clr/1980/1980_1_357.pdf

(1980)Will have to retire from his well remunerated type of work and look for a lighter and less remunerative work, within five to ten years—Award of £4000 for loss of future earnings—And £1500 for past, present and future pain, suffering and discomfort due to development of osteoarthritis and after effects of injuries. 5 Costs—Successful defendant—Awarded costs against unsuccessful defendant in view of the latter's line of defence. Plaintiff, a stevedore employed in the loading and unloading of ships in the port of Famagusta, was injured on April 14, 1972 while loading boxes of oranges in the hold of the ship 10 "STELVIO" owned by defendants 1. The boxes of oranges had to be placed on wooden planks (dunnage) which were placed parallel to each other on the floor to allow the boxes rest on them. Before the loading started, it was the duty of the cargo officer of the ship, an employee of defendants 1who was respon- 15 sible for the loading in the hold to place the planks in their position for the boxes to be stacked on. Each wooden box contained oranges and was weighing about 40 okes. The stevedores had to lift such box from the pallet holding each box with their arms and supporting it on their bellies and had to 20 move slowly within the hold in such position up to the place where the boxes were to be stacked. When plaintiff and the other stevedores went into thehold to start loading, they noticed that the planks which were placed on the floor were of irregular size and thickness and were not placed properly, a fact which 25 was making their work dangerous. Plaintiff and the other stevedores remarked to the cargo officer of the ship about that and, also, that it was dangerous for them to work under such conditions. In reply, he asked them to carry on with the work and that theplanks would remainas theywere placed.They,also, 30 protested and drew the attention of the foreman, Xenis Tsoukas, who went down into the hold, saw the situation and ordered them to carry on with their work, otherwise they had to leave. After the plaintiff and his colleagues found no response to their protest they started work. The space which was left between 35 the planks was ranging from 8 inches to 1 1/2 ft. a fact which necessitated the stepping of the workmen on the planks whilst proceeding from the pallets towards the end of the hold to stack the boxes. As the plaintiff was walking slowly and carefully holding the box in his arms he stepped on one of the planks, 40 358 1 CX.R. Kakou τ. Adriatica the plank slipped and as a result he lost his balance, fell down forcibly and was injured. Hence this action. 5 10 15 20 25 30 35 The plaintiff was 36 years of age at the time of theaccident. He was a regular customs porterworking as a stevedore. As a result of the accident, his left leg was fractured and he was removed to the Famagusta Hospital where he was operatedand was kept as an in-patient for treatment for about two weeks. His leg was placed in plaster and was sent homefrom where he used to visit thehospital as an out-patientfor a total period of five months. Hewas out of work for five months. As a result of the accident he had considerable pain during the period of the first five months and he still felt pain at the injured part nearly every day duetothenatureof hiswork whichwas arather heavy type of work, because he had to stand for long hours carrying heavy loads and straining of his leg caused him pain which, pain, instead of diminishing was increasing with time. He had, within five to tenyears, to retire from his wellremune­ rated work as a stevedore, out of which he was earning £3,000£4000 a year, plus an increase of 5 per cent as from January, 1980andalso anincrease of 18percentof thecost of livingsince last November and with prospects of future increases, and look for a lighter job involving less physical effort and obviously less remunerative than his present job. At the time of the accident his average income was £2,500-£3000 a year. Plaintiff explained that he brought the above action against both defendants because it was the foreman of defendants 2 that gave him theinstructions to work on theabove ship andhe was of theimpression that he was employed both by defendants 2 and by defendants 1to whom the ship belonged. Before the Court there was uncontradicted evidence*,which was adduced by defendants 2 and was accepted by the Court, to the effect that the relations of defendants 1with defendants 2 were those of aprincipal andagent; thatwhen defendants 2were employing any labourers or doing any work in connection with any ship belonging to defendants 1, including the above ship, they were actingintheircapacity as agents for theaccountof defendants I; that the responsibility for the loading and storage of the boxes of oranges was upon themaster and the cargo officer of the ship who were employees of defendants I; that the planks were See details of this evidence at pp. 373-74 post. 359 Kakoa v. Adriatica

(1980)the property of the ship and were supplied by the ship for use for such purpose; and that defendants 2had no control over the stevedores or anybody working on the ship during the loading or unloading operations. On the question whether the defendants or eitherof themwere guilty of negligence in respectof theaccident: Held,

(1)that defendants 2had nosayastothemodeofcarrying out the work by the labourers or a duty to provide the necessary means for the carrying out of such work; that, both according to the evidence of the plaintiff and his witnesses and 10 that of defendants 2, the work in the hold had to be carried out under the orders and supervision of the cargo officer of the ship whowastheservantofdefendants 1;thatallnecessaryappliances for carrying out thework and thewhole system of the operation was the responsibility of such officer; that furthermore, the deck 15 foreman, Tsoukas, who was also responsible for the work of thegangofstevedoresintheholdandofallotherportersengaged on the ship, was at the material time a servant in the employment of defendants 1; that the accident was caused by the fact that one of the planks, on which plaintiff stepped, slipped; 20 that such plank and all themeans provided for the work in the hold oftheshipwerethepropertyofdefendants 1 and defendants 1 had full control over them; that defendants 2 were merely doing what was expected of them to do under their contract of agency acting at all times for and on behalf of their principals; 25 and that, therefore, defendants 2 are not to blame in any event for this accident.

(2)That the condition of the planks and the way they were placed, was not safe and that the accident was the result of the negligence of defendants 1 to replace the planks with planks 30 of regular thickness or place them in such a way as to avoid the possibility of their slipping when one had to step on them; that defendants 1 wereinbreachof theircommon lawduty to provide a safe system of work a fortiori in the present case where the attention of the cargo officer of the defendants 1and their fore- 35 man, Tsoukas, was drawn to the defects of the system of work and who instead of making efforts to set it right, they ordered theworkmen toproceedwiththeworkorleave;andthat, accordingly,plaintiff hasproved negligence on thepart ofdefendants 1. 360 5 1 C.L.R. Kakouv.Adriatica Onthequestion whether theplaintiffwas guiltyofcontributory negligence: 5 10 15

(1)That though both defences did not plead specifically contributory negligence defendants alleged in their pleadings that the accident wasthe result of plaintiff's negligence and gave full particulars of the alleged negligence; that no objection was taken on this point by the plaintiff; and that in the way the pleadings were drafted he was not taken by surprise because full particulars of negligence were given therein.

(2)Thatno evidencewascalledbythedefendants to contradict theevidenceadduced bytheplaintiff andestablishanynegligence on his part; that, therefore, the plaintiffs have not proved any of their allegations of negligence on the part of the plaintiff; and that, accordingly, the plaintiff was not guilty of any contributory negligence (pp. 376-79 post). On the questionofdamages: 20 25 30 35 Held,that the early retirement of the plaintiff from his well remunerated job is considered as the most serious item of his claims for general damages because if he retires from such job ' at least five yearsbefore his time and even ifhe islucky enough to find another type of light job he will, nevertheless, suffer considerablelossofhisdailyearnings;that takinginto consideration that an allowance must be made for contingencies which might upset the plaintiff's future prospects, such as illness, accident etc., and for the fact that compensation is paid at once in a lump sum, whereas his earnings would have spread over many years, the damages in respect of such prospective loss of future earnings due to an early retirement from the work he is now carrying out, taking at the same time into account any prospect of securing a lighter work at a much lower remuneration, are assessed at £4,000; that to this amount there must be added a further sum of £1,500 for pain, suffering, discomfort which the plaintiff suffered and continues to suffer and will suffer in the future due to the development of osteoarthritis and theafter effects of hisinjuries thus making a total of£5,000; that adding to this thesum of£850agreed specialdamages,there is reached the figure of £6,350; and that, accordingly,judgment is given for plaintiff against defendants 1for £6,350 special and general damages, with costs. 361 Kakon v. Adriatlca

(1980)On the question of costs: Held, that defendants 2 are entitled to their costs, in view of the fact that the claim against them failed; that plaintiff, however, in the circumstances of this case, rightly had to bring the action against both defendants because he was not in a 5 position to know which of the defendants was in fact and in law his employer, a matter which became even more obscure in viewofthelineofdefence ofdefendants whoweretrying to throw the blame on each other; that the expenses of defendants 2 were increased as a result of the conduct of defendants 1 who 10 though well aware that defendants 2 were their agents all along and were acting on their behalf, they decided at the last moment to change course and tried to exonerate themselves by throwing the blame on defendants 2without substantiating such allegation by any evidence; that defendants 2 rightly issued a third party 15 notice against defendants 1claiming to be indemnified for any loss or damage which they might suffer and for which defendants 1 were responsible; that taking all the above into consideration and the third party notice issued by defendants 2, this Court has reached the conclusion that defendants 2 are entitled to 20 recover their costs for defending this action from defendants 1; and that an order for costs is made accordingly. Action against defendants 2 dismissed. Judgment for plaintiff for £6,350 against defendants 1. 25 Order for costs as above. Cases referred to: Hamp v. Warren [1843] 11 M.W. 103; Re Kerly [1901] 1 Ch. 469; Shelton v. Brown etc. Ltd. [1953] 2 All E.R. 894; 30 Nigerian Produce Marketing Co. Ltd. v. Sonora Shipping Co. Ltd.

(1979)1 C.L.R. 395 at pp. 409 and 410; Wilsons & Clyde Coal Co. v. English [1938] A.C. 57 at pp. 81 and 86; Wilson v. Tyneside Window Cleaning Co. [1958] 2 All E.R. 265; 35 Speed v. Thomas Swift & Co.Ltd. [1943] 1All E.R. 539 at p. 541 Paris v. Stepney Borough Council [1951] 1 All E.R. 42 at p. 50 General Cleaning Contractors v. Christmas [1952] 2 All E.R. 1110 at p. 1114; 362 1 C.L.R. 5 10 15 20 Kakou τ. Adriatica Crookall v. Vickers-Armstrong Ltd. [1955] 2 All E.R. 12; Lewis v. High Duty AlloysLtd. [195η 1All E.R. 740; Haynesv. Qualcast {Wolverhampton) Ltd. [1958] 1All E.R.441; Nolanv. Dental Manufacturing Co. Ltd. [1958] 2 All E.R. 449; Davie v. JVew Merton Board Mills Ltd. [1958] 1 Q.B.D. 210 at P. 219; Athanassiou v. The Attorney-General of the Republic

(1969)1 C.L.R. 160; Evripidou v. Cyprus Palestine Plantations Co. Ltd.

(1970)1 C.L.R. 132; Djemal v. Zim Israel Navigation Co. Ltd. and Another

(1967)1 C.L.R. 227 and on appeal

(1968)1 C.L.R. 309; Panayiv. Galatariotis & Sons Ltd.

(1971)1 C.L.R. 416; Loucav. Cyprus Mines Corporation (Ϊ970) 1C.L.R. 185; Georghiou v. Jovanis

(1980)1 C.L.R. 102 at p. 108; Charalambous v. Gargour Co.

(1980)1 C.L.R. 138 at p. 147; Fardon v. Harcourt-Rivington[1932] All E.R. Rep. 81 atp.*83; Stapley v. Gypsum Mines Ltd. [1953] 2 All E.R. 478; Williamsv. Liverpool Stevedoring Co. [1956] 2 AH E.R. 69; Christodoulou v. MenicouandOthers

(1966)1 C.L.R. 17 at'pp. 31 and 32; Quintasv. NationalSmelting Co. Ltd. [1961J 1 All E.R. 630 at p. 643; Kyriacouv. Aristotelous

(1970)1C.L.R. 172 at p.

1. 25 Admiralty Action. Admiralty actionfor special and general damages for personal injuries sustained by the plaintiff whilst employed on the ship "STELVIO" as a result of the negligence and/or breach of statutory duty by the defendants. 30 A. Lemis, for the plaintiff, G. Michaelides, for defendants
2. St. McBride, for defendants
3. Cur. adv. vult. SAWIDES J. read the following judgment. Plaintiff was a 35 stevedore employed in the loading and unloading of ships in the port of Famagusta and now he is carrying out the samejob in the port of Limassol since the Turkish invasion andoccupation 363 Sawides J. Kakouv.Adriatica

(1980)of Famagusta. On April 14, 1972, while working on the ship "STELVIO" owned by defendants 1, he was severely injured. For the loss, pain and suffering, and permanent partial incapacity consequent upon his injuries, plaintiff brought the present action against the shipowners, defendants 1, and their local agents, defendants 2, for negligence and/or breach of statutory duty claiming special and general damages. 5 The writ of summons was issued on 24.9.1973 and service was effected on defendants 1on 12.4.1976 and on defendants 2 on 28.5.1976. At the time of service, the writ of summons had 10 already expired having not been served within a period of one year from the date of its issue and having not been renewed in the meantime. The question whether service after the expiration of 12 months of its validity or after any extended period amounts to a nullity or mere irregularity appears to be finally 15 settled. The decisions in Hamp. v. Warren [1843] 11 M.W. 103 and Re Kerly [1901] 1 Ch. 469 fully support the view that such writ doesnot become a nullity but the service after expiration of the period of its validity amounts to mere irregularity. In Shelton v. Brown etc. Ltd. [1953] 2 All E.R. 894it was held that 20 serviceafter theexpiration of the validity of a writ ismere irregularity which may be waived by the entry of an unconditional appearance. The principles concerning the validity of a writ after its expiration have been reviewed by this Court in Nigerian Produce 25 Marketing Co. Ltd. v. Sonora Shipping Co. Ltd.

(1979)1 CX.R. 395 at pp. 409 and 410. The defendants in the present action entered unconditional appearance thus waiving any objection which might have been arisen from service of an expired writ. By his petition filed on 2.9.1976 plaintiff alleges that defendants No. 1 were the owners and/or occupiers and/or persons having contiol of the ship "STELVIO" and that defendants No. 2 were their servants or agents. It is his allegation that the accident was the result of the negligence of the 35 defendants and/or breach of statutory duty by them as employers, to maintain a safe system of work. Particulars of negligence and breach of duty are set out in paragraph 6 of the petition which briefly are to the effect that defendants failed to provide and maintain a safe system of work and also failed to 40 take any or adequate precautions for the safety of the plaintiff 364 30 1 C.L.R. Kakoo v. Adriatica Sarrides J. notwithstanding the fact that complaints were made to the responsible foreman and/or servants of the defendants in that respect and who ignored such complaints. As a result of such accident the plaintiff suffered theinjuries setout inparagraph7 5 of the petition with which I shall deal explicitly later in this judgment when having to deal with the question of damages. Both defendants entered ajoint appearance on 13.5.1976 and filed ajoint defence admitting that defendants 1 weretheowners ofthe ship "STELVIO"and that defendants 2weretheir agents 10 and/or servants and also that at the material time plaintiff was employed by defendants 1denying at the same time any negligence or breach of duty on their part and alleging that the accident was the result of the negligence of the plaintiff. Onthedayfixedfor thehearingoftheaction, counselappear-15 ingfor both defendants, appliedfor leavetowithdrawascounsel for defendants 1,which,leave,wasgranted tohim ontheground that conflict of interest arose between the defendants, obviously due to conflict of interest between the Insurance Companies coveringeachdefendant respectively. Defendants 1,asamatter 20 of fact, were represented at the hearing by another counsel. Both counsel for defendants then applied for the adjournment of the hearing, submitting at the sametimean oral application for.leave to amend their defence by withdrawing their previous joint defence and filing new separate defences. Counsel for 25 plaintiff did not object to such amendment and as a result an order was made accordingly. Bytheir amended defences, the contents of which are similar in nearly all respects to each other, save allegations by the one defendant against the other that the plaintiff was employed by 30 theother and that therelationship ofmasterand servantdid not exist between such defendants and the plaintiff but between the other defendants and the plaintiff. Defendants further denied any negligence on their part alleging that the accident was the result of the whole or part negligence oftheplaintiff, particulars 35 ofwhicharesetoutinparagraph5inbothanswers. Defendants concluded their defences alleging under paragraphs

(7)in both defences, that—(

1. a)if any negligence is found, such negligence isthenegligenceofthe other defendants adoptingin that respect the allegations of negligence of the plaintiff against such other 40 defendants, and (
2. b)alternatively, should the plaintiff be found 365 Sawides J. Kakou v. Adriatica

(1980)to be entitled to judgment against both defendants, the Court is prayed to apportion its judgment accordingly. it isclearfrom theamended defences and thecourse followed by the defendants that they decided at that stage to separate their line of defence. The ones trying to exonerate themselves from liability asmastersoftheplaintiff andallegingthat plaintiff was the servant of the other defendants and viceversa. 5 After thefilingof his defence counsel for defendants 2served defendants 1 with athird party notice,claimingfull contribution in respect of any sum which the plaintiff may recover against 10 them, having regard to the responsibility of defendants 1, for suchdamages,on theground that thenegligence ofdefendants1 was the cause for or contributed to the accident. In the course of the hearing the special damages claimed by plaintiff for medical fees, travelling expenses, medicines, loss 15 ofearningsasfrom 14.4.72to20.9.72anddiminution ofearnings as from 20.9.72 to the day of hearing were agreed at £850.-. Counsel further agreed that the medical reports of the doctors whohadexamined theplaintiff beacceptedwithout callingthem as witnesses. Such reports are: 20 (

1. a)the report of Dr. Sawides, dated the 2nd February 1973 who treated the plaintiff at the Famagusta Hospital, {exh. 1), (
2. b)the report of Dr. Zambarloukos dated the 5th March, 1973, who examined the plaintiff on the 5th March, 25 1973, {exh. 3) (
3. c)the report of Dr. Tornaritis dated the 5th April, 1977, who examined the plaintiff at the request of the defendants on the 4th April, 1977 {exh.2). At thehearing, plaintiff and two other witnesses testified asto 30 the accident, thesystem ofwork provided bythedefendants and the injuries suffered by the plaintiff and the average income of the plaintiff as a stevedore. Defendants 1 adduced no evidence and the only witness called by defendants 2was their Manager. The issues which pose for determination in the present action 35 are: (
4. a)Whether the defendants or either of them are guilty for negligence in respect of the accident. 366 1 C.L.R. Kakou v. Adriatica Sawides J. (
5. b)Whether there was contributory negligence on the part of the plaintiff. 5 (
6. c)What is the reasonable compensation to be awarded to the plaintiff in the circumstances of this case in case the defendants or either of them is found liable. Before dealing with the issues before me, I shall deal with the legal question of the duty of the master towards his servants to provide a safe system of work. The duty of the master towards his servant to provide a safe 10 system ofwork,findsitsroots deep into the Common Law. The Common Lawhasfrom early times imposed a duty on the master to take fitting care to see that the servants, jointly engaged with him in carrying on his work or industry, shall not suffer injury, either in consequence of his personal negligence, or 15 through his failure properly to superintend and control the undertaking in which he and they are mutually engaged. A breach of this duty causing personal injury has always given the servant a right of action for separation. For his own personal negligence, a master was always liable and still is liable at 20 Common Law. (Vide Halsbury's Laws of England, Third Edition, Vol. 25, p. 505, para. 969). The primary duties as to safety owed bya master to his servant have been said to be threefold:

(1)To provide a competent staff;

(2)to supply adequate materials (such as proper machinery, 25 plant, appliances, etc.); and

(3)to institute and maintain a proper and safe supervision where necessary. (Vide Wilsons & Clyde Coal Co, v. English, [1938] A.C. 57 per Lord Wright at p. 81 and per Lord Maugham at p. 86). To these must be added the obligation to observe all statutory regulations enacted 30 for the workman's safety. "It is no doubt convenient", said Parker L.J. in Wilson v. Tyneside Window CleaningCo. [1958]2 All E.R. 265 "to divide that duty into a number of categories; but for myself, I prefer to consider the master's duty as one applicable in all circum35 stances, namely, to take reasonable care for the safety of his men or, as Lord Harschell said in the well-known passage in Smith v. Baker &Sons, [1891] A.C. 325, to take reasonable care so to carry out hisoperation as not to subject those employed by him to unnecessary risk. 367 Sawides J. Kakou v. Adriatica

(1980)As to what is meant by "safe system of work", Lord Greene M.R. had this to say, in Speed v. Thomas Swift & Co. Ltd., [1943] 1 All E.R., p. 539, at p. 541:"What exactly is meant by 'a safe system of working' has never, so far as I know, been precisely defined. The provision of such a system falls within the master's province of duty; 5 A system of working may consist of a number of elements and what exactly it must includewill,it seemsto me,depend 10 entirely on the facts of the particular case". Also per Lord Oaksey in Paris v. Stepney Borough Council, [1951] 1All E.R., p. 42, at p. 50:"The duty of an employer towards his servant is to take reasonable care for the servant's safety in all the circum- 15 stances of the case The standard of care which the law demands is the care which an ordinarily prudent employer would take in all the circumstances. As the circumstances may vary infinitely^ it is often impossible to adduce evidence of what care an 20 ordinarily prudent employer would take." In General Cleaning Contractors v. Christmas, [1952] 2 All E.R. 1110, it was said (per Lord Oaksey) at p. 1114:"It is, I think, well known that work people are frequently, if not habitually, careless about the risks which their 25 work may involve. It isin my opinion for that very reason that the Common Law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they 30 were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Their duties are not performed in the calm atmosphere of board-rooms with the advice of experts. They have to make their decisions on narrow window-sills and other places of 35 danger and in circumstances in which the dangers are obscured by repetition. In Halsbury's Laws of England, 3rd Edition, Vol. 25, p. 513, 368 1 C.L.R. Kakou τ. Adriatica Sawides J. paragraph 980, under the heading "Adequate supervision", it reads: 5 "Since it is the duty of themaster to take carenot to expose his servants to any unnecessary risk, he may be under an obligation to provide effective supervision to ensure that reasonable safety precautions are carried out." {Wilsons and Clyde Coal Ltd. v. English [1938] 3 All E.R., 628, at p. 640, per Lord Wright). Where, therefore, there is an obvious risk of injury unless a 10 preventive safety device is used by the servant, the master's duly extends not only to providing the device (Paris v. Stepney BoroughCouncil[\95\] I All E.R.,42),but also to taking reason­ able measures to see that his workmen -use it. _(Crooka]l v. Vickers Armstrong Ltd. [1955] 2 All E.R. 12; Lewis v. High 15 Duty Alloys Ltd. [1957] 1 All E.R., 740; Haynes v. Qualcast (Wolverhampton) Ltd., [1958] 1 All E.R. 441; Nolan v. Dental Manufacturing Co. Ltd. [1958] 2 All E.R., 449). Reading from 'The Law of Master and Servant' 5th Edition,

(1967), by Francis Raleigh Batt, at p. 432:20 25 30 35 "Two recent cases upon'safe system of work' re-affirm two impoitant principles. First, whether an employer has taken reasonablecareor not—isalways, and must ultimately remain, a question of fact: Qualcast (Wolverhampton) Ltd. v. Haynes, [1959] 2 All E.R., 38, A.C. 749, 760, 761). On a question of fact, one is not bound by authority. (Vide [1959] A.C. 753, per Lord Radcliffe.) Secondly, the evidence of experts though of great weight, is not conclusive, and in considering whether an employer has failed in his duty of care, it is immaterial whether it was an act of commission or an act of omission: The sole question is: Has therebeen a failure to exercise reasonable care? As Lord Somervell observed, in the Cavanaghcase (Cavanagh v. Ulster Weaving Co. Ltd. [1960] A.C. 145, 167 [1959] 2 All E.R, 745): ' the fewer the formulas the better will be the administration of this branch of the law in which circumstances in onecase can never be precisely similar to those in another.' " 369 Sawides J. Kakou v. Adrialica

(1980)It is further clearly established that an employer's duty to take reasonable care for the safety of his employees is a duty personal to him, of which hecannot divest himself by entrusting the performance of it to a servant or agent however competent. (Wilson &Clyde Coal Co.Ltd. v. English(supra). The same principle was reiterated by Jenkins L.J. in Davie v. New Merlon Board Mills Ltd. [1958] 1 Q.B.D. 210 at p. 219). 5 The principles asto theduty of the master towards his servants to provide a safe system of work and that such duty is personal to the employer and cannot be divested from, have been well 10 established by our Supreme Court in a number of cases (vide Athanassiou v. The Attorney-General of the Republic

(1969)1 C.L.R. 160, Evripidou v. CyprusPalestine Plantations Co. Ltd.

(1970)1 C.L.R. 132,Djemal v. Zim IsraelNavigation Co.Ltd.and Another

(1967)1C.L.R. 227 and on appeal

(1968)1C.L.R. 309, 15 Panayi v. Galatariotis & Sons Ltd.

(1971)1 C.L.R. 416, Louca v. Cyprus Mines Corporation

(1970)1 C.L.R. 185. Also, two recent decisions on accidents which occurred on ships in which most of the authorities are reviewed: Georghiou v. Jovanis

(1980)1 C.L.R. 102 and Charalambous v. Gargour& Co. Ltd.

(1980)20 1 C.L.R. 138. In Georghiou v. Jovanis (supra) Hadjianastassiou, J., had this to say at p. 108: "It was said time and again that negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts 25 to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is a duty to 30 exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to cause physical injury to persons or property. In Fardonv. Harcourt-Rivington [1932] All E.R. Rep. 81 H.L., Lord Dunedin said at p. 83:'The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions 370 35 1 C.L.R. Kahou v. Adriatica Sawides J. is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions'." 5 10 15 20 In Charalambousv. Gargour & Co. (supra) Hadjianastassiou, J. at p. 147indealingwith the negligenceof the defendants which arose as a result of breach of their duty of care found as follows: "There is no doubt that the foreman of the defendant company was warned of the danger as to the presence of the plastic bands, 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 foreman he is vicariously liable for any negligence on the part of the foreman appointed in performing that duty. 1 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." With the above in mind, 1 am coming now to consider the first issue before me. 25 Plaintiff and his witness Antonis Yianni Skatos (P.W.3) described the system of work which wasprovided by the defendants and the surrounding circumstances of the accident as follows: On April 14, 1972,plaintiff together with a gang of stevedores, were loading boxes of oranges in the hold of the ship "STELVIO". Before they started their work the lower part 30 of the hold had already been loaded and covered by iron sheets which were shining. The boxes of oranges were placed on pallets and were loweied into the hold by a crane. As soon as each pallet was lowered in the hold, the stevedores had to lift such boxes from the pallets and carry them to the far end of 35 the hold where they had to stack them in tiers on top of each other. After they completed one row, they had to proceed with the stacking of boxes on a second row and so on till the whole cargo was loaded. The boxes of the first tier of each row, that is, the one which was nearer to the floor of the hold, had to be 371 Sawides J. Kakou v. Adriatica

(1980)placed on wooden planks (dunnage) which weie placed parallel to each other to allow the boxes rest on them. The reason for using these planks was to allow ventilation of the boxes which were nearer to the floor. Before the loading started, it was the duty of the cargo officer 5 of the ship, an employee of defendants 1 who was responsible for the loading in the hold to place the planks in their position for the boxes to be stacked on. Each wooden box contained oranges and was weighing about 40 okes. The stevedores had to lift such box from the pallet holding each box with their 10 arms and supporting it on their bellies and had to move slowly within the hold in such position up to the place where the boxes were to be stacked. When plaintiff and the other stevedores went into the hold to start loading, they noticed that the planks which were placed on the floor were of iiregular size and thickness and were not placed properly, a fact which was making 15 their work dangerous. Plaintiff and the other stevedores remarked to the cargo officer of the ship about that and, also, that it was dangerous for them to work under such conditions. In reply, he asked them to carry on with the work and that the pianks would remain as they were placed. They also protested 20 and drew the attention of the foreman, Xenis Tsoukas, who went down into the hold, saw the situation and ordeied them to carry on with their work, otherwise they had to leave. After the plaintiff and his colleagues found no response to their protest and once they had to comply with the orders given to them to 25 carry on the work under those conditions, they started work. The space which was left between the planks was ranging from 8 inches to 1 1/2 ft. a fact which necessitated the stepping of the workmen on the planks whilst proceeding from the pallets towards the end of the hold to stack the boxes. As the plaintiff was walking slowly and carefully holding the box in his arms 30 and he stepped on one of the planks, the plank slipped and as a result he lost his balance and fell down forcibly and was injured. Plaintiff admitted in his evidence that he was an experienced stevedore with long experience in such kind of work and that he had been engaged in similar kind of work many times in the 35 past. This was the first time that he noticed that the planks were not fit for such purpose and weie placed in an improper wayand thisisthereason hedrewtheattention ofthe responsible officer of the ship and of the supervising foreman to this fact. 372 1 CX.R. Kakou v. Adriatica Sawides J. As to the reason why plaintiff brought the action against both defendants, plaintiff explained the mode of their engagement in each particular case as follows: Before customs porters were allotted to work they had to go 5 to the Labour Office for directions as to thepost inthe harbour where they were going to work. A list was exhibited there, indicating where and for whom they were going to work. On April 14, 1972,henoticed on suchlistthat hewasgoingtowork for defendants 2. Upon arriving at the port, the foreman of 10 defendants 2instructed him to go for work on S/S "STELVIO" which belonged to defendants 1. The work in the hold was carried out under the supervision and the instructions of an officer of the ship who was the person in charge of the loading in the hold. 15 20 25 30 35 40 The fact that the name of defendants 2 appeared on the list at the Labour Office and the instructions he received from the foreman ofdefendants 2toproceedfor workonS/S"STELVIO" gave him the impression that he was employed both by defendants 2 and by defendants 1to whom the ship belonged. He admitted, however, in his evidence that he did not know whether defendants 2wereemploying him for their ownaccount or whether they wereacting as agents for account of defendants 1. Mr. Oumberto Mantovani, the Manager of the Famagusta office of defendants 2 gave evidence as to the employment of the stevedores and the position of the plaintiff vis-a-vis the defendants. He described the relations of defendants 1 with defendants 2 as those of a principal and agent. Defendants 2weretheagentsinCyprusof defendants 1 and when employing" any labourers or doing any work in connection with any ship belonging to defendants 1, and in this case anything connected with the ship "STELVIO" they were acting in their capacity as agents for the account of defendants 1. Allexpensespaidbythem eitherbywayofwages or disbursement expenses were made for the account of defendants 1 and defendants 2 were re-imbursed on production of bills. The responsibility for the loading and storage of the boxes of oranges in the hold of the ship was upon the master and the cargo officer of the ship who were employees of defendants 1. Thedunnage(theplanksused for stacking boxes on them)weretheproperty of theship and weresupplied bythe ship for use for such purpose. Defendants 2 had no control over the stevedores or anybody working on the ship during the 373 Sawides J. Kakou τ. Adriatica

(1980)loading or unloading operations. Such stevedores were provided by defendants 2 as agents of defendants 1, but they had to work underthe supervision and orders of themasterand thecargo officer of the ship. Theonlyconnection of defendants 2 with the labourers was that defendants 2 were paying their 5 wages as agents of defendants 1and thebill for suchwages was sent to defendants 1who were settling it. Theonly personwho was on the ship as a regular employee of defendants 2 was a clerk called the "water clerk" who is a kind of a liaison officer between the cargo officer and thelabourers acting as interpreter 10 when so required. The deck foreman, Tsoukas to whom complaints were madeaccordingto theplaintiff as to the condi­ tions of the work, though engaged by defendants 2, he was employed for the account of defendants 1 and any payments made to him and the other porters engaged was made by 15 defendants 2 as agents and for the account of defendants

1. Defendants 2 had noauthority on theship to giveany orders as to the mode of the carrying out of the work or to provide the means of carrying out such work which was theentire responsi­ bility of the master and thecargo officer of the ship who is the 20 person co-ordinating the work and instructing the labourers how and where to work. The evidence of Mr. Mantovani stands uncontradicted and I accept such evidence as true and reliable evidence. It is abundantly clear from such evidence that defendants 2 were 25 acting all along as agents of defendants
2. It was their duty as agents, to provide any labourers required by defendants 1 for work on their ships. Any payments of wages, though effected through the channel of defendants 2, were in fact so paid for theaccountof defendants
3. Defendants 2 had no say 30 as to the mode of carrying out the work by the labourers or a duty to provide the necessary means for the carrying out of such work. Both, according to the evidence of the plaintiff and his witnesses and that of Mr. Mantovani for defendants 2, the work in the hold had to becarried out undertheorders and 35 supervision of the cargo officer of the ship who was the servant of defendants
4. All necessary appliances, for carrying outthe work and the whole system of the operation was the responsibi­ lity of such officer. Furthermore,the deck foreman, Tsoukas who was also responsible for thework of thegang of stevedores 40 in thehold and of all otherporters engaged on theship, were at the material time a servant in the employment of defendants
5. 374 1 C.L.R. Kakou v. Adriatica Sawides J. As I have already found, the accident wascaused by the fact that oneoftheplanks on whichplaintiff stepped,slipped. Such plank andall themeansprovidedfor theworkinthehold ofthe shipweretheproperty ofdefendants 1 anddefendants 1 had full 5 control over them. Defendants 2 were merely doing what was expected of them to do under their contract of agency acting at all times for and on behalf of their principals. I, therefore, findthat defendants 2 are not to blame in any event for this accident, 10 On the evidence before me which stands uncontradicted by defendants 1, I am satisfied that the condition of the planks andthewaytheywereplaced,wasnot safeandthat theaccident was the result of the negligence of defendants 1to replace the planks with planks of regular thickness or placethem in such a 15 way as to avoid the possibility of their slipping when"one had to step on them. I find that defendants 1 were in breach of their common law duty to provide a safe system of work a fortiori inthepresentcasewheretheattention ofthecargo officer ofthedefendants 1 andtheirforeman, Tsoukaswasdrawnto the 20 defects ofthe system ofwork and who instead of making efforts to set it right, they ordered the workmen to proceed with the work or leave. In the result, Ifindon thefirstissue that plaintiff has proved negligence on the part of defendants
6. 25 Having dealt with the first issue, I come now to consider the second issue before me, that of contributory negligence if any, on the part of the plaintiff. Though both defences are not drafted in a way as to state clearly that the accident "was caused or contributed to by the 30 negligence of the plaintiff (seeBullen and Leake's Piecedents of Pleadings 12th Edition, page 1269 (F. 1129, 1130) and Atkin's Court Forms 2nd Ed. Vol. 29 p. 6 (F. 46) nevertheless, the defendants alleged in their pleadings that the accident was the result of plaintiff's negligence and gave full particulars of the 35 alleged negligence. In Christodoulou v. Menicou and others1 which was also a case in which "contributory negligence" was not specifically pleaded, the Court, after dealing in length with 1.

(1966)1 C.L.R. p. 17. 375 Sawides J. Kakou v. Adriatica

(1980)Order 19, rule 13 and its corresponding English Order 19, rule 15(of the then in force English Rules prior to their revision ever since) and the authorities referred to in the Annual Practice as to the need of specifically pleading "Contributory Negligence" concluded as follows (Per Zekia, P. at page 35):- 5 "It will thus be seen that the defendants did not use the conventional words 'or contributed to' by the negligence of the plaintiff, but they expressly denied any negligence and they expressly pleaded that the injury was the result of her own negligence as set out in detail in the particulars. 10 That is to say, in substance they pleaded contributory negligence to the full extent. Although we consider that contributory negligence should be specifically pleaded and particulars of the alleged negligence given in the defence, wedo not think that inthe way that the defence wasdrafted 15 in the present case the plaintiff was, in any way, taken by surprise because full particulars of the defendants' defence were actually given in their pleading. The case was fought throughout on that basis, and the record of the proceedings does not show that any objection was taken on plaintiff's 20 behalf to the leading of evidence by the defendants to prove contributory negligence". In the present case as well, no objection was taken on this point and in the way the pleadings were drafted, the plaintiff was not taken by surprise because full particulars of negligence 25 are given therein. The position as to contributory negligence in Cyprus is the same as in England and our section 57 of the Civil Wrongs Law, Cap. 148, reproduces the provisions of the English Law Reform (Contributory Negligence) Act,

1. The principle is well 30 established and has been followed for years. Even though a servant, however, succeeds in establishing that his master's breach of duty was a cause of his injuries, he may, nevertheless, be found guilty of contributory negligence if there has been an act or omission on his part amounting to negligence, which has 35 in fact caused the damage of which he complains. Where the breach of duty on the part of the master and the servant's own negligence are found to be material causes of the servant's injury, responsibility has to be apportioned between them upon the general principles of negligence. (Vide Halsbury's Laws 40 376 1 C.L.R. Kakou v. Adriatica Sawides
2. of England, 3rd Edition, Vol. 25, p. 515, para. 983, where reference ismadeastothetestfor determiningwhoisresponsible for an accident to Stapleyv. Gypsum MinesLtd., [1953] 2 All E.R., 478, which case wasfollowed and referred to inWilliams 5 v. Liverpool Stevedoring Co., [1956] 2 All E.R. 69). f.. In Christodoulouv.Menicouandothers(supra)at p. 17,Zekia, P. in considering the issue of contributory negligence said at pp. 31 and 32: 10 15 20 25 30 35 "The effect of the Caswell decision1 is that the standard of negligence isin all cases not an absolute standard but is dependant upon the attendant circumstances, and in the case of contributory negligence consisting of neglect of one'sownpersonalsafetytheCourtmusthaveregardtothe "distractions of the-plaintiff or deceased at the time of the accident and to the strain and fatigue of the work which"maymakeaworkmangivelessthoughttohispersonalsafety than persons with less trying surroundings and preoccupations. Thus,thoughthereisonly onestandard ofnegligence that standard is subject to qualification in all cases. The Caswellcase was considered and applied in Davies v. Swan Motor Co. (Swansea) Ltd., [1949] 1 All E.R. 620, where it washeld that, in any event, to constitute contributorynegligenceitwasnotnecessarytoshowthat theconduct ofthe passenger amounted to thebreach ofany duty which he owed to the defendant, but it was sufficient to show a lackof reasonable carebythepassenger for hisown safety. Thisprinciplewassubsequently applied inthePrivy Council case of Nance v. British Columbia Electric Railway Co. Ltd., [1951] 2 All E.R.
3. In assessing degrees of liability the common sense approach had to*be adopted. Evershed L.J,, as he then was, in considering questions of apportionment of blame under the English Law Reform (Contributory Negligence) Act, 1945,inthe Davies case (supra) at page 627said: 'In arriving at the conclusion at which I do arrive, I conceive it to be my duty to look at the whole facts of the case as they emergedat thetrial both of theaction and of the third party proceedings, and then, using common-sense, to try
4. Caswell v. Powell Duffryn Associated Collieries Ltd., [1939] 3All E.R.
5. 377 Sawides J. Kafcoa v. Adriatica

(1980)fairly to apportion the blame between the various participants in the catastrophe for the damage which the deceased suffered*. See also page 629 of the Report. The Davies case, which showed that the common sense approach had to be adopted, was referred to with approval 5 in a recent case by the Court of Appeal in England: See 'The George Livanos*

(1965), 'The Times* Newspaper, December 14". As it was said by Willmer, L.J. in Quintasv. National Smelting Co., Ltd. [1961] 1AH E.R. 630 at p. 643: 10 "The problem of apportioning blame where there has been fault on both sides is one that has been familiar in the Admiralty jurisdiction for fifty years. It has long been held to be a matter primarily for the discretion of the trial Judge, who finds the facts, and who has the advantage of 15 seeing the participants at first hand and assessing the degrees of their responsibility". In Kyriacou v. Aristotelous

(1970)1C.L.R. 172 the judgment on the question of contributory negligence reads as follows (Per Hadjianastassiou, J. at p. 178): 20 "I would like further to add that the question of the apportionment of blame is often one of impression and not susceptible to precise calculation. As Lord Wright said in British Fame (Owners) v. Macgregor (Owners) [1943] A.C. 197 at p. 201:- 25 'It is a question of the degree of fault depending on a trained and expertjudgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question not of principle or of positive findings of fact or law, 30 but of proportion, of balance and relative emphasis, and of weighing different considerations; it involves an individual choice or discretion, as to which there may well be differences of opinion by different minds". Coming now to the facts of the case before me, after consider- 35 ing the totality of evidence adduced, I am not satisfied that the defendants have proved any of their allegations of negligence on the part of the plaintiff. Plaintiff was, according to his evidence 378 \ 1 C.L.R. Kakou v. Adriatica Sawides J. \ and thatof hiswitnesses, movingveryslowlyandcarefully inthe y hold, holding a heavy box inhis armwhich was leaning against \ his belly and he was stepping slowly on the planks placed by \ the servants of defendants 1 and that as soon as he placed his 5 'leg on one of the planks, such plank, without any fault on his part, slipped, causing the plaintiff to fall down and be injured. Plaintiff as an experienced stevedore, and his companions, noticed that the planks were of irregular shape and were not properly placed, thus creating a possibility for an accident and 10 complained in that respect to the responsible officer of defend­ ants 1who, instead of minimizing any risk of accident, ordered the plaintiff and his companions to work in the condition the planks were set by thecargo officer of the ship under thethreat -that if they did notwish to carry on,they had to leave from the 15 work. Noevidence was called by the defendants tocontradict theevidenceadducedby theplaintiff andestablish any negligence on the part of the plaintiff. In theresult, Ifindon thesecond issue in favour of theplain­ tiff that he was not guilty of any contributory negligence. 20 Having found that the defendants 1are wholly to blame for the accident,I am coming now to consider the last issue before me, thatis, what is the reasonable compensation to be awarded to the plaintiff as general damages, once the question of special damages has been agreed upon. 25 The plaintiff was 36 years of age at the time of theaccident. He was a regular customs porter working as a stevedore. As a result of the accident, his left leg was fractured and he was removed to the Famagusta Hospital where he was kept as an in-patient for treatment for about two weeks. His leg was 30 placed in plaster and was sent homefrom where he used tovisit the hospital as an out-patientfor a total period offivemonths. Hewas outofwork forfivemonths. As a result of theaccident he had considerable pain during the period of the first five monthsandhestill feelspain at theinjured partnearly every day 35 due to the nature of his work which is a rather heavy type of work. Hehas to stand for long hourscarrying heavy loads and straining of his leg causes him pain which pain, instead of diminishing φ increasing with time. In cross-examination it was put to theplaintiff by counsel for 379 Sawides J. Kakou v. Adriatica

(1980)defendants 2 thathis permanentpartial incapacity was assessed by the Social InsuranceFund at 20 per centwhich was admitted by theplaintiff andas a result ofwhich heis gettingacompensa­ tion of £5 per month. There is no allegation, however, neither in thepleadings norany argumentwas advanced intheaddresses 5 ofcounselfor thedefendantsthattheamountofgeneral damages has to be reduced taking into consideration any compensation received by the plaintiff from the Social Insurance Fund for partial permanent incapacity. According totheevidenceofPanayiotisSheittanis(P.W.2),the 10 Secretary of the Union of Porters and Stevedores employed in the Harbour, the earning of a stevedore in List 'B' position, in which plaintiff was, ranged in November, 1973 from £12—£15 per day with an increase of 5per cent as from the 1st January, 1980, plus any increase in the cost of living. Stevedores in 15 List 'B' work regularly at an average of 18-20 days permonth. In 1972 when the accident occurred,the average income of the plaintiff was £2,500-£3,000 a year. At that time,he was work­ ing full timebecause his namewas includedin theΆ ' list steve­ doresof which were working everyday. Hisnamewas included 20 in the 'B' list after he came to Limassol as a refugee. So, according to the evidence of this witness, in November, 1979 the average income of plaintiff was between £3,000-£4,

1. After the lapse of five months plaintiff returned back to his previous work and has continuously been employed without 25 interruption and without any diminution of earnings. According to the report of Dr. Sawides dated the 2nd February, 1973(exhibit 1)whentheplaintiff was admittedinthe hospital, he was suffering from compound fractures of the left ankle. An X-Ray takenat thetime,showed aspiral fracture of 30 the left fibula, about 2 inches above theankle, a fracture of the tip of the medial malleolus, a fracture of the posterior lip of the articular surface of the tibia (posterior malleolus), lateral displacementandrotationof thetalusanddiastasis of theinferior tibiofibular ligament. There were two tiny puncture wounds 35 on the anterior and posterior surface of the medial malleolus respectively. Theplaintiff was operated onthe same dayunder general anaesthesia and the fracture reduced and immobilised in plaster. The plaster was replaced on the 26th April, 1972 and thepatientwas discharged from thehospitalonthefollowing 40 day, after 13days stay at thehospital,and thenhewas followed 380 1 CX.R. Kakou v. Adriatica Sawides J. yup as an out-patient. The fracture united in a reasonable position about three months after the accident and the plaster was removed then. The patient continued to have pain and swelling of the left ankle and leg for some time thereafter and 5 wasadvised to avoid standing or walking and keephis affected legin a crep bandage. He was eventually allowed to go back to work on the 11th September,
2. This doctor mentions in his report, concerning the past history of the plaintiff, that the plaintiff had been involved in another accident ten years 10 earlier as a result of which he suffered injuries to his left elbow which is now permanently ankylosed at 30 per cent. The condition of theplaintiff as on 2nd February, 1973,isdescribed as follows: 15 20 "The^patient still complains of pain and swelling at the affected ankle, especially after a few hours of hard work, such as when lifting cases or working the cranes. There is still much indurated swelling in the region of the medial malleolus of the left ankle and slight wastingof the muscles of the left calf. Movements at both ankle joints are as follows: Dorsiflexion/Plantarflexion: Right 1/30, left. 10/30 degrees. Inversion/Eversion at the subtalar joints: Right 30/10, left 20/5 degrees." Theopinion ofthisdoctor about thecondition ofthe plaintiff 25 contained in the same report is as follows: 30 35 "This was a very severe injury to the left anklejoint and although a very reasonable reduction has been achieved, the original anatomical position of the joint has not been attained. Thisiswhythepatient stillhassymptoms,which Idonot think that,with time,theywillimproveappreciably. They interfere and they will keep interfering with his work as a stevedore. Furthermore, as the last X-Rays show, degenerative changes are beginning to develop in the left ankle. These will continue to become worse and in a few years*time fullyfledgedosteoarthritis will set in thisjoint. When this occurs, he will find it extremely difficult to continue at his present job, and he will have to retire or 381 Sawides J. Kakou v. Adriatica

(1980)change to a lighter job, I estimate at about five to ten years before his time." According to the medical report of Dr. Zambarloukos dated the 5th March, 1973(exhibit 3), after he examined the plaintiff clinically and radiologically thefollowing objectivefindingsarc reported: 5 "A crushing injury of his left ankle associated with compound fractures of the lower end of fibula (lateral aspect of thejoint) the medial malleolus (medial aspect of the joint) and a fracture of the posterior malleolus of 10 tibia, dislocation of thetalusand twopuncture woundsone at the anterior and the other at the posterior aspect of the medial malleolus." Theopinion ofthisdoctoraccordingtoexhibit 3,isasfollows: "This heavy harbour labourer secondary to the crushing 15 injury of his left ankle ended with a painful ankle(aweight bearing joint), atrophy of the calf muscles, stiffness of the anklejoint, weak foot, complicated by osteoarthritis which will be the progressive type. He continues his present job with a severehandicap and a real risk at work but Ibelieve 20 that soon hewillbeforced tolookfor ajob witha minimal physical effort and little walking or standing required." Both these reports describe the condition of the plaintiff at a timewhich wasmorethan sixyearsprior to the hearing ofthis action and no recent examination by the said doctorshastaken 25 place. The only medical report nearer to the date of the hearing was that of Dr. Tornaritis who examined the plaintiff at the request of the defendants. Such report dated the 5th April, 1977 (exhibit 2) contains the following findings: " I. Obvious thickening of the left ankle on inspection and palpation.

1. Dorsi—and plantar flexion are equal to the opposite side.
2. Mild limitation of inversion and eversion.
3. One cm. circumferential muscle wasting of the left lower thigh. 382 30 35 \ 1 C.L.R. Kakou v. Adriatica Sawides J. \
4. Two cm. circumferential thickening of the left ankle. \
5. Squatting is possible. \
6. X-Rays oftheleft ankle, taken inthis office showconso\ lidation ofthefractures and thepresence of osteoarthritic 5 \ changes;thereisbridgingofthetwo bones of the lower \ leg,about twoinches above thejoint. X-Rays ofthe left \ ankle, taken for comparison, show milder osteoarthritic * changes". The opinion of Dr. Tornaritis about the condition of the 10 plaintiff, according to this report, is as follows: 15 20 "This patient sustained a nasty injury to his left ankle in an accident at workfiveyears ago. He had to put up with a fair amount of pain and suffering initially,.gradually diminishing over the following two to three months. The anatomical and functional results are reasonably satisfactory. Mild stiffness and muscle wasting persists, inspite ofthelength oftimethat haselapsed sincetheinjury; there is also the obvious thickening around the joint. Because of the presence of the osteoarthritic changes, the prognosis ofthe future hasto bea veryguarded one;eventhough he hasbeenabletocontinuehiswork for severalyears without too much discomfort, it is likely that in the future the symptomatology and the pain and discomfort will become more pronounced." 25 It is evident from the report of Dr. Tornaritis that the prognosis ofDr. Sawides wascorrect that degenerative changes started developing sinch February, 1973and ina few years time fully fledged osteoarthritis would have set in the affected joint which would have made it extremely difficult for the plaintiff 30 to continue in his piesentjob and he would have to retire from such job about five to ten years before his time. Also, the opinion of Dr. Zambarloukos that the stiffness of the ankle joint was complicated by osteoarthritis of the progressive type and that soon he would be forced to look for a job witha 35 minimal physical effort and little standing or walking were correct in the light of the report of Dr. Tornaritis. The opinion of all three doctors and their prognosis appears to be in agreement regarding the future effect of the injuries of the plaintiff in his working capacity. It appears from such 383 Sawides J. Kakou v. Adriatica

(1980)reports that the plaintiff, now 42 years old, will have to retire from a well remunerated type of work he is now doing as a stevedore on ships earning £3,000-£4,000 per year, plus an increaseof 5per centasfrom January, 1980andalsoanincrease of 18per cent ofthecost oflivingsincelastNovember and with 5 prospects offuture increases,and lookfor alighterjob involving less physical effort and obviously less remunerative than his present job. Dr. Sawides gave such early retirement as likely to befiveto ten years. Iconsider this as the most seriousitem ofhisclaimsfor generaldamages. Becauseiftheplaintiff retires 10 from suchjob at leastfiveyears before his time and even if he islucky enough to find another type of lightjob he will, nevertheless, suffer considerable loss of his daily earnings. Takingintoconsiderationthat an allowancemustbemadefor contingencies which might upset the plaintiff's future prospects, 15 suchas illness,accident etc.,and for thefact that compensation is paid at once in a lump sum, whereas his earnings would have spread over many years,I assess the damages in respect of suchprospectivelossoffutureearningsduetoanearlyretirement from the work he is now carrying out, taking at the same time 20 into account any prospect of securing a lighter work at a much lowerremuneration, at £4,

1. Thisfigurecan alsobereached on what was put to the plaintiff in cross-examination and admitted byhim that a 20percent permanent partial incapacity wasassessed by theSocial Insurance Office, though suchincapa- 25 city might have had much higher effect on his earning capacity, duetothe nature ofhisworkand hisremuneration andcalculating such incapacity for an average period of seven years of his earnings, (Dr. Sawides mentioned inhisreportfiveto tenyears earlyretirement) onhisto-dayincomeof£3,600-£4,800(average 30 £4,200)with prospects ofincrease. Thefigureof £3,600-£4,800 is found from the evidence of P.W.
2. In November, 1979the yearlyincome oftheplaintiff was£3,000-£4,000plusanincrease of 5per cent asfrom January and a further 18per centincrease of the cost of living as from November, 1979 till to-day. To 35 this amount I have to add a further sum of £1,500 for pain, suffering, discomfort which the plaintiff suffered and continues to suffer and will suffer in the future due to the development of osteoarthritis and the after effects of his injuries thus making a total of £5,
3. Adding to this the sum of £850 agreed special 40 damages, I have reached the figure of £6,
4. 384 1 C.L.R. Kakou τ. Adriatica Sawides J. In theresult, I givejudgment for plaintiff against defendants 1 for £6,350 special and general damages, with costs. Costs to be assessed by the Registrar. Coming now to the question of costs of defendants 2, I find that defendants 2 are entitled to their costs, in view of the fact that the claim against them fails. Plaintiff, however, in the circumstances of this case, rightly had to bring theaction against both defendants because he was not in a position to know which of the defendants was in fact and in law his employer, a matter 10 which became even more obscure in view of the line of defence of defendants who were trying tothrow theblame oneach other. The expenses of defendants 2 were increased as a result of the conduct of defendants 1who though well aware that defendants 2 were their agents all along and were acting on their behalf, 15 they decided at the last moment to change course and tried to exonerate themselves by throwing the blame on defendants 2 without substantiating such allegation by any evidence. Defendants 2 rightly issued a third party notice against defend­ ants 1claiming to be indemnified for any loss or damage which 20 they might suffer and for which defendants 1 were responsible. 5 25 Taking all the above into consideration and the third party notice issued by defendants 2,1 have reached the conclusion that defendants 2 are entitled to recover their costs for defending this action from defendants
5. In the result, I make an order for costs accordingly. Costs to be assessed by the Registrar. Judgment and orderfor costs as above. 385