clr/1982/1982_1_871.pdf

(1982)Upon appeal by the defendants it was contended that the amount of C£2,750 awarded to the respondent as general damages was excessive and/or unreasonab'e, and that the trial Court wrongly applied the case of Moelikerto the facis of the present case, since the evidence adduced did not in any way 5 support the decision of the Court to award the sum of C£750 as futuie earnings. Held,

(1)that on the totality of the circumstances there is no reason to interfere with the assessment of general damages made by the tiial Court. 10

(2)That where a plaintiff is still in employment at the date „of the trial the Couit should only make an award for loss of earning capacity if there is substantial or real and not merely fanciful risk that the plaintiff will lose his present employment at some time before the estimated end of his working life, and 15 that if the risk of the plaintiff losing his existingjob or of his being unable to obtain another job or an equally good job or both" are only slight, a low award measured in hundreds of pounds will be appropriate; that considering the facts of this case and bearing in mind that there is a substantial and not 20 merely fanciful lisk that the respondent might lose his present employment and that he will be unable to obtain another job or an equally good job or both in the future, and though not merely slight, both the approach of the trial Court in the application of the aforesaid principles to the facts of this case was 25 a conect one as the facts duly warranted such award (statement of the law in Moeliker v. A. Reyrolle& Co. Ltd., [1977] 1All E.R. 9 adopted). Appeal dismissed. Cases referred to: Moelikerv.A. Reyrolle &Co. Ltd. [1977] 1 All E.R. 9; Antoniou v. lordanous and Another

(1976)1CX.R. 341; Asprouv. SamarasandAnother

(1975)1C.L.R. 223 at p.231; Charalambous v. Cybarco

(1976)1 C.L.R. 124. 30 Appeal. Appeal by defendants against the judgment of the District Court of Lamaca (Pikis, P.D.C. and Michaelides, D.J.) dated the 9th May, 1981 (Action No. 546/78) whereby they were 35 872 1 C.L.R. 5 Thia Industries v. HadjiKyriacoa adjudged to pay to the plaintiff the sum of £4,159.- as special and general damages for injuries sustained byhim asa result of the explosion of a boiler that occurred in the course of his employment with the defendants. A. Andreou, for the appellant. A. Poetis, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by my brother Judge, Mr. Justice A. Loizou. 10 A. Loizou J.: This is an appeal from the judgment of the Full District Court of Larnaca by which the appellant was adjudged to paythesumof C£4,159.-with costs, as generaland special damages suffered by the respondent, plaintiff in the Court below, as a result of theexplosion ofa boiler that occur15 red inthe course of his employment withthe appellant Company. The two grounds upon which this appeal has been argued are: 20 25 (

1. a)The amount of C£2,750.- awarded to the plaintiff as general damages is excessive and/or unreasonable, having in mind the medical evidence adduced before the trial Court and/or thecondition of the plaintiff at the date of the trial. (
2. b)The trial Court wrongly applied the case of Moeliker v.A. Reyrolle &Co.Ltd. [1977] 1 AllE.R.,p.9,tothe facts of the present case, since the evidence adduced did not in any way support the decision of the Court to award the sum of C£750.- as future earnings. As a result of an explosion of a boiler—and weare notcon30 cemed with the circumstances it happened as the question of liability is not in issue—the respondent suffered injuries and he was removed to Larnaca Hospital where he was treated by Dr. Sawides, an Orthopaedic Surgeon, at first as an inpatient and subsequently as an out-patient. The trial Court 35 summed up the evidence and the conclusions drawn thereon byitwith regard tothequestion ofgeneraldamages asfollows :"Dr. Sawides found that plaintiff suffered as a result of the explosion a fracture of the left tibia; there was a 873 A. Loizou J. Thia Industries v. HadjiKyriacou

(1982)penetrating wound 1 1/2 inches long over the fractured side whereas the leg was grossly swollen. The treatment of the plaintiff was complicated because of infection of the injured part of the leg, emitting pus therefrom for many months afterwards. The fracture did not unite before the 5 lapse of one year; yet plaintiff's wound did not heal completely for the leg remained oedematous and painful. In the assessment made on the condition of plaintiff on 1.11.1978 the picture indicated by the doctor is rather gloomy in that he found the plaintiff to be unable to squat 10 andunable towalkfor morethan 100yardswithoutresting. The left leg was still swollen and knee movements were slightly restricted on the left side. There was also a restriction of the ankle and subtalar movements,as indicated in the report. The doctor diagnosed a pitting oedema of 15 the left leg. X-rays showed a cavity in the bone which,in the opinion of Dr. Sawides, is the focus of chronic infection in the bone whichmay recrudesce inthefuture and may, therefore, necessitate appropriate treatment with antibiotics. The evidence of Dr. Sawides on the subject 20 of the existence of a cavity must be ignored for, in the absence of admissible radiological evidence, the opinion of the doctor rests on unfounded premises and should, therefore, be ignored. Otherwise we accept the evidence of Dr. Sawides as a reliable account of the clinical con- 25 dition of plaintiff. Dr. Efstathiades (D.W.2), an orthopaedic surgeon, who examined the plaintiff at the request of the defendants, gave a somewhat more optimistic view of the condition of plaintiff without in any way attempting to dispute the correctness of the report of Dr. Sawides. 30 He agreed with a suggestion of plaintiff that the after effects of the injuries of plaintiff, as described by Dr. Savvides,may beregarded asanatural corolary ofhisinjuries. Unlike Dr. Sawides he concluded that plaintiff's capacity for work wasnot seriously reduced though,asheexplained 35 inevidence,plaintiff's capacityfor heavyworkwasreduced. In the opinion of Dr. Sawides not only plaintiff's capacity for work was adversely affected as a result of his injuries and their subsequent complication, but necessity may arise for his early retirement or change to lighter duties. Dr. 40 Efstathiades found stiffness of the left ankle and foot, a fact likely to restrict the mobility ofplaintiff but not to the 874 1 CX.R. Thia Industries τ. HadjiKyriacou A. Loizou J. extent of reducing his capacity for work. The evidence of Dr. Sawides that plaintiff was permanently incapacitated for a period of two years was not seriously questioned. 5 10 15 20 25 30 35 40 Theplaintiff in his evidence madereference to the painful process of recovery. His leg was immobilised in plaster for about eight months. He had to visit the hospital often and incurred expenses for the hire of taxis to convey him to and from the hospital. Hemaintained that he was unable to do any work for a period of 2 1/2 years. However, his evidence in this area is not fully in accord with that of Dr. Sawides and to whatever extent it conflicts with that of the doctor it must be ignored. When he found it possible to resume work he was employed by his son-in-law, a building contractor. Mr. Petrou (D.W.3) testified that 9 months after the accident when plaintiff gave up cratches they offered employment to plaintiff on any conditions that plaintiff found convenient but the latter declined on the ground that he could not work and that in any event he was unwilling to go back to work for so long as the case was pending in Court. The plaintiff, on the other hand, maintained that he was offered such employment on con­ dition that he abandoned his present claim for compen­ sation. Whatever thetruthmay be it is of no consequence for, in ourjudgment, the plaintiff was unfit for work for a period of two years and for as long as hewas incapacitated for work he had no obligation to minimize his damage by assuming work of any kind, be it light. However, to whatever extent it may be necessary to decide the issue as a fact, that is the terms upon which plaintiff was offered employment, we incline to accept the version of the plain­ tiff. Mr. Petroumaintained that for a period of time they were making payments to plaintiff as shown on exhibit 4, totalling£379.750mils,covering a periodupto28thJanuary 1978,that is to say for nearly one year. After theaccident plaintiff maintained that he received payment for a shorter period, notably for 8to 9 months; but failed to detail the payments he received. We accept the evidence of Mr. Petrou and find as a fact that the defendants paid in all to plaintiff the sum of £379.750 mils which, together with a 875 A. Loizou J. Thia Industries v. HadjiKyriacou

(1982)sum of £7 per week that plaintiff was receiving from the social insurance, as learned counsel for the plaintiff candidly admitted in hisfinal address,makeup for the lossof his wages for a period of one year." It has been argued on behalf of the appellant Company that 5 the amount awarded as general damages was excessive and unreasonable if viewed in the light of comparable awards on previous occasions and if after allowing an adjustment called for bythe lapse of time andthe decrease inthe value ofmoney that occurred between the awards. In that respect we would 10 refer to the case of KyriacosAntoniou v. Iordanis Iordanous andAnother

(1976)1 C.L.R., p.341, where in respect of what has been claimed to be similar injuries, an award of C£800.was confirmed on appeal. Whilst examining this case we may point out that the Court in examining on appeal that issue of 15 damages in respect of which the appellant in that case was complaining, pointed out that they had reached the conclusion that although they might havebeen prepared to award a higher amount of damages in favour of that plaintiff, nevertheless they werenotsatisfied thatthelearnedJudgeinassessingthedamages 20 applied a wrong principle of law and that the amount awarded was a wholly erroneous estimate of the damage and stated that they werenot prepared to interfere with the finding of damage which "as stated earlier in another case is generally a matter of assessment (seeAsprou v.Samaras & Another

(1975)1 C.L.R. 25 223 at p.231)". Wewerealsoreferred to thecaseof Charalambous v. Cybarco

(1976)1C.L.R., p.124, where a labourer sustaining haemarthrosis of thejoint and crack fracture of the patella and fracture of the tibia plateau and had his leg in plaster for almost two 30 months with fair amount of pain and suffering from 10 to 15 days and subsequently inconvenience and discomfort of a period of four to five months, and pre-injury walking capacity over roughand hilly ground and abilityto,carry outjobscalling for repetitive knee and ankle flexion moderately affected, an 35 awardofC£l,200.-wasfound tobewithinthebracket applicable to suchinjuries suchasthose sustained bytheappellant andwas not interfered on appeal. We do not propose to enter into a detailed analysis of the similarities between the case in hand and the two cases invoked 40 876 1 C.L.R. Thia Industries v. HadjiKyriacou A. Loizou J. bycounselascomparableand that thegeneraldamagesawarded in each of them are indicative of the reasonable amount of damagesthat had to beawarded subject*toa certain percentage ofadjustment inthepresentcase. Aperusaloftheirtextshows 5 that they cannot be really that comparable as to afford the basis upon which the Court should have awarded the general damages in the present case. On the totality of the circumstances as summed up by the trial Court, we have come to the conclusion that there is no 10 reason to interfere with the assessment of damages made by them. Therefore, this ground of appeal fails. With regard to the second ground, the trial Court summed up the position as follows: "Loss of Earning Capacity 15 22 25 30 35 There is no suggestion that plaintiff's earnings after the accident were either absolutely or relatively reduced in comparison to his earnings at the time of the accident. There is, however, definite evidence that his earning capacity has been reduced, a factor we cannot ignore. Where plaintiff's earning capacity is reduced albeit without any immediate loss of earnings, the quantification of future losses of earnings is, to a large extent, a matter of conjecture. In Moeliker v. A. Reyrolle & Co. Ltd. [1977] 1 All E.R. 9, the Court of Appeal adverted to the implications of loss of earning capacity unaccompanied by any immediate losses of earnings and indicated that the risk of future losses should be evaluated in the light of (a) the time at which such loss is likely to materialize; (b) the possibility of finding alternative employment; and (c) any other factor that may shed light on the subject. And they recommended compensation payment measured in hundredsofpoundswheretheriskoffuture lossisslight,as opposed to substantial. In the present case wefind that plaintiff's earning capacity as a labourer has been reduced to a moderate extent, particularly his capacity for heavy work, a matter of some consequence for a worker presently aged 47. On the other handthere isnothingto suggest that plaintiff is likely 877 A. Loizou J. Thia Industries v. HadjiKyriacou

(1982)to suffer an actual drop of his earningsin thenear future more so consideringthat heis employed byhis son-in-law. We feel we can safely take the lead given in the case of Moeliker (supra) by quantifying his loss in this area in hundreds of pounds and we adjudge it at £750". 5 It has been argued that the principle set out in Moeliker's case(supra) was wrongly applied to thefacts of this casewhich did not warrant an award for loss of earning capacity as there was no substantial or real risk that the plaintiff will lose his present employment or hischancesofobtainingfurther employ- 10 ment in that event. The principles enunciatedin thejudgments deliveredinMoeliker's case (supra), are summed up in the rubric of the case, p.9, as follows:"In awarding damages for personal injury in a case where 15 the plaintiff is still in employment at the dateofthetrial, the court should only make an award for loss of earning capacity if there is a substantial or real, and not merely fanciful, risk that the plaintiff will lose hispresent employment at sometime before theestimated end of his working 20 life. If there is such a risk, the court must, in considering the appropriate award, assess and quantify the present value of the risk of the financial damage the plaintiff will suffer if the risk materialises, having regard to the degree oftherisk,thetimewhenitmaymaterialise,andthefactors, 25 both favourable and unfavourable, which, in a particular case, will or may affect the plaintiff'j chances of getting a job at all or an equally well paid job if the risk should materialise. No mathematical calculation is possible in assessingandquantifying theriskindamages. If, however, 30 the risk of the plaintiff losing his existing job, or of his beingunable to obtain anotherjob or an equallygoodjob, or both, areonlyslight,alowaward,measured inhundreds of pounds, will be appropriate". Wefully adopt this statement of thelawand wehold as duly 35 summed up therein that where a plaintiff is still in employment at the date of the trial the Court should only make an award for lossofearningcapacity ifthereissubstantial orrealand not 878 1 C.L.R. Tula Industries v. HadjiKyriacou A. Loizou J§ merelyfancifulriskthattheplaintiff willlosehispresentemployment at some time before the eslimated end of his working life, and that iftheriskof theplaintiff losinghisexistingjob or of his being unable to obtain another job or an equally good 5 job or both are only slight, a low award measured in hundreds of pounds will be appropriate. Considering the facts of this case and bearing in mind that there is a substantial and not merely fanciful risk that the respondent might losehispresentemployment and that hewillbe 10 unable to obtain anotherjob or an equally goodjob or both in the future, and though not merely slight, wefind that both the approach of the trial Court in the application of the aforesaid principles to thefacts ofthiscasewasa correct one asthe facts duly warranted such award. 15 For all the above reasons this appeal is dismissed with costs. Appealdismissedwith costs. 879