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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 1 CLR 883
1983 September 19
[TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, JJ.]
GEORGHIOS ATHANASSI PAFITIS,
Appellant-Defendant.
v.
ITALO BONIFACIO,
Respondent-Plaintiff.
and
LAURA BONIFACIO,
Respondent-Third Party.
(Civil Appeal No. 5894).
Negligence-Road accident-Appellant cutting across the path of the car driven by the respondent-Rightly held solely liable for the accident.
Findings of fact-Based on credibility of witnesses-And on inferences drawn from facts established by evidence which was accepted by the trial Court-Appeal-Court of Appeal not persuaded that it should interfere with either the findings or the inferences.
Damages-General damages-Personal injuries-Technician of watches, in his early forties, sustaining a moderate concussion and cervical injuries, a compound injury to the left knee and a possible minor fracture of the region of the 9th to the 12th rib-Experienced headaches and dizziness for a year and a half and has had to give up many of the pleasures of life mainly his engagement in sports-Totally incapacitated from doing any work for three months and partially incapacitated for a further period of three months-Has suffered a moderately severe permanent disablement-Award of C£3,960 for loss of earnings during the period he was incapacitated from working, C£4,950 for future loss of earnings and C£5,000 for pain and suffering and loss of amenities for life sustained.
Judgment-Foreign currency-Personal injuries-Damages for past and future loss of earnings-Can be awarded in the foreign currency in which the damage was incurred or was to be incurred without conversion into Cyprus currency-Applicable in this case rate of conversion agreed upon by the parties.
The respondent-plaintiff, who was a passenger in a car driven by the third party, was injured in a collision between this car and a car driven by the appellant-defendant. He was a technician of watches in his early forties. As a result of the accident he sustained a moderate concussion and cervical injuries that have given him considerable pain and have caused a permanent limitation of the movements of the neck. Further he suffered bruising with possible minor fracture of the ribs, in the region of the 9th to the 12th rib on the left side, an injury that has caused him a degree of discomfort. The most serious injury was a. compound injury to the left knee that has caused a moderately severe permanent disablement. He experienced headaches and dizziness over a long period of time, extending up to a year and a half, and has had to give up many of the pleasures of life as a result of his injuries, mainly his engagement in sports, like refereeing football matches, skiing and playing tennis. As a result of the accident he was totally incapacitated from doing, any work for a period, of three months and partially incapacitated for a further period of three months.
The trial Court found that the collision was caused solely by the negligent driving of the appellant, who drove his car in a manner cutting across the path of the car which was driven by the third party and that the third party was not guilty at all of contributory negligence.
Such finding was based on evidence which the trial Court, after having seen the witnesses who testified before it, accepted as credible and on reasonably open to it inferences which were drawn from facts that had been established by such evidence and, also, from the real evidence in this case.
The respondent was awarded C£415 as agreed special damages, 6,000,000 Italian lire for loss of earnings during the period when he was incapacitated from working, 7,500,000 Italian lire for future loss of earnings and C£13,000 as general damages for pain and suffering and loss of amenities of life.
The aforementioned two amounts of Italian lire were converted by the trial Court into C£3,960 and C£4,950, respectively, on the basis of the rate of exchange which was in force at, approximately, the time when the collision occurred.
Upon appeal by the defendant on the issues of liability and damages Counsel for the appellant complained, also, that the two amounts which were awarded for losses of earnings were converted from Italian lire into Cyprus pounds at the rate of exchange which was in force at the time of the collision and not at that which was in force at the time when the trial Court gave its judgment.
It appeared, however, that the parties were in agreement before the trial Court regarding the applicable rate of exchange.
Held, (1) that this Court has not been persuaded by the appellant that it should interfere with either the findings of the trial Court as to the credibility of witnesses or with the inferences drawn by it; and that, therefore, it will uphold the finding of the trial Court on the issue of the liability for the collision.
(2) That in the light of the totality of the material on the basis of which the trial Court has assessed the damages payable to the plaintiff, and bearing in mind the well-founded principles which govern the exercise on appeal of the relevant powers of this Court there is no reason at all to interfere with the damages which were assessed by the trial Court.
(3) That this was, indeed, a case in which, in the light of the principles of law expounded in, inter alia, the case of The Despina R., [1979] 1 All E.R. 421, the amounts awarded as damages in respect of past and future losses of earnings could have been awarded in the foreign currency-the Italian lira-in which the damage was incurred or was to be incurred, without conversion into Cyprus currency (and see, inter alia, in this connection, J. Y.A. Lamaignere v. Selene Shipping Agencies Limited, (1982) 1 C.L.R. 227 at pp. 234, 235); that in view of the agreement of the parties regarding the applicable in this case rate of exchange it is not necessary to consider and decide in this case what would have been the appropriate rate of exchange in a case of this nature had there been no agreement between the parties in this connection; accordingly the. appeal must be dismissed.
Appeal dismissed.
Cases referred to:
Mentesh v. HadjiDemetriou (1983) 1 C.L.R. 1 at pp. 8, 9;
Panayiotou v. Christofi (1983) 1 C.L.R. 143 at p. 150;
Municipality of. Nicosia v. Kythreotis (1983) 1 C.L.R. 154 at pp. 173, 174;
Papadopoullos v. Pericleous (1980) 1 C.L.R. 576 at p. 579;
Cyprus Palestine Plantations Co. Ltd. v. Leandrou (1982) 1 C.L.R. 880 at pp. 892, 893;
Morgans v. Launchbury [1972] 2 All E.R. 606;
Neocleous v. Christodoulou (1979) 1 C.L.R. 714 at pp. 724-25;
The Despina R. [1979] 1 All E.R. 421;
J. Y.A. Lamaignere v. Selene Shipping Agencies Ltd. (1982) 1 C.L.R. 227 at pp. 234, 235.
Appeal.
Appeal by defendant against the judgment of the District Court of Larnaca (Pikis, P.D.C. and Artemis, D.J. ) dated the 2nd November, 1978 (Action No. 61/73) whereby he was ordered to pay to the plaintiff the amount of C£4,325.- as damages in respect of injuries which he sustained in, a traffic accident.
L. Papaphilippou, for the appellant-defendant.
M. Vassiliou, for the respondent-plaintiff.
A. Andreou, for the respondent-third party.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant, who was the defendant at the trial of this case before the District Court of Larnaca, has appealed against the judgment of the trial Court by means of which he was ordered to pay to the respondent-plaintiff (to be referred to hereinafter as the "plaintiff") the amount of C£14,325 as damages in respect of injuries which the plaintiff sustained in a traffic 'accident, when a car (DG99) which was being driven by the appellant collided with a car (ZFU72) which was being driven by the respondent-third party (to be referred to hereinafter as the "third party"), on the 30th December 1972.
At the time the plaintiff was travelling as a. passenger in the car of the third party, who was his fianceé.
The trial Court found that the collision was caused solely by the negligent driving of the appellant, who drove his car in a manner cutting across the path of the car which was driven by the third party, and that the third party was not guilty at all of contributory negligence.
ln the light of the principles governing the exercise, in a case of this nature, of our powers as an appellate tribunal (see, inter alia, in this respect, Mentesh v. HadjiDemetriou, (1983) 1 C.L. R. 1, 8, 9, Paizayiotou v. Christoji, (1983) 1 C.L.R. 143, 150, and the Municipality of Nicosia v. Kythreotis, (1983) 1 C.L.R. 154, 173, 174), and after having examined all the relevant submissions of counsel for the parties, we have reached the conclusion that we should uphold the aforesaid finding of the trial Court on the issue of the liability for the collision in question. Such finding was based on evidence which the trial Court, after having seen the witnesses who testified before it, accepted as credible and on reasonably open to it inferences which were drawn from facts that had been established by such evidence and, also, from the real evidence in this case; and we have not been persuaded by the appellant that we should interfere with either the findings of the trial Court as to the credibility of witnesses or with the inferences drawn by it as aforesaid (and see, in this. respect, inter alia, Papadopoullos v. Pericleous, (1980) 1 C.LR. 576, 579; The Cyprus Palestine Plantations Co. Ltd. v. Leandrou, (1982) 1 C.L.R. 880, 892, 893 and the Municipality of Nicosia case, supra).
We might observe, too, that we agree with the trial Court that, in the circumstances of this case and on the basis of the relevant principles of law which were expounded in Morgans v. Launchbury, [1972] 2 All V E.R. 606, the plaintiff could not, in any event, be found to be vicariously liable for any contributory negligence of the third party, even assuming that it could have been held that the third party was guilty of such negligence.
As regards the injuries which were suffered by the plaintiff and their adverse for him after-effects we find it useful to quote the following passage from the judgment of the trial Court which, in our view, corresponds accurately to relevant evidence which was found by the trial Court to be reliable:
"At the time of the accident the plaintiff was in his early forties, a technician of watches engaged in the repair and valuation of antique clocks and watches. He was running his own business that took him at times to several parts of the world, mainly for the purpose of valuing antique objects of his speciality. As a result of the accident he suffered a moderate concussion and cervical injuries that have given him so far considerable pain and have caused a permanent limitation of the movements of the neck, as described in the medical certificate. Further he suffered bruising with possible minor fracture of the ribs in the region of the 9th to the 12th rib on the left side, an injury that has caused him a degree of discomfort. By far the most serious injury was the compound injury to the left knee that has caused, in the words of the doctors, 'a moderately severe permanent disablement', a disablement that would have far greater repercussions on the earning capacity of the plaintiff had it not, been for the fact that his job is a sedentary one. As the plaintiff testified, and he is supported by the doctors, he experienced headaches and dizziness over a long period of time, extending up to a year and a half, and has had to give up many of, the pleasures of life as a result of his injuries, mainly his engagement in sports, like refereeing football matches, skiing and playing tennis. The picture that emerges is that plaintiff, at a fairly early stage of his life, at a stage to which some would refer as the prime of his life, was crippled and had to endure considerable, pain and discomfort as well as experience, on a permanent basis, the loss of those pleasures that are associated, with sports. As a result of the accident he was totally incapacitated from doing any work for a period of three months and partially incapacitated for a further period of three months".
The plaintiff was awarded C£415 as agreed special damages, 6,000,000 Italian lire for loss of earnings during the period when he was incapacitated from working, 7,500,000 Italian lire for future loss of earnings and C£5,000 as general damages for pain and suffering and loss of amenities of life.
The aforementioned two amounts of Italian lire were converted by the trial Court into C£,960 and C£4,950, respectively, on the basis of the rate of exchange which was in force at, approximately, the time when the collision occurred.
In the light of the totality of the material on the basis of which the trial Court has assessed the damages payable to the plaintiff, and bearing in mind the well-founded principles which govern the exercise on appeal of our relevant powers (see, inter alia, in this respect, Neocleous v. Christodoulou, (1979) 1 C.L.R. 714, 724, 725 and the Mentesh case, supra, 11, 12), we see no reason at all to interfere with the damages which were assessed by the trial Court.
There remains to be dealt with, next, the complaint of the appellant that the two amounts which were awarded, as aforesaid, for losses of earnings were converted from Italian lire into Cyprus pounds at the rate of exchange which was in force at the time of the collision and not at that which was in force at the time when the trial Court gave its judgment.
This was, indeed, a case in which, in the light of the principles of law expounded in, inter alia, the case of The Despina R., [1979] 1 All E.R. 421, the amounts awarded as damages in respect of past and future losses of earnings could have been awarded in the foreign currency-the Italian lira-in which the damage was incurred or was to be incurred, without conversion into Cyprus currency (and see, inter alia, in this connection, J. Y.A. Lamaignere v. Selene Shipping Agencies Limited, (1982) 1 C.L.R. 227, 234, 235).
In the present case, however, the trial Court after having assessed the losses of earnings in the relevant foreign currency, and having used such foreign currency in awarding damages in this respect, it proceeded, as it was entitled to do, to convert the amounts in question to Cyprus pounds.
As it appears from the material before us the trial Court converted Italian lire into Cyprus pounds at the rate of exchange prevailing about a month after the occurrence of the accident and in doing so it relied on a statement from the Central Bank of Cyprus indicating such rate, which was produced before the trial Court immediately after the conclusion of the hearing of the case by counsel appearing for the plaintiff; and the relevant record of the Court reads as follows: "Vassiliou appears before the Court and produces a statement from the Central Bank, signed by Mr. Mitsides as well, indicating the rate of exchange at the material time, i.e. as at 30th January 1973. He further informs the Court that Mr. Andreou agrees to its contents as well". On the statement in question there appears in his own handwriting and signed by him the following note by Mr. Mitsides: "No objection to the production".
Mr. M. Vassiliou has appeared for the plaintiff in this appeal, too, and Mr. A. Andreou has, likewise, appeared for the third party, but Mr. G. Mitsides has not appeared in this appeal for the appellant; and Mr. L. Papaphilippou, who has appeared instead of him, has argued that the circumstances in which the statement concerned was produced before the trial Court did not establish an agreement on the part of Mr. Mitsides, as regards the applicable rate of exchange, but only an agreement for the production of the said statement.
The trial Court stated the following, in this respect, in its judgment: "We have before us an agreed exchange rate table that enables us to convert Italian Lire into Cyprus pounds".
We think that the trial Court, quite justifiably in the particular circumstances, treated the production of the statement from the Central Bank as signifying an agreement of all the parties as regards the applicable rate of exchange of Italian lire into Cyprus pounds and proceeded to convert accordingly into Cyprus pounds the damages for past and future losses of earnings which it had calculated in Italian lire.
We cannot agree with the submission of counsel for the appellant that Mr. Mitsides did not agree about the applicable rate of exchange, because if he did in fact wish to object to the applicability of the rate of exchange shown on the aforementioned statement from the Central Bank and had consented only to the production of such statement, he could, and should, have indicated clearly that this was so by phrasing appropriately the note which he made on the said statement, and he has not done this.
In view of the agreement of the parties, as aforesaid, regarding the app1iab1e in this case rate of exchange we do not think that it is necessary to consider and decide in this case what would have been the appropriate rate of exchange in a case of this nature had there been no agreement between the parties in this connection.
For all the foregoing reasons this appeal fails and it is dismissed with costs.
Appeal dismissed with costs.