clr/1987/1987_1_107.pdf

(1987)Onthe26 ό 79the first defendantsappliedasaforesaid tobesuppliedwith three gangs of stevedores, eachof them consisting of eleven stevedores, for unloadingthecargoonboardtheship«PARADISEMOON· Theplaintiff was one of the stevedores named by the second defendants Whilst he was engaged inthework of unloadingthesaid cargo,working with thegang on the quay,a sack,which was partof aloadthathadbeenraised from thehold of theshipandlowered overatrolleythatwas onthequay,fellon plaintiff's head and, as a result, the plaintiff sustained the mjunes hereinabove described Thespecial damageswere agreed at£1,343 Having analysed the evidence the Courtreachedthe conclusion that the causeoftheaccidentwas thenegligenceofthestevedores,whowereworking in thehold of theship inthat theyfailed tomakesure that noneof the sacks would get loose and fall out of the load The question that arose for determination iswho was theemployerof thesaid stevedores The question of the quantumof thegeneral damagesremained,also,inissue Held,

(1)Indecidingwho isthemasterofa servant, whose wrongful actis in question, many difficulties anse as an employee who is lent or hired to another employer may have two masters,but in law he can only have one master controlling his work at any given time The subject is analysed in CharlesworthonNegligence,6thEd ,ρ 44,para 76andtheleadingauthonty is the case of Mersey Docks and Harbour Board ν Coggins and Quiffiths (Liverpool) Ltd and McFarlane [1946] 2 All ΕR 345, recently applied in Bhoomidasv Portof SingaporeAuthonty [\978] 1A11ER 956 10" 15 20

(2)Itisclearfromtheevidencethatthestevedores,whowereworkinginthe hold, were selected by the second defendants at the request of the first 2 5 defendants The person who had the overall responsibility for the implementation of thesystem of work,thatishowthe "shampani" would be loaded andhow theload would be raised from theholdwas anemloyeeof the first defendants The sack fell because it was notproperty tied by the «shampani

(3)Inthelightofsuchevidenceandthe saidauthonhesthefirstdefendants are toblame for theaccident Theseconddefendantswho merelyprovided thefirst defendantswiththestevedores arenottoblame

(4)Havinginmindtheage oftheplaintiff,thathewasalreadysuffenng from severe osteoarthntisof the cervical sptne and that, after his seven months' incapacitation,hewas notabletoworkcontinuously,thegenera)damagesfor pain,suffenng, inconvenienceandsomelossof wageswouldbeassessedat £1,750.Theagreedsumof£1,343wouldbeadded,makingthetotal£3,093 108 35 30 1C.L.R. Erodotou v. Shoham

(5)Astheactionagainsttheseconddefendantswasunjustified, therecanbe noBullock'sorderastotheircosts. Judgment for£3,093 againstthe firstdefendants with costs.Action againstthesecond defendants dismissedwithcostsagainstplaintiff. 5 CasesreferredtoMersey DocksandHarbourBoard v.Ccggms and Quiffiths(Liverpool)Ltd. andMcFarlane[1946]2AllE.R.345; 10 Bhoomidas v. PortofSingaporeAuthority[1978] 1 AllE.R.

1. Admiraltyaction. Admiralty action for damages for injuries sustained by the plaintiff whilst engaged in the unloading of the ship «Paradise Moon». 15 C. HadjiPieras, fortheplaintiff. M. Montanios, fordefendant No.
2. V. Tapakoudes, fordefendant No.
3. Curadv. vulf DEMETRIADESJ.readthefollowingjudgment.Theplaintiff,a "- 20- stevedoreoflistB\claimsdamagesforinjurieshesustajnedonthe 26thJune, 1979,whilstemployed intheunloadingofthecargo loaded ontheship«PARADISEMOON»whichwasanchored at theportofLimassol. Inthecourseofthehearingoftheactioncounselfortheparties 25 informedtheCourtthattheplaintiff would,onafullliabilitybasis, be entitled to the sum of £200.- for medical and transport expenses,plus£1,143.-forlossofwagesforsevenmonths. HavingheardtheevidenceadducedIfindthatthefollowingare factsthatcannotbedisputed: 30 ThefirstdefendantsareashippingagencywhichactsinCyprus 109 Demctriades J . Erodotou v. Shohani

(1987)onbehalf of shippers and ownersof cargoand ships. The second defendants are the officers of a non corporate organization which has been formed by approximately 90 stevedores. These stevedores monopolise the loading and unloading of cargo on shipsthat call at ports inthe Republic and 5 are known as belonging to the so called «classA' list».They have the privilege of being the first to be selected for employment for the loading and unloading of ships. When there is demand for more stevedores, the second defendants call for work those that areregistered inwhat isknown as the «classB'list». 10 When persons require theservicesofstevedoresforthe loading or unloading of cargo, the practice isfor them to apply inwriting to the District Labour and Social Insurance Officer of the Ministry of LabourandSocialInsurance,stationed attheporttheshipcalls, and askthat they are supplied with thenumber ofstevedoresthey 15 so require. Their application is then passed to the second defendants who assign for each work a number of named stevedores from the A' listand when no stevedore from thislistis available, they allocate persons who belong tothe B'list. According toanagreementreached bytheshipping agents,the 20 second defendants and the LabourOffice, the persons requesting theservicesofstevedores,included inboth lists,musthaveavalid insurance, covering them for injuries caused during the time the stevedores render their services. As it appears from the evidence of Mr. Loukis P. Louca, a 25 Director of the first defendants, they, on the 26th June, 1979, applied tothe DistrictLabour and Social InsuranceOfficer posted at Limassol, to supply them with three gangs, each of them consisting of eleven stevedores, for the unloading of the cargo loaded on board the ship «PARADISEMOON». 30 According to the evidence of this witness, his company was acting as agents for a shipping company which isbased in New York, U.S.A., and which wasthe charterers of theship.This fact, according to him, was never disclosed by the first defendants to anybody concerned in these proceedings. Mr.Louca further said 35 that the New York shipping company reimbursed them infull for 110 1 C.L.R. Erodotou v.Shoham Demetrlades J. the costsof the unloading ofthe cargo. It isan undisputed fact that the plaintiff sustained injuries as a result of the fall on his head of a sack that was in a load that had been raised from the hold of the ship and lowered over a trolley 5 that wason the quay. I shall later refer tothe injuries sustained bythe plaintiff. Asthe special damages towhich the plaintiff would be entitled, onafull liabilitybasis,i.e.medical,transportexpenses,pluslossof wagesforseven months,havebeen agreed at£1,343.-, the issues 10 that remain forthe Court todecide are(a) Who isliableforthe injuriessustained bytheplaintiff and who washisemployer, and (b) general damages. Inow propose to deal with the first issue. 15 AsIhave earlier said, the plaintiff was injured asa result of the fall on his head of a sack containing sesame. He was, at the time of the accident, standingonthequaywithraised handsinorderto place the load that had been lowered by the winch of the ship at therightpiact; un a trolley.When thpsack fell on him he had not 20 touched the load or inanywayinterfered with it.The evidence ot the plaintiff astohowtheaccidentoccurred issupported bythatof his colleague Georghios Panteli (P.W.2) and Defence Witness' Loukis Louca. Counsel for the deferidarit5"submittedthat the-system_of work. 25 applied on the day of thisaccident wasa safe one and that ithad been used for years and thathad the plaintiff not rushed from the cart, where he ought to be, before itwassafe for him topush the cargo to itsplace, he would not have met with the accident. For this reason, counsel for defendants No. 1submitted, the plaintiff 30 was solely to blame for this accident and, alternatively, he substantially contributed to itas he was not ignorant of therisks that existed. Before proceeding toanswertheabovesubmissionsIshallgive a description of the system of work employed by the gang of 35 stevedoresonthequay.Thissummaryisbased ontheevidenceof 111 Demetriades J . Erodotou v.Shoham

(1987)Andreas Ttinis, the employee of the first defendants in charge of the loading and unloading of cargo atthe Limassol port. Accordingtotheevidence ofthiswitnessbefore thegang,which is employed on the quay, can start work, there must be on the quaytwotrolleys;theoneisusedasaprotective one andtheother 5 is used for the loading of the cargo which is unloaded from the ship.Both trolleysare providedbythesecond defendants. Oneof thetrolleys,towhichIshallrefertoasthetrolley,isconnected with a tractor which towes it to and from the warehouses. The other trolley,whichIshallcallthestand,ispermanentlythereandisused 10 by the stevedores on the quay for protection and safety so that they do not stand underneath the load that is lowered from the ship. Atthetimeoftheloweringofthe load,thestevedoresmustwait on the stand. When a load is lowered, the winchman brings it 15 above the trolley and when the load reaches a height of approximately2 1/2 -3 metersaboveit,the'koumandos'andthe stevedores willcall out tothewinchman tolowerthe load further down to a height which isusually in level with the chest of the stevedores whoare on the stand. 20 This procedure isfollowed for two reasons (a)itavoidsrisksto the stevedores and (b)itpreventsthe breaking ofthe load in case it falls violently on the trolley. It further helps the stevedores to place the load at the right place by having a better control of it. According to the witness, itiswhen the load reaches thissecond 25 height that the stevedores can move from the stand onto the trolley. Having regard to the evidence of Mr. Ttinis, it is clear that all concerned withtheunloadingwereawareofsomekindof danger during the unloading or else there would be no necessity for the 30 stand which is described as«protective». Undoubtedly this stand was, ifmy understanding of the evidence iscorrect, necessary (

1. a)as a stepping stone to the trolley when the load was ready to be placed on it and (
2. b)for protection from the swinging of the load whilst it was lowered by the winch to such a height from the 35 platform of thistrolley or of the load already placed on itthat the quay stevedores could manoeuvre itsafely in order to place itin 112 1 C.L.R. Erodotou v.Shoham DemetriadeaJ. therightposition on the trolley. In my view, the evidence of Mr. Ttinis does not support the submission of counsel for the first defendants thatthe plaintiff was solely to blame or that he contributed to the accident. AsIhave 5 earlier said, the accident occurred because one of the sacks got loose from the bundle of the load that has been taken out of the hold of the ship and fell on the head of the plaintiff. What caused it to free itself from that bundle must, therefore, be investigated and one should consider the evidence of what went down in the 10 hold of the ship when the load was prepared for lifting and then loweringitonto the quay. MichalisAspri,aclassB'stevedore,describedhowtheloadwas prepared intheholdoftheship.Hesaidthatintheholdtherewere sacks of sesame. These sacks were put on what is known as a 15 'shampani' so that they could be lifted from the hold and then lowered ontothequay.This'shampani' isa longand wide ribbon on which the sacks of sesame were placed. It consists of two ribbons, the two ends of which are on each side sewed together. The 'shampani', the width of which isthree feet, isplaced on the 20 floorof thehold, thesacksare loaded on itand then itsone endis passed through the other end and isthen hooked on the sling or thetwoendsofitarehooked onthesling.Liftingoftheioadisal&w done ifthe two ends of the 'shampani' are tied together and then. hooked on the sling. The 'shampani' gets tied round the sacks 25 when itislifted bythe winch. —In the lightof-the evidence adduced, I.findjthat the stevedores who prepared the load in the hold of the ship were negligent in thattheyfailed tomakesurethatnoneofthesackswouldgetloose and fallout of the load. 30 Havingreached thisconclusion, the nextquestion thatcallsfor decision iswho was the employer of the stevedores that tied the load inthe hold oftheship. On this issue the evidence is that the second defendants lent themselves, as well as stevedores of the B' list, to persons or 3 5 bodiesthatrequiretheirservicesfortheloadingand/or unloading of cargoon or from ships. 113 Demetrfades J. Erodotou v. Shoham

(1987)In deciding who is the master of a servant, in this case of the stevedores in the hold of the ship, whose wrongful act is in question, many difficulties arise as an employee who is lent or hired to another employer may have two masters, but in law he can only have one mastercontrolling hiswork atany given time. 5 In Charlesworth on Negligence, 6th ed., p. 44, para. 76, there are stated the following: «Servantofone employer lenttoanother employer. Aservant maybe thegeneral servantofoneperson,andyethisservices may be temporarily put at the disposal of another, who may 10 be described as the particular employer. In such a case, although the general employer may pay the servant, select himfortheworkinquestion and havethepowerofdismissing him, the particular employer may in some circumstances be liable for the servant's negligence while engaged in his 15 particular employment.» Andat p.46 para. 78 Charlesworth, supra, summarises thelaw onthesubjectasthismaybederivedfrom thecase-lawasfollows: «1.Thepresumption isthattheservantremainstheservantof the general employer, the burden of proof being on those who assertthe contrary.Thisburden isa heavy one butitcan be discharged inexceptional circumstances. «( 2.The employer atthematerialtimeisthatemployer who can tellthe servant notonlywhat hehastodo,butalsothewayin which heistodoit.Iftheservantwhendoingthenegligentact 25 ismerelyexercisingthediscretionvestedinhimbythegeneral employer and not obeying detailed directions given by the particular employer, he remains the servant of the general employer.

1. The contract between the employers may provide thatthe 30 servant shall be the servant of the particular employer. This contract isnotconclusive. Itcannot be used 'tocontradict the fact, if it is the fact, that the complete dominion and control over the servant has notpassed from one tothe other'.
2. Iftheservantisnotemployedtoworkordriveanymachine, 35 114 1 C.L.R. Erodotou v.Shoham DemetrladeaJ. vehicle or animal belonging to the general employer, it is easier to find thathe has become theservant of the particular employer \ 5 5 When the servant is employed to work or dnve any machine, vehicle or animal belonging to the general employer, he exercises the discretion in its management delegated to him by the general employer and, subject to what is stated above, remains the servant of the general employer» 10 The leading authonty on the subject which was applied inthe recent case of Bhoomidas ν Portof Singapore Authonty, [1978] 1 ΑΙ!ΕR 956, is the case of Mersey Docks and Harbour Boardν Coggins andQuiffiths (Liverpool) Ltd andMcFariane,[1946]2All Ε R 345, inwhich itwas held- 15 «(ι)The question of liability was nottobe determinedby any agreement between thegeneral employers andthehirers,but depended onthecircumstancesof thecase,thepropertestto apply being whetherornotthehirershadauthontyto control the mannerof the executionof the relevantactsof the dnver 20 (») Thp board, as the general employers of the crane dnver, had failed to discharge the burden of proving that the hirers had such controlof theworkman atthe timeof the accidentas to become liable as employers for his negligence, since, although thehirerscouldtellthecranednver where togoand whattocarry,theyhadnoauthontytogivedirectionsasto the manner in which the crane was to~be~operated."Theboard were, therefore, liable for his negligence » 25 Viscount Simon in hisjudgment said (atpp 348,349) 30 35 «It is not disputed that the burden of proof rests upon the general or permanentemployer - in this case theboard - to shift the ρπma facie responsibility for the negligence of servants engaged and paid by such employer so that this burden inaparticularcase may cometorestonthehirerwho for the timebeing has theadvantage of theservice rendered. And, inmy opinion,thisburdenis aheavy one and can only be discharged in quite exceptional circumstances. 115 DemetrladeaJ. Erodotouv. Shoham

(1987)If, however, the hirers intervene to give directions as to how to drive which they have no authority to give, and the driver pro hac vice complies with them,withtheresultthatathirdpartyisnegligently damaged, thehirers may be liable asjoint tortfeasors.» 5 Lord Porter in delivering his judgment in the same case approached the problem byexpressing hisopinion asfollows (at p. 351):Many factors have a bearing on the result. Who is paymaster, who can dismiss,howlongthe alternative service 10 lasts, what machinery isemployed - allthese questions have to be kept in mind. The expressions used in any individual casemustalwaysbeconsidered inregardtothesubject matter under discussion, but among the many testssuggested I think that the most satisfactory by which to ascertain who is the 15 employer atanyparticulartimeistoaskwhoisentitledtotell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorised to do this, he will, as a rule, be the person liable for the employee's negligence. But it is not 20 enough that the task to be performed should be under his control,he mustalsocontrolthe method of performing it.Itis true that in most casesno orders as to how a job should be done aregivenorrequired.Themanislefttodohisownwork inhisown way, buttheultimate question isnotwhatspecific 25 orders, orwhether anyspecific orders,weregiven,butwhois entitled togivethe ordersastohowtheworkshouldbe done. Where a man driving amechanical device,such asacrane,is sent to perform a task, it is easier to infer that the general employer continues to control the method of performance 30 since itishis crane and the driver remains responsible tohim for itssafe keeping.» Itisclear from the evidence adduced that the stevedores, who were entrusted with the making up of the load inthe hold of the ship,were selected bythesecond defendants attherequestofthe 3 5 first defendants and, according to Mr.Ttinis, the person who has the overall responsibility forthe implementation of thesystemof work, that ishow the 'shampani' was to be loaded and how the load was to be raised from it, was an employee of the first 116 1 C.L.R. Erodotou v.Shoham Demetriades J. defendants, namely Takis Erodotou. Mr. Ttinis admitted that the sack fell because it apparently was not properly tied by the 'shampani'. Inthe light of this evidence and the authoritiesto which 1 have 5 made reference, Ifind that the first defendants were the persons who, through their employee Erodotou, controlled the method ' used in the loading of the 'shampani'. They, therefore, are to blame for thisaccident and not the second defendants who were merelythepeople whotookuponthemselvestherighttoprovide 10 the first defendants with the stevedores required by the latter for the unloading of the cargo. Having reached the above conclusions Ifind that the plaintiff wasnot inanywaytoblame for the accident. Inowcometothelastissue,namelythatofthegeneral damages 15 towhich the plaintiff isentitled. Asa result of the fall on his head of the sack, the plaintiff was injured and was taken to the Limassol Hospital. There. Dr. Adamou, the orthopaedic specialist who examined the plaintiff. found that he wassufferingfrom 20 1. Concussion, 2. lacerations of hisnose and left eyebrow, 3. haematoma ofboth eyes, 4. haematoma of left leg, __ 5. abrasionsj^f left leg 25 6. sprain of the left ankle, -- - 7. depression ofthebodiesof4thand5thcervicalvertebraewith 1stdegree spondylolisthesis of C4on C5. According tothedoctor, theplaintiff further complained thathe wassuffering from pinsand needles and weakness of both upper 30 limbs. The plaintiff was treated with a cervical collar, analgesics and rest. He remained in the Hospital as an in-patient for three days. He then left and attended aprivate clinicinLimassol. Itisanadmitted factthattheplaintiff, asaresultofthe accident, 35 remained unemployed forseven months. 117 Demetrlades J. Erodotou v. Shoham

(1987)Asitappears from twolater medical reports, the first signed by Dr. Andreou and E. Georghiou and the second by the same two doctorsplus Dr.Adamou, theplaintiff, at the time he met withhis accident, was61yearsoldandsuffering from severe osteoarthritis of the cervical spine, which wasnot connected with the accident. 5 The first of these reports, which isdated the 17th June, 1983, reads: «Mr. Myltiades Erodotou was treated with a neck collar for a period of seven months. This type of fracture the patients usually wear a collar for a 10 period of four months but in view of the pre-existing osteoarthritis of hiscervical spine the neck collarwaskept for overa period of seven months.» The second medicalreport wasprepared, asitappearsfrom the record in the file of these proceedings, on the 17th June, 1983, 15 and itreads: «JOINTSTATEMENTOFMEDICALEXPERTSOFTHE LITIGANTS «

1. We agree on the type of injuries sustained bythe plaintiff as reported in the attached report of Dr. Andreas Adamou, 20 Orthopaedic Surgeon inthe Limassol Hospital.
2. The X-ray findings of severe osteoarthritis of the cervical spine are not connected with the accident and is a preaccident condition.
3. The period of plaintiff's total incapacity isseven months. 4.The plaintiff willsuffer attacksofpain and stiffness overhis neck in the future. He will also feel weakness of his hands, mainly after heavy manual work. These complaints will be due partly to the injury to the neck and partly to the preexistingosteoarthritic condition.» Considering thecondition ofthe plaintiff, asitappearsfrom the medical reports, and that in January 1982 he met with another accidentwhilstemployedinthesametypeofwork,Ifindthatwhat 118 25 30 1 C.L.R. Erodotou v. Shoham Demetriades J. Ihave todecide isthe amount of damages to which he isentitled forpain and suffenng duringtheseven monthsofinabilitytowork and thepenod uptoJanuary 1982dunngwhich, healsoalleged, that because of the after-effects of his mjunes he missed work 5 three tofour timesa month Havinginmindtheageoftheplaintiff atthetimeoftheaccident, that he was already suffenng from severe osteoarthntis of the cervical spine and that, after hisseven months' incapacitation he wasnotabletoworkcontinuously Iassessthegeneraldamagesto 10 which he isentitled for pain, suffenng inconvenience and some lossof wages at£l 750Ifthisamount isadded totheagreed sumof£1,343,-forspecial damages the plaintiff isentitled tojudgment for £3,093The judgment for this amount isagainst the first defendants as 15 the plaintiff has failed to prove that the second defendants were negligent fortheaccident which caused his mjunes Inthe result, there willbejudgment infavour oftheplaintiff and against the first defendants for£3,093 -with costs The action against the second defendants isdismissed 20 With regard to the costs ot me secund defendants !H d that since the plaintiff was not justified in pursuing his action against them, I cannot make a bullock's order The plaintiff, therefore, must paytheir costsfor defending thisaction Costsofplaintiff againstthefirst defendants and the costsofthe 25 second defendants against him tobe assessed bythe Registrar Judgment againstdefendant No 1for£3,093 with costs Action againstdefendant 2 dismissedwithcosts 119