clr/1984/1984_1_898.pdf

(1)that there was nothing in the evidence to substantiate the allegation that the defendants had undertaken the unloading for somebody else; that the evidence adduced is sufficient to indicate that they undertook the unloading either as independent contractors or as agents of an undisclosed principal and, consequently, the only possible conclusion that can be reached isthat the plaintiff, at the time of the accident, was in their employment.

(2)That the duty of the employer to prescribe a safe system of woik is not 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; that the precautions taken must be proportionate to the risk involved; that where some com.mercial necessity requires that an employer will expose a workman to some risks, he may avoid liability for his failure to guard against such dangers; that his duty isto take reasonable stepsto provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation; that in deciding what is reasonable, long established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in respect of reasonableness; that had the workers been warned about the existence of the caustic soda and given protective equipment or had the area been cleaned, before they started to work there, it is most unlikely that the accident would have occurred or that the plaintiff would have suffered the injuries complained of; that, therefore, the defendants were negligent in that they failed in their duty to provide the plaintiff witha safe system of work; that, further, there is nothing in the evidence to suggest that the plaintiff had willingly taken the risk, since he was not aware of it, or wasguilty ofany contributory negligence;andthat, accordingly, 899 Kitros v. Salto Shipping (198-1) judgment will be given for plaintiff in the sum of £1,500 agreed damages. Judgment for £1,500. Cases referred to: Pericleous v. Co-MarineLtd. andAnother

(1977)I C.L.R. 315 at pp. 321-

1. 5 Admiralty action. Admiralty action for special and general damages in respect of injuries sustained by the plaintiff in the course of his employment with the defendants in the unloading of the ship "Maria". 10 CM. HadjiPieras. for the plaintiff. JV. Anastassiadcs with Chr. Sohmis, for the defendants. Cur. adv. vult. MALACHTOS J. read the following judgment. The plaintill in this Admiralty Action is a port worker in Limassol and the 15 defendants are a company formed and incorporated in Cyprus with limited liability. The plaintiff has instituted the present action against the defendant company ?-S hisemployers, claiming special and general damages in respect of personal injuries he sustained in the course of his employment, while unloading 20 the ship "MARIA" in the port of Limassol, on the 12th December,
2. In the petition the plaintiff alleges that the accident occurred as a result of the negligence and/or breach of statutory duty and/or breach of contract of employment on the part of the 25 defendants. On the other hand, the defendants in their answer deny that they were the employers of the plaintiff and allege that they were acting as the agents of the consignees of the goods and that they had only applied to the Labour Office for labour to 30 work in the unloading of the said ship. Furthermore, they a'lege that they werenot inany way responsible for the condition of the vessel and that the persons responsible were her owners or charterers. Finally, they deny that they were negligent and/or in breach of statutory duty and that any injuries sustained 35 900 I C.L.K. Kitres*. Saito Shipping Malachtos J. by the plaintiff were entirely due to the negligence of the plaintiff himself. On the 20th May, 1982, when this case came on for hearing, the question of general and special damages was agreed between 5 the parties at £1,500- on a full liability basis and, so, the only remaining issue to be determined by the Court is the question of liability. As to how the accident occurred, the plaintiff, gave evidence himself and called six more witnesses, including three of his 10 fellow workers, two of whom wor·;· working with him at the material lime and one who was working with the previous shift. Mot only the three fellow-workers corroborated his version but the two of them, nemely, P.W.2 Panayis Demetri and P.W.5 Kyriakos Parnei'ou, also testified that they loo had suffered 15 similar injuries themselves, P.W.2 on his back and P.W.5, who was working with the previous shift unloading caustic soda, on his right hand. The defendant company paid to P.W.5 fur his injury £60.- by way of damages. The plaintiff in giving evidence stated that on the day in 20 question he was employed by the defendants to work on the vessel "MARIA". At about 5 p.m. he went on board the ship and joined his fellow workers who were already there with their foreman Georghios Photiou. He started work immediately unloading cartons with blankets. The cargo was covered 25 with what he took to be, dust. In order to unload it they had to step on the cartons. After working for about an hour he felt itching in his left foot. He took oft his shoe and sock and shook them but he saw nothing except that his foot was red, so he put them on again. Later on that day, after he finished 30 work,as hislegwasstill red and itching,hewent to the Limassol Hospital where he was told that if the itching persisted, to visit the doctor the next day. The following day his leg turned from red to black and so he visaed the doctor and was given sick-leave which was later 35 extended and lasted for 113 days. On the same day he went to the Labour Office and saw the foreman who told him that the dust on board the ship was caustic soda and that they had forgotten to tell him. He also visited the defendants and saw a Mr. Hadjitheodossiou, to complain, where, as he claims, he 901 Malachtos J . Kitros v. Salto Shipping

(1984)was offered, some time later, the sum of £500.- to settle his claim, which money he, however, refused. The plaintiff admitted that though it was not strictly their job they assisted the sailors ofthe ship to removethe hold covers (mpoukaportes) after having been ordered to that effect by 5 their foreman. The hold covers had, on them dust which fell into the hold below on to the cartons and cases, which they subsequently unloaded. The plaintiff also stated that the cleaning of the area where they were to work was not within their duties but the duty of ihe sailors. 10 The main two points of the defendants' defence are:

1. That the plaintiff was not employed by them and thus no master and servant relationship existed; and
2. That even if they were the employers, they had no responsibility for the accident. 15 It is not in dispute that the plaintiff and his fellow workers were supplied by the Labour Office to the defendants to work on the aforesaid ship. It is also not in dispute that these port workers were paid by them. There is nothing in the evidence to substantiate the allegation 20 that they had undertaken the unloading for somebody else. The evidence adduced is sufficient to indicate that they undertook the unloading either as independent contractors or as agents of an undisclosed principal and, consequently, the only possible conclusion I can reach is that the plaintiff, at the time 25 of the accident, was in their employment. As regards the question of liability, there is clear evidence that the defendants had unloaded caustic soda from the vessel in the morning of the 12th December,
3. It is also in evidence that there was caustic soda on the cargo which was un- 30 loaded by the plaintiff and that the plaintiff and two other employees were affected by it. Also it is not in dispute that the scattered soda had not been removed and that the workers had neither been told about it nor werethey given any protective equipment to avoid contact with it. 35 In the case of Pericleous v. Co-Marine Ltd. and Another

(1977)1 C.L.R. 315, it is stated at pp. 321-322: 902 1 C.1..K. 5 10 15 20 25 30 35 40 Kitros v. Saito Shibping Malachtos J "The duty of the employer to prescribe a safe system of work is not an absolute duty but a relative one in that he isnot bound to providea systemas safe asitcan 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, iong established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in respect of reasonableness. In the case of General Cleaning Contractors Ltd. v. Christmas [1953] A.C. 180, a House of Lords case, Lord Tucker at page 194 had this lo say: 'This form of action is frequently spoken of as being based on 'a failure to provide a safe system of work', but this language is misleading since it omits what is an essential element in the cause of action, viz. negligence. Window cleaning is obviously a hazardous operation and—except in the case of the absolute obligations imposed in certain circumstances under the Factory 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 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 and by Viscount Simon in this House in the case of Colfar v. Coggins & Griffith (Liverpool) Ld. [1943] 76 Ll.L. Rep. 1, 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 wltich he complains. In other words, it is not sufficient that 903 Malachtos J. Kitros v. Salto Shipping

(1984)the system adopted was in fact unsafe, he must show something which would have made the system reasonably safe and that this failure was the cause of his accident' ". In the present case from the evidence adduced by and on 5 behalf of the plaintiff, which I accept as true and correct, it is clearthat had the workersbeen warned aboutthe existenceofthe caustic soda and given protective equipment or had the area been cleaned, before they started to work there, it is most unlikely that the accident would have occurred or that the plaintiff 10 would havesuffered the injuries complained of. The defendants were, therefore, negligent in that they failed in their duty to provide the plaintiff with a safe system of work. Also there is nothing in the evidence to suggest that the plaintiff had willingly taken the risk, since he was not aware of it, or was guilty of 15 any contributory negligence. In the light of the above, judgment is given in favour of the plaintiff for the amount of £1,500- with legal interest thereon asfrom today to final payment, with costs to be assessed by the Registrar. Judgment in favour of plaintiff for £1,500- with costs. 904 20