Court allows appeal partially, finding contributory negligence due to unsafe testing method.

[*985] 1968 September 17

(TRIANTAFYLLIDES, STAVRINIDES, LOIZOU, JJ)

APPELLATE JURISDICTION

Takis Alexiou and Another,

Appellants-Defendants,

v.

Mitros Ellinas,

Respondent-Plaintiff.

(Civil Appeal No, 4625).

Civil Wrongs - Personal injuries - Negligence - Contributory negligence

- Liability - Apportionment - General and special damages - Assessment - Duty of injured person to exhibit reasonable care.

Damages - Negligence - Contributory negligence - General and special damages - Assessment.

A. Triantafyllides and Chr. Chrysanthou, for the Appellants- Defendants.

C. Varda (Mrs.) For the Respondent-Plaintiff.

JUDGMENT

The Judgment of the Court was delivered by: -

TRIANTAFYLLIDES. J.: In this case the appellantsdefendants appeal against the Judgment of the Pull District Court of Larnaca, in civil action No 241/65, by means of which they were adjudged to pay £433 special and general damages to the respondent-plaintiff in respect of injuries which he suffered through their negligence.

The salient facts of the matter appear, on the material before us, to be as follows. [*986]

The respondent was, at the time, a welder and blacksmith at Larnaca.

One of the appellants, a limited company, N. A. Rolandis Transport Ltd., owned motor-tankers, including one under registration BN61 which was used for the transportation of PINA petrol. The other appellant, Takis Alexiou, was a driver in the employment of the said company and he was, also, in charge of the maintenance of the company’s motor-tankers at Larnaca, and generally represented the company there.

Sometime in 1962 appellant Alexiou, acting in the course of his employment with the company proposed to the respondent to undertake the carrying out of interior welding repairs to the company’s motor-tankers. As this was a rather dangerous job, the Respondent was reluctant to accept the proposal, hut, eventually, he agreed to do so, after having "been assured that whenever a motor-tanker would he brought to him for interior welding repairs, the tank would have been previously properly cleaned internally, so that there would be no danger of a fire taking place during the welding process, due to remnants of petrol in the interior of the tank.

It appears that the tank of a motor-tanker is divided into compartments, each with a man-hole on top. It was the practice of the respondent, whenever he was about to enter a compartment for the purpose of doing welding repairs, to flash through the man-hole a spark, by means of a tool known as “electro”, which he used for welding purposes; he did this for the purpose of making sure that there would be no danger of fire.

On the 22nd July, 1964, at about 3.00 p.m., a driver of the appellant company brought motor-tanker BN61 to the [*987] shop of the respondent and asked respondent to do certain interior welding work inside the tank. The respondent asked the driver whether the interior of the tank had been properly cleaned, so as to render the work safe, and he received a reply in the affirmative.

The respondent, then, climbed on to the top of the motor-tank, accompanied by the driver; while they were there, and before the respondent entered the compartment of the tank wherein he was due to work he threw, through the man-hole of such compartment, a spark by means of the "electro” tool which he was holding; at once there was a fire inside the compartment, and a flame shot out of the man-hole, with the result that it c burned the respondent on the right arm - with which he was holding the "electro" - and on his face. Upon this the respondent fell from the vehicle to the ground.

For his said injuries he has been awarded by the trial Court the amount of £433, by way of general and special damages, on the basis of full liability of the appellants.

One of the defendants before the trial Court was, also, the driver of the motor-tanker in question. But the Court found that he could not be blamed for what happened and the action as against him was dismissed. On the other hand the Court found that appellant Alexiou, as the supervisor and E manager of the business of the appellant company at Larnaca, was liable in that he did not exercise reasonable care to render safe, for internal welding, the tank concerned; the company was found vicariously liable, as the master of appellant Alexiou.

This appeal has been argued by the appellants on the basis of total absence of liability, it having been [*988] submitted on their behalf that it has not been proved that A the accident was caused through any negligence of the appellants; and, also, alternatively, on the basis of contributory negligence, the argument in this respect being that the respondent, too, was to be blamed, to a considerable extent, for the injuries which he has suffered, in view of the manner in which he had conducted the test of ascertaining whether the tank’s compartment was safe for internal welding.

At the close of the address of counsel for the appellants we decided that it was not necessary to call upon counsel for the respondent on the issue of the total absence of liability of the appellants. We took the view that the learned trial Judges were amply justified, on the material before them, to reach the conclusion that the appellants were, indeed, guilty of negligence in failing to ensure that the interior of the particular compartment of the tank was properly cleaned, so as to remove any remnants of petrol which could cause a fire, especially as they had expressly undertaken to do so; and it was not in dispute that proper cleaning of the interior of the compartment would have eliminated completely - as it had done on more than one occasion in the past - the danger of a fire. Accordingly, we, then, heard counsel for the respondent on the issue of contributory negligence, only.

In approaching this issue, we have not lost sight of the fact that the respondent, acting with reasonable care, did not discount completely the possibility of the appellants not having cleaned properly the interior of the compartment of the tank, where the fire occurred; it is in view of that possibility, in fact, that he had tested the conditions [*989] inside the compartment with a spark from his "electro" tool, before going into the compartment himself; had he gone into the compartment without making such test then no doubt the consequences would have been by far graver for him, if not even fatal.

What has to be decided is whether, in the light of the material before the trial Court, its finding is warranted that the respondent acted with degree of care to be expected from a reasonable man, so that he did not contribute in any way to the occurrence of the accident; and the crucial issue, in this respect, is whether the method and manner of testing the interior of the compartment, which the respondent adopted on the particular occasion, were consistent with his duty to exhibit reasonable care.

There is no doubt that his method of testing the interior of the compartment, involved, in case of fire, some risk.

Was there, then, an equally effective, but safer, method which he could have employed for the purpose? In this connection it is not up to this Court, on appeal, to theorise about it; we have to go by the evidence on record and see whether it is such as to fairly support the Judgment before us; and such Judgment should stand unless we are satisfied by the appellants that this should not be so.

No evidence has been adduced, by the appellants, to show that any other method would have been equally effective, but safer; on the contrary, a witness called by the appellants themselves, Andreas Shiatis, a blacksmith and welder, has told the trial Court that he does test, himself, the interior of the tanks of petrol-carrying motor-tankers, prior to doing [*990] welding repairs therein, by the same method as the one adopted by the respondent. He stated, expressly, in his evidence, that it is not possible to do such testing while being on the ground, and that be has to do it on the top of the tank.

There remains, however, the issue of the manner in which the respondent has carried cut the test, in question, on the particular occasion.

It is quite clear from the material before us, including the extent and nature of the injuries suffered by the respondent, that, while carrying out such test, he approached the man-hole more than it was reasonably necessary in the circumstances, and that he did not keep his whole body as far away therefrom as possible, especially as he appreciated the danger of a fire occurring in the compartment of the tank; otherwise he would not have carried out the test at all.

We are of the opinion, in the light of the law applicable to such an issue (see, inter alia, Christodoulou v Menicou. 1966, 1 J.S.C. 94) that, in that respect, the respondent was negligent and he has, thus, contributed by his own negligence to his injuries being caused. On the material before us we assess the degree of his responsibility at 20%.

The Judgment of the trial Court has, therefore, to be varied, so that the amount awarded to the respondent shall be reduced by 20% - £86.600

- to £346.400; and there is made, hereby, an order accordingly.

In the result this appeal is allowed in part, with [*991] 2/3rds of the costs being awarded against the appellantsdefendants in respect of the proceedings both before this Court and the trial Court.

Appeal allowed in part.

Order for costs as

aforesaid.