Supreme Court dismisses appeal on negligence and damages, upholding trial court's equal liability apportionment.

[*1051] 1968 October 3

(VASSILIADES, P., STAVRINIDES, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Yiangos Christodoulou,

Appellant-Defendant,

v.

Pandelis Angeli,

Respondent-Plaintiff.

(Civil Appeal No.4685).

Negligence - Master and Servant - Damages for personal injuries received in the course of employment as a mechanic - Contributory negligence - Appeal and Cross-Appeal against the award of damages and the apportionment of liability - Reasonably open to trial Court on the evidence to make the findings they did - Appeal and Cross-Appeal dismissed.

Court of Appeal - Credibility of witnesses - Principles on which the Supreme Court decides appeals on the credibility of witnesses - Findings of fact - Approach of the Court of Appeal to findings of fact made by trial Courts.

Court of Appeal - Apportionment of liability – Appellate Court will reluctantly interfere with apportionment of trial Court even if somewhat differently inclined.

Damages - Quantum of damages - Principles on which the Appellate Court will approach a finding of the trial Court as to damages.

N. Pelides, for Appellant.

Chr, Mitsides, for Respondent.

JUDGMENT

The Judgment of the Court was delivered by: -

VASSILIADES_P.; This is an appeal from the Judgment of the District Court of Nicosia awarding to the plaintiff in the action (the respondent herein) £3,344.- damages against the defendant (appellant in this appeal) for injuries [*1052] received by the plaintiff in the course of his employment with the defendant, as a mechanic. The claim at this stage, is based on negligence. Allegations of breach of statutory duty were made in the statement of claim; hut apparently these were not seriously pursued; and the appeal was argued on the basis of common law negligence.

The defence was denial of negligence, coupled with an allegation that the injuries sustained by the plaintiff resulted from an accident caused by his (the plaintiff’s) own negligence in failing to take proper care of himself in carrying out his work.

The plaintiff is a young mechanic, eighteen years of age at the time of the accident, in February, 1964, employed by the defendant who runs a motor-garage in Nicosia. For easier reference, we shall refer hereafter, to the plaintiff as "the workman"; and to the defendant-appellant as "the employer".

The injuries sustained by the workman were quite serious necessitating the amputation of his left leg as from about the middle of the thigh. The trial court found the damages at £6,688, under two heads: General damages £6,000; and special damages £688. And finding negligence in both sides, the trial court apportioned the liability equally between the parties and gave Judgment for the workman for £3,344.

From this Judgment, the employer took the present appeal on four grounds Which in substance may be reduced to two: a) against the findings of the trial court on the question of negligence and the apportionment of liability; and b) against the amount of the award. [*1053]

Shortly before the hearing of the employer’s appeal, a cross-appeal was filed on behalf of the workman also complaining against the apportionment of liability; and against the amount of general damages’ awarded.

The facts of the case are not complicated and are clearly stated in the Judgment of the trial court. On February 29, 1964, a concrete mixer was under repair in the yard of the garage of the employer. After the repairs which werecarried out by the workman with the help of an apprentice, the concrete mixer was tested in the presence of the employer, who noticed that certain wire-ropes needed adjustment. The employer instructed the workman to adjust the wire-ropes and walked away apparently leaving the rest to his workman.

The latter climbed on the mixer, which was a rather large machine (10 feet wide by 12 feet high) and while engaged in adjusting the wires, his trousers as: well as his left thigh were caught in the gear, The workman called out for help; the engine was stopped; and eventually, after the loosening of some knots, the injured workman was rushed to hospital where his leg had to be amputated from a point well up the thigh. He was kept in hospital for several months; and eventually he had to travel to Czechoslovakia twice, for the fixing of an artificial leg.

The evidence as to the circumstances in which the accident occurred was conflicting; and the trial court had to make their findings on the assessment of the evidence of the different witnesses and on its effect, considered asa whole.

The court found that the workman climbed on the mixer and tried to adjust the wire-ropes in question while [*1054] the mixer was in motion; and. that this was the direct cause of the accident. The court also found that this was obviously a dangerous operation; and that both parties were aware of the danger involved.

The main findings of the trial court may be best described by quoting from the Judgment. It reads: (p.30D of the record):

" In the result our findings are that when the engine was tested whilst in motion as it could not, be tested otherwise, the defendant noticed the slackened wire-ropes and instructed the plaintiff to shorten same, that the plaintiff climbed on the engine without being noticed by the defendant and whilst the engine was in motion, he leaned his foot on the trough which was caught by the gear and the unfortunate accident which resulted in the amputation of his left leg took place”.

"We find as a fact that to work on that engine whilst in motion is a dangerous operation. This was within the knowledge of the defendant and of the plaintiff himself who in so many words stated that he would not be so brave to be on it whilst the mixer was moving. But we find further that the defendant did not instruct the plaintiff to do the slackening of the wire-ropes whilst the engine was in motion or immediately on instructions given." [*1055]

Further down, the Judgment reads:

"The plaintiff was the main servant of the defendant whose other employee, P.W.2, was an inexperienced apprentice. The plaintiff was at the time only 18 years old and his lack of maturity must have been accompanied by lack of sound experience.”

"……we are of the view that the duty of an employer towards his servant is to take reasonable care for the servant's safety in all the circumstances of the case. It is the duty of an employer to give such safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workman”.

"In this particular case, bearing in mind all the circumstances including the age of the plaintiff, the foreseeability and the magnitude of the risk and that workmen may act carelessly, we consider to have been the duty of the defendant to give instructions to the plaintiff not to climb on the mixer and/or not to do the work of the slackening of the ropes whilst the engine was in motion."

As regards the negligence of the workman the trial court took the view that -

"The plaintiff omitted to take the ordinary care that would be expected of him in the circumstances. He rashly climbed on the mixer to do the slackening of the ropes whilst the engjne was in motion, thus [*1056] failing to use reasonable care for his own safety and/or contributed to his own damage.”

"In the result, we find that both parties are equally to be blamed for the accident".

On these findings, as we have already stated, the trial court assessed the damages at £6,688.- and apportioning equally the liability, gave Judgment for the plaintiff for half of the amount.

The matters for determination in this appeal may be put in two groups:

(a) The findings of the trial court as to the cause of the accident; and

(b) The amount of compensation.

The approach of this Court to both these matters has been stated in a number of cases. (1) In Kyriacos Myionas and 2 others v. Margarita Kaili (1967) 6, JhS.C. p.634, the Court said:

"The principles on which this Court decides appeals on the credibility of witnesses are well settled and we need not enter into them in detail. It must be shown that the trial Judge was wrong and the onus is on the appellant to persuade this Court. Matters of credibility are within the province of the trial Judge and if, on the evidence before him, it was reasonably open to him to make the findings which he did, then this Court will not interfere with the judgment of the trial court". [*1057]

This was referred to in Mpustafa Imam v. PapaCostas A

(1963) 6 .J. S.C. p. 626; and was followed in that case as well as in other cases mentioned therein.

As to the quantum of damages, this Court will not interfere with the amount assessed by the trial Court, unless persuaded that such assessment was an entirely erroneous estimate of the damages to which the plaintiff is entitled in the circuit stances of the case. (Du Puch v. G-eorghlou and Others (1968) 6, (J.S.C.p.620 at p.624).

And as to the apportionment of liability we may usefully refer to a recent case in the court of appeal in England, Brown v. Thompson

(1968) 1, W.I.R. p.1003 where the matter was fully considered. We propose following the same course. Where no error of principle has been shown and no misapprehension of the facts on the part of the trial court has been made to appear on appeal, this Court will be reluctant to interfere with the apportionment made by the trial court even if somewhat differently inclined.

In the present appeal we have not been persuaded by either side that there are sufficient reasons for disturbing the findings of the trial court; or for interfering with their assessment of the damages; or the apportionment of the liability in the District Court.

We would add, however, that we read the part of the Judgment of the trial court referring to the duty of the employer towards his servant, and to his failure to give safety warning to his workman regarding a known danger, as expressing a view directly connected with the circumstances of the present [*1058] case; particularly the lack of maturity and experience of this young workman; and the circumstances in which the employer’s instructions for the adjustment of the wire-ropes were given.

In the result, both the appeal and the cross-appeal are dismissed; and in the circumstances, we make no order for costs in these appeals.

Appeal and cross-appeal dismissed.

No order as to costs.