission by his wife, Defendant 1.

The liability for acts committed by other persons is governed by sections 12 and 13 of the Civil Wrongs Law. It has been, however, decided in a number of cases that the Civil Wrongs Law, Cap. 148 incorporates the English Common Law but its provisions are not exhaustive. (Vassiliou v. Vassiliou. 16 C.L.R. p. 69; Universal Advertising Publishing Agency v. Panayiotis Vouros. 19 C.L.R. p. 87; The Electricity Authority of Cyprus v, Antonis Kinnaris. 24 C.L.R. p. 121; HJ. Theodossiou v. Petros Koulia & Another (1970) 10 J.S.C. 1063).

Du Parcq, L.J, in Hewitt v. Bonvin (1940)

1 K.B. 194-195, said: -

"The driver of a car may not be the owner’s servant, and the owner will be nevertheless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner’s behalf. Such liability depends not on ownership, but on the delegation of a task or duty".

Confusion was created by the decision of the English Court of Appeal in the case of Launchbury & Others v. Morgans. [*751] The afore statement of the law, however, by Du Parcq, L.J., was approved by the House of Lords in Morgans v Launchbury & Others.

(1972) 2 W.L.R. p. 1217. Their Lordships reviewed the authorities and re-stated the law. We intend to quote extensively material parts of the opinions of their Lordships.

Lord Wilberforce said at p. 1220: -

"For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty. The substitution for this clear conception of a vague test based on ’interest’ or ’concern’ has nothing in reason or authority to commend it. Every man who gives permission for the use of his chattel may be said to have an interest or concern in its being carefully used, and, in most cases if it is a car, to have an interest or concern in the safety of the driver, but it has never been held that mere permission is enough to establish vicarious liability".

Viscount Dilhorne at p. 1224 said: -

"It is not, and in my opinion has never, been, the law of this country that the owner of a chattel is responsible in law for damage done by the negligence of a person to whom he has lent it or whom he has permitted to use it". [*752]

And, at p. 1225: -

"Thus, it was held that, whether it be alleged, that the driver was the servant or the agent, to establish liability on the part of the employer or the principal it must be shown that the driver was acting for the owner and that it does not suffice to show that the driving was permitted".

Lord Pearson at p. 1226 had this to say: -

"My Lords, in my opinion, the principle by virtue of which the owner of a car may be held vicariously liable for the negligent driving of the car by another person is the principle qui facit per alium, facit per se. If the car is being driven by a servant of the owner in the course of the employment or by an agent of the owner in the course of the agency, the owner is responsible for negligence in the driving. The making of the journey is a delegated duty or task undertaken by the servant or agent in pursuance of an order or instruction or request from the owner and for the purposes of the owner. For the creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the owner and an undertaking of the duty or task by the agent. Also the fact that the journey is undertaken partly for purposes [*753] of the agent as well as for the purposes of the owner does not negative the creation of the agency relationship: Hewit v, Bonvin (1940) 1 K.B. 188, 194,195; Ormrod v. Crosville Motor Services Ltd. (1953) 1 W.L.R. 409, Devlin J.; (1953) 1 W.L.R. 1120, C.A.; Hilton v. Thomas, Burton (Rhodes) Ltd. (1961) 1 W.L.R. 705, 707; Norton v. Canadian Pacific Steamships Ltd. (1961) 1 W.L.R. 1057,1063; Klein v. Caluori (1971) 1 W.L.R. 619, 621. I think there has to be an acceptance by the agent of a mandate from the principal, though neither the acceptance nor the mandate has to be formally expressed or legally binding".

Lord Cross of Chelsea at p. 1229 said: -

"Before this case the law as to the vicarious liability of the owner of a chattel for damage caused by its use by another person was, I think, well settled. The owner of the chattel will be liable if the user of it was using it as his servant or his agent".

Lord Salmon at p. 1233 had this to say: -

"As I understand the authorities the law at present makes the owner or bailee of a car vicariously responsible for the negligence of the person driving it if, but only if, that person is (a) his servant and driving the car in the course of his employment or (b) his [*754] authorised agent driving the car for and on his behalf: Hewitt v. Bonvin

(1940) 1 K.B. 188, 194 -195. Thus, mere permission to drive is not enough to create vicarious responsibility for negligence. Nor are you responsible for the negligent driving at an independent contractor (or his servant) who, for example, hires a car to you or delivers goods you have bought from him. Ex hypothesi he is not your agent. It is a different matter, however, if you issue orders to the driver which you should reasonably foresee involve danger and as a result of carrying out of your orders damage ensues: - Quarman v. Burnett,

6 M. & W. 499. Liability may arise because you have assumed control or because issuing such orders was in itself negligent and damage flows from that negligence".

In the present case Defendant 1 drove to a friend and was returning home. She was definitely neither the servant nor the agent of the owner and was not using that ear for any purpose of her husband.

The Action against Defendant 2 is untenable and will be dismissed.

Damages

Special damages excluding loss of earnings and the medical fees of Dr. Zambarloukos were agreed at £18.

Counsel of the parties, after hearing the [*755] testimony of the Plaintiff's employer, P.W.2, Christakis Daniel, agreed that the weekly wages of the Plaintiff were £15 and that he resumed work on 3/1/71. Therefore, he was out of work for 13 weeks. We take judicial notice that the first of the year is a public holiday.

We assess his loss of earnings at £197.

Dr. Zambarloukos's fees were agreed, at £20 but there is a dispute as to whether these fees were reasonably incurred or not.

This builder was conveyed from the scene of the accident to the Limassol Hospital where he was examined and treated.

On 8/10/70 he was examined by Dr. Pelides, a specialist orthopedic surgeon, and thereafter he received treatment in the hands of this doctor.

On 10/10/70, when his hand was in plaster, for no apparently good reason, he visited Dr. Zambarloukos. On 7/12/70 he went to the same doctor for the sole purpose of obtaining a medical report, which was not used in these proceedings.

An injured person can recover expenses reasonably incurred for medical treatment. Each case must be decided on its own merits.

In the circumstances of this particular case we disallow this item as we have not been persuaded that it was reasonable for this Plaintiff to resort to Dr. Zambarloukos as he did. [*756]

The special damages on a full liability basis total £215.

General Damages

The defendant, aged 24, is a mason by profession. He was removed from the scene of the accident to the Limassol Hospital where on examination it was found that he sustained a fracture of the distal one inch of the right radius which was reduced and splinted in a plaster cast; diffuse soft tissue bruising of the left foot and right buttock unassociated with any underlying bone injury. His right wrist was kept in plaster for six weeks. After the removal of the cast he underwent a course of physical treatment of two months duration for the functional rehabilitation of his injured wrist. He resumed his pre-accident employment at the same wages on 3/1/71.

On 4/3/71 he was re-examined by Dr. Pelides who noted in his Report (exhibit l) that the patient put up with a fair amount of suffering and that there was a depreciation in the pre-injury functional status of his right wrist particularly as regards sustained loading. His right wrist was reasonably well toned up for ordinary stresses and strains but its endurance action reserve power for repetitive twisting strains was moderately impaired. The prognosis at the time was that further improvement was expected.

On 23/3/72 the Plaintiff was re-examined by Dr. Pelides for assessment of his physical condition [*757] and fitness for manual employment. The opinion of this doctor is set out in exhibit 2 as follows: -

"Opinion and future outlook:

The present objective clinical assessment indicates that the treatment of the right Colies’ fracture, the passage of time, plus active use of his hand have given a good result of his wrist’s function is now practically normal for ordinary use. His right wrist though exceptionally well toned up still exhibits mild deficit for sustained or repetitive resisted loading that calls for forearm rotation motion i.e. repetitive turning of handles, bolts, etc.

His residual wrist mild functional deficit does support his residual complaints that: -

(a) it tires more readily after sustained use than in the pre-accident days.

(b) wrist aching is experienced on effort (resisted work) or during changeable weather.

He being a mason, this mild residual impairment does affect adversely his working efficiency and work output.

Otherwise his right wrist is now fully functional for ordinary usage".

The Plaintiff stated that he cannot work continuously as before and that he feels pain when there are climatic changes. [*758]

In an unconvincing way he stated that his productivity has decreased.

In the light of the medical evidence we are of the view that his productivity was affected only to a slight or to a minimal, or trivial degree. For over a year after the accident he has been in the service of the same employer.

We have addressed our mind to comparable awards. Clearly in different cases of this type for similar injuries, different judges have arrived at various figures but within a certain scale.

We directed our mind to the heads of damage to which this Plaintiff is entitled, and having done the best we could do under the circumstances, we reached the conclusion that an amount of £425 would fairly and reasonably compensate the Plaintiff. Adding to this amount £215 special damages and having regard that the Plaintiff is entitled to receive 70% of the total amount, we give judgment for the Plaintiff against defendant 1 for £448 with costs on the appropriate scale.

The Action against defendant 2 is dismissed but in view of all the circumstances of the case, we make no order as to costs.

Judgment and order as to

costs as above.