(1988)1988December30 (DEMETRIADES.SAWIDES. ANDKOURRIS.JJ) MITHEO LIMITED, Appellants-Defendants, v. ACHILLEASKOUDOUNAS, Respondent-Plaintiff, (CivilAppeal No. 6956). Damages— Loss of earnings due to injuries sustained by reason of negligence — Whether social insurance benefits received by the victim during the period of his temporary incapacityare deductible fromthedamagespayable forlossofearnings-Question determined in the affirmative— Lincoln v. Haymanand Another [1982] 2 All 5 E.R. 819adopted. Appeal —Apportionment of liability— Interference with,on appeal — Principlesapplicable Negligence — Vicariousliability— Factory— Fellow employee setting machine in motion without first receiving pre-arrangedsignal for \Q doing so — Respondent's fingers caught in the machine — Accident exclusively due to negligence of co-employee for which the employers were vicariouslyliable. The respondentwasinjured, whilstworkinginappellants' factory. The injury,asthe trialCourt found, wasduetothefactthatafellow 1 5 worker put a machine in motion withoutfirstreceivingasignal -as was the established system of work - by the respondent and/or another fellow worker, that everythingwas ready {εν τάξει) for the machine tobesetin motion. In thelightof the said findingthe trial Court found that the injury 2 0 was due exclusively to the negligenceof such co-employee, for which theappellantswerevicariouslyliable. By means of this appeal the appellants challenged the apportionment of liabilityand therefusalof the trialCourtto deduct 796 1 C.L.B. Mltheo Ltd.v. Koudounas from the amount of the award for loss of earnings, the amount receivedbytheplaintiff (respondent)from SocialInsurance. Held,allowingtheappealinpart
(1)Thereisnoreasontointerfere withthe apportionment ofliability. 5
(2)The Social Insurance Law, 1980 (Law 41/80), whereby the previous social insurance legislation was repeated, is silent on the point ofdeductibilityof social insurance benefit received during the period of temporary incapacity due to an accident. Silent is also similarlegislation in England. 10
(3)In England, the matter was settled in principle in Lincoln v. Hayman and Another (1982] 2 All E.R. 819 (C.A.). The ratio decidendi isthat if supplementary benefits payable under National Assistance in circumstances as aforesaid are not deductible, the victim of the accident would receive double compensation for the sameloss. 15'
(4)ThisCourtagreeswiththeopinionsexpressedinLincoln,supra by Dunn, L.J. and Waller, L.J.* If the intention of the legislator had been to prohibit deduction of benefits received under Social Insurance Legislation during the period of incapacity for workby a victim of an accident from the damages payable to him, he should have said so expressly, as he did in the case of Law 156/85, amendings.58oftheCivilWrongsLaw,Cap. 148. 20 Appeal allowed in pari. No orderasto costs. • t. • . 2 5 Casesreferredto: Lincoln v.Hayman andAnother [1982]2AllE.R. 819; Plummerv. P.IV.Wilkingsand Son Ltd, [1981] 1AllE.R.91; Gaskilly. Preston [1981]3AllE.R.427; Nabiv.BritishLeyland (U.K.)Ltd. [1980] 1W.L.R. 529; 30 Foxley v.Olton [1965]2 Q.B.306; I . - • Bassnefr v.Jackson Ltd.
(1976)I.C.R.63; Parsonsv.BNMLavoratories Ltd. [196411QB^95; Cheeseman v.Bowaters U.K.PaperMillsLtd,[1971] 3AllE.R.513; Parryv. Cleaver[1970]A.C. 1. " *' • Therelevantpassagesfromtheirjudgmentsarequotedatp.p. 803-804 post 797 Mltheo Ltd. v. Koudounas
(1988)Appeal. Appeal by defendant against thejudgment of the DistrictCourt of Limassol (Korfiotis, D.J.)datedthe23rd April. 1985 (ActionNo. 2999/81)whereby he was adjudged topay totheplaintiff thesum of £1,830.-as damages for personal injuries sustained by himinan 5 industrial accident. Gl. Raphael for A. Andreou. for the appellant. A. Pelagia(Miss) for A. Lemis, for the respondent. Cur.adv.volt. DEMETRIADESJ.:Thejudgment of theCourtwillbe delivered by Mr.Justice Sawides. 10 SAWIDES J.:Thisisanappeal from thejudgmentoftheDistrict Court of Limassol in an industrial accident case whereby the appellants were adjudged tc pay to the respondent the sum of £1.830.- as damages for personal injuries. 15 The learned trialJudge found thattheappellants were solely to blame for the accident and awarded the above sum against the appellants and in favour of therespondent. The appeal is against theapportionmentof liability and against that part of the judgment whereby the trial Court failed to deduct 20 the social insurance benefits paid to the respondent during his temporary total incapacity, from theaward of special damages, by holding that such benefits were not deductible from the special damages. The facts of the case are briefly as follows: 25 The respondent is a metal worker. The appellants are the owners and/or occupiers of a metal workshop and/or factory within themeaning andίο* «-hepurpose of the FactoriesLaw, Cap. 134. On or about the 14th May, 1981, the respondent with a fellow 30 worker were sent by their employer to the workshop of the appellants in order to bend metal sheets and give them a Y-like shape by a specially adapted machine for such purpose. The said machine was under the exclusive control and operation of the appellants and was operated by one of appellants' employees. 35 The said machine was operated in the following manner: 798 1C.L.H. MltheoLtd.v.Koudotroas SawidceJ. The metal sheets were place on the rollers of themachineone at a timeand after it was ascertained by those placing the sheets thattheywere intheirproperpositionandafterthelattertooktheir hands off thesheets and signified tothe operatorof themachine 5 by calling outtohimthewords «εντάξει» (O.K.),theoperator was settingthe machineinmotionby pressingthestarterwhichwas on the machineon hisside.As aresultthe sheetswerepulledintothe machineby therollersand wereheldtightby asecondsetofrollers which was lowered on the top and was pressing the sheets and 10 subsequently the machine was cutting the sheets in the desired shape.This was the normal processwhich was also followed on theday of theaccident. This process was repeated on that day for a number of times without anyrisk. On the last occasion and whilst therespondent 15 andtheotherfellow worker were still intheprocess of placingthe sheets on the rollers the operation of the machine before ascertaining that the process of placing the sheet had been completed and the respondent had taken his hand and without waiting for any signal from the respondentthatthe sheet was in 20 orderheset themachineinmotionandas aresult thehandof the respondent was caught intotherollers andhisfingers were badly injured. " The learned trial Judge accepted the evidence of the respondentandthatof hiswitness astrueandreliable and rejected 25 the evidence of the operator of the machine that he set the machineinmotionafter therespondentandhisfellow worker had signified tohimthateverything was inorderand he couldset the machine inmotion. As aresult he found thattheaccidentwas the result of the sole negligence of the operator of the machine for 30 which theappellants were vicariously liable andgavejudgmentin favour of the respondent - plaintiff against the appellants defendants: The special damages had been agreed between the parties as amounting to£830.- subject toanissueas towhether anamount 35 of£238whichtherespondentcollectedfromtheSocialInsurance Fund during his absence from his work due to his injuries was deductible from theamountof special damages. Theotherissues which were before the trial Court were the quantum of general damages andtheapportionment of liability between theparties. 40 The learned trialJudge found as follows: (a) The general damages were assessed at£1,000.799 S a w i d e s J. Mitheo Ltd.v. Koudounas
(1988)(
- b)There was no contnbutory negligence on the part of the respondent (c)The amount of £238 -collected by the respondent from the Social Insurance Fund was not deductible from the special damages 5 The amount of general damages awarded by the tnal Court is not in dispute in the present appeal What is challenged by this appeal is (
- a)The apportionment of liability and the finding of the tnal Judge that the appellants weresolelyto blame and 10 (
- b)That the social insurance benefits amounting to £238 should have been deducted from theamount ofspecial damages awarded Weshalldealfirstwiththequestionofapportionment ofliability It has been held time and again that assessment of liability ts 15 pnmanly within the field of thetnal Court and that thisCourt will not normally interfere with such assessment unless such assessment wasmanifestly wrong It is also well settled that the findings of fact based on the evidence accepted by the tnal Court should not be disturbed on 20 appeal unless such facts are inconsistent with the evidence adduced or any inferences drawn from such facts are wrong Counsel for both partiesinthisappeal drew ourattention tothe findings of fact of the learned tnal Judge, the inferences drawn from such facts and hisexposition of the law as appeanng in his 25 judgment We have carefully considered the judgment of the learned tnal Judge and we have reached the conclusion that his findings as to negligence were reasonably open to him and warranted by the evidence accepted by him In the light of such findings theapportionment ofliabilityonafull liabilitybasisonthe 30 appellants, isthe proper one and should not be disturbed We come next to consider the remaining issue before us as to whether the amount payableasbenefits from thesocial insurance isdeductibleornotfrom theamountofspecialdamagesawarded The learned tnal Judge had thistosay inthisrespect «In respect of the question as to whether the amount collected by the plaintiff {£238 -) from the Social Insurance 800 35 1 C.L.R. 5 Mltheo Ltd.v. Koudounas S a w i d e s J. Fund should be deducted from the amount of compensation the Social Insurance Law41/80 which repealed the previous Laws 2/64 and 28/68 does not embody any provision for such purpose. From this it can be inferred that this amount cannot be deducted otherwise there should have been a provision inthe new lawasthere was previously.» The Social Insurance Law of 1964, Law 2/64, did not contain any provision as to the deductibility of social benefits paid to a person during his temporary incapacity from the -amount 10 recoverable by him in an action for damages for negligence in respectofpersonalinjuries.Such provision wasintroduced for the first timeby Law28/68which brought"aboutcertain amendments to the Social Insurance Law of 1964. Thus under s.4 of the new Law, s.46 of Law 2/64, was amended by enacting a provision to 15 the effect that when damages were awarded by a civil Court the Court should direct that anamount equal to l/3rd of the benefits paid to a person under the Social Insurance Law .should be deducted from theamount ofspecialdamagesawarded in respect of lossofearningandsuchamountshouldbemade payable tothe 20 Social Insurance Fund.· All the Social Insurance Laws were repealed'by "the Social Insurance Law, 1980 (Law41/80) which enacted new provisions as to contributions and benefits from the Social Insurance Fund. The new lawdoesnot contain any provision asto deductibility or 25 not of anybenefits paid out of the Social Insurance Fund from the award ofspecial damages ina civil actionforTnegligence. . Law41/80isinthisrespectonthesamelinesasthevariouslaws inEngland forsocialinsurance benefits orsupplementary benefits paid under the Social Insurance Schemes previously known as 30 national assistance. No reference was made by counsel to any rdecision of the Supreme Court on the subject since the enactment of Law 41/80 and we have not traced any decision in this respect. Useful assistance in this respect may be derived.from the case law in 35 England where similar legislation does not make provisionas to deductibility ofsuch benefits from an,award of special damages. In England till 1982 when the Court of appeal in Lincoln v. Hayman and Another [1982]2 AllE.R. 819,'for the first time was given the opportunity of providing answers to some of the 801 S a w i d e s J. Mltheo Ltd.v. Koudounas
(1988)problems on the question relating to the deductibility of supplementary benefits from special damages, the decisions appeared to be a littleunsettled asmany High Courtdecisions on the point were inconclusive. Some considered that supplementary benefit (previously known as national assistance) 5 should be deducted in full because it would not be unfair to the plaintiff to deduct such payments as he cannot expect to receive double payment. Thus in Plummer v. P.W. Wilkins& Son Ltd. [1981] 1AllE.R. 91,itwasheld thatpayments of supplementary allowances,weredeductiblefrom thespecialdamagesawardedto 10 a plaintiff for loss of earnings and if such allowances were not deducted, theplaintiff wouldhave been inabetterpositionthanif he had not been injured. Latey, J. in hisjudgment, (at p.95) had thisto say: « the purpose ofdamages istocompensate thevictim 15 for what he hassuffered and lostasa result of the tortious act of the tortfeasor. Itisnotto fine the tortfeasor; itisnot to put the victim in a better position than he would have been had merebeen notortiousact;itistoputhiminthesamepositionhe wouldhavebeen inhadtherebeen notortiousact.Unlessthe 20 payments concerned are deducted, he would be in a better position than if there had been no tortious act. I add, parenthetically, thatverydifferent considerationsapplyinthe case of a pension orcharitable gifts orthelike.Ascounsel for the defendant cogently put it, 'Would it be unfair to the 25 plaintiff todeductthese payments?' Notintheslightest. From onesourceoranotherhehasreceivedallthecompensation to which he isentitled to puthim intheposition hewould have been had the accident not occurred. Isitunfair to him not to confer onhimawindfallprofit?Whyshouldhereceivedouble 30 compensation?» Inthesamevein Gaskillv.Preston [1981]3AllE.R.427decided that family income supplement, as itwas inthe same category as supplementary benefit, was deductible from special damages. These two elements were considered to be identical to the 35 employment benefit which under Nabi v. BritishLeyland (U.K.) Ltd. [1980] 1W.L.R.529aredeductible.However, inothercases ithad been decided by the High Court that national assistance or supplementary benefits inviewof their discretionary grant should be left out as these were too remote. {Foxley v. Olton [1965] 2 40 Q.B.306;Bassnett v.Jackson Ltd.
(1976)I.C.R.63.) -802 1 C.LlR. Mitheo Ltd.v. Koudounas S a w i d e s J. The main problem apparently arisesfrom theratiodecidendiof ParsonsV.BNM Laboratories Ltd. [1964] 1 Q.B 95. a Court of Appeal case, inwhich itwasdecided that unemployment benefits since they are substitute for earnings are to be taken into 5 consideration and deducted. In fact thiswas a wrongful dismissal case and its dictum in injuries cases etc. should be of doubtful authority. (See also Cheeseman v. Bowaters U.K. Paper MillsLtd,t[1971] 3 All E.R. 513). However, Lord Reid in Parry v. Cleaver [1970] A.C.I questioned the validity of this 10 authority, albeit obiter. Lord Wilberforce referred tothe anomaly briefly. Faced with all these complications the Court of Appeal in Lincoln (supra)tdecided to look at and consider the question of supplementary, benefits on principle. Dunn, L.J. posed the 15 question thus: «When the right to supplementary benefit was conferred, did Parliament intend that a plaintiff should enjoy itin addition to payment of the damages he will be entitled to». His Lordship's answerwas«no». Dunn, L.J. gavehisreasonsforsofinding atp.822 as follows: 20 ~ «Where asherethere isnoindication inthestatuteastothe .intention of Parliament Iask myself whether the payment of supplementary benefit issoremote from thedamage causedin the accident that it should not be taken into account? The payments were made to the plaintiff becausehe was in need 25 - as a direct consequence of the injuries he suffered in the accident. They were made as of right, and if they are not deductible from his damages the plaintiff will pro tanto achieve double recovery, which is contrary to the basic principle of damages as compensation for loss actually 30 suffered. 35 Tosaythatitiswrongthatthetortfeasorshouldbenefit from payment of supplementary benefit seems tometoignore the realities of personal injuries litigation. Inthe greatmajority of the casesthedamageswillbepaidbyan insurance company. and the effect of not deducting supplementary benefit will be to increase premiums to employers and motorists, who together form a large section of the public. Moreover, if supplementary benefit is not deductible it.will be in the 803 S a w l d e sJ. Mltheo Ltd.v. Koudounas
(1988)interests of plaintiffs not to proceed expeditiously with their claims,so/asto increase the element ofdouble recovery.» Waller L.J. in the same judgment atp.823had thisto say: « When he became unemployed he did not lose the total of his wages because part of that loss was replaced by 5 supplementary benefit. If the supplementary benefit is not taken into account and deducted the plaintiff will recover more damages than he has suffered. It will be a fortuitous windfall. The fact that thedefendant hasto pay less damages as a result does notlead metochange thisview.There areso 10 many considerations,in an award of damages for personal injuries which may make a difference to the award that Ido notseeanythingintrinsicallywrongintakingthisintoaccount. Nor does calling the defendant a wrongdoer affect thisview, especially where the wrongfulness of the negligence may be 15 minimal. Furthermore, although in a trial the question of insurance or not is irrelevant when considering broader principles, itisa mattertobe considered. Incasesof personal injury arising out of road traffic accidents the defendant will almost always be insured.The ideal answer mightbe thatthe 20 insurers should get credit for the supplementary benefit but should be obliged to reimburse the Supplementary Benefit Commisssion for the benefit paid. This, however, cannot be done without legislation.». Weagree with the opinions expressed byL.Justices Dunn and 25 Waller in Lincoln (supra)and withsuchopinion in mind we have come to the conclusion that for the reasons stated in the above casesthesocialbenefits payable undertheSocialInsurance Fund are deductible from the special damages awarded. To find otherwise itwould have amounted to allowingdouble indemnity 30 which is contrary to the basic principle of damages as compensation for lossactually suffered. Thefactthatthereisnoprovisioninthelawforthededuction or not of such amount cannot be construed as excluding or prohibiting such deduction as suggested by counsel for the 35 respondent and asfound bythetrialCourt.Whetherthe intention of the legislator was that any benefits from any source should be disregarded in assessing damages he should have expressly provided so as he did under s.58 of the CivilWrongs Law, Cap. 148asamended bys.2 of Law 156/85whereexpressprovision is 40 804 1 C.L.R. 5 Mltheo Ltd. v. Koudounas S a w i d e s J. made that in assessing damages in respect of a person's death there would not be taken into account any benefit, pension or gratuity which has been or will or may be paid as a result of the death. Once there isno statutory provision in respect of benefits from the Social Insurance Fund paid to a person who has been injured in an accident it must, therefore, be assumed that the legislature left the question to the Judges to be decided on principle.(SeeinthisrespectLincoln v.Hayman (supra)atp.822). Inthe resultthe appeal inthisrespect succeeds andthe amount 10 of £238.- should be deducted from the amount of special damages. The appeal istherefore allowed to that extent and the judgment of the trialCourt isvaried accordingly. Bearinginmindthefact that thisappeal ispartlysuccessful we make no orderfor costs. 15 Appeal partly allowed. No orderasto costs. INDEX TOSUBJECT MATTER PARTI Page ABUSE OF PROCESS—Proceedings for a declaration that Courtbefore whichsuchproceedingswereinstitutedhas no jurisdiction to try a particular dispute between the parties—An odd approach, bordering abuse of process ofthe Court. (Kolokoudias v. Vamavidou) 566 ACT OR DECISION IN THE SENSE OF ARTICLE 146.1 OF THE CONSTITUTION—Disciplinary. proceedingsDentists—Nature of such proceedings—Possibility that itisoutsideambitofArt.146.1oftheConstitution cannot be excluded. {In reDemetriou) 678 ACTION INREM—SeeADMIRALTY—Actioninrem. ADJOURNMENT OF ACTION—See CML PROCEDURE— Hearing. ADMIRALTY—Action in rem against cargo—The English Administration ofJustice Act, 1956, s.3
(3)—«Charge»— Meaning of—Persons not having possession of the cargo, but claiming to be its owners—Do not have a «charge» on the cargo—Therefore, in the absence of a claimforamaritime lien,noaction inremliesagainstthe cargo. {NaginaMarketingv.IntertrustShipping) 482 Action in rem—Judgment—Execution of—No order for sale of defendant shipcan be made, unlessshe is under arrest. [Vahlawanv.Motor YachtSaud) 510 Action in rem—Jurisdiction—The English Administration of Justice Act, 1956 section l{l)(f)—An act, neglect or default «in the management of the ship»—The act, neglect or default must be one that directly affects the shipherself. (Fili v. YachtNirvana) 651 Action in rem—Master of ship claiming salaries due and value of equipment belonging to him and put on board for enabling him to navigate her—Such claims give rise to a maritime lien—It follows that, notwithstanding change of ownership of ship, an action in rem could be filed—By defending such action the new owners added theirliability in personam. (Bowman v.Ship Cutter) .... 337 Action in rem—Necessaries, claim for—In order to bring the case within section 3
(4)of the Administration of Justice Act, 1956 the plaintiff should prove who are the owners of the ship. {CY.TA. v.Ship'Maria») 163 Agency—See, also, Service out the Jurisdiction, Leave obtained ..., post. 806