(1987)1987 February 27 [A LOIZOU DEMETKIADES PIKIS JJ 1 G KASINOS CONSTRUCTIONS LIMITED, Appellants-Defendants, ν LEFTERISCHRISTODOULIDES, Respondent-Plamtiff (CivilAppeal No 6904) Negligence—Burden of proof—Shifting of to the defendants—Road traffic accident—Respondent injured as he was forced to jump from appellants' trascavator, whilst he was drivingit—Trascavators engine switched off and its steering and brakingsystems failedto operate—Findingthat said events not due to respondents negligence—In the circumstancesburden of proof shiftedto the appellants On the2 3 82 therespondent,anemployee of theappellants,was dnving * the latters trascavatorin the course of his employment The engine of the trascavator switched off and neither the steenng mechanism nor its braking system responded to the efforts of the respondenttocontrolthetrascavator As thetrascavator was heading towards afield, thelevelof which was 12 feet below that of the road, the respondent jumped from it and, as a result, he sustained mjunes 5 10 The only issue thatwas left fordeterminationby thetrialCourt,was thatof theappellants'negligence Inthelightof theevidenceadducedthetrialJudge 1 5 reached the following conclusions, namely that the engine switched off, because of acause notduetobaddnving orthenegligence of therespondent, that, because the trascavator was travelling downhill, it accelerated speed, thatdespite respondent'sefforts itcouldnotbebrought toastandstill andthat the failure of its braking system tooperatewas duetosome defect for which 2 0 the respondent was not responsible He,also, found thatthe testwhich was earned out after the accident was superficial, because the road conditions were notsimilar tothose existing atthetimetheaccidentoccurred Inthelightof such conclusionsthe trialJudge heldthattheburdenof proof had shifted to the appellants, who had to satisfy him that they were not 2 5 responsible for the accident in question Consequently, he found the appellants liable for theaccident Held, dismissing the appeal
(1)The findings of the trial Judge were 6 1 C.L.R. Kaslnos Constructionsv. Christodoulldes warranted by the evidence adduced before him In the circumstances he nghtlyheldthattheburdenofproof hadshifted totheappellants,whohad to satisfy himthatthey werenot responsible forthe accident 5
(2)The appellants failed to discharge such burden, because they did not adduceanyevidencethattheywerediligentinservicingthemachine andthat whatevercausedtheswitchingoff ofthe engine and thenon operation ofthe brakesandsteering gearcould nothavebeenprevented or foreseen Appeal dismissed withcosts Appeal. 10 15 Appealbydefendants againstthejudgment oftheDistnct Court of Limassol (Korfiotis, D.J.) dated the 11th February, 1985 (Action No.2250/82) whereby they were adjudged to pay to the plaintiff the sum of £1.120.-as damages for injunes sustained by him asa result of their negligence. V.Tapakoudes. forthe appellants. Chr.Pourgourides, for the respondent. Cur. adv vult. A.LOIZOUJ.: The judgment of the Court willbe delivered by H.H.Mr.Justice Demetriades. 20 DhMETRIADESJ.: Thisisan appeal against the judgment of a DistrictJudge of Limassol bywhich he found that the respondent sustained injuries as a result of the negligence of his employers whoare the appellantsinthis appeal. As the question of the amount of damages, to which the 25 respondent would be entitled, on a full liability basis,was agreed between the parties, the only issue that wasleft for thetrial Court todecide wasthat of negligence. The case for the respondent, before the trial court, was that he was an employee of the appellants, who are a construction 30 company, and that on the 2nd March, 1982,he wasinstructed by them todrivetrascavatorunder RegistrationNo.HW750tooneof theirsites;thatwhilstdrivingthemachine alongasideroad,which joinsthe old with the new Nicosia main road, itsengine switched off and thatdespitehisefforts tocontrolit,neitherthesteering nor 7 DemetriadesJ. Kasinos Constructionsv.ChrlstodouHde·
(1987)the brakes responded, as both systems went dead, and that because the trascavator was heading towards a field, the levelof which was 12 feet"below that of the road, hejumped from it and was injured. In giving evidence he alleged that the speed of the trascavator immediately before the accident was5 m.p.h. 5 Theappellantsdeniedthattheywereinanywayliablefortheinjuriessustained bythe respondent and alleged thattheir machine wasproperly serviced.Theyfurther allegedthat immediately after the accident their machine was tested, in the presence of the Police Constable who investigated the accident, and itwas found 10 that both itsbrakesand steering gear operated satisfactorily. They further alleged thatafter theaccident occurred thetrascavatorwas driven to a construction site where it worked both for the remainderofthatday,aswellasonthewholeofthefollowing day, without giving any problem and that after this work was 15 completed, itwasserviced attheir garage and no fault was found with it. We should at this point remark that no evidence was adduced by the appellants as to what the people who serviced the trascavator after the accident did or what they found. 20 Each side called an expert mechanical engineer who gave evidence as to how the machine would respond after its engine was switched off. This evidence, the trial court, very rightly described as one of purely academic value as neither of them tested or checked the machine immediately after the accident in 25 order to find outwhat caused the switching off of the engine. The trialcourtfound thatthetestcarriedoutbydefence witness Chamboullides, in the presence of the Policeman who investigated the accident, was superficial. In any event, what Chamboullides said in his evidence, as this appears from the 30 record before us,the test carried, that isthe startingofthe engine ofthemachineanditsmovingoffthesceneoftheaccident,aswell as itsperformance later on that day and the following day, isnot evidence that can exclude the possibility that a latent defect was caused bysome unknown factor. 35 The trial Court, after hearing the evidence, found that there were three issuesthat had tobe decided upon, namely (a)Did the respondent drive carelessly and badly handled the 8 1C.L.R· KaslnosConstructionsv.Christodoulldes DemetriadesJ. machineandasaresulthelostcontrol?Or (b)wastheaccidentduetobadservicingorfaultymaintenance, or mechanical damage of the machine caused by the negligenceoftheappellants?And 5 (c)was the loss of control of the machine, because of the switchingoffofitsengineandtheresultingnonoperationof itsbrakesandotherparts,duetoalatentdefect, something thatcouldnothavebeenforeseenbytheappellants,despite thefactthattheyexerciseddiligentcareforitsmaintenance? 10 The trial Judge, after dealing in extenso with the evidence adduced,cametothefollowing conclusions: (a)That whilstthetrascavatorwastravellinginsecond gear,its engine switched off because of a cause not due to bad drivingbyorthenegligenceoftherespondent. 15 (b)That because the trascavator was travelling downhill, it accelerated speed. (c)Thatdespitethe efforts oftherespondent, whoappliedthe brakes, the trascavator could not be brought toastandstill andasaresultitoverturned,and 20 (d)Thatthefailure ofthebrakestooperatewaspossiblydueto somedefectforwhichtherespondent,inanyevent,wasnot responsible. The trialJudge further found that asthe trascavator, after the accident, was tested on road conditions not similar to those 25 existing at the time the accident occurred, the test which was carriedoutwasasuperficial one. Inourview,thefindingsofthetrialJudgewerewarrantedbythe evidencebeforehim.Inparticular,theevidenceoftheexpertsthat were calledbyboth sidesandwhoagreed thatwhen theengine 30 switched off, the braking system of the machine, which wasin good condition, ought to operate and lock the wheel?, fully supportthefourth conclusionreachedbythetrialcourt. Inthecircumstances,thetrialJudgerightlysaidthattheburden ofproofinthiscasehadshiftedtotheappellantswhohadtosatisfy 35 himthattheywerenotresponsiblefortheaccident.Theappellants 9 D e m e t r i a d e s J . KaslnosConstructionsv.Cbristodontides
(1987)failed to call evidence that they were diligent in servicing the machine and thatwhatever caused itsswitchingoff and thenon operationofthebrakesandthesteeringgearcouldnothavebeen prevented or foreseen and they, therefore, have failed to dischargetheburdenthathadbeenshifted onthem. 5 Intheresult,thisappealisdismissedwithcosts. Appealdismissed withcosts.