Workman's compensation appeal dismissed; employer's statutory duty breach did not cause the accident.

[*808] 1966 June 10

(ZEKIA, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.)

APPELLATE JURISDICTION

Theodoros Pillakouris,

Appellant-Plaintiff,

v.

EMEL CO· LTD.,

Respondent-Defendant.

(Civil Appeal No.4554).

Workmen's Compensation - Injuries to workman in the course of his employment - Claim for compensation - Respondentemployer not negligent - Statutory duty - The Mines and Quarries Regulations, 1958, Regulations 63, 70,

143 and 145 - Respondent's failure to comply with Regulation 70 thereof - Not contributed to the accident - No inference that if place of accident was reasonably supervised accident would have been avoided.

Negligence - See under "Workmen's Compensation".

Statutory duty - Breach of - See under "Workmen's Compensation".

A. N. Lemis, for the Appellant.

Chrysses Demetriades, for the Respondent.

JUDGMENT

The Judgment of the Court was delivered by:-

ZEKIA, P.: Appellant-plaintiff was a workman employed in a quarry operated by the respondent company. In the course of his employment, when engaged in digging out the stones on a slope at Troodos on the 9th November, 1963, a piece of rock or stone, coming from above the place he was working, hit him on the foot, made him lose his balance and fall on the ground and roll together with the falling rock downwards for a distance of 1,00 ft. Eventually he came to [*809] rest at an even place of the slope. He received injuries on his left leg and ankle and was treated in the hospital, and after his leg was put in plaster he left hospital in two days. His temporary incapacitation lasted up to 18th May, 1964, in which period he received £15 monthly.

As a result of the injuries he sustained, he suffered 20% permanent partial incapacity.

Appellant claimed over £2,000 special and general damages from the respondent company -

(A) Alleging that the injuries sustained were due to the negligence of the respondent;

(B) Αnd/or due to the breach of the statutory duty cast on the respondent company.

At the conclusion of the hearing of the appellant in the appeal we had intimated that no case for negligence was made against respondent and the latter was called only to address the Court on the second ground, namely, on the alleged breach of the statutory duty.

The appellant submitted that the respondent violate Regulations 63, 70,143 and 145 of the Mines and Quarries Regulations 1958.Appellant in order to succeed in this part of his case he hasin the first place to show that-

(a) there was a breach of a statutory duty, in other words an act or omission, on the part of the respondent company, which contravenes any of the aforementioned Regulations;

and, in the second place, to show – [*810]

(b) that the cause of the accident is attributable to the breach of such duty cast on the said company by a particular section of the said Regulations.

For convenience we quote hereunder the relevant regulations of the Mines and Quarries Regulations, 1958.

"63. Before commencing work, either at the beginning of a shift or after blasting, the gang headman shall be the first to enter the working place and, until he considers it safe, he shall not allow any person to proceed thereto except those required by him to make the place safe".

"70. When any mine or quarry face exceeds 10 feet in height and the inclination of such face exceeds 45 to the horizontal, all workmen employed on the top of or on the slope of any such mine or quarry face shall be securely fastened by means of a safety rope one end of which shall be tied around the waist of the workman and the other end shall be secured to an anchor at the top of the face. Anchors for this purpose may be of a temporary nature but must be inserted into the ground and on no occasion shall a rock, boulder or any similar object be utilised as an anchor".

"143.-(1) Some responsible person in authority shall be on duty whenever men are engaged in underground or surface prospecting, mining or quarrying".

" . . . . . . . .

"145. The manager shall provide for the safety and proper discipline of the men employed above and below ground, and shall appoint such persons as may be necessary to carry out the provisions of these Regulations or any part there of".

On the evidence before us it does not appear that there was any violation of regulation 63. As to regulation 70, however, from the evidence it appears that the quarry face exceeded 10 ft. in height and the inclination of the face exceeded also 45° to the horizontal, so the use of safety rope was required according to regulation 70 above quoted. But in [*811] order to fix the liability on the company we have to ascertain whether such non-compliance did contribute to the cause of the accident.

The appellant-plaintiff himself in his evidence stated: "There was no need for ropes. The place I was working was safe to stand on". Furthermore, the injury which the appellant sustained, very likely was the direct result of a fall of the rock on his leg and if that is so it is difficult to say that had he been tied with a rope he would have escaped the injury he received. From the evidence it is not clear that his rolling down, in some way or other, contributed to his permanent partial incapacity.

Therefore, on the evidence on record we are not satisfied that the failure by the employer company to comply with regulation 70 did contribute to the injuries of the worker in question.

Now we come to regulations 143 and 145 of the Regulations. It appears from the evidence that a responsible person of the company visited daily the place where the quarry operations were taking place. By the nature of the work done we cannot say that a responsible person in authority should constantly be present during the digging out of the stones on the slope. But assuming that the company was at fault in not providing a supervisor during the working hours, still, on the facts of this case, we are not able to say that if the place was reasonably supervised the accident would not have happened.

The rock or stone which came down from the slope has not been identified, neither its size is known nor the place from where it started to fall has been traced. So, on [*812] this point we are altogether in the dark. The appellant, when he was first interviewed by the director of the respondent company, Chariklis Demetriou, soon after the accident, and questioned as to how the accident occurred, he replied "A stone loosened by frost rolled down and hit me". The director was not cross-examined on this point. From paragraph 3 of the statement of claim it is clear that the plaintiff attributed the falling of the stone to the working of a drilling machine, operated by a compressor, the hose of which passed 10 ft. above the place the appellant was working and it was alleged that the vibration of the hose, through which compressed air was passing, moved out of its place a neighbouring stone or rock and made it fall on the workman in question. On the evidence adduced, however, this contention was not at all substantiated and the Court below rightly rejected it.

It has to be observed that there is no medical report issued on the day the accident took place and it does not appear that the Inspector of Mines and Quarries v/as informed with a view to conduct an enquiry as to the cause of the accident.

In the circumstances we think that this appeal should be dismissed.

No order as to costs.

Appeal dismissed.

No order as to costs.