Court awards damages for road accident negligence while excluding social insurance benefits from loss calculation.

[*519] 1978 June 20

(PAPADOPOULOS, S.D.J. & NIKITAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Andreas Maloupas,

Plaintiff,

and

Georghios Ioannou,

Defendant.

(Action No. 2731/75).

Negligence Road accident - Motor-car colliding with motor-cycle in the course of overtaking it - Duty to leave safe berth when overtaking another vehicle, particularly in the case of a motor-cycle - And duty to make reasonable allowance for some deviation from a straight course - Motor-car driver driving dangerously close to the motor-cyclist when overtaking him - Solely to blame for the accident.

Damages - General damages - personal injuries - Fifty-four years old coffee shop keeper sustaining head injury leading to moderate concussion - Displaced fracture of the neck of the right femur - His right limb becoming shorter and weaker - Restriction of all movements of the hip which are painful if forced - Pit for sedentary employment - Award of £6,500.

Damages - Special damages - Personal injuries - Damages for domestic assistance rendered by a relative - Whether recoverable.

Damages - General damages - Personal injuries - Social insurance benefits - Cannot be taken into account in calculating pecuniary loss - Social Insurance Law, 1972 (Law 106/72).

Y. Erotokritou, for the Plaintiff.

Ph. derides, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by:-

NlKITAS. D.J.:- The plaintiff in this [*520] Action claims damages for personal injuries that he sustained as a result of a traffic accident which occurred on the 3rd February, 1975 at about 7 a.m. in Digenis Akritas Avenue, Nicosia. The relevant evidence on liability comes from the litigants themselves and P.C. Schizas who investigated this collision.

It is desirable to deal first with the locus of the accident. We will refer in this respect to the evidence of the investigating officer which was virtually unchallenged. The part of the road where the accident happened is 32 ft. wide. It had been raining before the occurrence and the road surface was wed, Further the left hand side of the road as one proceeds towards Nicosia, was muddy. Under cross-examination P.C. Schizas clarified that the mud extended up to 5 or 6 ft. over the near side portion of the road and was continuous for at least 50 metres before and 50 metres beyond the sport of collision. Other evidence in the case establishes that the material part of the road was straight and a driver could enjoy good visibility towards Nicosia.

The agreed point of impact was 8 ft. from the left edge of the road in relation to the direction followed by both vehicles. No brake marks or tyre marks were found, save for a line of scratches on the road, 8 ft. long, shown by letter 'T' on exhibit No 1, a rough sketch prepared by the constable. These were caused by the motor-cycle driven by the plaintiff. The point of collision was their starting point and they ended up by the resultant position of the motor-cycle. The defendant’s motor car was found [*521] 68½ ft. away from ’X', the point of impact shown on the plan, again in the direction of Nicosia.

On the morning in question, the plaintiff was riding his motor-cycle Reg.No. DA 750 heading for Nicosia from Pallouriotiss. It is the case for the plaintiff that whilst so proceeding, a car under Reg. No. FQ, 375 that was driven by the defendant along the same direction overtook him, but in doing so struck the motor-cycle and knocked the plaintiff to the ground, More analytically the plaintiff's testimony is to the effect that whilst travelling on his proper side of the road, he heard a bang and fell off the motor-cycle. He then noticed the defendant's car stopping at some distance from him. He was unable to say which part of his motor-cycle was hit, except that its pedal was bent on hitting the ground.

In cross-examination the plaintiff denied that when giving evidence in the criminal Court he stated that he was travelling 10 - 12 ft. from the left edge of the road. He insisted that he was moving 1 - 1½ ft. from the mud which covered 5 - 5½ ft. of the near aide part of the road. Furthermore, he denied the suggestion of the defence that in his effort to avoid the mud he suddenly swerved to his right and collided with the defendant's car which was then in the course of over-passing him.

The defendant's version may be summarised as follows: When he first observed the plaintiff's motorcycle, it was 40 metres ahead of him, though he conceded [*522] that in his statement to the Police he might have said that such distance was 100 metres. He went on to say that when he was at a great distance behind the motor-cycle, he gave warning of his intention to pass by sounding the horn, a statement which the plaintiff disputed. Upon that, the plaintiff, who was in the middle of the road, rode more to the left and he thought that he could then overtake. In the course of overtaking, he heard a knock and when his car came to a stop he noticed the plaintiff behind him. On his own admission he drove about 2 ft. away from the motor-cyclist when overtaking him. Lastly the defendant stated that the motor-cycle was hit by the left hand side of his car on which he noticed a continuous scratch at the height of the handle bar of he motor-cycle. P.C. Schizas also noticed this scratch and added that it extended all along the left hand side of the car.

Having seen the witnesses giving evidence we have no hesitation in accepting the plaintiff's evidence we have no hesitation in accepting the plaintiff’s evidence if and when it conflicts with that of the defendant. The real evidence in the case lends support to the plaintiff’s testimony and we accept it. We are satisfied that the plaintiff was proceeding some 8 ft. from the near side edge of the road, as point ’X’ demonstates, and that he was going in a straight course when hit. An analogous situation arose in Poullou v. Constantinou.

(1973) 12 J.S.C. 1645, a case cited to us by counsel for the plaintiff. In giving the essence of the decision, A. Loizou J. remarked at p.1650:- [*523]

"Indeed, a prudent driver is expected to leave safe berth when overtaking another vehicle, particularly so in the case of a bicycle, and make reasonable allowance for some deviation from a straight course which depends not only on the nature of the steering, but on its combined effect with the balance of the rider, a fact inherent in this type of vehicle. Furthermore, such allowance should be made for safe clearance whilst overtaking the whole length of one's vehicle".

We think that these observations apply with equal force in the case of a motor-cycle. It is our finding that the defendant drove dangerously close to the motorcyclist when overtaking him and was, therefore, guilty of negligent driving. In our view, there was nothing in the driving conduct of the plaintiff contributing to the accident. His position on the road, 8 ft. from the left edge, is justified considering the condition of the road at the time. We think that the only reason this accident occurred was that the defendant quite unjustifiably passed too close to the plaintiff and he must, accordingly, be held entirely responsible for the collision.

There remains the question of damages to which the plaintiff is entitled. The nature of the injuries and their effect may be ascertained from the six medical reports which were produced by consent as exhibits. [*524]

After the accident the plaintiff was admitted to Nicosia General Hospital where he was examined and treated by Dr. Pelides, an orthopaedic surgeon. His reports, dated 11.6.75 and 5.2.76, are exhibits 5 and 6 respectively. There are two more reports, exhibits 7 and 8 dated 22.12.75 and 29.6.76 respectively, by Dr. Christodoulakis, a surgeon in private practice, who made an assessment of the plaintiff's injuries on behalf of the defendant. The last report, dated 21.10.76 - exhibit No. 4 - is a joint report by these two surgeons. In addition, Dr. Pelides gave evidence for the plaintiff. There is further some evidence by the plaintiff himself.

The injuries suffered by the plaintiff are not in dispute. They are described in exhibit No. 5 as follows: -

"(1) Head injury leading to moderate concussion (diffuse soft tissue bruising and swelling of the scalp. Facial bruises and abrasions).

(2) Displaced fracture of the neck of the right femur (sub-capital fracture).

(3) Minor bruising and abrasions on both elbows".

The facial and other bruising, as well as the abrasions, healed completely - see the report of Dr. Christodoulakis exhibit No. 7. However, the fracture was of a grave character. The doctors characterise it as a serious injury. The plaintiff was kept in Hospital for 23 days. The fracture was reduced and fixed with a Smith [*525] Paterson nail and physiotherapy was applied. On 10.4.75 he was re-admitted to Hospital because he had to be operated again. This operation became necessary because of complications developing after the first operation. Dr. Pelides states in the same report:-

"Non-union of the fracture and avascular necrosis of the femoral head developed subsequently. On the 10.4.75 a second operation had to be performed. The necrotic femoral head was removed and an endoprosthesis was cemented in its place".

The metallic replacement was found to be in good position on 21.10.76 when the agreed report was prepared. On this occasion the plaintiff stayed in Hospital until 21.5.75. Then Dr. Polides states his opinion.

"It is hoped that eventually with time and treatment he will walk unaided but moderately severe restriction of his pre-injury walking and standing abilities will remain. "

In the light of the subsequent reports and in particular exhibit No.4 we think that the prognosis of Dr. Pelides at the time, namely in June, 1975, was rather optimistic. The permanent results of the injury to the right hip are stated in the agreed medical report exhibit No. 4 which we accept in toto:-

"His right, limb is shorter (one inch), weaker (thigh wasting 1½ inch), and has restriction of all movements of the hip (about half of normal and are painful if forced". [*526]

The doctors further diagnosed osteoporosis of the right knee joint which they attributed to disuse atrophy.

In

conclusion the doctors say:-

"We agree that he is left with a partially stiff, weak and painful hip, which materially restricts his walking and standing abilities. He also experiences definite difficulty in putting on and taking off his trousers, shoes and socks.

He can walk only small distances on the flat and limps.

It is over a year since the operation and the condition of his hip is not improving.

A total hip replacement could be performed, but it is by no means certain that this major operation would relieve his pain; not forgetting dangers and complications connected with major hip surgery".

Dr. Pelides gave evidence in explanation of this last paragraph. It would be better to quote his own words:-

"There is room for further deterioration but not improvement and that is why the last paragraph is written. If the wearing of the socket by the continuous rubbing of the metallic prosthesis gets worse, he will get pain in dressing and undressing and he will need this operation. There is a strong possibility." [*527]

From the totality of the evidence before us, there can be no doubt that the plaintiff suffered considerable pain and suffering and he will undergo pain and suffering in the future. Moreover, the plaintiff is left with two long incisional scars on the right thigh which fortunately are not disfiguring - for a fuller description see the report of Dr. Christodoulakis exhibit No.7.

Exhibit No. 3 - a report by Dr. Matsas, a neurologist-psychiatrist

- deals with the mental state of the plaintiff. It will be remembered that Dr. Pelides who first examined the plaintiff had diagnosed concussion. The plaintiff was under follow-up and treatment for his post-concussional symptoms, i.e., dizziness with blurring of vision, nervousness and disturbed sleep for about two months. Dr. Matsas was of opinion that the above symptoms could be the result of the head injuries.

On the evidence before us we find that those symptoms are directly attributable to the accident. Relying on the improvement shown during treatment the doctor made a forcecast of further improvement. Exhibit No.3 was issued on the 21st October 1975, and we may infer that the plaintiff's symptoms must have cleared up s soon after. The concussion suffered by the plaintiff, though not serious, will be one of the factors to be considered when fixing damages.

An important feature of the case which will be considered now is the loss of earning power. There can be no doubt on the medical evidence that the plaintiff [*528] is seriously incapacitated as a result of the hip injury and that his earning capacity is diminished. If fact he receives, as from September 1976, disablement pension from the Social Insurance Fund at the rate of £29-250 mils per month. The plaintiff himself alleged that he is unable to do any work at all. In his oral testimony Dr. Pelides expressed the view that the plaintiff can be employed in a sedentary occupation such as selling newspapers and refreshments but added that he will experience pain and discomfort. On the other hand it is clearly stated in the reports exhibits 6 and 8 that the plaintiff is fit for a sedentary job. It is our finding, in the light of the medical reports, that the plaintiff is fit for sedentary employment.

The plaintiff, who was a coffee shop keeper, was 54 years old at the time of the accident. He stated in his evidence that his earnings before the accident were between £35.- and £38.- weekly and that the rent of the premises in which he carried on his one-man business was £12.- per month. We have formed the view that the plaintiff was exaggerating his income. A self-employed man has to give more definite proof to show his earnings besides merely mentioning figures. Ashcroft v. Curtin, (1971) 3 All E.R. 1208 is a very instructive case on the point. See also the judgment of Goddard C.J. in Benham- Carter v. Hyde Park Hotel Ltd., (1948) 64 T.L.R.

177 which was quoted with approval and was followed in Ashcroft, supra. We think it will be more realistic to calculate [*529] the pre-accident earnings of the plaintiff by reference to his income during the period he had employed substitutes, that is to say, from the day of the accident until April or May 1977 when he sold the coffee shop. According to his own evidence his net earnings for the period in question were £30.- to £40.- per month and in addition he paid wages ranging between £10.- and £15.- per week, On this basis we find that the plaintiff’s net earnings before the accident were in the region of £85.- per month. We May perhaps add that the price at which the plaintiff’s business with the stock-in-trade was sold, i.e. £405.-, affords some indication of its low profitableness.

Counsel for the defendant submitted that the plaintiff did not act reasonably in selling his business from which he would otherwise have earned £40.- monthly, thus failing in his duty to mitigate his loss. The standard of reasonableness in relation to the doctrine of mitigation is a question of fact depending on the circumstances of the particular case sue Payzu Ltd. v. Saunders, 1919)2 K.B. 581 at pages 588 and, 589 a contract case and McAuley v. London Transport Executive, (1957)

2 Lloyd's Rep. 500 a case of tort.

The plaintiff told the Court that in, his effort to keep his business alive he engaged at times several men, 2 or 3 in all, to work for him; that the employment of substitutes did not work out

because they left his employment or, to use his own words, "Δεν με εξυπηρετούσαν"; and that his son, a refrigerator

technician, with whom he [*530] had made an arrangement did not wish to continue running the coffee shop. For these reasons, the plaintiff concluded, he was forced to sell. In due course, however, the plaintiff disclosed the real reason for selling his business. In answer to Mr. Clerides he said:-

"Όταν

επήρα την σύνταξιν ανικανότητος και δεν μπορούσα να πάω εγώ το (καφενείον)

έδωσα στον υιόν μου να τα εκμεταλλεύται".

And in an answer to a question put by the Court he said:-

"Επειδή

επήρα σύνταξιν ανικανότητος δεν επιτρέπεται να έχω επιχείρησιν και έτσι το

έδωσα εις τον υιόν μου να το εκμεταλλεύεται".

It is quite clear that had the plaintiff engaged a substitute at the cost of approximately £45.- per month he could continue to earn an income as high as £40.- per month. Furthermore his personal presence at the coffee shop at least for purposes of supervision was quite possible. It will be remembered that his above answer to

Mr. Clerides "όταν επήρα την σύνταξιν ανικανότητος και δεν μπορούσα να πάω εγώ …… " implied that he attended his

work. We, therefore, estimate his loss of future earnings at £45.- per month.

The plaintiff’s claim for special damages includes an item for daily domestic help rendered by Mrs. Maroulla Georghiou, the plaintiff’s daughter, who gave evidence before us. Counsel for the plaintiff argued that in view of the plaintiff’s condition the Court should [*531] award, in addition to the sum claimed as special damages, the cost of future domestic assistance as part of the general damages, It is appropriate to repeat here the relevant part of exhibit No. 4 which is the evidence we accept on the matter:-

"He (the plaintiff) also experiences definite difficulty in putting on and taking off his trousers, shoes and socks".

We do not think that this kind of difficulty will necessitate the employment of daily or even casual help. Moreover, the plaintiff may be assisted by members of his family living with him without involving them in any financial loss. Accordingly, we shall not take into account this particular head of general damages. The situation in Andreou v. Karkallis and others,(1970) 1 C.L.R. 359 referred to in argument was different. The plaintiff in that case sustained far more serious injuries which rendered him a helpless invalid for the rest of his life.

It is convenient now to deal with the item of domestic assistance claimed as part of the special damages. Mrs. Georghiou said in effect that ever since the accident she looks after her father and as a result her earnings as a seamstress dropped substantially. She explained in some detail the services rendered

to her father and went on to say that he promised to pay her £40.- per month out of the compensation he will receive from the defendant's

insurers. We must observe that the plaintiff's wife is a CYTA [*532] employee and his two daughters who live with him attend a secondary school and consequently the only member of the family who could take care of the plaintiff in the mornings was his daughter Maroulla who lives next to the plaintiff’s house.

The right of a plaintiff to claim compensation for services rendered by a relative or friend which were necessitated by the accident was finally resolved in Donnelly v. Joyce, (1973) .3 All E.R. 475. In this case the mother of an infant plaintiff gave up her job in order to nurse him and the plaintiff recovered the wages lost by the mother as special damages. The principles are. summarised in the head-note of the case as follows:-

"In an action for damages fof personal injuries incurred in an accident, a plaintiff was entitled to claim damages in respect of services provided by a third party which were reasonably required by the plaintiff because of his physical needs directly attributable to the accident; the question whether the plaintiff was under a moral or contractual obligation to pay the third party for the services provided was irrelevant. The plaintiff’s loss was the need for those services, the value of which, for the purpose of ascertaining the amount of his loss, was the proper and reasonable cost of supplying the plaintiff's need".

In the present case we are satisfied that the services of the plaintiff's daughter were reasonably [*533] required for a period of about 10 months and on the principles enunciated in Donnelly, supra, the costs of the services rendered by the daughter are recoverable. In the circumstances we award the plaintiff £300.- i.e. £30.- per month.

Lastly we shall deal with the contention of counsel for the defendant that the disablement pension ought to be deducted when calculating (a) the plaintiff's loss of earnings from September 1976 up to the conclusion of the trial, and (b) his general damages for future loss of earnings.

In England a number of social security benefits are deductible to a limited extent. This is permissible by express statutory provision, e.g. the Law Reform (Personal Injuries) Act 1948 S. 2(1). Many other benefits are governed by the common law principles. In the leading authority (Parry v. Cleaver, (1969) 1 All E.R. 555, the House of Lords resolved the controversy with regard to pensions. It was held, that the disablement pension payable to a Police Officer was not to be deducted from damages awarded to him for lost earnings. It was further decided that former distinctions between discretionary or obligatory pensions or contributory and non-contributory pensions were no longer valid. This

decision was followed in Hewson v. Downs. (1971) 1 Q.B. 73 where it was decided that a retirement pension paid by the Ministry of Social Security should not be taken into account.

Unlike England in Cyprus there is no statutory [*534] rule providing that social insurance benefits are to be taken into account in calculating pecuniary loss. Under Section 45(a) of Law 2/64 an injured person had the right to take action against a wrongdoer for the recovery of of compensation and also claim the social insurance benefit under the Law. However, he was not entitled to recover both. Further, under Section 45(b) in case the claimant received any benefit under the Law the Social Insurance Fund had a right of indemnity against the wrongdoer. This provision was omitted in the new Social Insurance Legislation (Law 106/72) which replaced Law 2/64 and in our view this is clear indication of the policy of the legislature that the benefit should be disregarded. Further, the common law principles to which we have referred do not support the defendant’s contention. We shall, accordingly, disregard the disablement pension that the plaintiff receives - when assessing damages.

Counsel for the defendant argued further that if the benefit is not deducted, the plaintiff will be compensated twice for the same wrong contrary to the provisions of Section 61 (1) of the Civil Wrongs Law. We do not agree with learned counsel. The Section is declaratory of the principle of finality of assessment. It is appropriate to quote a passage sheding light on the matter from Mazengarb’s Negligence on the Highway 4th ed. p.344:-

"The loss may be a continuing or a permanent one, and its full effect on the welfare of the sufferer may not be determinable at the date of trial. [*535] Damages must be assessed once for all on the basis of the differing views and opinions of medical and other expert witnesses. The plaintiff cannot have a judgment on one view of the probabilities and later commence another proceeding to recover further damages if that basis of expectation happens to have been wrong, or if new and undiscovered evil effects manifest themselves afterwards".

Taking into consideration every relevant factor, viz., past and future pain and suffering; the prospect of the operation; the loss of amenities; the loss of future earnings which we take roughly at £45.- per month; future contingenicies and the advantages of the immediate payment, we award the plaintiff £6,500.- which we regard as fair and reasonable compensation in the circumstances of the case.

Special damages:

It was common ground that the plaintiff is entitled to his loss of earnings by was of special damages from the day of the accident until, the conclusion of the trial in November 1977, i.e. 34 months. In the light of our findings the monthly loss of wages for the above period was £45.- which multiplied by 34 makes £1,530.-.

In the particulars of the special damages the plaintiff claims £170.- for medicine and £120.- in respect of transport expenses. We are prepeared to [*536] award £30.- and £50.- for medicince and travelling expenses respectively which are the figures that the plaintiff mentioned in his evidence. In addition he is entitled to £95.- doctors' fees, an undisputed iterm, and £300.- domestic attendance expenses.

Adding the amount of £2,000.- round figure special damages to the award of general damages we have a total of £8,500.-. The plaintiff is, therefore, entitled to. judgment against the defendant for £8,50O.- plus costs to be assessed by the Registrar and approved by the Court.

Judgment for plaintiff for £8,500.- plus costs.