(1985)1985 May 23 [A. Loizou, LORIS A N D STYLIANIDSS, JJ.] KALLIOPI SIMOU AND ANOTHER UNDER THEIR CAPACITY AS ADMINISTRATRIXES CF THE ESTATE OF THE DECEASED HUSBAND AND FATHER, SIMOS VARNAVAS, Appellants-Plaintiffs, v, PETROS MOT1TIS AND ANOTHER, Respondents-Defendant?. (Civil Appeal No. 6742). Negligence—Master and servant—Safe system of work— Independent contractor—Death of well-digger through collapse of sides of well—No side boards and other supports for the well—Employer subjected employee to unnecessary risk—Liable in negligence—Principle of volenti non jit 5 injuria lias no application in the absence of a finding tfiat plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran impliedly agreed to incur it—Since cause of accident known unnecessary to ask whether it would have happend had there been no negli- 10 gence—Bolton v. Stone [1951] A.C. 850 not applicable. Damages—Fatal accident—Damages agreed—But no differentiation made between the amount that was agreed fur the estate, the amount for the loss of expectation of life and the amount for the value of the dependency—Appor15 tionment of damages between widow and minor children. The deceased, Simos Varnava who was married with four children, all under the age of 16, met with a fatal accident, which occurred whilst digging a well and its sides collapsed and he was suffocated from the soil that 20 covered him. At the material time he was in the employment of the respondent who had undertaken as an independent contractor the digging of the said well, for and 428 1 C.L.rt. 5 Simou and Another v. Μotitis and Another oil account of ex-defendant No. i against whcm the action was withdrawn in the course of the hearing. Ac cording lo the evidence the sides of a well have ίο be sup ported by casing especially when there is another well or another bore-hole nearby as there exists always the risk of the new well ccllapsing. The trial Judge dlsrnised the acticn of the administrators of the csiaie of the de ceased for damages; and hence this appeal. 20 Held, (i) that the employer had a duty to take reasoaable care for the employee's safety and not subject him to unnecessary risks; that he, further, had a duty to pro vide sideboards and other supports for the well which was dug below surface where there was the risk of col lapse; that on the totality cf ihe uncontested evidence, which was before the trial Judge a case cf negligence had been duly made out on the preponderance of evidence required in civil cases, particularly if the evidence ad duced was viewed in the light of the admissions in the pleadings so further strengthened thereby; and that, therefore, the appeal must be allowed. 25 Held, further
(1)that the principle of volenti non fit injuria has no application in this case in the absence of a finding "that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran impliedly agreed to incur it". 10 15 30 35 40
(2)That since it was known exactly how the accident happened it was unnecessary to ask whether this accident would have happened had tiiere been no negligence. The only question was: Do the facts or omissions, which were known and which led up to the injury, amount to negli gence? And no doubt the answer should have been in the affirmative (Bolton v. Stone) [195!] A.C. 850 not ap plicable).
(3)That this Court will proceed to apportion the damages which had been agreed before the commencement of the hearing of the case at £14,000.- though no diffe rentiation is made therein between the amount that was agreed for the estate and the amount for the loss of expe ctation of life and the amount for the value of the dependency. Such course is not devoid of precedent (see 429 Sbnou end Another v. Motttis end Another
(1988)Christou v. Panayiotou 20 (II) C.L.R. 52); that as the hereditary share of the wife and the children have only a small difference between them, the whole amount wQl be apportioned though this should not be taken as setting up any precedent whatsoever and in the circumstances the proper apportionment should be that half of the agreed amount should go to the widow and the other half to be divided equally between the four minor children. 5 Appeal allowed. Cues referred to: 10 Smith v. Baker [1891] A.C. 325; Viceroy Shipping Co. Lid. v. Mahattou
(1982)1 C.L.R. 170 at pp. 179-180; Krashias v. lacovides
(1972)1 C.L.R. 40; Easson v. L.B.E.R. [1944] K.B. 421 at p. 424; 15 Nicolaides v. Nicou
(1981)1 C.L.R. 225; Bolton v. Stone [1951] AC. 850; Simms v. Leigh Rugby Football Club Ltd. [1969] 2 All E.R. 923; Chop Seng Heng v. Thevannassan S/O Others [1975] 3 All E.R. 572; Sinnapan A 20 Wagon Mound (No. 2) [1966] 2 All E.R. 709; Christou v. Panayiotou, 20 (II) C.L.R.
- Appeal. Appeal by plaintiffs against the judgment of the District 25 Court of Lamaca (Papadopoulos, P.D.C.) dated the 31st March, 1984 (Action No. 591/80) whereby their action for damages instituted for the benefit of the dependants of the deceased Simos Varaava was dismissed. D Koutras, for the appellant. 50 Z. A. Mylonas, for respondent No.
- Cur. adv. visit. 430 1 C.L.R. Stmou end Another v. Motltis end Another A. Loizou J. gave the following judgment of the Court. This is an appeal from the judgment of the President of the District Court of Larnaca by which he dismissed the action for damages instituted for the benefit of the depen5 dants of the deceased Simos Varnava, under section 58 of the Civil Wrongs Law, Cap. 148, and for the benefit of the deceased's estate under section 34 of the Administration of Estates Law, Cap.
- The deceased was married with four children, all under 10 the age of sixteen and met with an accident on the 14th October 1978, whilst digging a well in Livadhia village in the Larnaca district. He was at the time in the employment of the respondent who had undertaken as an independent contractor the digging of the said well, for and 15 on account of ex-defendant No. 1 against whom the action was withdrawn in the course of the hearing as it emerged that there was no relevant legal relationship between the deceased and the said defendant at the material time. 20 25 30 35 The totality of the evidence that had been adduced at the hearing of the case came from the appellants. The respondent gave neither evidence himself nor called any witnesses on his behalf and so the circumstances of the accident are related by this uncontradicted evidence. On that day the deceased was according to the testimony of his wife, reluctant to go to work but the respondent who called at his house to take him there persuaded him to go. His reluctance stemmed from the fact that the sides of the well were not being cased or supported in the course , of its being dug in order to prevent their collapse. In fact the deceased went to work descended into the well and whilst digging therein its sides collapsed and he was suffocated from the soil that covered him. Matheos Charalambous a well digger with experience and knowledge of such matters who went and found the deceased in the well covered with the collapsed soil, testified that the sides of a well have to be supported by casing especially when there is another well or another bore-hole nearby as there exists always the risk of the new well collapsing. The learned President accepted the evidence of all these 40 witnesses except, as he put it, that single item in the testimony of the widow that her late husband did not want to 431 Λ. Ι,οϋοιι J . S:mou and Another v. Motitis and Another (13S5) go to the well, because he said "he believed that the widow was lying on this point". in our view theie was nothing to suggest that this wit ness lied in that respect but it could make no difference to the outcome of Ihe case even if this version was accepted 5 as it only tended In indicate knowledge of the danger on the part of the husband and such knowledge on the part of un employee does not exonerate the employer from liabi lity. As stated in CJvirlcsworlh on Negligence 6th edition p. 748, paragraph 1?.34 under the heading "Effect of know- I0 ledge of damages" "... the Courts will not find the existence of an implied agreement unless the person who is alleged to have made it had full knowledge of the nature and extend of the risk to be run. The other point is, that 15 although the plaintiff had full knowledge of the na ture and extent of the risk and. with that knowledge, in fact incurred it, lie will not be prevented from re covering unless the circumstances are such as to show that in incurring the risk he did it on' the terms that 20 the loss should fall on him and not on some other person." And further down it is stated: "Evidence of knowledge may sometimes be evidence of assumption of rick but in the nature of things this 25 need not always be so, each, case must be judged on its own facts." This was first laid down in the case of Smith v. Baker Π 891] A.C.
- No doubt in the circumstances of the case the defence of volenti non fit injuria could not have succeeded, though specially pleaded, as it ought to be, as alternative to a denial of liability and to the claim for contributory negligence. 30 As stated in the case of Viceroy Shipping Co., Ltd., v. Andreas Mahattou
(1982)1 C.L.R. 170 at pp. 179-180: 35 "The principle of volenti non fit injuria has no ap plication in this case in the absence of a finding 'that 432 1 C.L.R. 5 Simou and Another v. Molitis end Another A. Loizou J. the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it', as stated by Wills J., in Osborn v. L. & N.W. Railways [1888] 21 Q.B.D. 220, at pp. 223 and 224, following the words of Lord Esher M.R. in Yarmouth v. France [1887] 19 Q.B.D. 647, at p. 657;..." The learned President, after making his findings of fact went on to examine whether the maxim res ipsa loquitur 10 applied. He referred in that respect to the case of Nicos Krashias v. Nicos Iacovides,
(1972)1 C.L.R. 40, the case of Easson v. L.N.E.R., [1944] K.B. 421, 424, and also pointed out by way of reference Clerk & Lindsell or Tort, 14th Edition, paragraph 977, and Charlesworth on Negli15 gence, 6th Edition, paragraphs 264, 265, 266 and 267, as being very helpful on the matter. We are afraid we do not accept the approach of the learned President and the ground for rejecting the principle of res ipsa loquitur in the sense that the res, as he put it, 20 was not under the exclusive control of the defendant, ex• eluding every outside interference by a third person. We do not think however, that we should embark on an analysis of the maxim of res ipsa loquitur. 25 We are satisfied that on the totality of the uncontested evidence, which was before the learned President, a case of negligence had been duly made out on the preponderance of evidence required in civil cases, particularly if the evidence adduced was viewed in the light of the admissions in the pleadings so further strengthened thereby. 30 The duty of an employer to take reasonable care for the employee's safety and not to subject him to unnecessary risks explained in relation to the duty of an employer to provide sideboards and other supports for trenches dug below surface where there is the risk of collapse was dealt 35 with by this Court in the case of Nicolaides Ltd., v. Nicou,
(1981)1 C.L.R, 225, and we need not really repeat them here. Furthermore the case of Bolton v. Stone, [1951] A.C. 850, relied upon by counsel for the respondents, a case 40 which has been applied in Simms v. Leigh Rugby Football 433 A. Loizou J. Simou and Another v. Motitie and Another
(1885)Club, Ltd., [1969] 2 AH E.R. 923, explained and distin guished in Chop Seng Heng v. Thevannasan S/o Sinnapan ά Others, [1975] 3 All E.R. 572, and distinguished in The Wagon Mound (No. 2) case, [1966] 2 All E.R. 709, can not help, as the circumstances giving rise to the cause of 5 the accident were not unknown and the doctrine as pointed out in the Bolton case, is of great assistance when such causes of the accident are unknown, but where, as in the present case, all the facts are known, it cannot have any application. Here it was known exactly how the accident 10 happened and it was unnecessary to ask whether this acci dent would have happend had there been no negligence. The only question was: Do the facts or omissions, which were known and which led up to the injury, amount to negligence? And no doubt the answer should have been in 15 the affirmative. We have felt that it would be in the interests of justice to draw our own inferences for the primary facts as found by learned President and bring litigation to an end, parti cularly in a case as the present one which arises out of 20 a fatal injury which occured in 1978 and there have been left, a widow and four infants, who have been in need of the damages to which they were entitled. We shall also proceed to apportion the damages which had been agreed before the commencement of the hearing of the case at 25 £14,000.- though no differentiation is made therein be tween the amount that was agreed for the estate and the amount for the loss of expectation of life and the amount for the value of the dependency. Such course is not devoid of precedent. It was also pursued in the case of Christou 30 v. Panayiotou, reported in Vol. 20
(11)C.L.R. 52. We might have divided the amount into the two heads and so proceed with the established method of apportion ment, but as in this instance the hereditary share of the wife and the children have only a small difference between 35 them, we have decided to apportion the whole amount, though this should not be taken as setting up any prece dent whatsoever and in the circumstances we have come to the conclusion that the proper apportionment should be that half of the agreed amount should go to the widow and 40 the other half to be divided equally the four minor children. 434 1 C.L.R. SImou and Another v. Motitis and Another • A. Loizou J. The appeal therefore is allowed. Judgment will be entered for the sum of £14,000.- against the respondentdefendant No. 2 in the action with costs against him, both here and below. Appeal allowed. 435