Court dismisses negligence claim against driver but awards damages for injuries and necessary abortion to plaintiff.

[*460] 1982 March 27

(ARTEMIDES, AG.P.D.C. AND IOANNIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Elli Gavriel,

Plaintiff,

Sylvia Tourapi and Others,

Defendants.

(Action No 1004/79).

Negligence - Contributory negligence - Principles applicable - Road accident - Collision between motor cars driven in opposite directions whilst one cf them was about to turn to the right -Latter car falling to keep a proper lookout, for traffic coming from the opposite direction and not giving any warning of her intention to turn right - Solely to blame for the accident.

Damages - General damages - Personal injuries -Fracture of the femur bone Concussion - Obliged to have an abortion lest - X-rays would injure the faetus - Award of £800.

M. Iacovou; for the Plaintiff.

A. Paschalides, for Defendant 1 .

G. Pelaghias," for Defendant 3.

JUDGMENT

The judgment of the Court was delivered by:-

ARTEMIDES, AG.P.D.C. :- On new year's eve,

[*461]i.e., 31.12.78, a Sunday, the plaintiff was a passenger in motor vehicle registration No.V.708, driven by her sister, defendant 1 , the ownership of defendant 2. The plaintiff, defendant 1 and their younger sister were going to visit their elder one who lived in Dramas Street, a side-road to Archbishop Makarios ,III Avenue. In view of the fact that the journey was for their own. social purposes, during the hearing the action was withdrawn and consequently dismissed against defendant 2, who was sued as. being vica-riously liable for the negligence of defendant 1. The action proceeded against the plaintiff's sister and Christos.Iona, defendant 3 with whose vehicle a collision occurred on Makarios III Avenue., whilst defendant 1 was in the process of entering right into Dramas Street. Defendant. 3 was driving at the time his motor vehicle GZ 776 from the opposite direction,

As is always the case in actions of this nature, there are two versions before us as to how it has occurred. The plaintiff and defendant 1 have testified that when they arrived at the side-road of Dramas Street whilst proceeding towards Hilton, defendant 1 stopped in the middle of the road to give priority to traffic coming from the opposite direction. In fact two or three Vehicles had passed both from their right and left. Their intention, as we have said already, was to turn right into Dramas Street. After defendant 1 had made sure that there were no vehicles driven from the opposite direction she started off and proceeded to enter into Dramas Street when the vehicle of defendant 3 suddenly appeared in front of them driven at an excessive [*462]speed. A violent collision had consequently occurred between the two vehicles.

Defendant 3 has told us a quite different story He said that he was coming from the Hilton direction towards the centre of Nicosia driving at a moderate speed; i.e., 25-30 miles per hour. He saw the vehicle of defendant 1 , which in fact was the only one on the road, being driven on its proper side. when he was about ten metres away from it the vehicle of defendant 1 had suddenly turned to its right in an effort to enter diagonally into Dramas Street. Defendant 1 had thus found his way completely cut and the only thing he could do was to apply brakes to avoid the collision. He did that but because of the short distance between the vehicles and the fact that the cutting across by defendant 1 was done in a sudden way and without previous warning, the accident could not have been avoided.

We have heard the evidence adduced before us with care and after having had the opportunity of watching the demeanour of the witnesses.whilst testifying before us we have come to the firm conclusion that the version of defendant 3 is the correct one whilst the plaintiff and defendant 1 have lied. Our finding does not rest solely on the demeanour of the witnesses but in addition to that to the real findings of the investigating officer, as same appear on a sketch of the scene of the accident produced in evidence (Exhibit 1).

The investigating officer told us that visibility from the point of impact on either side of the road is good; [*463]

in particular from the direction of Hilton towards the point of impact it is over

100 metres. Defendant 3 was driving in his proper side of the road keeping the left lane. The road is divided by a continuous white line and there are two lanes on either side.. In about the middle of - the opening of Dramas Street in Archbishop Makarios III Avenue, the brake marks left by the vehicle of defendant: 3 appear, being 10' (feet) long. The point of impact is 6'(feet) from the imaginary line connecting the opening of Dramas Street 'from the Avenue and it is just before the right corner of the street having regard to the direction of Hilton.

The above undisputed findings prove that defendant 1 did not stop, as she and the plaintiff have said, in the middle of the Avenue opposite Dramas Street waiting for traffic to pass and that when the road was clear defendant 1 proceeded to enter into Dramas Street, If she had really stopped or had driven in the way she said she had done, she would have certainly seen the vehicle of defendant 3 which was coming from the opposite direction. It is an undisputed fact that defendant had given no signal or any other' warning of her intention to turn right.

Counsel for the plaintiff as well as for defendant 1 have submitted that defendant 3 is also to blame for the . accident because he was driving at a very high speed. They have also submitted that in view of his speed he could not take the proper avoiding action before the collision and have suggested that he should have swerved to his right rather than to his left because on his right there was enough space for him to manoeuvre.

[*464]There is no expert evidence before us in. regard to the speed of defendant 3. Counsel have suggested that this could be assumed from the violent collision and the extensive damage caused to the vehicles. The investigating officer was asked about it and he said that, taking into consideration the force of the impact he would not expect defendant 3 to drive at 30 m.p.h. but something more without however being able to refer to any figure.

We do not think that the evidence of the investigating officer, who carried no test regarding the speed "of defendant 3, and he is also not an expert in this field, carries any, weight on this issue. ...We. could say however, that he was even hesitant to reply to the question put to him by counsel for the plaintiff regarding the speed of defendant 3 and he expressed merely an opinion which was not based on an expert's data. Even if, however, we were to assume that defendant 3 was driving at a speed higher than 30 m.p.h. this fact by itself would not amount to contributory negligence on his part if that speed had no causative effect on the" collision that followed.

The principles applicable on the issue of contributory negligence have been referred to in a number of cases and we shall only limit ourselves to a recent

decision of the Supreme Court where these principles are reiterated –Xenophontos and Another v. Angstassiou (1981) 1 C.L.R. 521. The facts in that case were similar to the one in hand and we would therefore refer to an extract of the judgment of the Supreme Court delivered by Hadjianastassiou, J., (at p.527) [*465]"Although the trial Court found tha the plaintiff had in no way contributed to the accident, nevertheless, counsel argued that because the plaintiff had failed to take avoiding aҫtion, he became contributory to .the accident once; he ought reasonably to have foreseen. that he would be hurt. The first question is whether the plaintiff was guilty of contributory negligence. Time and again it has been said in a number of cases that where the defendant is negligent and the plaintiff is alleged: to have been guilty of contributory negligence, the test to be applied is whether the defendant's negligence was, nevertheless, a direct and effective cause of the misfortune. The existence of contributory negligence does not depend on any .duty owed by the injured party to the parties sued, and all that is necessary to establish a plea of contributory negligence is to prove that that injured party did not in his own interest take reasonable care of himself and contributed by his want of care to his own injury".

Another

decision, the facts of which bear similarity. to the present one and contained in the same report, is that of Christos Despotis v. Andreas Therapi page 621.

In summarizing our findings, we are of. the view that defendant 3 has not contributed to the . accident atall for which defendant 1 is solely to.- blame. Her intention was to turn right into a side-road from Makarios. III Avenue;[*466]she failed to keep a proper lookout for traffic coming from the opposite direction; she did not give any warning of her intention to turn right and she had crossed the avenue in a sudden and diagonal way. Defendant 3 had found his way suddenly blocked and the only thing he could do in the circumstances was to apply brakes which he did. In the circumstances and in the. light of our findings the action of the plaintiff against defendant 3 is dismissed with costs to be assessed by the Registrar, whilst her action against defendant 1, her sister, succeeds.

We shall now proceed to deal with thė damages to which the plaintiff is entitled against her sister. With regard to the special damages, claimed under the heading "PARTICULARS' OF SPECIAL DAMAGES" in her statement of claim, the plaintiff has not been able to prove any item except for the damage to her clothing and some transport expenses incurred by her for having to travel from her home to the hospital for treatment. For these we allow her the total sum of £30.-

After the accident the plaintiff was transferred to the Nicosia General Hospital. On admission she was found . to be suffering from the following: she had a strong headache and a tendency to vomit which indicated concussion. Her nose was bleeding because of a small fracture of the bone. She had various superficial scratches on her face and other parts of her body. The most serious injury was a fracture of the femur bone at the superior and inferior cubic rami.[*467]

Dr.Schizas who was treating her in the hospital said that the plaintiff was suffering from severe pain and she was put in traction for about ten days. After the tenth day she was helped to get on her feet and walk. On 15th of January, 1979 she left the hospital and advised to attend as an out-patient.

The plaintiff, during her stay in the hospital, had noticed that her menstrual period had failed to come and it was revealed that she was pregnant, something she had not noticed before. In view of this she decided to have an abortion. She was obliged to do that lest the X-rays which were taken of her would injure the faetus Both, Dr. Schizas and Dr. Pelides, who gave evidence for defendant 3, said that the decision of the plaintiff was. a reasonable one and that is why she had the abortion in the Nicosia General Hospital.

When the plaintiff was examined again on 26.9.1980, she complained to Dr. Schizas mainly for a difficulty in opening her left leg which was inconveniencing her in her sexual life. Dr. Schizas said that the complaint of the plaintiff was genuine because of the injury she had, sustained on the femur bone.

Dr. Pelides agrees with Dr. Schizas in regard to the injuries the plaintiff has sustained, but maintains that the complaints of the plaintiff that she still feels pain in the femur joint and that she experiences difficulty during the sexual act are not true. Dr. Pelides says that the injury to the femur bone was not on the structure of the [*468]femur but on the cubic rami and therefore the joint was not affected at all except for the first two weeks after the injury.

A lot has been said by counsel for the plaintiff on the issue of her difficulty to enjoy sexual intercourse with her husband and we shall deal with this issue although we feel that it should have been specifically pleaded. Having heard the plaintiff herself and appraised her demeanour we feel that there is much to be desired with regard to her veracity. She has definitely told us lies as to how the accident had occurred and at least she is exaggerating on the results of her undisputed injuries. She said, for example, that she cannot until now wear high-heeled shoes although she appeared before us on heels which we could say were high. Although in her evidence she tried to convince us that it would have been very difficult for her, because of her injury, to have another child or that she would have a very difficult delivery, yet on the third month after the accident she remained pregnant and had a natural childbirth.

In view of all the above we find that the plaintiff experiences no difficulty in having sex with her husband. We also think that the plaintiff has no permanent incapacity.

In assessing the general damages we take into consideration her injuries which we have already described, the pain she has suffered, the abortion she was reasonably ohliged to have and of course the period during which the femur injury was causing her trouble. We think that the sum of £800.- would justly compensate the plaintiff.[*469]In the. result there will he judgment for the plaintiff for £.830.- plus costs to be assessed by the Registrar, against defendant 1. The action against defendant 3 is dismissed with costs again to.be assessed by the Registrar. The action against defendant 2 is also dismissed with no costs.

Judgment against defendant I

for £830.- with costs. Action

against defendants. 2 and 3

dismissed. Order for costs ;

as above.