Employer liable for negligence in unfenced machine; worker 25% contributorily negligent for ignoring obvious danger.

[*253] 1982 April 2

(ARTEMIDES , AG. P .D .C . )

IN THE DISTRICT COURT OF NICOSIA

Neophytos Theodossiou,

Plaintiff,

v.

Dermaplast Industries Ltd.,

Defendants.

(Action No. 2693/80).

Negligence - Master and servant - Factory worker - Injured whilst cleaning unfenced cylinders of machine - Employers failed to protect him from an obvious danger by fencing the machine - Liable in negligence - Worker guilty of contributory negligence to the extent of 25%.

G. Platritis, for the Plaintiff.

A. Timothi (Mrs.), for St. Ambizas, for the Defendants.

JUDGMENT

The following judgment was delivered by:-

ARTEMIDES , AG. P .D .C . :- The plaintiff,[* 254] a young man of twenty, was employed in the factory of the defendant company. During his employment he was involved in an accident for Which he claims damages. The undisputed facts of the case are the following:-

On 12.12.1979 the plaintiff was engaged in his appointed job by a big machine which is used for painting the surface of dermaplast i.e. artificial leather. The working of this machine has been described to me by the plaintiff himself as well as Nicos Kyriakides and Demos thenis. Savva, two other employees of the defendant company engaged at the time at the same machine with the plaintiff. The best however illustration regarding the working and the shape of this machine emanates, from the evidence of Simos Charalambides P.W.2, a factory inspector at the Ministry of Labour and Social Insurance. He has also produced in Court an explicit drawing of the machine. (See Exhibit I).

The machine consists mainly of five cylinders. The roll of leather which is placed at its base rotates upwards to rthe first two cylinders, which are placed one on top of the other, and then from those two cylinders it proceeds to three others which are positioned parallel to each other. The leather moves to the spot where it is painted. The machine is electrically operated.

It was the duty of the plaintiff to stand between the last two cylinders and clean the surface of the leather from papers, threads or other extraneous material before it [*255] would proceed to the painting mechanism. He was doing, this by raising his hands and detaching those materials from the surface of the leather.

Usually that machine was being operated by at least three persons; the first one standing at the one end of the machine, the other at its: other and the third in between the two. It is not disputed that Nicos Kyriakides D.W.I., left his spot in order to attend to some other business in the factory, as he himself has said, whilst Demosthenis Savva D.W.3, said that Kyriakides had gone to the toilet. The plaintiff was attending to the cleaning of the leather and when he raised his right hand to detach a piece of paper from its surface his hand was caught in between the third rotating cylinder on the line and the moving leather. When his hand was thus caught he was raised by one to two feet from the ground and had started shouting. Demosthenis Savva rushed to switch off electricity from the machine. When he did that and the machine had stopped they helped the plaintiff to free his hand from in between the cylinder and the leather. He was then transported to the Nicosia General Hospital.

It is the plaintiff’s allegation that the defendants are liable to him for his injuries because they had failed to take adequate precautions against the apparent possibility of an accident like the one that had occurred to him.

Simos Charalambides, the factory inspector to the [*256] Ministry of Labour and Social Insurances has supported beyond any doubt the allegation of the plaintiff with regard to the adequate precautionary measures that the defendants should and could have taken to guard against an accident such as the one that had occurred to the plaintiff. Mr. Charalambides, testified in Court that the defendants could have placed a prophylactic fence in front of the cylinders so that the employees would clean the surface of the leather at a spot before it would reach the fence; thus their hands would not come into contact with the cylinders. Mr. Charalambides has placed on Exhibit I the fence to which he has referred and this has been marked by me with letter 'A'. The witness further said that he had visited the factory of the defendants on two occasions and had suggested and indicated to them as well the way they could fence those cylinders. At the beginning there was some discussion between him and the defendants as to where and how that fence would be placed but on his second visit he had suggested to them what they could do. Although the Ministry has sent no formal warning to the defendants, Mr. Charalambides maintained that he was explicit when giving to them the instructions with regard to the fencing of the cylinders.

On thisundisputed evidence I find that the defendants have failed to protect the plaintiff from an obvious danger by fencing the cylinders of the machine, a measure which was easy and negligible in expense to be taken. [*257]

It is common ground, that the leather was moving on the machine at some speed, i.e., 60 to 70 metres of length per minute and although this speed was reduced when the leather was being cleaned by the employees, it seems that if this was done every time they had to clean it the speed of the machine would have been reduced one to two thousand times a day, as Demosthenis Sa vva has said. That obviously was against the interest of the defendants, something that Nicos Kyriakides has conceded too.

The switch of the machine was placed at its starting point, that is, where Nicos Kyriakides was standing. When he had left to attend some other business in the factory, he took no steps to be replaced by another employee and thus the machine was being operated by the plaintiff and Demosthenis Savva only. In view of this the plaintiff had to work more carefully and speedily in cleaning up the leather and whilst trying to cope with his job the accident occurred.

There can be no doubt, and I so find, that the defendants are liable to the plaintiff.

I shall not say much on the principles of law in regard to employer's liability which are by now well settled. I shall only refer to the well-known case of Morris v. West Hartlepool Navigation Co., Ltd. (1956) I All E.R. page 385., where Lord Reid said the following which has since then been reiterated in a score of cases. (Page 399:-)

"Apart from cases where he may be able to rely on [*258] an existing practice, it is the duty of :an employer, in considering whether some precaution should be taken against a foreseeable risk, to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and on the other hand the difficulty and expense and any other disadvantage of taking the precaution. Here the likelihood of an accident may have been small, but at least it was sufficient to prevent the respondents from maintaining that the accident could not have happened without the appellant being negligent. And the consequences of any accident were almost certain to be serious. On the other hand, there was very little difficulty, no expense and no other disadvantage in taking an effective precaution. Once it is established that danger was foreseeable and, therefore, that the matter should have been considered before the accident, it appears to me that a reasonable man weighing these matters would have said that the precaution clearly ought to be taken."

The next issue with which I have to deal is that of contributory negligence in view of the fact that there is such an allegation in the statement of defence put in the alternative. The defendants allege that the plaintiff was instructed not to put cellotape on the cylinder because that was a job which Kyriakides and Savvas were appointed [*259] to do. They maintain that the accident occurred when the plaintiff, acting against those instructions, tried to put cellotape on the cylinders.

There is no evidence that the plaintiff sustained the injury whilst trying to put cellotape on the cylinders and I have no doubt that his own version is the correct one. Nicos Kyriakides was not present when the plaintiff met with his accident and Demosthenis Savva said that he simply saw the plaintiff trying to put the cellotape on the cylinder and simultaneously he heard him shouting; he did not in fact see whether the accident happened whilst he was putting the cellotape.

I do not believe on this issue the evidence of Savvas and I have no doubt that he said this in an endeavour to help his employers. The plaintiff, however, a young man of twenty, should have appreciated the danger his duties were entainling and he should have been very careful whilst carrying them out. As I have said earlier on the leather was moving fast on the cylinders which were obviously without any prophylactic fence and therefore he should .have been careful whilst detaching the papers and particularly avoiding his hands being very near to the moving cylinder. I find that this contribution to his accident was to the degree of 25%·

I now turn to examine the issue of special and general damages. The defendants have not adduced any evidence to challenge the testimony of Dr. Stylianos Georghiou. [*260] Dr. Georghiou, posted at the Nicosia General Hospital, attended to the wounds of the plaintiff. On admission the plaintiff was found to be suffering from a fracture of the lower third of the radial bone, sub-laxation of the radioulnar articulation of the right upper end and severe shock. Under general anaesthesia an operation was made to fix the fracture and the dislocation and a plaster was applied. The operation was not successful and on 17.12.1979 the plaintiff, again under general anaesthesia, was operated upon and this time a plate and nails were affixed on the injured bone. Plaster was again applied for the fracture and dislocation and the plaintiff was released from hospital on 22.12.1979· He was followed as an outpatient for ten weeks and the plaster was removed in the end of that period.

The present condition of the plaintiff is the following; the contraction and extension movements of the elbow joint are by 10% less of the normal and there is an obvious sign of a wound on the radial surface of the right hand 8 cm. long. The plaintiff was granted sick leave from 12.12.1979 to 3O.4.198O. His weekly salary was £23·- but he could earn more by working overtime. The plaintiff says that he was earning £7·- a week overtime, thus his total weekly emoluments were £30.- per week. He has received £60.- from the social insurance and his loss of wages until 30.04.1980 was £300.- In my judgment he has proved sufficiently this item and he is entitled to the above sum. The evidence adduced on the other small items in the statement [*261] of claim has been vague and unreliable. The special damages to which the plaintiff is entitled is, therefore, the sum of £300,-

Having taken into account the injury the plaintiff has suffered, for which according to the medical evidence he will have to undergo another operation for the removal of the plate and the nails, as well as the partial incapacity he has on his right hand in some of its movements and the scar that is quite visible on it, I think that the sum of £1,000.- would justly compensate him. In arriving at the above figure I have also borne in mind the fact that the plaintiff is a bouzouki player and though I have not been satisfied that he will have any loss of earnings because of this, yet his pleasure in playing his favourite instrument will in a way be partly affected for some time in the future.

In the restult there will be judgment for the plaintiff for £975·-, i.e., 75% of £1,300.- with costs to be assessed at the appropriate scale by the Registrar.

Judgment for £975.- with costs.