Principles

·  TORT— Damages—- Negligence —Apportionment according to degree of fault — Last clear chance —Plaintiff cyclist’s failure to signal — Road Traffic Ordinance 1.942, s. 47.

·  DAMAGES — Tori— Road Traffic Ordinance 1942 s. 47 — Apportionment according to degree of fault.

Plaintiff was riding a bicycle and was struck by defendant’s car when he turned in front of the car without signalling. The High Court awarded plaintiff full damages.
On appeal to the Court of Appeal:
Held: Even though defendant may hate had the last clear opportunity to a accident, plaintiff is entitled only to damages apportioned according to the degree of fault, under Road Traffic Ordinance 1942, s. 47 (re-enacted in Road Traffic Act 1962, s. 51), and his failure to signal constituted one-half liability.,

Judgment

Advocate: Dr. El Sayim …………………………..for appellant

Babiker Asvadalla, J., October 30. 1961 :— This is an appeal against the decree of the Honourable Judec of the High Court, Khartoum, ordering appellant (defendant in the suit) to pay to respondent (plaintiff) the sum of £S. 390 and costs, beiuig damages for personal injuries sustained by res pondent through the negligent driving of appellant.

The accident took place shortly after sunset on Junuary 2. 1958, when respondent was cycling southward on Hierria Road ahead of appellant who was driving his car in the same direction. There is no clear evidence

• Court: M. A. Abu Rannat, C.J., M. A. Hassib and B ..Awadalla, JJ.

As to what exactly happe at the time but what is certain is that respOn nted to swerve right into the industrial area and was’ struck by appellant, who was only a few yards behind. The accident resulted in a fracture of respondent’s right thigh, for which he spent about three months in hospltal and was discharged with a permanent disability assessed by a medical board at thirty per cent.

Although the Honourable Judge of the High Court was satisfied that respondent “turned to his right without making a clear signal” and that his hearing was defective, yet he found appellant wholly to ‘blame, because in his opinion, “The appellant had to drive With care, with a sharp look out to the cyclist, either to pass by him or to allow him to cross safely.”

Before us, it was contended on behalf of the appellant

a) that the Honourable Judge of the High Court was wrong in law in finding that the appellant was wholly to blame for the accident because there was no evidence that respondent had signalled a therefore the blame for the accident ought to have been apportioned, and

b) that in any case the damages awarded are, having regard to all the circumstances of the case, including particularly the age and earning capacity of respondent, highly excessive.

Respondent was not represented, but he appeared before us personally. He is definitely over seventy and suffers from highly defective hearing.

In my opinion the Honourable Judge of the High Court was wrong in deciding  that appellant should take all the blame even though there is no evidence that respondent gave any warning of his intention to cross the road. It may be that the Honourable Judge of the High Court had thrown all the blame on appellant because in his opinion appellant had the last opportunity of avoiding the accident by the use of reasonable care, despite the fact that respondent was initially negligent, if that was his line of thought, then the Honourable Judge of the High Court was no doubt obvious of the effect of Road Traffic Ordinance, s. 47: “In civil suits arising out of road accidents where damage has been caused by the fault of two or more persons the Court shall apportion the liability in the degree in which each party is found to be at fault.” It is even doubtful if appellant did in fact have last opportunity of avoiding the accident, for respondent, ac cording to the evidence, is suffering from a very defective hearing and any attempt on the part of appellant to avoid the accident through warning respondent by sounding his horn would have been quite futile.

Having regard therefore to the specific circumstances of this case, I think it would be fair to hold both parties equally negligent and to apportion the damage equally between them.

I now come to the objection raised by the learned advocate for appellant on the quantum of the damage suffered by respondent, and I think I can shortly dispose of this point by saying that the learned advocate gave no valid reasons in support of his objection. The only thing that I need mention here is that the Honourable Judge of the High Court failed to consider the effect of Code of Criminal procedure, s. 312, which requires a civil Court to take into consideration any sum paid in compensation in criminal proceedings. Respondent shall therefore be entitled to half the amount awarded him by the Court below, minus the sum of £S. 50.

This appeal is therefore allowed and the decree of the Honourable Judge of the High Court shall accordingly be varied by reducing the amount the amount of compensation to £S. 1145 in all.

MA. Abu Rannat, C October 30, 1961 :— I concur.

‘MA. Hassib, J., October 30, 1961:— 1 concur.