VASSILIKO CEMENT ν. STRATIS AND SOLEAS
(1988)1 CLR 514 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1988)1 CLR 514 1988 September 9 (MALACHTOS, STYLIANIDES, PIKIS, JJ.) VASSILICO CEMENT WORKS LTD., Appellants, v.
- STRATIS AND SOLEAS GENERAL STEEL CONSTRUCTION LTD.,
- COSTAS KARAMANIS, Respondents. (Civil Appeal No. 7104). Vicarious liability-Employee engaged in work carried out by independent contractor engaged by his employers-When responsibility for acts of such employee passes from his general employer to another-In the circumstances of this case, responsibility did not pass on to such independent contractor. Damages-General damages for personal injuries-Injury to left arm of worker aged 20 leaving him with a permanent disability, i.e. pain, stiffness and weakness after exerting himself-Award of £1,100, increased to £1,
- Appeal-General damages-Interference with, on appeal-Principles applicable. The second respondent's (plaintiff in the action) employers (the first respondents) and another firm were engaged by the appellants to install a chimney at the latters' plant. The job was supervised by one Kendal an employee of the first respondents. The second respondent was injured whilst engaged as a worker in the said job, by reason of the negligence of one Garivaldinos, who, at the time, was an employee of the appellants. The trial Court found the appellants liable in negligence and awarded to respondent 2 £1,100 for general damages for the injuries and his aforesaid incapacity. Hence this appeal. The second respondent cross-appealed, complaining that the general damages awarded were inordinately low. The main argument of counsel for the appellants was that liability for the negligence of Galivaldinos should be born by the first respondents. Held, dismissing the appeal and allowing the cross-appeal:
(1)Though the trial Court did not identify the basis upon which the appellants were held liable in negligence, i.e. whether directly or vicariously, nonetheless, the inescapable inference from the judgment is that they were held liable for an act of negligence of Garivaldinos, their employee. Moreover, the case for the plaintiff was not fashioned on a breach of a duty of care owed by the appellants to him as employers.
(2)For responsibility to pass the entire and absolute control of the employee must be transferred to the hirer. There is in every case a strong presumption that responsibility for the acts of the worker remains with the general employer. In this case the evidence tends to indicate that the worker remained, for all relevant purposes, the employee of the appellants.
(3)In the light of the suffering of the injured worker, his residual incapacitation and his youth, the award was unduly low. It is hereby increased to £1,
- Appeal dismissed with costs. Cross-appeal allowed. Award increased from £1,325 to £1,
- Cases referred to: Kykon.Ltd. v. Demetriou and Another
(1982)1 C.L.R. 453; Bhoomidas v. Port of Singapore Authority [1978] 1 All E.R. 956; Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd. and McFarlane [1946] 2 All E.R.
- Appeal and cross-appeal. Appeal and cross-appeal against the judgment of the District Court of Limassol (Korfiotis, D.J.) dated the 16th December, 1985 (Action No. 2817/82) whereby defendants 2 were ordered to pay to the plaintiff the sum of £1325.- as damages for the injuries he sustained in the course of his work at the cement factory of defendant No.
- P. Polyviou, for the appellants-defendants No
- R. Michaelides for respondents-defendants No.
- D. Aristidou, for the respondent No. 2 plaintiff. Cur. adv. vult. MALACHTOS, J.: The judgment of the Court will be given by Pikis J. PIKIS J.: The appellants were held liable in negligence for the injuries suffered by Costas Karamanis, an employee of respondents 1, sustained in the course of his work at the cement factory of the appellants. His employers and another engineering firm (Karamontanis) were engaged by the appellants to install a chimney at their plant, a process involving the gradual elevation of the chimney components and their fitting and installation at a height 30-40 meters above the ground. At the time of the accident Costas Karamanis, respondent 2, was stationed on a platform near the chimney and was charged with receiving parts of the chimney elevated by a mechanical winch and their subsequent fitting and adjustment into the chimney structure. While in that position he was struck by the rope of the winch that elevated parts of the chimney in consequence of which he suffered the injuries that will be referred to later in this judgment. It is common ground that the wire rope was unduly stretched and in consequence was derailed from its position striking in the process the injured party. The mechanical winch was operated by a certain Garivaldinos, an employee of the appellants, the owners of the plant who seemingly also collaborated in the process of installation of the chimney. The process of elevation of the chimney parts was carried out under the direction and supervision of John Kendal, an employee of the first respondents. In his own testimony, John Kendal stated he was coordinating the work carried out by all concerned in the installation of the chimney. Garivaldinos and others engaged in this process of elevation of chimney parts were under instructions not to embark on raising components unless specifically signalled to do so by John Kendal. For the elevation to be safe there should be coordination between the actions of the operator of a mechanical and a manual winch. As the mechanical winch began lifting parts, the operator of the manual winch should gradually release sufficient rope to make the process safe by avoiding undue pressure on the wire rope available to the operator of the mechanical winch. The evidence before the trial Court conclusively established and so the Court found that in the particular instance Garivaldinos set in motion the mechanical winch without directions from the supervisor of the process, namely, John Kendal and consequently at a time when the manual winch was at a standstill. The trial Court found that the appellants, the employers of Garivaldinos, were solely liable for the accident and on that account were adjudged to pay the sum total of the damages awarded to Costas Karamanis. Counsel for the appellants criticised the judgment for failure to identify the premise upon which the appellants were held liable in negligence; in particular the Court did not specify whether they were directly or vicariously liable. The criticism is valid in that the Court does not identify the basis upon which the appellants were held liable n negligence. Nonetheless, the inescapable inference from the judgment is that they were held liable for an act of negligence of Garivaldinos, their employee. Moreover, the case for the plaintiff was not fashioned on a breach of a duty of care owed by the appellants to him as employers. His employers, appellants 1,'were also joined as parties to the proceedings. The case against them was founded, inter alia, on a breach of the employers' duty to provide a safe system of work. The unavoidable inference is that appellants were held vicariously liable for the acts of Garivaldinos. The respondents, on the other hand, were absolved of liability, the Court taking the view that the negligence of Garivaldinos was the sole causative agent of the accident. The principal question we have to determine and the one pursued with most vigour by counsel for the appellants revolves on the status of Garivaldinos, in particular whether responsibility for his action passed to respondents 1 notwithstanding the fact that he was the employee of the appellants. The negligence of Garivaldinos was treated as a foregone conclusion, indeed an inevitable inference from the evidence adduced before the Court. The failure on his part to observe the settled procedure for the elevation of chimney parts was a breach of his duty towards Costas Karamanis, whose safety he ought to have had in his contemplation in performing his work. In those circumstances the risk of injury to the plaintiff was not only reasonably foreseeable but a distinct possibility. The principles relevant to transfer and responsibility for the acts of an employee were reviewed in Kykon Ltd. v. Demetriou and Another. For responsibility to pass the entire and absolute control of the employee must be transferred to the hirer (Bloomidas v. Port of Singapore Authority). There is in every case a strong presumption that responsibility for the acts of the. worker remains with the general employer**. The evidence before the Court far from establishing that responsibility for the acts of Garivaldinos, in the sense explained above, passed to respondents 1, tends to indicate that the worker remained, for all relevant purposes, the employee of the appellants. In the first place there was no agreement between appellants and respondents 1 for hiring the services of Garivaldinos to the latter. Furthermore, the evidence did not in any way establish that respondents 1 were solely responsible for the installation of the chimney. The testimony of Mr. Kendal did suggest that apart from his employers, respondents 1, the appellants, as well as the firm of Karamontanis, cooperated and collaborated for the achievement of what was in effect a common venture. Appellants failed to rebut the presumption that they were answerable for the acts of Garivaldinos. Consequentially they were vicariously liable for his negligence as the trial Court rightly concluded. Damages The only other issue we must resolve in these proceedings is the one raised by the cross-appeal of the plaintiff, that is, the adequacy of the general damages awarded to him. A degree of residual incapacitation would afflict the use of the left arm of respondent 1 (the plaintiff) causing him pain, stiffness and weakness after exerting himself. For a labourer in his 20's the disability, though of a minor nature, cannot but be considered as sufficiently consequential to justify our interference. Of course, for this Court to interfere the award must be inordinately low, that is, below the outer limits of what may be considered as fair compensation. Otherwise the trial Court remains the arbiter of compensation. Having addressed ourselves to the adequacy of the compensation, bearing in mind the suffering of the injured worker, his residual incapacitation and his youth, we find that the award was unduly low, such as to warrant our intervention. We increase the amount of the award for general damages to £1,400.- raising the amount of the total award from £1,325.- to £1,
- In the result the appeal is dismissed with costs. The counter appeal is allowed. The judgment of the trial Court is varied by increasing the amount of damages to £1,
- (One set of costs will be recovered by respondent 2). Appeal dismissed. Cross-appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο