[*375] 1986 February 14
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
The Model Famagusta Bakeries Ltd.,
Plaintiffs ,
Maro A. Christou,
Defendant,
and
Kyriacos Kasias,
Third Party.
(Action No. 3563/82).
Negligence - Road accident - Collision at cross-roads - Main road - Side road - Duty of driver on main road.
Civil Procedure - Parties - Addition - Whether third party may be added as defendant by the Court on its own motion.
P. Lysandrou, for the Plaintiffs.
E. Mitsingas, for the Defendant
A. Danos, for the Third Party.
JUDGMENT
The judgment of the Court was delivered by:
KALLIS, D.J.: The plaintiffs in this action sued the defendant for damages caused to their car due to the negligence of the defendant. Upon the application of the defendant, Kyriacos Kasias was joined as a third party. The accident which gave rise to this litigation occurred at the junction of the new Limassol – Nicosia [*376] road ("the main road") with the road leading to Strovolos III Refugee Estate ("the side road"); and it involved a collision between a car driven by the defendant from Limassol towards Nicosia on the major road and a car driven by an employee of the plaintiffs (P.W.2) on the side road.
The evidence
According to the evidence P.W.l - P.C. 3242 Andreas Demetriou - who went to the scene to investigate the accident - the width of the side road was 30'. The major road was a double-lane road and the width of the lane in the direction of Nicosia was 23' and was divided by a traffic island at the scene of the accident. The point of impact was within the side road and was 7' from the major road and 24' from the right edge of the side road in the direction of the major road. On the side road there was a "stop" sign. Visibility from the junction of the two roads towards the right on the major road is more than 200'.
Cross-examined he said that the damages to the two vehicles - that of the plaintiffs and that of the defendant - were light; and that there were no brake-marks at the scene.
P.W.2 Heinz Grecor Luckert, an employee of plaintiff company, testified that round about 7.30 a.m.
of 27 March,1982, he was driving the car of his employers from Strovolos III Refugee Estate towards [*377] the major road. There was a "stop" sign and he stopped at the "halt". When he stopped, there came and stopped to his right a motor-cycle whose driver was the third party. Whilst he (the witness) was stationary the motor-cycle suddenly (ξαφνικά) started in order to cross the major road and turn to the right on the major road in the direction of Limassol. Before the motor-cycle had started he noticed a car coming from Limassol and it was for this reason that he stopped and waited; and when the motor-cyclist started in order to cross the car coming from Limassol was at a distance of 25-30 metres from him (the witness) and its speed must have been about 40 m.p.h. There followed an attempt by the driver of the vehicle on the major road to avoid hitting the motor-cycle by turning to the left and in so attempting it hit his car which was still stationary at the "halt".
Cross-examined he said that he himself did not attempt to cross the major road because when he approached the "halt" the car on the major road was near (επλησίασε) and he could not cross.
The defendant in giving evidence as D.W.l testified that she was driving on the major road in the direction of Nicosia. When at a distance of about 30 metres from the side road she noticed a van which was stationary at the "halt" of the side road and a motor-cycle stationary to its right. When she was at a distance of about 5-6 metres from the side-road [*378] the motor-cycle was found in front of her (ευρέθηκε μπροστά μου) and in her effort to avoid hitting the motor-cyclist she applied brakes and turned to the left and as a result she collided with the van which was still stationary. Her speed prior to the accident was about 30 m.p.h. She turned to the left because the motor-cyclist was going towards the right and had she turned to the right she would have it him.
Cross-examined she said that she did not see the motor-cyclist when he started to cross, she only saw him in front of her.
The third party testified that he was driving his motor-cycle on the side road and towards the major road. When he was at the junction of the two roads there was a car stationary at the "halt". He stopped a little ahead - about 1' - of the car in order to be in a position to check both directions. Thereafter he noticed a car coming from Limassol, from a distance of 35-40 metres, he estimated that he could cross over and he did so, the car was far away and must have been driven at a speed of about 50 m.p.h. When he started to cross, the car coming from Limassol was at a distance of about 30 metres.
Evaluation of the evidence:
This aspect of the case presents no difficulty for all three drivers were ad idem on the material issue that the motor-cycle had stopped at the halt sign next to P.W.2 before indulging in the crossing process; and the motor-cyclist and P.W.2 were almost [*379] ad idem as to the distance of defendant from the motor-cyclist when the latter started to cross - P.W.2 gave it as 25-30 metres and the motor-cyclist at about 30 metres.
Regarding the development of the events which led to the accident having carefully watched all three witnesses in the course of their testimony, I must say that P.W.2 has impressed me more favourably as a witness than the other two drivers having given his testimony in a coherent, thorough, natural and convincing manner and my findings, therefore, will be as per his evidence. The evidence of P.W.l is accepted in toto.
In the light of my above evaluation of the evidence I find that in the morning about 7.30 a.m. of 27.3.82, P.W.2 was driving his car on the side road towards the major road. There was a "stop" sigh and he stopped at the "halt". When he stopped there came and stopped to his right the third party. Whilst P.W.2 was still stationary the third party suddenly (ξαφνικά) started to cross the major road and turn to the right at a time when the car of the defendant which was on the major road and was driving towards Nicosia was at a distance of 25-30 metres from P.W.2 and its speed about 40 m.p.h. There followed an attempt by the defendant to avoid hitting the third party by turning to the left and in so attempting she hit the car of P.W.2 which was still stationary at the "halt". The impact was not a violent one and the point of impact was within [*380] the side road. The defendant noticed the third party whilst the latter was stationary at the "halt" and when she was at a distance of about 30 metres from the side road but - on her own admission - she did not notice him when he started to cross, she noticed him in front of her. The Limassol-Nicosia road was a major road and Strovolos III road a minor road.
The Law:
It is well settled that negligence is the failure to take reasonable care in the particular circumstances, and in each case the question whether a person has been negligent is a question of fact. In the House of Lords in Fardon v. Harcourt-Rivington (1932) ALL E.R. Rep. 81, at page 83, Lord Dunedin enunciated the principle to the effect that if the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions. This statement is regarded as applying generally to actions in which the negligence alleged is an omission to take due care for the safety of others; and it must follow that a prudent man will guard against the possible negligence of others, when experience shows such negligence to be common (see Grant v. Sun Shipping Co. Ltd. (1948) ALL E.R. 238, at page 247, H.L., and Panayiotou v. Mavrou (1970) 1 C.L.R. 219). [*381]
In Vakanas v. Thomas (1982) 1 C.L.R. 530, Pikis J. delivering the judgment of the Court of Appeal said - at p. 533 - "the duty of a reasonable motorist, and for that matter of any user of the road, does not extend beyond taking precautions against a reasonably foreseeable danger"; and proceeded to state the following at pp. 533-534:
"The cases of Varnakkides v. Papamichael and Another ( 1 970) 1 C.L.R. 367, Elpiniki Panayiotou v. Georghios Kyriacou Mavros (1970) 1 C.L.R. 215, and Karikatou v. Soteriou, Soteriou v. Apseros (1979) 1 C.L.R. 150, establish that a motorist travelling along the main road need not anticipate, unless he has some forewarning, of such an eventuality, that another user of the road will emerge on a main road from a side road without first stopping and making certain that it is safe so to do. "
………………………………………………………………………………….............
" The duty is to avoid exposing other users of the road to reasonably foreseeable dangers. A foreseeable danger is one that reason and common sense suggest it is reasonably likely to materialise, as opposed to a risk, the occurrence of which is a mere possibility. If motorists and users of the road were to act on the assumption that other users of the road were inevitably bound to be negligent, we would be imposing an impossible burden on users of the road, far [*382] beyond what reason and experience justify. In determining the risks which are reasonably likely to arise, one is guided by reason and the experience of mankind. The robust standards of common sense should guide the Court in its appreciation of a given situation. It is unprofitable to be perplexed by niceties, such as the precise point from which the parties were in sight of one another, that tends to give the impression that we are concerned with a mathematical exercise. Applying these principles to the facts of the case, the one factor to be singled-out in the conduct of the parties, is the rushness with which the cyclist emerged on the road, reducing, in the circumstances, to the minimum the ability of the motorist to avoid the collision. No blame should be attached to the motorist for the accident."
Also, Pikis J. in Adamis v. Eracleous (1982) 1 C.L.R. 746 summarised as follows - at p. 750-751 – the principles arising from the cases of Alexandrou v. Geoffrey Gamble (1974) 1 C.L.R. 5; Karaolis v. Charalambous (1976) 1 C.L.R. 310; Antoniou v. Iordanous and Another (1976) 1 C.L.R. 341, and Panayiotou v. Xenophontos (1980) 1 C.L.R. 345:
"(a) A user of the road is expected to guard against foreseeable risks, and that in so guarding, he can act on the assumption, in the absence of concrete indications to the contrary, that other users of the road [*383] will make reasonable use of it and generally, heed the rules regulating the use of the road by motorists. (The same principle was heeded in the cases, inter alia, of Varnavas G. Varnakides v. Christos Papamichael and Another (1970) 1 C.L.R. 367; Elpiniki Panayiotou v. Georghios Kyr. Mavrou (1970) 1 C.L.R. 215, and Karikatou v. Soteriou, Soteriou v. Apseros (1979) 1 C.L.R. 150).
And
(b) The actions of a motorist confronted with a dilemma on the road will be judged subject to the agonising situation into which he finds himself and the fact that a driver under such pressure may choose a course that is not the most expedient in the circumstances. He does not have the coolness or the breathing space necessary to ponder on rival courses".
In HjiGeorghiou v. Rodinis (1978) 1 C.L.R. 175 it was held that the principle that a major-road driver has to guard against the negligence of the minor-road driver is correct but such principle "has to be applied in the light of the particular facts and circumstances of each case" and after stating the principle of the Rivington case (supra) concluded that "bearing in mind the sudden emergency with which the respondent was confronted as a result of the bad driving of the appellant he had not the time, in the agony of the moment, to do anything more than what he did or to do anything earlier than when he has actually done it". [*384]
In Varnakkides v. Papamichael (1970) 1 C.L.R. 367 the appellant-p1aintiff was driving his Austin car. The defendant was driving his Jaguar a much more powerful car. The defendant was driving fast; at a dangerous speed in the circumstances. The plaintiff was driving carefully and slowly. He saw the Jaguar coming from a distance of about 180-200 yards from the crossing. He was then about 40 yards away from the crossing. Seeing that he was much nearer and that at the crossing there was a white line in the traffic-path of the Jaguar which should cause the Jaguar to slow down and give precedence to the plaintiff, he attempted to take the crossing before the Jaguar and a violent collision ensued. The trial Court took the view that in the circumstances, 75% of the blame should be placed on the driver of the Jaguar, the defendant, and 25% on the plaintiff.
On appeal it was held - per Vassiliades P. at p. 372 - that "the most one can say against the plaintiff is that he did not take sufficient care in following all along, the way in which the Jaguar was being driven, so as to appreciate correctly the recklessness of its driver; and also, perhaps, that he did not take into account the possibility, that coming at that speed, the driver of the Jaguar might disregard the white line on the road which was put there to make him slow down and stop, if necessary, in order to give priority to the traffic crossing his path"; and went on to reduce the liability of the plaintiff from 25% to 10%. [*385]
In Gooder v. Taylor (1966) Times 18 October, C.A. - reported in Bingham's Motor Claims Cases 8th ed. at pp. 130-131 "at a cross-roads where a minor road crossed
"a major road a van was travelling along the minor road and a tanker along the major road. As the van approached the cross-roads the driver slowed down almost to a stop. He looked along the major road but saw nothing coming, pressed the accelerator again and proceeded to cross. The tanker had seen the van approaching the cross-roads. He took his foot off the accelerator but, seeing the Van slow down as if to stop put his foot on again to go over the cross-roads. When at the last moment the van moved forward on to the cross-roads the tanker driver was unable to avoid hitting it. The judge of Azzise held the van driver five-sixths to blame for the collision and the tanker driver one-sixth.
HELD: Allowing the tanker-driver's appeal, he was not to blame at all. He had seen the van slow down and was justified in thinking that the van driver had Seen him and was going to let him pass. For the same reason he was not negligent in not sounding his horn. The tanker driver was not negligent in not reducing his speed, for only by slowing down to a very considerable extent could he have avoided the consequences Of the van pulling out at the last moment. As he had Seen the van slow down as if to allow him to pass he was under no duty to take drastic action." [*386]
In Humphrey v. Leigh and Roe (1971) R.T.R. 363 - reported in Bingham's, supra, at pp. 128-129
"the second defendant was driving his car at a steady pace up Gipsy Hill in South London when the first defendant drove out of a side road to cross into a road opposite without stopping or slowing down. There was a collision resulting in injury to the plaintiff. There were no road signs to show that Gipsy Hill was the major road but there was no doubt that it was and that traffic in the side road would, as a matter of course, slow down and stop. The judge attributed all the blame to the first defendant, who appealed.
HELD: The appeal should be dismissed - the second defendant was in no way negligent.
Per Russell LJ: The question is whether it can be propounded as a matter of law that a person in the position of the second defendant has a duty, if he is to avoid a charge of negligence every time he comes across a side road of this kind leading out of Gipsy Hill, to take his foot off the accelerator and poise his foot over the brake, being prepared to stop short of the crossing. In so far as anything to that effect was said by Lord Justice Ormerod in the case of Williams v. Fullerton ( 1961 ) 105 Sol. Jo. 280 C.A., it was an obiter dictum and I personally would not follow it at all; otherwise you would approach a situation in which no traffic moves about the country at any reasonable speed whatsoever." [*387]
In Brooks v. Graham, reported in Bingham's, supra, at p. 130, it was held that
"where there is a 'halt' sign wholly different considerations apply. If a vehicle on a major road is to approach such a crossroads in such a way that it can stop dead if a vehicle on a minor road fails to observe the 'halt' sign, it would mean that it would have to slow down to little more than a walking pace and for all practical purposes bring traffic on the major road to a standstill."
And lastly, in the case of Barclays Bank Ltd. v. Gaughan, also, reported in Bingham's, supra, at p. 130, it was held that the obligation of the major road driver was to behave reasonably and that
"it was doubtful whether he would have seen anything in the minor road but he had every reason to believe a car in the minor road would stop. The sole responsibility for the accident lay on the first defendant. See, also, the cases of Kythreotis v. Constantinou (1984) 1 C.L.R. 811, Siakos v. Nicolaou (1980) 1 C.L.R. 330 and Karikatou v. Soteriou (1979) 1 C.L.R. 150.
Conclusion:
In this case the liability of the defendant for the accident rests to be decided on the answer to be given to the following question. Has this defendant - a driver on a major road - after she had noticed, from a distance of about 30 metres, the side-road driver (the third party) halted at the "halt" line [*388] of the road-junction, the duty to be careful and keep a proper look-out less the side-road driver will break the law and dash to cross?
Having anxiously considered the issue in the light of the above case-law and of my above findings I hold that the answer should be in the negative for the following reasons:
The possibility of danger emerging under circumstances such as these of the present case was not reasonably apparent and the duty of the defendant does not extend "beyond taking precautions against a reasonably foreseeable danger" (vide Vakanas supra). The defendant who was driving on the major road did not need to anticipate unless she had some forewarning of such an eventuality that the third party would emerge on the side road without making certain that it was safe so to do; and once the third party was halted the defendant had an eloquent forewarning that he will continue doing so. Moreover we cannot expect from a driver to act on the assumption that other users of the road were inevitably bound to be negligent (vide the Vakanas case supra); but on the contrary, road users are expected to guard against foreseeable risks and to act on the assumption that other users of the road will make reasonable use of it (vide Adamis supra). Also once the defendant saw the third party halted she was justified in thinking that he had seen her and was going to let her pass. In these circumstances the defendant had every reason [*389] to believe that the third party would not proceed to cross the major road and she had, therefore, no reason to take any extraordinary precautions. To hold otherwise I would be putting the duty of care of the major-road driver too high and would be approaching "a situation in which no traffic moves about the country". After all we must not forget that the duty to be prudent has to be decided not on the basis of what an expert motorist would or could have done but on what an ordinary and reasonably competent driver might be expected to do (see Portokallis v. Theodossi, 1962 C.L.R. 1).
Once I have held that the defendant was under no duty to keep a look-out less the halted third party would indulge in crossing the major road, I proceed to examine whether the measures taken by the defendant on facing the third party in front of her all fall short of what a reasonable driver might in the agonising circumstances take. Taking into consideration the sudden emergency with which the defendant was confronted as a result of the bad driving of the third party the former had not the time, in the agony of the moment, to do anything more that what she did. After all as was held in Georghiades v. Hadjisavva (1984) 1 C.L.R.597 the issue whether the taking of further or different avoiding action with probably better result need not be examined strictly and mathematically in the cool atmosphere of the Court room where the elements of panic and agony of the situation are absent; but what has to be examined is whether at that particular moment [*390] the defendant failed as a reasonable average person, to take any action to avoid the accident. In the instant case the avoiding action taken by the defendant does not fall short of the required standard.
For all the above reasons the defendant was not liable for the accident and the sole responsibility therefore lies with the third party because he attempted to cross the major road at a time when having regard to the proximity of the defendant it was not safe for him so to do; and that before attempting to cross he had to make certain that it was safe for him to do so, something which he failed to do. Further the act of the third party indicates that he was driving without proper look-out thereby exhibiting no due regard for other road users and by acting as he did he cut the path of the defendant and placed her in danger.
Regarding the judgment to be issued in this case, there is a problem. The plaintiff sues the defendant for negligence and the defendant brings in as his own defendant the third party to indemnify him for any amount he is adjudged to pay to the plaintiff. Once the action against him is dismissed, then there is no cause of action by the defendant against the third party.
Strictly speaking, the third party is a party to the action, but he is not a defendant in the action by the plaintiff. He is only brought in to contribute or indemnify the defendant for any amount the latter is ordered to pay to the plaintiff. It is doubtful whether [*391] a judgment can be issued in favour of the plaintiff against a third party. However, I am of the opinion that since the matter is before me and having determined the issue of liability, I consider it a proper case to exercise my powers under Order 9 rule 10 of our Civil Procedure Rules which corresponds to 0.16 rule 11 of the old English R.S.C. and add the third-party as a defendant for the following reasons:
In the case of Edison & Co. v. Hollard, 41 Ch.D. 28, it was held that if the plaintiff wishes to obtain judgment against the third party, he may apply under Order 15 rule 6 to add the latter as defendant.
Reading from the Supreme Court Practice 1979, Vol. 1, in the notes to Order 15 rule 6 of the new R.S.C. which corresponds to the old rule 16(11) we find at p. 182:
"The Court has no jurisdiction under this Rule to order third parties, to be added as defendants where the cause or matter is not liable to be defeated by the non-joinder, where the third parties were not persons who ought to have been sued in the first instance, and where the third parties were not persons whose presence as defendants was necessary to enable the Court effectually to adjudicate on all the questions involved [*392] Miguel Sanchez and Compania S.L. v. Result, (1958) P. 174)."
Most relevant is, also, Order 10, r.7(l)(b) and (2) of our Civil Procedure Rules. See, further, Edison v. Holland 41 Ch.D. 28 where it was held that "if third parties are substantially defendants they may be added as defendants"; and the Annual Practice (supra) p. 183, where it is stated that a person who is not a party may be added as a defendant, in rare cases, by the Court of its own motion and the jurisdiction of the Court under this Rule is entirely discretionary. Reference should, also, be made to Karikatou v. Soteriou, ( 1979) 1 C.L.R. 150 where the trial Court in circumstances such as these of the instant case, directed, of its own motion, that the third party be made a defendant (vide p. 157 of the report).
In this connection I add that whilst considering the reserved judgment I directed that the views of counsel be obtained and I fixed a date for the purpose; and all counsel agreed that I have power to do so.
In this case taking into consideration that the third party cross-examined both the witnesses for the plaintiff and those for the defendant and that the defendant cross-examined the witnesses for the third party, I have arrived at the conclusion that all issues arising in this case have been tried [*393] not only as between the plaintiff and the defendant but, also, as between the plaintiff, the defendant and the third party.
I further conclude that I have power of my own motion to add the third party as a defendant. In view of these conclusions I am of opinion that it would be in the interest of all concerned and in the interests of the proper administration of justice to add the third party as a defendant. To hold otherwise would be tantamount to defeating the cause of action and leaving the plaintiffs only with a declaration regarding their rights without actual judgment in their favour. I, therefore, hereby direct that the third party Kyriacos Kasias be added as a defendant in the action. The title to be amended accordingly whereupon judgment shall be entered against the third party in the amount of £195 - the agreed damages.
In the result the action against the defendant is dismissed; and subject to the amendment being actually effected, judgment is given in favour of the plaintiffs against the third party for £195.
Regarding costs, the third party to pay the costs of the defendant and the plaintiffs which were occasioned after the service on him of the third party notice (15.1.83). The costs of the defendant and the plaintiffs until that date to be borne by plaintiffs.
Judgment against the third party
for £195.- Order for costs as above.