KARAISKOS ν. SAVVIDES
(1984)1 CLR 182 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1984)1 CLR 182 1984 April 11 [MALACHTOS, DEMETRIADES, SAVVIDES, JJ.] LOIZOS NEOPHYTOU KARAISKOS, Appellant-Plaintiff, v. CHRISTAKIS SAVVIDES OF LIMASSOL REPRESENTING THE MEMBERS OF THE OLYMPIA SPORTS CLUB, Respondent-Defendant. (Civil Appeal No. 5649). Findings of fact made by trial Court-Appeal turning thereon-Principles. applicable. This appeal turned solely on the findings of fact which were made by the trial Court. Held, that it is the established practice of this Court not to interfere with the findings of fact of a trial Court unless satisfied that such findings are not warranted by the evidence before it and the reasoning behind them is wrong; that this Court has not been persuaded that the findings of the trial Court are not warranted by the evidence or that they are erroneous as to make it interfere; accordingly the appeal must fail. Appeal dismissed. Cases referred to: Nicolaides v. Economides
(1963)2 C.L.R., 78; Pilavakis v. Cyprus Inland Telecommunications Authority
(1963)2 C.L.R. 429; HadjiPetri v. HadjiGeorghiou and Another
(1969)1 C.L.R. 326; Kkaffa v Kalorkotis and Another
(1982)1 C.L.R. 372 at p 378; Achilleos v. Charalambous and Another
(1984)1 C.L.R.
- Appeal. Appeal by plaintiff against the judgment of the District Court of Limassol (Pitsillides, S.D.J.) dated the 12th November, 1976 (Action No. 2954/74) whereby his claim for special and general damages in respect of injuries alleged to have been sustained by him on the 7th October, 1973 as a spectator of a football match at the defendant's stadium was dismissed. D. Savvidou for A. Lemis, for the appellant. K. Kyriakides, for the respondent. Cur. adv. vult MALACHTOS J.: The judgment of the Court will be deliver& by Mr. Justice Savvides. SAVVIDES J.: This is an appeal against the judgment of the District Court of Limassol whereby appellant's claim for special and general damages in respect of injuries alleged to have been sustained by him on the 7th October, 1973 as a spectator of a football match at the stadium of the respondents in Limassol was dismissed. The facts of the case, as alleged by the appellant before the trial Court, are briefly as follows: On the 7th October, 1973, appellant went together with friend to the stadium of the respondents for the purpose o watching a football match. They purchased their tickets an sat on the top row of the wooden amphitheatrical stands which were at the north of the stadium. Shortly before the match ended, they decided to leave the stadium and they started descending the lower stands, but whilst appellant was stepping or the last but one, the wooden plank broke and his left foot slipped through the crack and he was injured on the left knee. He was carried from there by two persons into a police car which was parked outside the stadium and was transported from then to the Limassol Hospital where his left leg was placed in plaster and he was kept in the Hospital as an in-patient for five day and then he was discharged. The plaster was removed three months later and for a further period of three months he was following physiotherapy treatment at the Hospital and at a private physiotherapy institute. After the plaster was removed, he visited also an orthopaedic surgeon in Limassol by whom he was examined. As a result of the accident, he sustained special and general damages which were claimed in his action. The respondents denied that the appellant got injured at the stadium or that he suffered any injury or damage, or that any plank broke or was unsafe dangerous, weak or easily breakabIe. Appellant gave evidence before the trial Court in support for his version and five other witnesses testified for him. Their evidence as briefly summarised by the trial Court, is as follows: "The plaintiff gave evidence himself as P.W.1 and he called live addtinal witnesses, three of whom gave evidence as eye witnesses of the alleged accident by the breaking of the plank. The three witnesses are: P.W.2 Evanthis Tryfonos, a shoe-maker according to whom the plaintiff was sitting during the match on the next row of seats in front of him. P.W.3 loannis Nicolaou, a professional driver, the friend and neighbour of the plaintiff, alleged to have gone together with the plaintiff to the stadium and to be with him during, the football match, and, P.W.6 Kyriakos Agathocleous, who is now P.C. 3831 and was a special constable n the 7.10.1973, according to whom he was also at the football match on that day sitting on the Western seats of the stadium and was one of the persons who carried the plaintiff out of the stadium and placed him in the police car which took him to the hospital with which car he also went to the hospital. The other two witnesses called by the plaintiff are P.W.4 Socrates Loizides, a mason by trade until 1956 and the inspector for construction, since the said. year, in the employment of the Builders. Trade Union of Limassol, according to whom the wooden seats of the stadium were not sufficiently strong, and P.W.5 Dr. Kyriakos Papageorghiou Andreou". Four Witnesses testified- for the respondents and their evidence, as appearing in the judgment of the trial Court, was as follows: "On behalf of the defendants the witnesses called are: D.W.1 Christakis Savvides, the general secretary of the defendant club, D.W.2 Costas Petrou, the curator (eforos) of the stadium of the defendant club, D.W.
- Costas Kallinikou, the inspector (epistatis) of the stadium of the defendant club and D.W.4 Loukas Agrydiotis, the gimnasiarhos and cashier of the defendant club. According to the defence witnesses they were all in the stadium during the football match of the 7.10.1973 and no accident or breaking of any plank came to their notice, although according to Christakis Savvides lie was all the time outside the ticket office next to the north gate of the stadium and about 50 metres from the north seats, according to Costas Petrou he was sitting in the ticket office and according to Costas Kallinikou, about 20 to 25 minutes before the match ended, he went near the north gate near which are the showers in order to open them for the use by the referees. Further, according to witnesses Petrou and Kallinikou, in about August or September in each year before the football season starts, they together make a general personal inspection of the seats and if anything requires repairs they do it and, according to them, the last time when they replaced a plank was in the summer of 1973 before the 7.10.1973, on which day it was the first match of the season. Moreover, they said, that they never found or replaced any broken plank either before or after the 7.10.
- Further, they said, that on every Monday morning witness Kallinikou goes about all the seats of the stadium which he cleans and checks and witness Kallinikou stated that on Monday morning of the 8.10.1973 he went about all the seats and found no broken plank. In addition, according to witness Agrydiotis, the 'gimnasiarhos' and cahier of the defendant club, in order to make any payment as cashier for repairs of any big or small sum he has to have a written order has to pay by the curator approved by the general secretary, which order has to have particulars of the required repairs, such as for replacement of a broken glass or lock or replacement of a plank; when something is purchased after such written order, he said, the receipt for the purchase is approved by the members of the committee at the next meeting and is recorded in the minutes of the meeting; he keeps the cashbook in which he makes the entries of any payments and he also keeps the written receipts and there is no entry in the cash book or any written order or any plank after the 7.10.
- Similar evidence was given by witness Savvides (D.W.1) who said that the committee were not informed about any broken plank after the 7.10.1973, that if any repair took place an order for payment to the inspector or curator would issue, that the complaints are recorded in the minutes of the meetings and that there is no mention in the, minutes of the meetings that a repair of any plank was needed after the 7.10.
- The evidence of the defence witnesses amounts in short to that no plank broke on 7.10.1973 and no accident as described by the plaintiff took place on the said day, not oily because no plank broke or was replaced, but also because, at the time of the alleged accident, three of the defence witnesses, i.e. witnesses Savvides, Petrou and Kallinikou (D.Ws. 1, 2 and 3), were at a very short distance and they would perceive it and because they would have seen the plaintiff taken out from the stadium through the north gate which was near where they happened to be". The learned trial Judge after having heard and considered the evidence of all the witnesses before him, did not believe the appellant and his witnesses as to the occurrence of the accident and rejected their evidence for the reasons explained in his judgment, some of Which were the striking contradictions between the appellant and his witnesses and between the witnesses themselves, the fact that though the appellant alleged that he had been taken to the Hospital where he was kept as an in-patient and his leg was put in plaster and that afterwards he followed a physiotherapy treatment there for a period of three months no evidence was adduced from the Hospital about the alleged treatment and the date and time when he was taken to the Hospital. Another factor which influenced the mind of the Judge was the whole conduct of the appellant who, though as he alleged, the accident occurred on the 7th, October, 1973, he never informed the respondent about it who came to know about this more than a year later when they received the writ of summons. Pausing here for a moment, we wish to state that we agree with the learned trial Judge that the fact that the appellant for a period of over one year from the date of the accident failed to inform the respondents about the occurrence of the accident and he meticulously kept complete silence on the matter till the filing of the action and the service of the writ of summons on the respondents, was a material factor to be taken into consideration by the trial Court in the circumstances of the present case as by his said conduct the appellant deprived the respondents of the opportunity of investigating immediately as to the foundation of the complaint of the appellant, something which was very difficult for them to do one year after the alleged occurrence of the accident. On the other hand, the trial Court accepted the evidence of the witnesses for the respondents as true and reliable and came to the conclusion that the appellant failed to discharge the burden that the alleged accident did occur at the stadium in the circumstances alleged by the appellant and his witnesses and in the result dismissed appellant's action. Nevertheless, the learned trial Judge following the established practice (see Nicolaides v. Economides
(1963)2 C.L.R. 78, Pilavakis v. Cyprus Inland Telecommunications Authority
(1963)2 C.L.R. 429, HadjiPetri v. HadjiGeorghiou and Another
(1969)1 C.L.R. 326), proceeded and assessed the damages to which the appellant would have been entitled had he proved his claim, at £1,545 (out of which £545 as special damages). It is the established practice of this Court not to interfere with the findings of fact of a trial Court unless satisfied that such findings are not warranted by the evidence before it, and that the reasoning behind them is wrong. Such principle has been reiterated recently in Kkaffa v. Kalorkotis and Another
(1982)1 C.L.R. 372 and Zoe Achilleos v. Socratis Charalambous and Another C.A. 6535 (in which the judgment was delivered on the 20th February, 1984 but is not yet reported). In Kkaffa v. Kalorkotis and Another (supra) Hadjianastassiou J. had this to say at p. 378: "... this Court, when hearing and determining an appeal, is not bound by any determinations of questions of fact made by the trial Courts, and it has power to review the whole evidence in drawing its own inferences. But it will only do so, when a finding is not warranted by the evidence considered as a whole, and the reasoning, behind a finding is unsatisfactory and/or is of the opinion that the trial Court was clearly wrong, and that the Court of Appeal should interfere to put right that which has gone wrong in the Court below, bearing always in mind that the making of such findings and the appreciation in general of he evidence at the trial is what the trial Judges are the for". We have carefully considered the arguments advanced by learned counsel for the appellant, but we have not been persuaded that the findings of the trial Court are not warranted by the evidence or that they are erroneous as to make this Court interfere. Having reached such conclusion, we find it unnecessary to examine whether the award of damages was the proper one, in this case. In the result, the appeal is dismissed with costs in favour of the respondents. Appeal dismissed with costs in favour of respondents. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο