clr/1982/1982_1_880.pdf

(1982)(d) That the trial Court wrongly found that there was no contributory negligence on the part of the respondent. Held,

(1)thatthough whenthequestionastowhetherasystem of work is safe or not is in issue the particular system and all surrounding facts pertaining to the accident as prevailing at 5 the time of the accident, have to be taken into consideration and that a subsequent improvement or abandonment of such system does not necessarily imply that the pievious system was not safe, in the present case the trial Judge reached his conclusion that the system of work employed by the appellants 10 at the time of the accident was not a safe system of work and explained the reasons why such system was not safe; that it was after he had concluded on this point that he remarked that the old eystem was abandoned and a new system employed which was definitely the safe system of work that ought to have 15 been used from the very beginning; that he did not reach his conclusion as to the unsafely of the system by relying on the abandonment of the systemas a fact from which hecould draw hisinference but hefound thebreachofthedutyfrom thecondition of the system operatingat the time of the accident; accord- 20 ingly contention (a) should fail.

(2)That where a statutory duty isimposed upon theemployer to take certain stepsfor theprotection of the employee and provide foi the safety of the employee, compliance with the provisions of the law by the employer does not exonerate him from 25 failure of his common law duty to maintain a reasonably safe system of work; that once the trial Judge found that theie was a bieach oftheduty ofcarecast upon theappellants bycommon law, the fact that he did not proceed to examine whether there was any bieach of the statutory duties imposed upon the appel- 30 lantsbythe Factoiies Law,Cap. 134,wasnotawrong appioach, as compliance with the statutory duty did not exonerate the appellants from any liability to the respondent at common law; accordingly contention (b) should fail.

(3)That on the totality of the material before this Court the 35 findings of the trial Judge that the appellants failed in the discharge of their duty at commonlaw to provide a safe system of work is correct; that this Court agrees with the reasoning of the trial Court in reaching suchfindingin that "a gapexisted 882 1 C.L.R. 5 10 15 20 25 30 35 40 Cyprus Palestine Plantations v. Xeandrou between the two sides of the level crossing which was"unfenced and exposed the labourers to the risk of- an accident, such as the present one; that the above finding of the trial Couit was warranted by the evidence befoie it and this Coutt has not been convinced that the inference drawn by the trial Couit that the system of work was not safe was not reasonably open to it; that the existence of danger due to the unfenced gap ovei the conveyor was reasonably foreseeable and that the failure of the appellant to take an> precautions foi eliminating danger amounts to negligence; and that accordingly contention (c) must fail.

(4)That it is a well established practice both in England and in Cypius that there would have to be a very strong case to justify any review of apportionment if an appellate Court accepted the same view of the law and facts as that taken by the trial Court or unless "some eiror in the Judge's approach the clearly discernible" that on the totality of the evidence and the material before the trial Court, this cour* is unable to agree with the trial Judge that in the circumstances of the case the respondent is not to blame at all for hei misfortune; that there isno doubt that the only means available for passing from the one side of the conveyors to the other, was to climb the steps on the sides of the conveyors and when-reaching the top stepthen shehad to step over theconveyor whilst suchconveyor wasoperating to thesteps onthe othei side;that shewas in the employment of the appellants foi the last twenty years priortotheaccidentand shewaswellacquainted withthesystem of work operating in the store; that it is correct that the degree of care that one -nay expect from a workman in a factorv, may be different from that which might be taken by an ordinaiy man not exposed continually to the noise, scrain and manifold risks of afactory, but inthecircumstances of thecase,theplaintiff when passing over tht unfenced gap, stepping from the top step on the one side to thar on the other side,the distance being only 16 inches, should have exercised due care, knowing that an inadvertent step might cause her foot seep and be caught by the moving conveyor; that in having to assess the percentage of respondent's negligence,thisCourt hasreached theconclusion that in the circumstances of the case the respondent is guilty of con'ributory negligence to the extent of 20 per cent. Appeal partly allowed. 883 Cypras Palestine Plantations τ. Leandroa

(1982)Cases referred to: Pipe v. ChambersWorf and ColdStores [1952] 1 Ll.L.R. 194; Davies v. Manchester Ship Canal Company [1960] 2 Ll.L.R. II at p. 15; Gray v. TheAdmiralty [1953] 1Ll.L.R. 14 at p. 18; 5 Athanassiou v. Attorney-General of theRepublic

(1969)I C.L.R. 160 at p. 165; Kakou 4. Adriaticaand Another

(1980)1 C.L.R. 357; Perentis v. GeneralConstructions

(1981)1 C.L.R. 1; Kyriacou v. Eliades

(1981)1C.L.R. 373; 10 Charalambous v. Metalco Ltd.

(1982)I C.L.R. 636; Elia \. ProgressShippingand Others

(1978)1 C.L.R. 327; Bux v. SloughMetals Ltd. [1974] 1All E.R. 262; Ekrem v. McLean (197P 1 C.L.R. 391; Brownand Another v. Thompson

(1968)2 AH E.R. 708 at p. 15 710, 712, 713; Baker v. Willoughby[1969] 3 All E.R. 1528 at p. 1530 (H.L.).; Ioannouand Another v. Michaelides

(1966)1 C.L.R. 235; Caswell v. Powell Duffryn Associated CollieriesLtd. [1939] 3 All E.R. 722; 20 Christodoulou v. Menicou

(1966)1 C.L.R. 17 at pp. 31-32. Appeal. Appeal by defendants against the judgment of the District Court of Limassol (Hadjitsangaris, S.DJ.) dated the 23rd April, 1977 (Action No. 1789/73) whereby they were adjudged to 25 pay to the plaintiff the sum of £1,608.- as special and general damages for injuries suffered by her as a result of an accident which was solely attributed to the negligence of the defendants. St. McBride, for the appellants. A. Neocleous, for the respondent. 30 Cur. adv. vult. TRIANTAFYLUDES P.: The judgment in this appeal will be delivered by Mr. Justice L. Sawides. SAVVIDES J.: This is an appeal from the judgment of the District Court of Limassol whereby appellants-defendants were adjudged to pay to the respondent-plaintiff, the sum of 884 35 1 C.L.R. Cyprus Palestine Plantations v. Leandroa -• Sawides J. £1,608.-asagreedspecialand generaldamages onafull liability basis, for injuries suffered by the respondent as a result of an accident which, according to the findings of the trial Court, was.solely attributed to the negligence of the appellants. 5 10 15 20 25 30 35 The facts of the case which, according to the learned trial Judge were mostly undisputed and uncontested, as found and briefly set out by him in hisjudgment, are as follows: "The plaintiff, who-was at the time of the accident a labourer aged 42,wasemployed bythe defendant company asapackeroffruit intheirpackingfactory whichissituated at Fassouri within the S.B.A. She was an experienced fruit packer and was in the employment of the company for the last 20 years. Whilst employed by the defendant companyonthe 16.1.1973and in thecourseof heremployment,the plaintiff tried to passover a levelcrossing similar to the one appearing in exh.5and 6in order to goand get some labels, and whilst stepping from the one side of the levelcrossingtotheother,shefellintotheconveyorpassing underneath thesaidlevelcrossingand shesustained injuries forwhichthisactionarose. Beitnotedherethatnofencing existed between the gap which was created from the one side of the level crossing to the other. Before proceeding any further I think that the system of work as regards the passage of labourers over the level crossings should be described in more detail. From the evidence of D.W.4 it appears that the said level crossings wereinstalled by the defendant company in 1969;the said level crossings were stairs with 4 steps on each side of the conveyor, 3 ft. wide and they reached up to a height of 3-4 inches above the conveyor (there was no bridge over the conveyor). The labourers had to step over the conveyor, and the distance from one side of the crossing to the other, which was open space, was 16inches. The said level crossings had hand rails as handle bars 80cm. high". Thelearned trialJudgethen proceeded toconsider the following issues: (a) Whether the system of work used by the appellants for the crossing of their labourers at the time of the 885 Sarvides J. Cyprus Palestine Plantations τ. Leandroo

(1982)accident, over the conveyors by means of the.level crossings described above was a safe system of work or not, and (b) if the plaintiff contributed in any way to the present accident, and he concluded as follows: "I have carefully considered the facts of the present case and I have cometo theconclusionthatthesystem of work employed by the defendant company at the time of the accident, for the labourers to cross from the one side of 10 the moving conveyor to the other, i.e. the level crossings described in detail above, was not a safe system of work; the reason is that a gap existed between the two sides of the level crossings which was unfenced and exposed the labourers to the risk of an accident, such as the present 15 one. It is clear that the labourers were passing over the moving conveyor on which boxes of fruit were being conveyed to the sealing machines. The system of work which existed at the time of the accident was eventually abandoned by the defendant company themselves, and the 20 system used now by means of bridges is definitely the safe system of work thatought tohave beenused from the very beginning. Iamthereforeof theopinionthatthedefendant company was notproviding a safe system of work for their employees at the time of the accident and they are liable 25 under their common law duties. BecauseofmyabovefindingIdonotconsideritnecessary to indulgeinto thebreachof any statutorydutyon thepart of the defendants or not. For the above reasons I hold that the system of work 30 employed by the defendant company was defective and unsafe". In dealing with the question of contributory negligence the learned trial Judge came to the conclusion that the plaintiff was not guilty of contributory negligence. His judgment on 35 this issue reads as follows: "The plaintiff acted as a reasonable workman under the circumstances and complied with the instructions given 886 5 I C.L.R. 5 Cyprus Palestine Plantations v. Leandrou Savvides J. to her by the defendants. She followed the unsafe system of work as I have found it, devised by the defendant company, and even if she believed that the level crossings were unsafe, she had no option or choice to do otherwise but pass over them; she had to obey the instructions of her superiors, and the level crossings were the only means of passing from one side of the conveyors to the other". The present appeal is directed against both findings of the trial Judge that is his finding that there was negligence on the 10 part of the appellants and his finding that there wasno contributory negligence on the part of the respondent-plaintiff. 15 20 25 30 35 Counsel for appellants contended that the respondent had to prove that the appellants were in breach of their statutory duty or their common law duty of care or either of them which she failed to do. In the present case the trial Judge made no finding on the breach of any statutory duty and decided the case on the breach of the common law duty. In doing so he applied the absolute liability test which applies only in cases of breach of statutory duties but not under the common law. It is only under a statute, counsel submitted, that a duty is cast upon the employer to make the system of work a b s o l u t e l y s a f e , whereas under the common law he discharges his duty by providing a r e a s o n a b l y s a f e system of work and that in the present case the system of work provided was reasonably safe and no negligence has been proved against the appellant. He further contended that the inference drawn by the trial Court that the improved system provided by the appellant after theoccurrenceof the accident ought to havebeen used from the very beginning was wrong because the change of system is not a proof of the fact that the previous system was not reasonably safe and that the Court had to decide the case on the state of affairs as on the day of the accident. He concluded by submitting that on the totality of the evidence, there was no negligence on the appellants and that in any event the respondent was guilty of contributory negligence to a great extent. We agree with counsel for the appellants that when the question as to whether a system of work is safe or not is in 887 Sawides J. Cyprus Palestine Plantations v. Leandron

(1982)issue, the particular system and all surrounding facts pertaining to the accident as prevailing at the time of the accident, have to be taken into consideration and that a subsequent improvement or abandonment of such system does not necessarily imply that the previous system was not safe. 5 > In Pipe v. Chambers Warf and Cold Stores Ltd., [1952] 1 LI. L.R. 194 it was held that: "the subsequent provision of a lifting device did not necessarilyimply that thesystem originally adopted wasunsafe". InDaviesv.Manchester Ship CanalCompany [1960]2Ll.L.R. 10 11 Sellers, L.J., in dealing with a similar issue, had this to say at p. 15: "After this accident, apparently, there was provided a slightly different slipper, 6 in. deep instead of the 3 in., and perhaps a little wider too. That factor was relied 15 upon as establishing negligence against the defendants. It was said that this was a method of discharging which ought to have been recognized as one which had dangers and this new slipper would have served to overcome them. The learned Judge has not taken that view. He directed 20 himself properly in law and came to the conclusion that there was nothing wrong with the original slipper which was provided which had been in existence and use for nearly 40 years, and also that there was nothing wrong with the system." 25 Also in Grayv. The Admiralty[1953] 1 Ll.L.R. p. 14 at p. 18 the judgment reads as follows: "Ofcourse,witnesseswhohavebeencalledfor the plaintiff have said that since the timeof this accident a stouter form of glass has been put in these panes in the hope that if an 30 accident of this kind happened again the glass would be tough enough to resist anyblow, and, therefore, this particular damage would not be done. I have considered that question as to whether that in itself should amount to a breach, or does amount to a breach, by the employers of 35 their duty to make these premises reasonably safe, but I have come to the conclusion that it does not." 888 1 C.L.R. Cyprus Palestine Plantations v. Leandrou Sarrides J. In the present case however the learned trial Judge reached his conclusion that the system of work employed by the appellants at the time of the accident was not a safe system of work and explained the reasons why such system was not safe. It 5 was after he had concluded on this point that he remarked that the old system was abandoned and a new system employed which was definitely the safe system of work that ought to have been used from the very beginning. He did not reach his conclusion as to the unsafely of the system by relying on the 10 abandonment of the system as a fact from which he could draw his inference but he found the breach of the duty from the condition of the system operating at the time of the accident. As to the power of an appellate Court to deal with inferences of a trial Court we wish to refer to the opinion expressed by 15 this Court in Athanassiou v. The Attorney-General of the Republic

(1969)1 C.L.R. 160 at p. 165, which we fully adopt. 20 "Though we are an appellate tribunal, we not only have the power, but it is our duty, to substitute our own inferences for those drawn by the learned trial Judges, once we are satisfied that their inferences were wrong (see, too, in this respect, the views of Parker L.J., in the Hicks case(0, supra, at p. 50)." In the recent cases of Kakou v. Adriatica and another

(1980)1 C.L.R. 357, Parentis v. GeneralConstructions

(1981)1 C.L.R. 25 1, Kyriacou v. Eliades Ltd.,

(1981)1 C.L.R. 373,Charalambous v. Metalco Ltd.,

(1982)1C.L.R. 636, this Court has dealt with the duty of an employer to provide a safe system of work and we need not repeat the principles enunciated therein. The Common Law has from early times imposed a duty on the 30 master to take due care to provide a safe system of work though such duty does not extend to a duty to provide a system as safe as it can possibly be made, but a reasonably safe system and the precautions taken must be proportionate to the risk involved (see Athanassiou v. The Attorney-General of the Republic (supra) 35 and the cases referred to therein; also,Eliav.ProgressShipping and others

(1978)1 C.L.R. 327). Where a statutory duty is imposed upon the employer to

(1)Hicks v. British Transport Commission [1958] 2 All E.R. 39. 889 Sawides J. Cyprus Palestine Plantations τ. Leandrou

(1982)take certain steps for theprotectionof theemployee and provide for the safety of the employee, compliance with the provisions of the law by the employer does not exonerate him from failure of his common law duty to maintain a reasonably safe system of work. In Bux v. Slough Metals Ltd. [1974J 1All E.R. 262, 5 Edmund Davies, L.J., in dealing with the proposition that compliance with an employer's statutory requirements per se absolve him from any liability to his employee, had this to say at pp. 267, 268: "No authority was cited to us for the proposition that 10 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, in Franklinv. Gramophone Co. Ltd., this court held that 15 compliance by the occupier of a factory with all statutory requirements will not necessarily absolve him from liability if he has not fulfilled his common law duty of care: and in Matuszczyk v. National Coal Board it was held that statutory regulations imposing on a shot-firer duties which 20 were also incumbent on him at common law had neither impliedly nor expressly extinguished the latter. Reference should also be made to the observations of Lord Porter and Lord Reid in NationalCoal Board v. England. This is not to say that the scope of statutory regulations is 25 wholly irrelevant to the question of whether therehas been a breach of the common law duty; on the contrary, in many cases compliance with the relevant regulations may well be (as Lord Keith of Avonholm said in Qualcast {Wolverhampton) Ltd. v. Haynes of 'evidential value'. 30 I respectfully consider that the correct approach in this matter is that indicated to Gillv. Donald Humberstone & Co. Ltd. by Lord Reid, who, speaking of the Building (Safety, Health and Welfare) Regulations 1948, said: '__ Ifind it necessary to make some general observa- 35 tions about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appro890 1 C.L.R. 5 Cyprus Palestine Plantations v. Leandrou Sawides J. priate precautions. Any failure to take prescribed precautions is a criminal offence. The right to compensation whicharises whenan accident iscausedbya 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.*" In the light of the above wehave reached the conclusion that 10 thelearned trial Judge once hefound that there wasa breach of the duty of care cast-upon the appellants by common law, the fact that he did not proceed to examine whether there wasany breach of the statutory duties imposed upon the appellants by the Factories Law, Cap. 134, was not a wrong approach, as 15 compliance with the statutory duty did not exonerate the appellants from any liability to the respondent at common law. 20 25 30 35 We now turn to the question as to whether the finding of thetrial Courtthat theappellants did not provide a safe system ofworkfoi theiremployeesat thetime oftheaccident inbreach of their common lawduty to do so is correct. On the totality of the material before us we find ourselves in agreement with thefindings of the learned trial Judge that the appellants failed in the discharge of their duty at common law to provide a safe system of work. We agree with the reasoning of the trial Court in reaching such finding in that "a gap existed between the two sides of the level crossing which was unfenced and exposed the labourers to the risk of an accident, such as the present one. It is clear that the labourers were passing over the moving conveyor on which boxes of fruit were being conveyed to the sealing machines." The abovefinding of the trial Court waswarranted bytheevidence before it and wehave not been convinced that theinference drawn by the trial Court that the system of work wasnot safe was not reasonably open to it. The existence of danger due to the unfenced gap over the conveyor was reasonably foreseeable and that the failure of the appellant to take any precautions for eliminating danger amounts to negligence. In consequence, the appeal in this respect fails. We-are now coming to consider whether the trial Court 891 Sawides J. Cyprus Palestine Plantations v. Leandron

(1982)correctly found that there was no contributory negligence on the part of the respondent. Itisawellestablished practiceboth inEngland and inCyprus that there would have to be a very strong case to justify any review of apportionment if an appellate Court accepted the 5 same view of the law and facts as that taken by the trial Court (vide Ekrejnv.McLean

(1971)1C.L.R. 391in which reference is made to the case of Brown andAnother v. Thompson [1968]2 All E.R. 708) or unless "some error in the Judge's approach is clearly discernible" (per Lord Reid in Baker v. Willoughby 10 [1969] 3 All. E.R. (H.L.) 1528 at p. 1530). In Brown andAnotherv. Thompson (supra) Winn, L.J., had this to say at p. 710: "It issaid bycounsel for the appellant that, whereasitmay be difficult and not in accordance with the practice of this 15 court to change a complete acquittal by a judge of one party of any negligence at all into a finding against that party of some degree, however minor, of negligence, on the other hand, where there has been as here, a condemnation, albeit a mild condemnation, of the appellant, 20 Mr, Thompson, as being partly responsible for this collision, counsel submits that the court is entirely unfettered and should feel itself free to substitute its own opinion for that of the trial judge on the question of the attribution of blame. If there is any widespread belief to that effect 25 at the Bar, it should be entirely discarded. It can lead only to much wasteful use of an appellate court's time. It is quite contrary to the well established practice of this court. Perhaps at the risk of being tedious in giving this reminder, the locus classicus of course, in British Fame 30 (Owners) v. MacGregor(Owners).(\) It was an Admiralty decision, whichwenttothe Houseof Lords,andthespeech to which I desire to direct attention, so that it may be borne in mind, is that of Lord Wright." and at page 712: 35 "Directing myself by those very authoritative pronouncements, and having taken note of other cases which are

(1)11943] 1 All E.R. 33. 892 1 C.L.R. 5 10 Cyprus Palestine Plantations v. Leandrou Sawides J usefully noted in Bingham's Digest of Motor Claims Cases (5th Edn.), which entirely bears out the principle in various different setsof circumstances, I feel quite satisfied that I do not find anycause in the instant casefor altering the apportionments madebythetrialjudge. I deliberately do not say that, had I been trying this case myself, my apportionment would have been twenty per cent. I am not concerned with that. I find no reason which moves mymindat all to consider that thetrialjudge's apportionment was wholly erroneous. Even if I had thought there was reasons to disagree with his apportionment, I would have thought it impossible,for thereasons indicated inthe judgments to which I have referred, to interfere with the judge's apportionment." 15 In the same case Willmer, L.J., had this to say at p. 713: 20 " the only thing that I desire to add for myself is an expression of my concurrence with the observations which have fallen from Winn, L.J., with regard to the reluctance of this court to interfere on a mere matter of apportionment where no error of principle is alleged and no misapprehension of the facts on the part of the trial judge is suggested." In ChristakisIoannou andAnother v. Fivos Michaelides

(1966)1 C.L.R. 235in whichthe trial Court found that the appellant25 defendant was wholly to blame, Triantafyllides, J. (as he then was)after concurring that the appeal should be dismissed, had this to say at pp. 238, 239: 30 35 "I would like to say only that I agree with the conclusion reached by Mr. Justice Josephides in this case, but my approach is slightly different. Though I do think that there is material on record on which the trial Court could possibly have found the respondent guilty of contributory negligence, sitting here on appeal I do not think that the view taken by the trial Court, to the effect that appellant was solely to blame, is so erroneous or unwarranted as to make it proper or necessary for this Court to interfere in the matter." As to the principle of contributory negligence which under our CivilWrongs Law(Cap. 148)s. 57isthe sameas under the 893 Sawides J. Cyprus Palestine Plantations v. Leandrou

(1982)provisions of the English Law Reform (Contributory Negligence) Act, 1945, Lord Atkin, in Caswellv. Powell Duffryn AssociatedCollieries Ltd. [1939] 3 All E.R. 722,although decided prior to the 1945Act, when contributory negligence was a complete defence, had this to say at p. 731: 5 "I think that the defendant will succeed if he proves that the injury was caused solely or in part by the omission of theplaintiff totaketheordinarycarethatwould beexpected of him in the circumstances. But having come to that conclusion Iam of opinion that 10 the care to beexpected ofthe plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may welt beexpected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain 15 and manifold risks of factory or mine." Caswell's case was referred to with approval in Christodoulou v. Menicou andothers

(1966)1 C.L.R. 17in which Josephides, J., had this to say at pp. 31 - 32: "The effect of the Caswelldecision is that the standard of 20 negligence is in all cases not an absolute standard but is dependant upon the attendant circumstances, and in the case of contributory negligence consisting of neglect of one's own personal safety the Court must have regard to the distractions of the plaintiffi>r deceased at the time of 25 the accident and to the strain and fatigue of the work which may make a workman give less thought to his personal safety than persons with less trying surroundings and preoccupations. Thus, though there is only one standard of negligence that standard issubject to qualifica- 30 tion in all cases. The Caswell case was considered and applied in Davies v. Swan Motor Co. (Swansea) Ltd., [1949J 1 AHE.R. 620,where it was held that, in any event, to constitute contributory negligence it was not necessary to show that the conduct of the passenger amounted to 35 the breach of any duty which he owed to the defendant, but it was sufficient to show a lack of reasonable care by the passenger for his own safety. This principle was subsequently applied in the Privy Council case ofNance 894 1 C.L.R. Cyprus Palestine Plantations v. Leandrou Sawides J. v. British ColumbiaElectric Railway Co. Ltd. [1951] 2 All E.R. 448. 5 10 15 In assessing degrees of liability the common sense approach had lo be adopted. Evershed L.J., as hethenwas, in considering questions of apportionment of blame under the English Law Reform (Contributory Negligence) Act, 1945, in the Davies case (supra), at page 627 said: *In arriving at the conclusion at which I do arrive, I conceive it to be my duty to look at the whole facts of the case as they emerged at the trial both of the action and of the third party proceedings, and then, using common-sense, to try fairly to apportion the blame between the various participants in the catastrophe for the damage which the deceased suffered'. Seealsopage629inthesame Report." With the above principles in mind we are now coming to consider whether the finding of the trial Court that there was no contributory negligence on the part of the respondent is warranted by the evidence before him. On the totality of the evidence and the material before the 20 trial Court, wefind ourselves unable to agree with the learned trial Judge that in the circumstances ofthecasetherespondent is not to blame at all for her misfortune. There is no doubt that the only means available for passing from the one side of the conveyors to the other, was to climbthe steps on the sides 25 of the conveyors and when reaching the top step then she had to step over the conveyor, whilst such conveyor was operating to the steps on the other side. Shewasin the employment of theappellantsfor thelast twentyyearsprior totheaccident and she was well acquainted with the system of work operating in 30 the store. It is correct that the degree of care that onemay expect from aworkman inafactory, may bedifferent from that whichmightbetakenbyanordinarymannotexposedcontinuallytothenoise,strain andmanifold risksofafactory, but inthe circumstances ofthecase,wefeelthat theplaintiff whenpassing 35 over the unfenced gap, stepping from the top step on the one sideto that on the other side,the distance beingonly 16 inches, should have exercised due care, knowing that an inadvertent step might cause her foot step and be caught by the moving conveyor. In having to assess the percentage of respondent's 895 Sawides J. Cyprus Palestine Plantations τ. Leandrou

(1982)negligence, we have reached the conclusion that in thecircum­ stances of the case the respondent is guilty of contributory negligence totheextent of 20per cent. Intheresult, theappeal succeeds in part and the award of the trial Courtis reduced by 20 per cent. 5 As to costs, the order for costs before the trial Courtremains undisturbed but as the appeal succeeds in part, we make no order for costs on appeal. The judgment of the trial Court is varied accordingly. Appealpartly allowed. No order \o as to costs. 896