Statutory corporation liable for highway accident caused by independent contractor's negligent work.

[*121] 1977 April 15

(STYLIANIDES, P.D.C.)

IN THE DISTRICT COURT OF LIMASSOL

Alexandros Kina,

Plaintiff,

v.

Philippos A. Protopapas and Another,

Defendants.

(Action No. 4178/73).

Negligence - Highway - Work done negligently by independent contractor employed by statutory corporation under statutory powers - Liability of corporation.

Negligence - Nuisance - Highway - Duty owed by those who engage on operations on the highway - Independent contractor, employed by statutory corporation, breaking up the asphalt by means of a compressor - Accident due to the skidding of motor-cycle on shingle that came to the surface by the breaking up - Independent contractor and corporation solely to blame for the accident.

Damages - General damages - Personal injuries - 60 years' old kiosk tenant sustaining fracture of right olecranon - Treated under anaesthesia by open reduction and screwing of the olecranon - Moderate pain - Steady improvement of his condition but left with a slight limitation of the flexion and the extension movement and a slight muscle wasting - Possibility of development of osteoarthritis - Award of £600.

P. Paulou, for the Plaintiff.

Y. Potamitis, for Defendant No. 1.

A. HjiIoannou, for Defendant No. 2.

JUDGMENT

The following judgment was delivered by:-

STYLIANIDES, P.D. C.: The plaintiff's claim against [*122] the defendants is damages for personal injuries, sustained due to

the negligence and or nuisance and or breach of statutory duty by the defendants.

The defendant 1, is a building and construction contractor. The defendant 2, is a statutory corporation, and hereafter will be called "the Authority". Under the Telecommunications Service Law, Cap. 302, as amended, the authority is empowered to construct, install, maintain, and operate installations, and plan for the purpose of operating a good and sufficient telecommunications service. In promotion of the objects of the authority, plans and specifications were prepared and tenders were invited for the excavation of trenches and manholes in a number of streets in Limassol town for the purpose of laying pipes. The successful tenderer was the defendant 1 , who entered into a contract on 16.9.72.

Grivas Dhigenis Avenue runs from east to west on the eastern quarter of the town. A trench was to be opened along this avenue, two feet wide. The line to be followed was shown on the plans but was indicated to the contractor by an employee of the authority, D.W.1 Savvides, a Technical Assistant. The course of the trench was marked with chalk on the asphalt and then the contractor drew markings or made a sort of shallow excavation along the two lines of the trench to be constructed, which were of rather permanent nature as. the chalk lines might either fade or be wiped off. [*123]

The plaintiff, a 60 year old person was for the last ten years the tenant of the refreshment shop of G.S.O. the stadium of Limassol town. At about 7.00 p.m. on 21.3. 73s he was returning from AEL Club to his house driving his mobylette along Grivas Dhigenis avenue. He was involved in an accident, he fell on the asphalt and sustained personal injuries.

It is the version of the plaintiff, in the statement of claim, that the two parallel lines-markings of the trench, were an obstruction which constituted a public nuisance and or that he fell into the said excavation or scratches on the asphalt and or shingle spread around by the compressor, and fell down and sustained the injuries, A number of particulars of negligence are set out. Furthermore, his injuries are attributed to breach of statutory duty of the defendants.

The contractor denied in the statement of defence that he was guilty of nuisance and negligence or breach of statutory duty and in the alternative he contended that the plaintiff was guilty of contributory negligence.

The authority denied the claim and alleged that proper care was taken in drawing the lines on the asphalt by means of a compressor, showing that part of the road which would have been opened and that the plaintiff was the author of his own predicament as he rode his motor cycle without care, lost his balance and fell.[*124] It is further alleged that the action is untenable as the Attorney-General was not joined as co-plaintiff, and for the further reason that the work was carried out by an independent contractor.

Before examining the circumstances of the accident, I have to say that the Law with regard to the two legal points raised by the authority, in their statement of defence, is well settled.

The proviso to section 45 of the Civil Wrongs Law Cap. 148, reads :-

"Provided that no action shall be brough in respect of a public nuisance, save”

“(a) by the Attorney-General for an injunction, or”

"(b) by any person who has suffered special damage thereby".

The plaintiff is not asking for an injunction but only he claims damages which he allegedly has suffered.

It is well established that a private individual can sue in respect of public nuisance if she or he suffers some special damages as a result of it.

The liability of the authority, if any, is not vicarious, but direct. A.L. Smith, L.J. said in Holiday v. National Telephone Company (1895 - 1899) All E.R. (Rep.) p. 359.[*125]

"Where a person is executing work upon a public highway, he cannot escape liability by employing an endependent contractor, because there is a duty cast upon him to see that the work upon the highway is so carried out as not to injure persons who are using the highway.”

In Salisbury v. Woodland

(1969) 3 All E.R. 863 referring to cases in which a person, through a contractor, does work which from its nature is likely to cause danger to others he said:-

"The second exception is a special one - that of work on the highway. There, liability for independent contractor arises because those who have statutory authority to dig up a highway themselves owe a duty to the public using that highway, and the fact that they have a statutory authority to excavate does not absolve them from that duty even though they employ an independent contractor to do the work. It is not vicarious liability at all but a direct."

In this respect see Zivlas v. The Municipality of Limassol and another (1975) 7 J.S.C. p. 989.

The plaintiff P.C. 1637, Petros Stylianou, (P.W.1 ) Pavlos Pavlou a close relative of the plaintiff who visited the area some hours after the accident and[*126] Stavros Demetrioü Kouvaros (P.W.3) a builder who witnessed the happening, testified for the plaintiff. Savvas Savvides, a Technical Assistant of the authority and the contractor defendant 1 , gave evidence for the defence.

The plaintiff stated that whilst he was driving his mobylette Registration number FK. 146, in an easternly direction on the right side of the two lines marked on the asphalt by the contractors’ employees, a following car sounded the horn, the plaintiff swerved to his left in order to leave more room for that car to overtake him. His mobylette was driven in a ditch, it skidded and he was plunged on the surface of the road and was injured. He was maintaining a slow speed. Furtherdown, however, he stated that he was driving between the two excavated lines and that close to each line there was small shingle, which was the cause of the skidding.

The point of the accident was opposite the centre of St. Nicolas church. On his way in Grivas Dhigenis avenue, he noticed a hole with a barrier around it. The excavated lines started

20 meters east of the hole; they were visible to him all the way. The width of these excavated lines was four to five of his fingers (each finger is almost equal to one inch).

In his statement to the Police on

30.3.73 he said that he encountered first a hole with warnings in the form of barrels. Due to the sounding of the horn of the following car whilst he was opposite St. Nicolas church he [*127] took more to his left, the rear wheel

of his motor-cycle skidded, he fell and was injured. The cause of the skidding was attributed to the breaking up of the asphalt for the lines.

P.C. 1637, Petros Stylianou, (P.W.1) to whom the accident was reported, shortly after its happening, he visited the scene and he noticed two parallel lines on the asphalt. The asphalt along these lines was scratched. The width of those scratches was about one inch, but at some points they were wider and their depth was only 1/8 of an inch or slightly more. The lines were parallel two feet apart. Those lines - scratches were made on the asphalt with a compressor. Small pieces of asphalt and shingle, were found along these lines due to the excavation of the asphalt.

200 meters before the point of the accident, there was a trench, obviously this witness refers to a manhole. On the sides of this manhole there were barrels and reflecting lamps. The lines, however, were clearly visible as the avenue is well illuminated. He stated that these excavated lines were not dangerous for a cyclist doing 20 m.p.h. or less. But they were dangerous to a motor-cyclist driving at over 20 m.p.h if that cyclist either applied brakes or swerved abruptly to any direction. And he continued that the motor-cyclist might skid and involve himself in an accident.

The asphalted part of the road is 20 feet, as it appears on the plan, Exhibit 1 . The distance from the left edge to the first line was four feet, and the [*128] distance from the right line to the other edge was feet.

The accident was the result of the skidding of the rear wheel of the motor-cycle on the shingle which was part of the frangments of the scratched asphalt due to the marking of the line.

Paulos Paulides, (P.W.2) is by marriage closely related to the plaintiff. He is graduate of the High Commercial School of Athens. He visited the plaintiff at the hospital on the very same night, and about 11.00 p.m. he went to the scene of the accident. He walked along the avenue and saw the hole with the warning and the lines. The asphalt was broken up along these lines, the width of which varied from three to ten inches. They were two to four inches deep. There was shingle on the broken asphalt. The lines were plainly visible but a user of the road could not realize that they were dangerous unless he stopped and inspected them.

A rider could not see the width and depth of those lines and thus he could not realize the danger. From the description given to him by the plaintiff, he found the point of the accident where he noticed the signs of the fall. The road there was swept by the wheel of motor-cycle and the body of the sufferer.

Stavros Kouvaros, (P.W.3) is a builder by occupation. He was riding his pedal-cycle. He stated that he witnessed the accident. The plaintiff overtook him, a car followed them, the plaintiff took to his left on to the[*129] broken up part of the road, proceeded and fell. The asphalt due to the marking of those lines was at points bumpy and at points broken up. He gave the depth of the markings as four to five inches. All along the lines there was small shingle, like sand which was the result of the breaking of the asphalt by the compressor. He attributed the cause of the fall to the skidding on that shingle. There was no warning informing the road users that the asphalt was broken up.

This witness stated that about 9.00 p.m. the contractor placed warnings but it is noteworthy that witness Paulou, who inspected the road at 11.00 p.m. saw none. This witness in cross - examination stated that the trench with the barrel and the warning sign was east of the lines; on this he was contradicted by all the other witnesses.

In cross-examination he stated that the point of the fall was opposite the centre of the church. He further stated that there was no following car, but an encoming car.

D.W.1 Savvides, stated that the width of the lines was between 1/4. to 1 /3 inch and their depth 1/8 to 1/4 .inch.

It is natural, when these marking are made with a compressor, shingle to come to the surface, as the asphalt is broken. [*130]

The contractor Philippos A. Protopapas (D.W.2) stated that at the material time the works were in progress in Grivas Dhigenis Avenue. Before opening the trenches, employees of the authority marked with a chalk and the help of strings the lines where the trenches would be opened. Then by means of a compressor the chalk lines were marked on the asphalt by means of a sort of a cutter 1/4 inch wide and 21/2 inches deep. The depth of the lines was half inch. Sufficient part of such lines for a day’s work for the digger was deepened up to four inches. The markings were visible but nevertheless a cyclist and a motor-cyclist could not see the width or depth of that marking. He placed barrels and warnings only where the manholes were, but he placed nothing along these lines, as he considered them not dangerous. He further stated that the accident happened in a side road which I reject.

I heard and observed the witnesses. The dimensions of the markings given by all of them was only a rough estimate. On the totality of the evidence before me as I accept it, I find that the width of those markings was about an inch and their depth was only half an inch. Shingle came to the surface all along these lines, as well as pieces of asphalt, but no foundation stones. These were not dangerous to ordinary pedestrians and motorists. They were visible, due to the good illumination of the place.

I find as a fact that the accident occurred due [*131] to the skidding of the motor-cycle on the shingle that came to the surface by the breaking up of the asphalt in making those markings with a compressor. The plaintiff could see the markings but he could not realize that there was any danger on the road. The plaintiff was maintaining a rather low speed.

It is a nuisance at Common Law to dig trenches in a high-way for the purpose of laying down gas or water pipes. If persons acting under statutory powers interfere with a high-way they must exercise due care to see that their works, while in progress, are so carried on that the public are not injured thereby (Holiday v. National Telephone Company (1895 - 1899) All. E.R. (Rep.) p.359. In Penny v. Wimbledon Urban Council (1895-1899) All E.R. (Rep.) 204, it was held that in cases in which the local authority has statutory power to do something on a road e.g. stopping it or opening it, so as to make dangerous for use, it is clear that there is a duty upon the authority to take care that whatever they are doing under their statutory authority, the subjects are not injured by a careless performance of the work. (Nash v. Rotchford Rural Council 86 L.J. K.B. 370).

In Trevett and another v. Lee and another (1955) 1 All E.R. 406 Sir Evershed, M.R., said at page 409:

"The law as regards obstructions to highways is conveniently stated in a passage in Salmond on Torts: a nuisance to a highway consists either[*132] in obstructing it or in rendering it dangerous the alternative in the text which I read (or in rendering it dangerous) adds a different conception of wrongful interference, viz, the putting on a highway of something which though it does not obstruct, that is, bar the highway in the sense that I have already mentioned, yet is liable to make it dangerous. Again one example will suffice: if I make a small hole in the highway difficult to see, or put some greasy substance on it, so that treading in the hole or on the substance is liable to cause a man as a natural consequence to fall, then it may be that I have caused a nuisance to the highway, not by obstructing it but by rendering it dangerous."

Lord Blackburn in Geddis v. Barm Reservoir Proprietors (1878) 3 App. Cas. 430 enunciated the following general principle at p. 455:

"For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorised If it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently". [*133]

In the present case the Authority by their contractor excavated two lines on the asphalted part of the avenue. This is a frequented avenue. The users of the avenue are the public in general: pedestrians, motorists, motor-cyclists,pedal-cyclists etc. This was or ought to have been well known to the authority and the contractor. They owed therefore a duty of care to all those categories of road-users.

In Donoghue (or McAlister) v. Stevenson (1932) All E.R. Rep. at p. 11 Lord Atkin used those often cited words about foreseeability.

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my eye to the acts or omissions which are called in question".

Those who engaged in operations on the highway owe a duty to take reasonable care not to act in a way likely to endanger other road users. They owe a duty to all those whose presence is within the scope and hazard of their own operations. A measure of care appropriate is due. The extent of the obligation, as in every other case[*134] where liability for negligence may arise, must depend on what those doing the work should in all the relevant circumstances reasonably contemplate.

The two questions that pose are - (a) first, what is the duty owed by those who engaged in the operation on the highway and second, was that duty discharged in the present case. It appears to me that the ordinary principle in the common law must apply in streets as well as elsewhere,and that fundamentally they depend on what a reasonable man careful of his neighbour's safety would do having the knowledge which a reasonable man in the position of the defendant must be deemed to have done. (Haley v. London Electricity Board (1964) 3 All E.R. 185).

The duty of the authority and the contractor was to carry out their operations in such a way as not to endanger the road users including cyclists. Did the marking of the road with the compressor render the road dangerous? By the excavation the asphalt was broken. Pieces of broken asphalt and shingle were admittedly on the highway along the two lines, though the excavation was not very deep or very wide.

The de minimis principle does not apply. The shingle was dangerous to pedal-cyclists or motoryclists as they might caused them to skid.

In Almeroth v. Chivers Ltd (1948)1 ALL E.R. 53 the plaintiff a pedlar left his barrow against the care[*135] on one side of a road to serve a customer on the other side. While doing so he was hailed by a customer at the barrow and recrossed the road to serve that customer. In getting on the kerb he tripped over a small pile of slates which did not overtop the kerb and which he had not previously seen. The slates have been left, for collection by the defendants who were engaged in demolishing and repairing war damaged property. It was held by the Court of Appeal that while the pile of slates could not be said to cause an obstruction in the sense of preventing or impeding the flow of traffic or the passage of pedestrians the maxim de minimis non curat lex did not apply and the slates constituted a nuisance.

Somervell, L.J, said at p. 55.

"Does the de minimis principle apply? We think not it could not, of course, be suggested that this small thing caused an obstruction in the sense that it prevented or impeded the flow of traffic or the passage of pedestrians. In the course of argument Evershed M.R. gave an example of what would plainly be a nuisance, but equally would not obstruct the flow of traffic viz, a small hole dug in the surface of the road likely to make a horse fall if its foot went into it".

The shingle and the pieces of asphalt scattered on the surface due to the excavation with the compressor were not an

obstruction but they were potentially dangerous. [*136] A hosepipe of half an inch internal diameter let across the width

of a lane during day-light for the supply of water of domestic purposes was considered by Evershed MR in Trevett v. Lee (supra) a potentially dangerous object as somebody just treading on it is liable by movement of the pipe to be case off his or her balance and thereby to sustain a fall.

In the present case the fall of the plaintiff was, as I found, the result of the skidding due to the operations of the defendants. The defendants by their operations rendered the road dangerous to a category of road users. This was reasonably foreseeable by them.

What were the duties of the defendants are set out in the well known pronouncement of Evershed MR in Fisher v. Ruislip Northwood Urban District Council & Middlesex Country Council

(7) (1945) 2 All E.R, 458. They had a duty to give reasonable warning but in the present case as the danger was not obvious to the users of the road as a motocyclist is not bound to drive looking downwards and examine and inspect the surface of the road as otherwise he would not be driving but crowling the defendants had either to place flashing lamps along the excavate lines or to rope off that part of the road. The measures to be taken must be reasonable having regard to the risk. The defendants failed to discharge their duty and they are guilty of negligence.

Is the defendant guilty of contributory [*137] negligence? It is in evidence that the excavation of the lines were made in the afternoon of the day of the acci-. dent and that the plaintiff was driving along that avenue after that excavation for the first time. The markings were visible but one could not plainly see on the surface of the road and the contractor in a question put to him by the Court whether one could see plainly on the surface ### and in answering questions of his own advocate he replied that though the markings were visible by the road-users nevertheless a cyclist or a motorist could not see or say the width or depth of that marking.

It is essential that the plaintiff's lack of care for his own safety should be a contributory factor to the accident which caused his damage. The standard of care in general is the same as that in negligence itself. A person however is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable, prudent man, he might be hurt himself. In the circumstances of this case the plaintiff could not have foreseen that in the way he drove he might hurt himself. The defendants are solely to blame for this accident.

Damages.

The plaintiff was removed from the scene of the accident to the Limassol Hospital. He stayed as an impatient one night, but on the following morning he left the hospital and resorted to doctor Kyriacos Andreou, a [*138] specialist orthopaedic surgeon. He complained of pain and swelling of his right elbow. X'Rays showed fracture of the right olecranon. Under general anaesthesia, an open reduction and screwing of the olecranon was carried out. After the operation, he made satisfactory progress and was discharged on 24.3.73 to continue treatment at home. Six weeks after the accident he was put on a course of intensive physiotherapy. He was reexamined by doctor. Andreou on 12.6.73. This examination revealed:-

(1) Clinical and radiological union of the fracture,

(2) extension and rotation were full, but caused some pain,

(3) flexion was restricted to 100°,

(4) there was still some swelling of the right arm.

The opinion of this doctor as noted in his report, Exhibit 1, is as follows:-

"This man sustained a fracture of the right olecranon and was treated by open reduction. His present symptoms may improve a little with more physiotherapy, but in the near future he will get recurrence of pain and stiffness due to the fact that he will develop post-traumatic osteoarthritis in his elbow because the fracture was intra-articular".

On 26.2.75, he was examined for the defence by doctor Tornaritis. At the time of this examination he [*139] complained of pain during cold weather and of weakness. The findings of this doctor, were,

(1) 12 c.m. long operative scar on the posterior aspect of the right elbow.

(2) On palpitation there was an irregularity subcutaneously near the tip of the olecranon (screw-head).

(3) Ten degrees loss of flexion (out of 145) and five degrees loss of extension; rotation movements of the forearm were full.

(4) 1 c.m. circumferential muscle wasting of the right arm.

(5) X'Rays of the right arm taken by this doctor showed good consolidation of the fracture in anatomical condition and presence of a metal screw transfixing fragments.

We consider pertinent to quote verbatim his opinion.

"This patient sustained a fracture of the right olecranon in an accident about 23 months ago. He had to put up with a moderate amount of pain and suffering for the first couple of weeks. The fracture was treated with open reduction and internal fixation and has solidly united. The subcutaneous head of the screw may cause some pain when the patient leans on the tip of the elbow. The functional outcome of the injury, is, [*140] on the whole, quite satisfactory, as loss of motion is very slight and equally so muscle wasting. There is, however, some loss of power for extension against resistance; he may also get some aching; during weather changes and after prolonged use of the elbow. In the prognosis, one has to consider the possibility of the development of osteoarthritis".

The plaintiff, in his evidence stated that he visited daily the clinic of doctor Andreou for about two and a half months, He experienced pain at the beginning which lasted for about three months, The course of physiotherapy was of 1½ to two months duration and the power of his right arm was diminished. He cannot lift heavy weights and he cannot properly.

The plaintiff, a 60 year old person sustained fracture of the right olecranon, he was treated under anaesthesia by open reduction and screwing of the olecranon, he experienced pain which should have been moderate and lasted only for a couple of weeks. I prefer on this the evidence of doctor Tornaritis to the evidence of the plaintiff. His condition steadily improved, he was left only with a slight limitation of the flexion and the extension movement and of a slight muscle wasting. He has lost some of the power of extension against resistance, he will be experiencing some pain during

climatic changes and prolonged use of the elbow. As the fracture was [*141] intra-articular there is a possibility of development of

osteoarthritis. The plaintiff for the last ten years was running, as the tenant, the kiosk of the. refreshments of the Limassol stadium: he employed a number of persons for selling the refreshments and he was hiring chairs to the fans, He is not doing heavy manual work and having regard to his employment for so long and his age, he is not expected to turn to heavy manual work.

Having regard to the above and to all the heads under which general damages are awarded an amount of £600.- is the fair and reasonable compensation for this plaintiff.

Special Damages.

At the commencement of the hearing special damages excluding loss of earnings on a full liability basis, were agreed at £140.-

The plaintiff in the statement of claim, claims £600.- loss of earnings for four months. The plaintiff stated in his evidence that he was earning £130. - £140.- per month, that he was paying £40.- rent a month, he employed a deaf and dumb person to sweep the place and arrange the chairs, and three sales-men of the refreshments to whom he paid commission. When he was involved in this accident his business was run by his brother who paid only the rent. He stated, however, that if he paid to another person about £70.- per month, he would replace him in this work. Had he offered to his brother £50.- [*142] per month, the brother out of brotherly feelings would have done the work for the plaintiff. The plaintiff was receiving on production of medical certificates, sickness benefit for 75 days.

Having regard to the medical reports the injury he sustained the period he was receiving sickness benefit, and the amount he would have paid to a stranger to do the work for him, I have come to the conclusion that the plaintiff is entitled to £175.- for loss of earnings. Adding to this amount £140.- agreed special 1 damages and £600.- general damages, I give judgment for the plaintiff against both defendants for £915.- with costs, to be assessed by the registrar.

Judgment for plaintiff for £915

with costs.