1 C.L.R. 1989 May29 (SAWIDES,HADJITSANGARIS,BOYADJIS,JJ ) PITRIBROTHERS AND OTHERS, Appellants-Defendants, v. THEODOROS M. SHIAMPTANIS, Respondent-Plaintiff (CivilAppeal No. 7265). Appeal — Findings of fact— Interference with, on appeal — Pnnciples applicable. 5 Trial— Duties oftrial Court — Duty tomake concrete findings offacton the evidence before it after analysing such evidence and give due reasoning for suchfindings — Theduty to reasonajudgment isnot dischargedmerely byrecounting theconflicting versions. Reasonning of ajudicial decision — Duty of a trial Court to reasonits judgments is not discharged by a mere recounting of conflicting versions. 10 The factsofthiscaseneednotbesummarized.Sufficeittosaythat the Court ordered aretnal on theground that thetrial Court merely recounted conflicting versions without commenting upon them and makingfindingsof fact onthe evidence. Appeal allowed. Retrialordered. Costsof the appeal to be costsin cause, but not againstthe appellants. Costsof previous trial to becostsincause. ^ Casesreferred to: Papadopoulos v. Stavrou (1982} 1C.L.R.321; 20 Pioneer Candy Ltd. v. Tryfon and SonsLtd.
(1981)1C.L.R. 540; ParmaxiandAnother v. Katsiola
(1985)1C.L.R. 633; Agapiou v.Panayiotou
(1988)1C.L.R. 257. 255 I'ilri Hnitht-rs*. Sluurnplanis (198·*) Appt'ui. AppfM· in defendants against thejudgment of theDistrictCourt ot Nicosia 'Laoutas. S.D J } dated the 29th September. 1986 (Action No.684/83) whereby they were adjudged to pay to the plaintiff the sum of £1.80].- tor damages caused to his car as a 5 result of the negligence of thedefendants whilst same was intheir cate Κ Koashios, foi the appellants. E. Vrahimi (Mrs.), foi the respondent. Cur. adv vult SAWIDES J read thefollowing judgment of the Court.This is an appeal against thejudgment of aJudge of the DistrictCourtof Nicosia whereby the appellants, defendants in Civil Action No. 684/83 weie adjudged to pay to the respondent, plaintiff in the action, ihe sum of £1,801 · with interest and costs 15 The fans of the case are briefly as followsThe respondent in this appeal, who was the plaintiff in Civil Action No.684/83 (hereinafter tobe referred toas «the plaintiff»), claimed against the appellants, defendants in the action. (hereinafter to be referred to as «the defendants») £2.873.- for 20 damages caused to his car as a result of the negligence of the defendants whilst same was in thecare of the defendants Defendants 2 and 3 are mechanics and own a garage at Paliounotissa where they operate their business under the business name of «Pitris Brothers», defendants 1intheaction.The 25 defendants undertook to carry out certain repairs tothe plaintiff's car which had been delivered tothemafter ithas been involved in an accident.Whilst such carwas inthe custody of the defendants, itcaught fire and was completely destroyed. The plaintiffs allegation, according to the Statement of Claim, 30 was thatthedefendants were negligent inhandlinghiscarandasa result of such negligence, the damage claimed arose. In the alternative itisalleged thatthedefendants were guilty ofbreachof contract of bailment. The learned trial Judge found thatthe case was a clear case of 35 breach of contract of bailment and concluded as follows: «The facts of the present case support theargument of Mrs. 256 10 I C.L.K. Pitri Brothers \ . Shtamplanis Saw ides J. Vrachimiwhich1accept and holdthatthisisaclearcutcaseof bailment. Allthe features of bailment and inparticular thatof possession are apparent inthe present case». In his grounds of appeal learned counsel for the appellants 5 included under (d)a ground that the learned trialJudge «wrongly concluded»thatthepresentcasewasone ofbailment.Weshallnot dealhoweverwiththisaspect ofthecaseaslearnedcounselforthe appellants in the course of the hearing of the appeal abandoned such ground and limited the appellants' appeal to the following 10 grounds: (a) The learned trial Judge made a wrong evaluation of the evidencebefore himand/or didnottakeintoconsideration partof the evidence in that: 15 20
(1)He failed to make any finding in connection with the evidence before him about offers made for the purchase of thecar after the fire.
(2)Evidence tothe effect that the value of thecarhad been diminished due to its involvement in a previous accident in addition to any diminution due to the fact that such car was being used.
(3)In assessing the damages, he failed to take into consideration the damage that the car Had previously sustained due to a traffic accident which necessitated the carryingout of certain repairs. 25
(4)Hefailedtoassesscorrectlythesalvagevalueofthecar.
(5)He included in his assessment of damage items in respectof which no evidence was adduced. (b)Hefailedtoexamineand/orgivedueweighttotheallegation of the defendants about failure of the plaintiff to minimize hisloss 30 and appliedwronglytherelevant legalprinciplesinthisrespect. (c)Hemade a wrong assessment of damages and failed togive due reasoning and/or explain how he assessed the damage. The learned trialJudge, having dealt with theevidence before him inhisjudgment, went on as follows: 35 «On the issue of damages a considerable volume of 257 *'«**«J i Piln Brothers \ Shiamptanis
(1989)evidence hasbeen adduced byboth sides Thisevidence is in direct conflict with one another The plaintiff alleged that his car had been a total lossand beyond economic repair Itwas sold as a salvage at £400 The defendants, on the other hand alleged that the engine wasintactand could have been placed ma new body ata lowcost 5 Both expert valuer?, the one on behalf of the plaintiff and theotherofthedefendants havestatedthatthecarwasatotal lossbut theengine wasintactand could havebeen installed in 10 a new body The cost of the installation would have been approximately £350 There is,also the evidence ofDW3,whichIaccept, tothe effect thata newbodyofthesamemodelasthatofthe plaintiff would cost, at that time,around £900 15 Itismevidence too that the plaintiff purchased the subject mattercarat£2,300dutyfree Thisleadsmetotheconclusion that the plaintiff could have had anewcaratacost lowerthan the purchase pnce The plaintiff has failed as he was dutybound, to take any reasonable steps to minimise his 20 damage So I find that the plaintiff isentitled not tothe whole amount of the market value of his car but to the amount of £1,250 - being the cost of the new body and the installation of the engine The plaintiff in my opinion, isprecluded from claimingreplacement ofhiscarsimplybecause partofitcould 25 have been used and a newcar could have been built According to the evidence of both valuers, the new car could have been sold ataround £3,800 - Itismyopinion and sohold, that the plaintiff isentitled to the amount of£1,250 and not to the whole value of the car when purchased From 30 this amount the sum of £370 - has to be deducted which representsthevalueofthesalvage(£400 -)lessthecostof the transportation (£30-) I find, further, thattheplaintiff hasproved tomy satisfaction items(b)(c)(d)(e)and (f)ofpara 5oftheStatementofClaim 35 If my calculations are correct, the plaintiff isentitled to the total amount of £1,801 -» 258 1C.L.R. Pitn Brother!*v.Shiamptams SavvtdesJ. Item (b),whichwasincluded intheassessment ofdamages,was in respect of the dutywhich had tobe paid on the said car which had been imported and used free of import duty and which amounted to £416 It is in evidence that the plaintiff, after the 5 damage caused tothecar, which wasconsidered asamounting to total lossof the car, wasallowed tobuyanother dutyfree car and thus was not depnved of hisbenefit to possess a duty free car In makinghiscalculationandawardingtheamountofimportdutyon thesaid cai,itescaped theattention ofthelearned tnalJudge that 10 the plaintiff, to be entitled to a new duty free car, had to pay the duty on what wasleft of hisprevious carand that the carafter the payment of duty, would have been a duty paid car available for salewithout anyrestriction and, asaresult,itsvalueasadutypaid carwould be higher then that of a duty free car 15 Item (e) is claimed in respect of a sum of £100 - paid to the defendants onaccountfortherepairsofthedamagestothecaras a resultoftheaccident inwhich thiscarwasinvolved before itwas taken tothe garage ofthe respondents and item (f)isinrespectof two new mudguards provided by the plaintiff for repacement of 20 those damaged due tothe accident The learned trialJudge byaccepting the above items,hasinan indirectwayaccepted thatthevalueofthe carhada diminutionof itsvalue duetothepreviousaccidenttotheextentof£300 - Inhis assessment, whereas on the one hand he adds such expenses as 25 additional damagetotheplaintiff hemakesnodeduction from the value of the caras found byhim inthe condition itwasbefore the fire, of the amount required for repairs to bnng the car to that condition Itisinevidence thatseveraloffers weremadetothe plaintiff for 30 the purchase of the salvage of the car inthe condition itwas after thefire Infact,thelearnedtrialJudge mentionedsuchevidencein hisjudgment inwhich we read the following 35 «They offered £1,750 - topurchase the caratthe condition it was after the fire They had also found another purchaser who offered £1,500DW.4 is a car dealer and according to his testimony he made an offer of £1,500 -tothe defendants forthe purchase of the salvage of the subject matter vehicle They rejected it Defendant 2informed him that the owner would notsellit» 259 SavvidesJ. Pitri Brothersv.Shiamptanis
(1989)The learned trial Judge failed to make any analysis of such evidence, which wasmaterial inthe assessment of damages, and makeany findings inrespectthereof supportedbydue reasoning. Without any finding on such evidence the learned trial Judge proceeded and made his own calculations, reaching the 5 conclusion that the value of the salvage was£370 (£400 less the costoftransportation £30).Such calculationscouldbe completely different ifthe evidence about offers forthepurchase ofthe carin the condition it was after the accident were taken into . „ consideration. Itisweltsettled that thisCourt willbe reluctant tointerfere with findings offact ofatrialCourt unlesssuchfindingsare inconsistent with the evidence adduced, they are unsatisfactory, arbitrary or arrived at in disregard to the evidence {Papadopoulos v. Stavrou
(1982)1 C.L.R. 321). Itisthe duty of trial Court to make concrete findings of fact on the evidence before itafter analyzingsuch evidenceand give due reasoning for such findings. In Pioneer Candy Ltd. v. Tryfon & Sons Ltd.
(1981)1C.L.R. 540,itwasheld bythe Court ofAppeal atp.541,that: «The authorities establish that for the requirement of due reasoning, there mustbe: (
- a)An analysis of the evidence adduced in the light of the issue asarising and defined bythe pleadings; (
- b)Concrete findings as the necessary prelude to the 25 judgment of the Court: and, (c)Aclearjudicial pronouncement indicating the outcome of the case». In Parmaxi and Another v. Katsiola
(1985)1 C.L.R. 633 at p.643, we read the following: «It isindeed well settled that findings of fact based on the evaluation of credibility of witnesses isthe province of trial Courts and that an Appellate Court isdisinclined to interfere withthem unlessitappears thattheyarearbitraryorarrivedat indisregard ofthe evidence andwithoutproper evaluation of 35 same». 260 15 20 IC.L.R. PitriBrothersv.Shiamptanis SavvidesJ. Also, in the recent decision inAgapiou v.PanaytOtou
(1988)1 C.L.R. 257,itwasheldatp.262 that:- 5 «Thedutytoreasonajudgmentisnotdischarged bymerely recounting the conflicting versions or commenting upon them.ThefailureofthetrialCourttomakefindings respecting the credibility ofthe witnessesmade the determination of the casevulnerable tobesetasideforlackof due reasoning». As already mentioned, in the present case, the learned trial Judge merely recounted material evidence before him without 10 commenting and makinganyfindings onsuch evidence,whichin the circumstances might have had abearing on the assessmentof damages and his final award. Such omission renders the conclusion reached byhimarbitrary andarrivedatwithout proper evaluation ofthe evidence before him. 15 Inviewofthe above,wehavenoalternativebuttosetasidethe finding of the trial Court and order a new trial. The decision, therefore, of the trialCourt isset aside andan order ismade for a newtrialunders.25
(3)oftheCourtofJusticeLaw 1960whichwill necessarily have to take place before a differently constituted 20 Bench. Regarding costs, we order that the costs of this appeal will be costs in cause but not against the appellants. Regarding all other costsinthese proceedings, they should be costsincause. Appeal allowed. Retrial ordered. Costsin cause. 25 261