Employer liable for electric burns due to failure to provide safe system of work and guard against foreseeable risk.

[*335] 1977 November 14

(DEMETRIADES, P.D.C. & NIKITAS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Ioannis Constantinou,

Plaintiff,

and

General Constructions Co. Ltd.,

Defendants.

(Action No. 5178/74).

Negligence - Master and servant - Safe system of work - "Unnecessary risk" - Concept of - Workman suffering electric burns when top of metal scaffold which was wheeled by him, at his place of work, came into contact with overhead electric cables of the Electricity Authority - Employers -could and should have known of the overhead high-voltage wires - Risk of grave injury to workmen reasonably foreseeable - There were steps that employers could have taken which would have prevented the accident - Failure of employers to take satisfactory precautions to guard against the possibility of injury in a situation where a reasonable employer could foresee an accident, thus exposing their workmen to unnecessary risk - And failure to provide a safe system of work in breach of their common law duty and, also, in breach of their statutory duty under regulation 109(2) of the Building and Works of Engineering Construction (Safety, Health and Welfare) Regulations, 1973.

Subsidiary Legislation - Regulation 109(2) of the Building and Works of Engineering Construction (Safety, Health and Welfare) Regulations - Not ultra vires the enabling powers conferred by section 66(1) of the Factories Law, Cap. 134.

Negligence - Contributory negligence

- Workman sustaining electric burns when top of metal scaffold which was wheeled by him came into contact with overhead electric cables - Accident occurred in broad day-light when cables were visible - Workman guilty of contributory negligence to the extent of 40%.[*336]

Damages - General damages - Personal injuries -Thirty-five years’ old electro-welder sustaining electric burns on left palm, the left thigh and right foot, concussion and post-concussional syndrome - Earning capacity not affected – Award of £650.

Breach of statutory duty - Regulation 109(2) of the Building and Works of Engineering Construction (Safety, Health and Welfare) Regulations, 1973.

E. Vrahimi, for the Plaintiff.

P. Ioannides, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

NIKITAS, D.J.: The plaintiff in this [*337] Action was accidentally injured on the 9th July, 1974, in the course of his employment with the defendants. He now claims damages for the injuries he suffered and bases his claim against his employers upon negligence and/or breach of statutory duty.

The accident happened at the site of the Cyprus International (State) Fair at Makedonitissa where the defendants, who are building contractors, were engaged in the construction of a number of pavilions. The plaintiff, now a man of 35, had worked for the defendants as an electrowelder. Mr. Tsimillis, the secretary and personnel manager of the defendants, stated in evidence, without being challenged, that the plaintiff was employed also as a plumber. The plaintiff had been in the service of the defendants from May 1974, but it was only during the last week prior to the accident that he had been assigned duties at the Fair.

The plaintiff suffered electric burns when the top of a metal scaffold which was wheeled by the plaintiff and other workmen towards a pavilion where electric welding had to be done, came into contract with the overhead electric cables of the Electricity Authority passing through the area of the Fair.

It was undisputed that the scaffolding was assembled by the defendants' workmen and was used by the [*338] welders in connection with the metal work within the pavilions. When a pavilion was completed, it had to. be moved to another, for similar use. Some description of the scaffolding was given by several witnesses, but it was more accurately described to us by Mr. Kallimachos, P.W. 3, the Government Senior Inspector of Factories, who investigated the present accident in the course of his duties. It was made of metal pipes and was of a height of 18 ft. 5 ins. and weighed 300 kilos. It was movable by means of four wheels of an approximate diameter of 8 ins., which were fitted with rubber tyres.

Mr. Kallimachos, who came on the scene about two hours after the occurrence, found the scaffold in an upright position on an earthen road which was traversing the electric lines. He also found evidence of the scaffold having come into contact with the wires. There were marks of electric discharge on the scaffold at a height of 17 ft. 3 ins. and a little higher up at 17 ft. 7 ins. Similar marks were observed on the three wires. The investigation was conducted in the presence of several officers of the defendant company, including Mr. Tsimillis and this part of the evidence is virtually undisputed.

In the opinion of Mr. Kallimachos the defendants could, in the light, of the provisions of Reg. 109(2) of the Building and Works of Engineering Construction (Safety, Health and Welfare) Regulations 1973, have taken precautions to guard against the risk of accident when high construction [*339] equipment passed under the electric lines. To quote his words, his department would recommend "something like a goal-post, a wooden frame, a few feet ahead and a few feet after the wires at a lower height in which case if something high passed, it would knock on the horizontal post and people who were involved would realise that the quipment or another thing is of a height above what is safe". Mr. Kallimachos demostrated in exhibit No. 4 the sort of guard he had in mind which would not in any way interfere with the wires of the Authority. The witness did not consider the proposed guard as the only possible protective measure. In answer to Mr. Ioannides he said that an alternative step would have been "the lowering of the soil under the lines" to allow safe passage.

As we have said earlier, this machine was used in and around the pavilion. The evidence satisfies us that on the day of the accident it was to be removed from one pavilion to another for the first time. It is established as well that on the date mentioned, the scaffold was required for electro-welding work, in which the plaintiff was to participate, at the other kiosk. This was at some distance from where the scaffold was, a matter on which we have heard conflicting evidence. We are further satisfied that up to the day of the accident, the method of moving the machine about within a pavilion was by wheeling it as directed by the defendants’ foreman.

On the 9th July, 1974, the scaffold was in a [*340] pavilion where Mr. Porendes, P.W.1, the senior man in the gang of welders, had been working. The plaintiff was then occupied in a neighbouring pavilion. The defendants’ foreman, one Mr. HadjiPavlou, who was not called as a witness, gave instructions for the removal of the scaffold. However, again there is considerable divergence of evidence as to what he said and to whom.

P.W. 1 stated in his evidence that at some time between 1.45 p.m. and 2.15 p.m., after finishing work in this pavilion, the foreman instructed him in the presence of A. HadjiStephanis, to wheel the scaffold to the new pavilion. HadjiStephanis was a young labourer who met his death in the accident.

It is not immaterial to mention here that the evidence permits the inference that the scaffold could only move in an upright position when wheeled. At any rate there is no evidence suggesting the contrary. In answer to questions by counsel for the defence, the witness denied that the directions of the foreman were to carry the scaffold to its destination by hand. Perendes added that this was not possible on account of the weight of the machine, It may be noted that there were five people in the gang besides the plaintiff, but two of then were very young persons.

The plaintiff said in his evidence that he joined his fellow-workmen at the site of the Fair after being told to do so by Mr. HadjiPavlou. There he was informed by his colleagues of the instructions given and was [*341] asked to push the scaffold. Both the plaintiff and Perendes stated that they were not aware of the existence of the overhead electric lines and that they were given no warning at all that there were overhead cables at the working site.

On the other hand, Mr. Victoros, D.W. 3, a crane driver then working for the defendants, alleged that the foreman's instructions were either to dismantle the scaffold or carry it by hand and this because of the danger of contact of the scaffold with the supply lines about which the forman gave an express warning. According to Victoros these instructions were addressed to all the workmen involved in this operation. Despite these directions, the witness continued, the gang adopted an easier and more expedient course proposed by Perendes in the presence of the plaintiff as well. That suggestion was to wheel the scaffold after lifting it up in an upright position.

According to D.W.3. dismantling the machine would take a quarter of an hour, but Mr. Kallimachos, whose evidence we believe, said characteristically that "it (dismantling) would be a time-consuming operation”. As indicated earlier, the witnesses gave different estimates which are rough estimates of the distance the machine had to travel. Even assuming that the length of the route was 70 meters, as suggested by Mr. Ioamiides to plaintiff, the carrying of the scaffold would still [*342] be a difficult task in the circumstances. Further there is complete lack of evidence that the scaffold was ever dismantled or carried and the very fact that it was equipped with wheels is one of the considerations that renders the plaintiff's case, on the balance of probabilities, more plausible. It may be added that there was no suggestion in cross-examination, nor any evidence, that the workmen could follow any alternative course in order to avoid passing under the electric lines. Finally we make mention of another incident which goes to the credibility of D.W.3. He asserted that the foreman’s orders were given when all the labourers were present. In due course he admitted giving a different version on another occasion when giving evidence in a criminal case in connection with the accident.

The plaintiff and his witness Mr. Perendes impressed us as reliable witnesses and we accept their evidence if and when it conflicts with the version of Mr. Victoros and particularly on the question of the foreman’s instructions. In doing so, we do not forget that Perendes has brought an Action for damages in respect of the same accident. On the other hand, Perendes had rejected the suggestion of the defence that he made a certain statement to the chief foreman of the company who visited him in hospital after the accident. This alleged statement by Perendes amounted in effect to an admission on his part that the cause of the accident was his disobedience to the foreman's directions. The chief foreman was not called as a witness, nor indeed was Mr. HadjiPavlou who could [*343] enlighten the Court on this most vital issue.

The question that we have to consider next is whether, in the light of the facts as we have found them, the employers have been guilty of any breach of their common law duties owed to the plaintiff as pleaded in para 4 of the Statement of Claim and in particular of their alleged failure to maintain a safe system of work or safe place of work.

The Supreme Court had occasion, in Athanasiou v. The Republic, (1969)1 C.L.R. p. l60, to apply these principles and in doing so referred with approval to that part of the judgment of Slade J. in Harris v. Bright’s Asphalt Contractors Ltd., Allard and Saunders Ltd.., (1953)1 All E.R.395 at p. 397 which defines the concept of "unnecessary risk” as follows:-

"In case there is any doubt about the meaning of the word 'unnecessary’, I would take the duty as being/ a duty not to subject the employee to any risk which the employer can reasonably foresee, or to put it slightly lower, not to subject the employee to any risk that the employer can reasonably foresee and against which he can guard by any measures, the convenience and expense of which are not entirely disproportionate to the risk involved".

The meaning of system of work was explained in Speed v. Swift (Thomas) and Co. Ltd., (1943) 1 All E.R. 539 at p. 542 by Lord Greene, M.R., in these terms:-[*344]

"I do not venture to suggest a definition of what is meant by system but it ... may include ... the physical lay out of the job - the setting of the stage, so to speak - the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices and the issue of special instructions. A systems may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise; such modifications or improvements appear to me to fall under the head of system".

The last sentence of the head-note in Winter v. Cardiff Rural District Council, (1950)1 All E.R, p. 8l9 reads:-

"The giving of proper instructions may well be a part of a proper system of working, and the omission to give them may constitute a defect in the system of working, or alternatively, a breach of the employers’ obligation to take reasonable steps for the safety of those employed on the task".

The extent of the duty to provide a safe system of work or a safe place of work is amply illustrated by the

decision in Smith v. Vange Scaffolding and Engineering Co. Ltd. & another, (1970)1 All E.R. 296. In that case the worker tripped over a cable which was scattered about with [*345] other materials on the site he was working and was thereby injured. The employers were held liable for their failure to complain to the owner of the site in respect of its untidiness, the Court holding that such failure could be regarded as a cause of the accident.

In the case before us, the defendants could and should have known of the overhead high-voltage wires. Their height from the ground, according to the electricity regulations, is 20 ft. The risk of grave injury to the plaintiff, in these circumstances, was reasonably foreseeable considering the height of the scaffold. There were steps which the defendants could have taken, such as the measures suggested by Mr. Kallimachos, which would have prevented an accident and which were not shown to be either unduly expensive or difficult to take.

We find that the company did not take satisfactory precautions to guard against the possibility ofinjury in a situation where a reasonable employer could foresee an accident, thus exposing their workman to unnecessary risk. Having in mind the instructions of the foreman and all surrounding circumstances, we have/ come to the conclusion that the defendants failed to provide a safe system of work in breach of their common law duty and they are, therefore, liable to the plaintiff.

The Action is also founded on breach of statutory duty but Reg. 109(2) of the 1973 Building Regulations on which the plaintiff relies is not specifically pleaded [*346] as it should be. In the Statement of Defence there is a denial of any breach of statutory duty on the part of the employers. The vague form in which the Statement of Claim is drawn prompted counsel for defendants to complain, but the relevant evidence by Mr. Kallimachos was received without opposition and he was submitted to cross-examination. The case was in fact fought all along on the footing of breach of statutory duty as well. Thus any element of surprise is lacking end we believe it would be unjust to refuse to consider this ground in the circumstances.

Counsel submitted next that the 1973 Regulations which were made pursuant to Sections 66, 75 and 76 of the Factories Law Cap. 134, have no application in the present situation which lies outside the definition of the expression ’factory’ occurring in the Factories Law. It is true that building operations or works of engineering construction are not ’factories’ within the meaning of Sections 2 and 4, but the requirements of the Factories Law and the 1973 Regulations made thereunder apply to these operations as if they were factories. This is so by virtue of the provisions of Sections 75 and 76 of the Law and Reg. 2 of the Regulations under consideration.

It was further submitted on behalf of the defendants that Reg. 109(2) above is ultra-vires the enabling powers conferred by S. 66(1) of the Factories Law. This provision empowers the Council of Ministers "to make such special Regulations as appear to them to be reasonably practicable" in the circumstances set out in that Section. [*347]

Regulation 109(2) provides:-

"Εις περίπτωσιν καθ' ην ηλεκτρικώς

πεφορτισμένον εναέριον καλώδιον ή συσκευή δυνατόν να αποτελέση αιτίαν κινδύνου

δι' απασχολούμενα πρόσωπα κατά την διάρκειαν οιωνδήποτε εργασιών εις τας οποίας

εφαρμόζονται οι παρόντες Κανονισμοί, είτε ένεκεν της λειτουργίας ανυψωτικής

συσκευής ή άλλως πως, δέον όπως λαμβάνονται όλαι αι δυναταί προφυλάξεις διά

παρεμπόδισιν του τοιούτου κινδύνου είτε διά της παροχής επαρκών και καταλλήλως

τοποθετημένων περιφράξεων είτε άλλως πως."

It was argued that since Reg. 109(2)

imposes an obligation "to take all possible precautions" – όλαι αι δυναταί προφυλάξεις - such obligation is wider in scope than the authority given by S.

66(1). Statutory duties may be either absolute or qualified. Expressions like "so far as is practicable" or "all practicable steps" are sometimes introduced in the English Factory Legislation for the purpose of limiting or qualifying a certain duty which the legislation imposes. See

36 Halsburys Laws, para 693 p. 456 and Notes, in particular Note 'F'.

The expression "reasonably practicable" in our S.66(1) characterises the Regulations as a whole and does not refer to any particular duty. As it has not been shown that the subject Regulation is outside the scope of the enabling power contained in S. 66(1), we reject the submission of the defendants. [*348]

Reg. 109(2) requires an employer "to take all possible precautions... either by the provision of adequate and suitably placed fences or otherwise". - This is a rough translation from the Greek text of the words "δέον όπως λαμβάνονται όλαι αι δυναταί προφυλάξεις ......

είτε διά της παροχής επαρκών και καταλλήλως τοποθετημένων περιφράξεων είτε άλλως πως".

The word "possible" in the Regulations appears to have a similar meaning with "practicable" occurring in the English Enactments. We refer in support to a statement in Munkman's Employers' Liability at Common Law, 8th ed. at p. 211. "Practicable" is defined in Webster's dictionary as "possible to be accomplished with known moans or resources" and at p. 274 where it is said "practicable by itself means that which is feasible or possible".

In the situation before us there was nothing to show that the provision of a wooden frame as the one suggested by Mr. Kallimachos or the other alternative was not possible in the above sense. It is our finding that the defendants should and could have taken the measures suggested, an action which, presumably, would not involve the defendants in unreasonable trouble or expense. Moreover we find that their failure to resort to such measures was a material cause contributing to the plaintiff's injuries. We hold, therefore, that responsibility for breach of statutory duty has been established.

The question further arises whether the plaintiff has been guilty of contributory negligence. The [*349] plaintiff conceded in cross-examination that he would stop pushing the scaffold had he seen the wires; so did Perendes. The accident occurred round about 2 p.m., in broad daylight and we are satisfied that the. ires were visible. If the plaintiff was exercising reasonable care for his own safety, he could have seen that there were overhead wires. Accordingly we find contributory negligence on his part and in our view the proportion of blame should be 60% against the defendants and 40% against the plaintiff and the damages must be reduced to that extent.

We turn finally to consider the assessment of damages. Following this accident, the plaintiff was taken to the Nicosia Hospital where he was attended by Dr. Kammitsis, P.W. 4, a plastic surgeon. On examination by Dr. Kammitsis, the plaintiff was found to be suffering from electric burns of the left palm, the left thigh and the right foot. Conservative treatment was applied first and later Dr. Kammitsis performed a plastic operation on the right foot which required anaesthetic. There was considerable improvement in the condition of plaintiff and he was discharged from hospital on the 20th September, 1974. However, according to the doctor, there remained residual effects of the accident in the right foot. In giving his prognosis, he said: "Having in mind the time that has elapsed, most probably these complaints are going to be permanent, that is to say, I am speaking about the pain and paraesthesia of the right foot". [*350]

The plaintiff testified that he had lost consciousness as a result of the accident and when he recovered his senses in hospital, he was experiencing headaches and dizziness. Early in November 1974 he was examined by Dr, Charalambides, a Government neuropsychiatrist, to whom he complained that ever since the accident he has, besides headaches and dizziness, difficulty in concentration, a general feeling of weakness and irritability.

The neurological examination revealed no damage. Dr. Charalambides considered that the plaintiff’s symptoms were possibly due to the accident. In November, 1976 when the doctor last examined the plaintiff, his complaints were confined to occasional headaches and dizziness. Dr. Charalambides was uncurtain in his prognosis, presumably on account of the subjective nature of these symptoms. When asked to make an assessment of the plaintiff's condition, he replied: "Usually these complaints disappear; on occasions they may persist or they may be permanent. All these complaints ... are subjective". The plaintiff told the Court that his headaches are now more severe than last year, a statement which strengthens our impression that the plaintiff is exaggerating his injuries.

With reference to the condition of his foot, the plaintiff stated that it is painful, especially when he is at work and that he walks with a limp. This latter allegation does not appear to be supported by Dr.Kammitsis It is the case for the plaintiff that his earning capacity [*351] has diminished on account of his injuries and we propose to deal briefly with the relevant evidence. Before the accident, the defendants were paying him £19.230 mils net per week. He returned to work in April 1975, in his pre-accident capacity at a weekly wage of £15.765 mils. The plaintiff alleged that he was payed reduced wages because he could not work on the scaffold any more.

It was not in dispute that workers' wages were, at the material time, reduced as a result of an agreement reached between employers and the Trade Unions. The effect of this reduction would be to bring the plaintiff's salary down to £17.260 mils from the original £19.230 mils per week . We are satisfied from the evidence of Mr. Tsimillis that the plaintiff was paid less than £17.260 mils because at the time there was great unemployment and employers had the opportunity to find cheaper labour.

In about May, 1976, when the defendants' business at the Pair was finished, they dismissed all their staff. The plaintiff found work soon after, within a week or two from the day of his dismissal, with the Hellenic Mines Corporation for whom he had previously worked as a welder. The Corporation employed him as a labourer at their wash plant near Agrokipia, his village and he is now earning £13.950 mils weekly. Allegedly, the reason his new employers did not offer him his old job was because they considered that the new duties assigned to him would be "lighter and less dangerous". The[*352] plaintiff has made no real effort to find a job as an electro-welder and it may be that his present occupation is not unconnected with the proximity of his place of work to that of his residence.

Dr. Iacovides, the surgeon who gave evidence for the defendants, stated his findings as follows "As a result of the sustained burns and the operated area there are permanently scars. To describe them in detail: There his a superficial scar or discoloration, scarcely noticed, over the mid-third and lateral aspect of the right leg, 6 c.m. long and 4 c.m. wide. There is also a scar formation over the lateral aspect of the metatarsal area, over the 5th, let's say, metatarsal bone, and over the dorsal aspect of the 5th, 4th and half the 3rd toes of the right lower limb. Also a very small one under the same foot. On the left thigh there is another scar, 4 c.m. long. I found out some increased sensitivity on touching this scarred area, let's call it 'paraesthesia’."

Dr. Iacovides found no evidence of damage to the nerve going down the right foot which, if we comprehend the evidence properly, would support a finding of paraesthesia. He examined the movements of the anklejoint and there was no restriction except for some sluggishness of the plantar flexion of the small toe and X- Rays showed some broadening or thickening of the last phalanx of the 5th too. He concluded his evidence in [*353] these words: "So, in summary in my opinion there is a very mild disfigurement due to the above described scar formation. I might rate it as unimportant having in mind the site and the extent of these scars and other factors and I think he is able to continue permorming manual duties".

Having examined the evidence as a whole, we find that, in consequence of this accident, the plaintiff has suffered concussion and he developed a post-concussional syndrome. His symptoms, however, receded with the passage of time. We cannot, on the evidence, arrive at a definite time limit but we believe that his symptoms must have cleared up before the trial. We recall for example that during his last examination in February last by Dr. Iacovides he gave a different description of his dizziness, in fact a different symptom from that originally given, which does not leave much to be desired.

Electric burning causes quite painful injuries, as testified by Dr. Iacovides. Pain and suffering is more acute during the first weeks before it gradually subsides. There was further suffering in this case due to the operation. We take all this into account in our assessment. As to the effect of the burns, we prefer the evidence of Dr. Iacovides where it differs from the prognosis of Dr. Kammitsis. We hold further that the earning capacity of the plaintiff has not been affected by his injuries.

Taking into account all the factors which arise from the medical evidence we have accepted, we [*354] believe that a fair amount to award as general damages in this case is £650.-. To that sum we must add the special damages which are agreed at the sum of £650.-

In the result, after deducting 40% the plaintiff is entitled to judgment for £780.- and to costs on the scale £500

- £1000.

Judgment for plaintiff

for £780.-. Order for

costs as above.