118/2014 ΕΤ DOOD (633364)
(1ST LAW PUBLICATION)
Car accident. By final judgment the defendant was found solely at fault
car accident and the plaintiff is at fault against 20% for the extent of the damages because
he was not wearing a helmet. The claimant became permanently disabled and unable to work.
His claim for lost profits and further damage after 2007 was dismissed as premature
practiced. No action was brought against these funds within six months. Extension of statute of limitations.
Conditions. Limitation. Inception. Knowledge of the damage for the start of the statute of limitations means h
knowledge of the harmful consequences of the act, but not of the extent of the damage or the amount
of compensation. The fact that the sufferer still cannot determine the exact size
of the damage, does not prevent the commencement of the statute of limitations. New independent statute of limitations if
injurious consequences, which were previously, were subsequently born or perceived
unpredictable and unexpected. It was held that the plaintiff since the accident occurred and due
of the seriousness of his injury informed the obligees to pay it
of compensation for reparation of the damage and the consequences and extent of the damage,
present and future. It is not pleaded that it arose out of the adverse party's injury
a consequence which was from the beginning unforeseeable, On the contrary, he pleads that it has come from him
injury of and until the discussion of the action in permanent and permanent disability, rate
75%, no further improvement expected. In other words, he pleads that he was aware of its consequences
of injury and the extent of his damage after leaving the hospital. The claims
of such as improved nutrition, medical visits, travel expenses, purchase of medicines,
physiotherapy, care by a domestic helper and loss of income, were predictable,
expected, according to the common rules and the usual course of things and known
to the plaintiff from the occurrence of the accident, and are not due to a later one
unexpected, according to medical data, adverse development of his above physical injuries
and in an unforeseen deterioration of his health condition. The limitation objection is accepted.
Appeals against the 31/2010 decision of the Single Member Court of First Instance of Rhodes (Transitional Seat
Karpathos). He rejects the lawsuit.
Decision number
118/2014
DODEKANIS COURT OF APPEALS
Composed by Judges Savva Kyriakidis, President of Appeals, Glykeria Mourikis, Theoni
Bouris [Rapporteur] and Secretary Stamatia Zanetoulis.
He sat in public in his audience on December 6, 2013, to try the following
case:
The Appellants: 1) …., resident of … Karpathos and 2) Anonymous Insurance Company with
name "…….", based in Athens and legally represented, of which the 1st
represented by the attorney of Michael Ioannidis and the 2nd by
attorney of attorney of Ioannis Karamihalis (letter no. 11482 and 11629/2013 D.S.R.).
The Respondent: …, a resident of Egypt, represented by his attorney
Ioannis Giallousis and who revoked the declaration from 3-12-2013 of article 242 par. 2
K.Pol.D. (letter no. 11448/2013 D.S.R).
The plaintiff (respondent) brought an action before the Single-Member Court of First Instance of Rhodes (transitional seat
Karpathou) against the defendants (appellants) from 4.3.2010 and with no. exp. cat.
14/4.3.2010 lawsuit. That court with no. 31/2010 he received a final decision
in part the action, opposition of the parties. Against this final decision was brought by
the defendants or from 28.2.2011 with no. exp. No. 42/1.3.2011 their appeal, copy thereof
which was filed in the secretariat hereunder with no. exp. cat. 55/1.3.2011. For the discussion
13-1-2012 was set for trial, and after postponements the one mentioned at the beginning
of the present and was legally written in its turn on the relevant plate.
During the discussion in the audience during which the case was legally decided in order
from the relevant table, the attorneys of the parties also developed orally
their allegations and referred to in the written motions they filed.
STUDY THE LITERATURE
THOUGHT ACCORDING TO THE LAW
The case under review from 28.2.2011 (with deposition report number 42/1.3.2011 and Court of Appeal number
55/1.3.2011) appeal of the defeated defendants against decision No. 31/2010 of
Single Member Court of First Instance of Rhodes, issued during the special dispute resolution procedure
for damage caused by a car under article 681 A of the Civil Code, opposition of the parties, by which it was
partially accepted the action of 4.3.2010 with report number 14/4.3.2010
appeal, with which he requested compensation for restoration for a later time (from
10.6.2007 until 4.3.2010), for his positive and cumulative damage due to the injury that
suffered on 11.8.2000, during the accident described in the lawsuit, from which he became
permanently disabled and unable to work. Against the above decision they brought the present case
the defendants appeal and complain on grounds of incorrect interpretation and
application of the law and incorrect evaluation of the evidence, and they ask for her disappearance
called for the action to be dismissed. It does not appear from the documents provided
service of the claimed on the appellants, from which the original should be started
deadline for filing an appeal (30 days) nor has three years passed since the issue
of the same decision (20.12.2010) until the time of filing the appeal (1.3.2011). Therefore,
it follows that the appeal, which has been legally filed, according to the provisions of articles 495 et seq.,
511 et seq. of the Civil Code, is also due, according to article 518 par. 1 – 2 of the same Code, as
exercised before any performance. Therefore, it must be formally accepted and researched
further from a substantive point of view as to the admissibility and validity of her reasons (articles 532
and 533 par.1 of the Criminal Code), according to the same special procedure, with which the
appealed decision.
From the combination of the provisions of articles 247, 251, 298, 914 and 937 of the Civil Code it follows that, in
case of tort, after the damaging event occurred, arises in his favor
injured party claims compensation for all damage, positive and cumulative present or future,
if it is foreseeable in the ordinary course of things and as far as its judicial pursuit is concerned
possible, and the statute of limitations for this claim is five years and begins to run for all damages
uniformly, since the injured party became aware of the first harmful consequences and
liable for compensation (AP 1907/2007 public LAW). Knowledge of the damage to start it
statute of limitations means knowledge of the harmful consequences of the act, but not the extent
of the damage or the amount of the compensation. Thus, the five-year statute of limitations is running
and covers all partial damages of the sufferer, that is, those that have occurred or
are likely to occur, except for those whose occurrence is not normally foreseeable
course of things. Therefore, the fact that the sufferer cannot yet determine
just the size of the damage, does not prevent the start of the statute of limitations. This only applies to
those harmful consequences, which can be foreseen in the understanding of the transactions
- the time the sufferer became aware of the damage in general - as a possible consequence of the wrongful act.
If, however, harmful consequences were subsequently born or perceived, which
were previously unforeseeable and unexpected, begins for the claim for restitution
of these, a new independent statute of limitations, after the sufferer became aware of them and of the causation
of their relevance to the tort (AP 940/2001 Dni 42,940). Besides, in his sense
article 261 sec. a' of the Civil Code, which stipulates that the statute of limitations is interrupted by the initiation of the lawsuit, in
combination with article 221 par. 1 of the Civil Code, in the case of bringing an action for only part of it
of compensation, its performance interrupts the limitation period only for that part, in respect of which
a pending case is created accordingly (OlAP 23/1994 Dni 36.577). Therefore, if exercised
action for damages to recover some of the damages caused by
tort, as it is specified in the action, only these damages originate in judicial
judgment and only with regard to them the limitation period of the claim is interrupted. If later
another main action is brought, for the payment of an additional amount of compensation, for reasons however
which could be foreseen from the outset, the interruptive action does not apply to this claim
of the first claim, because the additional compensation requested in the second claim is different
claim for another part of the victim's damage, other than that which had been awarded in the trial with
the first treatment. Thus, if from the time of knowledge by the sufferer of the harmful consequences
of the tort five years have passed, the claim for compensation originating in a crisis with the
second lawsuit, has succumbed to the statute of limitations (OlAP 40/1996 Dni 37.1534, AP 64/2011 Dni
2011/1356, AP 52/2002 Dni 43/761, AP 1239/2000 Dni 43/95). Only if its consequences
tort cannot be calculated when the amount of the original was determined
compensation, the statute of limitations for the claim asserted with the second lawsuit begins to run
since the beneficiary thereof became aware of the new harmful consequences of the tort and
the causal connection between them and her (AP 1365/2010 public LAW, EA 5390/2009 public
LAW). Furthermore, according to the provision of article 268 sec. a`AK, in which "each
a claim, confirmed by a final decision or public document enforceable, is time-barred
after twenty years and even if the claim itself was subject to a shorter statute of limitations or
in case of confirmation by final decision of the existence of a claim for positive damage,
monetary satisfaction due to moral damage and collateral damage from tort, occurs
in principle, extending the five-year statute of limitations of article 937 par. 1a of the Civil Code to twenty years,
starting from finality and as part of the entire claim for compensation, of
going back to a time subsequent to that for which compensation was awarded. And this,
because this part of the claim too, although no special identifying provision is contained in
decision, is considered to have been confirmed (indirectly) in this case with the intervening one
judicial judgment – which is necessary – for the existence of his right to compensation
sufferer generally for any damage from the tort. But the extension of its time
statute of limitations, according to the terms of article 268 of the Civil Code, necessarily presupposes the existence of a claim,
which has not succumbed to the statute of limitations applicable until the finality, given that the
final adjudication of the disputed claim at the time does not bring about revival of the claim and according to
part that has not been exercised and has now been amortized, due to the statute of limitations, which we ran without
interruption according to article 261 of the Civil Code (Official Gazette 24/2003 Dni 44.1262, Official Gazette 38/1996 Dni 38.41,
935/2010, AP 2/2010 EA 138/2010 reg. LAW). Besides, the dismissal of the action for the reason
that it was exercised prematurely, is a non-essential reason, in the sense of AK 263. Against
consequently, the statute of limitations that was interrupted by the initiation of such an action, is considered in accordance with article 263
AK as if it had not been interrupted, unless the beneficiary brings the action again within six months, in which case
the statute of limitations is considered to have been interrupted by the previous action (AP 377/2009 Reg.
2010/388). Finally, according to article 10 of Law 489/1976, as it applied before the
as amended by Article 7 of Law 3557/2007, the victim's claim from a car
accident against the insurer is time-barred after two years from its date
accident, subject to the written provisions for its suspension and interruption
statute of limitations. The above provision, which specifically regulates the victim's claim against him
insurer, the general provision of article 937 of the Civil Code prevails, and the two-year statute of limitations covers
the case of foreseeable damage to the victim and does not apply to it
unforeseeable damage, which may occur in medically unforeseeable deterioration of health
data. And for this two-year statute of limitations, the above provisions for interruption apply,
suspension and extension of the limitation period (AP 21/2012 NoB 2012/531, AP 1907/2007 reg.
LAW).
From the affidavit of the witness contained in the same documents as the appellant
minutes of a public meeting of the first instance court, from all without exception
documents that the parties rely on and produce to serve either as stand-alone
evidentiary means or for the inference of judicial presumptions, as well as from its lessons
of common experience (article 336 par. 4 of the Civil Code), the following proved to be the case:
accident happened in Karpathos, on 11.8.2000 at around 10:00, at the height of the 2nd kilometer of
country road ……. – Airport. He was solely to blame for the accident
first defendant, who driving the registration number …………… IHF car
which was insured for civil liability against third parties in the second defendant insurance company
company and moving on the above provincial road in the direction from the airport to
town of Karpathos, in order to enter a petrol station which was on the opposite side
direction of the road, violated the double dividing lane that existed on the road surface and
entered the opposite flow of traffic perpendicularly, as a result of which it interfered with its path
registration number …………… of a two-wheeled motorcycle, driven by the claimant and set off
in the direction from the city of Karpathos to the airport. According to the above
collision injured the plaintiff, who suffered a deep contusion on the left side
frontoorbital region, suture, eyelid ptosis, mydriasis of the left pupil of the eye,
residual movement of left upper and lower extremity, hemorrhagic focus 1 cm in diameter
on the right capsule and a smaller one, 6 mm in diameter, in contact with the left occipital horn,
hemorrhagic elements within the occipital horns of the lateral ventricles and subarachnoid
space and fracture of the nasal and left branch of the lower jaw. To the extent of the physical
of the damage, the plaintiff is jointly and severally liable, at a rate of 20%, because at the time of his
accident did not wear a protective helmet as he should have. Immediately after the accident it was served
at the Karpathos Health Center and the same day at the Heraklion General Hospital, where
was hospitalized for forty days, of which ten days in the Intensive Care Unit and
he was intubated for twenty days, and was discharged from the hospital on 21.9.2000 and subsequently
he was transferred via Athens to the "….." hospital in Cairo, Egypt, where he comes from.
From the first day of hospitalization, he developed respiratory failure, which is why he was operated on
tracheostomy, as well as left traumatic ophthalmoplegia and loss of vision. Because of him
as a result of the above injury, the plaintiff has suffered paralysis of his entire left side
side and shows unsteadiness when walking. According to the certificate dated 2.6.2001
of the doctor … …., the plaintiff’s physical disability amounts to 75%, while he
doctor in the certificate from 2.12.2000 estimates his physical disability at a rate of 70%. Also,
in the opinion of the same doctor dated 2.3.2003 it is confirmed that the plaintiff suffers from
residual permanent disability, left hemiparalysis, vertigo, diplopia and strabismus, with
physical disability 70%, while surgery on the left eye is necessary for the
correction of strabismus.
The above have been decided conclusively, a) as regards the first defendant, with the no.
24/2003 decision of the Single Member Court of First Instance of Rhodes (Transitional Seat of Karpathos), which
ruled on the plaintiff's claim no. 12/7.2.2002 for
compensation against the defendants themselves, which became final on 31.12.2006, when
the three-year period defined by article 518 par. 2 of the Civil Code has passed since the issuance of the above
decision deadline for filing an appeal, since it has not been served on the first party
defendant nor the parties invoke such service and b) as for the other parties, with
the No. 339/2005 decision of the Dodecanese Court of Appeal, which co-litigated the
by the plaintiff and the second defendant appeals against the aforementioned (24/2003)
first instance decision, which became final with its issuance (4.11.2005). Therefore, what
were decided by the above decisions, including the issues of culpability, of
of the plaintiff's injury, the time of causing his injury, as well as his
of his right to compensation, have surrounded the validity of res judicata, binding for the
this Court (articles 321 and 322 par. 1 of the Civil Code). With the above decisions
was awarded to the plaintiff, inter alia, as monthly compensation for lost earnings,
due to his incapacity for the work of the electrician he practiced, due to the plaintiff
of his injury, for the period from 11.8.2000 to 7.2.2002, after deduction of a percentage
20% of his complicity, the amount of 15,300 euros. Then, on the no. exp.
of the 26/7.6.2005 filing of the plaintiff's lawsuit, decision No. 8/2008 was issued
Single-member Court of First Instance of Rhodes (Transitional Seat of Karpathos), which awarded to
final plaintiff – after the appeal filed against her with No. 72/2010 was rejected
decision of the Dodecanese Court of Appeal – compensation due to positive and consequential damage, due to
of his injury in the legal accident, for the period from 10.6.2005 until
10.6.2007, while the relevant request for compensation for a later date was rejected as premature
period of time, which notably does not appear to have been reinstated by his new treatment
plaintiff and within six months of the issuance of the above rejection decision. Already, o
plaintiff with his current action, the filing time of which is 4.3.2010, but not
it appears exactly when it was served on the defendants, but certainly after the time
of this filing, requests positive damages and lost profits for loss of income due to
of his incapacity for work, due to his injury in the same accident, for the period
period from 11.6.2007 to 4.3.2012.
During the discussion of the legal action on 19.10.2010, the defendants definitely raised
limitation objection, which they bring back with a related (first) ground of appeal, i.e. the two-year
statute of limitations from the time of the accident, according to art. 10 par. 2 of Law 489/1976, regarding
second defendant, and the five-year statute of limitations of article 937 par. 1 of the Civil Code, as regards
first defendant, since since the accident occurred (11.8.2000) and the plaintiff
informed those liable to pay the compensation for its restoration
consequential damage, as a result of his injury, the consequences of which and its extent
damage, present and future, could since then be foreseen, until the exercise of the
judgment of action five years have passed without an event interrupting or suspending it
statute of limitations. The plaintiff in the lawsuit states that as a result of the injury he suffered
in the accident, he has become disabled to the extent of 75%. Then, with those from 15.10.2010
his written proposals during the first debate, the from 23.10.20110 addition and
rebuttal, but also with his motions before this Court, he does not plead, at
refutation of the above objection of the defendants, that it arose from his injury
in case of legal accident and adverse consequence that was unforeseeable from the beginning, e.g.
complications of the trauma that required unforeseeable medicine
treatment, surgical or conservative, nor other subsequent physical effects
of his health, so that in case of proof, he will be subject to legal action with the above content
claim, according to those mentioned above in the main consideration, in special limitation, which
it had not been completed until the filing of the present action, in the year 2010. On the contrary, it is invoked
that he was shown to have recovered from his injury and up to the hearing of the suit in
permanent and permanent disability, rate 75%, with no further improvement expected, since
presents with impotence and weakness of the left side, diplopia, tremor, vertigo, loss
of memory and unsteadiness of walking, he pleads that he was aware of the consequences of the injury and
the extent of his damage after his discharge from hospital on 21.9.2000. Further
it was found that the plaintiff's claims for enhanced alimony,
medical visits, travel expenses, purchase of drugs, physical therapy, care from
domestic worker and loss of earnings, in view of the nature, severity and extent
of his injury, were foreseeable, expected, according to the common rules and the
ordinary course of things and known to the plaintiff since 21.9.2000, while not
are due to a later unexpected, according to medical data, unfavorable development of the
above his physical injuries and in unforeseen deterioration of the state of health
of which the plaintiff does not even invoke. The above judgment of the Court, as to
foreseeability of the rightful claims, is also reinforced by the doctor's opinion from 2.12.2000
………….., director of the Neurosurgery Department of Suez Canal University, o
who certifies that the claimant's disability amounts to 70%. The later ones from
2.3.2003, 22.11.2004 and 28.5.2005 opinions of the same doctor, as well as the one from 19.3.2013
doctors' opinion.... and ...., certify the problem that already existed. After all, the ef
lifetime total incapacity for work, as well as the severity of the injury
with the consequential consequences, the plaintiff had invoked in his first action of 3.2.2002. With
these data, since the consequences of the tort and the plaintiff's injury,
consequently the extent of his damage – in the sense of that defined in
major consideration- therefore and his legal claims were known to the plaintiff from the
21.9.2000 (as he also mentions in his lawsuit) and are not due to
subsequent medically unexpected adverse development of physical injuries
of him and in an unforeseeable deterioration of his health condition, the facts are judged to be valid
are invoked by the defendants, with the objection of limitation. Consequently, the new (later)
claims of the plaintiff, which were filed with the action decided on 4.3.2010, against
of the second defendant insurance company are time-barred due to the lapse of two years from
legal accident, and against the first defendant due to the lapse of five years from
21.9.2000, when the plaintiff, according to the above, became aware of the extent of his damage and
of the parties to be compensated, which was completed before the legal action was initiated
lawsuit, since – according to what was stated in the main opinion – neither the exercise of the previous ones
lawsuits nor the attempted procedural acts in the context of those lawsuits interrupted it
statute of limitations and the legal claims not included in those. Specifically, the lawsuits
the plaintiff's claims have fallen within the five-year statute of limitations, a) as to the first
defendant, before the final judgment (31.12.2006) of decision No. 24/2003 of
Single Member Court of First Instance of Rhodes, which was issued on the plaintiff's first claim for
damages against the same defendants, which (statute of limitations) expired on 21.9.2005
(i.e. five years after knowledge of the damage and the obligees) and b) as to the second
defendant, before the final hearing (4.11.2005) of decision No. 339/2005 of
of the Dodecanese Court of Appeal, which jointly litigated the claims brought by the plaintiff and the second
defendant appeals against the above first instance decision, which (statute of limitation)
completed on 11.8.2002 (i.e. two years after the accident). The aforementioned decisions,
which ruled on the plaintiff's previous lawsuits, did not extend, according to art. 268 pp. a`AK,
in the twenty-year statute of limitations of the rightful claims, to the extent that they did not have
exercised, because the original (two-year and five-year statute of limitations) had expired long before
exercise of legal action. Thus, the disputed claims were already time-barred before finality
of the above decisions, while finality, according to what was stated in the main opinion, does not result
revival of depreciation due to limitation of subsequent claims. Therefore, Ms
judgment, with which the above claims are brought, is unfounded, according to the merits and according to
substantive plea of limitation proposed by the defendants. After that, the primary
court, which in the referred decision held that the plaintiff's conductable claims
have not fallen within the statute of limitations and therefore partially accepted the action as valid and
in substance, he erred in the application of the law and the assessment of the evidence, according to
relevant (first) reason for the appeal.
As a result of the above, the appeal must be accepted as well-founded and in essence – absent
and the examination of her other reasons – to disappear the appellant and, since the Court
keep the case and try its merits (art. 535 of the Civil Code), to dismiss the action as
essentially baseless. The court fee of both degrees of jurisdiction must
offset in its entirety between the parties, due to the fact that it was particularly difficult n
interpretation of the rules of law that were applied (art. 179, 183 of the Civil Code).
FOR THOSE REASONS
Judges opposition of the parties.
He formally and substantively accepts the appeal.
Eliminates decision No. 31/2010 of the Single Member Court of First Instance of Rhodes (Transitional
Seat of Karpathos).
Holds and tries the case on its merits.
Judges the case no. filed 14/4.3.2010 lawsuit.
He rejects the lawsuit.
It offsets the legal expense of both degrees of jurisdiction between the parties.
Judged, decided in Rhodes on March 11, 2014 in secret conference and published
in his audience in Rhodes on May 12, 2014 in an extraordinary public meeting, in the absence of
parties and their authorized attorneys, with the secretary present.
The President The Secretary
P.B.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)