(1987)1987 November 10 [ M A i A f H T O b PIKIfa KOURKIS J l , TEKLIMA LTD Appellants Defendants No 1 υ 1 A Ρ LAN1TISCO LID Respondents 2 SALAMISTOtMM Plaintiffs I Respondents · Defendants No 2 (Civil Appeal No 6953) Evidence Real evidence — Expert witnesses explaining implications of Confiding explanations — Tnaljudge believed the evidence of the one of such witnesses becausehis version was corroborated by the evidence of an eye witness — A senous misdirection —Retnal ordered Evidence —Failure toexamine testimoniesofwitnessesin theircorrect perspectix e — Retrial order A long vehicle known as atrailer driven inthe directionofNicosia anda saloon car heading inthe directionof Limassol collided on the old Nicola Limassol roadby the 24th milestone with fatalconsequences forthedriver of the saloon car 5 **-' The (rial wasconfined tothe issue of liability Thetwo expert witnesses (Stavndes and Yiallouros) who testified before the trial Court gave conflictingversions asregardstheimplications ofthe realevidence Stavndes asserted that the point of impact was3 6 fromthe middle of the roadon the side of the trailer whereas Yiallouros asserted that itwas on the centreof the 1 5 road The driver of thetrailer alleged that thecollision occurred becausethe saloon caioithe deceased whirh was coming fror" the opposite direct on followinganother car camesuddenly onthe sideof thelorry andknockedon •t 20 Mr Strovolides thednverofanothercarthatwasdnvenbehindthesaloon car ofihe deceased (hough not able to point out the exact point of impact asserted inhis testimony that the collision occurredin the middle ol the road Significantly the witness made no referencetoathirdcarbeingdriven ahead 614 1 C L.R. Tekllma Ltd.v. A.P. Lanitls 01tin.* -.(iloon car nor w^s it i u q g t s t e d to the witness m cross examination that there did exist as alleged by the trailer dnver a third car The statement made before the Coroner b\, another witness namely A Nicolaou w h o passed aw.ay before the heaving of the action was p r o d u c e d 5 in evidence by consent That witness too located the point of impact somewhere ai the middle of the road and like Mr Strovolides made n o relerenci' to anv vehicle being driven ahead of the saloon car The trial Judge exa-nined the evidence of the t w o experts a n d concluded that the testimony ot Mr ^lavndes should be preferred to that ol Mr 10 Yidlloiiios One of ihe reasons given for the preference of the testimony of Mr Stavndes was that his testimony was corroborated by the evidence of the dnver of the trailer Held allowing the app..' ( il Malachtos J dissenting
(1)The cogency of the evidence of an expert in the analysis of real evidence 15 resulting from an accident depends on the reliability of his findings and their o b j e i t i w implications Die real evidence is intended as often affirmed to furnish to whatever extent that is possible by the real evidence f o u n d at the scene an ob-ective and unliable guide to the circumstances attending an accident thereby prov idmga yardstick for the assessment of the accuracy and 20 reliability of witnesses to facts In this case there was a serious misdirection when the trial Judge l o u n d confirmation ol the evidence of the expert comm-j '<ΌΠΙ the testimony of an eye witness (21 Another misdirection no less consequential was the failure of the trial Court to appreciate in a correct perspective the evidence of witness £o Strovolides His evidence was essentially disregarded as inconsequential because of the inability of the witness to indicate the precise point of impact In n o way d i d the trial Court focusattention o n the inevitable conflict between the version o i events given by that witness as to circumstances preceding and surrounding the accident and that expressed b y the trailer dnver or» ι ,υ -
(3)Moreover the trial Judge did not approach in a correct perspective the statement of deceased Nicolaou
(4)T h e misdirection noticed above in the evaluation a n d assessment of evidence illuminating the circumstances of the accident and the omission to examine the evidence in its true perspective made the finding of the Court 35 attributing sole liability for the accident to the saloon dnver unreliable and unsustainable Appeal allowed with costs Re-tnai order Costs of the tnal to be costs in cause 615 Teltlima Ltd. v. A.P. Lanitis
(1987)Casesreferred to Mentesh and Another ν HjiDemetnou
(1983)1 C I . R 1 Charalambousv.Demetnou. 1961 C L R . 14 Mamas ν TheFirm *Arma* Tyres
(1966)1C.L.R 158. Thomaides and Co Ltd. ν Lefkantis Bros
(1965)1 C L R 2(1. b Patsalidesν Afshanan
(1965)1 C LR 134 Clarkeu.Edinbourgh Tramways Co.
(1979)S.C (HL.)36; Thomas v. Thomas [1975] AC 484, Messiou ν Elefthenou 11982} 1 C LR. 486: Adamis and Another v.Eracleous{\982)\ CLR
- 10 Charalambousand Another ν Katfas(l986) 1C L R
- Appeal. Appeal by defendants 1 against the judgment of the District Court of Nicosia {Demetriou, Ag. P.D.C.) dated the 26th April. 1985 (Limassoi Action No. 1881/82) whereby defendant 1 was ordered to pay to the plaintiff the sum of £4,233.= as damages due toa traffic accident. 15 A. Dikigoropoulos. for the appellants. No appearance for respondents No
- L Papaphilippou, for respondent No.
- 20 The following judgments were read: MALACHTOS, J : This case arose out of a collision between two motorvehicles between the 21st and 22nd milestones of the old Nicosia-Limassol road at about 10 a.m. on 2.7.
- The one vehicle involved was asmallAustin Estate1300 underRegistration 25 No. HE 95 driven at the time in the direction of Limassoi by a certain Kypros Charalambous in the course of his employment with the appellants, Defendants 1 in the action, who died on the spot due tothe injuries he received. The othervehicle, an articulated lorry, loaded with acontainer, 30 under Registration No.KU 600, belonged to Defendants No. 2 in the action, and was driven in the opposite direction by a certain N·" "tyros A. Michael in the course of his employment. . 616 1C L R . Tekllma Ltd.v.A.P. Lanitis Malachtos J. After the collision the lorry proceeded uncontrolled knocked on another car under Registration No KJ 30* which was following the Austin car from a distance of about 100 to 150 metres left the road and overturned inthe fields on theright hand 5 oftheroadasone facesNicosia Thegoodsinthecontainer which consisted, among other things, of 96 AEG Lavamat washing machines, the property of respondents No 1 the plaintiff company, earned from Limassoi to Nicosia on reward sustained considerable damage 10 Asa result the plaintiff company instituted legal proceedings against the two defendants claiming damage* lot negligence on the part of their respective dnvers Itshould be noted here that the amount of damage;» on a full liabilitybasis was settled prior tothe hearing of the ca>e and also 15 it was admitted by both defendants that they weu» vicariously liableforthenegligenceoftheirrespective drivers ifany andwhat remained Or the trial court to decide wasthe question ot liability asbetween the two defendants At the trial, counsel for the plaintiff company since the only 20 remaining ibsue wasthe degree of contribution of each one ol the two drivers to the accident called as his only witness the Police investigator, Charalambos Stavndes apensioner whowasat the timeoftheaccidentaPolicesergeantattached tothetraffic branch and closed his case This witness stated that on 27 81 in the 25 morning, visited the scene of the accident where he found the threevehiclesinvolved intheirresultantposition Thedriverofthe Austin was lying dead on the ground ..ear it There and then he took vanous measurements and prepared a sketch plan with an explanatory table and also took a number of photographs which 30 he developed himself The sketch with the explanatory table and thephotographs were produced incourt as exhibits The widthof the asphalt atthe scene of the accident is20ft lOins with usable berms on both sides The road issloping towards the directionof Nicosiaandisseparatedbyadottedwhiteline Atadistanceof 2ft 35 5 ins to the nght of the white line, as one faces Limassoi there were five deep scratchesontheasphalt which were caused by the bellyof theengine of the Austin car atthe time of theimpact On thebellyoftheengineoftheAustincarthereweretracesofasphalt indicating that it came into contact with the asphalt road Scuff 40 markscorresponding tothe front nearside wheel ofthelorry were 617 Malachtos J . Teltlima L t d . v. A.P Lanitis
(1987)noticed on the roadstartingfrom the left handsideof theedgeof the asphalt opposite the five scratches From the damage observed on the two vehicles, it was made clear that their front offside corners came intocontact Thecontact of thetwo vehicles was 1ft 6 ins wide Taking into consideration the above, this witness stated that in relation to the white line the Austin car at the ttme of the impact wasoccupying3ft 6ms of theroadover thewhite line to theside of the lorry The point of impact,which isnot amerespot, isfixed at point X on thesketch andiswell over the white line to theside 10 of the lorry The caseforthe appellantsdefendants 1before thetnal Court. was that the collision occurred on the side of the Austin car or approximately on the crown of the road and sothe driver of the lorry was either entirely to blame or. alternatively, contributed 15 equally with thedriver of theAustincartothe accident in support of their case two witnesses were called, namely, Sotenos Yiallouros, an automobile and mechanical engineenng consultant and assessor and Marios Strovolides the owner and driver of the motor car under Registration No KJ303,which was 20 following the Austin car at the time of the accident Sotenos Yiallouros in giving evidence stated that on 3, 4. 5, and 13 July. 1981, investigated this accident and on 25 9 81 he prepared a report, which he produced by consent before the tnal court This investigation report which wasbasedpartly on the policesketch 25 plan, was made for the purpose of specifying the cause and the .<jay inwhich the accident occurred He wasretained to dosoby the insurersof theAustincar Inhisreport thiswitness,after giving his own theory as to how the accident occurred, concluded as follows «Fromthe examination earnedoutonKU600tractive unit, it wasfound that itsRH frontcorner hadbeencrashed dunng the initial impact with HE 95 Paints of the HE 95, however, were found on KU 600's RHfront end ofabout 12ins width from nght to left The width of same paints, in my opinion, 35 could only be caused by the smashing side penels of HE95, which was compressed and torn off the vehicle, covering a total max width of about 28 ins beyond the RH Side of the samevehicle Fromtheaboveextensiveexaminationitseems 618 5 1CL.R Teklima Ltd.v.A.P. Lanitis MalachtosJ- thatthe lorryKU600wasdrivenbeyond therenterlineofthe road towards the nght while HE 95 very close to the center line» Manos Strovolides stated that he was driving his car under 5 Registration No KJ 303 following the Austin car and noticed the collision when he was about 100 to 150 metres away from it There is a bend of the road and the collision took place on that bend After the collision he reduced hisspeed and swerved tohis right to avoid colliding with the lorry which was proceeding 10 uncontrolled and with great speed but he could not avoid it This witnessstated further inanswertoaquestion inthe examination in chief as to whether on which part of the road he saw the collision since he saw thesmall car driven on the left hand sideof theroad but he could notsay ifthelorry had crossed tothesideof 15 the small carorthe small car to the side of the lorry In cross-examination this witness also stated in answer to a juestion that since according to his evidence the small car never crossed overthe white line tothe otherside of the road, the lorrv must have crossed the white line and so the collision must have 20 »>ccurred on the side of thesmall car answeied that from what he i^membered no white line was in existence On the application of counsel for defendants 1 and with the consent ofcounsel fordefendants2 theevidence whichwasgiven at the inquest of the driver of the Austin car bv a certain Antonis 25 Nicolaou a professional driver who at the time of the accident was driving motor lorry under Registration No KR 813 from Limassoi to the direction of Nicosia following the lorry, and who died before the commencement of the hearing of the action was produced asan exhibit before the trial court The substantive part 30 of his evidence is the following 35 «Nearthe Forest Station ofKornosthereisabend 1 noticed that the trailer was on the left hand side of the road I did not see the other car which was coming from the opposite direction When I sawthe other carwaswhen theycame into collision Whenthecollisionoccurred theywereinthemiddle oftheroad Afterthecollisionthetrailerp-ocecd^d tothenght and overturned From the opposite dire<tion another carwas coming which proceeded tothe left hand sideofthe road and 619 Malachtos J . Teldima Ltd. v. A . P . Lanttis
(1987)overturned. I stopped in order to see if I could be of any assistance. I could not andso Ileft. Idid not notice anything unusualintheroadbeforethecollision.1cannotsaywhatwas theposition ofthecarcomingintheoppositedirection before theaccident with regardto theroadsince Icouldnot seeit». 5 The case for defendant 2 company, before thetrial court, was that the driver of defendants No. 1was entirely to blame for the accident. Counsel fordefendants2insupport ofhiscasecalledas his only witness Neofytos A. Michael, the driver of the lorry who gavean account asto how theaccident occurred.Thesubstance 10 of the evidence of thiswitness isthat in the moming of 2.7.81 he wasdriving the lorry in question from LimassoitoNicosia.At the placewhere the accident occurredthereisarighthandbend.He washoldinghislefthandsideoftheroadwellwithinthewhite tine which separates it. There he saw three cars coming from the 15 direction of Nicosia. At the time whenthe first carwasalmost by theside of his lorry the car followingitcame suddenlyto hisside and knocked on the lorry- The only thing he had time to do was to remove his foot from the petrol pedal. The lorry then proceededuncontrolled,andoverturnedinthefieldsontheother 20 sideof the road. When he wasaskedto giveanexplanation asto why the second car came towards his side he said that he was 'under the impression that its driver was trying to overtake the precedingcar. ThetrialJudge in hisjudgment aftersumminguptheevidence 25 adduced by the parties, accepted theevidence of the lorry driver on thequestion asto how theaccident occurred,which evidence was corrobotated by the evidence ofthe police investigator, and foundthatthedriverofdefendantsNo. 1wasentirelytoblame for theaccidentandgavejudgmentinfavour oftheplaintiff company 30 accordingly. Thecasefor the appellant, defendant 1company,before us,is that the trial Judge wrongly accepted the evidence of the lorry driver and the police investigator and called upon this court to interfere with the findingsof factbythetrialJudge. Asageneral rule,anappellate courtdoesnotinterferewiththe findings of fact of the trial Judge. As to when an appellate court could interfere with such findings, Ishall reiterate what has been statedinthecaseoiMentesh v.HjiDemetriou
(1983)1C.L.R. 1at page8: 620 35 40 1 C.L.R. 5 10 Tcklima Ltd.v.A.P.Lanitis Malachtos J . «The principles on which an appellate Court can interfere with findings of fact by the trial Court which depend on credibility of witnesses, are well known and have been stated in a line of cases both here and in England. In the case of Philippos Charalambous v. Sotiris Demetriou, 1961 C.L.R. 14. Zekia J.,as he then was, said at page 19: 'While 1 am far from being satisfied of the way some judgments are given by trial Courts where without stating adequate reasons dispose of an issue in the case by merely saying 1believe ordisbelieve soandso".I willhesitatealoton the other hand to introduce a principle the application of which might have the effect of amending the Evidence Law which would constitute a transgression on our part of the rights of the legislature'». 15 The special interest of this case lies in the fact that it closes the cycle of judicial pronouncements in Cyprus under the law as it stood prior to the enactmentof the Courts of Justice Law, 1960, section 25
(3). on the powers of a Court of Appeal of reviewing findings of fact of trialCourtsbased onthecredibility of witnesses. 20 InSofocles Mamas v. The Firm«Arma» Tyres
(1966)1C.L.R 158atpage 160,VassiliadesJ..as hethen was, referred tothecase of Thomaides &Co. Ltd. v.LefkaritisBros
(1965)1C.L.R.20ar i to the subsequent case of Patsalidesv.Afsharian
(1965)1C.L Ϊ. 134 and said: 2[ «The.findings of the trial court will not be disturbed in appeal, unless the appellant can satisfy this court that *Ke reasoning behind such findings is unsatisfactory, or thatthey are not warranted by the evidence when considered as a whole». 30 In Clarkev. Edinbourgh Tramways Co.
(1919)S.C. (H.L.)35,at page 36, LordShaw hadthisto say: 35 «When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard tocredibility ornot». In Watt or 77iomas v. 77iomas [1957] A.C. 484, a House of Lordscase, itwas decidedthat: 621 Malachtos J . T e k l i m a Ltd. v. A.P. Lanitis (19*7) «When a question of fact has been tried by a judge without ajury and it is not suggested that he has misdirected himself in law. anappellate court inreviewing the recordof the evidence should attach the greatest weight to his opinion because he saw and heard the witnesses and should not disturb his 5 judgment unless it is plainly unsound The appellate court is however, free t o reverse his conclusions if the grounds given by him therefore are unsatisfactory by reason of material inconsistencies o r inaccuracies or if it appears unmistakablv from the evidence that m reaching them he has not taken 10 proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and hearing of circumstances admitted or proved» In the present case, taking into consideration the result of this appeal. I shall only say that counsel for the appellants did not 15 discharge the burden which rests on him to persuade me that the reasoning behind the findingsof the tnalJudge was unsatisfactory or such findings are not warranted bythe evidence adduced It was reasonably o p e n t o the tnal Judge to accept the evidence of the lorry driver and the police investigator as true and correct and to 20 arrive at the conclusions he did For the above reasons I would dismiss the appeal PIKIS J A long vehicle known as a trailer driven in the direction of Nicosia, and a saloon car heading in the direction of Limassoi collided on the old Nicosia - Limassoi road by the 24th 25 milestone, with fatal consequences for the driver of the saloon car Also damage was caused to the owners of the goods, conveyed by the trailer from Limassoi to Nicosia More than one action were raised in connection with this accident The parties to the proceedings agreed that the question of liability should be 3 0 determined in the present proceedings, therefore, the finding affected allthose concerned with the implications of the accident The accident was investigated by an experienced Police Sergeant, namely, M r Stavndes. of the Lamaca Police Division, who recorded his findings at the scene on a plan drawn to scale, 35 illuminating the scene and the marks found thereat attnbuted to the accident O n the basisof those findings the investigating officer concluded that the collision between the two vehicle^ occurred on the side of the trailer, some 3 ft 6 from the white linethat divided the 20 ft wide road into two parts He determined the point of 4 0 622 1 C.L.R. Teklima Ltd.v.A.P. Lanltis PUda J. impact by reference to marks of real evidence identified at the sceneandthedirection ofthevehiclesafter thecollision Itwas,by all accounts a violent collision that caused the two vehicles to change course asa resultof the force ofthe impact Inthe process 5 and at a timewhen itwasbyallaccountsout of control, the trailer collided with a second car that was dnven behind the saloon car involved in the major collision That vehicle was dnven by Mr Strovolides who testified at the tnal for the respondents Subsequently totheaccidenttheservicesofanotherroadaccident 10 investigator were employed, namely, Mr Yiallouros, an Automobile and Mechanical Engmeenng Consultant and Assessor, with a view to analysing the real evidence found at the scene and drawingnecessaryconclusions therefrom Weshallnot advert to the details of hisevidence except notice that he took a 15 different view of the implicationsof real evidence from that taken by Mr Stavndes In the opinion of Mr Yiallouros the most probable point of impact wasthe centre of the road The version of the dnver of the trailer affecting the circumstances of the accident was to the following effect As he 20 negotiated a bend or more properly a curve of the road, he was confronted with three cars coming from the opposite direction in a line, notably, a van, the car of the deceased and that of witness Strovolides In no time, when a very short distance separated his vehicle from the first caropposite, the saloon carofthe deceased 25 took to the nght, seemingly inan effort to overtake the car ahead ofhim,whereupon hecutacrossthelineoftravellingofthetrailer precipitating the violent collision that followed The tenor of the testimonyofMr Strovolides,ontheotherhand,doesnottallywith the evidence of the dnver of the trailer. The saloon car of the 30 deceasedkept,ashewasabletonoticefromashortdistancebehind, to the left-hand side on the road At no stage did the saloon car leave, to hiscomprehension, that side of the road nor did he perceive anysudden movement ofthesaloon cartothenght And as farashe could ascertain, the accidentoccurred inthemiddleof 35 the road when the two vehicles moved in opposite directions without any perceptible changes in the route they followed Although he was unable toidentify the precise point of impact or determine their exact position measured from the respective edges oftheasphalt, the inevitableinference from histestimonyis 40 that the accider* °""urred somewhere in the middle of the road 623 Pikis J . TekJlma Ltd. v.A P. Laηiris
(1987)Significantly the witness made no reference to a third car being driven ahead of the saloon car norwas itsuggested to the witness in cross-examination that there did exist as alleged by the trailer driver, a thirdcar The only other evidence illuminating the circumstances of the 5 accident stemmed ί-om the statement of Antonios Nicolaou of Panayia, made before the coroner who inquired into the circumstances of the death of the driver of the saloon car The witness passed away before the hearing of the action but his statementbefore the coronerwas produced by theconsentof the 10 parties as evidence throwing light on the circumstances of the accident Thatwitness toolocated thepointof impact somewhere at the middle of the road and like Mr Strovolides made no reference to any vehicle being driven ahead of the saloon car Inevitably the value of the testimony of Antonios Nicolaou wds 15 diminished by the absence of an opportunity to cross-examine him The trial Judge examined the evidence ot the two experts and concluded thatthe testimony of Mr Stavndes should be preferred to that of Mr Yiallouros One of the reasons given for the 20 preference of thetestimony of Mr Stavndes was thathis testimony was corroborated by the evidence of thedriver of thetrailer That was a senous misdirection The cogency of the evidence of an expert in the analysis of real evidence resulting from an accident depends on the reliability of his findings and their objective 25 implications The real evidence is intended, as often affirmed, to furnish, to whatever extent that is possible by the real evidence found at the scene, an objective and reliable guide to the circumstances attending an accident, thereby providing a yardstick for the assessment of the accuracy and reliability of 30 witnesses to fact In Messiou ν Elefthenou*. it was observed «Common expenence tells us that in road accident collisions, the parties immediately involved thereto are apt to form a mistaken impression about a vanety of facts, including theirposition on the road, not least because of the great speed with which events 35 develop» Similar observations were madeabout thevalue of real evidence inAdamts and Another ν Eracleous**, as well as inthe ' {1982)1 CLR 482 "
(1982)1 CLR 746 624 1 C.L.R. T e k l l m a Ltd.v.A.P. Lanltis Malachtos J . more recent case of Charalambous and Another ν Kaifas* The value of real evidence as a guide to what had happened was depicted in thefollowing terms 5 10 «Real evidence does not of itself tell how an accident happened, but piovides excellent material for testing the credibility and accuracy of conflicting testimony with regard to the circumstances of an accident The value of real evidence as a measure of the truth of a situation was stressed in Georghios Prodromou Haloumias ν The Police
(1970)2 C L R 154 Though Haloumias was a cnminal case the pronouncements made therein apply afortion tocivil cases as well» Obviously the trial Judge fell into an error in finding confirmation of the evidence of the expert coming from the 15 testimony of an eye-witness Later in his jujdgment he found confirmation of thetestimony of thetrailerdriver coming from the evidence of the expert That is sound enough but the earlier acceptance of the testimony of the expert was fraught with the irregularity noted above To complete the picture relevant tothe 20 aforementioned misdirection, we may note that once the tnal Court thoughtfittoseek confirmation of theevidence of the expert from eye-witnesses, he should have noticed that the evidence of the other two witnesses, namely, Strovolides and Nicolaou, tended to support the conclusions of Mr Yiallouros Of course, 2r> thatwould have been equally erroneousfor thereasons explained above Another misdirection no less consequential was the failure of the tnal Court toappreciate ina correct perspective the evidence of witness Strovolides Hisevidence was essentially disregarded as 50 inconsequential because of the inability of the witness toindicate the precise point of impact In no way did the tnal Court focus attention on the inevitable conflict between the version of events given by that witness as to circumstances preceding and surrounding the accident and that expressed by the trailer dnver 35 Furthermore, he did not approach in a correct perspective the statement of deceased witness Nicolaou either Examined in conjunction the evidence of Strovolides and the testimony of '
(1986)1 CLR j/o 625 Malachtos J . Tekllma Ltd. v. A.P. L a n l t t ·
(1987)Nicolaou before the Coroner,tended tosuggest thattheaccident occurred,contrarytothetestimony of thetrailerdriver, close tothe middle of the road without the occurrence of any sudden swerve of the saloon car to the wrong side of the road. The trial Judge wholly ignored the implications of the testimony of the 5 aforementioned witnesses, including the inference deriving from their evidence that there was no third car on the road at or just before the occurrence of the accident. The existence of the third car was crucial for the assessment of the credibility of the trailer driver for as he ventured tosuggest it was the misjudged attempt 10 of the saloon driver to overtake the car ahead of him that precipitated the violent collision that followed. The misdirection noticed above in the evaluation and assessment of evidence illuminating the circumstances of the accident and the omission to examine the evidence in its true 15 perspective, made the finding of theCourt,attributing sole liability for the accident to the saloon driver, unrealiable and unsustainable. Nothaving had thebenefit of seeing the witnesses testify before us, we cannot assume the task of evaluating their evidence from theprintedrecord.Thisisatask thatmustbe under- 20 takenanew inafresh trialtodetermineliability fortheaccident. Theappeal isallowed withcosts.Thejudgment of thetrialCourt is set aside. The case is remitted to the Distnct Court for retrial before another member of theDistrictCourtof Nicosia.The costs of the trial before the DistrictCourtwill be costs in the cause. 25 KOURRIS J.: ί am in complete agreement with the judgment delivered by Pikt>.J. and have nothing further toadd. COURT: Inthe result, this appeal is allowed by majority, the case is sent back to the DistrictCourt of Nicosia for retrial before another Judge. The appeal isallowed with costs. The costs of the 30 trialbefore thetrialCourttobecostsinthecause. Appeal allowed with costs.Retrialordered. 626