Employer liable for unsafe work; plaintiff's contributory negligence reduces damages equally.

[*384] 1980 May 23

(PIKIS, P.D.C. AND CHRYSOSTOMIS, S.D.J.)

IN THE DISTRICT COURT OP LARNACA

Michalakis Gregoriou,

Plaintiff,

v.

Ioannis K. Pella and Another,

Defendants.

(Action No. 1682/78).

Negligence - Contributory negligence

- Master and servant - Safe system of work - Builder working on unfenced verandah 3.75 metres high - Standing on wooden board placed on two barrels - Palling on the ground when stepping on part of board extending beyond the barrels - Employer guilty of both his common law and statutory duty to provide a safe system of work - Plaintiff guilty of contributory negligence - Liability apportioned equally - Building (Safety, Health and Welfare) Regulations, 1965.

Damages - Recoverability - Principles applicable - Foreseeability - Remoteness - Mitigation - Special damages - Whether plaintiff’ s emigration abroad a foreseeable eventuality that can be allowed to enhance his damages.

Damages - General damages - Cerebral injury - Cranial operation - Acute pain persisting over a period of months - Headaches and giddiness - Development of traumatic epilepsy - Inability to resume previous work of a builder - Taking less remunerative work - Award of £7,500.

Damages - General damages - Personal injuries - Future loss of earnings - Multiplicand and multiplier - Choice of - Considerations applicable - Whether allowance can be made for future inflation. [*385]

P. Ioannides, on behalf of T. Papadopoullos, for the Plaintiff.

A. Mathicolonis, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

PIKIS, P.D.C.:- From about the age of 15 the plaintiff was apprenticed to defendant 1 to learn the craft of a builder. In January 1972 he enlisted for service in. the National Guard and had to give up his employment with defendant

1. In October 1975, when on leave from the army, he was temporarily employed by his former master as a builder for the construction of a house belonging to Michael HadjiAntoniou (P.W.1) at 2 Lykourghou street, Larnaca. A fortnight later, on 19th October 1973, he fell down from the unfenced verandah of the building, from a height of 5.75 metres and suffered serious injuries that necessitated his removal first to Larnaca and subsequently to Nicosia General Hospital where he was treated by Dr. Spanos.

The plaintiff sues defendant 1, his employer, and his son (defendant 2) for the recovery of damages for the injuries and loss he suffered charging them with negligence in the discharge of their common law duty of care to the plaintiff, allegedly the servant of both, and breach of statutory duty, notably the duties cast on employers and building contractors by the Building Regulations of 1973. (See Official Gazette 1973 - No. 1025 - 20.7.1973). [*386]

At the close of the case the plaintiff applied for leave to withdraw the action against defendant 2, acknowledging his failure to substantiate that defendant 2 was either his master or the contractor. All that was proved was that defendant 2, despite his relationship with defendant 1, was a fellow builder of the plaintiff, therefore defendant 2 had no responsibility at common law for the safety of plaintiff at work nor was he under any statutory duty to guard against accidents at work. Hence the action against defendant 2 is dismissed.

Defendant 1, hereafter referred to as the defendant, admitted in evidence, notwithstanding his denial in the defence, that plaintiff was his employee but maintained, as in his defence, that he is not liable to the plaintiff, who is, in his contention, solely to blame for the injuries he suffered. It is perhaps advisable to begin the judgment by narrating what emerged to be common ground from the evidence and then refer to the rival versions as to how the accident happened. The plaintiff and the son of the defendant were employed as builders and were building brick walls on the first storey at different parts of the building.

Each was assisted by a labourer who was supplying building material so that the builders could uninterruptedly perform their building work. Panayiotis Georghiou (D.W.3), a labourer of advanced years, was aiding the plaintiff in carrying out his work. Some questions were raised regarding the degree of accomplishment of the plaintiff as a builder, the plaintiff maintaining he was still an apprentice, the [*387] defendant alleging he was virtually an accomplished builder to the extent of 90 per cent. Whatever may have been the training of the plaintiff as a builder the question is irrelevant for the determination of the case because, the degree to which he was skilled in the craft of a builder had no bearing on the accident.

It seems that plaintiff had years of training as a builder and was regarded by his employer as competent to do building work alongside with his son. Throughout his fortnight’s employment both the plaintiff and his fellow builder were building standing at a height about one metre from the ground on a wooden board resting on two barrels. The board was not fixed by any means to the barrel and was consequently apt to be upset from its position on the barrels by a sudden jerk or movement. Although plaintiff disputed the existence at the site of work or iron scaffoldings in our judgment such scaffoldings were available but no use was made of them for gaining an elevated position in order to build for the aforementioned method of work was the one approved by the employer and customarily used for doing building work at relatively low heights.

In our judgment the use of barrels and a wooden board (pondion) were the means provided and approved by the employer to enable the plaintiff to do the work he was assigned to do, viz. to build. The verandah of the house was unfenced notwithstanding its height from the ground measured by Georghios HadjiAntoniou (D.W.2) to be 3.75 metres. [*388]

It is the version of the plaintiff, elicited in evidence, that while performing his building work, standing on the wooden board, the barrels inclined on one side upsetting the board in consequence of which he fell down to the yard. He was, in his contention, working on the verandah close to its unfenced edge therefore he had no opportunity to avoid his fall to the ground. He maintained that both barrels were positioned on either side of the verandah, shown on exhibits 1 and 6, a fact disputed by his employer. Georghios Ioannou (D.W.5), the son of the defendant, alleged that plaintiff was building an internal wall, not an external one, as he maintained, and that both barrels were positioned inside the building and not on the verandah. His evidence on the subject is based on surmise rather than hard facts, on a consideration of the work that plaintiff was earlier doing, not having witnessed the accident himself. His evidence on the subject comes in conflict with that of another defence witness, namely Panayiotis Georghiou (D.W.3), the assistant of the plaintiff, who was, as he testified, at his side at the time of the accident and gave a detailed account of it. This witness confirmed the version of the plaintiff that he was doing building work on the verandah but disputed plaintiff’s version as to the circumstances of the accident and gave what may be regarded as a third account about the position of the barrels. In his evidence only one of the two barrels was placed on the verandah, 1 to 2 feet from its unfenced edge; the other was further in, inside the room adjoining [*389] the verandah. According to Mr. Georghiou the wooden hoard protruded over a small length beyond the barrel, a fact contested by the plaintiff. His account of the accident sharply contrasts with that of the plaintiff. It is his testimony that when plaintiff finished his building work and was about to step down in order to lay his tools the plaintiff, for reasons better known to him, started walking on the board and fell down when he reached that part of the board that protruded beyond the barrels. It is not clear from his evidence whether the board was upset before the plaintiff fell or whether the plaintiff fell because he took a step in the vacuum.

We have examined the evidence before us with great care and visited the locus in order to appreciate the evidence in its proper perspective. In our judgment the accident occurred in the circumstances described by defence witness Georghiou subject to this: Before plaintiff fell the wooden board on which plaintiff was walking was upset probably because plaintiff stepped on that part of it that extended beyond the barrels. Having regard to our findings we shall next resolve whether plaintiff proved his case against the defendant. The common law imposes a duty on the employer not to expose his servant to unnecessary risk at work. A risk is unnecessary if it it foreseeable and can be eliminated by available devices within reasonable reach. Progressively, as it can be gathered from the authorities, the duty of an employer to guard for the safety of his employees is becoming stricter as social [*390] attitudes harden about the need to ensure the bodily integrity of labourers at work. It must not be overlooked that a worker has little say in the arrangement of his environment at work and the method chosen for carrying out his duties. (see, inter alia, Athanassiou v. The Attorney- General (1969) 1 C.L.R. 160 - McCafferty y. Metropolitan Police Receiver (1977) 2 All E.R. 756). In determining whether a system of work is safe it is permissible to have regard to any long established practice in the industry for adherence to such practice may afford evidence of reasonableness. (See Pericleous v. Co-Marine and Another (1 977) 1 C.L.R. 315). However adherence to a dangerous practice, no matter how widespread it may be, affords no defence if the danger materializes and loss is suffered thereby.

The building regulations are intended to enumerate in detail the duties of the employer and a building contractor is specific areas of activity in the building industry in order to confer to workers concrete protection from known hazards in the building trade. They are not exhaustive of the common law duty of an employer towards his employees and in practice they offer a parallel remedy to the Worker. Breach of these regulations confers a right to the class of persons intended to be protected thereby, namely workers, to be compensated. (See, inter alia, Tan Chaye v. Chong Kew Moi (1970) 1 All E.R. 266 (P.C.) - Yineer v. C, Doidge & Sons Ltd. (1972) 2 All E.R.794 (C.A.) - Coote v. Stone (1971) 1 All E.R. 657 (C,A.)). [*391]

Learned counsel for the plaintiff pointed to a number of building regulations that were infringed by the defendant, particularly failure to provide a fence on the verandah notwithstanding its height, over two metres (regulation 28) and failure to provide safe scaffolding and secure it appropriately as required by the building regulations. It is not sufficient for the plaintiff merely to establish breach on the part of the defendant of one or more of the building regulations. He must, in addition, prove a causal connection between the breach and the injuries suffered. Learned counsel for the defendant invited the Court to hold that plaintiff's folly was the sole cause of the accident and that his injuries were not the result of any breach of common law or statutory duty.

In our judgment the defendant is guilty of a breach of both his common law and statutory duties to the plaintiff. The plaintiff was required to work in unsafe surroundings having regard to the instability of the board on which he had to stand in order to do his work and the dangers multiplied by its proximity to the unfenced edge of the verandah. The failure of the defendant to make the place of work safe for the plaintiff also constituted a breach of his statutory obligations, defined in the building regulations, mainly his duty to fence the verandah and make the scaffolding a safe platform for work. These breaches contributed to the accident and were a causative factor to the injuries suffered by the plaintiff.

Manifestly the plaintiff himself contributed, by his great folly, to the [*392] injuries he suffered and is guilty of

contributory negligence. He courted risk by walking on the board and thereafter took a grave risk with his safety by stepping on that part of the board that protruded beyond the barrel on the edge of the unfenced verandah. The apportionment of liability is not a task susceptible to precise mathematical calculations and it must be performed by an overall assessment of the situation. It is, to a large extent, a matter of impression. In performing the task one should not of course overlook that it is primarily an employer's responsibility to ensure the safety of his workers. On the other hand one cannot ignore a folly like that of the plaintiff and his obvious disregard for his safety. At the end of the day we feel we should conclude by finding that defendant’s breaches and plaintiff’s disregard for his own safety equally contributed to the injuries suffered by the plaintiff, therefore we apportion liability between plaintiff and defendant at the ratio of fifty/fifty.

The plaintiff, a young man of 20, suffered serious injuries as a result of his fail from a height of about four metres involving loss of consciousness. He was moved first to Larnaca hospital and subsequently to Nicosia general hospital where he was treated by Dr. Spanos (P.W.3), a neuro-surgeon. The defendant did not dispute either the description given by Mr. Spanos of the injuries of plaintiff or his findings and prognosis. The only aspect of plaintiff's case that he challenged is plaintiff's allegation that more than two years after [*393] the accident he began suffering from epileptic fits that recur at increasingly frequent intervals as may be judged from his evidence.

We need not reproduce the findings of Dr. Spanos set out in his report (exh. 4) or recount his evidence. On 3rd November 1973 the plaintiff was subjected to a cranial operation in the course of which an intra-cerebral haematoma was removed from the temporal lobes and a large haematoma from the left cerebellar hemisphere. The condition of plaintiff improved to a degree permitting his discharge from the hospital on 8th December 1973. However he had not completely recovered from his symptoms, his gait remained unsteady and nystagmus persisted. A degree of ataxia affected his right limbs, and wasting of the left stenocleidomastoid muscle was noticeable. The condition of plaintiff improved considerably with physiotherapy but not completely for, on 30th April 1974, when Dr. Spanos issued the report he produced before us, there persisted a mild degree of instability in his gait, there was horizontal nystagmus and mild ataxia. The plaintiff complained of headaches and dizziness. On a recent examination of plaintiff the doctor diagnosed further improvement and expressed the view that headaches and giddiness, of which plaintiff still complains, are not serious enough to interfere with his work.

The plaintiff never returned to the army after the accident until he had to report for duty during general mobilization at the time of the Turkish invasion. In the meantime when he felt better during the months preceding [*394] the Turkish invasion he was re-employed by defendant 1 but found himself unable to do, because of his condition, even work of the lightest nature and had to give up the effort shortly afterwards. The plaintiff had to wrestle with army red tape to get his release on medical grounds. After a time he was assigned auxiliary duties. Eventually he was demobilized on 22nd January 1976. On 8th February 1976 he emigrated to the United Kingdom where he settled with his wife to whom he had got engaged while in the army. In the United Kingdom he was, for a time, employed as delivery man in a firm specializing in the delivery of gifts. He attempted to get work as a builder but had to give up within two weeks as he felt unable because of his condition to work at any elevated point and inasmuch as his master would not agree to his doing work on the ground he had to give up. Subsequently he found employment as an assistant in a supermarket earning much less than he would have earned if he was able to do a builder's work. While working at the supermarket he suffered the first epileptic crisis, as he testified in evidence. Thereafter he was assigned lighter duties by his employers, viz. to affix labels on goods. His present earnings are £55 (Sterling), a sum smaller than that he could expect to earn as a builder.

Dr. Spanos, who examined him recently, came to the conclusion after a clinical examination and examination of an EEG that the risk of traumatic epilepsy materialized and confirmed that plaintiff now suffers from traumatic epilepsy, a condition that materially interferes with his working [*395] capacity and prospects making it imperative for his own safety to keep away from heights and dangerous machinery. As the doctor explained the risk was, from the very beginning, serious enough, estimated in the region of 35 to 40 per cent and was not surprised as to its onset. The defendant, although he did not dispute that the cerebral injuries suffered by plaintiff predisposed him to traumatic epilepsy he nonetheless disputed plaintiff's contention that he has become an epileptic. In support of his contention he called Dr. Achilleas Perdios, a specialist neuro-surgeon, who maintained that persons predisposed to traumatic epilepsy usually contract epilepsy within two years after their injuries and that only on rare occasions does epilepsy develop subsequently. On examination he found the plaintiff neurologically normal. In his opinion the EEG was not conclusive but it did not disprove the allegation of plaintiff. At the end, when the doctor was asked to sum up his opinion, his view was that he could not certify with any certainty whether plaintiff suffers from epilepsy or not.

We have examined the evidence before us on the subject of epilepsy with great care. Dr. Spanos was in a unique position to make an assessment of the situation. We accept his evidence without any hesitation and find that plaintiff's complaints as to the onset of epilepsy are genuine. As Dr. Spanos explained epilepsy can be controlled, though not absolutely, by medication but cannot be cured, a sad realization for a young man of plaintiff's age. [*396]

Special Damages

In the statement of claim plaintiff claims by way of special damages £500 but the evidence adduced supports only a claim for £80 and £40 transport expenses. Moreover he claims, by way of special damages, a sum of £15 per week for three years by way of loss of earnings. We dwelt at some length on the implications of plaintiff's emigration to the United Kingdom and whether this factor could be allowed to enhance plaintiff's damages. It is now well settled that recoverability of damage in tort depends on foreseeability. If a species of damage is foreseeable at the time of the accident the defendant will be held liable for every loss directly resulting from such foreseeable injuries. (See Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd., (1961) 1 All E.R. 401 - Hughes

v. Lord Advocate (1963) 1 All E.R. 705 - Overseas Tankship (U.K.) Ltd, v. The Miller Steamship Co. Pty. Ltd, and Another (1966) 7

J.S.G. 1119). In McGregor On Damages, 13th edition, there is a long discussion of the circumstances under which the chain of causation may be broken or more precisely the implications on damages of any third factor introduced by the plaintiff. It is observed that in this area a number of principles come into play and converge such as foreseeability, remoteness of damage and mitigation of damage. As Scrutton L.J. observed in the San Onofre (1922) P. 243 (C.A.), "the question whether damage is sufficiently direct consequence of negligence to be recoverable, or is too remote, is rather a question of first impression". [*397]

As a matter of logic it would be hard to argue that plaintiff's emigration was, in itself, a foreseeable eventuality and it would be contrary to common sense to burden the defendant with an extra amount because of a wilful act of the plaintiff. Of course if at the time of the accident plaintiff had settled plans to emigrate it would have been legitimate to have regard to his losses as defined by the realities of the country whereto he emigrated for this would be an inevitable result of the application of the principle that in tort you take your victim as you find him to be and not as you might reasonably expect him to be. In our judgment damages in this case should be assessed from the perspective of the Cyprus reality.

We find that plaintiff was entirely unfit for work for a period of about three months after January 1974 when he could be expected to be discharged from the army. A sound guide for the assessment of his loss in this area are the wages plaintiff was earning when employed by defendant, £15.- a week. (£15 by 1 3 weeks = £195). The plaintiff is not entitled to recover anything by way of losses of earnings for the period between July 1 974 and January 1976 when serving in the army. According to authority losses of earnings up to the trial may be recovered as special damage. (See Dodds v. Dodds (1978) 2 All E.R. 531 - Cookson v. Knowles (1978) 2 All E.R. 604 (H.L.), - Lim v. Camden Health Authority

(1979) 1 All E.R. 332).

Mr. Tambos, a Union secretary, gave evidence about wages of workers in the building industry and in stores. Further the witness referred to the wages of builders and [*398] labourers in 1973 and 1980. Also he spoke of the wages of shop assistants in 1980, We have no indication what the wages of a shop assistant were prior to 1980, but it is reasonable to infer, having regard to the evidence in its entirety, that the wages of a builder as well as those of a labourer in the building industry were and are higher than those of a shop assistant. At present a builder earns about £44 a week and a shop assistant £25 a week.

The plaintiff was unfit to work as a builder because of his epileptic fits and had in consequence thereof no alternative but to seek employment either as a labourer on the ground or as a shop assistant. However it must not be overlooked that his ability to do an ordinary labourer's work, even on the ground, has been prejudicially affected by the injuries he suffered. And having regard to the evidence of the last mentioned witness we accept that in either case his earnings would be considerably reduced. A fair estimate of this loss is £30 per month, that is to say £360 a year for the last 4 years up to February 1980. Future losses of earnings are recoverable as part of the general damages a subject to be dealt with presently.

General Damages

The plaintiff must be compensated for the pain he suffered, the inconvenience and discomfort he experienced and is likely to experience in future because of his condition and the earnings he is likely to forego because of his incapacitation. For a time the condition of plaintiff was very painful and acute pain persisted over a period of months. [*399] Attacks to headaches and giddiness still trouble him. What is worse is the traumatic epilepsy he contracted as a result of his accident, a condition that has adverse repercussions both on the quality of life he may lead and his earning capacity. The victim of epilepsy has no choice but to limit his activities considerably and adjust his life and work in a manner tending to eliminate risks from epileptic seizures. He remains vulnerable to an epileptic seizure, without warning, a fact that makes life, like that of any epileptic, agonizing. In a recent decision, Antoniou v. Kyriakos (1978) 1 C.L.R. 77, the Supreme Court reviewed the principles relevant to the award of damages for epilepsy and did emphasize its grave implications on one's social and working pursuits. They referred with approval to the approach of the subject followed in Jones v. Griffith (1969) 2 All E.R. 1015. And in evaluating damages the Court must not fail to heed the present inflationary spiral that necessitates a monetary re-appraisal of past awards for similar injuries.

In our judgment a sum of £7,500.- is fair compensation by way of general damages for compensating the plaintiff for pain, suffering, discomfort and inconvenience, past, present and future, and we so adjudge. There remains to consider future losses of earnings.

The process of ascertaining future losses involves a present quantification of future losses entailing a choice in terms of legal phraseology of the multiplicand and the multiplier. According to recent English authority earlier [*400] cited consonant both with principle and common sense, if we may say so with respect, the multiplicand is chosen by reference to the Income plaintiff was likely to earn at the time of the trial had it not been for the accident. Both must be determined for reasons already given by reference to Cyprus reality. Any other approach would, apart from everything else, require adjustment of income earned abroad that would, in turn, necessitate examination of the cost of living. The multiplier, like the multiplicand, must be chosen by reference to the life prospects of the plaintiff as defined at the time of trial. Here as elsewhere the choice is made on broad common sense considerations by endeavouring to harmonize in the process foreseeable prospects with the unexpected. Of course the dominant consideration is the age of the plaintiff at the date of trial. No allowance should be made for future inflation for, as it has been observed, a prudent investment is apt to counterbalance the ill effects of inflation. However, as it was pointed out in some of the opinions delivered to the House in Cookson (supra) in exceptional cases a slightly higher multiplier may be chosen to offset for the inflation. (See Cookson (supra) - Taylor v. O'Connor (1970) 1 All E.R. 365 (H.L.) - Gavin v. Wilmot Breeden Ltd. (1973) 3 All E.R.935 (C.A.) - Poullou v. Constantinou (1973) 1 C.L.R. 177 - Owens v. Brimmell

(1976) 3 All E.R. 765 - Karaolis and Another v. Charalambous and Another

(1976) 9 J.S.C. 1414).

Having regard to all relevant considerations a multiplier of 1 2 should be adopted and we so decide. [*401]

The task of discerning future losses that plaintiff is likely to suffer because of the after effects of his injuries is complicated by the fact that the present earnings of plaintiff in the United Kingdom are not a real guide to what his earnings would be in Cyprus. We have evidence as to how much he could he expected to earn if he was employed as a builder in Cyprus and we could certainly assume he would be a thoroughly accomplished builder by now and the earnings enjoyed by persons doing work comparable to that he is doing in the United Kingdom. We could legitimately assume that notwithstanding his incapacity the plaintiff would, if he took proper steps in that direction, improve his skills and not remain a shop assistant for the rest of his life. We have evidence earlier referred to as to the difference between the earnings of a builder and a shop assistant but we shall not take that evidence on its face value and shall attempt to make a reaslistic assessment of future losses of plaintiff resulting from his partial incapacitation. A fair estimate of such loss at present would be £400 a year and we so adjudge. Also some provision must be made for future medical expenses notwithstanding the absence of precise evidence on the subject, a fair estimate of which would be the sum of £2,000. Judgment is given for the plaintiff against defendant 1 , if our arithmetic is right, for C£7,127.500 mils, with costs to be assessed by the Registrar. The case against defendant 2 is dismissed, with costs.

Judgment against defendant 1 for C£7,127.500 mils. Case against defendant 2 dismissed. Order for costs as above.