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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1983) 3 CLR 505
1983 July 12
[A. LOIZOU, DMETRIADES, LORIS, JJ.]
PHOTOS PHOTIADES & CO. LTD.,
Appellants-Plaintiffs,
v.
GUARDIAN ROYAL EXCHANGE ASSURANCE LTD.,
Respondents-Defendants.
(Civil Appeal No. 6437).
Insurance—Against loss or damage by theft—Alleged loss by breaking and entering and stealing—Pleadings—Plaintiff put to strict proof—Onus and standard of proof—No misdirection as to standard of proof in this case which was decided on the basis of credibility of witnesses.
The appellants-plaintiffs claimed the sum of £8,944.415 mils from the respondents, under a policy of insurance being the value of goods which were stolen from their bonded warehouse at Yerolakkos.
The defendants denied all material facts alleged by the plaintiffs and put them to the strict proof of their allegations.
The trial Court dismissed the claim having held that the evidence adduced by the plaintiffs viewed in the light of the criticism advanced fell short of the required standard of proof; and that the plaintiffs failed to prove the loss. Hence this appeal by the plaintiff. Counsel for the appellant contended that the trial Court misdirected itself in two ways:
(a) It erroneously dismissed the claim of the appellants on the ground that they failed to prove the loss subject matter of their action against the respondents, having regard to the totality of the evidence before them and the degree of proof required for such issue.
(b) The very strict standard of proof applied by it was erroneous and wrong in law and was tantamount to the standard of proof beyond reasonable doubt applied in criminal cases.
Held, (1) that the burden of proof, in such cases as the one under consideration, is put on the plaintiffs once the allegations in the statement of claim are denied and pursued at the trial by the cross-examination.
(2) That a perusal of the record shows that the whole case was decided by the trial Court on the conclusions they reached on the basis of the credibility of witnesses whom they had the opportunity of hearing and whom obviously they did not find truthful and reliable; that there has been no misdirection as to the standard of proof; that that being so this Court cannot but dismiss this appeal as the principles upon which an appellate Court can interfere with findings of fact based on the credibility of witnesses and conclusions drawn thereon have not been satisfied so as to enable it to act accordingly in this appeal.
Appeal dismissed.
Cases referred to:
Regina Fur Co. Ltd. v. Bossom [1958] 2 Lloyd's Rep. 425.
Appeal.
Appeal by plaintiffs against the judgment of the District Court of Nicosia (Nikitas, P.D.C. and Fr. Nicolaides, Ag. S.D.J.) dated the 31st March, 1982 (Action No. 361/77) whereby their action for £8,944.415 mils money claimed under a policy of insurance was dismissed.
E. Lemonaris, for the appellants.
G. Pelaghias, for the respondents.
A. LOIZOU J. gave the following judgment of the Court. This is, an appeal from the judgment of the Full District Court of Nicosia (S. Nikitas, P.D.C. & Fr. Nicolaides, Ag. S.D.J.) by which they dismissed the action of the plaintiff company for £8,944.4 15 mils, money claimed under a policy of insurance issued to them on the 6th April, 1974, by the respondent insurance company through their agents in Cyprus.
The ground upon which the plaintiffs' claim was dismissed was summed up in the last paragraph of the judgment of the trial Court where they say:
"The evidence adduced by the plaintiffs viewed in the light of the criticisms advanced, falls short of the required standard of proof. It is our finding that the plaintiffs failed to prove the loss".
The facts are briefly these. The stock and contents of the appellants' private bonded warehouse at Yerolakkos were insured under this policy for the sum of £67,000.- against "loss or damage by theft following upon or followed by forcible and violent entry to or exit from the premises".
On July 26th, 1974, during the currency the of the policy, the said warehouse of the appellants was, according to them, broken into and a quantity of goods, equal to the amount claimed, were stolen. The insurers repudiated liability, raising several defences, they denied all the material facts alleged by the plaintiffs on which they rested their claim and put the plaintiffs to the strict proof of their allegations. They also raised other defences, but as the case was determined solely on the question of proof of the loss claimed, we shall confine ourselves to this issue only.
The trial Court in its judgment referred to the evidence adduced and summed up the testimony of each witness for the plaintiffs. They then directed correctly in our view their minds to the relevant principles of law by referring to the case of Regina Fur Company Ltd., v. Bossom, [1958] 2 Lloyd's Rep. 425, where Lord Evershed M.R. said the following:-
"I think that a defendant—whether he is an underwriter or any other kind of defendant—is entitled to say, by way of defence, 'I require this case to be strictly proved, and admit nothing.' Where such is the defence, the onus remains throughout upon the plaintiffs to establish the case they are alleging. Where such is the form of the pleading, it is not only not obligatory upon the defendants but it is not even permissible for them to proceed to put forward some affirmative case which they have not pleaded or alleged; and it is not, therefore, right that they should, by cross-examination of the plaintiffs or otherwise, suggest such an affirmative case. The defendants are acting correctly if they follow the course adopted in this case—that is, so to challenge, at each point, and by proper evidence, where it is admissible, and by cross-examination, the case which the plaintiffs seek to make good".
No doubt the burden of proof, in such cases as the one under consideration, is put on the plaintiffs once the allegations in the statement of claim are denied and pursued at the trial by the cross-examination.
Counsel for the appellants has argued that the trial Court misdirected itself in two ways: - (a) It erroneously dismissed the claim of the appellants on the ground that they failed to prove the loss subject matter of their action against the respondents, having regard to the totality of the evidence before them and the degree of proof required for such issue. (b) The very strict standard of proof applied by it was erroneous and wrong in law and was tantamount to the standard of proof beyond reasonable doubt applied in criminal cases.
We do not accept either submission. A perusal of the record, in our view, shows that the whole case was decided by the trial Court on the conclusions they reached on the basis of the credibility of witnesses whom they had the opportunity of hearing and whom obviously they did not find truthful and reliable.
It is our conclusion that there has been no misdirection as to the standard of proof. Apparently the style followed by the trial Court in their judgment wherein they refrain from saying in clear words that they did not believe the witnesses, gave rise to this argument. The whole tenor, however, of the judgment, the analysis made of the evidence adduced and the reasons given by them for the conclusions they arrived at, have led us to the conclusion that the finding of the trial Court was justified. That being so we cannot but dismiss this appeal as the principles upon which an appellate Court can interfere with findings of fact based on the credibility of witnesses and conclusions drawn thereon have not been satisfied so as to enable us to act accordingly in this appeal.
For all these reasons this appeal is dismissed with costs.
Appeal dismissed with costs.