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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1981) 1 CLR 304
1981 March 31
[TRIANTAFYLLIDES, P., A. LOIZOU, MALACHTOS, JJ.]
PANAYIS ANIKITOU PANAYIDES,
Appellant-Defendant 2,
v.
1. THE REPUBLIC OF CYPRUS THROUGH THE
ATTORNEY-GENERAL OF THE REPUBLIC,
Respondent-Defendant 1,
2. NICOLAS CHARALAMBOUS,
Respondent-Plaintiff.
(Civil Appeal No. 5845).
Damages—General damages—Personal injuries—52 years old gamekeeper, sustaining multiple injuries, a head injury and rupture of left supraspinatus tendon—Post-head injury symptoms in the form of periodical headaches and dizziness continuing—Elevation of left arm could not be raised above 90°—Use of left upper limb not only limited but painful—Award of C£1,500 though possibly on the high side not so manifestly excessive or so unreasonably high—Sustained.
Damages—General damages—Personal injuries—Appeal against award of general damages—Approach of Court of Appeal.
Damages—General damages—Personal injuries—Head injury—And diminution of earning capacity—Though not expressly pleaded properly taken into account, in the circumstances of this case, in assessing damages.
The respondent-plaintiff sustained a fairly large haematoma on his right temporal region, a large haematoma over his medial aspect of his right leg, sprain of the left ankle joint, a wound, 3" long, over the right leg and rupture of the left supraspinatus tendon. His post-head injury symptoms in the form of periodical headaches and dizziness continued and the elevation of his left arm could not be raised above 90° from [*305] the side of his body, this latter injury being of a permanent nature. The use of the upper limb was not only limited but also painful.
The respondent-plaintiff, who was 52 years old, was a refugee from Ayios Amvrosios village and was a farmer upto 1972 when he was appointed on a yearly basis as a game-keeper, an appointment which continued to be renewed until the trial at a salary of £30 per month. Although he was in a position to perform his duties as a game-keeper if he returned to farming, he would not be in a position to carry out his usual farming work.
Upon appeal by appellant-defendant 2 against an award of C£1,500 general damages it was contended :
(a) That the trial Judge erred in taking into account the fact that the plaintiff was, according to the most recent medical report which was dated January 25, 1978, suffering periodically from headaches as a result of the head injuries, although it had not been specifically pleaded that the plaintiff was suffering from headaches;
(b) that it had not been expressly pleaded in the statement of claim that the plaintiff suffered diminution of his earning capacity.
(c) That there was no sufficiently concrete evidence on record to enable the trial judge to assess the loss of earning capacity of the plaintiff..
Held, (1) that in the statement of claim it was stated in the particulars of injuries that the plaintiff suffered head injuries and in the aforesaid medical report of January 25, 1978, which was put in by consent and the contents of which do not appear to have been disputed in any way, it is stated, as part of the subjective findings, that the respondent complained, among other things, of headaches periodically as a result of the injuries to his head ; that as, thus, eventually, the plaintiff's headaches came to be, by consent, part of the record of the case, there is no merit in the submission of counsel for the appellant that they were wrongly taken into account in assessing damages ; accordingly contention (a) must fail.
(2) That in the statement of claim it was clearly pleaded that as a result of the accident the respondent suffered disability and this averment is sufficient to cover the matter of the diminution of earning capacity ; accordingly contention (b) must fail.
(3) That on the basis of the material which was put in by consent and was not disputed, there was established a degree of disability of the plaintiff which could form the basis of the assessment made by the trial court as regards the aspect of the diminution of the earning capacity of the plaintiff; accordingly contention (c) must fail.
(4) That though in the present instance useful comparisons may be made with certain aspects of certain cases such as Droushiotis v. Xeni (1976) 1 C.L.R. 161, 168, Mesimeris v. Kakoullis (1973) 1 C.L.R. 138, 139 and Antoniou v. Iordanous (1976) 1 C.L.R. 341, 349, it is well established that each case is determined on its own merits and, in the circumstances, the amount of general damages awarded in this case even though it may be possibly described as being on the high side, it is not so manifestly excessive or so unreasonably high so that this Court can intervene in order to reduce it on appeal, in the light of the principles governing the exercise of the relevant powers of this Court, as such principles have been expounded in, inter alia, the cases of Mesimeris, supra, and Iacovou v. HjiNicolaou, (1974) 1 C.L.R. 11 ; accordingly the appeal must fail.
Appeal dismissed.
Cases referred to :
Droushiotis v. Xeni (1976) 1 C.L.R. 161 at p. 168 ;
Mesimeris v. Kakoullis (1973) 1 C.L.R. 138 at p. 139 ;
Antoniou v. Iordanous (1976) 1 C.L.R. 341 at p. 349 ;
Iacovou v. HjiNicolaou (1974) 1 C.L.R. 11 ;
Worrer v. Shiaklapanis (1963) 2 C.L.R. 493.
Appeal.
Appeal by defendant 2 against the judgment of the District Court of Nicosia (Boyadjis, S.D.J.) dated the 11th May, 1978, (Action No. 2946/76) whereby he was ordered to pay to the plaintiff the amount of C£1,500 as general damages for injuries sustained by him in a traffic accident.
E. Vrahimi (Mrs.), for the appellant-defendant 2.
R. Gavrielides, Senior Counsel of the Republic, for the respondent-defendant 1.
A. Ladas with M. Pipis, for the respondent-plaintiff.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. The appellant, who was defendant 2 at the trial, complains regarding the amount of C£1,500 which both the defendants at the trial, that is the appellant and respondent-defendant 1, were ordered to pay to the respondent-plaintiff by way of general damages.
The appellant was adjudged to pay 80% of the said amount, on the basis of an apportionment of liability the correctness of which is not challenged in this appeal.
In assessing general damages the trial Judge stated the following:
"From the medical evidence before me the plaintiff has sustained the following injuries:-
(a) A fairly large haematoma on his right temporal region;
(b) A large haematoma over his medial aspect of his right leg;
(c) Sprain of the left ankle joint;
(d) A wound, 3" long, over the right leg; and,
(e) Rupture of the left supraspinatus tendon.
The plaintiff was treated on the diagnosis of multiple injuries with main injuries the head injury and the rupture of the left supraspinatus tendon.
From the whole evidence before me I am satisfied that the plaintiff's post-head injury symptoms in the form of periodical headache and dizziness continue. I am also satisfied that due to the injury of his left supraspinatus tendon the elevation of the left arm cannot be raised above 90° from the side of the body. This latter injury is of a permanent nature. The use of the left upper limb is not only limited but also painful.
The plaintiff was taken from the scene of the collision to the Nicosia General Hospital and was later conveyed by his relatives to a private clinic where he stayed as an inpatient for 2-3 days. He then received treatment as an outpatient. There is no evidence before me as to the length of this treatment.
The plaintiff is 52 years old. He is a refugee from Ayios Amvrosios village, at present residing at Ayia Anna village. He is married and has three children. He was a farmer upto 1972 when he was appointed on a yearly basis as a game-keeper. His appointment as a game-keeper was being renewed yearly before the invasion and continues to be renewed after the invasion and until this day.
On the evidence before me I am satisfied that although the plaintiff encounters difficulty and inconvenience, still he is in a position to perform his duties as a game-keeper. If for any reason, however, he returns to farming, he would not be in a position to carry out the usual farming work. His salary is at present in the region of £30.-per month.
The principles governing the quantum of general damages for personal injuries have been repeatedly laid down and may be summarized in the following sentence: The injured person is entitled to a fair and reasonable compensation. None of the counsel who appeared in this case have addressed me on the quantum of damages which this Court should grant to the plaintiff. They all stated that they leave the matter in the hands of the Court.
Having in mind the nature and extent of the injuries sustained by the plaintiff, the resulting permanent disability, the age, present work and earning capacity of the plaintiff, the extent to which these injuries may prejudicially affect the plaintiff in the labour market, and all other relevant circumstances put before me, I consider that an amount of £1,500.- general damages would be reasonable and adequate compensation for the injuries suffered by him".
It has been arged by counsel for the appellant that the trial Judge erred in taking into account the fact that the plaintiff was, according to the most recent medical report which was [*309] dated January 25, 1978, suffering periodically from headaches as a result of the head injuries, although it had not been specifically pleaded that the plaintiff was suffering from headaches.
In the statement of claim, which was filed on September 14, 1976, it is stated in the particulars of injuries that the plaintiff suffered head injuries and in the aforesaid medical report of January 25, 1978, which was put in by consent and the contents of which do not appear to have been disputed in any way, it is stated, as part of the subjective findings, that the respondent complained, among other things, of headaches periodically as a result of the injuries to his head. As, thus, eventually, the plaintiff's headaches came to be, by consent, part of the record of the case, we find no merit in the submission of counsel for the appellant that they were wrongly taken into account in assessing damages.
It was, also, submitted that it had not been expressly pleaded in the statement of claim that the plaintiff suffered diminution of his earning capacity. But in the statement of claim it is clearly pleaded that as a result of the accident the respondent suffered disability and this averment is, in our opinion, sufficient to cover the matter of the diminution of earning capacity.
We have paid due regard to the awards of general damages in cases referred to by counsel for the appellant, such as Droushiotis v. Xeni, (1976) 1 C.L.R. 161, 168, Mesimeris v. Kakoullis, (1973) 1 C.L.R. 138, 139 and Antoniou v. Iordanous, (1976) 1 C.L.R. 341, 349. Though in the present instance useful comparisons may be made with certain aspects of these cases, it is well established that each case is determined on its own merits and, in the circumstances, we find that the amount of general damages awarded in the case now before us, even though it may be possibly described as being on the high side, it is not so manifestly excessive or so unreasonably high so that this Court can intervene in order to reduce it on appeal, in the light of the principles governing the exercise of the relevant powers of this Court, as such principles have been expounded in, inter alia, the cases of Mesimeris, supra, and Iacovou v. HjiNicolaou, (1974) 1 C.L.R. 11.
As regards the prejudicial effect of the injuries suffered by the plaintiff on his earning capacity in the labour market we cannot accept as correct the contention of counsel for the appellant that, because the plaintiff was earning C£30 per month as a gamekeeper before he suffered the injuries in question and because he still earns now as a gamekeeper the same amount after the said injuries, he has, in fact, suffered no diminution of his earning capacity in general. In the labour market at large it is now less possible for him to find other work more lucratively remunerated. Moreover, as was found by the trial Judge, if the plaintiff ceases to be a gamekeeper and becomes once again a farmer, he will be prejudicially affected in that he will not be able to carry out his usual farming work.
It has been submitted, also, by counsel for the appellant, in the light of the case of Worrer v. Shiaklapanis, (1963) 2 C.L.R. 493, that there was no sufficiently concrete evidence on record to enable the trial Judge to assess the loss of earning capacity of the plaintiff. We cannot agree with this submission as we think that, in the present case, on the basis of the material which was put in by consent and was not disputed, there was established a degree of disability of the plaintiff which could form the basis of the assessment made by the trial Court as regards the aspect of the diminution of the earning capacity of the plaintiff.
As was pointed out by the trial Judge, the parties did not advance any arguments regarding the quantum of general damages and they left their assessment to him; and we are of the view that there exists no ground entitling the appellant to complain now before us against the awarded amount of general damages.
We, therefore, dismiss this appeal with costs against the appellant, in favour of the respondent-plaintiff and we make no order as regards the costs of the respondent-defendant 1, as counsel for such respondent has not claimed any costs.
Appeal dismissed. Order for costs
as above.