Municipality liable for contractor's negligence; contributory negligence rejected; loss of earnings denied due to holiday status.

[*989] 1973 October 13

(STYLIANIDES, P.D.C. MICHAELIDES, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Eleftherios Zivlas,

Plaintiff,

and

1. The Municipality of Limassol,

2·Joannou & Paraskevaides Ltd.,

Defendants.

(Action No. 2764/69).

Civil Wrongs Law, Cap. 148 - Interpretation and application . - To be made in accordance, with common law principles - Instances of negligence enumerated in section 51 of the law - Not exhaustive - Common law applicable in Cyprus.

Negligence

- Highway - Accident through coming across manhole dug in highway in pursuance of construction of storm water drainage system - Man-hole constituting danger to users of the highway - Duty by contractor not only to place warning but to ensure that such warning was in position - Contractor liable for failure to take steps to ensure that his warning remained in position - Guilty of negligence within the ambit of paragraph (e) of section 51(2) of the Civil Wrongs Law, Cap. 148 - Common Law applicable.

Negligence

- Highway - Local authority - Municipality - Work done negligently on highway by independent contractor employed by local authority under statutory powers - Local authority guilty of primary negligence.

Negligence

- Contributory negligence - Accident to motorist by coming across unguarded and unlighted obstruction on highway - Existence of obstruction could not be foreseen - Too late for plaintiff to take avoiding action when he realized existence of obstruction - Not guilty of contributory negligence - Section 57 of the Civil Wrongs Law, Cap. 148.

Damages - General damages - Personal injuries - Inter alia, fracture of upper jaw - Swelling and haematoma of upper lip and four upper front teeth loose - Award of £450. [*990]

Damages - Special damages - To be specifically pleaded - Personal injuries - Medical fees

- All expenses reasonably incurred in treatment of injuries - And expenses incidental to attempt to effect a cure or to lessen the amount of injury - In the circumstances of this case plaintiff has not acted reasonably - Deprived of part of medical fees incurred abroad.

Damages - Special damages - Personal injuries - Loss of earnings - Injuries while on holiday in Cyprus from foreign country - Stay in Cyprus not prolonged because of injuries - And plaintiff not prevented from earning wages during time he was disabled - No award for loss of earnings.

Common Law - Applicability in Cyprus - See, also* under "Civil Wrongs”.

Local Authority - Liability for negligent acts of independencontractor - See, also, under "Negligence".

Medical Fees - See under "Damages”.

G. Cacoyannis, for the Plaintiff.

J.P.Potamitis, for Defendant No. 1.

R. Michaelides, for Defendant No. 2.

JUDGMENT

The judgment of the Court was delivered by:-

STYLIANIDES, P.D.C.: Defendant 1 is the Municipality [*991] of Limassol (hereinafter referred to as the "Municipality" ). The Municipality was established by Law 64/64, and is a legal person of Public Law. (Section 3(1) and 4 of Law 64/64). The Municipality is vested with power and has the duty, inter alia, to keep all streets within the Municipal limits clean and in good repair, and sufficiently drained. (Section 8 of Law 64/64 and Section 123 of Cap. 240).

The Municipality in 1968 prepared plans and specifications for the construction of a storm water drainage system for a considerable part of the old town of Limassol 1 from and including Gladstone Street southwards, down to the sea shore. (See Exh. 11, plan of the drainage system).

Defendants

2 are a reputable company and one of the biggest and well known contractors in Cyprus. Their line of business is mainly building construction and they have executed works similar to the aforesaid drainage system in Cyprus and abroad.

In August, 1968 the Municipality and the Defendant Company (hereinafter referred to as the "Contractor") entered into an agreement whereby the Contractor undertook to construct the aforesaid drainage system of Limassol. The Contractor took upon himself not only to perform the works but to place all necessary warning lights, traffic signs, and generally to take all measures for precaution and warning of the road users.

In order to co-ordinate the works with the programmes of other public corporations and to obtain the sanction and assistance of the police, a meeting was held [*992] on 23/6/68 which was presided over by the District Officer. The Municipality, the Contractor C.Y.T.A., the Electricity Authority of Cyprus, the Water Board of Limassol and the police officer in charge of the Traffic Branch of the Limassol police participated in that meeting. Mr. Droushiotis, the Municipal Engineer, and Mr. Kakoutas, Civil Engineer and the Limassol Manager of the Contractor, attended the meeting on behalf of the Municipality and the Contractor respectively.

Mr. Droushiotis, who testified as D.W.1 for the 1 Municipality, stated that Mr. Kakoutas requested that the police would supervise from time to time and especially during night time so that users of the road would not remove the warnings and other signals which the Contractor would place at various points in the course of the execution of the work, as young persons might take away or remove those signals, or other warnings, and that cars would not he allowed to run on those particular parts of the streets and cause damage to the works under construction. The police officer, however, gave an assurance "that every possible help would be rendered by the police to the Contractor so that the roads would close with safety and that cars would not be allowed to be driven at the place of work". The police would patrol the streets for that purpose.

Mr. Kakoutas, D.W.1 for the Contractor, stated that the police undertook to advise the Contractor with regard to the cutting off of the road, the sufficiency for the traffic, and, further, to look after the installations of the Contractor even after working hours as it would be [*993] very difficult for the Contractor to engage his own servants continuously for this purpose* and for a further reason: that citizens might not obey the Contractor's employees.

We prefer on this point the evidence of Mr. Droushiotis.

The works of Gladstone Street, which is one of the main and most frequented streets of the town, proceeded from east to west. Trenches were excavated with a mechanical digger, pipes were laid and the trenches were filled with soil. At certain points man-holes or inspection chambers were dug and constructed. As it appears from the plan (Exh. 11), the sketch (Exh. 10) and the evidence of Kakoutas, in the middle of Gladstone Street facing Aristofanous side road, the first man-hole was located - the last man-hole to the west; it is the one nearer to "The Five-Ways" cross-road. This man-hole had external dimensions of 90 cm. approximately. Its walls were made of concrete 15 cm. thick and there were two main drains connecting on to this man-hole. One was 60 cm. in diameter and the other 40 cm. These drains were connected at the lowest point of the man-hole, In addition there were five - on Exh. 11 six are shown - other drains of 6" in diameter which connected on to this man-hole at about 18" below the existing surface of the road. The width of the excavation for each one of these five or six drains was 15”. When the man-hole was dug, shuttering was placed to the correct dimensions and then concrete was poured between the shuttering to fill the area between the shuttering and the earth that had been excavated.

Then the slab on the top was placed leaving the hole necessary for the man-hole [*994] cover frame to be placed. Finally the metal cover was placed on

top.

Gladstone Street was to be re-surfaced and take another shape as far as the slopes were concerned and, therefore, the man-hole covers were placed in such a position that when the re-surfacing would have been done, it would not require re-positioning. Some of them were made at a higher level than the road by about three inches. The man-hole cover was 1 -1½" thick. Thus, the man-hole was protruding 4" over the road. By the 3/4/69 the works undertaken by the Contractor at Gladstone Street were almost complete with the exception of a few side roads - Aristofanous was one - and minor other things.

On the night of 3/4/69 the Plaintiff, a Limassolian who emigrated to Australia in 1950 and was a visitor in this country from September, 1968, drove his car under Regn. No. CV 133 from Heroes’ Square to Gladstone Street. After travelling for about 60 - 70 metres in Gladstone Street he met with an accident when he came across this man-hole. He sustained personal injuries and his car was damaged. Hence this action whereby he claims special and general damages for personal injuries received and material damage to his car. His evidence, taken preparatory to the hearing by another bench, and a typed copy of the minutes thereof, are Exh. 1 and 1A respectively.

On the issue of liability two witnesses testified for each of the three parties in this action, namely, P.W.3

Costas Socratous, a person who sells fruit on the pavement [*995] at the corner of Gladstone Street and Aristofanous side street,

and P.W.4 Demetris Potamitis, a bank employee; D.W.1 Christakis

Droushiotis, the Municipal Engineer, and D.W.2 Takis Evgheniou, an employee of the Municipality for Defendant 1, and, Christakis Kakoutas

and Klitos Papadopoullos, Manager in Limassol and the foreman of the Contractor respectively.

Costas Socratous is not a reliable witness. On material points he is contradicted by the Plaintiff's evidence and by P.W.4 Potamitis. His description of the man-hole is erroneous and deceptive. We are of the view that he did not witness how the accident occurred as at the material time he was busy selling something to a driver who, as the Plaintiff stated, had stopped by the said witness’s kiosk.

As the evidence of the Plaintiff was taken by another bench, we did not have the advantage to hear and observe the witness.

Demetris Potamitis (P.W.4) is a witness of truth. We accept his evidence. It is significant that the advocates of all parties in their final addresses laid stress on the evidence of this witness.

We consider pertinent to state in brief the facts as they emerge from the evidence, as we accept it, and elaborate on them when dealing with the various aspects of the case.

Gladstone Street, in general, and the scene of the accident, in particular, is well illuminated by street [*996] lamps of 125 watts, the light coming from the illuminated advertisements and the buildings. The asphalt close to the point of the accident had been excavated and new resurfacing was envisaged

after the completion of the drainage system which was constructed by the Contractor for the Municipality. A man-hole, a

main trench and other side trenches were dug. The man-hole inspector chamber was completed and a metallic cover was placed in position. It protruded 4" over the surface of the road. There was a hollow 2 × 3 ft. created by the Contractor in the course of the execution of the work. In the middle, the man-hole was protruding the protrusion round that hollow was 6" deeper than the road. Thus, the cover was 10” from the depth of the hole. (See Exh. 2, rough sketch prepared in Court by P.W.4 Potamitis). This man-hole was the first part of the drain to the west, in the direction of "The Five-Ways" cross-road. Opposite this man-hole is Aristofanous side street, which was excavated, and a heap of soil was blocking the way from Gladstone Street to Aristofanous side street.

The man-hole and the hollow round it constituted a peril to road users. There was nothing to warn a person driving from "Five-Ways" in an easterly direction of this danger which lay ahead. A single rusty white-washed barrel was found by P.W.4 Potamitis blocking Aristofanous street.

Shortly prior to the accident, which gave rise to this action, another car had fallen into this top hole and its exhaust had been damaged. [997]

One could not notice this real danger to road users from a distance. One could see soil from a distance of 5 - 6 metres hut would realise the treachery of the condition of the road on reaching almost on top of the man-hole.

The Plaintiff drove his car from Heroes’ Square to Gladstone Street 60 - 70 metres west of the dangerous spot. Maintaining a speed of 15

- 20 m.p.h., he drove for the first time during his stay in Cyprus in an easterly direction, and his car fell into the hole and struck the man-hole. Bystanders rendered him assistance and his car was carried from the scene to Agathangelos Garage for repairs.

P.W.4 Potamitis placed the aforesaid white-washed barrel on the point where the Plaintiff's car struck in order to protect other road users from falling into the same top hole. He did this sensible act notwithstanding the protest and opposition of other bystanders.

It was submitted by Counsel for the Defence that this case is outside the ambit of Section 51 of the Civil Wrongs Law governing negligence, and as that statutory provision is exhaustive, the Defendants have no liability in law.

The law applicable in this country according to Section 29 of the Courts of Justice Law is:-

"(a) ……

“(b) The Laws saved under Article 188 of the Constitution

subject to the conditions provided therein save in so far as other [*998] provision has been or shall be made by a law

made or becoming applicable under the Constitution”.

“(c) The Common Law and the doctrines of equity save in so far as other provision has been or shall be made by any law made or becoming applicable under the Constitution or any law saved under paragraph (b) of this section in so far as they are not inconsistent with or, contrary to, the Constitution”.

The substance of paragraph (c) was first enacted in this country in 1935 (Courts of Justice Law, 1935, s.49( c)).

The Municipality was established under Law 64/64. This Law re-enacted by reference the provisions of Cap. 240 of the 1959 Edition of our laws. Section 123(1)(t) reads:-

“123(1) Subject to the provisions of this Law and of any other Law in force for the time being the council shall within the municipal limits” -

"(a) ............

"(b) .............

“(t) keep all streets clean and in good repair and sufficiently drained, lightened and clear of obstructions, and control the construction or alteration of any street, and divert or close any street and prevent obstructions thereover by awnings or otherwise;” [*999]

The Law governing liability arising ex delicto is the Civil Wrongs Law, Cap. 148. This Law purports to be a codification of the English Common Law.

Section 51 reads as follows: -

"51.(1) Negligence consists of –

“(a) Doing some act which in the circumstances a reasonable prudent person would not do or failing to do some act which in the circumstances such a person would do, or”

“(b) failing to use such skill or take such care in the exercise of a profession, trade or occupation as a reasonable prudent person qualified to exercise such profession, trade or occupation would in the circumstances use or take”,

"and thereby causing damage:

“Provided that compensation there for shall only be recovered by any person to whom the person guilty of negligence owed a duty, in the circumstances, not to be negligent”.

"(2) A duty not to be negligent shall exist in the following cases, that is to say:-

"(a) ……

"(b) ……

"(c) ……

"(d) …… [*1000]

“(e) any person whether for reward or otherwise, exercising any profession, trade or occupation or rendering any service to any person upon whom, or upon the property of whom or to whom such person is exercising his profession, trade or occupation or rendering any service”.

Section 2(1) provides that this Law shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English law and shall be construed in accordance therewith.

This codification, however, is not exhaustive. In a series of decisions the Common Law was introduced and applied to supply remedies for injuries caused by tortious acts not provided for in the Civil Wrongs Law. (Vassiliou

v. Vassiliou, 16 C.L.R. (Rep.) p. 70; Universal Advertising and Publishinq Agency v. Panayiotis A. Vouros, 19 C.L.R. p. 87).

Hallinan, C.J., in Universal Advertising and Publishing Agency v. Panayiotis A. Vouros (supra) at p. 94 said:-

“But the paramount consideration in the English system of civil law is, I believe, to preserve such flexibility in the administration of justice as will enable the [*1001] Courts to adapt the law so as to meet the infinite variety of situation and circumstance that arise in every day life and to develop this Common Law so as to meet the needs of each succeeding generation This power of growth and development by the binding authority of judicial decisions is perhaps the most distinctive feature of the English system of law. It is an example of certain habits of thought and feeling which have produced some of England's greatest contributions to civilization. Other examples of this substratum of convictions are; a realization of the importance of the individual; a conviction that laws are made for man not man for laws; a distrust of too much rigid logic and symmetry which may cause hardship and atrophy; a belief that social and political institutions and law and customs should not be ordered and determined once and for all but should be allowed to grow and develop”.

“It is reasonable to suppose that the legislative authority in applying the Common Law to this Colony in 1935 had in mind these considerations which indeed are part of the ideals and beliefs that underlie all British administration. For this reason a Court, called on to interpret a provision such as [*1002] that contained in Section 28(1) (c), should not regard the Civil Wrongs Law as a stockade around the Common Law lest it break out and damage the citizens of Cyprus; in my view the Civil Wrongs Law is nothing more than transitory legislation intended to prepare the soil of Cyprus for the planting of the Common Law. I am not suggesting for a moment that all the provisions of the English Common Law are suitable for Cyprus; what I affirm is that it must he planted here as a living growth which can be pruned by legislation and judicial decision to suit local conditions; but it cannot flourish if it is chopped up into statutory definitions”.

In Christos Marcou v. Gregoria Michael, 19 C.L.R. p. 282, at p. 285 it was said:-

“Codes usually aim at a concise statement of legal principles; they are not intended to be a complete and exhaustive statement of the law. If they are to be administered without hardship, they must be adapted to the permutations of common affairs which should not be distorted to fit the Procrustean bed of a legal code”.

In Theofanou Akama & Another v. Niki Ioannou Tsiakoli, (1967) 1 C.L.R. p. 206 in which Section 50 of [*1003] the Civil Wrongs Law was considered, Triantafyllides, J., as he then was, said at p. 213:-

“Bearing all the above in mind, as well as the provisions of section 2(1) of Cap. 148 and of section 29(1)(c) of the Courts of Justice Law 1960 (Law 14/60), and the observations of Hallinan, C.J., in the case of The Universal Advertising and Publishing Agency v. Vouros (C.L.R. XIX p. 87), regarding the provisions of the Civil Wrongs Law vis-a-vis the Common Law of England, we have found much help in the Common Law in construing our section 50”.

In HadjiTheodossiou v. Koulia & Another, (1970) 10 J. S. C., 1063, Vassiliades, P., said this at p. 1076:-

“The matter is undoubtedly governed by the statutory provisions regarding negligence in section 51 of the Civil Wrongs Law, Cap. 148. These provisions originate and purport to codify the English Common Law regarding the tort of negligence. (See The Universal Advertising & Publishing Agency v. Panayiotis Vouros, 19 C.L.R. 87). But here in Cyprus, being statutory provisions, they must be read, interpreted and applied in such a manner as to give effect to the will and intention of the legislator; same as all other statutory provisions are construed [*1004] and applied by the Courts, in their function of fitting the law of the country to the living conditions therein; and of developing it, under the accepted rules of construction, so as to keep pace, wherever possible, with the developing conditions in the particular field which the legislator intended to serve by making the statute; until such statutory provisions be amended or replaced by subsequent legislation. How similar statutory provisions are construed and applied in another jurisdiction is extremely helpful to the Judge; but he must never lose sight of the fact that the statutory provisions which he is called upon to construe and apply were made by the country’s legislator with the object and intention of serving the people of this country; and they must, therefore, be construed and applied accordingly”.

In view of the authorities, the Civil Wrongs Law has to be interpreted and applied in accordance with Common Law precedents. We are of the opinion and so hold that the instances of negligence enumerated in Section 51 of the Civil Wrongs Law are not exhaustive and the Common Law is applicable in Cyprus, subject to the qualifications mentioned in Vouros and Hj.Theodossiou cases. [1005]

It is essential to the notion of a street that it should be open to all members of the public.

If persons acting under statutory powers interfere with a highway they must exercise due care to see that their works while in progress are so carried on that the public are not injured thereby. (Holliday,, v. National Telephone Company, (1895-1899) All E.R. (Rep.) p. 359).

In Charlesworth on Negligence, 5th Edition, para. 675, we read:-

“Duties in respect of a highway. It is a public nuisance to do any act on a highway which hinders or obstructs the free passage of the public along the highway, and for any damage sustained by an individual in consequence of such act, over and above the damage sustained by the public at large, an action will lie. The circumstances which give rise to such an action by an individual member of the public may conveniently be considered as part of the law of negligence, because of the breach of duty which takes place when-ever an obstruction or danger in the highway is created”.

In Penny v. Wimbledon Urban Council, (1895-1899) All E.R. (Rep.) p. 204 it was held that in cases in which the Local Authority has statutory powers to do something to a road, e.g. stopping it or opening it up so as to [*1006] make it dangerous for use, it is clear that there is a duty upon the Local Authority to take care that whatever they are doing under their statutory authority, the subjects are not injured by a careless performance of the work.

In Gray v. Pullen, (1864) 5 B. & S. 970 it was held that digging a hole or a trench in the highway and leaving it unguarded is negligence.

In McClelland v. Manchester Corporation, (1912) 1 K.

B. 118 it was held that where a Local Authority in pursuance of statutory powers puts some structure in the highway which is dangerous if unlighted, or where they construct a road in such a position or manner that it is dangerous if unlighted, they are under a duty to take reasonable steps to prevent their works from being a danger to the public. Jenkins, L.J., said:-

“It appears to us that the real answer to Mr. Waller's submission is that failure to light or give some other form of warning of an obstruction on the highway by a Highway Authority, who themselves created the obstruction, is taken out of the category of mere non feasors and brought into the category of mis feasors by their positive act of creating an obstruction giving rise to the needs of lighting or other means of warning”. [*1007]

A person who is clothed with statutory powers to do an act must, in doing it, exercise reasonable care to prevent injury to others unless he is absolved by the terras of the statute. (Great Central Railway Co. v. Hewlett (1916) 2 A. C. 511 H.L. at p. 525).

In Fisher v. Ruislip-Northwood Urban District Council, (1945) 2 All E.R., 458, Lord Greene, M.R.,said at p. 461: -

“Nevertheless, it is quite clearly established that undertakers entrusted with statutory powers are not in general entitled in exercising them to disregard the safety of others. The nature of the power must, of course, be examined before it can be said that a duty to take care exists, and, if so, how far the duty extends in any given circumstances. If the legislature authorises the construction of works which are in their nature likely to be a source of danger and which no pre caution can render safe, it cannot be said that the undertakers must either refrain from constructing the works or be struck with liability for accidents which may happen to third persons; so to hold would make nonsense of the statute. If, on the other hand,

the legislature authorises the construction and maintenance of a work [*1008] which will be safe or dangerous to the public

according as reasonable care is or is not taken in its constructions or maintenance, as the case may be, the fact that no duty to take such care is expressly imposed by the statute cannot be relied on as showing that no such duty exists. It is not to be expected that the legislature will go out of its way to impose express obligations or restrictions in respect of matters which every reasonably minded citizen would take for granted. If, for instance, in an area where there is no obligation to light the streets - and the area in question here is one - a local authority is empowered to erect a pedestrian refuge in the middle of the highway, but no express obligation is imposed to take reasonable steps to ensure that it will not be a source of danger, it would violate one’s sense of good citizenship to hold that the authority could erect a refuge in an unlighted street and take no steps to warn the public of its existence, Sheppard v. Glossop Corpn. As will be seen, some confusion has been introduced into the cases by treating the alleged duty as a duty to light the obstruction. This appears to me to be a misconception. Lighting in such a case is no doubt the obvious and simplest [*1009] measure of precaution during the hours of darkness. But the duty, if it exists, is, as I see it, not a duty to light (unless that be, in the circumstances, the only possible effective precaution) hut a duty to take reasonable steps to prevent the obstruction becoming a danger to the public. In a given case there may be other steps which can be taken which would be as effective as lighting, or which a jury might hold to be sufficient. Moreover, the duty, if it exists, must exist in the daytime as well as at night, since certain kinds of obstruction may be dangerous in the daytime unless suitable warning is given of their existence. Thus an obstruction might be placed at a blind corner in such a position that a person driving with reasonable care would be likely to run into it. In such a case the duty, if it exists, would not be merely a duty to light the obstruction at night – it would be a duty to take reasonable steps to give the public due warning of its existence both at night and during the day”.

And, at p. 462:-

“Negligence is the breach of a duty to take care. That duty arises by reason of a relationship in which one person stands to another. Such a relationship [*1010] may arise in a variety of circumstances. It will, to take a simple instance, arise when a person exercises his common law right to use the highway - by doing so he places himself in a relationship to other users of the highway which imposes upon him a duty to take care. Similarly, if the right which is being exercised is not a common law right but a statutory right, a duty to use care in its exercise arises, unless, on the true construction of the statute, it is possible to say that the duty is excluded. If, for instance, the statute expressly authorises the doing of a specific act in a defined manner, no liability arises if the act is done in the manner defined, even if by taking some additional precaution a greater degree of safety could be attained”.

In The Electricity Authority of Cyprus v. Kipparis, 24 C.L.R., p. 121, Bourke, C. J. , said at p. 128: —

“In my judgment this Public Authority, the appellant, constituted to render a service to the public, owed a duty to the respondent as a member of the public to take reasonable care when engaged in a course of action required for the rendering of its service - in this case the digging of [*1011] a trench by the public road. The wide scope of paragraph (e) of section 47(2) (now section 51 of Cap. 148 of the 1959 Edition of our Statute Laws) was expressly recognised in Vassiliou v. Mitsi (unreported) where the learned Judges said”:

“’The only remaining paragraph is (e) and in view of the restricted number of persons affected by paras. (a) to (d) we must hold that this paragraph (e) was intended by the Legislature to impose a duty not to be negligent on the very wide range of persons unaffected by the other paragraphs. In the other paragraphs a duty not to be negligent arises only in respect of a person who stands in some peculiar relationship towards either immovable property or to some vehicle or other means of conveyance. Paragraph (e) refers to persons generally performing services for other people either in the way of their profession or not and whether for payment or otherwise, and imposes on them a duty not to be negligent’”.

From the evidence of witnesses Potamitis, Droushiotis, Kakoutas, Papadopoullos and Evgheniou it is abundantly clear that the man-hole and its cover, and the hollow round, were a danger to users of the road and, therefore, the duty rested on those who executed the works to warn sufficiently the road users of this danger. [*1012]

We need not repeat the pronouncement of Evershed, M. R., quoted above, with regard to what is sufficient warning.

At the time of this occurrence there was no warning whatsoever on the man-hole itself. The evidence of Potamitis is to the effect that a white-washed barrel was at the opening of Aristofanous Street. The Plaintiff himself, in his testimony which was produced as Exh. 1, stated that there was no warning whatsoever.

Droushiotis, the Municipal Engineer, stated that it was upon the contractor, according to the agreement, to place at dangerous points barrels with phosphorescent paint and sign posts. He further stated that white-washed barrels were placed on the top of the man-holes in cases where these man-holes were above the level of the ground or lower, and

thus they formed an obstacle on the road. Other sign posts with phosphorescent paint with the letters “ΔΛ”, standing for “Δήμος Λεμεσού” (the

Municipality of Limassol) and the word “ΠΡΟΣΟΧΗ” were placed so that nobody would strike them. He explained that

lanterns were not used as they might go off or somebody might steal them. It is significant, however, that this witness stated the practice that ought to have been followed and not what was actually done as it was not within his duties to inspect the area himself and, at any rate, he did not visit Gladstone Street on the date of the accident or at a proximate date.

Evgheniou, a Municipal employee whose task was to supervise on behalf of the Municipality the works done by the contractor with regard to the drainage system so that [*1013] the contractor would comply with the specifications in the contract, was visiting the place of work during working hours only and stated that white painted barrels were placed at dangerous points on the man-holes and at intervals. Lanterns were placed on top of the barrels.

These lanterns were of the flashing type. Kakoutas, the Limassol Manager of the contractor, who knew better, stated that at the material time no lanterns of the flashing type were used as they had not by that time been imported in this country. Therefore, this statement of Kakoutas demolishes the evidence of this young Municipal employee. Evgheniou could not and did not remember if any warning sign was placed on this dangerous man-hole on 3rd April, 1969. It is significant that Evgheniou never visited the place of the works after 4. 00 p.m. He never visited Gladstone Street during night time. His evidence referred only to the general practice followed or which should have been followed.

The evidence of Kakoutas was limited to the general system of work followed by the contractor. He came to know of this accident in February, 1970. The contractor was responsible for barrels to be placed over these man-holes and remain there as a warning to road users. The general practice was to place white-washed barrels with a wooden block, with a luminous sign, on top. This wooden block consisted of a piece of wood with a phosphorescent circle on each one of its four sides, which circle reflected. Flashing lanterns were imported in this country only late in 1969. He could not speak [*1014] specifically about this particular man-hole on the day of the accident or on any other day.

Papadopoullos, the foreman of the contractor, who was supervising the work in Gladstone Street, stated that on 3rd April, 1969 the work in Gladstone Street, with the exception of this man-hole, was almost complete; the slab was cast and the metal cover was placed on it; the side trenches were filled with soil. He stated that more soil was used so that in case it settled it would still be above the old street level. On the day in question, at 4.00 p.m., before leaving this man-hole they placed in front of it a white sign post with the words "ROAD CLOSED" written in red on it in two languages. The sign post to his recollection was not luminous or phosphorescent.

The contradictions in the evidence of the Defence witnesses are apparent and we need not go into them. It suffices to say that Droushiotis and Kakoutas spoke only of either the practice desired or the general system which was either followed or expected to be followed by the men at work. The evidence of Evgheniou is discarded as. his recollection, in our opinion, is faint and he failed to attend the place after 4.00 p.m. The version of Papadopoullos is a completely different one. If any sign post, as described by him, had been placed there, Potamitis would have seen it either in its place or at some point in the street. He saw nothing else but the barrel at the junction of Aristofanous Street. [*1015]

It is significant that in paragraph 10(b)(2) of the Statement of Defence of the contractor it is contended that the contractors discharged their obligation "by installing and placing a barrel over the man-hole which '''was painted in white upon finishing their work in the afternoon".

Paragraph 11 of the same Statement of Defence reads:-

“Defendants 2 allege that the said barrel had been tampered with, removed or thrown away by trespassing and/or otherwise acts committed by third parties and which acts were not foreseeable and/or otherwise and which acts occurred in the meantime”.

Was the barrel, allegedly placed by the labourers of the contractor on the man-hole, removed by unauthorised persons to the point where it was seen by P.W.4 Potamitis, or was it left at the junction of Aristofanous Street by the labourers of the contractor? Was this barrel sufficient warning?

It is common ground that Gladstone Street, and particularly the point of this accident, is well illuminated by street lighting and the lights coming from the advertisements and the nearby shops. The white-washed barrel placed on the man-hole, having regard to its size and to its paint, would constitute a sufficient warning to a reasonable road user. If there had been any other additional luminous sign, that would have been better but we do not think, [*1016] in the circumstances of this particular case, that such a high standard of care should have been put on those who created the obstruction- Even if the barrel had been placed at 4.00 p.m., there was no inspection of the site at night to ensure that it was in position.

Gladstone Street is one of the busiest roads in this town. Prom the evidence before us we are satisfied that unauthorised persons might remove an empty barrel from its place. This is borne out by the evidence of Droushiotis of what transpired between the Manager of the contractor and the representative of the Police at the meeting held at the District Administration. It is also borne out by the evidence of the other witnesses who testified in this case.

P.W.4 Potamitis stated that many people would remove the barrels. After the accident he placed the barrel on the man-hole but Other bystanders objected, saying that other road users might hit the barrel, and Potamitis remarked: If they don’t see the barrel then "they will hit it". Klitos Papadopoullos, D.W.2, the foreman of the contractor, said: "With the people we have now, you place 10 barrels and they open and pass and one barrel is not enough to protect all the road, and it is easy to move one". The above are indicative of the attitude of the people who frequented Gladstone Street, and this attitude was common knowledge in Limassol; this was or ought to have been within the knowledge of the contractor's servants. [*1017]

The contractor had the duty, in the circumstances of the present case, not only to place a warning but to ensure that such warning was kept in position. The Police, from the evidence of Droushiotis, did not undertake on behalf of the contractor this task. They undertook to see that the roads were closed; Droushiotis did not state that the Police undertook to supervise that any barrels, or any other sign post, would be kept in position and not removed.

In Murray v. Southwalk London Borough Council (1966) 65 L.G.R. , 145 it was held that failure to provide enough night watchmen to guard roads under repair in order to prevent people extinguishing or stealing the warning lights marking out the road works’ danger area where hooliganism is rife in the locality, amounts to negligence.

In Lilley v. British Insulated. Calendars Construction Co. Ltd., reported in The Times, 12th November, 1968, a company doing excavation work in a residential road in Bromley, Kent was held to be under no obligation to arrange for periodic inspection of the site at night to ensure that barriers were in position and warning lights had not been extinguished.

The Court of Appeal allowed an appeal against the decision of the County Court which found the Defendant negligent in failing to keep an excavation lit. Mr. Lilley was injured when he collided in his car after dark with an obstruction left in the road by the. Defendants. L.J. Danckwerts said that the accident had taken place in [*1018] Tylney Road at about 10.50 p.m. Mr. Lilley's evidence was that there were no lights or guard rail round the obstruction.

The question was what standard of care the Defendants should have adopted. The evidence had been given that at about 8.30 p.m. on the evening in question the barriers were in position and the lights were burning. Some time before Mr. Lilley's arrival someone had interfered with the barriers and the lights. The real issue was whether the Defendants ought to have had a man to inspect the lights periodically during the night. There was evidence that the Defendants took such a precaution at their main sites. Tylney Road was in a quiet residential district. There was no evidence of vandalism before the accident. His Lordship considered that the Judge had put too high a standard on the Defendants. They had taken reasonable -precautions and were under no obligation to send a man to inspect that site.

The test to be applied, having regard to the circumstances, is foreseeability. Was it foreseeable to a reasonable contractor that a warning like an empty barrel could be removed by unauthorised persons or not? From the evidence before us we are satisfied that this was within the knowledge and foreseeability of the contractor. Gladstone Street is not a quiet residential side road. All sorts of people frequent that road. The man-hole was almost in the middle of the road. An empty barrel could easily be removed by any road user, and this was or should [*1019] have been within the contemplation of the contractor. There is no evidence that either any servant of the contractor or the Police inspected the place and saw the barrel in position at any time after 4.00 p.m. when witness Papadopoullos alleges that it was placed on the man-hole.

In view of what we have said, even if the barrel had been placed at 4.00 p.m. on this man-hole, the contractor, as he did not take steps to ensure that it remained in position to warn road users of the danger, failed in his duty and is liable. This case is distinguished from Lilley’s case.

Furthermore, having considered carefully the evidence of the foreman Papadopoullos, we are not satisfied that the only barrel seen by witness Potamitis at the opening of Aristofanous Street was placed by the workmen of the contractor on the man-hole. papadopoullos endeavoured unsuccessfully to prove that he took more steps than set out in the Statement of Defence. We reject his evidence.

We find that the contractor is liable; he was guilty of negligence. His negligence is within the ambit of paragraph (e) of sub-section 51(2) of Cap. 148, which is wide enough to cover the negligence alleged in the present action. But even if it were not, the common law is applicable.

Liability of the Municipality

The Municipality is the authority which was [*1020] empowered by Law to construct the drainage system of Limassol. It was submitted by learned Counsel for the Municipality that the contractor was an independent contractor. The Municipality was not negligent in the selection of such contractor as, admittedly, the contractor is one of the most reputable firms in the Island who has executed similar works in Cyprus and abroad. The Municipality did not interfere with the work of the contractor in such a way as to 'cause injury or damage, and the Municipality is not liable for any acts or omissions committed by the independent contractor. He further submitted that Section 12 of the Civil Wrongs Law is an exhaustive section and that as the Plaintiff did not succeed to bring his case within the ambit of this section which governs liability for acts committed by other persons not being servants, the Municipality was not liable.

In England the Law governing liability for acts of an independent contractor has undergone, during the last century, a process of evolution. Before 1876 the general rule of no liability for the acts of an independent contractor was well established, and regularly followed, but it was also well established that a person might be liable: (1) where he had himself been negligent, despite his employment of the contractor, or had otherwise made himself liable as a secondary party, or (2) where he was himself under some direct and peremptory statutory duty.

In Gray v. Pullen, (1864) 34

L.J.Q.B. 265, the Defendant was authorised by statute to dig up the road [*1021] in order to connect his house to the

main drain. The Defendant employed a contractor to do the work, but the contractor filled in the ditch negligently and the plaintiff was injured while using the highway. The Court of Exchequer found that the Defendant was liable on the ground that the statute which authorised the householder to dig up the highway imposed the duty of making it good again afterwards directly on him.

In Tarry v. Ashton (1876) 45 L.J.Q.B. 260, the Defendant employed an independent contractor to repair a lamp attached to his house and overhanging a footway. As it was not securely fastened the lamp fell on the Plaintiff, a passer-by, and the Defendant was held liable, because as Lord Blackburn said; -

“It was the Defendant's duty to make the lamp reasonably safe ……. The contractor failed to do that ..... Therefore, the Defendant has not done his duty and is liable to the Plaintiff for the consequences”.

He proceeded to say: -

“It can make no difference in point of principle whether the obligation was imposed by statute or existed at law”.

In Dalton v. Angus, 50 L.J.Q.B. 689, a House of Lords case, Lord Blackburn made the following general pronouncement:- [*1022]

"Ever since Quarman v. Burnett it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of the contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it".

The case of Hardaker & Another v. Idle District Council & Another, (1895-1899) All E.R. (Rep.) p. 311 proved a turning point in this branch of the Law. The Defendant Council engaged a contractor to construct a sewer under a highway. Due to the negligent performance of the work, a gas pipe was fractured by the contractor’s men and an explosion took place, which caused injury to one of the Plaintiffs and damage to the Plaintiffs' furniture in their house adjoining the highway. It was not attempted to be proved on behalf of the District [*1023] Council that they had taken any precautions whatever; the sole point taken at the trial on their behalf was that they had delegated the performance of the works to a contractor, and, therefore, were not liable. It was held that the local authority would not perform the duty which they owed to the Plaintiffs by merely constructing a proper sewer; to fulfil that duty they were also bound to see that as a result of the work, which must necessarily be attended by the risk of interfering with gas and other pipes, no breakage of a gas pipe occurred which might lead to injury or damage to the Plaintiffs; therefore, the negligence of the contractor could not be said to be collateral to the work, for which the local authority would not be liable, and, the damage not being too remote, the Plaintiffs were entitled to succeed.

In Penny v. Wimbledon Urban Council (1895-1899) All E.R. (Rep.) p. 204 the District Council entered into a contract with the other Defendant, who was the contractor, to do the work. In the course of doing the work Iles placed heaps of soil, which had been removed from the surface of the road, by the side of the road. These heaps of soil were not lighted or in any way protected. The Plaintiff was crossing the road at night in order to get to the road in which she lived, and fell over one of the heaps and was injured. It was held that it was the duty of a district council to take precautions to prevent the work which was being done by their order from being dangerous to the public, and, therefore, they were liable for the neglect of that duty by the contractor. [*1024]

Vaughan Williams, L. J., after referring to the authorities, said at p. 208;-

“In all those cases the principle applied was that, if a contractor was intrusted with the performance of the duty of the employer, the employer could not rely upon the employment of the contractor in order to escape liability if the duty was not performed. In cases such as this, in which the local authority has statutory powers to do something to a road, e.g., stopping it or opening it up, so as to make it dangerous for use, it is clear that there is a duty upon the local authority to take care that, whatever they are doing under their statutory authority, the Queen’ s subjects are ’not injured by a careless performance of the work. Apply that principle to the present case. This road was being made up, and that work must at some time give rise to danger. It was, therefore, the duty of the statutory authority to take care, by providing fencing, lights, or watchmen, that persons coming there were not injured. Here it happened that those precautions were not taken, and the plaintiff was injured. Therefore, I think that here, as in Pickard v. Smith, there was a duty incumbent upon his employer [*1025] which was intrusted to the contractor, who neglected its fulfilment, whereby an injury was occasioned to the plaintiff”.

In Holliday v. National Telephone Co., reported in the same volume of the Reprints, page 359, the defendants were lawfully laying telephone wires under a street and employed an independent contractor to make certain connections. A plumber employed by the contractor dipped a blow-lamp into molten solder, causing an explosion which injured the plaintiff. The Court of Appeal held that the Defendant Company was liable. A.L. Smith, L.J. , said:-

“Where a person is executing work upon a public highway, he cannot escape liability by employing an independent contractor, because there is a duty cast upon him to see that the work upon the highway is so carried out as not to injure persons who are using the highway”.

In Salisbury v. Woodland

(1969) 3 All E.R. p.863 Widgery, L.J., as he then was, at p. 868 said:-

“In truth, according to the authorities there are a number of well-determined classes of. case in which this direct and primary duty on an employer to see that care is taken exists. Two such classes are directly relevant for consideration in this case. The first class concerns what have sometimes been described as ’extra hazardous acts’ – acts [*1026] commissioned by an employer which are so hazardous in their character that the law has thought it proper to impose this direct obligation on the-employer to see that care is taken”..............

“The second class of case which is relevant for consideration of the present dispute concerns dangers created in a highway. There are a number of cases on this branch of the law, a good example of which is Holliday v. National Telephone Co. These, on analysis, will all be found to be cases where work was being done in a highway and was work of a character which would have been a nuisance unless authorised by statute. It will be found in all these cases that the statutory powers under which the employer commissioned the work were statutory powers which left on the employer a duty to see that due care was taken in the carrying out of the work, for the protection of those who passed on the highway. In accordance with principle, an employer subject to such a direct and personal duty cannot excuse himself if things go wrong merely because the direct cause of the injury was the act of the independent contractor”.

Harman, L.J.,said (875):-

“The first defendant, through his wife employed an apparently competent contrac-[*1027] tor to do the work and therefore on general principal he is not liable for that contractor’s negligence. There are well-defined exceptions to that rule”.

After referring to cases in which a person, through a contractor, does work which from its nature is likely to cause danger to others, he continued:-

“The second exception is a special one - that of work on the highway. There, liability for independent contractors arises because those who have statutory authority to dig up a highway themselves owe a duty to the public using that highway, and the fact that they have a statutory authority to excavate does not; absolve them from that duty even though they employ an independent contractor to do the work. It is not a vicarious liability at all but a direct one”; (underlining ours)

This principle of liability for non-delegable duty is part of the Law of Cyprus.

At common law a land owner is liable for the acts of an independent contractor in depriving a neighbour of his right of support.

In Mehmet Dervish v. Melek Sami, (1963) 2 C.L.R. p. 82 Josephides, J., said:-[*1028]

“In my judgment the appellant cannot escape from the responsibility of seeing that duty performed by delegating it to an independent contractor. In the present circumstances the principle enunciated in the speech of Lord Blackburn in Dalton v. Angus (1881) 6 App. Cas.

740 at p. 829, is applicable. I am of the view that sections 51 and 12 of our Civil Wrongs Law, Cap. 148, with regard to negligence, have to be interpreted and applied in accordance with common law precedents. (Cf. Vassiliou v. Vassiliou (1939) 16 C.L.R. 69; The Universal Advertising and Publishing Agency v. Vouros (1952) 19 C.L.R. 87; The Queen v. Brodotou

(1952) 19 C.L.R. 144; Markou v. Michael (1952) 19 C.L.R. 282; The Electricity Authority of Cyprus v. Kipparis

(1959) 24 C.L.R, 121 )”.

Though this was a dissenting Judgment it is in accord with the general trend of the legal interpretation and application of the Civil Wrongs Law in this country and is based on good authority.

In the present case the Municipality employed a competent Independent contractor; the Municipality was not thereby released from its duty to take care that road users were not injured by a careless performance of the work. The contractor, by agreement with the Municipality, took upon himself to perform this duty.[*1029] This is a contractual relation “between the Municipality and the contractor. The Municipality may be entitled to indemnity but is not absolved from its liability to the injured Plaintiff. No reasonable steps were taken to warn the public of the existence of the obstruction and/or the peril created by the man-hole and the hollow trenches. The Municipality failed in its duty and is guilty of primary negligence. This liability is direct and not vicarious.

Contributory Negligence

Counsel for the Defendants contended that the Plaintiff failed to use reasonable care for his own safety and/or contributed to his own damage.

Section 57 of the Civil Wrongs Law, Cap. 148 reproduced the provisions of the English Law Reform (Contributory Negligence) Act, 1945.

Contributory negligence does not

depend on a duty of care, it does depend on foreseeability of harm to oneself. (Patsallides v. Yiapani (19&9) 2 J.S.C. 263 at p.

278).

Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. (Jones v. Livox Q.uarries Ltd. (1952) 2 Q.B.608, [*1030] per Lord Denning, L.J., p. 615; O’Connell v. Jackson (1971) 3 All E.R. 129; Omer v. Pavlides & Anr. (1972) 5 J. S. C.p. 542).

In Davies v. Swan Motor Co. Ltd.,

(1949) 1 All E.R. 620, p. 632 Denning, L.J., said:-

“While causation is the decisive factor in determining whether there should Be a reduced amount payable to the plaintiff, nevertheless the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may he found by the Court to be ’just and equitable’, having regard to the claimant’s ’share in the responsibility' for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness. (See also The George Livanos (1965) The. Times newspaper, December 14;. Tessi Christodoulou v. Nicos Savva Menicou and Others (1966) 1 C.L.R. p. 17; Djemal v. Zim Israel Navigation Co. Ltd. (1967) 1 C.L.R. 277)”.

The Plaintiff in the present case drove his Moskvich car from a side road in Gladstone Street. He travelled for about 60 - 70 metres and he met with this accident. He was doing 15-20 m.p.h., he saw the hole [*1031] suddenly from a distance of 6 ft. only and had no time to take avoiding action. He drove over it trying to keep the man-hole between the wheels of his car. The street lighting, as we have already said, was very good.

P.W.4 Potamitis, who witnessed the accident from a distance of 3-4. metres, stated that from a distance of 5-6 metres one could see soil but could not estimate the depth of the hole. The dangerous spot consisted of the man-hole and its cover protruding 4 “ over the surface of the road and a hollow round it 2x2½ - 3 ft., 6“ deeper than the road. A person driving from “Fiveways “ to the dangerous spot would notice it suddenly. One would realise its depth only on reaching the top of it. There were no other vehicles on the road at the time of the accident and one could manoeuvre either to the left or to the right.

D. W.1 Droushiotis for the Municipality, stated that the man-hole and the protrusion were visible from a distance of 10-15 metres. He passed from that road frequently and he could see from a distance the protrusion and the barrel.

We prefer the evidence of witness Potamitis and the version of the Plaintiff. The Plaintiff noticed the obstruction too late as he could not have done so earlier. We have to bear in mind that the Plaintiff was driving along Gladstone Street for the first time and, therefore, what Droushiotis might have been able to see, because of the special knowledge he had, could not be visible from[*1032] the same distance by a reasonably prudent driver who had no knowledge of the excavations and/or the obstruction. Droushiotis did not state that he had any experience of noticing the obstruction without a barrel on it and, therefore, this is an additional reason why we prefer the evidence of witness Potamitis and the Plaintiff. The Plaintiff could not foresee the existence of the obstruction and, when he realised its existence it was too late for him to take such action as to avoid being involved in this acicdent. The test is: did he act as a reasonable person in the circumstances? The answer is in the affirmative and, therefore, he did not fail to take precautions for his own safety. Those who created the obstruction and left it unguarded and unlighted are solely to blame for this occurrence.

General Damages

The evidence for general damages comes from:-

(a) The Plaintiff himself,

(b) The oral testimony of Dr. Mavromoustakis, Dr. Tornaritis, Dr. Messis and Ayvaliotes, and,

(c) Pour medical reports: the medical report of Dr. Mackenzie dated 11/11/69 (Exh. 5); the medical report of Dr. Kenneth Heathfield dated 19/11/69 (Exh. 6); the medical report of C.L. Johnson, D.O., dated 5/12/69 (Exh. 7) and the medical report of Dr. Tornaritis dated 12/6/70 (Exh. 3).[*1033]

As a result of the accident the Plaintiff fell forward on to the steering wheel and his mouth hit on it. The upper part of the mouth was injured. He visited the clinic of the dentist P.W.2 Xenis Mavromoustakis who, on examination, found that the Plaintiff presented a swelling and haematoma of the upper lip and four upper front teeth were loose. X-rays were taken and a fracture, of the upper jaw was revealed. The loose teeth were wired and a hase was placed to support the loose teeth. The Plaintiff was followed up until 23/5/69 and thereafter he did not attend the clinic of this dentist whose opinion is that with the treatment he applied the Plaintiff must have recovered fully from this injury.

The Plaintiff' s hack was painful and he resorted to. Dr. Eleftheriades, a general practitioner. Early in October, 1969 he woke up with a stiff neck and he visited Dr. Archontides who gave him an injection and a piece of advice. He was X-rayed by Dr. Pavlides, but in the meantime - in three or four days - he felt that his left arm was paralysed. He saw Dr. Hj.Kakou at Famagusta who referred him to Dr. Messis, a Neurologist-Physhiatrist of Limassol.

On 24/10/69 Dr. Messis examined the Plaintiff and his findings were:-

Weakness of a group of muscles in the left upper extremity, namely of the biceps, deltoid, supraspinatus, infraspinatus muscles. Biceps reflex on the left was absent and the triceps in reflex was normal. The patient [*1034] had severe pain on extending the head up and to the left, which pain was radiating to the left arm. He also had some muscular spasm of the neck. An electro myogram with an E.M.G. machine was performed which showed evidence of denervation of the muscles, which means that the nerves going to those muscles were compressed and damaged. A myelogram was performed at the Limassol Hospital which confirmed a lesion compressing the nerve root between the 4th and 5th cervical vertebrae and a smaller lesion at the level between the 5th and 6th vertebrae. These clinical and laboratory findings indicated that the patient had cervical spondylosis, i.e. degenerative disease of the spine which compromises the foramen between the 4th and 5th vertebrae and a smaller one at the 5th and 6th which undoubtedly compressed the nerve roots passing through them. He recommended the wearing of a cervical collar in order to immobilise partially the neck, and in case the symptoms did not improve for a short while, to consult Dr. Spanos, a Neuro-Surgeon in Nicosia.

The Plaintiff then contacted a certain Haris Ayvaliotes, a qualified physiotherapist who, without examining the Plaintiff, advised him to travel to England.

The Plaintiff left for England where he was examined by Dr. Mackenzie, M.D., M.R.C.P., D.Phys.Med., D.G.H. Dr. Mackenzie on examination found that there was wasting of the left deltoid and spinati muscles. Movements of the cervical spine were symmetrical, but the left shoulder pain was brought on by flexion, left .side flexion and right rotation of the cervical spine. Active

elevation[*1035] of the left arm was limited to 80° but passive movement was full. Weakness was present in the left

deltoid, supraspinatus, infraspinatus and biceps muscles. All limb reflexes were sluggish and the left biceps jerk could not be elicited. X-ray showed loss of the cervical lordosis and disc degeneration at C4/5· The patient developed a fifth cervical palsy on the left the result of displacement of the fourth cervical disc. Dr. Mackenzie in his report (Exh. 5) noted; -

“The usual outcome is spontaneous recovery in one to three months. Treatment is necessary for the pain and to maintain mobilisa-tion at the left shoulder. Surgery is not advised”. (See Exh. 5 dated 11/11/69).

The Plaintiff resorted for further advice to Dr. Kenneth Heathfield of Harley Street and to C.L. Johnson, D.O. of Park Lane. In Exh. 6 Dr. Heathfield wrote:-

“Although his symptoms are improving I think he should wear the collar that Dr. Woolf prescribed all the time and do regular exercises for the weak muscles of the left shoulder girdle”.

“I think the prognosis for the recovery of full power of his muscles is quite good, but this may well take up to three months. In view of the fact the muscular paralysis is incomplete and the fact [*1036] his pain has very largely receded I would not advise surgical intervention”.

C.L. Johnson, D.O., in his report (Exh. 7) dated 5/12/69, noted: -

“I should think it will take a few months before near normal active movement of the left arm is possible”.

On 8/6/70 he was examined by Dr. Tornaritis, whose findings appear in his report (Exh. 3) and are as follows:-

“1. On inspection the atrophy of the muscles of the left shoulder girdle is barely visible”.

“2. Movements ,of the cervical spine are painless and the range within normal limits”.

“3. Movements of the left shoulder joint are painless and the range equal to that of the right side”.

“4. One centimeter circumferential difference between the left and right arms. No difference in the forearms”.

“5. No sensitivity deficit.

“6. X-rays of the cervical spine (8.6.1970, Dr. Sp. Pavlides) show normal lordosis of the cervical spine, with slight narrowing of the disc space at Civ-Cv with osteophyte [*1037] spur formation on the anterior and posterior corners of the involved vertebrae”.

Dr. Tornaritis in his viva voce evidence stated that the Plaintiff made a very good recovery and on 8/6/70 he was practically asymptomatic and the muscle . wasting had almost completely disappeared. The Plaintiff was suffering from cervical spondylosis for a long time prior to the accident due to degeneration and he had developed some pressure on nerves with resulting atrophy of the muscles of the shoulder. After treatment, which consisted of traction of the cervical spine, and physiotherapy, the effects, of the spondylosis subsided to a very great extent. There is a possibility that the accident precipitated the appearance of the symptoms. As atrophy of the muscles takes some time to come, Dr. Tornaritis opined that the Plaintiff, as a result of the impact, suffered a whiplash injury which is caused by acceleration and deceleration. The immediate symptom should.have been pain only and, by slow process, the pre-existing ill condition worsened and manifested itself with the symptoms of October, 1969.

Dr. Messis, however, stated:-

“The chances in the future that this patient could have a relapse by a sudden violent extension of the neck or a repeated accident, or some other Cause which would put his neck in strain are high, in other words, this happens; whether he would have the same [*1038] symptoms, the same severity of symptoms or just neck pain, this I cannot say”.

We bear in mind that prior to this accident he was suffering from cervical spondylosis and the prognosis of Dr. Ivies sis is general and not only for the injury received on 3/4/69,

The Plaintiff in his evidence on 1/7/70 stated that his only symptom was some pain.

Having regard to the fact that this car struck on the pot-hole in the road and the Plaintiff was thrown forward, knocking his teeth on the steering wheel and there should have been a sort of acceleration and deceleration movement, the whiplash injury is the result of the accident.

Taking into consideration the above and all heads under which reneral damages are awarded and having addressed our mind to other awards - we confess we could not trace a case similar to the present one - we have come to the conclusion that an award of 450 would fairly compensate the Plaintiff.

SPECIAL DAMAGES

(I) Damages to the car and Ioss of use

The Plaintiff’s car under Regn, Ιίο. GV 133, Moskvich make, was damaged. Bystanders pushed it out of the hole; it. was removed by P.W.6 Agathangelos Constantinou to his garage, .An assessor of the Plaintiff's Insurers, after having inspected the car, agreed with Agathangelos on the repairs to be carried out and the cost of such repairs. [*1039] The total cost including spare parts amounted to £151.115 mils In Exhs. U(a) this amount is itemised. Exh. 4(c), an invoice issued by Efstathios Kyriacos Bros. Ltd., describes in detail the spare parts purchased.

As the top hole was 10" deep and the bumper of the car was about 2 ft. high from the ground level, the Defence put to p.w.6, an old garage owner, that it could not be possible for the bumper, the grills, the radiator and the wheel cap to have been damaged as a result of this accident. Indeed, the Defence witnesses, especially Christakis Droushiotis (D.W.1), a Civil Engineer by profession and driver for over 30 years, stated that damage to the bumper and parts over it could not have been caused by this accident. The Defence witnesses, however, are at a disadvantage. They did not see the car before or after the occurrence. They did not witness the accident and they had no personal knowledge of the actual condition of the road. Furthermore, they are not motor mechanics.

The Plaintiff stated that the body of the car was lowered, the front axle of the car hit on the crown cover of the man-hole which was just beyond the hole on a higher level. P.W.6 Agathangelos was positive that the aforesaid parts of the car were dented and damaged and replacement was necessary. The bumper was 2 ft. high and the grills one inch over the bumper. The way of the fall and the suspension of the car are serious factors. It is not a simple question of arithmetic or heights. The unpredictable happens in accidents. We prefer the evidence adduced by the Plaintiff. [*1040]

The repairs lasted for 12 days. The Plaintiff hired an Austin 1 300 car and paid for 11 days (5-16/4/1969) £29.450 mils. He claims only £25 for loss of use and we shall award this lesser amount.

II. Medical Fees in Cyprus

It has been proved without dispute that the Plaintiff incurred £89 medical expenses in Cyprus, viz. Dr. C. Eleftheriades £12, Dr. Hg.Kakou £5, Dr. Messis £47, Dr. Efthymiou £15. Limassol Hospital for X-rays £8 and Ayvaliotes £2.

The Plaintiff, on the night following this accident, visited Dr. Mavromoustakis, a dentist. He presented a swelling and haematoma of the upper lip and four upper front teeth were loose. The X-rays taken by this dentist revealed fracture of the upper jaw. The loose teeth were fixed and wired and a plastic base was placed. This dentist charged £35- Though this amount is on the high side we do not consider it so high as not to allow it. Thus, the medical fees in Cyprus total £124.

III. Fares for travel to London - Extra expenses for staying in London - Medical fees incurred in England.

The Plaintiff claims £105 for a return air ticket to London, £100 extra expenses for staying in England and £110 medical expenses incurred there.

These expenses were in fact incurred. The Defendants impeached these expenses on the ground that they were unnecessary and unreasonable. The Plaintiff is [*1041] entitled, to recover all expenses reasonably incurred in the treatment of his injuries. He is entitled to expenses incidental to attempts to effect a cure, or to lessen the amount of injury. (Per Cockburn, C.J., in Phillips v. South Western Railway Go. (1879) 4 Q. B.D., 406 at page 408).

In Rubens v. Walker, (1946) S.

C. 215 at p. 216, Lord Patrick said:-

“In a former and very similar case - Buntine v. Caledonia Stevedoring Go. , June 15, 1944, unreported - I followed the dictum of Lord Collins in Clippens Oil Co., 1907 S.C.(H.L.) 9 at p. 14, where he said: ’The wrongdoer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after events that another course might have saved loss. The loss he has to pay for is that which has actually followed under such circumstances upon his wrong’. See also per Lord Dunedin in S.S. Baron Vernon. 1928 S. C. (H.L. ) 2-1 at p. 28. I said, then, and see no reason-to modify the statement, that this passage must surely apply where a pursuer is reduced by a defender's fault to a state in which medical diagnosis of his condition is difficult and fraught with the [*1042] chance of error. The pursuer is entitled to act on the advice of his experts, and the defender must pay the costs of that acting.... In my opinion it is a reasonable and probable consequence of a wrongdoer’s breach of duty that a person hurt will incur expense in following the treatment prescribed by reputable experts employed by him to cure him. Each case must be decided on its own merits. The result might be very different if the-injured person acted on the advice of a quack, or if, considering all the advice he had received, no reasonable person would have taken the course he did”.

At the expense of repetition we shall dwell on the examination of the Plaintiff by the various doctors, their advice and opinion; we consider this necessary in order to resolve whether the Plaintiff reasonably incurred these expenses.

The Plaintiff in the instant case was injured in April, 1969. In October, 1969, as he stated in his evidence which was taken preparatory to the hearing, he woke up with a stiff neck and his left arm was paralysed. He resorted to Dr. Eleftheriades and Dr. Hj„Kakou. The latter referred him to Dr. Messi (P.W.8), a Neurologist- Phychiatrist, who performed an electro-myogram. A myelogram was performed at the Limassol Hospital. The result of the clinical and laboratory examinations indicated [*1043] that the patient had cervical spondylosis.. The symptoms were: severe neck pain which was radiating to the left arm and some numbness of the dorsal surface of the index finger with less numbness of the right, and weakness of a group of muscles in the left upper extremity. Dr. Messis diagnosed a degenerative disease of the spine which compromises the foramen between the 4th and 5th vertebrae and a smaller one at the 5th and 6th which compressed the nerve roots passing through them. This doctor advised the Plaintiff to wear a surgical collar in order to immobilise partially the neck and in case the symptoms did not improve, to consult Dr. Spanos, a Neuro-Surgeon, for a possible surgical intravention to alleviate the pressure.

The Plaintiff immediately after, on the advice of Haris Ayvaliotes (P.W.7) left for London. Ayvaliotes is only a physiotherapist. He did not examine the Plaintiff. He simply saw him once. He diagnosed displacement of the disc and although he reached the conclusion that the patient was in need of manipulation only, he advised him to go to England. In a rather arrogant and unconvincing manner this physiotherapist stated in his evidence that no doctor in Cyprus was fit to apply any treatment. He could have cured him with manipulation .only but he did not wish to take the risk.

Dr. Tornaritis (P.W.5) had this to say on the matter in examination in chief:-

"Q. This treatment of whiplash, in the case of [*1044] the Plaintiff, did it necessitate any surgical operation?

"A. The treatment he received., no - traction.

"Q. Could he receive such treatment in Cyprus?

" Could you give him the treatment, for instance?

"A. Yes."

On 4/11/69 the Plaintiff was examined in London by D.Y. Mackenzie, whose report dated 11/11/69 is Exh. 5. The concluding paragraph of this report reads:-

“The usual outcome is spontaneous recovery in one to three months. Treatment is necesary for the pain and to maintain mobilisation at the left shoulder. Surgery is not advised”.

The Plaintiff sought further advice from Dr. Kenneth Heathfield, a Consultant Neurologist. In his report dated 19/11/69 (Exh. 6) this Neurologist noted:-

“Although his symptoms are improving I think he should wear the collar that Dr. Woolf prescribed all the time and do regular exercises for the weak muscles of the left shoulder girdle”.

The Plaintiff on 12/11/69 resorted to a third doctor in London, namely C.L, Johnson, D.O. (See report, Exh. 7, dated 5/12/69).

The Plaintiff visited. Dr. Messis for the first [*1045] time on 24/10/69. 'It appears that soon after this doctor completed, the clinical and laboratory examination the Plaintiff, who was a visitor in this country after

20 years absence in Australia, met or visited Ayvaliotes, and without following the advice of Dr. Messis,he paid heed to the suggestion of this physiotherapist who. is not a qualified doctor and who did not examine the Plaintiff.

True, this plaintiff was labouring under some anxiety.

Having carefully considered the evidence before us, we have come to the conclusion that this Plaintiff did not act reasonably. His trip to London was unjustified. It was a rash act of a person on holiday on the advice of Ayvaliotes. Even his seven-week stay in London was unjustified having regard to the dates of his examination and the advice contained in the first report.

We have come across much more serious cases in which injured persons received treatment in this country. We must not, however, be taken to say that in a proper case a person, justifiably travelling abroad for treatment, would not be compensated.

Had the Plaintiff not travelled to England he might have incurred further medical expenses in Cyprus. Is he entitled to any amount as special damages for such medical expenses?

Special damages should be pleaded specifically (Hayward v. Pullinger & Partners Ltd. (1950) 1 All E.R. 581). [*1046]

In Ilkiw v. Samuels (1963) 2 All E.R. 879, the Plaintiff was injured in an accident at work in 1958 hut his action for damages did not reach trial until 1963. In the Statement of Claim the only loss of earnings - claimed as special damage was for four months' absence from work immediately after the accident; this was agreed at £77. As the injuries reduced the Plaintiff’s earning capacity, some evidence was adduced to show that he had suffered a loss of earnings since the accident and before trial at about £200 a year. As special damage was agreed, no amendment of the Statement of Glaim was sought. The trial Judge awarded a sum in general damages which took into account the yearly loss of earnings between the accident and trial. The Court of Appeal held that the trial Court should not have done so and the award was reduced.

Diplock, L.J., said:-

“In my view it is plain law - so plain that there appears to be no direct authority, because everyone has accepted it as being the law for the last hundred years - that one can recover in an action only special damage which has been pleaded and, of course, proved. The evidence about the loss of earnings in excess of £77 was admissible, not as proof of special damage (which had not been pleaded) but as a guide to what the future loss of earnings of the plaintiff might be”. [*1047]

In paragraph 4c of the Statement of Claim the Plaintiff pleaded: "For medical treatment £C250". He proved that he incurred £110 medical expenses in London. These are the fees of the three doctors. The medical services of three doctors were obviously not necessary, though a second opinion might have been justified. Had the Plaintiff not visited the London doctors he would have incurred further medical expenses in this country. Such expenses would have been recoverable. We hold the view that an amount equal to two-thirds of the medical expenses incurred in London, i.e. £73 should be allowed.

IV. Loss of earnings

The Plaintiff in the Statement of Claim claims £680 for loss of wages for four months at £40 per week. The Plaintiff was born in 1924 in this country and in 1950 he immigrated to Australia where he established his permanent home; he runs a restaurant there. He came, to this country on holiday in September, 1968. His original intention was to stay in Cyprus for about eight months to one year. In examination in chief he simply said:-

“Owing to the accident I had to prolong my stay in Cyprus twice and this is the third time. I have a restaurant at Newcastle Australia and I earn over £100 a week. The restaurant is open but I pay £40 per week to someone who replaces me”.

In cross-examination he alleged that though his visa expired in June, 1969 he did not leave this [*1048] country because he was asked to stay and give evidence in this case. Further down he said that he obtained extension of his visa till December, 1969 because he had to give evidence. Suffice it to say that this action was filed on 24/10/69 - the second Defendant was added by Order of the Court dated 13/1/70 - and the amended Statement of Claim on 29/6/70, The Plaintiff’s evidence was taken preparatory to the hearing on 1/7/70.

It emerges from his evidence that he built a house in Limassol and he was visiting the site during the building operations. He got engaged three months prior to 1/7/7O and got married in May, 1970., He returned from London on 24/12/69. By then he was capable of driving a car.

It is our view and we so hold that he was incapacitated from work because of the injuries he received in this accident for a period of 7-8 weeks (October to December, 1969).

A wrongdoer is liable to compensate the injured person for the pecuniary loss sustained by the accident. The Plaintiff is entitled to be compensated for the deprivation of earnings which he would have received but for the accident.

Lord Goddard in British Transport Commission v. Gourley (1955) 3 All E. R. 796 at p. 804 said:-

“The basic principle so far as loss of earnings and out of pocket expenses are [*1049] concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened”.

In Bellingham v. Dhillon & Another (1972) 3 W.L.R. p. 730, the Plaintiff sustained personal injuries in a traffic accident. He claimed as special damages loss of the estimated profit from the use of a simulator. Forbes, J., at p. 735 said:-

“The damages are arrived at by a calculation in essence of extreme simplicity. Take the profits which the business would have earned on the hypothesis that the defendant’s wrong had not reduced them, and subtract from that figure the profits which the business in fact earned after the wrong had been suffered”.

The Plaintiff in this case at the material time was on holiday in Cyprus. He was doing no work. He was not earning. He did not intend to return to his work; he did not stay in Cyprus due to his injuries. He was not actually prevented from earning any wages during the time he was in fact disabled. He prolonged his stay in this country until July, 1970 accomplishing, as it was revealed in his evidence, two objects: he had a house built and found a wife. [*1050]

We are not satisfied that the Plaintiff suffered any loss of earnings "because of his injuries.

The special damages to which the Plaintiff is entitled total £373.115 mils.

In the result we give Judgment for the Plaintiff against both Defendants for £023·- with costs to be assessed by the Registrar.

There are three matters that we should mention: First, this case may serve as a warning to public bodies, contractors and injured plaintiffs. Second, for obvious reasons we very much regret the length of this Judgment. Third, all advocates appearing in the case devoted time and skill in the preparation and argument of this case and the Court is grateful for their assistance.

Judgment and order for costs as aforesaid.