Court dismisses miner's negligence claim due to missing causal link between accident and current condition.

[*367] 1975 April 5

(STAVRINAKIS, P.D.C., PAPADOPOULLOS, S.D.J.)

IN THE DISTRICT COURT OP NICOSIA

Andreas Elia,

Plaintiff,

and

Elliniki Metalleftiki Eteria,

Defendants.

(Action No. 6213/73).

Negligence - Breach of statutory duty - Miner - Accident in an underground gallery - plaintiff hit on the back by the fall of debris - Plaintiff’s duty to render the gallery safe from loose overhanging debris - He was issued with a helmet - Gallery could not be supported with timber before removal of ore - Plaintiff injured whilst removing ore - Defendants not liable - Nexus between accident and plaintiff’s condition missing - Evidence not satisfactory - Mines and Quarries Regulations, 1958.

Damages - Practice - Dismissal of action - Assessment of general damages - Periodic losses of earnings taken into consideration - Slip disc - Post-traumatic arthritic changes - Laminectomy performed two years after the accident - No pain now except for some stiffness at the back - Plaintiff cannot do heavy work, including that of a miner - Damages assessed at £1,200.-.

T. Eliades, for the Plaintiff.

G. Mitsidou, (Mrs.), for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

STAVRINAKIS, P.D.C.: By the present action [*368] the plaintiff claims against the defendants damages for personal injuries received in the course of his employment and as a result of the latter's negligence and/or breaches of statutory duties.

The plaintiff was a miner employed by the defendant company and has allegation is that on the 31st August, 1970, whilst working in an underground gallery of the defendants' mines, he was injured by the fall of debris or 'poshika' as the witnesses in their ordinary parlance described them.

The defendants deny knowledge of the accident and in the alternative allege that even if an accident occurred, they are not to blame for it. -They attribute further the plaintiff's complaints to other causes and in support of this, they referred to the delay of the plaintiff in seeking medical advice and other inconsistencies in his behaviour.

As both counsel very precisely put it, the questions falling for determination are:-

(a) Whether an accident occurred.

(b) Whether the injuries are connected with the accident.

(c) Whether the defendants are responsible for the accident.

(d) Quantum.

(a) Whether an accident occurred:

The evidence on this is based on the testimony [*369] of the plaintiff and two other employees of the defendant company who alleged to have knowledge of the accident.

The defendant called a foreman to say that he was never called by any of the witnesses for the plaintiff to investigate the accident and added that no such accident ever came to his knowledge. The evidence of this witness is mostly negative in nature and it is probable that he does not remember the incident which after all occurred many years ago.

Having considered the evidence on this as a whole, we prefer the evidence of the plaintiff and his witnesses, as we find it rather improbable for the plaintiff to have imagined the whole incident with a specific date which is so remote that it is likely to weaken his case. If he really contrived the incident, then we fail to see what was there to prevent him from naming a date closer to the date of the first examination by a doctor, a fact which would have built up a stronger connection between the accident and his physical condition as diagnosed by the doctors.

Mainly for the above reasons and after considering the case in its totality, we find that the plaintiff did in fact meet with an accident on the 31st August, 1970, but for the reasons we shall have the occasion to mention, we very much doubt if the accident occurred in the way he described it.

(b) Whether the injuries are connected with the accident:

The evidence on this is far from clear. In the [*370] first place, the plaintiff's conduct, compared with certain established facts, is such as to leave many openings in the chain linking the accident with his physical condition. In the second place, his credibility was rendered precarious by the evidence of Dr. Kanakas to whom he first went for medical advice, by other credible evidence and by inconsistencies in his own version. In the third place, the medical evidence may and may not connect the injuries with the accident.

We propose to deal with the above, taking them together more analytically. As the plaintiff alleged, the accident occurred when debris fell and hit him on the back. He had slight pain and continued with his work as usual for quite some time before he saw a doctor. After the accident, he walked out of the gallery unassisted and the persons who were called to substantiate his versions about the accident did not form the impression that the injuries he received, if any, were serious. In fact, the plaintiff said that when he got up, he made certain movements to see if he was really hurt but he did not feel pain anywhere and continued with his work after he had a rest. He alleged that he went and saw Dr. Kanakas for the first time 5 to 6 days after the accident, because he was feeling a slight pain at his back.

As to the first time the plaintiff sought medical advice, the evidence of Dr. Kanakas is in direct conflict with that of the plaintiff. The [*371] doctor said that according to his records, the first time the plaintiff went to him was on the 17th October, 1970, complaining of pain at the back. He did not tell the doctor that ho had an accident and on this, the versions of the plaintiff and the doctor are again in conflict, because the plaintiff alleged having told the doctor that he was injured in an accident.

On the above, we prefer the evidence of the doctor, not only because he was more precise, but also because his evidence is more probable in the general framework of the case.

Dr. kanakas also stated that the plaintiff's complaints were not serious but ordinary ones of miners working underground. He diagnosed slip disc and directions were given for X-Rays to be taken and an examination of the plaintiff by a specialist was suggested.

The plaintiff was in fact examined by Dr. Ioannou, Dr. Sofocleous and Dr. HadjiCostas. According to the evidence of the last mentioned doctor, the plaintiff was examined by him in October, 1972 and he diagnosed a pain in the back over the levels of the 2nd, 3rd and 4th lumbar vertebrae. The plaintiff also presented a stiffness of the back and when on the 30th October, 1972, X-Rays were taken, osteoarthritic changes with osteophytes in the 3rd and 4th lumbar with intervertebral space in betweenreduced indicating disc degeneration were noted. On the 16th November, 1972, a laminectomy was carried out. [*372]

In the opinion of Dr. HadjiCostas, the plaintiff sustained post-traumatic arthritic changes in his lumbar spine with lumbar disc protrusion duo to the sudden flexion of his spine forward.

The evidence of the plaintiff lacks sufficient particularity regarding the times he was given sick-leave, dates and other material points and this makes our task quite onerous in extracting the truth. Another matter that causes confusion is the fact that slip disc may be traced toother causes, such as a sudden movement, lifting heavy objects or even sneezing. Perhaps the culmination of the mystery is the fact that according to Dr. HadjiCostas, the pain in a case of slip disc may be progressive, not overruling however that a slip disc may be evidenced by initial excruciating pain, whereas Dr. Kanakas said that the pain is fierce at first, tailing off gradually. Nevertheless, there is room in the evidence of the latter to accommodate a case of gradual deterioration of the pain.

Another event which cannot possibly be interpreted in favour of the plaintiff, is his application to the Social Insurance two years after the accident, for disablement benefit which was turned down. Irrespective of the reasons the application was rejected,

D.W.l, the labour officer who examined the application, stated that the plaintiff failed to appeal against the rejection of his application within the prescribed time. As he said, the plaintiff was notified about the rejection of the claim on the 16th October,1972,[*373] and yet the present Action was not filed until about a year later and more than three years after the accident.

With all the above in mind, we are afraid we are unable to draw any safe inferences. The whole case is a suspicious one and even if we try to draw any conclusions, such conclusions will be so weak that they would not amount to anything but mere conjectures. There are too many questionmarks to be brushed off lightly without risking wrong conclusions.

Under the circumstances, the plaintiff has 10 failed to discharge the burden of establishing a nexus between the accident and his condition as it eventually turned out to be.

(c) Whether the defendants are responsible for the accident:

The accident occurred in an underground gallery where the plaintiff was working in the extraction of ore. The procedure is as follows: Firstly, the labourers place detonating charges at the face of the gallery. After the explosion and before the removal of the ore, an. experienced miner called "ergolavos", knocks down, by means of a lever, the insecure hanging material or debris from the roof of the gallery. When this is done, the ore is removed and finally the roof is supported with timber. For purposes of safety, the labourers are supplied with helmets.

The plaintiff is an experienced miner, an "ergolavos", and as such, he was entrusted with the

[*374] knocking down of the loose and insecure material from the roof. There is no dispute that he was provided with a protective helmet. The accident occurred after the debris was knocked down fry him and while he was busy with the loading of the wagons. It is also in evidence that apart from the provision of protective helmets and making the roof safe in the manner earlier described, there was no other way of affording protection to the miners working underground. It is further in evidence that the casing of the gallery cannot possibly be done unless and until the far end of it is cleared from the ore.

Reading from Munkmans Employers Liability, 6th ed., at p. 418:-

“It has always been recognised that the security of the roof in a mine is a matter of great importance. Failure to make the roof safe might give rise to an Action for negligence at common law as in Paterson v. Wallace and Co., (1854) 1 Macq... 748 Section 49 of the Coal Mines Act 1911, imposes a Simple and unqualified duty in the following terms: 'The roof and sides of every, travelling road and working place shall be made secure. This was held in the earlier cases to create an absolute duty to keep the roof secure subject to the defence of impracticability”. [*375]

The matter now is regulated by section 48( 1) of the Mines and Quarries Act 1954 which provides as follows:-

“It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement on the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secured”.

By the new Law, the duty is not automatically broken by a fall of roof. It is only broken if the manager has failed to take some step which was necessary in the light of the knowledge and information he has or ought to have.*

Learned counsel for the defence laid stress on the cases where the duty was considered as limited to steps reasonably practicable (Walsh v. National Coal Board.(1959)3 All E.R.632) and added that what the defendant did in the present case was everything that was reasonably practicable.

In Cyprus, the Mines and Quarries Regulations 1958 (made under section 46 of Cap. 270), regulate the safety in mines. The following Regulations were relied upon by the plaintiff as having been broken:- [*376]

Regulation 64:

(1) “Before beginning to drill all overhanging and loose or loosened rock or debris shall be removed from the immediate vicinity of the face to be drilled and such face and the debris created from the blast shall be examined for any charges of explosions which may have misfired”.

(2)......................................................................................................................

Regulation 79:

(1) “Where the ground is not naturally safe, every working or pumping shaft and every travelling road or working place,adit, level,crosscut, stope and underground passage shall be securely timbered, walled up or otherwise made secured and kept in safe condition so long as they are in actual use and no persons, unless appointed for the purpose, of exploring or repairing, shall travel or work in any such shaft or underground working until it is made secure”.

(2) .......................................................................................................................

Regulation 100:

It provides about reporting of accidents.

Having gone through the Cyprus Regulations, we found nothing excluding the defence of reasonable [*377] practicability

and in the circumstances of the case, nothing was shown to our satisfaction which could be done for rendering the roof secure and

was not done. The plaintiff was the person det ailed in securing the roof from loose debris; he was issued with a helmet and the roof could not be encased with timber before the ore was removed. The fall of the loose debris could only be prevented if the plaintiff himself, who was after all responsible for this task, made certain that all loose insecure overhanging debris was knocked down before he and the other labourers started working in the gallery.

In view of all the above, we find that there is no breach of statutory duty or of any other duty by the defendants towards the plaintiff.

(d) Quantum:

In spite of the fact that the Action will be dismissed on more than one grounds, nevertheless we shall make an

assessment of the quantum in accor dance with the established practice. The injuries of the plaintiff have already been described while

dealing with the other aspects of the case and need not be repeated here.

An important factor in the assessment is whether the plaintiff was rendered incapable of any work by the injuries he received and assuming of course that his present condition is related to the accident. The evidence of Dr. HadjiCostas is not [*378] that he cannot do any work; on the contrary, he said that two months after the accident the plaintiff could do any other work except that of a miner and this on account of some persisting stiffness in the spine.

Before the plaintiff underwent the operation, he must have gone through considerable pain and discomfort, judging from the number of visits to various doctors, including his being placed on traction for 8 days.

The plaintiff's claim for past loss of earnings is impossible to assess with accuracy because he could neither give the exact days he was out of work, nor did he say whether he was not paid at all for such purpose. In fact, he said that during these periods he was drawing half of his wages from the medical fund, having thus received the total of £180.-. For this reason, we may safely assess his loss for the period he was out of work at £180.-, but we shall take this into consideration in assessing the general damages as this amount does not completely cover the period for which losses are claimed under the heading of special damages.

It is a fact that the plaintiff was dismissed from service and it is also a fact that whatever the reasons that lead to his dismissal, it is not at present advisable or even possible for him to carry on with his work as a miner. Under the circumstances, the plaintiff ought to have searched [*379] for alternative employment. From his evidence, it has not been satisfactorily established that he did his best to secure alternative employment. On the contrary, he proved lack of promptitude which is part of the pattern in his whole conduct and behaviour regarding this case. Be that as it may, there is no evidence that he was better rewarded as a miner than as an unskilled labourer but owing to the fact that he should avoid heavy duties, we take it that he may not earn as much in the open competitive labour market as any other perfectly fit person would have earned.

In the light of all the above and taking into consideration the past loss of earnings, the general damages are assessed at £1200.-. To this, the sum of £273.- agreed fees to Dr. Kanakas should be added. Nothing else was proved as having been specially in curred.

In the result, the Action is dismissed. With regard to costs, we prefer not to make any order, taking into consideration the nature of the case and the grounds upon which the Action was dismissed.

Action dismissed. No order

as to costs.

* Brown v. National Coal Board,(1962)1 All E.R., 81