clr/1984/1984_1_200.pdf

(1984)tort. It wasalleged in th.5 Statement of Claim that the respondents werenegligent in that they sold to theappellant adangerous thing without warning him of such danger which they knewor ought tohaveknown. In thealtcmativ;it wasalleged that the injuries were caused to the appellant by reason of the 5 breach of contract and/or of the express and/or implied terms thereof by the respondents who had expressly and/or impliedly contracted to sell to the appellant an axle which was fit to be used as such and/or to be cut and/or be altered whereas they sold tohim an axlewhichwasunfit and/or dangerousifused or 10 cut or handled in any way. Before the action was heard special and general damagss were agreed by the litigants at £1,350.- on a full liability basis and the hearing proceeded on the issue of liability only. The version of the appellant as disclosed by the evidence 15 adduced and given in the judgment of the trial Court is as follows: The appellant for four yeais preceding the accident was buying from the respondents different articles such as axles, pieces of copper and aluminium and the like. In the morning 20 of the 25th February, 1970,he visited defendants' office accom panied by his brother. Respondent 1 was not there but his wife (respondent 2)was. Hetoldher that hewanted to buyan axle4"indiametre inorderto cutandshapeitintoa sparepart for atractor. Respondent 2calledheremployeeoneParthenios 25 Charalambous (D.W.3) who, togethei with the appellant and his brother went to the yard where the axlesand other article* werekept and from a heapofaxlestheappellant sorted out one that suited him for thepurpose hewanted it and took it. They wentback to the office and the employee weighed it in the pre- 30 sencs of respondent 2 and the appellant was debited with the price. He took theaxletohis workshopwheie heput it onan electricallyoperated latheandstarted cuttingitinordertoshape itasrequired. In theprocessofcutting ittheappellant stopped the machine in order to check the axle and at that moment an 35 explosion occurred and the axle was cut in two pieces. As a result of the explosion appellant was injured in the right eye. As to how hewas injured the appellant gave two versions. In hisexamination-in-chicf hesaid that inside the axlethere wasa bronze ring (rodella) which, as a result of the explosion, was 40 202 1 C.L.R. Papavasiliou *. Kleanthous and Another L. Loizou J- flung off and hit him in the eye; but in cross-examination he saidthat thebron?eringhithim on theforehead and ashewas bending down the compressed air fiom inside th; axle with foreign particleshithimintheeye. With r:gard tothisaxlethe 5 appellant further 'tated inhisevidencethat thereart axlesthat are compact and others that are hollow but that the axle he puichased from the tespondents was supposed to be compact iron. The two ends of the axlewere blocked by two piecesof iron on cither side (exhibits 2and 2A)which formed a sort of 10 blockage (poma) with screws but he could not find out if the axle was hollow containing compressed air because its surface was rusty and that a hollow axle containing compressed air is, in his opinion, dangerous when cut by means of a lathe. As stated earlier on it is common ground that on the day in 15 questionthefirstrespondentwasnotpresentathisplacsofwork when theappellant visitedhiscampin order tobuytheaxlebut withlegardtothesystemofworkhefollowsinsellingthevarious articles he stated inevidencethat when a prospective purchaser visitshiscampin order to buy anythinghetellshim to gohim20 selfandfindwhatheneedsandafter thearticleisselectedbythe purchaser it isweighed and the price paid for it. Pausinghere for a momentwemightmention that thisevidenceofrespondent 1 is supported by the evidence of two witnesses called by the appellant himself, P.W.3, A. Loukianou and P.W.4, Yiannakis 25 Panteli. Both these witnesses have been carrying on the same occupation as the appellant and had regular dealings with respondent 1. They both confirmed that whenever they went to buy axlesor other itemsfrom the respondent heasked them to gointo theyard and select whatever theywanted and after they 30 did so the respondent weighed the article and they paid him according to its weight. Respondent2,thewife of respondent 1 who,asstatedearlier on,wasabsentandshewaspresent intheoffice inhisplacesaid in evidence that the plaintiff accompanied by a brother of his, 35 whohappened tobethebestman oftherespondents,visited her at her office and that hewent and selected a piece of iron from theyard and that allshedidwastoweighit for him. Shesaid that the articlein question waseight okes and at the request of appellant'sbrother,herbest man,sherecordedthisinher books 40 as a ciedit sale. .She denied that the appellant either told her 203 l·. Loizou J. Papavasiliou v. Kleanthous and Another

(1984)what he wanted or what he was going to use the article for and she insisted that he, himstlf, selected what he wanted and that all shedid was to weigh it for him. Shealso dented and, so did the employee Parthenios, that he had accompanied the plaintiff to the camp where the axluswere. In fact the employee denied 5 that the plaintiff bought anything in his presence from the defendants on that particular day. With regard to the purchase of the article the learned trial Judge believed the version of the defendants. He was satisfied that "the plaintiff purchased from the defendants a second-hand 10 article which he,himself, selected and which he had ample opportunity to inspect without making known to defendant 2 either its description or the particular purpose for which it was required". In the circumstances, the learned trial Judge concluded that appellant could not invoke the provisions of s.16of 15 the Sale of Goods Law, Cap.267 and that his claim based on contract must fail. S.I6(

1. a)of The Sale of Goods Law reads as follows: "16. Subject to the provisions of this Law and of any other Law for the time being in force, there is no implied 20 warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (
2. a)Where the buyer, expressly or by implication, makes known to th; seller theparticular purposefor whichthe 25 goods are required, so as to show that the buyer relics on the seller's skill orjudgment, and the goods arc of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not) there is an implied condition that the 30 goods shall be reasonably fit for such purpose: Provided that, in thecase of a contract for the sale of a specified article under its patent oi other trade name, there is no implied condition as to its fitness for any particular purpose; (
3. b)Where goods are bought by description from a seller whodealsingoodsofthat description(whether heisthe manufacturer or producer or nol), there is an implied 204 35 1 C.L.R. Papavasiliou v. Kleanthous and Another L. Lolzou J. condition that the goods shall be of merchandablc quality: Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed; Asto the accident the Court accepted that what the appellant purchased was an axlo and that whilst h.*was in the process of cutting it on his electrically operated lathe a loud noise was heaid and that parts of the axle weie flung and as a result the 10 plaintiff was injured. But as to the reason of the so-called explosion the Court wasnot satisfied on the evidencethat it wa* caused by compressed air. This iswhat the learned trial Judge had to say with regard lo these findings: 15 20 25 30 35 "From the e-vidoncc of the plaintiff - which 1 accept on this issue-1 am satisfied that the axle inquestion, partsof which arc exhibit:, before me, isthe axle purchased by the plaintiff from the defendants. 1am also satisfied, accepting the evidence of plaintiff and that of his employee (P.W.2) on this point, that what they havetermed asanexplosionoccurred intheplaintiff's workshop whilst the plaintiff was in the process of cutting the aforesaid axle by means of his electrically operated lathe. I am satisfied that a loud noise washeard and that exhibits 2 and 2A were flung off but the crucial issuewhich falls for determination is the reason of the so-termed explosion. In his cxamination-in-chief the plaintiff attributed the explosion to the presence of compressed air within the hollow pait of the axle in question. In cross^xamination though, when asked about the reason of the explosion he replied: *I do not know why the explosion occurred.* Georghios Charalambous (P.W.2) a 19year old young man now serving in the National Guard was an apprentice latheman workingwith the plaintiff in Februaiy, 1970,when this accident occuned. This witness in his examinationin-chief attributed the explosion to the presence of compressed air within thehollow axleaswell. Hewasnot sure 205 L. Loizou J. Papavasiliou v. Kleanthous and Another

(1984)aboutit though; thuswhenasked by theCourthereplied: 'It musthave containedcompressed air'. Soinconnection with thepresenceof compiessed air in theaxle -thealleged causeof the accident,thereisbefore me- (

1. a)theevidenceof the plaintiff in chief contradicted by his own testimony in 5 cross-examination and (
2. b)the evidence of his apprentice latheman at the time; this latter evidence is not positive and tantamountsto meresurmise. Thereis no other evi­ dence showing that therewas compressed air in the axlein question and in particular scientific evidence showing 10 positively presence of compressed air in theaxle andattri­ buting to suchpresencetheexplosion in question or inany other way explaining the cause of same. Γηthis respect Γ cannot lose sight of the fact that Andreaϊ Loukianou (P.W.3) a latheman with 18 years experience when asked 15 whetherahollowaxlewouldcontaincompressedairreplied: Tf it was welded, air may have remained inside, but if the ends were closed by screws no air would remain inside.' In this connectionit should be further noted that it was the allegation of the plaintiff throughout that exhibit 1in 20 its original form had a screw oneither side forming a sort of blockage (poma). Thus there is no evidence before me, (
3. a)thatcompressed airwas presentwithin theaxlerender­ ing the axle a dangerous object 25 (
4. b)astothereasonoftheaforesaid 'explosion' whichmight as well have been caused by the improper adjustment of the axle on the electrically operated lathe and/or improper manipulation in the process of cutting and shaping the axle in question. 30 Under the circumstances it cannot be seriously alleged that the axle in question was dangerous per se, and, there­ fore, a warning on behalf of the defendants was indispens­ able. Infact, thereis noevidencewhatsoever provingthat the defendants were in any way negligent towards the 35 plaintiff as no latent or otherdefect of the articlesold was proved before me." And thelearned trial Judge concluded thatappellant's claimon tort must also fail. 206 I C.L.K. Papavasilinu \. Kleanthous and Another I.. Loizou J. On appeal learned counsel argued his case both with regard to the claim based on contract and on tort. But he, nevertheless, stated that he felt that he had a better case on the claim on contract. 5 Thegist ofhisatgumcnt on the issue ofnegligence wasthat the respondents were negligent because they sold a dangerous chattel knowing that the purchaser was a latheman who would inevitably cut it, without giving any warning to him. Also in not investigating orexamining the origin and nature of the things 10 he was sellingasaxlesparticularly in view of the fact that he was buying also redundant articles from the military authorities. With regard to the claim based on contract he challenged the trial Court's finding in accepting the version of the respondents as to the circumstances the article was purchased and submitted 15 further that the respondents were liable to the appellant for breach of the warranty as to fitness and merchandability of the article sold envisaged by s.16of the Sale of Goods Law: because they either expressly or by implication knew the purpose for which the appellant was purchasing the articles in question or, 20 alternatively, that the possibility that he would cut or otherwise interfere with it was reasonably forseeable. Learned counsel argued at soma length one of his grounds of appeal to the effect that whereas in the statement of claim the date of purchase of the article in question was given as the 25th 25 February, 1970, in the defence it was alleged that the purchase took place "on a day in May, 1970" and that, therefore, it was probable that the respondents were referring to a different occasion. But going through the evidence on record it is abundantly clear that both plaintiff and defendants, without any 30 objection on the former's part, referred to the 25th February. 1970, as the date of the purchase and no question was raised as to the probability of any mistake as to such date nor were the respondents ever asked that the salethey were referring to might have taken place on any date other than the 25th February, 35 1970. This being the position we do not think that we can reasonably assume that the parties were referring to different occasions. The more so sine? it is common ground that the respondent I had visited the appellant at the clinic where he was 207 I.. Loizou J. Papavasiliou \. Kleanthous and Another

(1984)treated as an in-patient until the 1st April, 1970i.e. long before May, 1970. The other grounds of appeal concern issues of credibility of witnessesandIheevaluation andweightoftheevidenceadduced andwereaimedatdisturbingsuchfindingssoastobringthecase 5 within the exceptions to s.I6 of the Sale of Goods Law in the sensethat theappellanthad madeknown totherespondentsthe particular purpose for whichthearticlepurchased was requiied and relied on their skill and judgment and that the articlewas defective or, in the alternative, to bring the article purchased 10 within the description of things intrinsically dangerous or, in other words, that it was dangerous per se. Having carefully considered the arguments advanced by learned counsel wehavenot beenpersuadedthat thefindingsof thetrialCourtwereerroneousorthattherearesufficient grounds 15 for disturbing such findings on appeal. On the contrary, we are of the opinion that, having regard to the evidence, such findings werewarranted and that it wasreasonably open to the trial Court to arrive at its conclusions. In the result this appeal fails and it is hereby dismissed with 20 costs. Appealdismissed with costs. 208