1C.L.R. 1988April25 (MALACHTOS,DEMETRIADES,PIKIS,JJ.) SAWASTHEOFANOUS, Appellant, v. 1.COSMOS (CYPRUS) INSURANCE CO. LIMITED, 2. CHRISTODOULOS CHRYSOSTOMOU, Respondents. (Civil Appeal No. 7050). 5 Vicariousliability—Negligence of driver ofamotor carinvolved ina road trafficaccident—Ownership ofcar—Whether andto whatextent fact of ownership raises a rebuttable presumption that owner is vicariously liable for thedriver's negligence—Analysis of conflicting authorities. Precedent,doctrine of—Decisions of Superior English Courts—Of high persuasiveauthority, butnot binding on Cyprus Courts. Common Law—Principles of—Applicable as,a matter of statutory law (section29(l)(c) of theCourts ofJusticeLaw 14/60). 10 The appellant was defendant 1 in the action. The trial Court dismissed the plaintiffs claim against appellant's co-defendant 2 in the action on the ground that the plaintiffs failed to prove that such co-defendant was vicariously liable for the negligence of defendant 1,i.e.the appellant. 15 Counselfortheappellantsubmittedthatthefindingwaserroneous becausethepoliceconstable,whoinvestigatedtheaccident, testified that the two drivers told him that the said co-defendant was the owner of the car driven by the appellant. Ownership, counsel continued, raises a rebuttable presumption of vicarious liability. In supportofthisproposition, hecitedthedecision ofthePrivyCouncil inRambaranv.Gurrucharran[1970]1AllE.R.749,butadmittedthat thedecision ofthe HouseofLordsinMorgansv.Launchbury [1972] 2AllE.R.606,isfatal to hissubmission. 20 265 Theofanous v.Cosmos Insurance 1988 Held, dismissing the appeal:
(1)Cyprus Courts are not strictly bound bydecisionsofEnglishCourtsunless,ofcourse,theyreflect a principle of the common law,objectively identifiable byCyprus Courts,inwhichcasetheprincipleofthecommonlawisapplicable inCyprusasamatterofstatutorylawmakingthecommonlawpart 5 ofthelawofthecountry{s.29(l)(c)oftheCourtsofJusticeLaw-14/ 60).
(2)The presumption favoured in Rambarranis not of the magnitudeorbreadthsuggestedbycounselfortheappellant.
(3)InMorganstheHouseofLordsreviewedthecaselawbearing 10 onthesubject,includingRambarranofownershipinjuxtapositionto vicariousliabilityand concludedthatatnostagedidEnglishCourts accept without further qualification the proposition that mere ownershipofavehicleraisesapresumption ofvicariousliability.
(4)Rambarran andMorganinvolvenoconflict ofprinciple,buta 15 divergence of opinion withregardtotheevidentialvalueofthefact ofownershipofavehicle.
(5)Theevidenceofthepoliceconstablewas,asfarasthesecond defendant in the action was concerned, hearsay and, therefore, inadmissible. 20 Appealdismissed. Casesreferredto: Rambarran v.Gurrucharran [1970]1 AllE.R.749; Morgansv. Launchbury&Others[1972]2AllE.R. 606; Manawatu Countyv. Rowe
(1956)N.Z.L.R.78; 25 Mouzouris andAnotherv.Xylophaghou Plantations Ltd.
(1977)1 C.L.R. 287; AdamtsasLtd(In VoluntaryLiquidation)v.Republic
(1977)3C.L.R. 181; K.v.J.M.P. CoLtd[1975]1 AllE.R.
- Appeal. Appeal by defendant 1 against the judgment of the District Court of Nicosia (Kallis, D.J.) dated the 30th September, 1985 (Action No. 10209/84) whereby he was adjudged to pay to plaintiffs 2 and 3 thesum of£767.70centdamagesdue asaresult 35 of a traffic accident and the action against defendant 2 was dismissed. 266 30 1 C.L.R. Theofanous v.Cosmos Insuiance E.Efstathiou with C. Kamenos, for the appellant. St. Erotocritou (Mrs.),for the respondent. Cur. adv. vult. 5 MALACHTOS J.: The judgment of the Court willbe delivered byPikisJ. PIKISJ.: To begin we must clarify the capacity and interest of the parties to this appeal. The .appeal is made by Sawas Theofanous, defendant 1atthetrial.Itisdirected againsta finding of the trial Court dismissing the claim of the plaintiffs (Cosmos 10 (Cyprus) Insurance Co. Ltd."and 2 Others) against Christodoulos Chrysostomou. The averment of the plaintiffs that Christodoulos Chrysostomou wasvicariously liablefor the negligence of Sawas Theofanous, wasfound tobeunsubstantiated and was dismissed. Theplaintiffs didnotchallenge thisfinding. Infact,theywere cited 15 as respondents in the appeal alongside with Christodoulos Chrysostomou. The latter, despite his interest in supporting the judgment, did not appear in the proceedings. Inthe absence of a separate claim by the appellant against his co-defendant, it is doubtful whether the appellant had a legitimate interestto mount 20 thisappeal. None of hisclaims was dismissed. The finding of the trial Court affecting the liability of the second defendant solely concerned aclaimoftheplaintiffs. However, weneed not explore further the subject of justiciability of the appeal in view of the inevitabilityofthedismissaloftheappealongroundsofsubstance. 25 The plaintiffs averred in the statement of claim that Christodoulos Chrysostomou was vicariously liable for the negligence of the appellant and on that account jointly liable for the damage occasioned to the vehicle of the plaintiffs, KF 424, sustained in the course of a collision with the vehicle driven by 3C appellant. The trialCourt dismissed the case against Defendant 2 « because noevidencewhateverwasadducedtoestablish the allegation of vicariously liable in paragraph 4 of the statement of claim» Counselfortheappellantsubmittedthatthiswasanerroneousview 35 of the evidence in light of the testimony of police constable Loucas Michael (P.W.I) who investigated the accident In his evidence the policeconstablestatedthatonhisvisittothescenehe metthedrivers of the two vehicles who seemingly informed him that the 267 PildsJ. Theofanous v.CosmosInsurance <19S8) vehicle driven by the appellant belonged to Christodoulos Chrysostomou. Inview of evidence establishingthe ownershipof the vehicle, itwas argued, a rebuttable presumption of vicarious liabilityarose ontheauthorityof thedecision of the Privy Council inRambarran v.Gumicharran*, whichwaswhollydisregardedby the trialCourt. Inthe absence of evidence to contradict itthetrial Courtoughttohavehelddefendant 2vicariouslyliablefortheacts of defendant
- 5 Inthe course ofargument Idrewtheattention of counseltothe decision of the House of Lords in Morgans v. Launchbury** 10 refuting the broader implications of the decision in Rambarran, supra, and denying the genesis of any presumption of vicarious liability upon mere proof of ownership of a car involved in a collision.Counsel for theappellant, whileacknowledging thatthe decision inMorgans, supra, isfatal fortheappeal, invited usnotto 15 follow it in view of the evidential presumption noticed in Rambarran, a presumption abounding inpractical good sense. In Morgan v. Launchbury, supra, the House of Lords, upon a review of relevant caselaw, including the case of Rambarran, concludedthatownership ofacardoesnotraiseapresumption of 20 vicarious liability, rebuttable or otherwise. The acknowledgment of such a presumption would be a radical departure from the principles of agency tantamounting to judicial legislation. The Privy Council in Rambarran, supra, inclined to the view that ownershipofacaraffords primafacie evidencethatthedriverwas 25 the agent or servant of the owner. They found support for this proposition mostly in New Zealand and American cases. Nonethelesstheyallowedtheappealinthatparticularcaseinview ofevidence tendingtorebutthepresumption ofvicariousliability. Acloser study of the judgment of the PrivyCouncil suggeststhat 30 the presumption does notariseautomatically upon mere proofof the fact of ownership.Though suchtestimonyisevidence fittogo to the jury and be pondered alongside with any other evidence bearing on the question of vicarious liability. It appears that in some States of the United States of America an evidential rule 35 evolved from the early daysoftheinvention ofthe car,asearlyas 1913, thatapresumption of vicariousliabilityaroseupon proofof ownershipincaseswhere membersofthefamilydrovewhatcame to be known asthe «family car».InNewZealand asimilarrulewas • [1970]1AllE.R.
- "11972} 2All E.R.
- 268 1 C.L.R. Theofanous v. C o s m o s Insurance PUus J. acknowledged in Manawatu County v. Rowe* In Morgans, supra, the House of Lords reviewed the caselaw bearing on the subject of ownership in juxtaposition to vicarious liability and concluded that at no stage did English Courts accept without 5 further qualification the proposition that mere ownership of a vehicle raises a presumption of vicarious liability. The acknowledgment of such a presumption would run counter to settled principles of English law affecting vicarious liability. Any departure from thoseprincipleswouldbe beyond theauthorityof 10 theCourtstoundertake.ItmustbeappreciatedthatCyprusCourts are not strictly bound by decisions of English Courts** unless,of course, they reflect a principle of the common law, objectively identifiable by Cyprus Courts, in which case the principle of the common law isapplicable in Cyprus as a matter of statutory law 15 makingthe common lawpart of the lawof the country (s.29(l)(c) oftheCourtsofJusticeLaw-14/60).Ontheotherhand, decisions ofsuperior EnglishCourtsincludingthePrivyCouncil,areofhigh persuasive authority inareasof the English common lawthat find application in Cyprus.Asoften proclaimed, the common lawisa 20 livingorganism thatshouldnotbestiffled bythepast;itsprinciples are intended to serve the ever changing needs of society and should be interpreted in a diachronic perspective. Moreover, in Commonwealth countries its application should reflect the particular needs of individual societies***. 25 ThecasesofRambarranandMorgan,supra, involveno conflict of principle. Attribution of vicarious liability is dependent upon proof of facts and circumstances that render the principal or the master, as the case may be, vicariously liable for the acts of his servant or agent. At the highest there isa divergence of opinion 30 with regard to the evidential value of the fact of ownership of a vehicle. As already explained, the presumption favoured in Rambarran is not of the magnitude or breadth suggested by counsel for the appellant. The mere reference to the fact of ownership would at best, even under the principle favoured in 35 Rambarran, be evidence that couldbe referred tothejury.Itdoes *
(1956)NZLR 78. ** (See, interalia, MouzourisandAnother v.Xylophaghou PlantationsLtd. (1977}1 C.LR. 287;AdamtsasLtd. (InvoluntaryLiquidation)v.Republic(MinisterofFinanceandAnother)
(1977)3 C.LR. 181. Thesubject isdiscussedinEngfish common law- TheDoctrinesof EquityandtheirApplicationinCyprus-by C.M.PUds, 1981 (inGreek))**·(K. v.JM.P. Co.Ltd.11975)1AllE.R. 1030 (CA.). 269 Pilds J . T h e o f a n o u s v.Cosmos Insurance
(1988)not, in the absence of any other evidence illuminating the circumstances under which the appellant assumed control of the vehicle, create the presumption suggested by counsel for the appellant. More importantly, reference to the ownership of the vehicle by the police constable was no evidence at all in that he 5 was not the official having custody of motor vehicle records; knowledge of ownership derived, as we can safely infer, from a statement made to that effect by the appellant. As such, it was hearsay evidence;inadmissible against the owner of the vehicle, the second respondent in these proceedings. Hence the trial 10 Judge was perfectly right to dismiss the claim for total lack of evidence tosupportit.Thatbeingthecaseitisunnecessaryto offer a concluded opinion on the legitimacy of the presumption favoured inthe case ofRambarran,supra.Wearenotobliviousto the position of an owner of a vehicle and hisresponsibility to his 15 neighbours through use of hisvehicle.The gravest risk isfor the victim of an accident going uncompensated. Compensation, on the other hand, by the insurer is not dependent upon proof of vicarious liability of the owner but upon authorised use of the car bythedirect orindirectpermission oftheowner. Intheabsence of 20 circumstances tending to contradict the existence of authorised use the Court can legitimately infer inevery case thatthe driverof a motor vehicle is in control of it with the direct or implied permission of the owner. Forallthe above reasons theappeal isdismissed. 25 Appeal dismissed. 270