(1982)1982 February 9 [MALAfHTOS, J.] ALEKOS KYRIACOU, Plaintiff, v. C.N. SOURAS & CO. LTD., Defendants. {Admiralty Action No. 64/74). Negligence—Unloading of ship—Neck of winchin an oblique direction and not vertically over sling—Which swang towards the plaintiff and injured him as soon as it wa*lifted up—IVinchman orhatch* man acted negligently. Afaster mid servant—-Vicarious liability—Common law doctrine of common employment—-Abolition—Aiaster now liable for negligence of his servants towards theirfollow servants—Section 13
(1)of the Civil Wrongs Law, Cap.
- 5 Damages—General damages—Personal injuries—Tally clerk aged 45 sustaining deep laceratior. of left lower leg—Moderate amount 10 of pain and suffering—Out of workfor 41 days—Injury healed but slight depreciation of the reserve muscle power could be entertained—Award of £
- Whilst the plaintiff was employed by the defendants as a tally clerk on board the ship"MARIA III", which was unloading 15 genera' cargo at the port of Limasso', he was involved in an , accident and sustained personal injuries. At the time of the accident the ship was unloading bundles of iron bars by using two winches. One winch was used to lift the sling up and the other winch was used to pull the sling sideways to the spot 20 of unloading. At about noon a sling load of iron bars was hooked by the first winch in order to be lifted up, but as the ne-k of the winch was in an oblique direction and not vertically over the sling, as soon as it was lifted up, swang towards the plaintiff who was at the time standing on the twin deck at a 25 138 1 C.L.R. 5 10 15 20 25 30 35 40 Kyriacou v.Sotiras & Co. distance of about six metres away from it and hit him on the left leg. When plaintiff saw the load coming towards him he tried to avoid it by running away but he was unable to do so as the hatches of the lower deck were open and was thus obliged to stop to avoid falling in. The plaintiff, who was 45 years of age at the time of the accident, sustained a deep laceration of the left lower leg and had to put up with moderate amount of pain and suffering initially which slowly diminished over the following months. The injury was well healed and there was no evidence of muscle hernia. Because of the reported muscle injury a slight depreciationof thereservemusc'epowercould beentertained. Plaintiff stayed out of work for 41 days. In an action by the plaintiff for damagesdefendants adduced no evidence to substantiate the allegations contained in tbeir answer and the case was decided on the evidence adduced by the plaintiff. Held,
(1)that it is clear from the evidence of the plaintiff, whichitisacceptedastrueandcorrect,thattheaccidentoccurred due to the negligence of the winchman or the hatchman, who, presumably, were in the service of the defendants, who arc entirelytoblameandnocontributory negligencecanbeattributed totheplaintiff;thatsincetheabolitionofthedoctrineofcommon employment, a master isliablefor the negligence of his servants tofellow servants;andthat, therefore, thedefendants as masters of the winchman or hatchman are liable towards the plaintiff for the negiglence of hisfellow servants (see Kezou v. Comarine ltd.
(1978)1C.L.R. 334 and section 13
(1)of the Civil Wrongs Law, Cap. 148).
(2)That taking into consideration the extent of the injury of the plaintiff, in the light of the medical evidence, his pain and suffering and all other relevant factors, an amount of £350 general damages will be reasonable; that, adding to the general damages an amount of£381.850mils specialdamages,judgment will be given in favour of the plaintiff in the sum of £731.850 mils with costs. Judgment for plaintiff for £731.850 mils with costs. Cases referred to: Kezou v. ComarineLtd.
(1978)1 C.L.R. 334 at p. 336. 139 Kyriacou v. Souras & Co.
(1982)Admiralty Action. .Admiralty action for special and general damages in rcpect of injuries sustained by ths plaintiff in an accident in the course of his employment with the defendants. B. Vassiliades, for the plaintiff. 5 M. Papas, for ths defendant. Cur. adv. vult. MALACHTOS J. read the following judgment. The plaintiff in this Admiralty Action is a tally clerk in Limassol and the defendants are a shipping agency carrying on business also 10 in Limassol. On the 9th August, 1974, the plaintiff, while employed on board theship "MARIA III"whichwasunloading general cargo at the port of Limassol, was involved in an accident as a result of which he sustained personal injuries. He instituted the 15 present proceedings claiming special and general damages against the defendants as his employers and/or as agents of undisclosed principals and/or as charterers of the said ship. In the petition, plaintiff alleges that the accident occurred as a result of the negligence and breach of statutory duty and/ 20 or breach of contract on the part of the defendants and/or their agents and servants. On the other hand, the defendants in their answer, admit that the plaintiff was engaged by them as a tally clerk but in their capacity as agents of the owners and/or charterers of the 25 ship "MARIA IU". They deny the special and general damages claimed by the plaintiff and further allege that the accident occurred due to the negligence and/or contributory negligence of the plaintiff. Finally, they allege that thf plaintiff voluntarily and freely with full knowledge of the nature of the risk heimpli- 30 edly agreed to incur it by entering into the hatch and/or holdj of the said ship contrary to the repeat:d and express instructions of the defendants though his duties were the checkirg of ths cargo afte. the same passed the-ship's rail and was landed. Asto how the accident occurred theplaintiff ingivingevidence 35 stated that on the 9th August, 1974, hs was engaged by the defendant company, whom he considered at all times as his employers, as a tally clerk on board the said ship, which was 140 1 C.L.R. Kyriacou v. Souras & Co. Malachtos J. at the time of the accident unloading bundles of iron bars. Two winches were engaged in unloading these iron bars, the one winch was used to l;ft the sling up and the other winch was u;ed to pull the sling sideways to the spot of urloading: 5 At about noon a sling load of iron bars was hooked by the first winch in order to be lifted up,but as the neck of the winch was in an oblique direction and not vertically over the sling, as soon as it was lifted up,swangtowards the plaintiff who was at the time standing on the twin deck at a distance of about six 10 metres away from il and hit him on the left leg. He further stated that when he saw the load coming towards him he tried to avoid it by running away but he was unable to do so as the hatches of the lower deck were open and was thus obliged to stop to avoid falling in. Soon after the accident he was taken 15 to the Limassol hospital where he received medical treatment, as an outpatient. 20 25 30 35 As a result of the accident he suffered considerable pain and stayed out of work for 41 days. In fact, he was given sick leave as from the 9th August, 1974 to 20th September, 1974. At the time of the accident the plaintiff was 45 years of age and his earnings were £250.—per month. He paid as hospital fees £4.700 mils, £20.500 mils for drugs, £5.—for the medical report from the hospital and £10.—for his travelling expenses. In cross examination the plaintiff denied that when he was engaged by the defendants he knew that they were the agents of the shipowners or of the charterers. He also denied that he was given instructions not to enter the hold of the ship but, on the contrary, he stated that according to an agreement with the shipping association, tally clerks had to stand inside the hold when checking the cargo because in this way they can see the various marks on the merchandise and enter them in the manifest of the ship. According ίο the 'wo medical certificates, the cne issued by the treating medical officer at the hospifal and the other by a medical practitioner who examined the plaintiff on behalf cl the defendants, his injur., was reported to have been a large irregular deep laceration of the inner aspeel of the lower third of the left leg, measuring 12 cm. in length with laceration of 141 Malacfatos J. Kyriacou v. Souras & Co.
(1982)ht underlying muscles and fascia. Tht lacciation was sutured and the leg bandaged. Because of the extent of the laceration and infection the wound tookabout three months to heal completely. On examination on Octobei 2nd, 1976, the findings weie the following: 5
- Roughly 12x3cm.,irregular discolorated scar of the inner aspect of the lower third of the left leg. The scar was mostly soft and in one or two spots adherent to deeper structure.
- No fascial defect was detected. 10
- Hypoesthesia to the touch at the level of the scar.
- No limitation of therange of movement of the left ankle, but the plaintiff was complaining of numbness of the injured leg after getting tired and of occasional itching of the scar. 15 According to the medical opinion the plaintiff sustained a deep laceration of the left lower leg in an accident at work about 26 months prior to the final examination and he had to put up with moderate amount of pain and suffering initially, slowly diminishing over the following months. The injury 20 resulted in permanent scarring which constitutes a more vulnerable spot for injury. The injury lo the fascia has well healed and there is no evidence of muscle hernia. Because of the reported muscle injury aslight depreciation of thereserve muscle power could be entertained. 25 No evidencewascalled onbehalf of thedefendants to substantiate the allegations contained in their answer and the case was left to be decided on the evidence already adduced by and on behalf of the plaintiff. It is clear from the evidence of the plaintiff, which I accept 30 as true and correct, that the accident occurred due to the negligence of the winchman or the hatchman, who, presumably, were in the service of the defendants, who are entirely to blame. No contributory negligence can be attributed to the plaintiff. Since the abolition of the doctrine of common employment, 35 a master is liable for the negligence of his servants tto fellow 142 Kyriacou v. Souras & Co. 1 C.L.R. Malachtos J· servants. Inthecase of Kezou v. Comarine Lid.
(1978)1C.L.R. 334, A. Loizou J., in dealing with the doctrine of common employment had this to say at page 336: 5 1ο 15 20 "In the past, under the common law doctrine of common employment, the employer would not be liable where one servant was injured as a result of the negligence of a fellow servant. That common law principle was incorporated in paragraph (a) of the proviso to section 13
(1)of the Civil Wrongs Law, Cap. 9 of the 1949 edition of the Statute Lawsof Cyprus. Itprovided that'subject tothe provisions of any enactment as to workman's compensation or employer's liability a master shall not be liable to one of his servants for any civil wrong committed against such servant by another of his servants unless the master shall have authorised or ratified such civil wrong'. The radical changes brought about in this field of the Law in 1953, abolished also the doctrine of common employment. Section 13 was amended by section 6 of Law 38 of 1953 andtheaforesaid paragraph (a)of the proviso, was deleted. Section 13
(1)in so far as relevant now reads: *_-. amaster shallbeliable for anyactcommitted by this servant (
- a)25 (
- b)which was committed by his servant in the course of his employment: 30 Provided that a master shall not be liable for any act committed by any person, not being another of his servants, to whom his servant shall, without his authority, express or implied, have delegated his dutv '· 35 The deletion of the previous paragraph and the wording ofthenewsection,leavenoroomfor doubtthatthedoctrine of common employment was abolished by section 1
(1)of the Law Reform (Personal Injuries) Act, of 1948 a few years earlier in England. An employer, therefore, is now liable for the negligence of his servants towards one another in the same way as 143 Malachtos J. Kyriacou v. Souras & Co.
(1982)he is liable for their negligence towards third parties. He is, however, so liable, if the negligence occurs in the course of their employment, and this is the situation in the present case. Consequently, the defendant Company is liable to the plaintiff for the injuries he suffered as a 5 result". On the question of special damages, although the defendants in their answer deny them, not only, as I have already said, did not call evidence to substantiate their allegations, but even the plaintiff himself was not crossexamined at allonthis subject. 10 Taking into consideration the evidence of the plaintiff I assess the special damages in the amount of £381.850 mils. As regards the question of general damages, taking into consideration the extent of the injury of the plaintiff, in the light of the medical evidence, his pain and suffering and all other 15 relevant factors, I consider that an amount of £350.—in the case of the plaintiff will be a reasonable one. For the reasons stated above, Judgment is given in favour of plaintiff in the sum of £731.850 mils with interest thereon at 4% per annum as from today to final payment, with costs 20 to be assessed by the Registrar. Judgment for plaintiff for £731.850 mils with costs. 144