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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1972) 1 CLR 215
1972 November 28
[TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU, JJ.]
CHARALAMBOS N. MYLONAS,
Appellant-Defendant,
v.
ELEFTHERIOS KAMINARIDES,
Respondent-Plaintiff.
(Civil Appeal No. 5098).
Personal injuries-Damages-General damages-Principles upon which the Court of Appeal interferes with awards of general damages-Assessment of general damages-Comparable awards-Method of multiplicand and multiplier-Thirty eight years old business man suffering serious injuries on leg, head and right wrist-Prolonged treatment-Successive operations including a plastic one-Overall residual partial incapacity at 50 %-Diminished earning capacity-Loss of income by about £30 monthly-Suffering and pain-Award of £6,500 damages sustained on appeal-Cf. further infra.
Special damages-Loss of earnings-Average earning capacity before accident-Basis of calculation.
General damages in personal injuries cases-Assessment-Principles and methods-See supra.
Appeal-Against awards of general damages in personal injuries cases-Approach of the Court of Appeal to appeals of this kind.
The facts sufficiently appear in the judgment of the Court whereby it left undisturbed the award of general damages in this personal injuries case but reduced the amount of special damages awarded by the trial Court.
Cases referred to:
Wheeler v. British India Steam Navigation Company Ltd. [1966] 2 Lloyd's Rep. 335;
Antoniades v. Makrides (1969) 1 C.L.R. 245 at p. 250;
Parry v. English Electric Co. Ltd. [1971] 1 W.L.R. 664, at p. 667;
Wilson v. Pilley [1957] 1 W.L.R. 1138;
Papadopoullos v. Tryfonos (1968) 1 C.L.R. 80;
Mitchell v. Mulholland and Another (No. 2) [1971] 2 All E.R. 1205
Hearnshaw v. English Steel Corporation [1971] 11 K.I.R. 306.
Appeal and cross-appeal.
Appeal by defendant and cross.appeal by plaintiff against the judgment of the District Court of Larnaca (Savvides, Ag. P.D.C. and Orphanides, D.J.) dated the 12th June, 1972, (Action No. 576/70) whereby the defendant was ordered to pay to plaintiff the sum of £10,000 as general and special damages in respect of injuries suffered by the plaintiff in a traffic accident, while being a passenger in the car of the defendant.
A. Dikigoropoulos, for the' appellant.
Ph. Clerides, for the respondent.
The judgment of the Court was delivered by:-
TRIANTAFYLLIDES, P. The appellant complains against a judgment of the Larnaca District Court by virtue of which the respondent was awarded £6,500 general damages and £3,500 special damages in respect of injuries which he suffered on the 31st July, 1969, in a traffic accident, while being a passenger in the car of the appellant.
The liability of the appellant is not in disputes ; also, there is no dispute about an amount of £1,220, which forms part of the special damages, and which, having been agreed between the parties, was paid to the respondent before judgment was delivered by the trial Court ; this amount of £1,220 was paid in respect of all heads of special damages other than loss of earnings, in respect of which the respondent was awarded the remainder out of the total (£3,500) of special damages.
The respondent, who is now thirty eight years old, suffered injuries as a result of which he had to undergo prolonged treatment in Cyprus and abroad ; he has remained seriously incapacitated
He was injured on the right leg, which was fractured, on the head (including a facial injury, for which he had to undergo plastic surgery in England, and cerebral concussion), on the right wrist, which was fractured, and on other parts of his body.
The wrist injury has caused a noticeable residual deformity, involving radial deviation of the hand on the wrist and undue prominence of the lower end of the ulna; the range of movement of the wrist has been reduced by about one third.
By far more serious was the injury to his leg; he had to be operated both here and in England; the range of movement of his right knee is now only 25° (instead of the normal 180°) and the joint cannot be fully extended; due to the surgical operations there has remained on his right leg a very prominent scar which the trial Court describes as "a very ugly and nasty scar ". It is the consensus of medical opinion, both here and in England, that the ultimate outlook is that the respondent will develop painful arthritis in his right knee, as a result of which a further operation arthrodesis-will be necessary; and, then, the knee will become entirely stiff.
The overall residual partial incapacity of the respondent has .been estimated at 50%.
At the time of the trial he was still under treatment for after-effects of the concussion (such as insomnia, headaches, irritability and difficulty to concentrate) ; the treatment for his other injuries lasted until March, 1971, that is for over a year and a half after the accident, and during this period he suffered considerable pain and discomfort.
The respondent at the time of the accident was a businessman, in the prime of life. He had started, two weeks before the accident, a business of his own ; during those two weeks his net profits were about £45; previously he was the managing director of a trading company and he was receiving a salary of £70 per month, plus monthly allowances of £25 and £5 for travelling and rent, respectively; he was a shareholder in the company, to the extent of 40%, and he was earning by way of dividends about £60 monthly, in addition to his other emoluments as above. He sold his shares in the company two weeks before the accident, when he started a business of his own.
It is, thus, clear that up to two weeks before the accident the respondent was earning £75 per month; we have taken into account his salary and rent allowance, but we have disregarded the travelling allowance which we cannot consider as income. We regard this amount of £75 as a useful factor in assessing the average monthly earning capacity of the respondent at the time of the accident.
We could not rely in this connection on only the net earnings of the respondent (namely £45) during the two weeks' period when he was working on his own immediately before the accident, because such period is a too short one; nor can we take significantly into account the income of the respondent as a shareholder in the company of which he was-as aforesaid-the managing director, because not only he had sold his shares in the company before the accident, but also his personal contribution to the successful running of the business of such company ceased before the accident, thus severing any link between his capacity for work and the profits of the company.
In the light of all the foregoing we have reached the conclusion that an amount of £80 per month would be a safe basis on which to calculate the average earning capacity of the respondent immediately before the accident, instead of the £90 per month which was the amount found by the trial Court, having given undue, in our opinion, weight to the earnings of the respondent during the two weeks before the accident when he was running his newly-started business of his own.
As after treatment for his injuries the, respondent is now employed at a salary of only £50 per month, due to his condition, he has been and is suffering, as a result of his diminished earning capacity, a loss of income of about £30 monthly.
The trial Court has calculated the amount of special damages, by way of loss of earnings, in relation to the period from the date of the accident-the 31st July, 1969-until May, 1971, when the respondent was unable to work, and in relation to a subsequent period, from the 1st May, 1971, until the trial in the middle of February, 1972, during which the respondent was earning £50 per month. On the basis of what we have found to be the average monthly earning capacity of the respondent before the accident, namely £80, the proper amount of special damages for loss of earnings for the first period should be £1,680, instead of the £1,890 awarded by the trial Court, and £285 for the second period, instead of the £380 awarded by the trial Court, adding up to a total of £1,965 ; therefore, the amount of special damages awarded at the trial to the respondent as loss of income has to be reduced from £2,270 to a round figure of £2,000.
It has been submitted on the strength of Wheeler v. British India Steam Navigation Company, Ltd. [1966] 2 Lloyd's Rep. 335, that the respondent should have received damages for loss of earnings, in respect of total incapacity for work, only up to March, and not up to May, 1971, because by March the medical treatment of the respondent for his injuries had enabled him to recover therefrom as much as possible in the circumstances and he had become a permanently partially incapacitated person who could have found employment as such, had he made proper efforts for this purpose.
The medical evidence in this connection is that the respondent "could resume sedentary or semi-sedentary work in March, 1971, i.e. about five months after he had the operation in England" and, in our view, such evidence is not so definite as regards the element of time as to make us hold that it was not open to the trial Court to award damages for total loss of earnings up to the 1st May, 1971, when the respondent actually began to work.
We shall, next, deal with the issue of the general damages which were awarded to the respondent :
As already stated, the respondent was severely injured and had to receive prolonged medical treatment ; he has suffered considerable pain and discomfort and has remained seriously incapacitated.
Also, as stated in its judgment by the trial Court, "before the accident he was, according to his evidence, living a very social life, attending cinemas, theatres, restaurants, dancing places, swimming. In the present condition of his leg, however, he cannot swim and he could not have an outdoor entertainment and was spending his time in the house".
Counsel for the appellant has argued that the amount of general damages, namely £6,500, is excessive, being a totally erroneous estimate thereof, and that we should reduce it ; on the other hand, counsel for the respondent has cross-appealed seeking an increase of the general damages on the ground of their being totally inadequate.
The approach of this Court to awards of general damages has been explained in many cases decided by it; it is sufficient to refer to Antoniades v. Makrides (1969) 1 C.L.R. 245, where the relevant case-law is reviewed ; as stated in the judgment in that case (at p. 250)
"It is well settled that this Court would not be justified in disturbing the finding of the trial Court on the question of the amount of damages, unless it is convinced either that the trial Court acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it in the judgment of this Court an entirely erroneous estimate of the damages to which the plaintiff is entitled."
It is, also, useful to refer, in relation to the law in England, to Parry v. English Electric Co. Ltd. [1971] 1 W.L.R. 664, in which Widgery L.J., in delivering the judgment of the Court of Appeal, quoted with approval (at p. 667) the observation of Lord Evershed M.R. in the case of Wilson v. Pulley, [1957] 1 W.L.R. 1138, to the effect that interference on appeal with an award of damages by a trial Judge must be a rare thing.
Learned counsel for the appellant, in arguing on the issue of general damages, has contended that we should pay due regard to awards in comparable cases ; ,in support of this proposition he referred to the judgment in Papadopoullos v. Tryfonos [1968] 1 C.L.R. 80; we do agree that guidance can, and should, be derived, in assessing damages, from comparable cases, but, at the same time, it must not be lost sight of that-as stressed in the Parry case (supra, at p. 667) "each case must be looked at on its merits".
As stated earlier on in our judgment, the permanent partial incapacity of the respondent has resulted in a reduction by, approximately, £30 per month of, his earnings. Applying, as in Mitchell v. Mulholland and Another (No.2) [1971] 2 All E.R. 1205, the method of multiplicand and multiplier, we find that ,on the basis, as a multiplicand, of a yearly loss of earnings of £360 (being the yearly total of the reduction of earnings due to incapacity) and of a multiplier of 12 years, which is a normal one for a person of the age of, the respondent, the general damages to be awarded to him in respect of loss of future earnings would be £4,320. What remains out of the amount of £6,500, which was awarded as general damages, namely about £2,200, cannot be described as an entirely erroneous estimate of the compensation due to the respondent for the pain and discomfort and loss of enjoyment of life which he has suffered as a result of his injuries ; for example in Hearnshaw v. English Steel Corporation [1971] 11 K.I.R. 306 (the full report of which is not available but a summary of which is to be found in the Current Law Yearbook for 1972, paragraph 831) for the pain and suffering and loss of amenities resulting from a severe incapacitating injury to the left hand the amount of general damages awarded was £2,750; perhaps, in the present case, it might be said, in view of the nature and consequences of the injuries suffered by the respondent, that the amount awarded to him for pain and suffering and loss of amenities is rather low, but it is not so small as to warrant our intervention.
In the light of the foregoing both the appeal and cross-appeal regarding the amount of general damages have to be dismissed.
In the result, this appeal is allowed in so far only as the special damages are concerned, which are reduced to £3,220 (including the amount of £1,220 already paid as special damages).
We have decided to make no order as to the costs of the proceedings before us.
Appeal partly allowed.
No order as to costs.