clr/1981/1981_1_373.pdf

(1981)in the past; that there had not been established that the refrigerator was too heavy for him to push; that there was room around therefrigerator sufficient for him to move about in a safe way and carry out his job safely; and that there had not been established that the respondents in their capacity asemployers failed to operate a proper and safe system of work or that they ordeied the appellant to work at an unsafe place which resulted to hi? fall from the vehicle in question and his injuries or that they were in any way negligent. Upon appeal by the plaintiff, which turned on the findings of fact based on the credibility of the witnesses as accepted by the trial Judge and conclusions drawn therefrom: 5 10 Held, that bearing in mind the evidence on its totality, the nature, both of the appliance and vehicle on which same was to be loaded as well as the manner in which thework was done 15 there is no room justifying interference by this Court either with the findings of fact, made by the learned trial Judge and based on the credibility of the witnesses as evaluated by him,or with the conclusions drawn thereon; that, particularly, there is no reason to interfere with the rejection of the allegation of the 20 appellant that he fell when he pushed forward the refrigerator; that what is a proper system of work is a matter that depends on the circumstances of each case and is a matter of common prodence and loading a refrigerator on a lorry or vehicle of that kind, did not really call for anything further than the 25 way in which the situation was to be handled in this case; accordingly the appeal must fail. Appeal dismissed with costs. Cases referred to: Perentis v. General Constructions Co. Ltd. and Others

(1981)1 C.L.R. 1 at p. 10; 30 Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C. 57; Watt v. Hertfordshire County Council [1954] 2 All E.R. 368; Paris v. Stepmay Borough Council [1951]1 All E.R. 42 at p. 50; Speek v. Thomas Swift & Co. [1943] 1 All E.R. 539; General Cleaning Contractors v. Christmas [1952] 2 All E.R. 1114. AppealAppeal by plaintiff against the judgment of the District Count of Paphos (Demetriou, S.D.J.) dated the 31st May, 374 35 1 CX.R. Kyriacou v. Eltades Ltd. 1979, (Action No. 337/78) whereby his claim for damages for personal injuries suffered by him on account of the negligence and/or breach of statutory duty by the defendants employers was dismissed. 5 C. Melas, for the appellant. E. Korakides, for the respondents. A. Loizou J. gave the following judgment of the Court. This isan appeal from thejudgment of a Judge of the District 1 ° CourtofPaphos,bywhichtheclaimoftheappellantfordamages for personal injuries suffered by him on account of the alleged negligenceof, andorbreachofstatutorydutyby, thedefendants' employers was dismissed with costs. The grounds of appeal on which same was argued are the 15 following: "(

1. a)The judgment of the Trial Court was wrong and/or was based on wrong criteria. (
2. b)ThetrialJudgemadea wrongvaluation of the evidence adduced. 20 (
3. c)The conclusions drawn by the Trial Judge and the judgment based thereon are contrary and or notjustifiedby the evidence adduced". Thisappealineffect turnsonthefindingsoffact basedonthe credibility of the witnesses as accepted by the trial Judge and 25 the conclusions drawn therefrom. Thefacts of the case are very simple. The appellant, a man of 29 yearsof age, was employed by the respondents as driver and delivery man. His duties were to load on the respondents delivery vehicle the goods purchased by a client which usually 30 consistedofelectricappliances,suchascookersand refrigerators, assisted for the purpose by another person, who usually was the person in chargeof the shop of the respondents at Paphos, After that he would drive the vehicle to the place of delivery and there find somebody to help him unload. 35 On the 30th June 1977, a client bought a refrigerator of a normal size and the appellant assisted by the person in charge of the shop of the respondents at Paphos, loaded it on thecase 375 A. Loizoa J. Kyriacou τ. Eliades Ltd.

(1981)of their vehicle whichwas described as being of a kind somehow larger than the ordinary pick-up. The floor of its case, was corrugated so that the goods might slide inwards with a mere pushing. When the refrigerator in question was placed on to thecase of thevehicle, boththeappellantandthesaid emplo- 5 yee of the respondents pushed it to an arms length inwards whilst standing on the ground. He got then on to the case of the vehicle and pushed the refrigerator further inside whilst the latter turned to collect a protecting package that would be placed around therefrigerator during its transportation. At 10 that momentand infact as soonas hegot thereontheappellant fell down and fructured his left wrist. The reasons advanced by the appellant for his fall were that there was not enough room for him to stand on the case and because the refrigerator was too heavy to be pushed inwards 15 by him alone. Themannerthetwo employees of theappellant worked atthattimewas thesameasdoneonnumerousoccasions in the past. From the evidence adduced the learned trial Judge found that it had been established that the appellant fell down from 20 the pick-up as soon as he climbed up on its case and that as a result he suffered the injuries complained of; that the work was not complicated in itself and that the appellant had done that type of work several times in the past. He rejected the reasons given by the appellant for his fall and said that he was 25 not prepared to accept as neither there had been established that the refrigerator was too heavy for him to push, nor that there was no room around the refrigerator sufficient for him to move about in a safe way andcarry out his job safely. The learned trial Judge went on to say that what he had to decide 30 was whether "the fall of the plaintiff was due to the system of work concerning the loading of the pick-up in question when the accident occurred or whether any negligence" could be attributed to the respondents. Ontheevidence as acceptedby himandguided by thecorrect 35 legal principles pertaining to the issue the learned trial Judge found that there had not been established that therespondents in their capacity as employers failed to operate a proper and safe system of work or that they ordered theappellant to work at an unsafe place which resulted to his fall from the vehicle 40 376 1 C.L.R. Kyriacou τ. Eliades Ltd. A. Loizon J. in question and his injuries or that they were in any way negli­ gent. With regard tothedutiesof anemployer to use a safe system of work, we had theopportunityof saying in the case of Anto5 nakis Perentisv. General Constructions Co. Ltd. andothers

(1981)1 C.L.R. p. 1 at p. 10, the following:- 10 15 "Theemployer's duties towards hisemployees are manifold but in so far as relevant to the present case they are that he must take reasonable care to establish and to enforce a proper system or method of work, to providecompetent staff of men, suitable machinery, adequate supervision and safe premises for work. All these constitute a general dutyof anemployer towardshisservants totake reasonable care for his servants' safety in all the circumstances of the case". Reference may also be made to some of the authorities that the learned trial Judge thought useful to quote in hisjudgment, namely, what was said in Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C. 57 where Lord Wright took the view that 20 the primary duty of the master is to take reasonable care for the safety of his servant in all the circumstances of the case. As to the safety owed by the master to his servant, it hasbeen held to be threefold: (a) to provide a competent staff, 25 (b) to supply adequate materials (such as proper machi­ nery, plant, appliances etc.) and (c) to instituteand maintainaproper and safe supervision where necessary. Thenatureof the employment must be considered. 30 In Watt v. Hertfordshire CountyCouncil, [1954] 2 All E.R. 368 Denning, L.J. said: "It is well settled that in measuring due care one must balance therisk against themeasures necessary toeliminate the risk". 35 Also Lord Oaksey said in Paris v. Stepmay Borough Council [1951] 1 All E.R.42 at p. 50:377 A. Loizou J. Kyriacou v. Eliades Ltd.

(1981)"The duty of an employer towards his servant is to take reasonable care for the servant's safety in all the circumstances of the case The standard of caie which the law demands is the care which an ordinary prudent employer would take in all the circumstances. As the 5 circumstances may vary infinitely it is often impossible to adduce evidence of what care an ordinary prudent employer would take". What exactly is meant by a safe system of work has never been precisely defined. It was held in Speakv. Thomas Swift 10 & Co.[1943] 1All E.R. p. 539 that:"A system of workingmayconsist ofa number ofelements and what exactly it must include will depend entirely on the facts of the particular case". What may also be noted, is the pronouncement of Lord 15 Oaksey in GeneralCleaning Contractors v. Christmas [1952] 2 All E.R. 1114 which reads as follows: "It is, I think, well known that work-people are frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that 20 very leason 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 were in the position of an employer, be 25 able to lay down a reasonable safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board-room with the advice of experts. They have to make their decisions on narrow window-sills and other 30 placesof danger and incircumstances in which the dangers are obscured by repetition". Learned counsel for the appellant has directed the strength of his argument against thefindingsof the trial Court and in particular that with regard tothe weightof the refrigerator and 35 the manner in which the appellant was expected to carry out his work particularly the pushing of the said appliance further inside the case of the vehicle by himself assisted by another person. Bearing in mind, however, theevidenceon its totality, 378 1 C.L.R. Kyriacou v. Eliades Ltd. A. Lolzon J. the nature, both of the appliance and vehicle on which same wasto be loaded as well as the manner in which the work was done wefindthat there is no room for usjustifying our interference either with the findings of fact, made by the learned 5 trial Judge and based on the credibility of the witnesses as evaluated by him, or that the conclusions drawn thereon; particularly we find no reason to interfere with the rejection of the allegation of the appellant that he fell when he pushed forward the refrigerator, which as the learned trial Judge said 10 fell short to establish that the refrigerator was too heavy to be pushed by one person or that the system followed was in fact defective. What is a proper system of work is a matter that depends on the circumstances of each case and is a matter of common 15 sense and common prudence and loading a refrigerator on a lorry or vehicle of that kind, did not really call for anything further than the way in which the situation was to be handled in this case. 20 We, therefore, dismiss the appeal with costs. Appealdismissed with costs. 379