clr/1966/1966_1_14.pdf

1966 Jan is I / l k I A Ι*., ΤΚΙΛΝΙΛΙ ΜIHHS & losiHIIIHS Μ ] ANDROULLA ( IIARILAOU ANI>ROUI ΙΛ MALLOUPA, ClIAKILAOU Appellant- Plaintiff. MALLOUPA ι υ Li I N I A N I O M & Π I N I ΛΝΤΟΝΙ A N D ANOTHER, ΛΝΟΓΙΗΚ Respondents-Defendants Cnd il'roni\s Ne^li^em e by e\iapinv chemical Nt i^libourmg from defendants laud foi ( Η eed-killer) escaping < lienmal escaped fioin to dispro\e to defendants iuvjw,eiicc- Cap 1 IX, section 52 Cicdthilttx of witness witnesses Imoiuplete lest Htasons of of hud interference with Couit such \ppeal ιham \'cΐίΐ/ihom niif land Ά failuie Damage neighbour mg land - Hut den on plaintiff dtshe/teunii Plaintiff owners < hemical tea-Oils h\ tlic Conit of Luileiue land l< ι Onus then shifts in dtfendants appeal No. 4541) foi damages for the destruction that destrtu tiw Cml 11 nnn>\ law i'ladue Appeal Claim ι'/ plaint iff s plantation t'\iahh\h (Civil of esulence owuet s Damage to addiue I \pert c\idetne - hy escaping <hemical— e\idenie showing that weeds in defendants jield had heai killed h\ the same weed kdtei that t/f'iayed his own of-- r 1'iacfue under plantation Witness- -Credibility abo\e Appeal. Appc.il against the judgment o i the District Couit of Nicosia, (Demcliiades, I ) J ) dated the lOlh September, 1965 ( A c t i o n N o 2311/63) dismissing p l a i n t i f f s claim l o r damages, caused to hei t . n r o t plantation hy weed killer which alle­ gedly escaped from the i i c u i h b o u i m g land o f the defendants L ( lenries, l o r the 'ippellant A lift foannon, l o i the l o p o n d e n l s The judgment o f the Court was delivered hy /Α Κ Ι Λ , I 1 We have consideied ihc case in the light o f the submissions made The facts aie bnefly as follows . 14 Some time in February, 1963, the carrot planted field of the plaintiff was found to be damaged by weed-killer, probably escaping from one o f the neighbouring lands on which wheat crop was growing and herbicide was applied in order to kill the growing weeds in it. The possibility that such weedkiller was sprayed maliciously to the carrot plantation o f the plaintiff is not excluded. The carrots were totally destroyed and the damage caused wasassessed at £290. By her statement o f claim the plaintiff-appellant alleged that the weed-killer which .destroyed her carrots escaped f r o m the defendants neighbouring field on which wheat was growing. A number o f witnesses were called by the plaintiff whom the trial Judge did not belic\e. In the first place it has to be established that the weedkiller which caused the destruction o f the carrots of the plaintiff escaped when it was being applied to the cereals standing on the defendants' land. Once this was proved the defendants in,order to escape liability had to satisfy the Court that they were not negligent in spraying the chemical. The learned Judge found that the destruction o f the carrots was caused by herbicide. Instead o f then proceeding to examine whether such weed-killer or herbicide escaped f r o m the field of the defendants, it appears, he considered whether the defendants wcic negligent for the escape o f the chemical in question. However, in examining the issue o f negligence together with it examined also the second issue, namely, whether there was an escape from the spraying o f chemicals over the field o\' the defendant. Although he d i d not follow the correct and proper method o f examining the Lssues i n volved in their appropriate order, it seems that, on the evidence adduced before h i m , assuming that he correctly made the assessment o f such evidence, the conclusion he reached was not wrong. On the second ground o f appeal, the learned counsel for the appellant drew our attention to the reasons expressed by the Court for not believing the witnesses for the plaintiff. N o doubt the criticisms directed against the weighing o f the evidence by the trial Judge were properly made, but for this Court the test was whether, on the reasons given by the trial Judge for believing o r disbelieving the witnesses, one could have said that he was plainly wrong. In other words whether in his reasoning he was so wrong o r his reasoning so fauliy 15 1966 Jan. 25 ANDROULLA CHARILAOC MALLOUi'A i>. ULEM A N I O M & ANOTHF.U 1966 Jan 25 ANDROUUA CHARHAOH MALLOUI-A f» I LfNI ΑΝΤΟΜ & ΑΝΟΙΜΓΚ as to make his finding plainly wrong It was particularly stressed that Louvans' evidence ought to have been accepted and the ground for rejecting his evidence was a meagre one In examining the record, however, it appears that Louvans could be considered a biased and interested witness He was a close relation of the plaintiff andalso had similar complaints to that of the plaintiff himself against the defendants It should also be obseived that the appellant plaintiff failed to adduce expert evidence (as he did to prove that his carrot plant, had been iniurcd by weed-killei b\ calling an agricultural officer—plant pathologist), showing that the weeds in the respondents-defendants' field had been killed by the same weed killer that would have been an objective test against which the oral evidence of the other witnesses could have been weighed and it would have provided the missing link in the chain οϊ~ evidence which was required to prove the escape of the weed-killer from the ι espondenls into the appellant's field In applying the test we have already indicated, we die of the opinion that, m the cucumstances of the case, vsc would not be justified in setting aside the judgment or sending back the case foi rc-lnat The appeal is, therefore, dismissed with costs Appeal dismissed with costs 16