(1969) 1 CLR 241
1969 April 24
[*241]
[VASSILIADES P. TRIANTAFYLLIDES & JOSEPHIDES JJ.]
SOFOCLIS CONSTANTINOU,
Appellant - Plaintiff,
v.
GORDON BEAUMONT,
Respondent - Defendant.
(Civil Appeal No. 4730).
Negligence—Contributory negligence—Apportionment of liability—Road accident—Apportionment of liability varied on appeal—Reasons for interfering—Approach of Court of Appeal to appeals against apportionment of liability.
Contributory negligence—Negligence—Apportionment of liability—Principles—See above.
Appeal—Apportionment of liability—Approach of Court of Appeal to appeals against apportionment of liability in negligence cases—See above.
Apportionment of liability—Negligence and contributory negligence—Apportionment varied on appeal—Reasons for interfering—Approach of the Court of Appeal to appeals against apportionment—See also hereabove.
Road Traffic—See above.
Road accident—See above.
Cases referred to:
Stavrou v. Papadopoulos (reported in this Part at p. 172 ante);
Brown and Another v. Thompson [1968] 2 All E.R. 708.
The facts sufficiently appear in the judgment of the Court.
Appeal.
Appeal by plaintiff against the judgment of the District Court of Limassol (Malachtos P.D.C. & Loris D.J.) dated the 23rd May, 1968 (Action No. 153/67) whereby he was found 80% to blame and the defendant 20% to blame for a road accident. [*242]
A. Neocleous, for the appellant.
A. S. Myrianthis, for the respondent.
The judgment of the Court was delivered by:
VASSILIADES, P.: This appeal turns on the circumstances under which the collision occurred; and these are relevant to the appeal only as far as the apportionment of liability is concerned. The trial Court, after hearing all the evidence and after considering the two different versions of the parties concerned, the motorist on the one hand the cyclist on the other, made their findings. Upon those findings the trial Court proceeded to apportion the liability. The appellant now challenges that apportionment.
The approach of this Court to appeals of this nature has been settled in a line of cases, the most recent of which is Stelios Stavrou v. Georghios Papadopoulos (reported in this Part at p. 172 ante). This Court adopts the view taken in that case following Brown and Another v. Thompson [1968] 2 All E.R. 708 to the effect that where a trial Judge has apportioned liability his apportionment should not be interfered with on appeal, save in exceptional cases (as where there is some error in principle or the apportionment is clearly erroneous); and an appellate Court will not readily substitute its own discretion for that of the trial Judge.
With this approach we come to the facts of this case. The trial Court say that "after careful consideration of the evidence adduced" they came to the conclusion that the plaintiff got onto the main road "without having a proper look out to ensure that it was safe for him to do so".
We pause here to remark that if the trial Court accepted the evidence of the appellant — which on this point was hardly challenged, as far as the transcript on the record goes — that on arriving at the junction and before entering into the main road, he alighted from his bicycle, such evidence does not lead to the conclusion, that the cyclist entered into the main road without having a proper look out to ensure that it was safe for him to do so. The trial Court further say: "It is clear from his (appellant's) evidence which we accept on this point that Zakaki road does not lead to the house of his sister-in-law". In other words, on arriving at the junction, the appellant did not attempt to cross the main road, but took to his left in the [*243] direction of Limassol. That was his proper side of the road in the direction in which the respondent motorist was also travelling when he collided with the rear part of the bicycle.
This is clear from the nature of the damage found on the rear wheel of the bicycle, which was produced at the trial as exhibit 4; the Court looking at the exhibit before them, were satisfied that the cyclist was knocked from behind. Now, this is quite inconsistent with the version of the defendant that the cyclist shot into his path when it was too late for him to avoid him; and that the cyclist hit the motor-car at its rear part.
The finding of the trial Court that the bicycle was hit from behind, based on the damage on the exhibit, points strongly to the conclusion that the apportionment of 80 per cent of the blame on the cyclist as against 20 per cent on the motorist cannot be justified. If the true position is, as it seems to be on the evidence, that the cyclist alighted on arriving at the junction, that is strong evidence that he was taking proper care before entering into the main road. What has apparently happened, was that after entering into the main road, the appellant remounted his bicycle; and it was at this stage that failing to take the proper care, he was cycling on the part of the road where the marks were found, some 16 yards from the junction and was knocked from behind. Apparently when the appellant decided to remount his bicycle on that busy road, he failed to have a proper look out to make sure that it was safe for him to do so; and thus failed to notice the approaching car from behind which has considerably contributed to the accident. His version is that he did not see the car at all. These are the facts emerging from the real evidence in the case and from the findings in the judgment; and it is upon those facts that the apportionment has to be made.
On these facts the apportionment of liability made by the trial Court cannot be sustained. We must set it aside and proceed to make a fresh one. In doing so, taking also into account the view of the collision taken by the District Court, we apportion the liability at 60 per cent on the cyclist and 40 per cent on the motorist. We may, perhaps, add that it is not without difficulty that we found more blame on the cyclist. The view was taken at the hearing of the appeal — a view which is not without foundation — that if the motorist driving in midday light on a busy road, was paying proper attention to where he was going, he could not have failed to see the cyclist [*244] earlier; and thus be able to take better avoiding action before the collision, instead of nearly killing himself against a tree, afterwards.
Learned counsel on his behalf tried to place the case on the basis that the cyclist shot into the main road from the side road. This contention finds no support in the evidence. We apportion the liability as above; and decide the appeal on that apportionment. Subject to checking, the net result seems to be that the total being £1130, the plaintiff should bear 60 per cent of that amounting to £678; and the defendant 40 per cent of that amounting to £452. Deducting the sum of £678 from the total damage of the plaintiff i.e. £900, the balance is £222, to which sum he is entitled to judgment. There will be judgment accordingly.
As to costs, the trial Court made no order. There will be none for the costs in the District Court. But the appellant is allowed one half of his costs in the appeal (on the scale of £200–£500).
Appeal partly allowed;
order for costs as above.
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