(1974) 1 CLR 219
1974 December 5
[*219]
[TRIANTAFYLLIDES, P., A LOIZOU, MALACHTOS, JJ.]
COSTAS DEMOU AND ANOTHER,
Appellants-Defendants,
v.
TOULLA EVDORA ROUSSOU AND OTHERS,
Repondents-Plaintiffs.
(Civil Appeal No. 5177).
Negligence-Contributory negligence-Road traffic accident-Collision between motor vehicles moving in the same direction-Lorry, driven by appellant 1, emitting thick clouds of fumes from its exhaust pipe-Completely obstructing respondent’s field of vision when attempting to overtake lorry-Appellants held liable to the extent of 80%-No adequate reasons for interfering in appellants favour with apportionment as made by trial Court.
Negligence-Road accident-Mechanical defect in vehicle-Evidential burden-Shifting of-Emission of thick cloud of fumes and smoke from exhaust pipe of lorry-Attributed to inadequate maintenance of its engine-Owner of vehicle liable.
A lorry, driven by appellant 1, was proceeding from Nicosia towards Limassol, followed by a V car driven by respondent 2; respondent 2 attempted to overtake the lorry but, at that moment, there was emitted suddenly from the exhaust pipe of the lorry a thick cloud of fumes and smoke which obstructed completely his field of vision. The driver of the lorry, appellant having realized that there was something wrong, stopped his vehicle at the left of the asphalt, without going on to the berm, because, as he said, he thought that it was unsafe to do so as there was a precipice next to the road. Respondent 2, being very close to the lorry, did not manage, blinded as he was by the cloud of smoke, to avoid colliding with the lorry; as a result the left front part of his car struck the rear of the lorry.
The only issue in this appeal was that of the liability [*220] for the collision, which the trial Court apportioned as burdening the appellants to the extent of 80% and respondent 2 to the extent of 20%.
A cognate issue with which the Court of appeal had to deal in this appeal was the responsibility for the sudden emission of the thick cloud of smoke. The trial Court having heard all the evidence that was called by the respondents and the appellants, came to the conclusion that the cause of the emission was the inadequate maintenance of the engine of the lorry on the part of its owner, appellant 2, which resulted in a mechanical breakdown entailing the said emission.
In arguing the appeal against apportionment of liability counsel for appellant contended that respondent 2 was driving too close to the lorry at the material time; and that he ought to have anticipated the possibility of the dangerous situation that ensued, as the lorry had, for quite some distance, been emitting now and then from its exhaust pipe more smoke than usual.
Held, (A) With regard to the apportionment of liability: There are no adequate reasons for our interfering, in favour of the appellants, with the apportionment of liability as made by the trial Court the attempt to overtake the lorry involved, inevitably, approaching it very closely at a certain point of time, and it was at that critical stage that respondent 2 was blinded suddenly by a thick cloud of smoke emitted from the lorry we cannot accept, either, that the previous emission of smoke should have warned the said, respondent of what eventually, ensued and had there been., a cross-appeal we might not have been inclined to uphold that this respondent was to blame to the extent of 20%.
Held, (B) With regard to the responsibility for the sudden emission of smoke:
I. It is correct that the expert witness stated that even if there had been proper maintenance such an emission of smoke, as the one in the present instance, might have happened due to a sudden and unforeseen mechanical breakdown; the evidence [*221] has, however, to be looked at as a whole and the fact remains that this is not a case where it has been established, on the balance of probabilities, that there had been proper maintenance and, therefore the owner of the lorry (appellant 2) is not to be blamed for a sudden and unforeseen breakdown; on the contrary, it was found that there had been inadequate maintenance of the engine of the lorry and that this was the cause of the emission of the cloud of smoke. (Stennett v. Hancock & Peters [19391 2 All E.R. 57.8 and Choo v. Moi [1970] 1 All E.R. 266 distinguished).
2. There comes a point, in a case in which an accident has happened through a mechanical defect in a vehicle, when the evidential burden shifts and it is up to the person responsible for the proper maintenance of the vehicle to adduce such evidence of having taken all due precautions in maintaining it as to exclude the possibility of negligence. (See Henderson v. Jenkins & Sons and Another [19691 3 All E.R. 756 and Barkway v. South Wales Transport Co. Ltd. [1950] 1 All E.R. 392 at pp. 399 and 404).
Appeal dismissed.
Cases referred to:
Stennett v. Hancock & Peters [1939] 2 All E.R. 578:
Choo v. Moi [1970] 1 All E.R. 266:
Henderson v. Jenkins & Sons and A not her [1969] 3 All E.R. 756;
Barkway v. South Wales Transport Co. Ltd. [1950] 1 All E.R. 392 at pp. 399, 404.
Appeal.
Appeal by defendants 1 and 2 against the judgment of the District Court of Larnaca (Georghiou, P.D.C. and Orphanides S.D.J.) dated the 27th November. 1972 (Consolidated Actions Nos. 734/69, 735/69 and 736/ 69) whereby they were ordered to pay to the plaintiffs [*222] the sum of £880.-damages for injuries they suffered in a traffic accident.
A. Dikigoropoullos, for the appellants.
E. Michaelides, for respondents 1 and 3.
G. Nicolaides with L. Tsikkinis, for respondent 2.
Cur. adv. vult.
The judgment of the Court was delivered by :-
TRIANTAFYLLTDES, P.: This is an appeal against the judgment of the District Court of Larnaca in relation to three consolidated actions arising out of one and the same traffic accident, which occurred, on December 21, 1967, when a lorry driven by appellant 1, while he was acting as an employee of appellant 2, collided with a car driven by respondent 2. The lorry was the property of appellant 2.
The Only issue in this appeal is that of the liability for the collision, which the trial Court apportioned as burdening the appellants to the extent of 80% and respondent 2 to the extent of 20%.
The main facts of the case are as follows :-
The lorry was proceeding from Nicosia towards Limassol, followed by the car; respondent 2, driving the car, attempted to overtake the lorry but, at that moment, there was emitted suddenly from the exhaust pipe of the lorry .a thick cloud of fumes and smoke which obstructed completely the field of vision of respondent 2. The driver of the lorry, appellant 1, having realized that there was something wrong, stopped his vehicle at the left side of the asphalt, without going on to the berm, because, as he said, he thought that it was unsafe to do so as there was a precipice next to the road. Respondent 2, being very close to the lorry, did not manage, blinded as he was by the cloud of smoke, to avoid colliding with the lorry; as a result the left front part of his car struck the rear of the lorry.
It has been attempted by counsel for the appellants to persuade us that either appellant 1 should not have been found liable at all for the collision, or, at least, the apportionment of liability should be altered, to a [*223] considerable extent, in favour of appellants and against respondent 2.
It has been contended, in this connection, that respondent 2 was driving too close to the lorry at the material time and that he ought to have anticipated the .possibility of the dangerous situation that ensued, as the lorry had, for quite some distance, been emitting now and .then from its exhaust pipe more smoke than usual; it has been argued, too, that respondent 2 was not keeping a proper lookout and, generally, that he did not manage his car, while overtaking the lorry, with sufficient precautions.
We are of the view that there are no adequate reasons for our interfering, in favour of the appellants, with the apportionment of liability as made by the trial Court; the attempt to overtake the lorry involved, inevitably, approaching it very closely at a certain point of time, and it was at that critical stage that respondent 2 was blinded suddenly by a thick cloud of smoke emitted from the lorry; actually, had there been a cross-appeal we might have not been inclined to uphold that respondent 2 was to blame to the extent of 20%, because we cannot accept, either, that the previous occasional emission of smoke should have warned him of what eventually ensued.
A cognate issue with which we have to deal in this appeal is the responsibility for the sudden emission of the thick cloud of smoke In this respect the trial Court, having heard all the evidence that was called by the respondents and the appellants, came to ‘the conclusion that the cause for such emission was the inadequate maintenance of the engine of the lorry on the part of its owner, appellant 2, which resulted in a mechanical breakdown entailing the said emission. The trial Court accepted as lucid and reliable the evidence of an expert witness called by the respondents-(Popoff)-who attributed what happened ‘to inadequate maintenance of the engine of the lorry; and, also, the Court pointed out that the evidence adduced by the appellants, to prove proper maintenance, was not convincing, because it lacked precision and was not supported by any records which in the normal course would have existed in relation [*224] to the regular maintenance of the lorry. We see no reason to interfere with the evaluation of the evidence made, as above, by the trial Court.
It is correct that the expert witness, Popoff, stated that even if there had been proper maintenance such an emission of smoke, as the one in the present instance, might have happened due to a sudden and unforeseen mechanical breakdown; the evidence has, however, to be looked at as a whole and the fact remains that this is not a case where it has been established, on the balance of probabilities, that there had been proper maintenance and, therefore, appellant 2 is not to be blamed for a sudden and unforeseen breakdown; on the contrary, it was found that there had been inadequate maintenance of the engine of the lorry and that this was the cause of the emission of the cloud of smoke.
Two cases to which we have been referred to by counsel for the appellants are in our view clearly distinguishable from the present one: In Stennett v. Hancock & Peters [1939] 2 All E.R. 578, the owner of a lorry vas absolved from all liability for faulty maintenance of such lorry, which was involved in an accident caused through its mechanical breakdown, because there was evidence, which was accepted, that the repairs of the lorry had been entrusted to a competent outside contractor who could reasonably be relied on to carry out proper maintenance: this is not the position in the present case where the maintenance was carried out in the garage of the owner of the lorry, appellant 2, where, according to evidence on record, mechanical maintenance to a major extent was made only if a driver would report something amiss. In Choo v. Moi [1970] 1 All E.R. 266, the Court. having accepted that there had been proper maintenance, fairly attributed the accident to a latent defect; in the present case, however, we are faced with a finding-which we are not prepared to disturb-that there had been no proper maintenance, and the position is therefore, different from that in the Choo case.
As was decided in Henderson v. Jenkins & Sons and Another [1969] 3 All E.R. 756, there comes a point, in a case in which an accident has happened through [*225] a mechanical defect in a vehicle, when the evidential burden shifts and it is up to the person responsible for the proper maintenance of the vehicle to adduce such evidence of having taken all due precautions in maintaining it as to exclude the possibility of negligence (see, in particular, the concluding part of the judgment of Lord Pearson at p. 768). A similar case is that of Barkway v. South Wales Transport Co., Ltd. [1950] 1 All ER. 392; we would draw attention, in particular, to what has been stated in the judgments of Lord Porter (at p. 399) and Lord Radcliffe (at p. 404).
For all the above reasons this appeal has to be dismissed with costs.
Appeal dismissed with costs.
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