clr/1982/1982_1_663.pdf

(1982)was not of the lequired capacity and could not reach thatside of the ship, the stevedores were obliged to use the method of "alesta' i.e. they had to swing the load to and from in oidtr to be able to place it in its correct position. At the time of the accident they were loading a roll at theend of the off shore 5 side of the ship and after employing the process of "alesta" it was placed in a semi vertical position instead of a horizontal one. At the same time the one loop of the wiie rope was unhooked from the hook of the winch, there being no safety catch thereon, and the wire rope at that side became curly 10 and went underneath the middle of the roll. The plaintiff with other stevedores tried to bring the roll into position by means of a lever but they could not move it. So, it was decided to hook again theloop of the wire rope on the hook of thewinch in order to lift it up and place it in the right position. The 15 foreman tried to get hold of the wire rope that curled into the centre of the roll irom the upper side but he was unable to do it. Then the plaintiff tried to do so from the other side and put his right hand under the roll in order to pull the wire out but as soon as he did that the roll fell and his hand wascaught 20 between the two rolls and so his right palm was crushed sustaining as a result a very serious injury. The stevedores complained to the foreman of the defendants about the capacity of the winch and asked him that a larger oneshould besupplied but they were told by him that although 25 Lefka-ritis Bros, had a larger one with a longer neck, it was not available at the time as it wasengaged in another work. Portworkers and stevedores are engaged to work on a ship after been allocated to the employer Shipping Agency by the Labour Office and upon an application for the purpose by the 30 Agency; no port workers are allocated to aliens. In this case the plaintiff and other stevedores were allocated to work on the above ship on the application of the defendants. The foreman was the regular foreman of the defendants. Inanactionbytheplaintiff fordamagesagainstthedefendants, 35 as his employers, the latter contended*, inter alia, that at the material time they employed the plaintiff as agents of thecharteierand/or the consignor and that further or inthealternative • See particulars of their defence at pp. 666-668 post. 664 1 C.L.R. Stavrou v. Orfanides &Murat and Others plaintiff washimselfresponsiblewholly orinpart fortheaccident through his own negligence. 5 10 15 20 25 30 35 Held,

(1)that it is not in dispute that on the application of the defendants seven port workeis, including the plaintiff, wereallocated tothem bythe Labour Office towork ontheship Graziella; that these port workers were paid by them and the regular foreman of the defendants was supervising the cairying out of the work on the ship in question; that there is nothing in the evidence adduced by the defendants to indicate that they had undertaken the loading of the said ship for someone else; that, therefore, the defendants undertook the loading of the said ship either as independent contractors or as agents for an undisclosed principal and, consequently, the plaintiff was at the time of the accident, in theii employment.

(2)That the winch used for the work was defective and that this defect was the cause of the accident; that it was not oi the required capacity and its hook had no safety catch on it; that if a winch of a higher capacity with a longer neck was used, then the method of "alesta" would have been avoided and surely the accident would have never happened; that, theiefoie, defendants were negligent in not engaging a bigger winch and is immaterial that the bigger winch of Lefkaritis Bios, was not available at lhat time; that taking into consideration the facts and circumstances ot this case no contributory negligence can be attributed to the plaintiff, as no appreciable danger was existing at the timethe plaintiff tried to pull thewire ropesince shortly before the iron roll could not be moved even by the uic of a lever; that there is no merit in the submission of counsel for the defendants that the doctrine of volenti non fit injuria has any application to the facts of the prestnt cast; accordingly judgment is given in favour of plaintiff against the defendant for the sum of £9,200 agreed damages with costs. Judgment for plaintiff as above Cases referred to: Pericleous v. Comarine Ltd. and Another

(1977)1C.L.R. 315 at p.'321. Admiralty Action. Admiralty action for special and general damages for injuries 665 Stavrou τ. Orfanides & Mural and Others

(1982)sustained by plaintiff, a stevedore, whilst engaged in loading rolls of iron strips on the ship "Graziella". M. Kyriakides, for the plaintiff. C. Hadjiloannou, for the defendants. Cur. adv. vult. 5 MALArHTos J. read the following judgment.. This case arose out of an accident that occurred on board the ship "Graziella" on the 28th of August, 1976, which was berthed at the time in the port of Lafnaca. As aresult of this accident the plaintiff, who is a stevedore andwas engaged atthetimein 10 loading rolls of iron strips onthesaid ship,sustained a crushing injury of his palm when his right hand was caught between two of the said rolls. He instituted the present proceedings in this couri, in its Admiralty Jurisdiction, against the defendants as his employers, 15 defendant No. 1 being a partnership and defendants 2 to 6 itspartners,claiming special andgeneral damages for negligence and/or breach of statutory duty. The defendants in their answer admit that the plaintiff was injured while onboard thesaid ship in thecourse of hisemploy- 20 ment when he put his hand under a diagonally placed roll of iron strip which fell and crushed his palm, but disclaim liability and, particularly, in paragraphs 4, 5, 6 and 7 thereof, alleged the following: "4. The Defendants allege that no responsibility can be 25 attached to them for the accident for the reasons hereinbelow stated namely: (

1. a)The accident occurred while thePlaintiff was on board the ship after the cranes hook had been disengaged from theroll and owing totheowners and/oroccupiers 30 of theship failure to secure theroll from fallingand/or (
2. b)The accident occurred while the Plaintiff was acting in a mannerinconsistent with his system of work and/ or undertheinstructionsofan officer and/orthe Master of the ship and/or (
3. c)In any event the accident did not happen during the loading of the roll onto the ship and/or 666 35 1 C.L.R. Stavrou v. Orfanides & Marat and Others Malachtos J. 5 (
4. d)The defendants at the material time employed the Plaintiff in their capacity as agents of the charterer and/or the consignor and/or the ship and the system of loading and/or stowingwas devised and/or adopted by them. 10 5. Further or in the alternative and without prejudice to the above it is alleged that the Plaintiff knowing of the risk of the roll falling and accepting and/or consenting to it voluntarily put his hand under it thereby suffering injury when it fell. In the premises the Defendants will rely on the maxim volenti non fit injuria. 15 6. Further or in tht alternative and without prejudice to the above the defendants deny that they were guilty of the alleged or any negligence or breach of statutory duty and in particular they stress that:(
5. a)The equipment used i.e. shore crane etc were the appropriate in the circumstances and 20 (
6. b)The systemofwork used wasproperly safe and further was the normal and usual in tht circumstances and (
7. c)Tht provision of extra wire rope would not have avoided the accident. 25 7. Further or alternatively and without prejudice to tht above it is alleged that the Plaintiff was himself responsible wholly or in part for the accident through his own negligence. PARTICULARS OF NEGLIGENCE 30 35 I) II) HI) Failed to place the roll properly in the first place Negligently put his hand under the roll Failedtousetheproper methodinthecircumstances which was to put his hand through the hold in the middle of the roll and not under it. IV) Failed to secure the roll from falling by putting the iron bars-which he and his co-workers used-under the roll before putting his hand there. 667 Malachtos J. Stavrou v. Orfanides & Murat and Others

(1982)V) Failed to ask for the help of his co-workers VI) Failed to follow the instructions of his foreman VII) Failed to ask for instructions from his foreman VIII) Failed to take care for his own safety in all the circumstances". Before the commencement of the hearing of the case the question of damages was agreed between the parties on a full liability basis at £9,200.- being £7,500.- general and £1,700.special and so the only issue that remained to be determined by the court was the question of liability. 5 10 As to how the accident occurred theplaintiff in giving evidence stated that on the 28th day of August, 1976, he was employed with five other stevedores to load 39 rolls of iron strips on the ship "Graziella". These rolls are very heavy objects weighing about two tons each having a round hole in the middle through 15 which a wire rope was passed at the two ends of which were loops. These loops were hooked on the hook of a shore mobile winch which lifted the rolls from the track on which they were loaded and stowed them in a horizontal position into the second hold of the ship which was berthed alongside the quay. The 20 loading of the ship commenced by placing these rolls first starting from the shore side of the ship and proceeding towards the offshore side. The loading of the offshore side of the ship presented some difficulty because due to the fact that the neck of the winch could not reach the side of the ship, the 25 stevedores were obliged to use the method of "alesta" i.e. they had to swing the load to and fro in order to be able to place it in its correct position. At the time of the accident they were loading a roll at the end of the offshore side of the ship and after employing the process of "alesta" it was placed in a semi vertical 30 position instead of a horizontal one. At the same time the one loop of the wire rope was unhooked from the hook of the winch, there being no safety catch thereon, and the wire rope at that side became curly and went underneath the middle of the roll. The plaintiff with other stevedores tried to bring 35 the roll into position by means of a lever but they could not move it. So, it was decided to hook against the loop of the wire rope on the hook of the winch in order to lift it up and place it in the right position. The foreman tried to get hold 668 1 C.L.R. Stavrou v. Orfanides & Murat and Others Malacbtos J. of the wire rope that curled into the centre of the roll from the upper side but he was unable to do it. Then the plaintiff tried to do so from the other side and put his right hand under the roll in order to pull the wire out but as soon as he did that 5 the roll fell and his hand was caught between the two rolls and so his right palm was crushed sustaining as a result a very seriousinjury. Heattributed thefall oftherolltothe vibration created by a passing by tug boat. The plaintiff further stated that the foreman, who was supervising and directing the 10 operations did not suggest any safety measures to be taken so as to ensure that the roll would not move at the time he placed his hand under it. It must be noted here that the foreman was not provided by the Labour Office to the defendants but he is a man who 15 is working for them regularly. Furthermore, the shore mobile winch was hired by the defendants from Lcfkaritis Bros, from Larnaca. The -plaintiff also stated that the stevedores complained to the foreman ofthedefendants about thecapacity ofthewinchand asked himthat a larger oneshould besupplied 20 but they were told by him that although Lefkaritis Bros, had a larger one with a longer neck,it wasnot available at thetime as it was engaged in another work. In cross-examination the plaintiff contended that the port workers could not refuse to do ajob because it might be dangerous. He characteristically 25 said that the work was obliging them to do it. Theevidenceoftheplaintiff onallmaterialpointsissupported by plaintiff's witness No. 2, Demetrakis Varnava, a fellow port worker. As to how the port workers and stevedores are engaged, 30 Phidias Panayides, an employee of the Larnaca District Labour Office, in charge of the port section, gave evidence as P.W.I. According to this witness the employer shipping agency applies totheLabourOffice Portsectionbeforehand requestingaspecific number of port workers who are allocated to them to work 35 on a particular ship. Only registered port workers can be employed and are allocated according to the order they are registered. No port workers are allocated to aliens. This witness further stated that port workers are paid daily by the representative of the agency. He also stated that the foreman 40 commonly known as "kappos", is engaged directly by the 669 Malacbtos J. Stavrou v. Orfanides & Murat and Others

(1982)agency. In the present case the foreman was Georghios Apostolides who was the regular foreman of the defendants. Georghios Dinglis, an employee of the defendants attached to the shipping section, in giving evidence as D.W.I, stated that he was the man on whose application seven port workers, 5 including the winchman, were allocated by the Labour Office to work on the ship in question, and was supervising the work carried out thereon for which he was responsible. He further stated that no complaint by the port workers was made to him as regards the winch. The method of "alesta" was used 10 not because the winch was not of the required capacity, but because the hatch cover was obstructing the wire rope of the winch to proceed further towards the side of the hold. The evidence of this witness on this point, however, is contradicted by the evidence of D.W.2 Georghios Apostolides, the foreman 15 of the defendants, who, after describing how the accident occurred, stated that the method of "alesta" was only used when the offshore side of the hold was loaded. Although this witness stated that he did not remember if any complaint wasmade to him about the capacity of the winch, he admitted 20 that he and his employers asked for a bigger one but at that time the bigger one was not available and so they were obliged to hire the one in question. Thefirstquestiontobeansweredinthepresentcase iswhether the plaintiff was at the time of the accident, in the service of 25 the defendants. If this is answered in the affirmative, then the remaining question is whether the system of work was defective. It is not in dispute that-on the application of the defendants seven port workers, including the plaintiff, were allocated to them by the Labour Office to work on the ship 30 Graziella. These port workers were paid by them and the regular foreman of the defendants was supervising the carrying out of the work on the ship in question. There is nothing in the evidence adductd by the defendants to indicate that they had undertaken the loading of the said ship for someone 35 else. Therefore, the defendants undertook the loading of the said ship either as independent contractors or as agents for an undisclosed principal and, consequently, the plaintiff was at the time of the accident, in their employment. Havingfound that theplaintiff wasat thetimeoftheaccident 40 in the service of the defendants the next question, as I have 670 1 C.L.R. Stavrou v. Orfanides & Murat and Others Malacbtos J. already said, that falls for consideration, is as to whether the system of work was defective. The duty of the employer to providea safe system of work isa common lawduty or a statutory one. 5 10 15 20 25 30 35 40 In the case of Christos Pericleousv. Comarine Ltd. and Another

(1977)1 C.L.R. 315atpage321,thefollowing isstated: "When the operation to be carried out is one specifically dealt withbystatuteor statuary regulation noncompliance with the statutory requirements renders the employer liable for negligence. Compliance of the employer with the statutory requirement is evidence, although not conclusive, that the common law duty has been fulfilled. (Caulfield\. Pickup Ltd. [1941]2All E.R. 510and Roberts v.Dorman Long& Co.[1953]2All E.R. 428 at page436). However, in the present case we are only concerned with the common law duty of the employer to provide a safe system of work. The duty of the employer to prescribe a safe system ofwork isnot an absolute duty but a relative one in that he is not bound to provide a system as safe as it can be possibly made, but reasonably safe. The precautions taken must be proportionate to the risk involved. Where some commercial necessity requires that an employer will expose a workman to some risks, he may avoid liability for his failure to guard against such dangers. His duty is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation. In deciding what is reasonable, long established practice inthetrade,althoughnotnecessarilyconclusive,isgenerally regarded as strong evidence in respect of reasonableness. InthecaseofGeneralCleaningContractorsLtd.v. Christmas [1953] A.C. 180, a House of Lords case, Lord Tucker at page 194 had this to say: 'This form of action is frequently spoken of asbeing basedon'afailure toprovideasafesystemofwork',but this language is misleading since it omits what isan essential element in thecauseofaction,viz.negligence. Windowcleaning is obviously a hazardous operation and—except in the case of the absolute obligations imposed in certain circumstances under the Factory 671 Malachtos J. Stavrou v. Orfanides & Murat and Others

(1982)Acts—there is no absolute obligation upon employers to device a system for their employees which will be free of risk. Their only duty is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent 5 in the operation. In deciding what is reasonable, long-established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in support of reasonableness. It was said by Goddard L.J. in the Court of Appeal 10 and by Viscount Simon in this House in the case of Colfar v. Coggins & Griffith (Liverpool) Ltd. [1943] 76 Ll.L.Rep. I, 4 (C.A.); [1945] A.C. 197, 203 that in these cases the plaintiff must allege and prove specifically what is the defect in the system of which 15 he complains. In other words, it is not sufficient that the system adopted was in fact unsafe, he must show something which could reasonably have been done or omitted which would have made the system reasonably safe and that this failure was the cause 20 of his accident'". In the present case, it is clear from the evidenceadduced on behalf of the plaintiff, which I accept as true, that the winch used for the work was defective and that this defect was the cause of the accident. It wasnot of the required capacity and 25 its hook had no safety catch on it. If a winch of a higher capacity with a longer neck was used, then the method of "alesta" would have been avoided and surely the accident would have never happened. It should be noted here that the evidence of the plaintiff and 30 his fellow worker is corroborated in material particulars by theevidence oftheforeman ofthedefendants. The defendants, therefore, were negligent in not engaging a bigger winch and is immaterial that the bigger winch of Lefkaritis Bros, was not available at that time. 35 Taking into consideration the facts and circumstances of this casenocontributory ntgligencecanbeattributed to the plaintiff, as no appreciable danger wasexisting at the time the plaintiff tried to pull the wire ropt since shortly before the iron roll could not be moved even by the use of a lever. 4^ 672 1 C.L.R. Stavrou v. Orfanides & Murat and Others Malachtos J. Before concluding my judgment, I must say that I find no merit in the submission of counsel for the defendants that the doctrine of volenti non fit injuria has any application to the facts of the present case. 5 For the reasons stated above,judgment is given in favour of the plaintiff against the defendants joinly and severally for the sum of £9,200.- with legal interest thereon as from today to finalpayment, with costs to be assessed by the Registrar. Judgmentfor £9,200.-with costs. 673