clr/1981/1981_1_475.pdf

(1981)it was necessary to pass from the nearest point through the space between the machines. There was no chain on the sprocketof themachinesandnocover; andtherewas no fencing or barrier preventing them from passing through themachines. When respondentproceededtopass throughthenarrow passage in order to watch the movement of the machines, as she had instructions to do so, her dress was caught in the sprocket of the weaving machines,it was rolled on to it and as a result her leg was severely injured. 5 In an action by the respondent against the employers for 10 damages the trial Court found that the respondent was not warned of the danger and she was not told not to pass through the passage where the accident occurred; and after taking into consideration the age of the respondent—she was 18—her inexperience, the lack of any warning or instructions from the 15 appellant company and thefact that she ought to have realized the danger and should not have passed from there, found that both parties were equally to blame for the accident. The trial Court dealt,also, with thedefence of volenti nonfit injuria and rejected it. Liability was decided on the basis of commonlaw 20 negligence because the company's premises were not operating as a factory at the time. The respondent sustained very serious injuries on her right leg. This caused severe avulsion of the femoral region with exsanguinating haemorrhage due to laceration of the artery 25 and vein. At the time of the trial she had permanent insuffi­ ciency of the artery with impairment of her walking. She also had permanent foot drop supported by a caliper and a continuous drainage from the wound and post phlebitis. She was unable to work standing on her foot. Furthermore,she 30 sustained serious pain andher earning capacity was diminished. However, thepossibility of an amputationof herleg wasremote. The trial Court awarded to the respondentthe sum of £7,000 as general damages on a full liability basis. Upon appeal by the defendants it was contended: (a) That the trial Court misdirected itself on the Law and failed to apply the Law properly to the facts of this case in holding that the defence of volenti non fit injuria was not available to the appellants; 476 35 1 CL..R. 5 Covotsos Textiles v. Serghiou (b) That the conclusion of the trial Court that the respondent's contributory negligence was only 50% was unreasonable having regard to the totality of the evidence and/or to the credible evidence which was before the Court. (c) That the amount of £7,000 damages ascribed by the trial Court asgeneral damageswasmanifestly excessive having regard to the injuries of the respondent and the medical evidence before the trial Court. 10 15 20 25 30 35 40 The respondent cross-appealed contending that the trial Court erred in finding that she contributed to the accident to the extent of 50per cent having regard to the evidence adduced andthattheamountof£7,000ofgeneraldamageswasunreasonably low, having regard to the injuries sustained and/or the incapacity suffered by the respondent. Held,

(1)(after stating the principles governing the defence of volenti non fit injuria—vide pp. 488-96 post) that the doctrine of volenti non fit injuria cannot afford a defence to the claim of the appellants because that defence is available only when the respondent freely and voluntarily, being an employee, with full knowledge of the nature and extent of the risk impliedly agreed to incur it, and to waive any claim for injury; that, on the contrary, the trial Court has found that she has not impliedly agreed to incur it and to waive any claim for injury; that the defence of volenti non fit injuria cannot be invoked by the appellants-defendants in the present case, becauseknowledgeoftheriskisnotenough;norisawillingness to take the risk of injury; that nothing will suffice short of an agreement towaiveanyclaim for negligence;that the respondent must agree, expressly or impliedly to waive any claim for any injury that may befall her due to the lack of reasonable care by the employee at the time; or more accurately, to the failure of the appellant to measure up to the standard of care that the common law requires of him; that the maxim, in the absence of express contract, had no application to negligence simpliciter where the duty of care is based solely on proximity of neighourship; accordingly contention (a) should fail.

(2)(After stating the Law governing contributory negligence and apportionment of liability and the principles on which the Court of Appeal interferes with apportionment of liability 477 Covotsos Textiles v. Serghiou

(1981)made by trial Courts—vide pp. 497-511post)that once the trial Court had madean apportionment, havingtaken allfactors into account, this Court ought not to disturb it (see The"Koningin Juliana*' [1975]2LloydsLawReports 111);thatintheparticular circumstances of this case and adopting the common sense 5 approach (see Davies v. SwanMotor Co.(Swansea) Ltd. [1949] 1All E.R. 620)thisCourthasdecidedtouphold thetrial Court's apportionment of liability, viz., 50 per cent to the respondent and 50 per cent to the appellant, once both the respondent and the appellant were equally to blame for the faults which 10 the trial Court had found, and because it became a matter of appreciation to decide how they should be weighed so as to arriveatajust apportionment ofblame; accordinglycontention (b) should fail.

(3)That this Court is not convinced either that the Court 15 acted upon some wrong principle of law or that the amount awarded was so very highas to make it, in thejudgment of this Court, an erroneous estimate of the damages to which the respondent is entitled; that, indeed, this Court would not be justified in disturbing the finding of the trial Court as to the 20 amount of damages, because after taking all the circumstances into consideration, including the injuries of the respondent and the medical evidence before the trial Court, the amount of £7,000 as general damages on the basis of full liability is not on the high side; accordingly contention (c) should, also, 25 fail. Held,further, that in spite of the fact that the trial Court, in assessing general damages has not specified the heads under which general damages wereawarded, nevertheless,in awarding a global sum as general damages without apportioning it under 30 the various heads of damages, the Court was entitled to do so. Held,with regard to the cross-appeal, that in the particular circumstances of this case,the trial Court correctly apportioned the liability of both parties and correctly reached the conclusion that the amount of £7,000 was the proper one in the light of 35 the findings of fact made by the trial Court; accordingly the cross-appeal should fail. Appealandcross-appeal dismissed. Cases referred to: Thomasv. Quartermaine [1887] 18 Q.B.D. 685 at p. 696; 478 40 1 C.L.R. Covotsos Textiles v. Serghloa Yarmouth v. France, 19 Q.B.D. 647 at p. 659; Smith v. Baker and Sons [1891] A.C. 325 at p. 337; Thrussell v. Handyside[1888] 20 Q.B.D. 359; 5 Memberyv. Great Western Hail Co. [1889] 14 App. Cas. 179 (H.L.); Bakerv. James [1921] 2 K.B. 674 at p.683; Williams v. Birmingham Battery and Metal Co. [1899] 2 Q.B. 338; 10 Osborne v. Ζοηί/ση and North Western RailCo. [1888]21Q.B.D. 220 at pp. 223-224; Wingv. LondonGeneral OmnibusCo. Ltd. [1909] 2 K.B. 652 at p. 667; Bowaterv. Rowley Regis Corp.[1944] K.B. 476; 15 London Graving Dock Co. Ltd. v. Horton [1951] AC. 737 at PP-744, 783; Haynes v. Harwood [1935] 1 K.B. 146; Nettleship v. Weston [1971] 3 AUE.R. 581 at p. 587; Bennett v. Tugwell (aninfant) [1971]2 All E.R.248 at pp. 252253; 20 Burnettv. British Waterways Board [1973] 2 AU E.R. 631 at pp. 635-636; Vassilico Cement Worksv. Stavrou

(1978)1 C.L.R. 389 at p. 401; Whitehouse v. JordanandAnother[1981] 1AUE.R.267; 25 British Fame (Owners)v. Macgregor (Owners) The Macgregor [1943] 1 All E.R. 33 at p. 34; The Umtali [1938] 160 L.T. 114; Christodoulou v. Angeli

(1968)1 C.L.R. 338 at p. 345; Brown v. Thompson[1968] 1 W.L.R. 1003: 30 Christodoulou v. Menicou'and Others

(1966)1 C.L.R. 17; Caswell v. Powell Duffryn Associated CollieriesLtd. [1939] 3 All E.R. 722 at pp. 730-731; The "Koningin Juliana" [1975] 2 Lloyds Law Reports 111. 479 Covotsos Textiles v. Serghiou

(1981)Appeal. Appeal by defendants andcross-appealby theplaintiff against the judgment of the District Court of Limassol (Stylianidea, P.D.C. and Hadjitsangaris S.D.J.) dated the 19th November, 1973 (Action No. 1293/71) whereby the defendants were adjudged topay to theplaintiff thesum of £3,832.—as damages for personalinjuries sustainedby herinthecourseof heremploy­ ment with the defendant company. 5 G. Cacoyannis, for the appellants. B.L. Vasstfiades, for the respondent. 10 Cur. adv.vult. L. Loizou J. The judgment of the Court will be delivered by Mr. Justice Hadjianastassiou. HADJIANASTASSIOU J.: Thisis anappeal against thejudgment of the Full Court of Limassol in Action No. 1293/71 whereby 15 the appellants were adjudged to pay to the respondent thesum of £3,832 and costs, as damages for personal injuries which the respondent had sustained in an accident in the course of her employment with the appellant company.

1. THE FACTS: 20 The plaintiff, Niki Serghiou of Pelendri, on 11th January, 1971, was employed by the defendants Covotsos Textiles Ltd. as a weaver at a weekly salary of £
2. She was 18 years of age and was trained as a hand weaver in Greece together with a certain Eleni Sazou a co-villager of hersfor a period of two 25 years. The installation of the machines in the company's factory started on 11th January, 1971, and was carried out by two Swiss engineers, who arrived in Cyprus for that purpose, and some local engineers. The work continueduntil the 15thwhen 30 the plaintiff was involved in an accident because her dress was caught in the sprocket οΐ one of the machines when she was passing throughthenarrow space,andas aresult ofthataccident her leg was severely injured. According to EleniSazou,whowas themainwitness regarding 35 the accident, they had instructions to work in thedepartment 480 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J. in which the engineers were installing the weaving machine;». Theforeman, a certainTaxiarchos Papas,gavetheminstructions to watch the installation of the machines, and the work which was carried outwas by thetwo engineers aswellas by a certain 5 Sofoclis and theforeman. They were watching the installation of theweavingmachines from themiddlecorridor, and inorder to get there it was necessary to pass from the nearest point through the space between the machines. There was no chain on thesprocket and nocover. Therewas nofencing or barrier 10 preventing them from passing through the machines. Thelast machinemarked"Θ"was putintooperationonehour before lunch time and it was found operating during and after lunch time. On their return after lunch, they waited for the return of the Swiss engineers and the two foremen. When 15 finally they arrived they proceeded to pass through the narrow passage in order to watch the movements of the machine, as they had instructions to do so. Both were wearing dresses and when she passed through that narrow passage the plaintiff followed her but unfortunately her dress was caught in the 20 sprocket of the weaving machine and it was rolled on to it. The plaintiff was screaming from pain because her leg was injured. Fortunately a certain Sofoclis managed to switch the machine off. Inspite of thefact that there was no fencing, she added that everybody was passing between the machines 25 and nobody toldthem orwarned them of thedanger in passing between those machines. Later on after the accident they were given instructions and were also supplied with trousers and pullovers, and fences were also placed near the machines and a chain was placed on the sprocket. 30 In a long and exhaustive cross examination by counsel for the defence, the witness remained adamant and insisted (to use the words of the trial Court)that she and theplaintiff were told to watch the installation of the weaving machines as well as to fetch any spare parts the engineers would need. Among 35 their duties she added was also thesweeping up in themorning, the washing of the floor including the dust which was falling from the walls during the installation of the air conditioning. After the accident they gave a statement to P.C. Georghios Odysseos on the 19th January, 1971, regarding the accident. 40 In going through this statement one can see that this officer 481 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)had recorded at the end that the statement was read to her, and as it was correct, she signed it in his presence. The trial Court, quiterightlyin our view, attached a lot of importance to the document in question, because had the Court accepted and/or believed such a statement once it contained 5 such damning statements regarding the negligence of the plaintiff, the case might have been disposed by the Court without having to examine anything else. Indeed in going through some passages of that statement, where it was conceded that Papasthemechanicwarnedthemmanytimesbeforetheaccident 10 not to pass from there because it was dangerous; and that on the very day they passed from there because they were absent minded, and failed to thinkofthedangerindoingso,wewould reiterate, those were damning statements against the plaintiff if believed by the Court. Finally, this statement continues 15 asfollows: "For anythingdoneI am to blameaswellas Niki, the plaintiff, and nobody else. There was no protective fence of the trochalia and not a written notice that there was danger but they told us on a number of times not to pass from there". This witness admitted also that she and the plaintiff could 20 have gone around the machine and not to pass from the area where the accident occurred, but in re-examination she told the Court that the police constable did not write down what she had told him. He was asking questions she added and was answering by a mere yes or no. She conceded, however, 25 that her statement was read over to her but she added she did not know that the case would come to Court, and that she was not asked to agree with what D.W.I, wrote down. The version of the plaintiff was that just before lunch time she and her friend Sazou passed by that narrow space whilst 30 themachinewasinmotion andinthepresenceofthemechanics, and nobodytold them anythingabout passingnearthemachines or indeed warned them of any danger either at that time or earlier. When they returned from lunch she admitted again that they passed in between the machine which wasin motion, 35 and from another one in order to reach point *D'on exhibit

1. On the other hand, shesaid that all the mechanics passed from there, as well as, her friend Sazou safely, and she was the only unlucky one. In attempting to pass from there she felt something pulling her back. She looked back and saw that her 40 482 1 C.L.P.. Covotsos Textiles v. Serghiou Hadjianastassiou J. dresswas caught in the sprocket of themachine, and as a result of that, her leg was injured and she was calling out for help. One of the mechanics managed to switch off the machine. The plaintiff alleged in the pleadings, and in Court that as 5 a result of that accident her leg became quite useless, and that she could neither walk nor stand on it. Pausing here for a moment, there is no doubt that the allegation of the plaintiff regarding the injuries on her leg was accepted by the Court as being very serious injuries. The plaintiff further stated 10 that the dyeing room and the reeling room of the factory were operating atthetimeoftheaccident aswell. In cross-examination she admitted that in starting work at the factory of the defendant company, she did not know anything about the weavingmachinesasshewasnotamechanicbut,shemaintained 15 that by watching the installation of those machines she would have been better equipped to handle the machines, and that she would know if anything went wrong with them. Indeed she repeated her statement that she and other employees were passing in between the machines at the scene of the accident 20 frequently prior to her accident, and she did not consider such action dangerous either when the machine was not in motion or when in motion. After she was injured she added that she lost consciousness and when she recovered she found herself in the hospital. On 19th January, 1971, whilst still at the 25 hospital she gave a statement to D.W.I. (See exhibit 10). She denied however that the statement was read over to her and alleged that questions only were put to her by the police constable. There is no doubt that because of her own statement she 30 gavetheopportunity tocounselfor thedefenceto cross-examine her at length but she denied thestatement that they haveplaced eight weaving machines on the sameside and the onefrom the other was in a very small distance; and that there was no space for a person to pass. She further denied as saying "we instead 35 of going round in order to reach to the other side we thought to pass from the place of the trochalia". Finally she added that she realized now that it was dangerous to pass in between themachinewhichwasinoperationbecauseherdresswascaught and shewasinjured. Shefurther said that shehad nopersonal 40 complaint against Mr. Covotsos but her only complaint was 483 Hadjianastassiou J. Covotsos Textiles τ. Serghiou <1981) that she was not duly warned of thedanger. Indeed she denied that she was warned by D.W.3 two or three times of the danger in passing through. In support of her statement Christakis loannou, one of the electricians working at the factory, said that he was working 5 in the very same room where the accident occurred. He saw the plaintiff and her friend Sazou there but he added he was not sure what they were doing there although he thought that they were helping the mechanics. He further said that there was work in the reeling room and that he did not hear anyone 10 giving instructions to the plaintiff and her friend Sazou as to from where they should pass. As we saidearlier theplaintiff's allegation was thattheaccident was due to the negligence and/or the breach of statutory duty of the defendant company, their servants and/or their agents. 15 On the contrary Athanassios Covotsos, the Managing Director of the defendant company, denied that the accident was due to the negligence of the servants and/or that the company was in breach of a statutory duty. It appears that the defendant company was registered in 1969 and the factory finished at 20 about the end of
2. The machines started being installed since August 1970, and those machines were imported from Switzerland, and West Germany, and the manufacturers were responsible for their installation and their running in. By 'running in' he explained that he meant to complete theinstalla- 25 tionuntilthemomentthemachineswereoperatedfor production purposes. According to D.W.2 Mr. Covotsos although the machines in the dyeing and winding departments were installed, theairconditioningwas waitingtobeinstalled a>itwas indispen­ sable for the functioning of the factory. The weaving depart- 30 ment, he added, where the accident occurred was the last in line to be finished. Indeedhesaid without theweaving depart­ ment the factory could not have any production at all and the other two sections were preparatory for raw materials. The firstmachine to be started was the onemarked "Θ" onexhibit 35 7, and said that it was not operational as the reed, the shuttle, the harnesses and the harns were not on. The sprocket was running without the chain which was installed in March
3. The chain connects the lower part with the upper part of the machine which makes the design of the weaving, but without 40 the chain there can only be production of plain cloth. 484 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J . Healso concededthatthevarious fences were notconstructed on the day of the accident. Hefurther claimed that there was no rule in the factory for female workers to wear dresses or trousers but he admitted that on the inauguration ceremony 5 they were wearing grey trousers and orange blouses for better presentation of the factory. Speaking also about the plaintiff andherfriend Sazou,hesaid thatheemployed themas they were experienced in weaving in Greece. But he added until the inauguration date they were cleaning the machines when idle, 10 sweeping the floors, conveying woods and later they started preparing the equipment of the machines, that is, they were passing the threads of the warp beems through the shafts and throughthereedbefore theywere placed inthemachine. Finally he said that until the date of the accident the main job of the 15 plaintiff was cleaning up and when he was informed of her accident at 3.00 p.m. hevisited the hospital immediately to see her. In cross-examination hesaid that thefactory was not insured at the time of the accident, and added that he was sorry from 20 the humanitarian point of view but he said hewas not worried as he, prima facie, thought that he was not to be blamed for this accident. 25 30 35 40 Taxiarchos Demetriou Papas, commonly known as Michalis, in giving evidence said that he started work with the defendant company in January, 1970 as a mechanic and was the foreman in the weaving department on the date of the accident. The plaintiff and her friend Sazou, were under his supervision and their job was to clean the said weaving department, and not to follow the installation of the machines, as such a course had nothing to do with them. Indeed he added, before the lower part of the machinemarked"Θ"on exhibit7was put inmotion on the date of the accident, he informed both not to approach themachineastherewere uncovered parts whichwere dangerous. This warning was given to the two employees before, as he saw themon theprevious days passing in between themachines. The Swiss mechanics, he added, also shouted to them not to approach the machines. He also added that he did not see thetwogirlspassing from thearea of theaccidentinthemorning and he did not remember if the machinemarked "Θ"on exhibit 7 was left in motion when they all went for lunch. He further said thateven when themachinewas inmotion heand theother 485 Hadjianastassiou J. Covotsos Textiles v. Serghiou (19S1) mechanicswerepassingfrom nearthepartswhichwereinmotion as they had to check them. He admitted that he did not see the accident but he saw the plaintiff after the accident and her clothes were wrapped round the sprocket. He took a knife and freed her. In cross-examination he admitted that the 5 plaintiff and her friend were engaged to work for the purpose of supervising and working on the weaving machines. He considered it sensible for a person working on the machines to know about them after they were installed but not earlier. Their job was merely to sweep the floors and not to approach 10 the machines during the installation. Finally he admitted that hemadea statement tothe constable D.W.I and inmaking that statement he said that "I apostasis apo tin trochallia ine schedon 15-20 pontous pou schedon then hori no perasie atomon". The Court dealing with that part of the statement 15 of this witness said it was significant that those words were alleged to have been uttered to D.W.I, and P.W.2 in almost the same way; D.W.3 said that the way the machines were not fenced, was dangerous for the two girls to approach them and their former experience on wooden weaving machines was 2 ' inadequate to give them any experience on the sofisticated machines. The trial Court before proceeding to make their findings of fact proceeded to say a few words about the witnesses who testified before them. With regard to D.W.I, the police con- 25 stable, the Court said: "We regret to say (that) he did not impress us at all and regret he was acting on behalf of the State inobtainingthestatementsheproduced. Whilstonthiswitness, we have to comment on the statements. The contents and the wording of both statements are almost identical. Though 30 taken separately, both these young girls were unnecessarily apologetic, and for no reasons they put all the blame on themselvesand did their best to exonerate their employer from liability. Why such questions were put and why such answers weregivenwefail to understand. Thevalue ofthesestatements 35 is insignificant and we shall not rely on them". Dealing further with the director of the company the Court expressed the view that he had his own foreman (D.W.3) his mechanics and labourers and he did not take particular interest in the way the work was being done except that as owner he 40 followed up, but not closely, the progress of the installation 486 I C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J- of the factory. Speaking also about D.W.3 the Court said that he endeavoured in Court to exonerate himself and the company from any liability. He is the ordinary foreman who didnot realizethatit washisdutytoinstructandwarntheyoung 5 employeesofthedanger. FinallytheCourtsaidthattheywould not accept that the duties of the two girls were only to sweep upfloors,and that they werethere to follow up the installation and the operation of the machines to get knowledge and experience. But at the same time they were doing the very little 10 cleaning that was necessitated by other work such as theinstallation of the air conditioning. Indeed theCourt added, neither the plaintiff nor P.W.I were warned by anyone of this danger. They were neither ordered to wear trousers instead of dresses; and further, they were not told not to pass by the machine 15 in motion or through thecorridor where theaccident occurred. Finally the Court came to the conclusion that the plaintiff and her friend Sazou ought to have realized the danger and should not have passed from there, especially when they were wearing dresses,but "we have to take, however, into considera20 tion their youthful age, their inexperience and the lack of any warning or instructions from the defendant company". In effect, the Court found that the plaintiff was also to blame for the accident. The trial Court, before proceeding to apportion the liability 25 between the parties, dealt with the defence of volenti non fit injuria, raised by counsel for the defence, and having rejected itthey proceeded tostatethat indecidingtheliabilitytheybased themselves on the common lawnegligence, once the company's premises were not operating as a factory at that time. Having 30 found also that both parties were equally to blame for the accident and having dealtwith the question ofgeneral damages, in the light of the three medical reports, the trial Court had this to say at p. 176:35 40 "We accept fully the evidence of Dr. Demetriades, which was not in any way disputed by learned Counsel for the Defence, and wefindthat the Plaintiff, an 18year old girl at the time of the accident, sustained very serious injuries onherrightleg. Thiscausedsevereavulsionofthefemoral region with exsanguinating haemorrhage due to laceration ofthearteryandvein. Shehasnow permanent insufficiency 487 Hadjiaaastassioo J. Covotsos Textiles v. Serghiou

(1981)of the artery with impairment of her walking. She also has permanent foot drop supported by a caliper and a continuous drainage from the wound and post phlebitis. She is unable to work standing on her foot. Furthermore, she sustained serious pain and her earning capacity is 5 diminished. However, the possibility of an amputation of her leg is remote". Then the trial Court in considering what was the proper amount of compensation said:"We have directed ourselves to similar authorities including 10 Yiangos Christodoulou v. Pantelis Angeli (supra)*. Our conclusion is that the sum of £7,000 as general damages will fairly and reasonably compensate the Plaintiff for her injuries. As we have already apportioned liability between the parties as 50% and special damages were agreed at £664, we hereby give Judgment in favour of the Plaintiff and against the Defendant Company for the sum of £3,832.— with costs to be assessed by the Registrar". 15 On appeal, the first complaint of counsel for the appellants 20 was that the trial Court misdirected itself on the law, and failed to apply the law properly to the facts of this case in holding that the defence of volenti nor fit injuria was not available to the appellant. Counsel further submitted that all the ingredients of the defence were present and had been established 25 by evidence which the Court ought to have accepted. Can the appellant-defendant invoke the defence of volenti non fit injuria in the present case? We think it is necessary to add that where a plaintiff relies on the breach of a duty to take care, owed by the defendant to him, it is a good defence 30 that the plaintiff consented to that breach of duty, or knowing of it, voluntarily incurred the whole risk entailed by it. (See Thomas v. Quartermaine, [1887] 18 Q.B.D. 685, C.A., at p. 696 per Bowen, L.J., approved in Yarmouth v. France, 19 Q.B.D. 647, C.A. at p. 659 per Liudley, L.J; and in Smith 35 v. Baker and Sons, [1891] A.C. 325, H.L., at p. 337. In such a case, the maxim volenti non fit injuria applies. The applica*

(1968)1 C.L.R. 338. 488 1 C.L.R. CovotsosTextiles v.Serghiou Hadjianastassiou J. tion, of course, of this maxim does not depend on the relationship of employer and employed, and it is of general application to all. (See Smith v. Baker and Sons (supra)). In addition, we would add that the maxim is volenti and not scienti. A 5 man may know of a danger and be obliged to incur it. (See Thrussell v. Handyside, [1888] 20 Q.B.D. 359). (See also Membery v. Great Western Rail Co., [1889] 14 App. Cas. 179, H.L., and Baker v. James, [1921] 2 K.B. 64 at p. 683). In order, therefore, to establish the defence, the plaintiff 10 mustbeshownnot onlyto haveperceived theexistenceof danger, for this alone would be insufficient. (See Thomas v. Quartermaine (supra) and Smith v. Baker and Sons (supra)). It is, of course, necessary that the plaintiff should be shown to have notice of the danger and voluntarily accepted the risk. (See 15 Williams v. Birmingham Battery and Metal Co., [1899] 2 Q.B. 338, C.A.) The question, of course, whether the plaintiff's acceptance of the risk wasvoluntary is generally one of fact, and the answer today may be inferred from his conduct in the circumstances. 20 There must, however, be a finding of fact to this effect. (See Osbornev. LondonandNorth WesternRail Co., [1888]21 Q.B.D. 220 D.C. at pp. 223-224, per Wills, J. following the view expressed in Yarmouth v. France, [1887] 19 Q.B.D., 647, C.A. at p. 657, per Lord Esher, M.R.) 25 The inference of acceptance is more'rigidly to be drawn in cases where it is proved that the plaintiff knew and comprehended it. (See Thomas Quartermaine (supra) ). Such knowledge is no more, however, than evidence of assumption of risk. (SeeBaker v. James, [1921] 2 K.B. 674 at p. 683,per McCardie, 30 J.). Indeed, where the danger was apparent or a proper warning was given to it, and where there is nothing to show that he was obliged to incur it, but not full comprehension of its extent, or where while taking an ordinary and reasonable course, he 35 had not an adequate opportunity of electing whether he would accept the risk or not. (See Osborne v. London and North Western Rail Co., [1888], 21 Q.B.D. 220, D . C , and Wing v. London General Omnibus Co. Ltd., [1909] 2 K.B. 652, C.A. at p. 667, per Fletcher Multon L.J.). But where the relationship 489 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)of master and servant existed, the defence of volenti non fit injuria is theoretically available but is unlikely to succeed. If the servant was acting under a compulsion of his duty to his employer, acceptance of the risk will rarely be inferred. (Bowater v. RowleyRegisCorp.,[1944] K.B.476 C.A., applied in LondonGraving Dock Co.Ltd. v. Horton,[1951] A.C. 737, H.L. at pp. 744, 783). 5 Indeed, owing to his contract of service, a servant is not generally in a position to choose freely between acceptance and rejection of the risk, and so the defence does not apply in an 10 action against his employer. Themaxim volenti non fit injuria we may add, will not apply if the act which results in injury is done to prevent danger to persons. Haynes v. Harwood, [1935] I K.B. 146, C.A. In a recent case, in Nettleship v. Weston,[1971] 3 All E.R. 15 581, Lord Denning M.R., dealing with the defence of volenti non fit injuria, expressed the view that the knowledge of risk or even willingness to take the risk will not amount to volenti, and had this to say at p. 587:"This brings me to the defence of volenti non fit injuria. 20 Does it apply to the instructor? In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Nowthat contributorynegligenceisnot acomplete defence, ' but only a ground for reducing the damages, the defence 25 of volenti non fit injuria has been closely considered, and in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The 30 plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him. That is 35 shown in England by Dann v. Hamilton(\) and Slater v. Clay Cross Co Ltd.

(2); and in Canada by Lehnertv.

(1)[1939] 1 AU E.R. 59

(2)[1956] 2 All E.R. 625 490 1 C.L.R. 5 10 15 20 Covotsos Textiles v. Serghiou Hadjianastassiou J. Stein(l); andin New Zealand by Morrison v. Union Steamship Co.of New Zealand Ltd.

(2). The doctrine has been so severely curtailed that in the view of Diplock LJ: '... the maxim, in the absence of express contract, has no application to negligence simpliciter where the duty of care is based solely on proximity or 'neighbourship' in the Atkinian sense*: see Wooldridge v.SumnerQ). Applying the doctrine in this case, it is clear that Mr. Nettleship did not agree to waive any claim for injury that might befall him. Quite the contrary. He enquired about the insurance policy so as to make ;ure that he was covered. If and in so far as Mrs. Weston fell short of the standard of care which the law required of her, he hasacauseofaction. Buthisclaimmaybereduced insofar as he was at fault himself—as in letting her take control too soon or in not being quickenough to correct her error. 1do not saythat the professional instructor—who agrees to teach for reward—can likewise sue. There may well be implied in the contract an agreement by him to waive any claim for injury. He ought to insure himself and may do so, for aught 1know. But the instructor who is just a friend helping to teach never does insure himself. He should, therefore, be allowed to sue". InBennettv. Tugwell(an infant), [1971]2AllE.R. 248,Agner, 25 J., dealing with the defence of volenti non fit injuria, had this to say at pp. 252-253:- 30 "The gist of this defence is not so much the assent to the infliction of injury as the assumption of the risk of such injury (sec Fleming on Tort

(4), cited by Salmond on the Law of Torts

(5). Counsel for the plaintiff submits that a subjective test is the1appropriate one and that 1 am concerned with what was in the innermost recesses of the parties' minds. I do not accept that this is so. What is required is an objective approach. Legal enquiry into a

(1963)36 DLR

(2d)159

(1964)NZLR 468

(3)[1962] 2 All E.R. 978 at 990

(4)2nd Edn, p. 253

(5)15th Edn, 1969, p. 668. 491 Covotsos Textiles v. Serghiou

(1981)person 'volens'isnotintowhathefeels orinwardlyconsents to, but into what his conduct or words evidence that he is consenting to(l). Thus I consider it irrelevant, save on the issue of credibility in the manner I have already indicated, that the defendant had no intention to deprive the plaintiff of any remedy which might exist by virtue of hisfather's policy of insurance or that theplaintiff believed that thenoticecouldnotdeprivehimoftheright hewrongly believed he had of suing the defendant's father's insurers. 5 Hadjlaaastassiou J. Counselfor theplaintiff reliesonthepassageinSalmond's 10 The Law of Torts

(2)which reads: 'But today the courts lean against the defence of volenti whenitissoughttodeduceorinfer a licenceinadvance to commit a tort. Something like a contract must probably be shown*. Dealing with the last sentence first, the defendant does not asserta contract. Counselfor thedefendant contended that the arrangement under which the plaintiff and the defendant gave each other lifts were friendly arrangements which gave rise to no legal obligations or rights except 20 which the general law of the land imposed or implied and that the only questions werefirst,whether those legal rights and duties could be modified or surrendered on the facts of this case. This wasthe reasoningand approach ofJohn Stephenson 25 J. inBuckpittv.OatesQ)whichIrespectfully adopt and follow.In fact if thedefendant had beenrelyingon a contract the still opaque waters of 'fundamental breach' might yet again have had to be disturbed. As regards the earlier part of the quotation from SaImond

(4), the authority 30 citedisfrom the Court ofAppealin NewZealand, Morrison v. Union Steamship Co of New Zealand Lld

(5). The facts in that case have no connection with those in this

(1)See 82 LQR 64

(2)15th Edn, 1969, p. 669

(3)[1968] 1 All E.R. 1145

(4)15th Edn, 1969, p. 669

(1964)N2LR 468 492 15 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J . case. In the course of a long and detailed judgment as to the law, Turner J. stated(l): 5 10 15 20 25 Ί am of the opinion that in the absence of express agree­ ment or at least of some transaction or intercourse between the parties which may be short of contract, but from which the plaintiff's assent may be clearly inferred, the maxim violenti non fit injuria cannot now be invoked in respect of negligent acts of the defendant which are still in the future at the time when the plaintiff is said by his conduct to have shown himself volens', McCarthy and North JJ

(2)preferred to rest their judgments on the ground that the case could be disposed of on its facts. Put in a postive form I would not venture to disagree with Turner J. The defendant must prove on the balance of probabilities that the plaintiff did assent to being carried at his own risk and to exempt the defendant from liability for the negligence which caused this accident. There is no requirement for a contract. On thefacts which Ihave found and for thereasons which 1 have given the plaintiff's assent in my judgment is clearly to be inferred. I hope I may be permitted to end this already lengthy judgment with the hope that its main effect will be to expedite the passage of legislation to make passenger insurance compulsory, a change in the law which the profession has long sought'". In Burnett v. British Waterways Board, [1973] 2 All E.R. 631, Lord Denning, M.R. had this to say at pp. 635-636:- 30 35 "The third question is whether the noticeaffords a defence. If the board had made a contract with Mr. Burnett, in which this notice was incorporated, of course, the board could rely on it. But there is no shadow of ground for saying that there was a contract between the board and Mr. Burnett. He was just one of the men working on the barge coming in. His only contract was with the barge owners. Irrespective of whether there was a contract properly

(1964)NZLR at 478

(1964)NZLR at 480, 482. 493 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)so called, there are cases which show that if Mr. Burnett agreed, expressly or impliedly, to be bound by the terms of the notice, he could not claim. Thus there are several cases where the driver of a vehicle gives a passenger a lift and, at the same time, gives him reasonable notice 5 that he rides at his own risk. The passenger is bound by the notice. He cannot claim: see Buckpitt v. Oates(\), Bennettv. Tugwell (aninfant)

(2)and Birchv. Thomas

(3). Likewisewhen amanisgivena free passtogoonavehicle, he is bound by the conditions on it. Similarly when 10 dangerous operationsareinprogressonland and apparent, and the owner gives a licensee permission to go on it, but at the same time gives him reasonable notice that he comesathisownrisk,againhecannotclaim: seeAshdown v. Samuel Williams& Sons Ltd

(5)and Whitev. Black- 15 more

(6). In some of these cases, there may not be a contract properly so called; but the passenger who accepts the lift, or the licensee who takes advantage of the permission, is bound by the notice. He has a choice either to go on the premises on the terms of the notice, 20 or not to goto them, ifhegoes,heistaken tohaveimpliedly agreed to take the risk. Just as in the 'ticket' cases, a man, by accepting theticket with theconditions, is taken to have agreed to them: see Parker v. SouthEastern Railway Co.

(7)The 'ticket' cases are, of course, based 25 on contract, whereas the licensee cases are not. But in each the basis is implied agreement. In the present case the plaintiff had no choice. No agreement can be implied or imputed to him. Thejudge put it weli

(8): 'The plaintiff was not somebody arriving on his own at the entrance to the dock and saying: 'Well, I will not go in because of this notice' He was an

(1)[1968] 1 All E.R. 1145

(2)[1971] 2 All E.R. 248

(3)[1972] 1 All E.R. 905

(4)[1947] 1 AH E.R. 258

(5)[1957] I AH E.R. 35

(6)[1972] 3 All E.R. 158

(7)[1877] 2 CPD 416

(8)[1972] 2 All E.R. 1358 494 30 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J· employee on a barge, part of a train of barges, and by the time he had got to the dock it was certainly beyond his ability to make a choice and not go in'. 5 10 15 20 25 30 35 Onthis ground—that therewasno choice tothe plaintiff -the judge held that the plaintiff was not bound by the notice. I agree entirely. The other ground on which it was sought to deprive the plaintiff of his claim was the doctrine of volenti non fit injuria. This defence too must be based on implied -agreement. It is only available when the plaintiff freely and voluntarily, with full knowledge of the nature and extent ofthe risk, impliedly agreed to incur it: see Legang v. Ottowa Electric RailwayCo(l); and to waive any claim for injury (Nettleship v. Weston

(2). No such agreement could possibly be implied here. In my opinion therefore the board cannot rely on the notice as a defence to this action. I ought perhaps to say a word about s. 10

(1)of the Transport Act 1962. Itsaysthat itistheduty of theboard 'to have due regard to efficiency, economy and safety of operation as respects the services and facilities provided by them'. It was suggested that that was a statutory duty which would carry a right to damages if it was broken. But the answer isgivenbys. 10

(4)whichsays that s. 10

(1)'shall not be construed as imposing, either directly or indirectly, any form of duty or liability enforceable by proceedings before any Court to which the Board would not otherwise be subject'. So no reliance can be placed on breach of that statutory duty. 1 think thecaseisproperly to beconsidered as onewhere theboard was under a duty at common law to use reasonable care: that this duty was broken: and that the board are not protected by Ihe notice because Mr. Burnett never agreed to it. He had seen it and rcad.it, but he had no choice in the matter".

(1)[1926] A.C. 725 at 731

(2)[1971] 3 All E.R. 581 at 587. 495 Hadjianastassiou J. Covots*s Textiles v. Serghiou

(1981)It should be added that Bennett Tugwell was distinguished in Burnett v. British Waterways, [1973] 2 All E.R. 631. In Vassiliko Cement Works v. Christos Stavrou,

(1978)1 C.L.R. 389, dealing with the defence of volenti non fit injuria, raised by the appellants, in delivering thejudgment of the Court 5 of Appeal, I had this to say at p. 401:"In our opinion, the learned trial Judge properly applied his mind to the legal effect of that doctrine and we endorse and approve his statement in the light of the authorities quoted earlier that this defence rarely finds application 10 in cases of injuries suffered by workers in the course of their work and as a result of hazards emanating from this system of work. The gist of the defence, in the words of Ackner J., does not lie in the assent to the infliction of injury but involves an assumption to the risk. (SeeBennett \5 v. Tug-well, [1971] 2 All E.R. 248). In order to establish the defence the plaintiff must agree to waive any claim that he may have to injury that may befall him due to lack of reasonable care on the part of the defendants. Knowledge or willingness to take the risk will not substantiate 20 the defence of volenti.(Seealso StavrinouCostaandAnother v. Municipal Corporation of Limassol,

(1975)1 C.L.R. 84; and Cyprus Trading Corporation v. Chimonas

(1975)I C.L.R. 211.)'' In the present case, in our view, the doctrine of volenti non 25 fit injuria cannot afford a defence to the claim of the appellants because that defence is available only when the rsspondent freely and voluntarily, being an employee, with full knowledge of the nature and extent of the risk impliedly agreed to incur it, and to waive any claim for injury. On the contrary, the 30 trial Court has found that she has not impliedly agreed to incur it and to waiveany claim for injury. Indeed, the evidence before the trial Court, and particularly of the police constable was not believed and no such agreement can be implied on the part of the respondent once she had no choice in the matter, 35 being ordered to follow up by the foreman the installation and the operation of the machines in order to get knowledge and experience. With respect, the defence of volenti non fit injuria cannot be 496 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J. invoked by the appellants-defendants in the present case, becauseknowledgeoftheriskisnot enough; norisa willingness to take the risk of injury. Nothing .will suffice short of an agreement to waive any claim for negligence. Indeed, we 5 think that the respondent must agree, expressly or impliedly to waive any claim for any injury that may befall her due to the lack of reasonable care by the employee at the time: or more accurately, to the failure of the appellant to measure up to the standard of care that the common law requires of him. 10 Accordingto Diplock L.J. themaxim, inthe absence ofexpress contract, had no application to negligence simpliciter where the duty of care is based solely on proximity of neighbourship. CONTRIBUTORY NEGLIGENCE: The second complaint of counsel for the appellants was that 15 the conclusion of the Court that the respondent's contributory negligence was only 50% is unreasonable having regard to the totality of the evidence and/or to the credible evidence which was before the Court; and that the Court was wrong in law and/or in fact in disregarding the statements given to D.W.I 20 the constable, by the respondent and P.W.I. In addition counsel argued that the Court in arriving at its decision failed to analyse the contents of those statements and to give any valid reasonsfor their rejection. Astothefindingofthe Court, counsel went on to add that the respondent was not warned 25 as to the danger in question was unreasonable having regard to the evidence and because of thefindingthat therespondent passed through the dangerous corridor earlier in the morning. In our view regarding the apportionment of liability as to the question of contributory negligence, time and again it was said 30 that in an action for injuries arising out of negligence it was a defence at common law if the defendant proved that the plaintiff bysomenegligenceonhisownpart,directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. Indeed when this is proved 35 the plaintiff's negligence is said to be contributory. It is now enacted, both in England and in Cyprus, that whereany person suffers damage as the result partly of his own fault and partly of the fault of any other-person or persons a claim in respect of that damage is not to be defeated by reason of the fault of 40 the person suffering the damage but the damages recoverable 497 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)in respect thereof are to be reduced to such an extent as the Court thinksjust and equitable having regard to the claimant's shareintheresponsibilityfor thedamage. Wherethe defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be applied is whether the 5 defendant's negligence was nevertheless a direct and effective cause of the misfortune. The existence of contributory negligence does not depend on any duty owned by the injured party to the party sued and all that is necessary to establish a plea of contributory negligence is to prove that the injured party 10 did not in his own interest take reasonable care of himself and contributed bythiswantofcaretohisowninjury. Theprinciple involved is that, where a man is part author of his own wrong, he cannot call on the other party to compensate him in full. The standard of care depends upon foreseeability. Just as 15 actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. Aperson isguilty, werepeat, of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man he might hurt 20 himself. The plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particularform ofnegligencetobecommoninthecircumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, 25 the defendant alone is liable. There is no doubt that in the present case the trial Court found that both the respondent and the appellants wereguilty of negligence and having regard to alltheevidencebefore thetrialCourt wethink thatwecannot interfere with their finding. This Court in a number of cases 30 said time and again that they will not interfere with regard to findings based oncredibility oncetheCourt believestheevidence of thewitnesses. Thisfindingof ourscoversalso the complaint of counsel regarding the warning as to the danger but again the evidence on this issue was conflicting and the trial Court 35 believed the evidence of the respondent and her friend Sazou. Cf. Whitehouse v. Jordanand Another,[1981] 1 All E.R. 267. APPORTIONMENT OF LIABILITY: Dealing now with the apportionment of the liability complained of we ihink it is necessary to state that in inquiring 40 as to the claimant's share in the responsibility it should be 498 1 C.L.R. Covotsos Textiles v. Serghiou Hadjianastassiou J. determined not only by the causative potency of his acts but also by the parties blameworthiness. In such cases both the amount ofthereduction ofdamagesandthecostsofthepartially successful plaintiff arein the discretion of thetrial Judge. The 5 trial Court, it is true, did not go as far as to state the principle referred to earlierbut ineffect theytook guidancefrom thecase ofBritish Fame (Owners)v.Macgregor (Owners) The Macgregor [1943] 1All E.R. 33(H.L.).ViscountSimonL.C.delivering the firstspeech regarding thevariation of apportionment of liability 10 on appeal said at p. 34:- 20 25 30 40 "The Court ofAppeal hasthought itright,whilemaintainingtheviewthat bothshipsareto blame,to vary thedistribution oftheblamebyputtingtwothirds ofit ontheBritish Fame and relieving the Macgregor so that the Macgregor has to carry only the remaining one-third. It seems to me, my Lords, that the cases must be very exceptional indeed in which an appellate Court, while accepting the findings offact oftheCourtbelowasto thefixingofblame, none the less has sufficient reason to alter the allocation of blame made by the trial Judge. I do not, of course, say that there may not be such cases. I apprehend that, if a number of different reasons were given why one ship istoblame,but onexamination someofthosereasonswere in the Court of Appeal found not to be valid, that might have the effect of altering the distribution of the burden. If there were a case in which the Judge, when distributing blame, could be shown to have misapprehended a vital fact bearing onthematter, that might perhaps be—itwould be, I think—a reason for consideringwhether thereshould be a change made on appeal. But subject to rare exceptions, I submit to the House that when findings of fact are not disputed and the conclusion that both vessels are to blame stands, the cases in which an appellate tribunal will undertake to revise the distribution of blame will be rare." Later on Viscount Simon L.C. dealing with a passage used byLord Wright in TheUmtalicase[1938] 160L.T. 114had this to say:"It appears to me, my Lords, that that passage directly applies here. I do not find in thejudgments of the Court of Appeal or in the arguments which have been addressed 499 Hadjianastassiou J. Covotsos Textiles τ. Serghiou

(1981)to us by the respondents sufficient ground for interfering with the apportionment decided upon by Bucknill, J. That apportionment, in my judgment, should stand, and I move that this appeal be allowed with cotts". As we said earUerthetrial Courtin dealing with thequestion as to contributory negligence relied onthesame case andquoted a passage from the speech of Lord Wright at p. 35:- 5 "With the greatest respect to the Court of Appeal, and without in any way expressing any conclusion on theactual decision at which they there arrived, I venture to think 10 that their statement of principleis notquiteinaccord with the authorities, so far as laid down up to the present. The Umtali(l), which is a decision of this House,was notcited totheCourtofAppeal, but therewas cited The Karamea

(2), in which Lord Sterndale, M.R., a great authority on these 15 matters, dealing with this question of apportionment at p. 78, says: *... I think it would need a very strong case indeed to induce this Court to interfere with his discretion as to the proportions of blame. We have power to do it, but I do not suppose that we should ever think of doing it.' 20 Warrington, L.J., is reported, at pp. 83, 84, as saying: 'It may well be and probably is the case that if the Court arrives at the same conclusion both on thefacts and in law it would not interfere merely because the learned Judge in his discretion has given proportions which this Court 25 thinks it would not have given'. Scrutton, L.J., at p. 89,says: '... if the Court of Appeal agrees with thefindingsof fact andlaw of the learnedjudge below, and the only difference is that it attaches more importanceto a particular fact than hedid, it would require 30 an extremely strong case to alter the proportions of blame which thelearnedjudge below has attributed to the ships..., It seems to me that these observations of three very eminent judges are quite in accordwith what was *aid in The Umtali(\), and with what Viscount Simon, L.C, has just iaid. I do not say, any more than they did, thatunder proper conditions, such as those indicated by the three

(1)The Umtali [1938], 160 L.T. 114

(2)The Karamea, [1921] P. 76 500 35 1 C.L.R. 5 10 15 20 25 Covotsos Textiles v. Serghiou Hadjianastassiou J. members of the Court of Appeal in The Karamea, the judge's apportionment might not be interfered with by an appellate Court; but I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and facts. It is a question of the degreeoffault, dependingon atrained andexpertjudgment consideringallthecircumstances,and isdifferent inessence from a mere finding of fact in the ordinary sense. It is a question not of principle or of positive findings of fact orlaw, but ofpropjrt'on, ofbalance and re!ati\e emphasis, and of weighing different umsiderations; it involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that the Courts havewarned an appellate Court against interfering, save in very exceptional circumstances, with the judge's apportionment. The accepted rule was clearly stated by Lord Buckmaster with the assent of the other Lords, in TheOtranto(\),at p.204, in these words: 'Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed.'" In Yiangos Christodoulou v. Pandelis Angeli

(1968)1 C.L.R. 338, the plaintiff a young mechanic, eighteen years of age at the time of the accident in February, 1964, was employed by the defendant who runs a motor-garage in Nicosia. The 30 injuries sustained by the workman were quite serious necessitating the amputation of his left leg as from about the middle of the thigh. The trial Court awarded damages of £6,688 under two heads: General damages £6,000 and special £

1. Infindingnegligence on both sides, the trial Court apportioned 35 the liability equally between the parties and gavejudgment for the workman for £3,
2. From this judgment, the employer took the present appeal on four grounds which in substance may be reduced to two: (a) against the findings of the trial Court on the question of negligence and the apportionment of

(1)Kitano Maru S.S. Ownersv. Otranto S.S. Owners, The Otranto [1931} A.C 194. 501 Hadjianastassiou J. Covotsos Textiles v. Serghiou (1981 liability; and (

1. b)against the amount of the award. Shortly before the hearing of theemployer's appeal, a cross appeal was filed on behalf of the workman also complaining against the apportionment of liability; and against the amount of general damages awarded. Vassiliades, P. delivering the unanimous judgment oftheCourt ofAppeal,inwhich Iwasalsoa member, made these observations at p. 345:- 5 "The matters for determination in this appeal may be put in two groups: (
2. a)The findings of the trial Court as to thecauseoftheaccident;and(b)Theamount ofcompensa- 10 tion. The approach of this Court to both these matters has been stated in a number of cases. In Kyriacos Mylonas and 2 Othersv. MargaritaKaili

(1967)1 C.L.R. 77, the Court said at p. 79: 15 The principles on which this Court decides appeals on the credibility of witnesses arewellsettled and we need not enter into them in detail. It must be shown that the trial Judge was wrong and the onus is on the appellant to persuade this Court. Matters of credibi- 20 lity are within the province of the trial Judge and if, on the evidence before him, it was reasonably open to him to make the findings which he did, then this Court will not interfere with thejudgment of the trial Court.' 25 This was referred to in Moustafa Imam v. PapaCostas (reported in this Vol. at p. 207 ante); and was followed in the case as well as in other cases mentioned therein". Dealing further with the question of damages the Court had this to say: 30 "This Court will not interfere with the amount assessed by the trial Court, unless persuaded that such assessment was an entirelyerroneous estimate ofthedamages towhich the plaintiff is entitled in the circumstances of the case. (Du Puch v. Georghiou and Othersreported in this Vol. 35 at p. 202 ante)." Dealing also with the apportionment of liability and having referred to thecase of Brown v. Thompson [1968]1 W.L.R. 1003 the Court said: 502 1 C.L.R. 5 10 Covotsos Textiles v. Serghiou Hadjianastassiou J. "We propose following the same course. Where no error of principle has been shown and.no misapprehension of the facts on the part of the trial Court has beenmade to appear on appeal, this Court will be reluctant to interfere with the apportionment made by the trial Court even if somewhat differently inclined. In the present appeal we have not been persuaded by either side that there are sufficient reasons for disturbing thefindingsof the trial Court; or for interfering with their assessment of the damages; or the apportionment of the liability in the District Court." Finally the Court said: 15 20 "We would add, however, that we read the part of the judgment of the trial Court referring to the duty of the employer towards his servant, and to his failure to give safety warning to his workman regarding a known danger, as expressing a view directly connected with the circumstances of thepresent case;particularly thelack ofmaturity and experience of his young workman; and the circumstances in which the exployer's instructions for the adjustment of the wire-ropes were given. In the result, both the appeal and the cross-appeal aredismissed; and in the circumstances, wemake no order for costs in these appeals." 25 In TessiChristodoulou v. Nicos SavvaMenicou and Others,

(1966)1C.L.R. 17,the plaintiff claimed damages for the severe injuries sustained by her while a passenger in the bus of the second defendant bythenegligent driving of thefirstdefendant. Thespecial damages wereagreed at £1,000and the Full District 30 Court of Kyrenia assessed the general damages at £4,000, but found that theplaintiff was60percenttoblamefor theaccident, reduced the damages accordingly, and awarded her the sum of £2,000. The plaintiff appealed against that judgment, and the defen35 dant cross-appealed. The appeal was argued on behalf of the plaintiff on three grounds, but I shall refer only to grounds (a) and (c), viz., that the finding of the trial Court as to the plaintiff's contributory negligence was not supported by the 503 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)evidence, and that the amount of general damages assessed by the Court was unreasonably low. Mr. Juitice Josephides, delivering the unanimous judgment of the Court of Appeal, said at p. 28:"It isnowconvenient todealwiththeplaintiff'sfirstground 5 of appeal, to the effect that thefindingof the trial Court that she was guilty of contributory negligence was not supported by the evidence, and with the cross-appeal of the defendants, to the effect that the finding of the trial Court that the driver was guilty of contributory negligence 10 was likewise not supported by the evidence. In considering this matter it should be borne in mind that the conclusions reached by the trial Court were conclusions of fact. There is no doubt that this Court is competent to reverse findings of fact of the Courts below 15 where there is no adequate evidence to support such findings; and to reverse conclusions based on an error in law. The question which falls for our determination is: Did the trial Court on thefindingsthey made, if such findings were supported by the evidence, apply the law 20 correctly? Now, what is the law on this point? Section 51 of our Civil Wrongs Law, Cap. 148, which reproduces the provisions of the common law on the point, provides that negligence consists of doing some act which in the circum- 25 stances a reasonable prudent person would not do or failing to do some act which, in the circumstances, such person would do, and thereby causing damage. But compensation for such damage is only recoverable by a person to whom the person guilty of neghgence owed 30 a duty in the circumstances not to be negligent. The owner of a vehicle owes such a duty not to be negligent to all persons who are carried for reward in his vehicle (Section 51

(2)(c) ) The general principle would appear to be that those 35 driving or having control of vehicles owe a duty of care to their passengers, and that if the plaintiff can show he was lawfully in the defendant's vehicle and suffered an accident of a typewhich would not normally have occurred 504 1 C.L.R. 5 Covotsos Textiles v. Serghiou Hadjianastassiou J. if that vehicle had been properly driven, then the onus will be on the defendant to show he was not negligent. Each case of this kind must depend on its own facts, and the simple test to be applied is 'did the driver in the circumstances act reasonably or unreasonably by doing something whicha reasonable personwould not do and leaving undone something a reasonable person would do?" Then, turning to the question of contributory negligence, and having quoted the case of Caswell v. Powell Duffryn Asso10 dated Collieries Ltd., [1939] 3 All E.R. 722 the judgment of Lord Atkin at pp. 730-731, he had this to say at p. 31:- 15 20 25 30 35 40 "The effect of the Caswell decision is that the standard of neghgence is in 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's own personal safety the Court must have regard to the distractions of the plaintiff or deceased at the time of the accident and to the strain and fatigue of the work which may make a workman give less thought to his personal safety that persons with less trying surroundings and preoccupations. Thus, though there is only one standard of negligence that standard is subject to qualification in all cases. The Caswell case was considered and applied in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 1AH E.R. 620, where it was held that, in any event, to constitute contributory negligence it was not necessary to show that the conduct of the passenger amounted to the breach of any duty which he owed to the defendant, but it was sufficient to show a lack of reasonable careby the passenger for his own safety. This principle was subsequently applied in the Privy Council Case of Nance v. British Columbia Electric Railway Co. Ltd. [1951] 2 All E.R. 448. 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, in the Davies case (supra), at page 628, said: 'In arriving at the conclusion at which Ido arrive, I conceive it to be my duty to look at the whole facts of the case as they emerged at the trial both of the action and of the third 505 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)party proceedings, and then, using common-sense, to try fairly to apportion the blame between the various participants in thecatastrophe for thedamagewhichthedeceased suffered*. See also page 629 in the same Report. The Daviescase, which showed that the common sense 5 approach had to beadopted, wasreferred tc with approval in a recent case by the Court of Appeal in England: See 'The George Livanos' [1965], 'The Times' Newspaper, December 14". Havingalsoconsidered anumber ofextractsfrom theevidence 10 in support of the submission that thefindingof the trial Court that the plaintiff was guilty of contributory negligence was not supported by the evidence, he had this to say:"Having fully considered these submissions and having read the whole record of the evidence, weare of the view 15 that in the present case there was adequate evidence to support thefindingsmade by thetrial Court that thedriver was guilty of negligence in driving his bus and that the plaintiff was likewise guilty of contributory negligence. Having regard to the following circumstances, that is to 20 say, that Phryne Street was a very narrow street (9 feet 9 inches with the berm), that there was a projecting wall, that the bus was 7 feet 2 inches wide and that the road had potholes and was bumpy, we are of the view that the wall was a potential source of danger and that it was the 25 duty of the driver to reduce speed and leave a reasonable safety margin between his bus and the wall, on the footing that owing to the condition of the road and the sudden swerve it was reasonable to foresee that the passengers in the bus might be knocked against the wall. Instead 30 of doing that, the driver increased speed and drove too close to the wall causing the plaintiff's arm to be crushed between the bus and the wall. Thefindingof the trial Court that the plaintiff, although acquainted with the road, did not use reasonable care 35 for her own safety in leaving her arm protruding out of the bus, is adequately supported by the evidence. It is true that if the plaintiff had not been in that position she would not have been injured, but adopting the common506 \ 1 C.L.R. 5 10 Covotsos Textiles τ. Serghiou Hadjianastassiou J. sense approach, as laid down in the Daviescase, we are of the view that the plaintiff, in the circumstances of this case, was not to blame more than the driver, so that, although we agree with all the other conclusions in the careful and well reasoned judgment of the trial Court, we do not feel that we can uphold their apportionment of liability as to 60 per cent to the plaintiff and 40 per cent tothedriver. We areof theviewthat, inthecircumstances of this case, this liability should be apportioned equally, that is to say, 50percent to the plaintiff and 50 per cent to the driver". Dealing further with the apportionment of the sum assessed as general damages, Mr. Justice Josephides went on to add:- 15 20 25 30 35 40 "The third and final ground of appeal was that the sum of £4,000 assessed as general damages by the trial Court was unreasonably low. The trial Court awarded a global sum as general damages without apportioning it under the various heads of damage, which they were entitled to do. The Court stated in their judgment that in assessing the damages they took into consideration the following: that at the time of the accident the plaintiff was a girl of 17 years of age and had been studying shorthand and typing,andthatasa result oftheaccidentshewas prevented from completing her studies and working as a shorthandtypist, and that her earning capacity was diminished as well as her choice of employment; the pain and suffering of two operation» and the probable necessity of further operations of bone grafting with the consequential pain and suffering and the considerable expense; the ugly and repulsive scars that would permanently disfigure her arm andthat shewould need expensive plastic operation abroad for skin grafting in order to reduce the scars; the loss of amenities, such as sports, and her being handicapped in the carrying out of her duties as a housewife and in doing other work requiring fine movements of the fingers; and, finally,the injury to her health arising out of the non­ union of the fracture of the bone which has remained for a long period in inter-metallary nail and restriction of the movements of the fingers due to paralysis to the nerves. 507 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)Appellant's counsel submitted that the trial Court did not take into sufficient consideration the evidence of Dr. T. Evdokas, a psychiatrist, whose evidence it was stated went much further than the irritability of the plaintiff as an after-effect of her injuries. This doctor stated that, 5 in his opinion, irrespective of the plastic operations, the plaintiff would be handicapped psychologically and liable to develop inferiority complex and that, besides the emotional aspect of the scars, her prospects of marriage were prejudiced; but headded that a successful plasticoperation 10 would improve her psychological condition". Finally, the learned Judge concluded as follows;"Having given the matter our best consideration we are notconvincedeitherthattheCourtacteduponsomewrong principle of law or that the amount awarded was so very 15 smallastomakeit,inthejudgmentofthisCourt,anentirely erroneous estimate of the damage to which the plaintiff is entitled (Flintv. Lovell[1935] 1 K.B. 354 at page 360, C.A.; Cacoyianni v. Papadopoullos, 18 C.L.R. 205; and Kemsley NewspapersLtd. v. Cyprus Wines and Spirits 20 Co. Ltd. K.E.O.

(1958)23 C.L.R. 1 at page 15). For these reasons we would not bejustified in disturbing the finding of the trial Court as to the amount of damages. In any event, we do not think that, taking all the circumstances into consideration, the amount of £4,000 assessed 25 as general damages on the basis of full liability is on the low side. In the result the appeal is allowed and the judgment of the District Court varied to the extent that judgment for the plaintiff is entered in the sum of £2,500 against 30 both defendants with costs for one advocate here and in the Court below. The cross-appeal is dismissed." In The t(KoninginJuliana", [1975] 2 Lloyds Law Reports 111at p. 112:"This was an appeal by the owners of the ferry vessel Koningin Juliana from a majority decision of the Court of Appeal (Lord Denning, M.R., Lord Justice Cairns and Sir Gordon Willmer, [1974]2 Lloyd's Rep. 353) allowing 508 35 \ 1 C.L.R.' Covotsos Textiles v. Serghiou Hadjianastassiou J. an appeal by the owners of the coaster Thuroklint from a decision of Mr. Justice Brandon, [1973] 2 Lloyd's rep. 317. The case concerned a collision which took place betweenthevessels on Jan. 1, 1971,near Harwich harbour. 5 10 Mr. JusticeBrandon had apportioned the blamebetween the vessels as to two-thirds to the Thuroklint and onethird to the Koningin Juliana. On appeal, the majority of the Court of Appeal (Lord Denning, M.R., and Lord Justice Cairns; Sir Gordon Willmer dissenting), held that the blame should be apportioned equally." Lord Wilberforce, delivering the first speech, had this to say at pp. 112-113:- 15 20 25 30 35 "My Lords, I do not propose to undertake a detailed examination of events which led to the collision. The learned Judge made careful findings of fact, which were upheld by the Court of Appeal and not challenged in this House. The advice of the Nautical Assessors was, with one exception as to which that given at the trial was preferred, to the same effect in each Court below. The report of the case, before Mr. Justice Brandon, [1973] 2 Lloyd's Rep. 317,contains a chart of the location which can be consulted: The detailed times, bearings, speeds, etc., are clearly found by the trial Judge. There is now no dispute as to the faults committed by each vessel: as totheThuroklint,inaclearandcontinuingbreachofr.25(a) of the Collision Regulations which in narrow channels requires power-driven vessels to keep to the starboard side of the fairway or mid-channel; in failing to indicate alterations of course to star-board by signals of one short blast; in going hard to starboard just before the collision. As to the Koningin Juliana, inbad look-out and appreciation; in failure to starboard sufficiently at the Buard Buoy and instead attempting to cross ahead of the Thuroklint; in failure to take steps, having steadied after starboarding on 109 deg, (true), to take off her way by stopping and reversing engines. All of these faults being found, it became a matter of appreciation to decide how they should be weighed so as to arrive at a just apportionment of blame. 509 Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)MrLords,thissummaryoftheissueis,Ibelieve, sufficient to make it clear that the caseis onewhere, thetrial Judge having made an apportionment, taking all factor;; into account, a Court of Appeal, including this House, ought not to disturb it. The modern authority which reflects 5 thisprincipleisthedecisionofthisHousein TheMacgregor, British Fame (Owners) v. Macgregor (Owners), [1943] A.C. 197; [1942]74 LI. L. Rep. 82,where the reasons for the rule are clearly and authoritatively stated. I shall not repeat them: they are as valid and as generally appli- 10 cable today. Of subsequent cases relied on as to some degree diminishing the force of The Macgregor I need only refer to two. In TheAlmizar,[1971]2 Lloyd's Rep. 290, the apportionment of the trial Judge, was reversed after hiscrucialfinding,onadvice, had, on different advice, 15 been rejected by the Court of Appeal. On further advice in this House, the apportionment was further varied. I think that it is clear that in both appeal Courts the new apportionment was based upon the advice those Courts had received, so that the factual elements upon which the 20 apportionment has to bebased werenot the same. Variation of the apportionment in these circumstances is clearly authorized by the Macgregor (sup). In The British Aviator, [1965] 1 Lloyd's Rep. 271, the trial Judge's apportionment (two-fifths—three-fifths) was 25 altered by the Court of Appeal to equal apportionment. Nofreshfindingsoffact weremadebythe Court ofAppeal nor were the findings of the Judge disagreed with. The revision was made on the basis that the Judge had taken 'a wrong view of the facts': he did not 'appreciate the 30 seriousness of the fault' of the Crystal Jewel. Mr Lords, I must say that I doubt the validity of this decision and I note that Lord Justice Willmer, whose authority lends its weight, himself clearly thought the case to be on the borderhne (see p. 278). I deprecate the use of this case 35 as a basis for weakening of theMacgregor rule. Attempts were made by learned Counsel forThuroklint to discovererrors,orerrorsofappreciation,inthejudgment of the trial Judge, but in my opinion these were not made good. The only criticism which appeared possibly to 40 have any substance was that he had grouped three faults 510 1 C.L.R. 5 10 15 Covotsos Textiles v. Serghiou Hadjianastassiou J. of the Koningin Juliana into one 'composite fault'. But if does not follow from this that he failed to give proper weight to the elements forming the composite fault, or that he would have given more weight to them if he had regarded them as separatefaults. I certainlyfinditimpossible to believe that he was led, by his description, into the crude mathematical sum suggested by ths learned Master of the Rolls. The efforts of Counsel were still less successful when applied to the judgment of Lord Justice Willmer. This, in my respectful opinion, is clear, correct and unanswerable and Iwould becontent to accept the whole of it. The majority of the Court was unable to establish the necessary foundation for departing from the Judge's apportionment. I would allow the appeal and restore the judgment of Mr. Justice Brandon. The appellants should have their costs in this House and in the Court of Appeal". For the reasonswehavegiven at length, and inthe particular circiunstances of this case, and adopting the common sense 20 approach, as laid down in the Daviescase (supra), we have decided to uphold the trial Court's apportionment of liability, viz., 50 per cent to the respondent and 50 per cent to the appellant, once both the respondent and the appellant were equally to blamefor thefaults whichthetrial Court had found, 25 and because it became a matter of appreciation to decide how they should be weighed so as to arrive at ajust apportionment of blame. Aswesaidearlier,oncethetrialCourthadmadeanapportionment, having taken all factors into account, this Court ought 30 not to disturb it: (See the Koningin Juliana(supra) ). With that hi mind, we would dismiss the contention of counsel for theappellants that theamount ofdamages of£7,000ascribedby the trial Court as general damages is manifestly excessive, havingregard to the injuries of the respondent and the medical 35 evidence before the trial Court. Finally, we ought to state that in spite of the fact that the trial Court, in assessing general damages has not specified the heads under whichgeneral damageswereawarded, nevertheless, we think thai in awarding a global sum as general damages 511. Hadjianastassiou J. Covotsos Textiles v. Serghiou

(1981)without apportioning it under the various heads of damages, the Court was entitled to do so. For the reasons wehave given, and in thefightof the authoritiesquoted, weare not convinced either that the Court acted upon some wrong principle of law orthat theamount awarded 5 was so very high as to make it, in thejudgment of this Court, an erroneous estimate of the damages to which the respondent is entitled. Indeed, we would not be justified in disturbing thefindingofthetrial Court Courtastotheamount ofdamages, because after taking all the circumstances into consideration, 10 the amount of £7,000 as general damages on the basis of full liability is not on the high side. Counsel for the respondent, after fifing a cross-appeal, complained that the trial Court erred in finding that the respondent contributed to the accident to the extent of 50 per 15 centhavingregard totheevidenceadduced,andthat theamount of£7,000forgeneraldamagesonafull liability basisisunreasonably low, having regard to the injuries sustained and/or the incapacity suffered by the plaintiff. We have considered the contention of counsel, but in the 20 particular circumstances of this case, we think that the trial Court correctly apportioned the liability of both parties and correctly reached the conclusion that the amount of£7,000was the proper one in the light of thefindingsof fact made by the trial Court. 25 In the result, both the appeal and cross-appeal are dismissed and the judgment of the District Court is affirmed. The appellants to pay to the respondent half thecosts of theappeal. Appeal and cross-appeal dismissed. Order for costs as above. 30 512