(1982)1982 September 6 [A. Loizou, SAVVIDES A N D STYLIANIDES, JJ.] ANDREAS CHARALAMBOUS, Appellant-Plaintiff, v. METALCO LTD., Respondents-Defendants. {Civil Appeal No. 6217). Negligence—Master and servant—Sufe system of work—Piece of zinc detached and injuring labourer's eye whilst engaged in cutting a zinc sheet with the help of a cutter and a hammer—Labourer supplied withprotective goggles butfailing to wear them—Method used by labourer well known to him, the best one in the circum5 stances of the case and quite safeprovided that he usedhis protective goggles—Labourer the most competent person to decide how to do the work and what tools to use—Failure of employer: to supply him with a pair of scissors in order to do the work does not render them liablefor the accident—They wereunder no duty 10 tosupervise his work in order to ensure that he could not do anything whichhe well knew might be unsafe—Bux v. Slough Metals Ltd. [1974] 1 All E.R. 262 distinguished. Civil Procedure—Practice—Pleadings—Averments on which a party will rely at the trial must be set out in the pleadings. 15 The appellant has been in the employment of the respondents for 18 years as an expert in theconstiuction of metallic doors. On May 4, 1978he pioceeded from the workshop of the respondents carrying with him the necessary tools and materials for the purpose of fixing some doors at a construction work under- 20 taken by the respondents. In fixing the doors it was necessary foi him to cut small pieces of zinc from a zinc sheet. He placed the zinc sheet on iion bais at a height of 16" and with the help of a cutter and a hammer he was engaged in cutting small pieces of zinc; whilst so doing, a piece of zinc flew into his right eye 25 and injured it. 636 1 C.L.R. 5 10 15 20 25 30 35 Charalambous v. Metalco Ltd. It was an undisputed fact that the respondents had provid d him with goggles to use when engaged in his work, which he wasnot wearing at the material time. He neither made use of another pair of goggles of his own, which, for reasons of his own, he preferred to those supplied by the respondents. The explanation he gave for not wearing his protective goggles was because, as he said, "he was working in the sunshine and the sunwould reflect into hisgogglesif hecontinued towear them". Whenasked whyhedid not moveto a placewheretherewasno sun so as to reflect into his goggles,the plaintiff stated that "he hadnotimetodosoashewasinahurrytocarry out the woik". Inanaction againsttheemployersfor damages thetrial Court, after finding that the appellant was an expert in thefieldof his employment andit wasupon him todecidewhattoolsheshould useand decide how to do a particular work, concluded that the cause of the injury could be attributed to the failure of the appellant to wear either the goggles provided by his employers or even his own goggles and dismissed the action. Hence this appeal. Counsel for the appellant mainly contended that the respondents failed to discharge their duty, imposed upon them both under the common Law and the statute, to provide a safe system of work and proper supervision. Appellant was not complaining against anyfailure of therespondents in connection with the goggles but his only complaint was for the failure of the respondents to supply him with a pair of cutting scissors which if used would not have brought about his misfoitune. As to this complaint, which he advanced at the hearing, there was no allegation in the paiticulars set out in ihe statement of claim that the system of work was not safe. In support of his contention counsel relied on the case of Bux v. SloughMetals Ltd. [1974] 1All E.R. 262, in which an accident occurred as a result of the failure of a workman to wear goggles and though it wasfound that there was no breach of statutory duty, nevertheless the defendants werefound guilty of negligence foi breach of their common law duty to maintain a reasonably safe system of work by giving the necessary instructions and enforcing them by supervision. Held,that from the totality of the material this Court finds 637 Charalambous \. Metalco Ltd.
(1982)itself in agreement with the finding of the trial Court that the caUuCof the injury can beattributed to thefailure of the appellant to wear his protective goggles; that the non-provision of a paii of scissors was not expressly relied upon in the statement of claim, and it cannot be said that it falls by implication within '5 such pleadings; that from the totality of the evidence, however it appears that the absence of a pair of scissors does not throw the blame of the accident on the shoulders of the respondents, because the method used by the appellant to cut thin sheets of metal with a cutter and a hammer, a method well known to 10 him and occasionally employed by him in the factory and which, according to the evidence adduced by the respondents was the best one in the circumstances of the case and quite safe provided that the appellant used his protective goggles; that in the circumstances of the c?.seend in the light of the experience 15 of the appellant and the fact that he was the most competent person to decide how to do the work and what tools to use, expecting no instructions or supervision in such respect by anyone, it could not be said that the respondents had a duty to supervise his work in order to ensure that he could not do 20 anything which he well knew might be unsafe (Bux case, supra, distinguished); accordingly the appeal must fail. Appeal dismissed. Cases referred to: Bux v. Slough Metals Ltd. [1974] I All E.R. 262; 25 Kakou v. Adriatica and another
(1980)1 C.L.R. 357; Perentis v. General Constructions
(1981)1 C.L.R. 1; Kyriacou v. Eliades Ltd.
(1981)1 C.L.R. 373; Speed v. Thomas Swift & Co. Ltd. [1943] 1 All E.R. 539; Courtis v. Iasonides
(1970)1 C.L.R. 180 at pp. 182, 183; 30 Mahattou v. Viceroy Shipping
(1979)1 C.L.R. 542; Federated Agencies v. Tsikkos
(1979)1 C.L.R. 134; Norris v. Syndic Manufacturing Ltd. [1952] 1 All E.R. 935 at p. 940; Winter v. Cardiff Rural District Council [1950] 1 All E.R. 819; Panayi v. Georghios Galatariotis and Sons Ltd.
(1971)1 C.L.R. 416 at p. 418. 638 35 1 C.L.R. Charalambous v. Metalco Ltd. Appeal. 5 10 Appeal by plaintiff against the judgment of the District Court of Nicosia (HjiConstantinou and Nikitas, S.D.JJ.) dated the 19th December, 1980, (Action No. 544/79) whereby his action for damages for personal injuries suffered by him in the course of his employment as a result of the alleged negligence and/or breach of statutory duty of the defendants was dismissed. C. Hadjiioannou, for the appellant. A. Dikigoropoulos, for the respondents. Cur. adv. vult. A. LOIZOIι J.: The judgment of this Court will be delivered by Mr. Justice Savvides. SAVVIDES J.: This is an appeal from thejudgment of the Full 15 District Court of Nicosia whereby appellant's actionfor damages for personal injuries suffered by him in thecourse of his employ ment as a result of the alleged negligence and/or breach of statutory duty by the defendants was dismissed. 20 25 The accident which resulted to appellant's injury, occurred whilst the appellant in the course of his employment was cutting a zinc sheet when a small piece of zinc was detached andflew into his right eye and injured same. The circumstances as to how the accident occurred as found by the trial Court on the evidence before*it and which are warranted by such evidence, are as follows: The appellant is 57years old and had been in the employment of the respondents since 1960, that is, for 18 years prior to the date of the accident as an expert in the constru ction of metallic doors. On 4.5.1978 he proceeded from 30 the workshop of the respondents to the grounds of the International State Fair carrying with him the necessary tools and materials for the purpose of fixing some doors on a kiosk, as the respondents had undertaken certain construction work at the International State Fair. In fixing 35 the doors it was found necessary for the appellant to cut small pieces of zinc from a zinc sheet in order to use such pieces for closing certain holes. Thus, he placed the zinc sheet on iron bars at a height of 16" inches and with the help of a cutter and a hammer he was engaged in cutting small pieces of zinc; 639 Savvides J. Cbaralambous v. Metalco Ltd.
(1982)whilst so doing, a piece of zincflewinto his right eye causing him the injury complained of. It is an undisputed fact that the respondents had provided him with goggles to use when engaged in his work which he was not wearing at the material time. He neither made use 5 of another pair of goggles of his own, which, for reasons of his own, he preferred to those supplied by the respondents. The explanation hegave for not wearing his protective goggles as appearing in the judgment of the trial Court, was because, "as he said, he wasworking in the sunshineand the sun would 10 reflect into his goggles if he continued to wear them". When asked why he did not move to a place where there was no sun so as to reflect into his goggles, the plaintiff stated that "he hadnotimetodosoashewasinahurrytocarryoutthework". The appellant, according to his evidence and that of his wit- 15 nesses, wasan expert in thefieldof his employment and it was upon him to decide what tools he should use and decide how to do a particular work. Thetrial Court in making its findings on this point, had this to say in itsjudgment: "He further stated that it washe,alone,whodecided which 20 tools and instruments he should use and he should take with him from the factory. He accused his employers for failing to provide himwitha pair of scissorsfor cutting zinc which was not even available at the workshop so that he could take it with him at the place of work, and 25 which, as he explained, could beused on a working bench. He said that a big electrical pair of scissors was available in the workshop but this could not be carried to other places of work. Plaintiff's witness No. 2 stated that the plaintiff was 30 not working at the material time under the supervision of anybody. The evidence of this witness supports the evidence of the plaintiff and adds that the plaintiff was the expert in hisfieldin theemployment of the defendants. He also adds that the plaintiff was receiving instructions 35 what to do but it was up to the plaintiff himself to decide how to do the work and what instruments to use. P.W.3 wasa supervisor inthe employment of the defend640 1 C.L.R. 5 10 15 20 25 Cbaralambous v. Metalco Ltd. Savvides J. ants. He was not at the material time supervising the workoftheplaintiff;hewouldonlycheckandberesponsible for the quality of the work done by the plaintiff but it was the plaintiff who wasthe expert and was the one to decide how to do the work properly and in the present case how to cut the zinc pieces. When asked if he would provide the plaintiff with a pair of scissors had he been asked by the plaintiff, he replied in the affirmative, adding that he could not have foreseen the need for such pair of scissors in view of the fact that the plaintiff was the expert, as aforesaid. When asked whether such pair of scissors was available in the store of the defendants he replied that he was not aware. There is no evidence to the effect that, had such pair of scissors been available and been used by the plaintiff at the material time the accident would not have occurred. On the other hand, had the plaintiff been using either his employers' or his own goggles at the material time, we would reasonably expect that the piece of zinc would have been prevented from flying into his eye. We give noweighttotheplaintiff's allegation that,ifhewaswearing hisgogglesat thematerialtimetherewasariskofthepiece of zinc hitting on to them, breaking them, and causing more serious injuries to his eye. On the contrary, we find that the cause of the injury can be attributed to the failure of the plaintiff to wear either the goggles provided by his employers or even his own goggles". Learned counsel for the appellant in arguing his grounds of appeal against thefindingsof the trial Court submitted that 30 thefindingof the trial Court that appellant was an expert in his field was not warranted by the evidence before it. He contended that appellant was merely a skilled metal worker and this fact did not discharge the respondents of their duty to provide a safe system of work and proper supervision and 35 that in thepresent casethey failed to discharge suchdutywhich wasimposed upon them both under the Common Law and the Statute. In support of his argument counsel for appellant made reference, amongst others, to the case of Bux v. Slough Metals 40 Ltd. [1974j 1All E.R. 262,in which an accident occurred as a 641 Savvides J. Cbaralambous v. Metalco Ltd.
(1982)result of the failure of a workman to wear goggles and though it was found that there was no breach of statutory duty, nevertheless the defendants were found guilty of negligence for breach of their common law duty to maintain a reasonably safe system of work by giving the necessary instructions and enforcing them by supervision. 5 The duty of the master towards his servants to provide a safe system of work, finds its roots deep into the Common Law. The Common Law has from early times imposed a duty on the master to take fitting care to see that the servants, 10 jointly engaged with him in carrying on his work or industry, shall not suffer injury, either in consequence of his personal negligence, or through his failure properly to superintend and control the undertaking in which he and they are mutually engaged. A breach of this duty causing personal injury has 15 always given the servant a right of action for reparation. For his own personal negligence a master was always liable, and still is liable, at Common Law. (Vide Halsbury's Laws of England, Third Edition, Vol. 25, p. 505, para. 969). This Court on a number of occasions had the opportunity 20 of reiterating the primary duties owed by a master for the safety of his servants (see the recent cases Kakou v. Adriatica and another
(1980)1 C.L.R. 357; Perentis v. General Constructions
(1981)1C.L.R. 1; and Kyriacouv. Eliades Ltd.
(1981)1 C.L.R. 373). In Kakou v. Adriatica and another(supra) the Court had this to say at p. 367:"The primary duties as to safety owed by a master to his servant have been said to be threefold:
(1)To provide a competent staff;
(2)to supply adequate materials (such 30 as proper machinery, plant, appliances, etc.); and
(3)to institute and maintain a proper and safe supervision where necessary. (Vide Wilsons & Clyde Coal Co. v. English, [1938] A.C. 57 per Lord Wright at p. 81 and per Lord Maugham at p. 86). To these must beadded the obligation 35 to observe all statutory regulations enacted for the workman's safety. 'It is no doubt convenient*, said Parker L.J. in Wilson v. Tyneside Window Cleaning Co. [1958] 2 All E.R. 265 642 25 1 C.L.R. 5 Ctaaralambous v. Metalco Ltd. Savvides J. *to divide that duty into a number of categories; but for myself, I prefer to consider the master's duty as one applicable in all circumstances, namely, to take reasonable care for the safety of his men, or, as Lord Herschell said in the well-known passage in Smith v. Baker & Sons, [1891] A.C. 325, to take reasonable care so to carry out his operation as not to subject those employed by him to unnecessary risk* ". A system of working may consist of a number of elements 10 and what exactly it must include will depend entirely on the facts of the particular case (see Speed v. Thomas Swift & Co. Ltd. [1943] 1 All E.R. 539). In Perentis v. General Constructions (supra) the Court said at pp. 11, 12, 13: 15 20 25 30 35 "Before proceeding any further we wish to quote also the passage from thejudgment of Lord Oaksey in the case of Winter v. Cardiff R.D.C. [1950] 1 All E.R., p. 819— quoted also by the trial Court—with regard to the question of the safe system of work, where at pp. 822 and 823 he had this to say: 'In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of these circumstances is that he is an employer of labour and it is,therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate precautions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise hisdiscretion and there are other spheres in which foreman and workman must exercise theirs. It is not easy to define these spheres but where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing difficult functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, when the operation is simple and the decision how 643 Savvides J. Charalamboos v. Metalco Ltd.
(1982)itshallbedone,hasto betakenfrequently, itisnatural and reasonable that it should be left to the foreman or workman on the spot'. On the aforesaid pronouncements and on the facts of the case, we agree with the trial Court that the respondents 5 employers had discharged their duty as masters to take reasonable care for the safety of their workmen. The method with which the scaffold had to be carried was reasonable and comprehensible and the plaintiff himself wasthe senior employee of those involved in the operation 10 and to whom the instructions of the foreman had been given. A sufficient number of persons was assigned to the job which was not dangerous if carried horizontally inaccordance withtheinstructionsandthisisnotaquestion of law at all, but a question of fact and as Lord Denning 15 put it in the case of Qualcast (Wolverhampton) Ltd., v. Haynes[1959] 2 All E.R., p. 38, at pp. 44 and 45: ' „ _ What did reasonable care demand of the employers in this particular case? That is not a question of law at all but a question of fact. To 20 solve it, the tribunal of fact—be itjudge orjury—can take into account any proposition of good sense that isrelevant inthecircumstances,butitmustbeware not to treat it as a proposition of law. Imay perhaps draw an analogy from the Highway Code. It contains 25 many propositions of good sense which may be taken into account in considering whether reasonable care has been taken, but it would be a mistake to elevate them into propositions of law'. The trial Court further examined, of course, in relation 30 to this issue the question whether the foreman ought to have stayed there in orderto makecertain that hisinstructions were executed strictly and to supervise the whole operation anditcametotheconclusionthat therespondents have not failed through their foreman in the discharge of 35 their duties towards their employee inasmuch as the appellant himselfnot onlyhewasoneofthesenioremployees involved in the operation but also was related to the foreman, a fact from which it might safely be inferred that theforeman had goodgrounds outsidetheprofessional 40 C44 1 C.L.R. 5 10 Charalambous v. Metalco Ltd. Savvides J. field for trusting the judgment and reliability of the appellant. Moreover, the foreman had seen to the carrying out of the preparatory work and having given good, sound, workable and reasonable instructions to a competent senior employee for a job quite simple in nature and quite safe in execution, provided, of course, the instructions given were followed and very rightly the trial Court found that further supervision by him was unnecessary and that what the appellant and the other labourers in that group did, could not be foreseeable by any reasonable person". It has been contended bycounsel for the appellant that appellant was not an expert as found by the trial Court but merely a skilled metal workei. We-find ourselves unable to agree with such contention. The finding of the trial Court in this 15 respect is amply warranted by the evidence before it. As to the experience of the appellant, the mode he was carrying out his work on the day when the accident occurred and the devices provided by the respondents to enable him carry out his work, the following appear in the record of the proceedings before 20 the trial Court, which is before us. In Plaintiff's evidence: ^ "Q. Since 1960 did anybody instruct you? '•"• A. No because having worked for too many years I had experience and this was a special case". 25 On being asked as to whether, when a welding work was necessary he was the person to decide as to how the work was to be done his answer was "I am the one to dtcide"; and on the question of the necessary tools to be used for such work his answer was to the same effect "1 decide". 30 As to the part the foreman had to play, he agreed that the foreman did not have to tell him what to do and how to do it as he himself had to decide how the work was to be done. He also admitted in his evidence that he had been supplied with protective goggles which he normally used to wear, but on the 35 day when the accident occurred he was not wearing them. When asked as to whether his employers had failed to do anything which they had to do in connection with the goggles, his answer was in the negative saying that his complaint was 645 Savvides J. Cbaralambous v. Metalco Ltd.
(1982)not about the goggles but because of the failure to provide him with a pair of cutting scissors and so he had to cut the zincsheetswithacutter andahammer. Headmitted, howevei, that even when working in the factory, the method employed for cutting thin pieces of metal was by using a cutter and a 5 hammer but in such cases the metal sheet was placed on a wood bench about 3 feet high. The respondents in fact, at their factory, had a pair of electric scissors which was being used for cutting metals, but such scissors were weighing 8-10 tons and could not be used for out of doors work. 10 Appellant's witness 3,a technical assistant of the respondents in charge of metallic constructions said in his evidence: "Q. Did you give them any instructions as to the construction of the door? A. No. Andreas Charalambous (the appellant) was 15 sent by the Manager to the place of work, to do this work. Of course I was responsible to supervise him and supply him with anything required by him Q. If Mr. Charalambous had told you, before leaving the factory that a pair of cutting scissors wasnecessary 20 would you have supplied him? A. Ofcourse I would not have refused. It wasnotsomething that could be foreseen and that its use was necessary for cutting this type of metal sheet Q. On the day when the accident occurred who was the 25 person to decide how the metal sheet was to be cut? A. Naturally the person who was going to cut it". Thiswitnesson beingasked asto whetherappellant requested him to do anything for the carrying out of the work in another manner, he replied in thenegative. On thequestion ofprotect- 30 ive goggles he said: "He had to use the goggles always. He was always consistent concerning goggles and from what I know he had also a pair of goggles of his own which he was using". 646 1 C.L.R. Charalambous v. Metalco Ltd. Savvides J. A witness who testified for the respondents, theirproduction manager,said in his evidence thattheappellant hadparticipated in a course of lessons for security of workmen which was organised by the Government Productivity Centre. He also 5 said that all workmen employed by the respondents at their factory were supplied with protective equipment which they were instructed to use and whenever anyone failed to use it he was being asked to do so. Referring to the use of goggles by the appellant he said: "Mustakas (a nickname of the 10 appellant) knew that he ought to wear his goggles, something he always did, but on that occasion I do not know if he was wearing them". He further described the type of goggles supplied to the appellant,which according to his evidence, had glasses specially 15 madetoresist ablowonthemandincasetheblowwas a forcible one likely to break them,they smashed into small pieces which could not injure theeye. Healso said thatthemannerinwhich the work was carried out by the appellant on the day when the accident occurred, that is by cutting a thin piece of zinc 20 sheetwith acutterandahammerwas thebest oneinthe circum stances. The appellant did not attempt to throw any blame on the respondents for failure to supply him with protective gogglesor for not instructing him to wear them. No such allegation 25 appears in the particulars set out in the statement of claim, and in his evidence he said that respondents had not failed to do anythingwhichtheyhadtodoinconnectionwith thegoggles andthathisonlycomplaintwas for thefailure of therespondents to supply himwith apair of cuttingscissorswhich if used would 30 not have brought about his misfortune. As to this complaint, which he advanced at the hearing, there is no allegation in the particulars set out in the statement of claim that the system of work was not safe. Paragraph 5of the claim reads as follows: "5. The system of work would have betη safe if: 35 (i) The zinc sheet should have been placed on a wooden stand ortable orbars andtheplaintiff towork standing and not by leaning on the ground where the said sheet was. (ii) There should have been proper supervision by a fore647 Savvides J. Charalambous v. Metalco Ltd.
(1982)man or by other defendants' employee, who would have seen that the necessary instructions as to the safety were given and were followed. (iii) The workers were instructed: As to the manner of cutting the zinc so that pieces flying from the sheet would fly away from and not onto them". 5 It has been stressed time and again that any averments on which a party in the action will seek to rely at his trial must be set out in his pleadings. In Courtisv. fasonides
(1970)1C.L.R. 10 p. 180Vassiliades P. had thisto say as to the object of the pleadings, at pp. 182, 183: "The pleadings in an action are the foundations of the litigation; they must be carefully prepared as the set of rails upon which the train of the case will run. The Civil 15 Procedure Rules (Or. 19,r.4) are clear on the point; and daily practice lays stress on the need to apply strictly this rule. A case is decided on its pleaded facts to which the law must be applied. If in the course of the trial it appears that a party's pleading requires amendment, steps 20 for that purpose must be taken as early as possible in order to give full opportunity to the parties affected by the amendment to meet the new situation; to run their case, so to speak, on the new rails". (See also, inter alia, Mahattou v. Viceroy Shipping
(1979)25 1 C.L.R. 542 and FederatedAgencies \. Tsikkos
(1979)1 C.L.R. 134). In the present case the allegation of the appellant is that there was both a breach of statutory duty and of the common law duty of care towards employees, due by their employers. 30 We have heard no argument by counsel for the appellant as to the nature of the breach of statutory duty and no particulars of breach of statutory duty areset out inthepleadings. Counsel for the respondents, however, drew our attention to the provisions of sections 58 and 59 of the Factories Law (Cap. 35 134) and submitted that there was no breach of statutory duty in the present case. Section 58 provides that in the case of any factory workers 648 1 CL.R. 5 Cbaralambous v. Metalco Ltd. Savvides J. employed in any process involving excessive exposure to wet or any injurious or offensive substance, suitable protective clothing and appliances, including, where necessary, suitable gloves, footwear, goggles and head coverings shall be provided and maintained for the use of such workers. Section 59 provides that: " I n the case of any such process as may be specified by the Commissioner, being a process which involves a special risk of injury to the eyes from particles or fragments thrown off in the course of the process, suitable 10 goggles or effective screens shall, in accordance with any directions given by the Commissioner, be provided to protect the eyes of the persons employed in the process". No evidence has been adduced by the appellant that the respondents were guilty of breach of the statutory duty of care 15 imposed uponthemby law, but,onthecontrary, from thewhole of the evidence including that of the plaintiff himself it is abundantly clear that the respondents fully complied with such duty. Suitable goggles had been provided and the attention of the workers was always drawn to wearing them. The 20 appellant, as we have already mentioned, admitted in his evidence that he had no complaint against the respondents for failure to respond to their duty concerning supply of goggles and instructions to wear them. 25 30 35 , In Norris v. Syndic Manufacturing Ltd. [1952] 1 All E.R. 935 Romer L.J. at p. 940 had these observations to make concerning the duty to provide a safety device: "_ the argumentwhich was advanced before us _ is that an employer does not 'provide' a safety device . unless he tells the workmen concerned that they have got to use it. I am unable to find any sufficient warrant for that view. The primary meaning of the word 'providt' is to 'furnish' or 'supply', and, accordingly on the plain, ordinary interpretation of s. 119
(1)(of the Factories Act 1937), a workman's statutory obligation is to use safety devices which are furnished or supplied for his use by his employers". The above observations were adopted by Edmund Davies L.J. in Bux v. Slough Metals Ltd. (supra) where at pp. 266, 267 had this to say: Λ40 Savvides J . Cbaralambous v. Metalco Ltd.
(1982)"Then, did the defendants 'provide* suitable goggles? But for the ingenious submissions of counsel for the plaintiff, Ishould havethought that thecontrary contention was unarguable. He relies on the facts hitherto summarised as establishing tht defendants' complete 5 acquiescence in their die-casters' failure to wear the type 1 goggles supplied, that they were thereby accepting their unsuitability, and that this so frustrated the performance oftheirstatutorydutyastoamounttoafailureto 'provide'. I content myself with observing that such an approach 10 is quite inconsistent with that adopted by this Court in Norrisv. Syndic Manufacturing Co.Ltd. which I respectfully regard as correctly decided. I hold, accordingly, that the defendants here 'provided suitable goggles _.~ for persons employed in (i) work at a furnance where there was a risk to the eyes from molten metal' and that the learned judge held they had fulfilled their statutory obligation m this respect". 20 in Bux case (supra) the Court after having found that there was no breach of statutory duty, went on to consider whether such finding exonerated the defendants from any breach of their common law duty. Thejudgment at pp. 267, 268, reads as follows: "No authority was cited to us for the proposition that compliance with an employer's statutory requirements per se absolves him from any liability to his employee at common law. On the contrary, there is a solid body of high authority to the contrary effect. For example, 30 in Franklinv. Gramophone Co. Ltd. this court held that compliance by the occupier of a factory with all statutory requirements will not necessarily absolve him from liability if he has not fulfilled hiscommon law duty of care: and in Matuszczyk v. National CoalBoard it was held that 35 statutory regulations imposing on a shot-firer duties which were also incumbent on him at common law had neither impliedly nor expressly extinguished the latter. Reference should also be made to the obseivations of Lord Porter and Lord Reid in NationalCoalBoard v. England. This 40 650 25 1 C.L.R. 5 10 15 20 Charalambous v. Metalco Ltd. Savvides J. isnotto saythat thescopeofstatutoryregulationsiswholly irrelevanttothequestion ofwhethertheiehasbeenabreach of the common law duty; on the contrary, inmanycases compliance with the relevant regulations may well be (as Lord Keith of Avonholm said in Qualkast (Wolverhampton)Ltd. v. Haynes) of 'evidential value*. I respectfully consider that the correct approach in this matter is that indicated in Gill v. Donald Humberstone & Co.Ltd. by Lord Reid, who, speaking of the Building (Safety, Health and Welfare) Regulations, 1948 said: *„I find it necessary to make some general observations about tht interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose isto prevent accidents byprescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence. The right to compensation which arises when an accident is caused by a breach is a secondary matter. The regulations supplement, but in no way supersede, the ordinary common law obligations of an employer to care for the safety of his men, and they ought not to be expected to cover every possible kind of danger' ". 25 and concludes as follows at pp. 270,271: 30 35 "The question of whether instruction or persuasion or even insistence in using protective equipment should be resorted to is, therefore, at large, the answer depending on the facts of the particular case. One of the most important of these is the nature and degree of the risk of serious harm resulting if it is not worn. Counsel for the defendants retorts that the plaintiff's own evidence showedthatheregardedtheriskasobviousandthataccordingly no further instruction was called for, any more than, as this court held, it was reasonably to be expected on the facts of Wilson v. Tyneside Window Cleaning Co. where this court drew a.distinction between cases where the risk is obvious and those where it is insidious and hidden. Ifindit difficult todeal withthisaspect ofthecase without 651 Savvides J. Charalamboos v. Metalco Ltd.
(1982)also considering the question of causation, for counsel for the defendants submits that the plaintiff's failure to use what the judge held to be suitable goggles indicates that the probability is that he would never have worn them, however much the employers tried (at the risk, 5 testified to by the witnesses, of losing all their die-casters) to establish a rule that they must be. He therefore submittedthat,evenwerethereanyobligationontheemployers to exhort the plaintiff to wear his type 1 goggles, the irresistible inference here—as in Cummings(or Mc- 10 Williams)v. Sir William Arrol & Co. Ltd.—wasthat the plaintiff would not have worn them. I have found these the most difficult aspects of a somewhat troublesomecase. But,basinghimself on Mr. Bevan's evidencethat theprudent employer 'would not do nothing', 15 the learned judge held negligence established. Having seen the type of man the plaintiff is and heard him, and dispite his rejection of the plaintiff's evidence on serveral important points, the judge went on to say: 'He was not the type of man who would have dis- 20 regarded instructions if they were given personally and inareasonableandfirmmannerandwerefollowed up by supervision. I think he would have followed instructions and persistent advice. He was in no way a difficult or obstinate person'. 25 And, as Stamp L.J. pointed out during counsel's submissions, a reminder that all die-casters who disobeyed reg. 13
(4)were liable to be prosecuted could have fortified the employers' exhortation most effectively. The learned judge held that the plaintiff had discharged the onus of 30 establishing on the balance of probabilities that he would have worn goggles had the sort of system the judge described been instituted and followed. Whether I should have come to the same conclusion I cannot say, so much depending on the view formed by the court of the parti- 35 cular workman who was the plaintiff. This court is in a far less advantageous position in that respect than was Kerr J. and the conclusion I have come to is that we ought not to disturb hisfinding that the claim in common law succeeds." 652 40 1 C.L.R. 5 10 15 20 25 Cbaralambous v. Metalco Ltd. Savvides J. The facts in Bux case (supra), however, on which counsel for the appellant sought to rely, are different from the facts in the present case. In Bux case the plaintiff was not an expert employee who had to decide how a particular work had to be performed and what was the proper way of performing it, as it is the case with the present appellant. The plaintiff in that case had been trained to do that particular type of work for some weeks prior to the accident whereas in the present case the plaintiff had been trained and was performing his work for 18years prior to the accident. The plaintiff in Bux case though instructed to wear protective glasses he was not using them and the defendants, though aware of the fact that neither plaintiff nor the other employees wore goggles in the course of their work, thiy failed to explain to them the need for[wearing"such goggles and persist to compliance, even though, as the trial Judge found, "the management should have been aware of the risk to'eyes from the work going on in his foundry." In the present case, there is no allegation of any failure by the respond e n t s ^ provide protective goggles and of insisting for their use. As mentioned earlier, the plaintiff himself in his evidence admitted that he had no complaint against the respondents in respect of the discharge of their duty concerning the supply and use of the goggles, and the rest of the evidence establishes that the respondents did everything within their duty to supply goggles to the appellant and see that such goggles were being used. The opinion expressed by Lord Oaksey in Winter v. Cardiff Rural District Council(supra) as to the common law duty of an employer of labour to act reasonably in all the circumstances 30 to which reference has already been made in Perentisv.General Constructions(supra), was adopted in Nicos Panayiv.Georghios Galatariotis and Sons Ltd.
(1971)1 C.L.R. 416 in which the Court had this to say (per Triantafyllides, P.) at p. 418: 35 40 "We are of the view, in the light, inter alia, of the Winter case (supra), that as one particular method of cutting the binders was safe and another was not, there ought to have been considered by the trial Court whether or not the accident could be attributed to any failure of the respondents, as employers, to provide a safe system of work. We have examinul this issue in determining this appeal and 653 Savvides J. Charalambous v. Metalco Ltd.
(1982)weare of the opinion that asit had been established by the evidence of the appellant himself that he did know what was the safe method ofcutting the binders, namely cutting first the binders which were holding together the arms of U-shaped bar and then proceeding to cut the binders near 5 the U-curve and not inthe opposite sequence as the appellant didon theoccasion onwhich hewasinjured, it isclear that the cause of the accident is not a failure to provide a safe system of work but the fact that such a system,which was known to the appellant, who had six years'experience |0 in work of this kind, was disregarded by him; and we are, also, of the view that in such circumstances it could not be said that the respondents had a duty to supervise the work of the appellant in order to ensure that he could not do what he well knew to be unsafe." 15 From the totality of the material before us wefind ourselves in agreement with the finding of the trial Court that the cause of the injury can be attributed to the failure of the appellant to wear his protective goggles. As to the allegation in the pleadings that the respondents failed to discharge their duty of care 20 because the zinc sheet should have been placed on wooden stand or table or bars so thai appellant could work standing and not leaning down, this was a matter which appellant with 18 yearsexperienceinthistypeofwork,andtheonlycompetent person to decide asto the modethe work wasto becarritd out 25 and the means to be employed, could himself had arranged. Furthermore, the appellant did not allege in his evidence that working in a leaning position was creating any additional danger than working in a standing position. He did not advance this ground as a ground of negligence by the respon- 30 dents and as he said m his evidence, his only complaint was because a pair of cutting scissors was not provided. The nonprovision of a pair of scissors was not expressly relied upon in the statement of claim, and it cannot be said that it falls by implication within such pleadings. From the totahty of the 35 evidence, howevtr, it appears that the absence of a pair of scissors doesnot throw the blame of the accident on theshoulders of the respondents,because the method used bytheappellant to cut thin sheets of metal with a cutter and a hammer, a method wellknown to him and occasionally employed by him 40 in the factory and which, according to the evidence adduced 654 1 C.L.R. Charalambous v. Metalco Ltd. Savvides J. bythe respondents wasthe best one in thecircumstances of the caseandquitesafe provided that theappellant used hisprotective goggles. In the circumstances of the case and in the light of the ex5 perience of the appellant and the fact that he was the most competent person todecidehow to do the work and what tools to use,expecting no instructions or supervision in such respect byanyone,itcould notbesaid that the respondents had aduty to supervise his.work in order to ensure that he could not do 10 anything which he well knew might be unsafe. For the foregoing reasons, wt have come to the conclusion that this appeal must fail; but in the circumstances of this case,we shall not make any order as to costs in the appeal. Appeal dismissed.No order 15 as tocosts. 655