(1984)1084 June 6 [.Λ Loi/ου MAIACMTOS A \ n SIYLIA\'IPI.S. H J I. ANDREAS STYIJANOU, 2 ANDREAS MAKRJS. Appeflt'itis-Dtf ndt/nts i. KYRIACOS PETROU, Respondent-Plaintiff (Ctxif App.nl \>o6V2) f Afasta ami s^ik'iun—Vnations hubiLt\—Win ιIn ι a uiongjjf in! is to bi dnni-din I/K iGiuscoj on *vtniploiimnt— 7.Λ/appinabL—£>//.«.* altoued ίο dim anp'.oy.i s iar at closing mm a! 7 CO ρ in fiom la\i ojjus to lus house—Kap >,' /// κ and not uw ii lullif ilw next morning H/Iη lu t\oani αιι·ι il jiont //.·> fiojs*. 5 to ih ojjn^ to η sum. woik —Iiuolitd ill an caul m at „ 3(· a m. and efiii in hud uau't d his //t»^ΐ>l·—Not ccling in in a>ai \J Of lll\ tillploMJlLIll Si'llion Π oj /lu ClMI Wtongs LaA Cup 14-
- finding'! of j tul modi b\ tun1 Coatι— ΛηιΙ mjnaUiS dnt^ii tinι - JQ fiom—Αρρ.ο1 —Pitnaplis applnabh —In κ in uin* d < nam baud on mf,. .ncc; fiom (nets not in iontio·^ ιη Com I oj Appeal in us good u position as a nial Comt to c\aluaL suih fait·; as" no qinsfton oj iicdbihl) ω.us—hrd'g* and n>jinr>c* of t.tal Comt itnsittisfaiton not unit aim *l by ih' iwdiiuc and ι toiig; | 5 i:\-difLndciiit No I was in the service of defendant 2 ("the appellant" ) as diiver d m in» .t car Ixtwecn Nicosia and LaiA'ea After t!'e d?\\ work at about 7 ρ m lie w.'s permitted to dine homo with thecar of his emploxcr and ictum back in the morning 20 w.tli tht- car of his emplo\oi Tie dn\er w, s ijroi\ed \Aan accdi it ui Grivas Dhigems Auntie at Ί 30 ί' in that ι<· 7 i/2 hours aftf r he h:<d loft tht office wnilj,t dining the car of ti c appellant i*nd in an action ,.giu ist tnc diner ;uid ν t appellant the w. estimating oflleei of the accident testified that the d m e r 25 362 Ι ί 1 ii. Sljlianwi .nut Vnuthvr \. I'ctruu told Inmal t s c scene tnal he illiu driver) wai in tncemployment ol the L'ppelldnt as J dnver and that i:e Ivd a passenger who h;mg injured, had been comeyed to the hospital befort the arrival of the investigating othcer The ιι cstigalwg oRlcci did nnt know whether the passenger to whom t' e driver icfei red was carnal on reward or not, and he did not know whetlui al ihe time of the actidc it the driver was driving for the appel lant. he simply said that he wa*· an cmplo>cc of appellant".·. ta\i office. 'hie undisputed and incontestable evidence on recoid was to the C'Ucl that tlie drivei was allowed only to drive the car .it closing time, circa 7.00 ρ m. from the ta-j office directly lu his house keep it there and not use it until the n e u morning \.!κ·η he woulil chiv/o it from hit» house to the office to resume woik Hewas not permitted to use thecar for his own purpo>cs or for i.ny other purpose His house was al ramagusla Street. No
- Nicosia -5 minutes from the appellant's taxi olVeo I he tnal Cotul round that the d m e r committed the wronglul id by driving the car in an unauthorised mode of doing some thing which he was authorised by his employer, to wit. to use Ihe cai to go home and come back to his work on the following u\iv The tnal Court further concluded t^at there was no evi dence that the dnver was using the car at the time exclusively fi.i his own pinposes, and inferred that t^c drr.cr was al the time driving t'n: car pauly for his own purposes and partl> lor those ol his employei. the appellant On these findings and inference the trial Court held mat the v/ron^lul act of t!"e dnver was committed in the course ol" bis employment and the employer was held vicariously liable for the negligent driving uf the driver Upon appeal by the employer it was mainly contended υη In-, behalf that the finding·, of fact ol tne trial Court were not warranted by the evidence and Ih» inlerences drawn were wiong Ihe Coin·/ of Appeal aftet hiving down the test as to whethei t, nronsrful ait is to hi·deemed in tfw ιοιιι se of onSs i.mplo\ment —i/i/i pp 367 374 pint—and aftei s-tntwt· the principles on hlinlt it mtnf^res with findings of fait made by a trial Court —vide pp. 375-377 post 263 Stylianou and Another v. Petrou
(1984)Held, that the decision of the trial Court turns virtually on the inferences to be drawn from undisputed facts; that in reviewing decisions based on inferences from facts not in controversy, this Court is in as good a position as a trial Court to evaluate such facts as no question of credibility arises; that 5 the findings and inferences of the trial Judge that the driver was at the material time in the employment of the appellant and that he committed the wrongful act by driving the car in an unauthorised mode of doing something which was authorised by the appellant, to wit, to use the car to go home and come back to 10 his work on the following day, and that the driver was at the time driving the car partly for his own purposes and partly for those of the appellant are unsatisfactory, not warranted by the evidence and wrong; that whilst driving from the office to his house and back may be considered that he was driving in 15 the circumstances of this case, partly for the purpose of his employer and partly for his own purpose as, besides going to his house, he had to keep the car overnight; that the journey from the offict to his house lasted for about five minutes; that any journey after he had reached his house, anywhere during 20 the night was not in any way connected with his employment; and it might be frolic of his own, but definitely, not in the course of his employment; accordingly the appeal must be allowed. Appeal allowed. Cases referred to: 25 Barnard v. Sully* 47 Times L.R. 557; Hewitt v. Bonvin [1940] I K.B. 188 at pp. 192, 194-195; Ormrodv. Crosville Motor Services Ltd. [1953] 2 All E.R. 753 at p. 754; Universal Advertising and Publishing Agency v. Vouros, 19 30 C.L.R. 87; Akama und Another v. Tsiakoli
(1967)1 C.L.R. 206; HjiTheodossiou v. Koulia and Another
(1970)I C.L.R. 310; Municipal Corporation of Limassol v. Constantinou
(1972)I C.L.R. 119; Costa and Another v. Municipal Corporation of Limassol
(1975)I C.L.R. 84; 364 35 1 C.L.R. Stylianou and Anotherv. Petroo Txiopanix v. Avraam
(1978)1 C.L.R. 27; Goh Clioon Seng v. Lee Kim Soo [1925] A.C. 550 at p. 554; Canadian Pacific Railway Co. v. Lochart [1942] 2 All E.R. 464; Staton v. National Coal Board [195η 2 All E.R. 667 at p. 669; 5 Marsh v, Moore* [1949] 2 All E.R. 27 at p. 31; llkhv v. Samuels and Others [1963] 2 All E.R. 879; Higbid v. /i.C. Hammt't Ltd.. 49 T.L.R. 104; 10 /y//w/i v. Thomas Burton (Rhodes) Ltd. and Another [1961] I All E.R. 74; Mitchell and Another v. Crasswellerand Another, 138 E.R. 1189; Sio/rr v. Adr/o/i [1869] I K.B. 476; Polycurpou v. Polycarpou
(1982)I C.L.R. 182; Droushiotis (No. 2) v. Cyprus Asbestos Mines Ltd.
(1966)I C.L.R. 215 at p. 228; 15 Mamas v. Firm "Anna" Tyres
(1966)I C.L.R. 158 at p. 160; Kyriacon v. A. Kortas & Sons Ltd.
(1981)1C.L.R. 551 at p. 553; Mentesh and Another v. Hadjidemetriou
(1983)I C.L.R. I; Watt or Thomas v. Thomas [1947] A.C. 484; 20 Montgomcrie & Co. Ltd. v. Wallace—James [1904] A.C. 73 at p. 75; Benmaxw Austin Motor Co. Ltd. [1955] 1All E.R. 326; Imam v. Papacostas
(1968)1 C.L.R. 207; Niurehou v. Papaefstathiou
(1970)1 C.L.R. 109 at p. 114; Patsalidcs v. Afsharian
(1965)I C.L.R. 134. 25 30 Appeal. Appeal by defendant 2 against the judgment of the Distiict Court of Nicosia (Demetriou, Ag. P.D.C.) dated the 25th February, 1983 (Action N o . 1832/79) wheieby he was held vicariously liable for thenegligentdriving of defendant 1and was ordered to pay to the plaintiff the sum of £725.- as damages. H.M. Kyriakides, for the appellants. G.A. Georghtou, fot the respondent. Cur. adv. vult. 35 A. Loizou J . : The judgment of the Court will be delivered by Mr. Justice Stylianides. 365 Stylianou and Another v. Petrou
(1984)STYLIANIDESJ.: This appeal isdirected against the judgment of the District Court of Nicosia whereby defendant No. 2 —appellant—was held vicariously liableforthenegligent driving of defendant No.
- Al 2.30in the morning of 27th October, 1978,a collision oc- 5 curred between motor-vehicle Reg.No. No. THD.636 owned by the plaintiff and motor-vehicle Reg. No.TGY. 507 owned by the appellant and driven at the material time by defendant No.
- As a result both cars were damaged. The plaintiff sued the driver and the appellant to recover 10 his damages. The action against the driver was dismissed on 4.12.1980 and the case proceeded between the plaintiff and the appellant. It was agreed between the parties that the accident wasdue to the negligent diiving of the driver of the appellant's car. 15 The amount of damages wasalso agreed andthe only issue left for determination by the Court was whether the appellant was vicariously liable for the negligence of the person who was driving appellant's car at the material time. The ttial Judge decided the issue posed against the owner. Hence this appeal. 20 Counsel for the appellant submitted that the trial Court misdirected itselfin law; failed toevaluate correctly theevidence; the findings of fact are unsatisfactory, not warranted by the evidence and the inferences drawn are wrong and inconsistent with the undisputed evidence before the Court. 25 The undisputed facts are:The appellant runs a taxi service between towns. He keeps offices at Nicosia, Larnaca and Limassol. Ex-defendant No, 1 wasintheserviceofthe appellant, driving the car that came into collision with respondent's car, between 30 Nicosia and Larnaca. Heresided in Nicosia andafter theday's work, at about 7.00p.m.,hewaspermitted to drive home with the car of his employer and return back in the morning to resume his duties. His permission was limited to drive fiom appellant's office at Nicosiatohishouse intheevening andfrom 35 his house to the office in the following morning only. 366 1 C.L.R. Stylianou and Another v. I'etrou Stylianides J. If a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner, and the Court is left without futther information, it is legitimate to draw the inference that the negligent driver was either the owner himself, or some ser5 vant or agent of his—(Barnard v. Sully% 47 Times L.R. 557). But in cases that the facts are ascertained, the Judge can draw the inference from the complete data before him. It is plain that the appell?nt's ownership of the car cannot of itself impose any liability upon him. It is settled law that 10 where the owner of a carriage or other chattel confides it to another person who is not his servant or agent, he is not responsible merely by reason of his ownership for any damage which it may do in that other's hands. The driver of a car may not be the owner's servant, and the owner wilt be never15 thcless liable for his negligent driving if it be proved that at the material time he had authority, express or implied, to drive on the owner's behalf. Such liability depends not on ownership, but on the delegation of a task or duty—(Hewitt v.Bonvin, [1940] I K.B. 188, at pp. 194-195). 20 In the present case there was evidence before the Court and, therefore, the ownership of the car by itself does not create even presumption of liability on the appellant. It is not the law that the owner of a chattel is responsible in law for damage done by the negligence of a person to whom 25 he has lent it or whom he has permitted to use it—(Ormrod v. Crosvil/e Motor Services Ltd,, [1953] 2 All E.R. 753, at p. 754). The owner is liable if the driver is his agent, that is to say. if the driver is, with the owner's consent, driving the car on the 30 owner's business or for the owner's purposes. The owner of a vehicleisliablefor the negligence of thedriver if that driver is his servant acting in the course of his employment. The law governing liability of the master for acts of his servant is section 13 of the Civil Wrongs Law, Cap. 148, which 35 reads as follows:"13.
(1)For the purposes of this Law a master shall be liable for any act committed by his servant— 367 *>t>lianidcs J. Stylianou and Another v. Petroti
(1984)(
- a)which he shall have authorised or ratified, or (
- b)which was committed by his servant in the course of his employment: 'Provided that a master shall not be liable for any act committed by any person, not being another of hisservants, to whom his servant shall, without his authority, express or implied, 'have delegated his duty. 5
(2)An act shallbedeemed to havebeendonein thecourse of a servant's employment if it was done by him in his capacity.as a servant and whilst performingtheusualduties 10 of and incidental to his employment notwithstanding that the act was an improper mode of performing an act authorised by the master; but an act shall not be deemed to have been so done if it was done by a servant for his own ends and not on behalf of the master. 15
(3)For the purposes of this section act includes omission.
(4)Nothing in this section shall affect the liability of any 'servant for any act commmittbd by such servant*'. Section 2
(1)of Cap. 148 provides that this Law shall be interpreted in accordance with the principles of legal interpretation 20 obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly piovided, to be used with the meaning attaching to them in English law and shall be construed 'in accordance therewith. 25 The Civil Wrongs Law originated and purported to codify the English Common Law regarding liability ex delicto. Section 29
(1)(c) of the Courts of Justice Law, 1960 (Law No. 14/60) makes the Common Law of England applicable in this country where no express statutory piovision exists. This 30 provision was enacted for the first time in 1935—(Courts of Justice Law, 1935. s.49(c)). In interpreting and applying the provisions contained in the Civil Wrongs Law the Court should not regard this Code as a stockade around the Common Law lest it break out and dam- 35 age the citizens of Cyprus. They must be inteipreted and 368 1 C.L.R. 5 Stjlianuu and Another \. Petrou Siylianidc*.,·'· applied in such-a manneras togiveeffect tothewillandintention of, the legislator—(See the observations of Hallinan, C.J.. in UniversalAdvertising and Publishing Agency v. Panaywtis A-.. Vouros, \9' C.L.R. 87;, Theofanou Akama. and Another v. Nikt Ioannou Tsiakoli,
(1967)1 C.L.R. 206, at*p. 213; Hadji· Theodossiouv. Koulia Ν Another.,
(1970), 1 C.L.R. 310). The question of vicarious liability to third persons for the negligence of one's ser.vant came up for consideration,by this Court on a number, of occasions, and useful reference may be 10» made to the cases of Municipal Corporation of Limassol v. Agathangelos Constantinou,
(1972)1 C.L.R. 119.; Stavriiwu Costaand Another v. Municipal, Corporation,of Limassol,X\9J'$). 1·C:L.R.. 84;. Tsiopanis.v. Avraam, (1,978), I C.L.R'. 27. Regarding thetest as to whether a wrongful act is to bedeemed 15 to bedoneinthecourseof one's employment,this Court adopted in the above cases the following extracts from Clerk and Lindsellon Torts and.Salmoml on the Law of Torts:.- 20 25 30· 35 "The question whether a wrongful act is within the course of a servant's employment-, or, as it is sometimes put. whether it is within the scope of his authority, is ultimately a question of fact, and no simple test' is appropriate to cover all cases. That most frequently adopted is given by Salmond, namely, that a wrongful act is deemed to be done in the course of the employment, 'if it is either
(1)a wrongful act authorised by the master, or
(2),a wrongful and unauthorised mode of doing some act authorised by the master'. It-is clear that-the master is lesponsible for acts actually authorised by him: for liability would exist .in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not author ised, provided they are so connected with acts which he has authorised that theymay rightly beregarded as modes— although improper modes—of doing them". In GohChoon Seng v. Lee Kim Soo, [1925].A.C. 550; Lord Phillimore said at p. 554:"The principle is well laid down,in some of the cases cited by the Chief Justice, which decide that 'when a servant 369 Stylianides J. Stylianou and Another v. Petrou
(1984)does an act which he is authorised by his employment to do under certain circumstances and under certain conditions, and hedoesthem under circumstances or in a manner which are unauthorised and improper, in such cases the employer is liable for the wrongful act '. As 5 regards alt the cases which were brought to their Lordships' notice in the course of the argument this observation may be made. They fall under one of three heads:
(1)The Servant was using his master's time or his master's place or his master's horses, vehicles, machinery or tools 10 foi his own purposes: then the master is not responsible. Cases which fall under this head are easy to discover upon analysis. There is more difficulty in sepatating cases under heads
(2)and
(3). Under head
(2)are to be ranged the cases where the servant is employed only to do a part- 15 icular work oi a particular class of work, and hedoes something out of the scope of his employment. Again, the master is not responsible for any mischief which he may do to a third party. Under head
(3)some cases like the piesent, where the servant is doing some work which he is 20 appointed to do, but does it in a way which his master has not authorised and would not have authorised, had he known of it. In these cases the master is, nevertheless, responsible". (See also Canadian Pacific Railway Co. v. Lockhart. [1942] 25 2 All E.R. 464). In Staton v. National Coal Board, [1957] 2 All E.R. 667, Finnemore, J., stated at p. 669:"As to the general principle, it is clear, first of all, that for the doctrine of vicarious responsibility to apply there 30 must be the relationship of master and servant. That is not in dispute in this case, because Mr. Townsend was employed by the defendants, the National Coal Board. The second point is that the servant, when he commits the tort, must be acting in the course of his employment. 35 It is on that second limb that the argument and discussion have taken place in this particular matter. The master is not responsible for a wiongful act done by a servant unless it is done in the course of his employment. Most of the cases deal with the point that an act is presumed to 40 370 1 C.L.R. 5 10 Stylianou and Another v. Petrou Stylianides .1. be in the course of the workman's employment if it is. firstof all, a wrongful act authorised by the master—that does not apply to this case—or a wrongful, though unauthorised, mode of doing some act which was authorised by the master. Various other tests have been suggested: itisnot enough,for example,that the negligence wascommitted at a time when the servant was engaged on the master's business; it must be committed in the course of that business, so as to form a part of it, and not merely to be coincident in time". In Marsh v. Moores, [1949]2All E.R. 27,at p. 31,Lynskey, J., said:" ifthe unauthorised and wrongful act of theservant isnot soconnected with theauthorised actas to bea mode 15 of doing it, but is an independent act, the master is not responsible, for in such a case the servant is not acting in the course of his employment but has gone outside it". In Ilkiwv. Samuels and Others, [1963]2 All E.R. 879, it was said:20 "His employers must remain liable for his negligence so long as the vehicle was being used in the course of their business. As 1understand the authorities, the employers escape liability if, but only if, at the time of the negligent act,thevehiclewasbeingused bythedriverfor the purpose 25 of what has been called a 'frolic' of his own". 30 35 MacKinnon, L.J., inHewitt v. Bonvin(supra)said at p. 192:"But even a man who is in every sense a servant, to make his undoubted employer liable for his negligent act, must at the moment of his act bedoing work for his employer. Ifaregularlyemployedchauffeur, whendrivinghismaster's car, knocks some one down, the employer will yet escape liability if he shows that the chauffeur was using the car onan unauthorisedjourney for hisown purposeor benefit: he is at the time not doing his master's woik". In Higbidv. R.C. Hammett Ltd., 49T.L.R. 104,the wrongdoer's servant had asked the defendants, his employers, for permission to use a bicycle, which belonged to his employers, toridehome to his dinner and his employers had allowed him 371 J>l>lianideS'Jl- Stylianou'and Another v. Petrou
(1984)lo i use"the Bicycle format' purpose." In going home to his dinnei on than bicycle the boy negligently iode into the plaintiff" who- suffered' personal1 injuries. Uord Justice Scruttom held· that'wKefran'emplbyee..for his own purposes, used-his employers : bicycle; by the'employers* permission", the employers-were 5' not' liable' for' the*employee's- negligence. In: Hilton'v. Thomas Burton.(Rhodes) Ltd. and Another [1961], I Al! E.R'. 74i-the case of Higbid (supra) was applied. It was said:"THc true'test' is:" Was he doing something that he was 10 cmplbyedlto do?". In*Hilton case any woikman who had' a driving licence was luthoriscdt By the" employer to drive the' employer's van, ind'tlie-'worUmentwere.permitted'to use the vanfor any reasonible? purpose.- of their own";.SUGJVas>going t'o get refreshment 15 vhiIe'out< on:atjob; On the day-of the"accident the.deceased, -\\ and', five-other memwere working on·a site which was·about hirt'y miles from" the employer's premises. Afc about. 12.20* ,).m":,-the-deceased',·H-.-and1another man-went.to a public house near trie'site"for drinks, stayed there for about an hour, and, 20 .aitreturning to tlicsite,atetheir lunches,whichthey had'brought .vitHuHem. At about' 3.30 p.m., these three men and another man decided'to1go to-a cafe, which*was about seven miles away, for tea. They started off in the employer's van;-with H. driving.. But when they were approaching the cafe they realised 25" thatitfieie would'not betimetogoin;astheywould haveto return tothe site to'pick up the other threemenbefore returningtoIheemployer's- premises. As they were returning· to·the site, the van overturned- on a curve owing to the negligent driving of H.,-and-the·deceased was killed.. His widow claimed damages 30 ; gainst the employer as being,vicariously responsible for H.'s negligence. It was*held-that the employer was not liable, for .m-tHe facts Hi. was not at the time doing anything that he was employed' to do. In Richard Mitchell and Another v. Crasswellerand Another, 35 138 E.R. (C.P:> 1189; Jervis. C.J.. said:"That brings us to rhe" principal point, whether, under the circumstances disclosed by the evidence, the defendants are responsible for the injury which the plaintiffs have 372 I C.L.R. 5 10 Ί5 20 Stylianou and Another \, Petrou Stjlianides .
- sustained. Each case must depend upon its own particular circumstances. No doubt a master may be liable for in jury done by his servant's negligence, Where the servant. 'being about his master's business, makes a small deviation. or even where he so exceeds his duty as tojustify his master in at once discharging him. But, here it cannot be denied. that, though it was the duty of the carman,.on his .arrival with the horse and cart at Welbeck Street, immediately to take them to the stable, 'he,in violation of that duty. and without the sanction or knowledge of his employers. instead of going to the stable, started on a new journey. wholly unconnected with his masters' business—as m> Brother Parke expiesses it in Joel v. Morrison, 'on a frolic of his own'. Ithink, at all events, if ,the master is liable where the servant has deviated, it must 'be \wheretthe devi ation occurs in a journey on which the'servant-has origin ally started on his master's business; in other words, 'he must be in the.employ of his master at the time of com mitting the grievance. I think that was not 'the 'case here, and therefere I think the defendants are not liable to this action". •In Storey v. Ashton, '[1869] I K.B.
- 'the Mitchell case was approved and Cockburn, C.J.. said;- 25 30 35 40 "The true rule is that the'master is only responsible so long as the servant can be said to be doing the act, in the doin? of which he is guilty of negligence, in :the course ,of -his employment as servant. I am very far from saying, if the servant when going on his master's business took a somewhat longer road, that owing t o 'this deviation he would cease to be in the employment of'the master, so as to divest the latter of all liability; in such<cases, it is a quest ion of degree asto howfar the.deviationcould beconsidercd a separatejourney. Such a consideration is not .applicable to the present case, because heie the carman started on an entirely new and independent journey 'which had nothing at all to do with his employment". In the Storey case on the way after .delivering somewine,.on the return,when.about.a quarter of.a -mile'from the-defendant's offices, the carman,instead.of driving to the defendant's offices, was induced by the clerk (it being after business hours)to .drive in quite another direction on business of the clerk's; and while 373 -itylianides .
- Stylianou and Another v. Petrou
(1984)they were thus driving the plaintiff was run over, owing to the negligence of the carman. In determining whether a wrongful act is done by a servant in the course of his employment all the surrounding circumstances must be taken into account and not merely the particular act that leads to the damage. 5 The question that arises is: Was the driver at the material lime doing an act in the course of his employment as a servant? Was he simply deviating from the route in doing an act for his employer? The trial Judge, after saying that there was no dispute as to the facts, stated (p. 24 of the record):"It transpired from the evidence that the driver was at the material time anemployee at thetaxi office of defendant No. 2. According to P.W.I, the investigating officer of 15 this accident, the driver told him at the scene where he had arrived to investigate the accident that he (the driver) wasdrivingasan employee ofthetaxi office of the defendant No. 2. P.W.I also said that he saw two persons who were at the time passengers of the car driven by the driver. 20 He stated this in clear terms although he did not inquire whether they were passengers with obligation to pay or not''. And at page 27:" I find that there is sufficient evidence to establish 25 (
- a)that the driver was at the time in the employment of defendant No.2, (
- b)that the driver committed the wrongful act by driving the car in an unauthorised mode of doing something which was authorised by defendant No. 2, to wit, to use the car to go home and come back to his 30 work on the following day. There is no evidence that the driver was using the car at the time exclusively for his own purposes. It is, therefore, open for the Court to infer, and I do infer, that the driver was at the time driving the car partly for his own purposes and partly for those 35 of defendant No. 2". And at page 28:** on the balance of probabilities the version of the 374 10 1 C.L.R. Stylianou and Another v. Petrou Stylianides J. plaintiff is a more probable one and find that the wrongful act of thedriver wascommitted in thecourse of hisemployment within the ambit of the law expounded heieinabove. Defendant No. 2 is held vicariously liable". 5 The appellant complains that the findings of fact of the triai Court are not warranted by the evidence, and the inferences drawn are wrong. As regards the powers of this Court on appeal from thefindings of trial Courts, under section 25
(3)of the Courts of Justice 10 Law, 1960, the Court is not bound by any determinations on questions of fact made by the trial Court and has power tc review the whole evidence and draw its own inferences; and although the Court of Appeal would be slow to reverse the findings of primary facts made by the trial Court (though it ha; 15 done so in proper cases), it would be prepared to form an in dependent opinion upon the proper conclusion of fact to bx drawn from a finding of primary facts— (Charalambos Droit siotis(No. 2)v. TheCyprusAsbestos Mines Ltd.,
(1966)1C.L.R 215, at p. 228). 20 25 30 35 40 It is the practice of an appellate Court not to interfere witl the verdict of thetrial Court which had the advantage of hearini the witnesses and watching their demeanour unless some ver strong ground is put forwaid establishing that the verdict i against the weight of the evidence. That this is a most salutar; practice there can be no doubt, as a study of the notes of evi dence, even when taken with the utmost accuracy, cannot pos sibly convey to the mind of a Judge the same impression whicl the oral examination ofthe witnesses and their demeanour unde that process would have made upon the same Judge, if it ha< been his duty to hear the case in first instance. It is for th appellant to show that the conclusions arrived at by the Coun appealed from, are erroneous. In a case where the mattt turns on the credibility of witnesses, it is obvious that the triu Court is in a far better position tojudge the value of their testi mony than weare. We are, of course, not oblivious of the fact that quite apart from manner and demeanour, there are othe circumstances which may show whether a statement is crediblt or not, and we should not hesitate to act upon such circum stances, if, in our opinion, they warranted our intervention—(MarouUa Stylianou Polykarpou v. Savvas Polykarpou (1982 1 C.L.R. 182, at pp. 194-195). 375 Styfianides J. Stylianou and Another v. Petrou
(1984)In Sofoclis Mamas v. The Firm liARMA" Tyres,
(1966)I C.L.R. 158, at p. 160, Vassiliades. J., as he then was, said:"The findings of the trial Court will not be disturbed on appeal, unless the appellant can satisfy this Court that the reasoning behind such findings is unsatisfactory, or that they are not warranted by theevidence when considered as a whole". 5 In Kyriacou v. A. Kortas & Sons Ltd.,
(1981)I C.L.R. 551, at p. 553, the Court expounded the principles on the strength of which the Appeal Court may interfere with the findings 10 of fact by a trial Court as follows:"It must be shown that the trial Judge was wiong in evaluating the evidence and the onus is on the appellant to persuade the Court that that is so. Matters relating to credibility of witnesses fall within the province of the !5 trial Judge who has the opportunity to see and hear the witnesses. If on the evidence before him it was reasonably open to him to make the findings to which he arrived at, then this Court will not interfere unless the inferences drawn therefrom are not warranted by the findings where- 20 upon this Court can draw its own conclusions"'. Malachtos, J., in delivering the judgment of the Court of Appeal in Osman Mentesh and Another v. Evripides HadjiDemetriou,
(1983)1 C.L.R. 1, reiterated the same principle and adopted the following passage from the judgment of the 25 House of Lords in Watt or Thomas v. Thomas, [1947] A.C. 484:"When a question of fact has been tried by ajudge without a jury and it is not suggested that he has misdirected himself in law, an appellate Court in reviewing the record 30 of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb hisjudgment unlessit isplainly unsound. The appellate Court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatis- 35 factory byreason of materialinconsistencies or inaccuracies, or if it appears unmistakably from the evidence- that in reaching them he has not taken properadvantage of having seen and heard the witnesses or has failed to appreciate 376 Ί C.L'.R. Stylianou and Another v.'Petrou 'Styfianides J. the weight and 'bearing of circumstances admitted -or proved". The decision of thetrial Court turnsvirtuallyion the inferences ;to -be drawn from undisputed .facts. In .reviewing 'decisions 5 ibased on inferences from facts not,in.controversy, ithis -Court .is in as good a position as a,trial Court to evaluate-such'facts ;as noquestion of credibility arises. :Lord,Halsburyiin'the'House of Lords in Montgomerie'& Co. 'Ltd. v. 'Wallace-James,![I9.04] -A.C. ,73, said at p. 75:llO "But when.no question arises as to truthfulness, and where the question is as to the proper'infeiences to be drawn'from 'truthful evidence, then the original [tribunal is.in.-no'better position to decide than.thejudges.of an Appellate;Court". "(See-also Benmax v. Austin.Motor'Co. *Ltd.,i[]955] Ί/AM'EfR. 15 .326). In our·Civil Procedure Rules, Order 35,-r.*8, dealing withithe 'powers of the'Court of Appeal, it is .provided:- 20 "The Court of Appeal,shall have power.to draw-inferences of fact and to give any judgment and make .any-older which ought to have .been made, .etc.'*. (See also-s.25
(3)of the-Courts of Justice Law, 11960; also Iman v. Pqpacostas,,
(1968)»1 C.L.R. 207,;.Nearchou v. .Papa:efstathiott,(\910) 1C.L.R. 109,at p . l \4-tlPatsalides\v. Afsharian, ;
(1965)1 ,CL.R. .134;.5o/oc7/s Mamas v. The Firm'" ARM A" '25 'Tyres, (supra)). As-the Judge said, the facts,of theicase.are not;in.dispute. ϊΝο question of credibility arose. 'We observe, .however, -inaccuiacies and disciepancies between the evidence on.therecord ;and the judgment under appeal. 30 'In the present .case one witness, namely, the .investigating ιofficer, P.C. 2838, Loizos'Stylianou, testified for vthe_ plaintiff ;and'two witnesses, namely,'Soteris Petrou (D.W;1), the person iin-charge of all'the offices ofthe appellant in the-three-main •towns, and D.W.2, Panayiotis Christou,ithe persontin-charge : . 35 -of the.taxi officetofithe.appellant,at ."Nicosia. At,the scene of:thetaccidentLtheJnvestigating.ofhcer,:P.W.l. IP.C. 2838,.Lbizos'-Stylianou, put some questions to the driver Γ377 Sl.vlianides J. Stylianou and Another v. Petrou
(1984)who replied that he was in the employment of the appellant as a driver; that he had passengers who, being injured, had been conveyed to the hospital before the arrival of the investigating officer. The investigating officer did not know whether the passengers to whom the driver referred were carried on reward ot not. He did not know whether at the time of the accident the driver was driving for the appellant; he simply said that he was an employee of appellant's taxi office. 5 The undisputed and incontestable evidence on record is to the effect that the driver was allowed only to drive the car at 10 closing time, circa 7.00 p.m., fiom the taxi office directly to his house; keep it there and not use it until the next morning when he would drive it from his house to the office to resume work. He was not permitted to usethe car for hisown puiposes or for any other purpose, His house was at Famagusta Street. 15 No. 35, Nicosia—5 minutes from the appellant's taxi office. The findings and inferences of the trial Judge that the driver was at the material time in the employment of the appellant and that he committed the wrongful act by driving the car in an unauthorised mode of doing something which wasauthorised 20 by the appellant, to wit, to use the car to go home and come back to his work on the following day, and that the driver was at thetime driving the car partly for hisown purposes and partly for those of the appellant, are unsatisfactory, not warranted by the evidence and wrong. Not only this Court has the power 25 but it is its duty to substitute its own inference for that found by the trial Judge. Whilst driving from the office to his house and back may be considered that he was driving, in the circumstances of this case, partly for the purpose of his employer and partly for his own 30 purpose as, besides going to his house, he had to keep the car overnight. The journey from the office to his house lasted for about five minutes. Any journey after he had reached his house, anywhere during the night, was not in any way connected with his employment; it might be a frolic of his own, but, defi- 35 nitely, not in the course of his employment. The driver was involved in the accident at Grivas Dighenis Avenue at 2.30 a.m., 7 1/2 hours after he had left the office. The accident did not occur shortly after 7.00 p.m. in the course of a deviation as the driver did not follow the shortest road from the taxi 40 378 1 C.L.R. Slylianou and Another \. Pctrou Styliantdes. J. office to his house. It happened more than 7 hours after he had left the office, at 2.30 a.m. Having regard to the evidence and the circumstances of the case, we conclude that the driver was not in any way carrying 5 out his master's employment. The master is not liable for his negligence. The appeal is allowed: the judgment of the trial Court is set aside with costs here and in the Court below. Appeal allowed with costs. 379