clr/1980/1980_1_138.pdf

(1)that a master isunder a duty, arising out of therelationship of master and servant, to take reasonable care for the safety of his workmen, in all the circumstances of the case, not to expose them to unnecessary risk; that the duty to exercise reasonable careis,however, onewhich'is personal to the master, and if heentrusts itsperformance ioa servant, agent or, it seems an independent contractor, he is vicariously liable for any negligence on the part of the person so appointed in performing that duty; that though the foreman of the defendants was warned of the danger as to the presence of the plastic band he refused to take any steps for the safety of the working conditions there; that once, therefore, the duty to exercise reasonable care is personal to the master, and he entrusted its performance to his foreman he is vicariously liable for any negligence on the part of the foreman appointed in performing that duty; that once the possibility of the danger emerging was reasonably apparent then to take no precautions was negligence on the part of the master.

(2)That a plaintiff must prove not only negligence or breach 139 Charalamboas τ. Gargoar & Co.

(1980)of duty but, also, that his injuries were caused by the master's breach of duty; that hemust prove,on a balance of probabilities, that the breach of duty, caused, or materially contributed to his injury; that the plaintiff has established and proved his case on a balance of probabilities, that his injuries were due to the breach of duty of the employers or under the common law in failing to provide to the employed persons a reasonably safe place of work and that the breach was the cause of his injuries. 5

(3)(After awarding an amount of £570 by way of special damages) that the plaintiff has recovered and he is now in a 10 position to work; that there is nowadays a universal acceptance of the sensible and realistic rule that trial Courts must look at the position at the time of their judgments and take account of any changes of circumstances which way have taken place since the injury was inflicted on the plaintiff; that this applies 15 both to change which increases the plaintiff's loss and to change which diminishes it; that having regard to the nature of the injuries which plaintiff sustained, and to the fact that he is now in a position to work, the amount of damages which should be awarded to him against the defendant company for general 20 damages is the amount of £500. Judgment accordingly. Cases referred t o : Wilsons and Clyde Coal Co. v. English [1938] A.C. H.L. 57 at PP· 83, 84; Paris v. Stepney Borough Council [1951] A.C. 367 at p. 384 25 (H.L.); Smith v. Baker & Sons [1891] A.C. 325 at p. 362; Davie v. New Merton Board Mills Ltd. [1958] 1 Q.B.D. 210 at pp. 219-220; 30 Vassiliko Cement Works v. Stavrou [1978] 1 C.L.R. 389; Berry v. Stone Manganese [1972] 1 Ll.L.R. 182; Thomas v. Quartermaine [1887] 18 Q.B.D. 685; Fardon v. Harcourt-Rivington [1932] Rep. AH E.R. 81 H.L. at p. 83; 35 Georghiou v. Jovanis

(1980)1 C.L.R. 102; Bonnington Castings, Ltd. v. Wardlaw [1956] 1 All E.R. 615 at p. 618. 140 1 C.L.R. Charalambous τ. Gargour& Co. Admiralty Action. 5 Admiralty action for special and general damages sustained by plaintiff, as a result of the regligence and/or breach of statu­ tory duty of the defendants whilst in their employment and in the course of loading or unloading the vessel "BERYTE". B. Vassiliades,for the plaintiff. Defendant absent. HADJIANASTASSIOU J. gave the following judgment. On 15th 10 May, 1979, the plaintiff Andreas Charalambous, by a writ of summons was claiming against the defendants, Demetriou Gargour &Co. Ltd.,specialandgeneral damages for injuries, loss and damage sustained by him on or about 18th April, 1979, on board the vessel "BERYTE" within the territorial waters of 15 Limassol while in the employment of the defendant company and in the course of loading or unloading as a result of the negligence and/or breach of statutory duty and/or breach of contract onthepart of the defendants,theirservants or agents. The defendant company having been served did not appear 20 before the Court. See affidavit of service. On 2nd July, 1979, in the absence of the defendant company leave was granted to counsel for plaintiff to file the petition. According to the statement of claim the plaintiff was employed by the defendant company as a stevedore and his monthly earnings were £350.—. 25 The defendant company are independent contractors and/or the owners or charterers and/or agents of undisclosed owners and/or occupiers of the ship "BERYTE" which was lying at the port of Limassol. The plaintiff was employed by the defendant company and it was an express or implied term of thecontract 30 of employment, between the plaintiff and the defendant company, that it was theduty of the latter to take all reasonable precautions for the safety of the plaintiff while he was engaged in the said work; and not to expose him to a risk of damage or injury of which theyknew or ought to have known; and provide 35 or maintain a safe placeof work andasafeandpropersystem of working. On 18th April, 1979,while the plaintiff during and in the course of his employment was working in the hold of the vessel helping in unloading canned food his foot was trapped in a plastic band hanging loose from a pallet which was being 141 Hadjlanastassiou J. Charalambousv.Gargour& Co.

(1980)hoisted by means of a derrick or derricks or winch and was lifted to a height of 2-3 metres and while so suspended below the pallet, the pallet swung and the plaintiff was hit against an iron pillow and suffered severe injury, loss and damage. The said injuries were occasioned to the plaintiff by the negligence and/or breach of statutory duty on the pait of the defendants their servants or agents. 5 On 19th Februaiy, 1980,the plaintiff in support of his statement of claim said that—having been instructed from the Government Labour Office, he started work with the defendant 10 company and the man incharge of the operations wasa certain AdamosPanayides. Hetookhimaswellastheotheremployees on board the ship "BERYTE" and whilst they were in the hold of the ship, a pallet was being hoisted and they were loading it with cartons containing canned food. As there were plastic 15 bandsscattered,someoftheemployeestoldtheforeman Adamos Panayides to give instructions to get the place clean, and he immediately told them: "No they will remain as they are and you have to work as it is here." At some stage of the loading ofthecartons oneofthoseplasticbandswascaughtonthepallet 20 and his foot was caught in the plastic band. While the pallet was being hoisted he was lifted as well upside down position. When he was being so lifted there were shouts by the other employees and whenfinallythey stopped the lifting up of the pallet, the pallet swung and he was hit against an iron pillow. 25 As a result of that accident hewasinjured and he wastaken to the hospital, and after that he went to Dr. Kyriakos Andreou. He stayed away from his work from 18th April, 1979 to 24th May,1979; he was also advised by his doctor not to do heavy work. According tothemedicalreport theplaintiff hassuffered 30 extensive bruise over the posterior aspect of the right chest and bruise over the right loin; abrasions and bruises over the left shin and left ankle; and sprain of his lumber spine. He was having stiffness and weakness of his lumber spine after bending and lifting; andpainwhenmoving. Forwardflexionwasmode- 35 rately restricted. Finally, according to the report permanent weakness and pain was expected to remain, especially after doing work which involved repetitive bending, heavy lifting or overloading his spine. He wasadvised to start lightwork only. Time and again it was said that a master is under a duty, 40 arising out of the relationship of master and servant, to take 142 1 C.L.R. Charalambous v. Gargour & Co. Hadjianastassiou J. reasonable care for the safety of his workmen in all the circumstances of the case (see Wilsons and Clyde Coal Co. v. English [1938] A.C. H.L. at p. 84) not to expose them to unnecessary risk. The duty to exercise reasonable care is, however, one 5 which ispersonal to the master, and ifheentrusts its performance to a servant, agent or, it seems an independent contractor, he is vicariously liable for any negligence on the part of the person so appointed in performing the duty. The master's duty to take reasonable care so to carry on his operations as not to 10 subject hisservantstounnecessary risk, isa singleduly applicable in all circumstances (see Paris v. Stepney Borough Council [1951]A.C. H.L. 367at p. 384),and has an obligation to provide a proper system and effective supervision as well as to provide a reasonably safe place of work. 15 The first question raised is whether the defendant company was under a duty not to expose the plaintiff to an unnecessary risk. Counsel for the plaintiff argued that it was the duty of the employer to seethat the place in which hisworkerswere working was safe and in this particular case his foreman was warned and 20 yet has failed to take steps to remove the plastic bands which as it appeared was a danger to the workers. In Wilsonsand Clyde Coal Co. (supra) Lord Wright speaking in the House of Lords about the master's duty not to expose his servant to unnecessary risk said at pp. 83, 84:25 30 35 40 "The true question is,What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cmnot perform it save by servants or agents. A failure to perfoim such a duty is the employer's personal negligence. This was held to be the case where the duty was statutory, and it is equally so when the duty is one attaching at common law. A statutory duty differs from a common law duty in certain respects, but in this respect it stands on the same footing. As Lord Macmillan said in the Lochgelly case [1934]A.C. 1, 18,with reference to a duty to take care: 'It appears to me quite immaterial whether the duty to take care arises at common law or is imposed by statute. It is equally imperative in either case, and in either case it is a duty imposed by law.' To the same effect Lord Atkin says 143 Hadjianastasstoo J. Charalambom τ. Gargour & Co,

(1980)ibid. 9: 'Where thedutytotakecareisexpresslyimposed upon the employer and not discharged, thenin myopinion the employer is guilty of negligence and of 'personal' negligence.* The same opinion is expressed by the other members of the House who took part in that case. The 5 House in overruling Road's case [1933] 1 K.B. 566 did, I think inferentially overrule Fantoris case [1932]2 K.B.

1. It is not perhaps necessary to add that the employer's duty at common law in these matters is not affected by the Workmen's Compensation Act or by the Employers' 10 Liability Act. I think the whole course of authority consistently recog­ nizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer takes any 15 share in the conduct of the operations." In Smith v. Baker & Sons [1891] A.C. 325 Lord Herschell said at p. 362:"Where, then, a risk to the employed, which may or may not result in injury, has been created or enhanced by the 20 negligence of the employer, does the mere continuancein service, with knowledge of therisk,preclude the employed if hesuffer from such negligence, from recovering inrespect of his employer's breach of duty? I cannot assent to the proposition thatthemaxim, 'Volenti nonfitinjuria', applies 25 to such a case, and that the employer can invoke its aid to protect him from liability for his wrong. It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and 30 to maintainthem in a proper condition,and so to carry on his operations as not to subject those employed by him to unnecessary risk. Whatever thedangers of theemployment which the employed undertakes,amongst them is certainly not to be numbered the risk of the employer's negligence, 35 and the creation or enhancementof danger thereby engen­ dered. If, then,theemployer thus fails inhis duty towards the employed, I do not think that because he does not straightway refuse to continuehis service, it is true to say 144 1 C.L.R. 5 Charalambous τ. Gargour & Co. Hadjianastassiou J . that he is willing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as a wrong, and I know of no principle of law which compels the conclusion that the maxim, 'Volenti non fit injuria', becomes applicable." In Davie v. New Merton BoardMills Ltd. [1958] 1Q.B.D. 210 Jenkins, L.J., dealing with the question whether a master is vicariously liable for any negligence of his servant or agent, said 10 at pp. 219-220:- 15 20 25 30 35 "One may take as a starting point in the discussion of this question the well-known case in the House of Lords of Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C.
2. By that case it was clearly established that an employer's " duty to take reasonable care for the safety-ofiiis employees is a duty personal to him, of which he cannotdivest himself by entrusting the performance of it to a seivant or agent however competent. It follows that if in the present case the first defendants had employed some competent person a s their servant or agent to make drifts for the use of their fitters, and the person so employed had negligently made the defective drift which broke and injured the plaintiff, the first defendants would clearly have been liable to the plaintiff for breach of theircommon law duty totake reasonable care to provide sound tools, and the fact that they had employed a competent servant or agent to perform that duty would have afforded no defence. I think it must also be regarded as settled that the same result would have ensued if the defective drift had been made by the second defendants to the order of the first defendants, the second defendants being in the position of independent contractors, as distinct from servants or (in the strict sense) agents of the first defendants. It is true that the speeches in the Wilsons & Clyde Coal Co.'s case [1938] A.C. 57 do not in terms refer to indepen­ dent contractors, for the very good reason that the case then before the House was one in which the employers claimed to have delegated their statutory duty cf providing 145 Hadjianastassioa J. Charalambous v. Gargour & Co.

(1980)a reasonably safe system of work to an agent in the strict sense, and to have thereby performed it, with the result that any negligence on the part of the agent would as between the agent and any employee injured thereby be negligence on the part of a fellow employee to which (as 5 the law then stood) the doctrine of common employment afforded the employers a complete defence. But I think the same ratio decidendi must be taken to apply where the perfoimance of the employer's duty has been entrusted to an independent contractor. This seems to me to be 10 implicit in the passage from Bain v. Fife Coal Co., cited with approval by Lord Thankerton and also expressly commended by Lords Atkin, Macmillan and Maugham. From the complete citation I need take only this concluding passage: 'The duty may not be absolute, and may be 15 only a duty to exercise due care, but, if, in fact, the master entrusts the duty to someone else instead of performing it himself, he is liable for injury caused through the want of care of that someone else, as being, in the eye of the law, his own negligence'." 20 In Vassiliko Cement Works v. Stavrou

(1978)1 C.L.R. 389 the question was whether the defendants have taken reasonable care for the safety of the people who were working for them. Having addressed our mind to the Wilson and Clyde Coal Co. (supra) as well as to the cases of Berry v. Stone Manganese 25 [1972] 1 LI. L.R. 182 and Thomas v. Quartermaine [1887] 18 Q.B.D. 685,on the question of action for reparation wehad this to say at p. 400:"Directing ourselves with these weightyjudicial pronouncements, we would adopt and follow the reasoning of those 30 judgments and would affirm also thejudgment of the learned Judge on the question that the applicants were in breach of their duty to provide a safe system of work, and in exposing the respondent to a reasonably foreseeable risk. Furthermore, we are of the view that once the appellants 35 have delegated to a competent agent and Manager the duty ofproviding a reasonably safe system ofworking, the latter's failure of seeing that the employees were using those ear plugs or ear shields does not absolve the appellants from 146 1 C.L.R. Charalambous v. Gargour & Co. Hadjianastassiou J. liability—being under a duty to take due care in provision of a reasonably safe system of working." There is no doubt that the foreman of the defendant company was warned of the danger as to thepresence of the plastic bands, 5 but he refused to take any steps for the safety of the working conditions there. Indeed the foreman went even further and repudiated the conduct of the employees in telling him what to do. Once, therefore, the duty to exercise reasonable care is personal to the master, and he entrusted its performance to his 10 foreman he is vicariously liable for any negligence on the part of the foreman appointed in performing that duty. I would reiterate that once the possibility of the danger emerging was reasonably apparent then to take no precautions was negligent on the part of the master. See Pardon v. Harcourt-Rivington 15 [1932] Rep. All E.R. 81 H.L. at p. 83; and Charalambos ' Georghiouv. Michalakis Jovanis,

(1980)1 C.L.P.. 102, where Γ adopted and followed the principles enunciated in Pardon case (supra). 20 25 30 35 40 Thesecond question is whether in order to succeed inan action for damages against the master the plaintilf must show that his injuries were caused by the master's breach of duty. It is said that the onus is on the plaintiff, the workman, to establish both the breach of duty and the fact that the breach was the cause of his injuries. In Bonnington Castings,Ltd. v. Wardlaw [1956] 1 All E.R. p. 615 Lord Reid in delivering the first speech in the House of Lords said at p. 618:"It would seem obvious in principle that a pursuer or plain­ tiff must prove not only negligence or breach of duty but also that such fault caused, or materially contributed to, his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. Thefact thatParliament imposes a duty for the protection of employees has been held to entitleanemployee tosueif he is injured as a result of a bre­ ach of that duty, but it would be going a great deal further to hold that it canbe inferred from theenactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have 147 Hadjianastassioa J. Charalambousv. Gargour & Co.

(1980)been caused by it. In my judgment, the employee must, in all cases,prove hiscaseby the ordinary standard of proof in civil actions; he must make it appear at least that, on a balance of probabilities, the breach of duty, caused, or materially contributed to, his injury." There is no doubt that although the decision in Bonnington Castings Ltd. v. Wardlaw(supra)is based on breach of statutory duty, nevertheless, the principles laid down in it are equally applicable to breaches ofcommon law duty. With that in mind, it isclear in myview, that theplaintiff has established and proved 10 his case on a balance of probabilities, that his injuries were due to the breach of duty of theemployers or under the common law in failing to provide to the employed persons a reasonably safe place of work and that the breach was the cause of his injuries. Once, therefore, the plaintiff has succeeded in proving that the 15 defendant company was negligent, the final question is what is the correct amount to be awarded by this Court for pain and suffering. The plaintiff as I have said earlier claimed by way of special damages the sum of £570.—viz., (

1. a)£35.—medical fees, (
2. b)travelling expenses £10.—and (
3. c)loss of earnings 20 £525.—. There is no doubt that the plaintiff in the present action has recovered and he is now in a position to work. As I have said earlier there is in nowadays a universal acceptance of the sensible and realistic rule that trial Courts must look at the position at the time of their judgments and take account of any 25 changes of circumstances which may have taken place since the injury was inflicted on the plaintiff. This applies both to change which increases the plaintiff's loss and to change which diminishes it. Willi this in mind and fully aware of the nature of the injuries he sustained, and of the fact that he is now in a position 30 to work, 1 have decided that the amount of damages which should be awarded against the defendant company for general damages is the amount of £500.—. For the reasons Ihave given and in the light of the authorities, I have reached the conclusion to givejudgment in favour of the 35 plaintiff for the sum of £1,070.—with interest thereon at 4% per annum as from today. Costs to be assessed by the Registrar. Judgment accordingly. 143 5