COSTAS CHARALAMBOUS ν. REPUBLIC (MINISTER OF LABOUR AND SOCIAL INSURANCE AND OTHERS) (1967) 3 CLR 184 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσ

Article 146

of the Constitution is indeed the "Competent Court" envisaged by the said Law No. 2 of 1964-It is immaterial that under sections 68; 70 that 71 of that law there appear to be granted to this Court powers beyond those prescribed in paragraph 4 of the Constitution-The Legislature is entitled to enlarge the powers vested in this exercise of its competence under Article 146 of the Constitution-What cannot be done is to limit such powers. Administrative Law-Administrative action-Composite administrative action. Recourse under Article 146 of the Constitution-Competence of this Court under 4rticle 146-Criteria upon upon which certain activities such as those provided by the Social Insurance Law, 1964, (supra) shall be brought within the competence of this Court under Article 146 of the constitution-See above under Social Insurance; Constitutional and Administrative Law. In this recourse under Article 146 of the Constitution the Applicant complains a decision of Respondent 2-who comes under Respondent 1-whereby he been refused a disablement benefit under the social Insurance Law, 1964, (Law No. 2 of 1964). The decision complaine4 pf is based on a finding by the Medical Board, set up under section 60 of the Law. The importance of this case turns, mainly, on the issue of the competence of the Supreme Court to deal with cases like the present one on a recourse under Article 146 of the Constitution. The aforesaid Law No. 2 of 1964 provides that judicial competence in matters of this nature shall be exercised by the "competent Court"; and by sections 68, 70 and 71 powers beyond those prescribed in paragraph 4 of Article 140 of the Constitution (infra). Paragraph 1 and 4 of Article 146 of the Constitution read as follows: 1. "The Supreme constitutional Court sh1l have exclusive jurisdiction to adjudicate finally on recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person." 4. "Upon such a recourse the court may, by its decision- (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed." The Court in dismissing the recourse on the merits-after declaring itself competent to deal with the matter acting on a recourse under Article 146 of the Constitution: Held,

Article 146

of the Constitution, is indeed the "competent Court" envisaged by the provisions of the said Law, (see Eraclidou and The Hellenic Mining Company, 3 R.S.C.C. 153). (b) It is correct that under sections 68, 70 and 71 of the said Law No. 2 of 1964 there appear to be granted to this Court powers beyond those prescribed in paragraph 4 of Article 146 of the Constitution, but, in my view, there is nothing to prevent the legislature from enlarging the powers vested in this Court in the exercise of its competence under Article 146; what cannot be done is to limit such powers.

Article 146

of the Constitution is indeed the competent Court envisaged by the relevant provisions of Law 2/64 (see Erdclidou and the Hellenic Mining Company Limited, 3 R.S.C.C., p. 153). It is correct that under sections 68, 70 and 71 of Law 2/64 there appear to be granted to this Court powers beyond those prescribed in paragraph 4 of Article 146, but, in my view, there is nothing to prevent the Legislature from enlarging the powers vested in this Court in the exercise of its competence under Article 146; what cannot be done is to limit such powers. Coming now to the merits of this recourse, its outcome depends on whether or not the relevant finding of the Medical Board, on which the refusal of the disablement benefit was based, was an erroneous one; in the sense that the Applicant ought to have been found to be suffering from an incapacity of 10% or more as a result of the aforementioned fracture; because only an incapacity of 10% or more would entitle him to a disablement benefit under section 31 of Law 2/

1. The Applicant has called as expert witnesses two orthopaedic specialists Dr. P. Michaelides and Dr. Th. Michaelides. A member of the Medical Board, Dr. A. Peides, also an orthopaedic specialist, has given evidence in support of the finding of the Board. The main issues around which the medical evidence has ranged have been to what extent, if any, there have resulted, because of the fracture, a shortening of the left leg of the Applicant and limitation of the flexion of his left knee. I have felt no difficulty in coming to the conclusion that no significant shortening of the left leg of the Applicant, such as would be material for purposes of incapacity-either in general or in the sense of Law 2/64-has occurred. Any difference in length between the two legs of the Applicant, which may have been ascertained from time to time, is properly ascribable to the inevitable margin of difference which exists in view of the manner. in which, according to the medical evidence given, the length of a leg is measured (from the anterior superior iliac spine to the middle of the medial malleolus); actually When the legs of the Applicant were measured twice, on one and the same occasion, during the hearing of this Case, by one of the experts called by the Applicant Dr. Th. Michaelides, on the one instance it was found that no difference existed between them and on the second instance only a very slight difference was detected. What remains to be considered is whether the limitation of the flexion of the Applicant's left knee is such that it should have been treated as a disability in the sense of Law 2/64, thus rendering the relevant finding of the Board-and the consequent sub judice decision-an erroneous one on the face of the matter. It is clear, on the basis of the medical evidence before the Court, including that called by the Applicant, that, once no shortening of the leg of the Applicant has actually resulted, the limitation of the flexion of the left knee, and all other symptoms which may have appeared as a result of the fracture of his leg, could not be rated as amounting to 10% incapacity or over; and nothing less than 10% incapacity would entitle the Applicant to a disablement benefit under Law 2/
2. It is, therefore, not necessary to go further into this respect of the limitation of the flexion of the knee and examine whether such limitation is due, largely or wholely, to preexisting osteoarthritis in the joint, or whether it is due, in whole or in part, to the after-effects of the fracture of the leg of the Applicant. Counsel for the Applicant-who, I must say, has done his very best in presenting the case of his client-has advanced the argument that the limitation of the flexion of the left knee should be taken to amount to partial ankylosis, in the sense of the Ninth Schedule to Law 2/64, and, therefore, it amounts to 10% incapacity for the purposes of such Law, thus entitling the Applicant to a disablement benefit. I take the view, on the basis of the medical evidence before me, and particularly that of Dr. Th. Michaelides, that ankylosis should be taken to be something of a more serious nature than the relatively small limitation of the flexion of the knee of the Applicant in this Case; it is something of a permanent nature and not of a diminishing nature, as the limitation of the flexion of Applicant's knee appears to be-even though, of course, it may not disappear completely because all doctors agree that at the age of the Applicant there may exist in both his knees some osteoarthritis which would involve permanent limitation of flexion to a certain extent. Dr. Michaelides himself was not prepared to describe the limitation of the flexion of the left knee of the Applicant as being partial ankylosis. Thus, I cannot regard it as partial ankylosis in the sense of the Ninth Schedule to Law 2/
3. For all the above reasons, I have reached the conclusion that the Applicant has failed to satisfy the Court that the finding of the Board, that there was no disability under Law 2/64, was an erroneous one and that, therefore, he has been wrongly refused a disablement benefit. In the result this recourse is dismissed. Taking into account all relevant considerations I have decided to make no order as to. costs. Application dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο