Court awards damages for employer's failure to provide safe ladder, noting contributory negligence must be pleaded specifically.

[*206] 1976 April 28

(STYLIANIDES, P.D.C.)

IN THE DISTRICT COURT OF LIMASSOL

Menelaos Michael,

Plaintiff,

and

Michalakis Mylona,

Defendant, (Action No. 3093/73).

Master and servant - Master’s duty - Provision of safe system of work - Ladder -Plaintiff injured in fall from defective ladder provided by the employer - Duty of employer to provide proper and adequate ladder and not a defective one.

Volenti non fit injuria - Defence of

- Principles applicable.

Negligence - Contributory negligence

- Should be specifically pleaded and particulars of the alleged negligence be given in the defence.

Damages - General damages - Personal injuries - Unskilled casual labourer aged 56 sustaining a sprain of the right ankle - Which triggered an exacerbation of preexisting osteoarthritis - Under prolonged treatment - Out of work for 8 months - Award of £850.-

A. Lemis, for the Plaintiff.

St.Mcbride with Chr. Mavrellis, for the Defendant.

JUDGMENT

The following judgment was delivered by:-

STYLIANIDES, P.D.C.: The plaintiff by this action [*207] claims damages for injuries received on 30.10.72, whilst in the employment of the defendant, due to the alleged negligence and or breach of statutory duty of the defendant.

The plaintiff in the statement of claim contends that the defendant was the owner and or occupier of a house in Limassol; he employed the plaintiff to remove dead leaves from the roof of the said house and or to cut overhanging branches of a tree. The defendant provided the plaintiff with a ladder. The plaintiff in ascending the said ladder in the course of his employment met with an accident as the ladder and or the side thereof and or a rung broke and or gave way. The plaintiff as a result sustained injuries loss anddamage. Numerous particulars of the alleged negligence and breach of statutory duty are set out in para.5.

The defendant in the statement of defence denies that the plaintiff at the material time was in his employment; he denies that he was the owner of the ladder or that he supplied it to the plaintiff. It is further averred that on 29.10.73 (73 is obviously a typing error for 72), the defendant contacted the plaintiff to inquire of him if the latter would be willing to undertake the clearing of the roof and on the plaintiff's agreeing to undertake such work "the defendant then agreed with the plaintiff to take him to the house in question (prior to the plaintiff doing his normal work with Christakis Soteriou) so as to show to the plaintiff what was required to be done." The accident [*208] is due solely to the fault of the plaintiff in that

(a) he selected, and used a defective ladder, (b) failed to wait detailed instructions from the defendant, (c) failed to wait to be supplied with proper equipment by the defendant.

He sets up the defence of volenti non fit injuria and in the alternative he contends that the plaintiff is guilty of contributory negligence.

The plaintiff was the sole witness for his case. The defendant and Christakis Soteriou (D.W.2) testified for the defence.

The plaintiff is a casual labourer. The defendant is the owner of a big orange grove garden and houses in Limassol. A considerable portion of this garden was let to Christakis and Costas Soteriou and 12 donums which were used as nursery plantation were occupied by the defendant. The houses were rented to English families. The leaves of a Cypress tree concentrated on the roof of one of the houses about 12 ft high and the branches were overhanging the roof.

The plaintiff occasionally worked for Soteriou Brothers in that garden; he cleaned the stables and spead the manure and watered the trees.

The plaintiff testified that the defendant engaged him on a daily basis to do some work for him. He cleaned the store in the afternoon of 29 October, the defendant instructed him on the following day to clean the roof of one of the houses which he particularly indicated, to clear gutters and [*209] prune the overhanging branches. The defendant told the plaintiff to use the ladder which was earlier in the store, cleared by the plaintiff. He showed to him that ladder which was outside. As it was an old one the plaintiff without examining it remarked that it was an old ladder, but the defendant replied "it is a good ladder take it".

Early in the morning on the following, day, 30.10.72, the plaintiff carrying a pruner of his own went to work for the defendant as per agreement and instructions. He borrowed a broom from Christakis Soteriou. He placed the ladder against the wall of the house and started ascending. Then either the sideboard of the ladder cracked or the rung broke, and in the circumstances the plaintiff jumped down and was injured. He was attended first by a neighbour a certain Sofoulla, who was not called as a witness by either side. She applied "zivania” to the injured plaintiff’s ankle. Shortly later the defendant arrived and conveyed the plaintiff to the Limassol Hospital.

It was put to the plaintiff in cross examination that the defendant asked him to go to the place but to wait in the garden for the defendant to arrive to take him to the house and show to him what to do. That there were many good ladders in Soteriou's garden which he could select, that the plaintiff did not know precisely what work he had to do and that the cause of the accident was that the plaintiff missed a rung and fell down. All these the plaintiff denied.

The defendant's evidence in short is to the effect that he employed the plaintiff for the 27th October 72 to clean his store. In the afternoon of 27.10.72 whilst at a [*210] distance of about

500 meters from the house he told plaintiff to come on the following day to show to him what to do. He asked the plaintiff to go to Soteriou in the middle of the garden and wait for the defendant to arrive in order to show him what to do about the sweeping of the concrete roof. He did not indicate to him the house he would work upon. He did not show to him the ladder in question; he did not give him any instructions whatsoever. On 28.10.72, the defendant went to the garden but the plaintiff did not turn up as it was a holiday. On 30.10.72, early in the morning the defendant at 6:50 a.m. went to the garden asked Soteriou if the plaintiff had gone, there, but the defendant presumed that he had arrived ten minutes earlier, as the plaintiff would have resume work at 7:00 a.m. He did not tell him at any time which roof would be cleared and there were four houses with concrete roof. He proceeded and saw the plaintiff sitting in the shade of a tree, he asked him what he was doing and the plaintiff replied that the ladder cracked, he jumped down and injured his foot. He conveyed the plaintiff to the Limassol Hospital for treatment. The only defect of this ladder was that it was too short for the purpose, as it was only ten feet six inches long; whereas the roof was 12 ft 3 inches high. It was not true that the plaintiff took a broom or any tool with him there. In cross examination he denied that on 29.10.72 showed, or said to the plaintiff what he would do, or that he indicated to him the said ladder or gave any instructions to the plaintiff. He admitted, however, that this ladder was exposed in an open place for two or three years in Amiantos, where very often snow falls [*211] and the raining is heavy. He saw the ladder after he returned from the hospital and he noticed that the one sideboard was cracked. He attributed this damage probably to the plaintiff placing it at a rather wide angle, and standing on top of it as it was not long enough to reach the roof. He further stated that a few feet from the ladder the plaintiff used, there were available long ladders in Soteriou's possession, which the plaintiff could have used.

Christakis Soteriou, D.W.2, is the lessee of the defendant’s big garden. The plaintiff was occassionally working for him, cleaning the stables, spreading the manure or watering the garden. In

the garden either at the edge, or in the garden itself, which is over 30 donums in extent he had five to six ladders of different

sizes, two of which were 13 to 15 feet long. The plaintiff must have known of the existence of the ladders as on occasions he was doing the aforesaid jobs in the garden. The plaintiff, however, never used a ladder as none was required for the aforesaid.

On 28.10 the defendant asked for the plaintiff but the plaintiff did not go to that garden. In the morning on 30.10.72, the plaintiff went to this witness in the garden, told him that he would clean the concrete roof of the defendant and asked for a broom. The witness gave the plaintiff the broom and the plaintiff proceeded. The witness knew what work the plaintiff would do, as on the previous day the defendant and the plaintiff told him separately the work the plaintiff would do. This witness significantly stated that though the plaintiff and the defendant on the previous night meaning [*212] 29.10.72 told him so, he did not know if they would meet and go together to the place of work.

The defendant’s evidence is contradicted by his own pleading, by plaintiff and the evidence of his own witness Soteriou. One of the disputed facts in evidence was the day that the parties agreed, or talked, or referred, to the work on the concrete slab. The defendant mentioned and insisted on 27.10 whereas in the statement of claim, in the evidence of the plaintiff and Soteriou the day is given 29.10. The defendant said that he did not indicate to the plaintiff the roof, he did not instruct him what to do; on the contrary he stated that they were about 500 meters away, that there were four concrete roofs of the same height and that he simply asked the plaintiff to go to the garden and wait for him. The plaintiff gave a different version which is supported by the witness called for the defence. The defence witness corroborates also the version of the plaintiff that on 30.10 he asked for and borrowed a broom before proceeding to the actual place of work. The defendant stated that on 30.10, he met Soteriou at 6:50 a.m., asked Soteriou if the plaintiff went there, but as the plaintiff would have resumed work at 7:00 a.m. the defendant presumed that he had gone there ten minutes earlier. Soteriou saw the plaintiff, gave him the broom before the arrival of the defendant. Why the defendant presumed that he had gone ten minutes earlier as Soteriou must have informed him not only of the arrival of the plaintiff, but also that the latter borrowed the broom. [*213]

Para 5 of the statement of defence reads as follows:

"5(a) oh or about 29.10.73 ...........

(b) the plaintiff agreed to undertake such work whereupon the defendant then agreed with the plaintiff to take to the house in question (prior to the plaintiff doing his normal work with Christakis Soteriou) and so as to show the plaintiff what was required to be done.

(c) At about 6:45 a.m. on 30.10.73, the defendant went to the plaintiff’s place of work with with Christakis Soteriou to collect the plaintiff and not finding him there "

This is a completely different version from his evidence. In his evidence he did not state that he would have indicated to the plaintiff what was required to be done prior to the plaintiff doing his normal work with Christakis Soteriou on 30.10.73. He did not dare to contend that on 30.10.73 the plaintiff would have been in the employment of Soteriou, He contradicted his own pleading with regard to the ownership of the ladder.

The evidence of Soteriou gives support to the version of the plaintiff and contradicts the version of the defendant.

I had the benefit to watch the demeanour of the parties in the witness-box. The defendant impressed me [*214] unfavourably. I carefully weighed their evidence. I compared the two versio s and I have come to the conclusion to accept the plaintiff’s evidence; I find that the defendant gave orders and instructions to the plaintiff to clear the concrete roof of the dead leaves of the cypress tree, to cut the overhanging branches and to use the said ladder which particularly indicated to the plaintiff. The ladder was an old one and appeared such. The plaintiff used the ladder provided to him by his employer, the plaintiff at the material time was acting in the course and within the scope of his employment. The ladder - the sideboard thereof - cracked whilst the plaintiff was ascending and the plaintiff jumped down and sufferred the injuries to which I shall refer in dealing with the issue of damages.

In Wilson's and Clyde Coal Co., v. English (1937) 2 ALL E.R. 628 at page 640 Lord Wright said with regard to the duty of an employer

"The obligation is a threefold provision, the provision of a competent staff of men, adequate material and a proper system and effective supervision."

Pearce, L.J. in Wilson v. Tyneside Window Cleaning (1958) 2 All E.R. 265 at p.

271 said.

"Now it is true that in Wilson’s and Clyde v. English Lord Wright divided up the duty of a master for convenience of definition or argument; to all three are ultimately only manifestations [*215] of the same duty of the master to take reasonable Care so to take out his operations as not to subject those employed by him to unnecessary risk".

Parke L.J. in the same case said at p. 272

"This case is a very good example of the difficulties one gets into in treating the duty owed at Common Law by a master to his servant as a number of separate duties...................... The master’s duty is general, to take all reasonable steps to avoid risk to his servant."

In Paris v. Stepney Borough Council (l951) 1 ALL E.R. 42 p. 50 Lord Oakey said

"The duty of an employer is to take reasonable care for his servant’s safety in all circumstances of the case."

It was the duty of the present defendant, employer, to take reasonable care for the safety of the plaintiff. It was his duty to provide him with proper and adequate ladder and not a defective one.

It was submitted by learned counsel for the defence that this case falls within the ambit of the decision in Johnson v. Croggon and Co., Ltd. (1954) 1 All E.R. 121 and that the plaintiff was the sole cause of the accident. In that case the foreman steel erector was employed by the defendants to build roof on a farm. He borrowed a ladder from a farmer, a rung was defective and broke whilst the plaintiff was using it. It was held that the defendants [*216] were not liable as it was eminently reasonable, if not commercially necessary, that they should, delegate to their foreman on the spot the selection and approval of heavy gear, including ladder, required.

In the present case, however, the selection of equipment was not left to the plaintiff himself and the plaintiff is not a competent and an experienced man in ladders, his only knowledge of ladders was a casual use of same in the collection of olives before he left his village for Limassol town many years ago.

For the defendant to be liable it must be proved that he knew, or ought to have known of the defect. From the totality of the evidence before me I am satisfied that this was an old ladder and it was reasonably foreseeable that it was likely to break or crack with consequential injuries or damage. The defect was not a latent one.

The plaintiff stated that a rung broke which is not correct. What actually happened is that the sideboard of that old ladder cracked. The plaintiff without actually realizing what happened but being apprehensive of danger jumped down. The defendant gave as probable cause of the crack the shortness of the ladder which necessitated its being placed in a wide angle. A short ladder, however, in the normal course of events is placed closer to the wall in a narrow angle to gain height and I fail to understand the reference to the wide angle unless it was put forward by the defendant to make his explanation probable. I [*217] discard this explanation of the defendant, the sideboard cracked for the simple and clear reason that it was an old ladder which was exposed for years to Amiantos weather.

It was alleged in the statement of defence and argued by counsel that the maxim volenti non fit injuria applies and the plaintiff is not entitled to succeed.

In Letang v. Attowa Railway Co., (1926) All E..R..Rep.. 546 it was held that

"It must be observed that the maxim volenti non fit injuria is not scienti non fit injuria. To establish the defence based on the maxim in an action for negligence causing injury to the plaintiff, a defendant does not discharge his legal obligation by merely affecting the plaintiff with knowledge of the danger. He must prove circumstances which leave no inference open save that the risk resulting in the injury was freely and voluntarily encountered by the plaintiff with full knowledge of its nature and extend."

In Bennet v. Tugwell (1971)

2 ALL E.R. 248 Ackner J. observed that the gist of this defence does not lie in assent of the infliction for injury but involves an assumption of the risk.

Lord Denning in Nettleship v. Weston (1971)

3 ALL E.R. 381 said that knowledge of risk or oven willingness to take the risk will not amount to volenti. In order to establish this defence the plaintiff must agree to waive [*218] any claim for any injury that may befall him due to lack of reasonable care on the part of the defendant. The Court will scrutinize all the circumstances of the case before deciding whether the plaintiff had the ability and experience to consent to the risk involved.

In the light of the facts of this case, the defence of volenti non fit injuria is in my judgment untenable.

The defendant is liable to the plaintiff.

Is the plaintiff guilty of contributory negligence? Contributory negligence should be specially pleaded and particulars of the alleged negligence given in the defence. (Tessi Christodoulou v. Nicos Savva Menicou and Others (1966) 1 CLR 17 pp. 34-35).

A Court of Law has to confine itself to the Issues as appearing at the close of the pleadings or properly added to at the day of the hearing and not take up at the trial other issues

which the evidence of a particular witness might suggest. (Eleni Panayiotou v. Polykarpos Neofytou Anyftos) 24 C.L.R. 97 Per

Zekia J. at p.106; Christakis Loukaides v. C.D. Hay & Sons Ltd., (l971) 1 . C.L.R. p. 134).

The defendant failed to substantiate by evidence the particulars of the alleged contributory negligence set out in his defence; he is solely to blame, for this accident.

DAMAGES:

The plaintiff was conveyed by the defendant to [*219] the Limassol hospital where he was examined and treated. On 4.12.73, he was examined by doctor Kyriakos Papageorghiou Andreou a specialist orthopaedic surgeon whose report was produced by consent (exhibit 2). He was examined on 24.10.74, by doctor Tornaritis for the defence. The report of doctor Tornaritis is exhibit 3. It is agreed by both doctors that the plaintiff had a sprain right ankle. X’Rays taken showed no bone injury.

On 4. 12.73, he complained to doctor Andreou of pain and stiffness of his right ankle, becoming worse after prolonged standing or walking. The examination revealed tenderness around the ankle joint soft tissue periarticular thickening and swelling of the ankle joint. The movements of the ankle were painful and restricted. X’Rays taken showed osteoarthritic changes. He was seen by doctor Andreou on three further occasions, the last being on 15.3.74. In the opinion of doctor Andreou this patient sustained a sprain injury of his right ankle. His prolonged treatment was due to exacerbation of the pre-existing osteoarthritis in his right ankle. His present complaints noted will remain permanent as they are due to the osteoarthritic changes. Doctor Andreou advised physiotherapy.

The material part of the report of doctor Tornaritis reads: "On examination on October 24th 1974 the findings were the following:

1. Obvious thickening of the right ankle on inspection an palpation [*220]

2. Voriocosities of the lower leg.

3. Moderate limitation of the range of motion of the right ankle joint.

4. No muscle wasting of the right thigh or lower leg.

5. X-rays of the right ankle, taken in this office, show extensive osteoarthritic changes of the ankle and tarsal joints.

Opinion: This patient sustained a sprain of the right ankle about two years ago. The injury necessitated protracted treatment because of persistent complaints. The injury was superimposed on a joint that was already the site of extensive osteoarthritic changes. It is impossible to objectively ascertain whether these degenerative changes were quiescent or not before the injury, but it is true that trauma on arthritic joints may trigger an exacerbation of the symptomatology and prolong the period of this exacerbation. It is also true that osteoarthritis is a slowly progressive condition and even without trauma it cannot but become worse with time; there are of course great variations in the rate of progress”.

The plaintiff in his evidence stated that in the past though he did not have treatment he had what he called "alata" which I take to mean osteoarthritic development. From the reports of both doctors it is clear that the plaintiff as the result of this accident suffered sprain ankle which was the site of degenerative changes. The trauma triggered an exacerbation of the preexisting [*221] osteoarthritis; it was the cause of a prolonged period of treatment and worsened the condition of the plaintiff. In assessing the damages to which this plaintiff is entitled I

bear in mind the principle that a tortfeasor takes his victim as he finds him (Paraskevopoulos v.Georghiou(1970) 1 C.L.R. 116, p. 119 and the injury and damage which is the result of the accident.

The plaintiff was already suffering from osteoarthritis which slowly progressed. Doing the best I can, having regard to the fact that even without trauma the condition of the plaintiff might worsen with time and bearing in mind however, that there are great variations in the rate of progress I shall proceed to assess the damages.

The plaintiff is an unskilled casual labourer aged

56 and earning at the time of the accident 1250 mils daily. He contended that he has not as yet resumed any employment. This statement is in the light of the medical evidence an exaggeration. Sick certificates were produced by consent covering the period up to 30.6.73. The special damages except loss of earnings were agreed at £28.-. I shall allow the plaintiff loss of earnings for eight months, the period covered by the certificates exhibit 1, as in the opinion of both doctors the prolonged period of treatment Is justifiable. The working days average 24 per month (I exclude Sundays and holidays) thus he is entitled to £240.- loss of earnings and the special damages total £268.-. [*222]

In view of the foregoing and having regard to the heads under which general damages are awarded I assess general damages at £850,-

In the result judgment is given for the plaintiff against the defendant for £1118.- plus costs to be assessed by the Registrar.

Judgment for plaintiff

for £1,118.- with costs.