(1989)W » July 4 (bAWIDES KOURKIS BOYADJISJJ) GEORGHIOS LOIZOUMAVROVOUNIOTIS, Appellant-Defendant, ν MICHALAK1S GEORGHIOU, Respondent-Plamtift AND LAKIS ELIA MAVROU, Respondent-Third PartyJ AND COStauo GENERAL INSURANCE S A . Respondent-Third Party 2 (Civil Appeal No 7127) Aopedl — Credibility of witnesses — interference with findings relating to α edibility — Principles applicable Words and Phrases — «Road» m section 2
(1)of the Road Traffic Law, 1972 (Law 86/72)—The essential characteristic of a «road» is «public access» — A place to which the public, but not only a 5 particular class or section thereof, have accessby «tolerance» is a -road» Appeal — Costs— Interferencewith order for — Pnnciples applicable The question in this case is whether the Limassol Port, where an accident, the subject-matteroftheaction,occurred isa«road»within 10 the meaning of section 2
(1)of Law 86/72 If yes, the respondent insurance company should indemnify the insured, ι e the appellantdefendant in the action in rem in respectofthe damages payable to the plaintiff If not, the respondent is not bound to indemnify the appellant 344 15 1 C.L R. Mj\ro\ouni»tis > Georshiou and Others The pnmary facts as found by thetrial Courtare 5 10 15 20 25 30 «Although aconsiderable numberof persons enter the Port daily such persons do so onbusiness Thereasons of theirvisittothePort may be different for every person entering Some of them visit the port on business regarding imports and exports and go to the CustomsOffices ortheOffices of thePortsAuthonty Othersvisitthe offices of the Ministry of Commerce and Industry and even passengers visittheduty-free shops inordertopurchasegoods Allof them, however, fall within the same category They are persons having business in the area of the port and cannotbe considered as general public Nobody is allowed in unless he has business within the area of the port and the casual by-passer is not allowed in A mateur fishermen can be seen there,but as soon as they are seer by the officials they are removed This means that they are trespassers who enteredwithoutpermission Furthermore thearea of theportis fenced and well guarded on a twenty four hourbasis and triers are signs at the entrance of the port indicating that there is a control before entering thegates» Held dismissingthe appeal
(1)The essential characteristic of a «road» in the sense of section 2
(1)of Law 86/72 is «public access> «Public access»implies aplace towhich thegeneral public but nota particular class orsection thereof has access, whether by nghtor by tolerance The number of persons entenng the place is irrelevant The quantity test is notthe nght one
(2)In this case the pnmary facts are such as to lead to the conclusion thatthe general public had no right toentertheport ana that access to the port was not allowed by tolerance as far as the general public was concerned
(3)Thereisnoreason tointerfere with theorder for costs in favour οϊ the respondents,ιe thesuccessful litigant Appeal dismissed withcosts in favour of the respondent-third party 2 No order as to costs between appellant and ιespondent plaintiff 35 Casesreferred to Kynacouv Kortas and Sons Ltd
(1981)1 C L R 551, Mamas ν TheFirm *ARMA» Tyres
(1966)1C L R 158, Achiliidesν Michaelides
(1977)1C LR 172, Wattv Thomas [1947] A C 484, 40 Epifamou ν Hadjigeorghtou
(1982)1C L R 609, 345 Ma\ro\«uniotis \. CeorghiuuandOthers
(1989)Polycarpouv. Polycarpou
(1982)1C.L.R. 182. Harrison v.Hill
(1932)S.C.(J) 13; Charalambousv. Police.
(1982)2 C.L.R. 134, NeocleousandAnotherv. Chnstodoulou
(1979)1 C.LR.714, Papadopoulos ν Stavrou
(1982)1 C.L.R.321, 5 O'Bhanv. TrafalgarInsuranceCompany Ltd [1945] 78Lloyds List Law Reports223, TalvonLtd ν Soteriou (19S2) 1 C.L.R 777, Miltiadousv. Miltiadous
(1982)1C.L.R 797; Efthymiadou ν Zoudros
(1986)1 C.L R.
- 10 Appeal. Appeal by defendant against thejudgment of the DistrictCourt of Limassol (Fr.Nicolaides, S.D.J.) dated the 31st January, 1986 (Action No.5869/80)whereby hisclaimagainst thethirdparty No. 2 in the action, for a declaration that the latter are bound to 15 indemnify him in respect of his liability against the plaintiff was dismissed. C. Erotoritou,for the appellant-defendant. A. Neocleous, for therespondent-plaintiff. 20 No appearance for respondent-thirdparty
- St Erotocritou,for the respondent-thirdparty
- Cur. adv. vult. SAWIDES J: The judgment of the Court will be delivered by Mr.Justice Boyadjis. BOYADJIS J: The present appeal filed by the appellant- 25 defendant in the actionbelow, is directed against thejudgment of the District Court of Limassol, dated 31 January, 1986, whereby theclaim of theappellantagainst therespondent,thirdparty No.2 in the action, for a declaration that the latter are bound, qua insurers, to indemnify the appellant in respect of his liability 30 towards the plaintiff in the action and for other consequential relief,was dismissed with costs. The defendant's liability towards the plaintiff in the present action, in respect of which the defendant was claiming the 346 1C.L.R. Ma*rovouiuotis Λ .Georghmu and Others BoyadjisJ. aforesaid indemnity relief, was a liability in negligence for the personal injuries which the plaintiff had sustained in a collision which had occurred within the area of the new port of Limassol, involving thedefendant's motorcarwhich was atthetimeinsured 5 with thirdparty No 2, anda motorcycle driven by thirdpartyNo 1, carrying the plaintiff as a pillion nder The defendant had deniedanyliability for thecollision andhadblamedthirdpartyNo 1 for it He consequently filed a statement of claim against third party No 1 claiming indemnity and/or contnbution equal to his 10 share in the blame which resulted to the sub-judice collision So far, so good By instituting third party proceedings against third party No 1 the defendant had taken a correct and convenient procedural step which is usual in similar cases as well as commendable He proceeded, however, to issue third party 15 proceedings against third party No 2 claiming indemnity against them underacontractof insurance, thusintroducinga completely different issuewhich was totally unconnected with the factual and legal issues intheaction between all other parties thereto As the matterhas notbeen raised orargued before us,we donotsay that 20 this course is impermissible under the relevant Civil Procedure Rules What we most certainly say is that the defendant chose to take an extremely inconvenientcourse which should be avoided in the future Bethatas itmay, on29 March1985,after several witnesses had 25 testified mostly on the issue of liability for the collision the quantum of special and general damages payable to the plaintiff was agreed at £7,500 on a full liability basis The issue of liability was also settled The defendant admitted liability towards the plaintiff andas between thedefendant andthirdparty No 1it was 30 agreed to be shared equally As it appears from the record, the hearing then proceeded on what all counsel had described to be the only remaining issue, ιe «the issue between Defendant and Third Party No 2 whether the accident occurred in a public or private place» Theissuewas thusdefined evidently inviewof the 35 common understanding of all the parties thatthe liability of third party No 2 to the defendant under their contract of insurance depended onwhetherthearea of thenewportof Limassol, where the accident had occurred, was a road within the meaning of section 2
(1)of theMotorVehicles and RoadTraffic Law (Law No 40 86/72) ornot BoyadjisJ. Mavrovnuniotis v. Ctorghiou andOthers {1989) After hearing the evidence which all parties to the action had adduced on thisissueandafter consideringtheauthoritiescited to itinthelightoftheargumentsofcounsel,thetrialCourtreachedits conclusion on the matter.Itruled that the newLimassolportisnot a road within the definition of the law. Consequently, the defendant's claim against third party No. 2 was dismissed with costs. 5 Thedefendant nowseekstoannulthisdecisionofthetrialCourt and the plaintiff who wasjoined as respondent inthe defendant's appeal, now joins forces with him, whereas third party No. 1, 10 though also joined as respondent, did not take any part in the appeal. The grounds of appeal and the reasons therefor, set out in the Notice of Appeal, are the following: «1.The decision ofthetrialCourt waserroneous inthatitis 15 not warranted bythe evidence adduced.
- The decision of the trialCourt was erroneous inthat itis against the weight of the evidence.
- The trial Court misunderstood and/or misaprehended the evidence and/or drew wrong and arbitrary inferences 20 therefrom and/or gave wrong and/or unsatisfactory reason for itsinferences and conclusions.
- The trial Court relied on unreliable and unsatisfactory and biased evidenceanddisregarded and/orrefused toacton evidence which wasreliable, truthful and independent. 25 5.ThelearnedJudgewronglyadmitted theevidenceofthe Port Master Mr. Ghighis and the guard Mr. Yiannakis Demetriou as independent evidence, regarding the statusof the New Limassol Port.
- The trial Court treated the evidence of the plaintiff, the 30 defendant and third party 1 in an unfair way compared with the way ittreated the evidence of third party
- 7.The learned Judge was wrong inlaw in holding that the new Limassol Port isnot a road within the definition of the law. 348 35 1 C.L.R. Mavruvuuniotis v.Ceorghinu andOthers BoyadjisJ. 8.ThelearnedJudgewaswronginlawandinfactin finding that the public has no access tothe area of the New Limassol Port. 5
- The learned Judge was wrong in interpreting the provisions of CAP333 in that he did not, inter alia, take into account sufficiently and/or at all the intention of the legislature.
- The learned Judge wrongly exercised his discretion in awarding toThird Party 2their legal costs.» 10 Duringthe course of the hearing ground 9was abandoned. Theargumentsputforward bylearned counsel forthe appellant inpresenting hiscasebefore us,coveringtherebyallthe aforesaid groundsof appeal, may be conveniently grouped as follows. (A)Argumentsdirected toconvince usthatthe trialCourt made 15 awrong evaluation ofthe credibility ofwitnesses inpreferring the evidence of the witnesses calledbythird party No.2and rejecting that of the witnessescalled byall the other sides in the action and made, as aresult, wrong findings on primary facts. (B)Arguments directed toconvince usthat the trial Court drew 20 wrong inferences from theprimary factsasfound byit. (C) Arguments directed to convince us that the trial Court misapplied the'law to the facts of thiscase. (D)Arguments against the order forcosts. Learned counsel for the respondent-plaintiff adopted the 25 arguments put forward on behalf of the appellant. We shall first examine the arguments falling under the first aforesaid group. GROUPA Appellant's attack ismainly directed against the acceptance by 30 the Court of the evidence of the first witness called by the respondent-third party No. 2, namely loannis Ghingis and the rejection of the evidence of D.W.2 Michalakis Kyprianou. The onlyreasonputforward againstthecredibilityofloannisGhingisis his alleged partiality in the subject-matter of the dispute, and the 35 onlyreasonagainsttherefusal oftheCourttorelyonthe evidence of Michalakis Kyprianou is the fact that he is an independent 349 Bovadjis.) \1a\ro\(inni(itis\ (.enrghiou and Others
(1989)witness loannis Ghingis is the Port Master and Michalakis Kyprianou is a senior officer in the office of the Munistry of Commerce and Industry which is housed within the area of the new port of Limassol The submission that the evidence of witness loannis Ghingis 5 should beviewedwith suspicion orreservation onthesole ground of lack of impartiality emanating from the fact that, being the person primarily responsible for the strict compliance by his employees with the existing regulations restricting access by the public intothearea of theport,hehadaninterestinalleging thatin 10 practice such regulations were being properly adhered to, is not justified and we reject it loannis Ghingis and Michalakis Kyprianou are equally independent witnesses The evidence of the former was preferred to that of the latter because many material allegations thereinwere corroboratedby theevidence of 15 several other witnesses called by parties to the action otherthan therespondent-thirdpartyNo 2,includingthedefendant himself Be that as it may it has been said time and again that the principles upon which thisCourtdecides appeals directed against findings of the trial Court mainly based on the credibility of 20 witnesses are well settled, that matters relating to credibility of witnesses fall pnmanly within the province of thetrialJudge who has the opponunitytosee andhearthewitnesses, andthatitmust be shown that the trial Judge was wrong in evaluating the evidence and the onus is on the appellant topersuade the Court 25 thatthatisso See,for instance,NicolasKynacouν A Kortas&Sons Ltd
(1981)1 C L R 551 Thefindings of thetnalCourtwillnotbe disturbed onappeal,unless theappellantcansatisfy theCourtthat the reasoning behind such findings is unsatisfactory, or thatthey are not warranted by the evidence when considered as a whole 30 Sofochs Mamas ν The Firm «ARMA»Tyres
(1966)1CL R 158, and Zenon Achilhdes ν VyronMichaehdes
(1977)1C LR 172, where the following pnnciple enunciated in Watt ν Thomas [1947] AC 484 (H L) was adopted «When a question of fact has been triedby ajudge without 35 a jury and itisnotsuggested thathehasmisdirected himself in law, anappellatecourtinreviewingtherecordof the evidence should attach the greatest weight to his opinion,because he saw and heard the witnesses, and should not disturb his judgment unless itis plainly unsound The appellate court is, 40 350 1 C.I..R. 5 MavroxHiniutis v. Ci'iiriihiuu anil Others Boyadjis J. however, free to reverse hisconclusions ifthe grounds given by him therefor are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantange ofhavingseen and heaid the witnesses or has failed to appreciate the weight and bearing of circumstances admitted orproved». Useful reference onthisaspect ofthecasemaylastlybemade to the case of Michalakis Epifaniou etc. v.Andreas Hadjigeorghiou 10
(1982)1 C.L.R. 609, and to the following extract from the ,judgment of Stylianides, J. in Maroulla Polykarpou v. Sawas Polykarpou
(1982)1C.L.R. 182atpp. 194, 195: 15 20 25 30 «Itisthe practice of anappellate Court not tointerfere with the verdict of the trial Court which had the advantage of hearing the witnesses and watching their demeanour unless some very strong ground isput forward establishing that the verdict isagainsttheweightoftheevidence.Thatthisisamost salutarypracticetherecatibe nodoubt, asastudyofthe notes of evidence, even when taken with the utmost accuracy. cannot possibly convey to the mind of a Judge the same impression which the oral examination of the witnesses and their demeanour under that process would have made upon the same Judge, ifithad been hisdutytohear the case in first instance. It is for the appellant to show that the conclusions arrived at by the Court, appealed from, are erroneous. In a case wherethe matter turnsonthe credibilityofwitnesses,itis obvious that the trial Court isin a far better position to judge the value of their testimony than we are. We are, of course, not oblivious of the fact, that quite apart from manner and deneamour, there are other circumstances which may show whether a statement is credible or not. and we should not hesitate to act upon such circumstances, if, in our opinion, theywarranted our intervention». Inthisappeal we have notbeen persuaded that there existsany 35 valid reason for this Court to interfere with the evaluation of the evidence and the findings of fact made by the trial Court. On the contrary we are satisfied that such evaluation and findings were notonlyreasonably open tothetrialCourttomake,buttheywere fully warranted bythe totalityof the evidence. 351 \ Hojadjis J Ma*rovouniotis % Georghiou and Others
(1989)GROUPS ΒANDC We find it convenient, in the light of the manner in which the case haw been argued before us, to examine the appellant's arguments falling under the aforesaid Groups Β and C together Put very shortly, the main submission of the appellant is that, on 5 the evidence as accepted by it,thetnalCourtoughttohave drawn the inference thatthepublic had access tothearea of theportwith thetoleranceof theportauthontieswithinthepnnciplelaid down in Harrison ν Hill
(1932)S C (J) 13. adopted in loannis Charalambous ν The Police
(1982)2 C L R 134, and that, 10 though purporting to rely on the aforesaid two decisions, thetnal Court misconceived and misapplied the pnnciple ennunciated therein Concerning the evidence which thetnalCourthad accepted as true and from which it ought tohave drawn theinference thatthe 15 public had access to the area of the port, if not for any other reason, by reason of tolerance by the port authorities, learned counsel for the appellant drew out attention to several extracts from the evidence of witnesses, including thatof loannis Ghingis, whom the tnal Court declared to be credible and truthful, 20 according towhich not every person who passes thegate leading to thearea of the port is infact stopped and checked by the guard who is indispensably on duty there, and that a large number of such persons who are government and other employees pernamently working within the area of the port, and who are 25 known tothe guards tobe so employed, are notinfact stopped or asked as to the reason of their seeking entry inside the port area Though the tnal Court did not make a specific finding on this matter,we shall proceed toexamine theappellant'ssubmission on thebasis,interaha, thatthismatterwhichhasnotbeendisputedby 30 counsel for the respondent-third party No 2, is in fact common ground Relying on thisfact, counsel for theappellant submittedthatthe existingregulations expresslyrequirethattheguards ondutyatthe gates of theportshouldstopandcheckeverypersonseekingentry 35 into the port area, and thattheir admitted failure to carry out this check at least as far as permanentemployees within the port are concerned, amounts in itself to tolerance by those exercising control of the port, as envisaged by the authonties already cited Counsel concluded his submission on this aspect of the case by 40 352 1 C.L.R. Matroxmntotis v. Georghiou andOthers BoyadjisJ. sayingthatthenumber ofpeople entering theport everyday isso large and the diverse reasons for which they qualify for entrance therein are so numerous, thattheonlycorrect thingtoinfer isthat the public at large and not onlya restricted classof persons enter 5 the portbythe tolerance ofthe port authorities. Section 2
(1)ofLaw No.86 of 1972, reads as follows: 10 «'Road' means any road, street, square, pathway, open place and space to which the public has access and includes any bridge, culvert, ditch, embankment, drain, causeway or supporting wall used inconnection with aroad». This definition was judicially considered in Charalambous v. ThePolice(supra), referred to by both sides and cited by thetrial Court in its judgment. The issue was whether an open space in front of the house of the appellant, where the collision had 15 occurred, whichwasacontinuation ofanon-asphalted road, used by pedestrians, animals and traffic, was a «road» within the aforesaid definition ornot.On thefactsofthatcaseitwasheldthat itwas.Itwaspointedoutthattheessentialcharacteristicofa«road» asdefined insection 2
(1)of Law86of 1972is«publicaccess»and 20 thatitisirrelevantwhether the area isprivate land.TheCourt then proceeded to examine the meaning of «public access» deriving guidance from thedecision inHarrisonv.Hill(supra),uponwhich the present appellant mainlyrelies,where aprovision with regard to«publicaccess»inexactlysimilartermswasconsidered.The law 25 is quite plainly laid down in the following extract from the unanimous judgment of the Supreme Court, delivered by Stylianides,J. atpp. 139-141: 30 35 40 «Thequestion that poses iswhether the placethe appellant wasdriving on wasa road within the meaning of this section. This isa question of mixed law and fact. The place were the accident occurred wasnota road inthe ordinary sense of the word. Aprovision with regard to 'public access' inexactly similar terms was considered in the Scottish case of Harrisonv.Hill
(1932)S.C. (J.) 13. In the course of his judgment the Lord Justice-General, Lord Clyde, said atp. 16: 'Itisplain,from thetermsofthedefinition, thattheclass of road intended iswiderthan the classofpublicroads to which the public has access in virtue of a positive right belongingtothepublic,andflowing eitherfrom statuteor 353 RnjadjisJ. Mavrotoumotis * Georghiou and Others
(1989)from prescriptive user Aroadmaythereforebe withinthe definition
(1)although it belongs to the class of private roads and
(2)although all thatcan be said with regard to itsavailability tothepublic isthatthepublic 'hasaccess'to it 1 think that, when the statute speaks of 'the public' in 5 thisconnection whatismeantisthepublicgenerally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself, were it otherwise, the definition mightjust aswell have included 10 allpnvate roads aswellasall publichighways I thinkalso that, when thestatutespeaks of thepublichaving 'access' to the road,whatis meantis neither(atoneextreme) that thepublic has apositive nght of itsown toaccess, not(at the other extreme) that there exists no physical 15 obstruction, of greater or less impenetrability, against physical access by the public, but thatthepublic actually and legally enjoys access to it Itis, I think,acertain state of use or possession thatis pointed to There mustbe, as matter or fact, walking or driving by the public on the 20 road, and such walking or dnving must be lawfully performed - thatis tosay, mustbe permitted or allowed, either expressly orimplicitly, by the person orpersonsto whom the road belongs I include m permission or allowance thestateof mattersknown innghtof way cases 25 as the tolerance of a proprietor' Lord Sands said at ρ 17 'In my view, any road may be regarded as a roadtowhich the public have access uponwhich membersof thepublic are to be found who have not obtained access either by 30 overcoming a physical obstruction or in defiance of prohibition express or implied' Thissimilarquestion was consideredandtheaforesaid dicta of the Scottish Judges were applied by the English Courts for the last 40 years, starting from the case of Bugge ν Taylor, 35 [1941] 1 KB 198 In Buchanan ν Motor Insurers' Bureau, [1955] 1 All Ε R 607, McNair,J ,pointedoutthatthepublicfor thispurpose is the general public rather than people who have a specific 354 I C.L.R. Mavrovouniotis ν Georghiou and Othtrs Boyadjis J. concern with walking on the area in question (See also Houghton ν Scholfield, [1973] RΤ R 239 (Q Β D) Regma ν Shaw, [1974] RΤR 225 (CA ),Deacon ν AT (aminor), [1976] RΤR 244, Cox ν White, [1976] RΤ R 248) 5 10 15 The best way of showing that a member of the general public has access to a road with at least the tolerance of the owner of theproperty istoshow thata member of the public does infact so use it In theenditcomesdown toasimple question of fact asthe law is quite plain It is irrelevant whether the area is private land Itissufficient if itis an open space orplace towhich the public, but nota particular class or section of thepublic, have access not by leave but either by tolerance or habitually or without express prohibition and without having to overcome physical obstacles placed by the owner or theperson entitled to possession» It follows th't, if, on the facts as found by the trial Court, it is established thatthe area of the new port of Limassol, though itis privateandnotpublic land,itisaplacetowhich thepublic,butnot 20 only a particular class or section thereof, have access «by tolerance» of the port authonties, the port is a «road» within the meaning of the Law Itbecomes pertinentatthisjuncturetcrefer tothefacts as found by the trial Courtandthen toconsider whether «tolerance» within 25 the meaning attnbuted to this word inthe above authonties may reasonably be inferred therefrom We might add that we as appellate Court,are inasgood apositionasthetrialCourt,todraw our own inferences from proven primary facts, if we are satisfied that the tnal Courtfailed to draw the correct or all the inferences 30 warranted from such established facts See in this respect Neocleous and Another ν Chnstodoulou
(1979)1 C LR 714, and Papadopoulos ν Stavrou
(1982)1C LR 321 The primary facts found by thetnal Courtare the following 35 «Although aconsiderable numberof persons enterthePort daily, such persons do so on business The reasons of their visit to the Port may be different for every person entering Some ofthemvisittheportonbusiness regarding importsand exports and go to the Customs Offices or the Offices of the Ports Authonty Others visit the offices of the Ministry of 355 BoyadjisJ. Mavrovouniotisv. Georghiou andOthers
(1989)Commerce and Industry and even passengers visitthe dutyfree shops in order topurchase goods.Allofthem, however, fall within the same category. They are persons having business in the area of the Port and cannot be considered as general public. Nobody isallowed in unless he has business 5 within the area of the Port and the casual by-passer is not allowed in.Amateur fishermen can beseen there,butassoon astheyareseen bytheofficials theyareremoved.Thismeans that they are trespassers who entered without permission. Furthermore, the area of the Port isfenced and well guarded 10 onatwentyfourhourbasisandtherearesignsattheentrance ofthePortindicatingthatthereisacontrolbefore enteringthe gates». Neither from the facts set out in the above extract from the judgment of the trial Court, nor from the manner in which those 15 guarding the gates of the fenced area of the port are in practice performing theirdutiesincheckingentry intothe area ofthe port, to which we have already referred, can itreasonably be inferred that the public, as opposed to a particular section thereof, has accesstotheportbythetolerance oftheportauthoritieswhohave 20 the area of the port under their control under the law and regulations.Nothing that hasbeen said inHarrisonv.Hill(supra) regarding tolerance isof any help to the appellant in view of the circumstances of the presentcase.Before anyperson steps inside thefenced area oftheport hehastoovercomethephysicalobstacle 25 placed there by the authority entitled topossession thereof, i.e. the gateand the guard whoisthereallthetimeendowed withpower to stop all persons seeking admittance and enquire as to their discretion toallowortorefuse entrance therein.Theseare matters totallyinconsistentwiththetolerancereferred tointhetwojudicial 30 authorities relied upon by the appellant, in connection with the access which the public must have over a private place before suchplace isdeemed tobea«road»withinthemeaningofsection 2
(1)of Law 86 of 1972. To use the words of Lord Clyde-in Harrison v. Hill(supra), the public does not «actually and legally 35 enjoy accesstoit». Wewould liketoadd that itisimmaterial thatalargenumberof persons are allowed to enterthe port everyday.Allthese people have common between them their occasion for some kind of business within the area of the port. They are, in this respect, a 40 special classof members ofthepublic,whereas,when the statute 356 1C.L.R. Mavrovouniotisv.Georghiou and Others Boyadjis J. speaks of «the public» in this connection, it means the public generally. That the «quantitytest» isnotthe right test isclear from the following words of Mr.Justice Stable in O' Brien v. Trafalgar InsuranceCompany Ltd.[1945]78LloydsListLawReports223, 5 C.A., atp.225: 10 15 20 «Idonotthinkthatthequantitytestistherightone.Anarea which, we willsay, wasopen, confined tothepassage of, we willsay, the troops of a particular regiment ordivision, could not be said to be accessible to the public, because the individuals having access to the place, although very numerous, were therenotasmembersofthepublic,the man in the street, the casual passer-by, but were there because theybelongedtotheparticularunitorcorps,andhere nobody was on thisplace unless either they were employed in some capacity or another in the activity prevailing in this place or unless they had some definite, disclosed business, and that classofperson, verynumerous though itwasand averywide category of persons, does not, in my view, come within the meaning of the word 'public' as used inthe Road Traffic Act, 1930». GROUPD Counselfortheappellantarguedthat,inawardingtothirdparty No.2theirlegalcosts,thetrialCourthasexercised itsdirection on the matterwrongly. Third party No. 2 wasthesuccessful partyin 25 theactionvis-a-vistheappellant-defendant, whochosetoinstitute against them the third party proceedings. Yet, itissubmitted that nocostsshouldbeawarded tothemonthefollowing tworeasons. First, because, the appellant's claim against them involved the determination ofanovellegalpoint, andsecondly,becauseofthe 30 conductofthepartiesduringtheseveralstagesoftheproceedings. Withregardtothefirstreason, weareunabletoagreethatthecase involvedthedetermination ofanynovellegalpoint.Withregardto thesecond reason,theappellantisnotsuggestingany misconduct on behalf of the successful third party No. 2 during the several 35 stagesoftheproceedingsbelow.Hesimplyreliesontheallegation thatthe appellant himself didnothingtodelaytheproceedings.In support of his arguments he referred the Court to Talyon Ltd. v. Panayiotis Soteriou
(1982)1 C.L.R. 777, Nitsa Miltiadous v. KritonMiltiadous
(1982)1 C.L.R.797, and Poly Efthymiadou v. 40 GeorghiosZoudros
(1986)1C.L.R.341. 357 BoyadjisJ. Mavrovouniotis\. Georghiou and Others
(1989)We see no reason whatsoever to interfere with the mannerin which the trial Court exercised its discretion in awarding costs to the successful litigant, i.e. to third party No. 2 against the unsuccessful defendant. We are infact satisfied thatthe Courtdid the right thing in the circumstances. In the result, the appeal is dismissed, and the judgment of the trialCourtisaffirmed. Theappellant-defendant isadjudged topay the costs of the appeal totherespondent-thirdparty No.2. There should be no order as to costs between the appellant and the 1 ( Ί respondent-plaintiff. Appeal dismissed. Order for costsas above. 358 5