Supreme Court dismisses appeal where deceased driver solely at fault for road accident and costs order upheld.

[*907] 1973 March 9

(TRLANTAEYLLIDES, P., STAVRINIDES, MALACHTOS, JJ. )

APPELLATE JURISDICTION

Andreas Louca and Cosmas. Agathangelou,

as administrators of the estate of the

deceased Eleni A. Louca,

Appellants,

v.

Eleni I. Chrysanthou and Others,

Respondents.

(Civil Appeal No.5081).

Negligence - Contributory negligence

- Road accident - Bus colliding with lorry whilst attempting to overtake it - Whenlorry swerved to its right in an effort to avoid appellant’s vehicle - Which suddenly slowed down in front of the lorry and swerved to the left immediately after overtaking the lorry - Appellant rightly held solely to blame for the accident.

Costs - Discretion of trial judge - Negligent driving case - Two consolidated actions - Appellant, defendant in one action and third party in the other -· Failing in both Order for costs against her and in favour of all the other parties - Open to the trial judge in the circumstances - Bullock V. The London General Omnibus .Co.. & . Others (1907) 1 K. B. 264 and Civil Procedure Rules Order 10, rule 10.

E. Lemonaris with T. Eliades, for the Appellants.

E. Vrahimi, (Mrs.), for "Respondent-Plaintiff in Action No.4365/7 C .

C. Velaris, for Respondent-Plaintiffin Action No. 5738/70.

G-. I. Pelaghias, for Respondents-Defendants in both actions.

Chr. Chrysanthou, for Respondents - third parties in Action No. 5738/70.

JUDGMENT

The. judgment of the Court was delivered by:-

TRIANTAEYLLIDES. P, :In this case the appellants. [*908] who are the administrators of the estate of the deceased Eleni Louca,

challenge the judgment of the District Court of Nicosia by virtue of which the deceased (who was alive when this appeal was lodged) was ordered

to pay damages to the plaintiffs in two consolidated actions, Nos.4365/70 and 5738/70, before the District Court of Nicosia. She was a defendant in the former action and was joined as a third party in the latter.

The facts of the case are, in brief, that on the 9th April, 1970, the deceased was driving her car, N0.U962, on the Nicosia to Kyrenia road, in the direction of Myrtou. She was following a lorry, N0.EA50I, on which there was loaded a bulldozer; the lorry belonged to, and was driven by, respectively, the two other third parties in action No. 5738/70, Elia and Xeni„ The deceased overtook the lorry and then a bus, No.

TCA712, which was following the car of the deceased and in which the two plaintiffs, Chrysanthou and Shiakkidou, were

passengers (and which was driven

by Miltiadou, a defendant in both actions, and belonged to another defendant in both actions, Lambousa Ltd.) started overtaking the lorry.

The trial Court found that after the deceased had overtaken the

lorry she slowed down considerably in front of it, as she was about to turn left into a side-road, and the driver of the lorry, in an effort

to avoid hitting her car, swerved to his right and collided with the bus; and as a result both the plaintiffs suffered injuries.

It was held by the trial Court that the deceased [*909] was solely to blame for what happened, in that by her careless driving she put the lorry driver in a situation in which he found himself suddenly compelled to swerve to his right.

It has been contended by counsel for the appellants that there was contributory negligence on the part of the driver of the lorry. We have not deemed it necessary to call on counsel for the other parties to address us in this respect, because we have found no merit at all in the appellants' contention; it is clear, on the material before us, that, as already stated, the deceased, with her sudden slowing down and swerve to the left, caused the collision between the other two vehicles and neither of the other two drivers was negligent in any way.

It was, next, argued on behalf of the appellants that it was wrong for the trial Court to burden the deceased with all the costs of the other aforementioned parties in both actions. The making of the order as to the costs of the trial was a matter within the discretion of the trial Court and once the deceased was a defendant in one of the two consolidated actions (being only a third party in the other) it was open, in the circumstances, to the trial Court, in view, inter alia, of the case of Bullock v. The London General Omnibus Co. & Others,

(1907) 1 K.B. 264, and of rule 10 of Order 10 of the Civil Procedure Rules, to make the order of costs complained of; and we can find no reason for which to interfere with it. The case of Salsbury v. Woodland and Others, (1969) 3 All E.R. 863., which has been [*910] relied upon in support of the contention of the appellants to the contrary, is clearly distinguishable.

In the result this appeal is dismissed with costs.

Appeal dismissed with costs.