1 CX.R. 1987November 18 !A LOIZOU DEMETR1ADES LORIS JJ 1 EMILIOS G E O R G H I O U , Appellant - Plaintiff, ν ANTONIOUW O O D MANUFACTURERS LTD , Respondents - Defendants (Civil Appeal No 6661) Employers' liability — Employee sustaining injunes whilst using employers' 5 machinery for his own purposes but with employers' permission — Duty of care owed to employee by his employers — It is not the duty of care of an employer towards hisemployees, butofan occupier ofpremises tolicensees in thepremises, thatisa duty to warn him of any unknown hidden dangers 10 Breach ofstatutory duty—Employee sustaininginjunes whilst working in afactory using employers' machinery for his own purposes, but with employer's permission — The Factones Law, Cap 134, section 66
(1)— Breach by employer of Regulations made pursuant to said section (Regs 31 and 32 of the Woodworking Machines Regulations 1973) — As the section applies to 'persons employed* theappellant did not belong to the class of persons the law intended to protect — Consequently, no duty was owed to him by his employers 15 20 The appellant was injured whilst operating a vertical spindle moulding machine atthe factoryofthe respondents, who are manufacturers of wooden furniture No suitable jigor holder,asisrequiredby Regulations 31and33 of the Woodworking Machines Regulations 1973, was provided by the respondents, moreover no instructions or warning were given regardingthe properandsafeuse ofthemachine inquestion,nor was hisattentiondirected to thepresence of any such holder in the workshop At the matenal time the appellant was not acting in the course of his employment with therespondents,butwasdoingprivate work foracustomer of his own using the respondent's workshop and machines with their permission 25 It must be noted that it was a term of the contract of employment of the appellant/plaintiffwiththerespondentsthatinadditiontohiswageshe would be at liberty to use their toolsand machinery for his own purposes 577 Georghlou v. Wood Manufacturer»
(1987)This is an appeal from the judgment, whereby appellant's action tor damages, was dismissed. Held, dismissing the appeal:
(1)The appellant was not actingat the time of theaccident in thecourseofhisemployment withthe respondents, butwas a licensee doingaprivate job. Itfollowsthat therespondentsdidnotowe tohim a duty of care asan employee. 5 2)The appellant beingalicenseewas owed no greaterdutyofcarethan the ordinary common law duty ol care owed by the occupier of premises to licensees entenngsuch premises fortheirown purposesinwhich theoccupier has no interest, that is no more than a duty to wam him of any unknown 1 0 hidden dangers. 3) Since section 66
(1)of Cap. 134 by virtue of which the aforesaid regulations were made, expressly applies to -persons employed», the appellant does not belong tothe classof persons the law intended toprotect Therefore the respondents were not in breach of their statutory duty towards 15 the appellant, as none was owed to him Appeal dismissed with costs. Cases referred to: Napieralsh ν Curtis (Contractors)Ltd. [1959] 2 All Ε R 426 Appeal. 20 Appeal by plaintiff against thejudgment of the DistrictCourt of Nicosia (Boyadjis, P.D.C.) dated the 18th November, 1983 {Action No. 4346/81) whereby appellant's claim against the respondents for damages for injuries sustained by plaintiff whilst operating machinery atdefendants' factory was dismissed. 25 Chr. Kitromelides, forthe appellant. M. Christofides with S. Triftarides, forthe respondents. Cur. adv. vult. A. LOIZOUJ. read the followingjudgment ofthe Court.Thisis an appeal from the judgment of the learned President (Boyadjis 30 P.), of the District Court ofNicosia,whereby theappellant's claim against the respondents fordamages for injuriessustained by him while operating machinery at their factory in Nicosia was dismissed with costs. 578 1C.L.R. Georghiouv.WoodManufacturers A.Lolzou J. The facts of the case, so far as relevant for the purposes of the present appeal are bnefly as follows:The appellant was injured whilst operating a vertical spindle moulding machine at the factory of the respondents who are 5 manufacturers of wooden furniture. He had been employed by them sixmonthspriortotheaccident,havingpresentedhimself at the time as able to do all the necessary work for all kinds of furniture and to operate all the machines in their workshop. The machine on which he was injured was purchased by the 10 respondents about twoor three monthsprior tothe accident. Onthedayoftheaccident, whichwasaSaturday,the appellant startedtheverticalspindlemachineintendingtodoworkonanoak wood legofabed.Hewasholdingthepieceofwood withhisbare hands against the cutters of the machine and the moment the 15 wood came into contact with the cutters, it was thrown back, his left hand thus came into contact with the revolving cutters of the machine and1wasseriously injured. According to the evidence of the inspector of factories given before the trial Court, the accident wascaused despite the useof 20 the proper guard with which the machine was equipped at the time of the accident, because, when the operator ofthe machine commences to make a cutting elsewhere, than at the end of the surface ofthe material,thereisarealdanger ofthe material being thrown backand the operator sustaining injunes. Forthis reason, 25 a«holder»mustbeused,orthetrailingend ofthematerialmustbe secured withasuitablebackstop,whichtheappellantdidnotuse. Adifferent holder isnecessary for each materialdepending on its sizeand shape,which mustbeprovided orconstructed each time to suitthe needsofthe particularpiece of wood tobe machined. 30 Itsconstruction takesabout forty tosixtyminutes. The learned President found on the one hand that the appellant/plaintiff was employed by the respondents as a craftsman albeit an experienced one, conversant with the useof the machines; furthermore it was found that no suitable jig or 35 holder, as is required by Regulations 31 and 33 of the Woodworking Machines Regulations 1973,was provided by the respondents, and alsothatno instructionsorwarningwere given regardingtheproperandsafeuseofthemachineinquestion,nor washisattentiondirectedtothepresenceofanysuchholderinthe 40 workshop. 579 A. Loizou J. Gcorghiou v.Wood Manufacturers
(1987)Ontheother hand itwasfound thattheappellantwasnotacting inthe course of hisemployment with the respondents at the time when the accident occurred, but was doing private work for a customer of his own using the respondent's workshop and machines with their permission. Itwasfurther found thatthe respondentsowed theappellant no duty at common law neither as his employers, as he was doing work of his own during nonworking hours which was totally unconnected with the work they employed him to do, nor any dutyasalicensee.Finallyitwasheldthattherespondentswerenot 10 in breach of their statutory duty as no such duty was owed tohim since he was not «a person employed» as isprovided in section 66(1}oftheFactoriesLaw,Cap. 134,butwasdoingaprivatework of hisown. Asagainstthisdecision theappellant filed thepresentappeal on 15 thegroundsthatsincethetrialJudgefound thatitwasatermofthe contract of employment of the appellant/plaintiff with the respondents that inaddition to hiswageshe would be at liberty to use their tools and machinery for his own purposes, it was therefore an express or implied term or condition that such tools 20 and machinery would be safe; moreover that the learned President wronglyfound thattheappellant/plaintiff wasa licensee and notan employee entitled under a contractualrighttouse the toolsand machinery of his employers. From a perusal of the evidence we find no reason to interfere 25 with the findings of fact as accepted by the learned President, which wefind ascorrect.Weconsiderthattheappellant wasatthe time of the accident not acting within the course of his employment but was indeed a licensee doing a privatejob of his ownandthefactthathemayhavebeen allowedtodosounderthe 30 terms of his-contract of employment, with the respondents does not bring the accident within the course of his employment. Consequently, as correctly found by the trial Judge, no duty of care wasowed tohim as an employee. We further consider that the appellant being a licensee was 35 owed no greaterdutyofcare thanthe ordinarycommon lawduty of care owed by the occupier of premises to licensees entering such premisesfortheirown purposesinwhichtheoccupierhasno interest,that is,no morethan a dutytowamhimofany unknown hidden dangers.Inthepresentcaseweconsiderthatinviewofthe 40 580 5 IC.L.R. Georghtouv.WoodManufacturers A.Lolzou J. factthattheappellantwasfamiliar withthepremisesandthe mode of operation of the machinery inquestion, such dutytowam him on that particulardaywasnot necessary. Finally as to whether the respondents were in breach of their 5 statutory duty towards the appellant, it must be shown that the respondent owed a duty which he failed to perform, that the appellant/plaintiff had suffered the kind of harm which the law intended to prevent and that he belonged to the classof persons thelawintended toprotect. 10 Wewould considerthat inthe circumstances and inthe lightof the particular statutory provisions the respondents had a duty to provide suitable back stops or holders as is required by Regulations31and33oftheWoodworkingMachinesRegulations 1973, which they failed to discharge. Moreover the appellant's 15 injuries were of the type the law intended to prevent. However, since section 66
(1)of Cap. 134 by virtue of which the aforesaid regulations were made, expressly applies to «persons employed» wehavenodoubtinourmindsthattheappellantdoesnotbelong tothe classof persons the law intended to protect. Therefore we 20 consider that the leamed President correctly decided that the respondentswere notinbreach oftheirstatutory dutytowards the appellant, asnonewasowed tohim. A case similar to this case is that of Napieralsh v. Curtis (Contractors) Ltd., [1959] 2 All E.R. 426, also referred to by the 25 trialCourt. Itturned on theconstruction of s.94
(1)of the English Factories Act 1937 which corresponds to section 26 of our Factory Law, Cap. 134 and Regulation 10(c), of the Wood WorkingMachinery Regulations
(1922),nowdeemed tobe made under section 60
(1)of the English Act which is identical to our 30 section66
(1). It was stated therein at p. 432 as regards the words «every person employed»contained intherelevantActas follows: 35 «Counsel for the plaintiff contended that the words were wide enough to include any person who was employed or legitimately working on the premises. 1find myself, after consideration, unable to accept that interpretation. 1 do not thinkthattheword'working'iswideenoughtocoverwhatthe plaintiff was doing at the time. Mr. Thomson was really pursuing a hobby of hisown, making a table forhimself, and 581 A. Lolzou J . Georghiou v.Wood Manufacturers
(1987)all the plaintiff was doing was helping him to pursue his hobby. The plaintiff was a mere volunteer at the time, not employed under any contract of service or for services. He wasvoluntarily helpingMr.Thomson todoaprivatejobofhis own.» 5 In conclusion we find thatthe leamed Presidentrightlydecided ashe did.Thisappeal therefore failsand ishereby dismissedwith costs. Appeal dismissed with costs. 582 10