(1984)1984 April II [MALACHTOS. DEMKTRIADES, SAVVIDHS, JJ.) LOfZOS NEOPHYTOU KARAISKOS, Appellant-Plaintiff. v. CHRlSTAKfS SAVVrDES OF UMASSOL REPRESENTING THE MEMBERS OF THE OLYMPTA SPORTS CLUB, Respondent·Defendant. {Civil Appeal No. 5649). Findings offact made hy 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 ii is the established practice of this Court not lo 5 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 10 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. HadjiGeorgfuouand Another
(1969)J C.L.R. 326; Kkaffa v. Kalorkotis and Another
(1982)1C.L.R. 372 at p. 378; Achilleos v. Charalambous and Another
(1984)I C.L.R. 13. Appeal. 15 20 Appeal by plaintiff against the judgment of theDistrict Court of Limassol (Pitsillides, S.D.J.) dated the 12th November, 1976 (Action No. 2954/74) whereby his claim for special and general 182 1 CX.K. Karaiskos v. Savvides 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. 5 D. Savvidou for A. Lends, for the appellant. K. Kyriakides, for the respondent. Cur. adv. vitlt MALACHTOS J.; Thejudgment of the Courtwill be deliverer by Mr. Justice Savvides. SAVVIDES J.: This i< an appeal against the judgment of tht 10 District Court of Limassol whereby appellant's claim for specia 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. 15 20 25 30 35 The facts of the case, as alleged by the appellant before tlu trial Court, are briefly as follows: On the 7th October, 1973, appellant went tog.-ther with ι friend to the stadium of the respondents for the purpose ο watching a football match. They purchased their tickets anc sat on the top row of the wooden amphitheatncalstands whicl were at the north of the stadium. Shortly befors the matcl· ended, they decided to leave the stadium and they started des cending the lower stands, but whilst appellant was stepping or the last but one,thewooden plank broke and his left foot slippet through the crack and hs was injured on the left knee. He was carried from there by two persons into a police car whicl was parked outside the stadium and was transported from then. to the Limassol Hospital where his left leg was placed in plastei and he was kept in the Hospital as an in-patient for five day; and then he was discharged. The plaster was removed threi 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 183 Savvides J. Karaiskos \. Savvides
(1984)any plank broke or was unsafe, dangerous, weak or easily breakable. Appellant gave evidence before the trial Court in support of his version and five other witnesses testified for him. Their ΟΛidc-nce,as briefly summarised by thetrial Court,is as follows: 5 "The plaintiff gave evidence himself as P.W.l and he called live additional witnesses, three of whom gave evidence as eye witnesses of the alleged accident by the bieaking of the plank. These three witnesses are: P.W.2 Evanthis Tryfonos, a shoe-maker according to whom the plaintiff 10 was sitting during the match on the next row of seats in front of him. P.W.3 IoannisNicolaou,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.VV.6 Kyriakos 15 Agathocleous, who is now P.C. 3831 and was a special constable on the 7.10.1973, according to whom he was also at the football matchon that day sitting on the western seats of thestadium and was one of thepersons who carried the plaintiff out of thestadium and placed him in the police 20 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, 25 in theemployment 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 therespondentsand their evidence, as appearing in thejudgment of the trial Court,was as follows: 30 "On behalf of the defendants the witnesses called are: D.W.I 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.3 Costas Kalli- 35 nikou, theinspector (epistatis) of thestadium of the defend ant club and D.W.4 Loukas Agrydiotis, the 'gimnasiarhos' and cashier of the defendant club. 184 1 C.L.R. 5 10 15 20 25 30 35 40 Karaiskos v. Savvides Savvides -J. According to the defence witnesses they were all in the stadium during the football match of the 7.10.1973-andno accident or breaking of any plank came to their notice, although according to Christakis Savvides he was all the time outside the ticket office next to,thenorth gate of the stadiumandabout 50metresfrom thenorthseats,according to Costas Petrou he was sitting in the ticket offic; and according to Coitas Kallinikou, about 20 to 25 minutes before.the match ended, he went near the north gate near which are the showeTS in .order to open them for the.-use by the referees. Further, according to witnesses Petrou and/Kallinikou. inabout August or Septemberineach yearbefore 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 timewhen they replaced a plank was in the summer of 1973 before the 7.10.1973,onwhichdayitwasthefirstmatchofthe-season. Moreover, they said, that they never found or -replaced any broken plank either before or after the 7.10.1973. 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 scats and found no broken plank. In addition, according to witness Agrydiotis, the 'gimnasiarhos'andcashier ofthedefendant,club,.in ordertomake any payment as cashier for repairs of any big .or small sum he.has to have a written order to pay.by the.curator approved bythegeneral secretary, which ordei has to have particulate.of the tequiied repairs, such as.for replacement of a bioken 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 theminutesofthemeeting;.he keepsthecash bookinwhich he makes the entries of,any payments and he also-keeps the written receipts and'there isno entry in the cash book oranywritten order orreceipt·for replacement of any plank .after the .7.10.1973. 185 Savvides J. Karaiskos v. Savvides
(1984)Similar evidence was given by witness Savvides (D.W.I) 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 thecomplaints arerecorded in the minutes 5 of the meetings and that there isno mention in the minutes of the meetings that a repair of any plank wasneeded after the 7.10.1973. The evidence of the defence witnesses amounts in short to that no plank broke on 7.10.1973 and no accident as 10 described by the plaintiff took place on the said day, not only because no plank broke oi was leplaced, 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 15 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 20 the appellant and his witnesses as to the occuTreice of the accident and rejected their evidence for the reasons explained in hisjudgment, 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 25 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 theie for a period of three months, no evidence was adduced from the Hospital about the alleged treatment and the date and time when he 30 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 re- 35 ceived 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 186 I C.I..R. Karaiskos v. Savvides Sa»\idcs J. 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 5 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 thefoundation of thecomplaint of theappellant, something which was very difficult for them to do oneycai after the alleged 10 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 occui at the stadium in the 15 ehcumstanccs alleged by the appellant and his witnesses and in the result dismissed appellant's action. 20 Nevertheless, the learned trial Judge following the established practice (sec Nicolaides \. Economhles
(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 25 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 Anoiher
(1982)1C.L.R. 372 and Zoe Achilleosv. Socratis Charalambous 30 and Another C.A. 6535 (in which the judgment was deliveicd on the 20th February, 1984 but is notyet reported)*. Γη Kkafja v. Kalorkotis and Another (supra) Hadjianastassiou J. had this to say at p. 378: 35 " 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 Now reported in
(1984)I C L.R. 13. 187 Savvides ./. Karaiskos ». Savvidev (198-1) 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 js unsatisfactory and/or is of the opinion that the trial Court was clearly wrong, and that the Court 5 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 the evidence at the trial is what .the trial Judges are there 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 bythe evidence or that they are erroneous as to make this Court interfere. 10 15 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 ths respondents. Appeal dismissed with costs in favour of respondents. 188 20