By George Coucounis
A COMMUNITY Council has the duty, within the boundaries of the community and to the extent of its financial capabilities, to accomplish its lawful duties which are provided in the Communities Law, L.86(I)/1999, such as water supply, cleanness and public lighting, operation of sewerage systems, the protection of proper appearance of the community and the environment, the collection of refuse, the naming of a street or a public square with the approval of the District Officer, the regulation of the exercise of a profession, a business and works, the prohibition of animal and bird breeding, the establishment of a cemetery, as well as to carry out any other public work for the development of the community and the protection of public health.
Within this framework, the Council has competencies and powers to enter into loans, to establish either on its own or in co-operation with any other Community Council or Municipality small industrial areas, to establish and regulate community markets, to create, maintain and improve parks, gardens, sports centres, to plant trees on public roads and public areas and to place protective railing, to care for the improvement of the state of the roads, to impose annual service tax and to promote the community either locally or abroad. Any omission to fulfil a lawful duty or any negligence creates a liability upon the Community Council and an obligation to compensate the person who suffered loss or damage.
The Supreme Court in a judgment issued on October 4, examined the claim of an owner of a house, which was damaged due to the alleged negligence or breach of the statutory duty of a Community Council. The branches of a tree planted on a public road fell on the roof of the house and caused damages.
The complainant alleged that the Community Council was responsible, since it had not cut the branches or maintained the tree. The Council denied that it had been negligent or that it had committed any breach of its statutory duties, alleging that the branches were cut due to a storm.
However, the owner insisted that the Council omitted to cut the branches above the roof of his house, allowed the tree to rot, making it dangerous and did not take any preventative measures to avoid the damage, invoking the rule of res ipsa loquitur, i.e. that things speak for themselves. The Court of First Instance held that the rule did not apply and decided that there was no breach of statutory duty by the Council, as well as that it was not proved by the owner that the tree was dangerous due to being rotten or that the Council knew or ought to have known of this danger which was not reasonably predictable and dismissed the action.
The Supreme Court in its judgment emphasised that the civil wrong of negligence is different to the establishment of breach of statutory duty and that the correct pleading should include details and refer separately to the two actionable rights. It added that the principle of res ipsa loquitur constitutes an evidence rule and not a principle of substantive law and that in Cyprus it was established by article 55 of the Civil Wrongs Law, Cap.148.
This principle applies in cases where the claimant lacks knowledge or means of knowledge regarding how the damage was caused, although the facts speak for themselves, giving the Court the ability to define liability. Reference to the details of the negligence of the Council in connection with the evidence adduced by the owner to prove his claim did not allow to alternatively invoke the above principle.
Furthermore, the Court held that article 83(ia) of the Communities Law gives the Community Councils the power to plant trees and place protective railing, but it does not create any strict liability upon them in the event of a damage caused without previously proving that the Council omitted to maintain the trees or committed any other negligent act or omission. In the particular case, the Court decided that the owner did not prove the reason why the branch of the tree fell on his property, the principle of res ipsa loquitur could not be applied and the onus of proof remained upon the shoulders of the owner. Consequently, it dismissed his appeal.