(1988)1988September9 (MALACHTOS.STYLIANIDES PIKIS JJ) VASSILICO CEMENTWORKS LTD, Appellants, ν 1 STRATISANDSOLEAS GENERALSTEEL CONSTRUCTION LTD, 2 COSTAS KARAMANIS, Respondents (CivilAppeal No 7104) Vicanous liability— Employee engaged in work earned out by independent contractor engaged by his employers — When responsibility for acts of such employee passes from his general employer to another — In the circumstances of this case, responsibility did not pass on tosuch independent contractor Damages — Genera! damages for personal injunes — Injury to left ami of workeraged 20 leaving him with apermanent disability, ι e pain, stiffness and weakness after exerting himself—Award of £1,100, increased to £1,400 Appeal — General damages — Interference Principles applicable with, on appeal — The second respondent' s (plaintiff in the action) employers (the first respondents) and anotherfirm were engaged by theappellants to install a chimney atthe latters' plant Thejob was supervised by one Kendal an employee of the first respondents The second respondentwas injured whilst engaged asaworker inthesaidjob,by reason of thenegligence of oneGanvaldinos,who, atthetime, was an employee of theappellants The tnal Court found the appellants liable m negligence and awarded torespondent2£1,100 forgeneral damages forthe injunes and his aforesaid incapacity Hence this appeal The second respondent cross-appealed, complaining that the general damages awarded were inordinately low 514 1 C.L.R. VasslllkoCementv. Stratis & Soleas The main argument of counsel for theappellants was that liability for the negligence of Galivaldinos should be bom by the first .respondents. 5 10 15 20 Held, dismissing the appeal and allowing the cross-appeal:
(1)Though the trial Court did not identify the basis upon which the appellants were held liable in negligence, i.e. whether directly or vicariously, nonetheless,theinescapable inference from thejudgment is thatthey were held liable for an actof negligence of Garivaldinos, their employee. Moreover, the case for the plaintiff was not fashioned onabreachofadutyofcareowed by theappellantstohim as employers.
(2)Forresponsibility topass theentireand absolute controlof the employee must be transferred to the hirer. There is in every case a strong presumption that responsibility for the acts of the worker remainswith thegeneral employer. Inthiscase theevidence tendsto indicate that the worker remained, for all relevant purposes, the employee of theappellants.
(3)In the light of the suffering of the injured worker, his residual incapacitation and hisyouth, theaward was unduly low. Itis hereby increased to£1,
- , _ , . , . . . - , , Λ Appeal dismissed with costs. Cross-appeal allowed. Award increasedfrom £1,325 to £1,
- Casesreferred to: 25 Kykon Ltd. v.Demetriou and Another
(1982)1C.L.R. 453; Bhoomidas v.Portof Singapore Authority [1978] 1All E.R. 956; Mersey Docks and Harbour Board v.. Coggins and Griffiths (Liverpool) Ltd. and McFarlane 11946]2 All E.R.
- Appeal and cross-appeal. 30 Appeal and cross-appeal against the judgment of the District Court of Limassol (Korfiotis, D.J.)dated the 16th December, 1985 (Action No. 2817/82) whereby defendants 2 were ordered to pay to the plaintiff the sum of £1325.- as damages for the injuries h e sustained in the course of his work at the cement factory of 35' defendant No.
- P. Polyviou, for the appellants-defendants No
- R. Michaelides for respondents-defendants No.
- 515 Vassillko Cement v. Stratls &S o l e a s
(1988)D.Aristidou, for the respondent No.2 plaintiff. Cur.adv. vult. MALACHTOS, J.: The judgment of the Court will be given by PikisJ. PIKISJ.: The appellants were held liable in negligence for the 5 injuries suffered by Costas Karamanis, an employee of respondents 1, sustained in the course of his work at the cement factory of the appellants. Hisemployers and another engineering firm (Karamontanis) were engaged by the appellants to install a chimneyattheirplant,aprocessinvolvingthegradualelevationof 10 the chimney components and their fitting and installation at a height3 0 - 4 0 meters above the ground. AtthetimeoftheaccidentCostasKaramanis,respondent 2,was stationed on a platform near the chimney and was charged with receiving parts of the chimney elevated by^a"mechanical winch 15 and their subsequent fitting and adjustment into the chimney structure. While in that position he was struck by the rope of the winch that elevated partsofthechimney inconsequence ofwhich he suffered the injuries that will be referred to later in this judgment. It is common ground that the wire rope was unduly 20 stretched and in consequence was derailed from its position striking inthe process the injured party. The mechanical winch was operated bya certain Garivaldinos, an employee of the appellants, the owners of the plant who seemingly also collaborated in the process of installation of the 25 chimney. The process of elevation of the chimney parts was carried out under thedirection and supervision ofJohn Kendal,an employee of the first respondents. In hisown testimony, John Kendal stated he was coordinating the work carried out by allconcerned inthe 30 installation of the chimney. Garivaldinos and others engaged in thisprocess of elevation ofchimney partswere under instructions not to embark on raisingcomponents unlessspecifically signalled todosobyJohn Kendal. Fortheelevationtobesafe there should be coordination between the actions of the operator of a 35 mechanical and a manual winch. Asthe mechanical winch began lifting parts, the operator of the manual winch should gradually releasesufficient ropetomaketheprocesssafebyavoiding undue pressure on the wire rope available to the operator of the 516 1 C.L.R VassUlko Cement v.Stratis &S o l e a s Pikis J. mechanical winch. The evidence before the trial Court conclusively established and so the Court found that in the particular instance Garivaldinos set in motion the mechanical winch without directions from the supervisor of the process, 5 namely, John Kendal and consequently at a time when the manual winch was at a standstill. The trial Court found that the appellants, the employers of Garivaldinos, were solely liable for the accident and on that account were adjudged to pay the sum total of the damages awarded toCostas Karamanis. 10 Counsel for the appellants criticised thejudgment for failure to identify thepremise upon whichtheappellants wereheld liablein negligence; in particular the Court did not specify whether they were directly or vicariously liable.The criticism isvalid inthat the Court does not identify the basisupon which the appellants were 15 Iheldliableinnegligence.NonettielessTfihe inescapableinference from )thejudgment isthat they were held liablefor an act of negligence of Garivaldinos, their employee. Moreover, the case for the plaintiff was not fashioned on a breach of a duty of care owed by the appellants to him as employers. Hisemployers, appellants 1, 20 were also joined as parties to the proceedings. The case against them wasfounded, inter alia, on abreach oftheemployers' duty toprovideasafesystemofwork.Theunavoidableinference isthat appellantswereheldvicariouslyliablefortheactsofGarivaldinos. Therespondents, ontheotherhand,wereabsolved ofliability,the 25 Court taking theviewthat the negligence of Garivaldinos was the sole causative agent of the accident. The principal question we have to determine and the one pursued with most vigour by counsel for the appellants revolves on the status of Garivaldinos, in particular whether responsibility for his action passed to 30 respondents 1notwithstanding the fact that he wasthe employee oftheappellants.The negligence ofGarivaldinos wastreated asa foregone conclusion, indeed an inevitable inference from the evidence adduced before the Court. The failure on his part to observe the settled procedure for the elevation of chimney parts 35 wasa breach of hisduty towards Costas Karamanis, whose safety heoughttohave hadinhiscontemplation inperforming hiswork. Inthosecircumstancestheriskofinjurytotheplaintiff wasnotonly reasonably foreseeable but a distinct possibility. "Tieprinciplesrelevanttotransfer and responsibilityforthe acts 40 of an employee were reviewed in Kykon Ltd. v. Demetriou and Another*. For responsibility to pass the entire and absolute •
(1982)1 C.LR. 453. 517 PUtts J . Vassiliko Cement v. Stratis & S o l e a s
(1988)control of the employee must be transferred to the hirer (Bhomidas v. Port of Singapore Authority*). There is in every case a strong presumption that responsibility for the acts of the worker remains with the general employer**. The evidence before the Court far from establishing that responsibility for the 5 acts of Garivaldinos, in the sense explained above, passed to respondents 1, tends to indicate thatthe worker remained, for all relevant purposes, the employee of the appellants. In the first place there was no agreement between appellants and respondents 1 for hiring theservices of Garivaldinos tothe latter. 10 Furthermore, the evidence did not in any way establish that respondents 1 were solely responsible for the installation of the chimney.Thetestimony of Mr.Kendal didsuggestthatapart from his employers, respondents 1,theappellants, aswellas thefirm of Karamontanis, cooperated and collaborated for the achievement 15 of what was ineffect acommonventure.Appellants failed torebut the presumption that they were answerable for the acts of Garivaldinos. Consequentially they were vicariously liable for his negligence as the trial Courtrightly concluded. Damages 20 Theonly otherissuewe mustresolve intheseproceedings isthe oneraised by thecross-appeal of theplaintiff,thatis,the adequacy of the general damages awarded to him. A degree of residual incapacitation would afflict theuse of the left arm of respondent 1 {the plaintiff) causing him pain, stiffness and weakness after 25 exerting himself. Foralabourer inhis2 0 s thedisability, thoughof a minor nature, cannot but be considered as sufficiently consequential tojustify our interference. Of course, for thisCourt to interfere the award must be inordinately low, thatis, below the outer limits of what may be considered as fair compensation. 30 Otherwise the trial Courtremains the arbiter of compensation. Having addressed ourselves to the adequacy of the compensation,bearing inmindthesuffering oftheinjured worker, his residual incapacitation and his youth, we find that the award was unduly low, such as towarrant ourintervention.We increase 35 the amount of the award for general damages to £1,400.- raising the amountof the total award from £1,325.- to£1,625. <. " — — • ^ ^ » •11978} 1Μ E.R. 956(P.C). ** MerseyDocksand Harbour Boardv. Coggins&Griffiths (Liverpool) Ltd.andMcFarlane
(1946)2 ΑΙ!ΕR. 345. 518 1 C.L.R VassUlko Cement v. Stratis &S o l e a s Pikis J. In the result the appeal is dismissed with costs. The counter appeal is allowed. The judgment of the trial Court is varied by increasingtheamountofdamagesto£1,625.(Onesetofcostswill be recovered byrespondent 2). 5 Appeal dismissed. Cross-appeal allowed. 519