(1981) 1 CLR 632
[*632] 1977 December 3
[TRIANTAFYLLIDES, P., STAVRINIDES, HADJIANASTASSIOU, JJ.]
ANDREAS PARASCHOU KIKA,
Appellant-Defendant,
v.
KYRIAKOS LAZAROU,
Respondent-Plaintiff,
v.
THE ATTORNEY-GENERAL OF THE REPUBLIC,
Respondent-Third Party.
(Civil Appeal No. 5719).
Negligence—Road accident—Respondent knocked down by motor-vehicle whilst manning a road block—No definite finding by trial Court that driver actually saw the respondent standing in the road—No safe conclusion could have been reached, regarding the liability of the parties for the accident in question—Retrial before a different bench ordered.
The appellant-defendant was adjudged to pay to the respondent-plaintiff the amount of C£5,850, as damages for personal injuries caused to him when he was hit at night-time by a car driven by the appellant. The respondent was at the time carrying out his duties as a national guardsman in the service of the Republic; and was manning a road-block.
The crucial issue on which depended the finding as to whether the appellant was solely responsible for the accident in question or, on the contrary, he was not at all responsible, or he was only partially responsible to a limited extent, was whether the appellant actually saw the respondent standing in the road and making to him a signal to stop. The trial Court reached the conclusion "that the defendant either saw the plaintiff or, even if he did not actually see him, he ought to have known of his presence there because he used the road a few hours earlier and according to the evidence the road-block was at that place continuously round the clock". [*633]
Upon appeal by the defendant:
Held, that on the basis of an in the alternative and uncertain finding like the above no safe conclusion could have been reached regarding the liability of the appellant, or any contributory liability of the respondent or any liability of the respondent-third party for not taking all necessary steps to make the roadblock, and the soldiers manning it, visible at night-time; and that, therefore, a retrial of this case before, necessarily, a differently constituted bench will be ordered.
Appeal allowed.
Retrial ordered.
Appeal.
Appeal by defendant against the judgment of the District Court of Nicosia (Stavrinakis, P.D.C. and Orphanides, S.D.J.) dated the 28th April, 1977 (Action No. 21/75) by virtue of which he was adjudged to pay to the plaintiff the amount of C£5,850.- as damages for personal injuries caused to him when he was hit at night-time by a car driven by the defendant.
X. Syllouris, for the appellant.
D. Savvides (Mrs.), for the respondent.
Gl. Michaelides, for the respondent-third party.
Cur. adv. vult.
Triantafyllides P. read the following judgment of the Court. The appellant has appealed against the judgment of the District Court of Nicosia by virtue of which he was adjudged to pay as the defendant before the trial Court, to the respondent, as the plaintiff, the amount of C£5,850, as damages for personal injuries caused to him when he was hit at night-time by a car driven by the appellant. The respondent was at the time carrying out his duties as a national guardsman in the service of the Republic.
The crucial issue on which depends the finding as to whether the appellant was solely responsible for the accident in question or, on the contrary, he was not at all responsible, or he was only partially responsible to a limited extent, is whether the appellant actually saw the respondent standing in the road and making to him a signal to stop. [*634]
Unfortunately, in its very lengthy judgment, the trial Court does not come to a final conclusion as regards this issue; and, after drawing a lot of inferences from the facts established before it, and, also, exceeding, in the course of doing so, as counsel for the appellant has rightly complained, the permissible by law limits of taking judicial notice of facts, and, even, after having gone as far as to give the impression that it had acted as an expert evaluating relevant technical matters, it reached the conclusion "that the defendant either saw the plaintiff or, even if he did not actually see him, he ought to have known of his presence there because he used the road a few hours earlier and according to the evidence the road-block was at that place continuously round the clock".
In our opinion on the basis of an in the alternative and uncertain finding like the above no safe conclusion could have been reached regarding the liability of the appellant, or any contributory liability of the respondent or any liability of the respondent-third party for not taking all necessary steps to make the road-block, and the soldiers manning it, visible at night-time. We therefore, have to order a retrial of this case before, necessarily, a differently constituted bench.
The costs of the first trial to be costs in the cause of the new trial; also, the costs of this appeal to be, also, costs in the cause in the new trial, but, in any case, not to be costs against the appellant.
Appeal allowed. Retrial ordered.
Order for costs as above.
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