Employer held liable for worker's injury in dark brick factory; plaintiff found 20% contributorily negligent.

[*125] 1983 July 30

(FR. NICOLAIDES, AG. S.D.J. )

IN THE DISTRICT COURT OP LIMASSOL

Efstathios Savva,

Plaintiff,

v.

Keramion Limassol Ltd. ,

Defendants

(Action No. 1457/81).

Master and servant - Safe system of work - Duty of master to provide a safe system of work - Principles applicable

- Brick factory - Labourer injured when his foot was caught in an empty space between the rows of bricks and whilst proceeding to switch on the lights - Injury something which could easily be forseen - Employers held liable in negligence - Plaintiff guilty of contributory negligence to the extent of 20% because he knew that empty spaces were left between the rows.

Damages - Mitigation - Duty of plaintiff to mitigate his damages - Personal injuries - Doctor granting sick-leave without examining the plaintiff - Period of sick-leave unreasonable.

Damages - General damages - Personal injuries - Fracture of the lower end of the left tibia - Award of £2,250.

JUDGMENT

The following judgment was delivered by:-

FR. NICOLAIDES. AG. S.D.J.:- In the present [*126] action the Plaintiff, who is an employee of the Defendants, slaims

against the Defendants special and general damages for injuries he sustained in an accident which took place on 4.12,80 in the course of his employment due to the Defendants' negligence.

The Plaintiff in giving evidence alleged that on the day of the accident he started working at 5 a.m. It was still dark and it was necessary for the lights to be switched on so that the labourers could start working. At the place where the accident occurred there were bricks piled up in cubes.

The light-switches were on poles and when the plaintiff went to switch on the light of the area where he was going to work, he realised that the workers on the previous day piled the bricks in such a way as not to allow a free passage towards the switch. It was the practice for the bricks to be piled up in such a way as to allow a corridor through which access to the light switch was possible. According to the allegation of the plaintiff, he informed the foreman that there was no passage leading to the switch but the foreman left urgently.

The Plaintiff climbed on the cube of bricks and proceeded slowly towards the pole with the switch. Unfortunately in the process his foot was caught in an empty space between t he rows of the bricks and it was broken.

P.W, 1, Philaretos Christodoulou, a colleague of the Plaintiff, confirmed that it was necessary to put the lights on in order to start work. He said that even at midday artificial lighting is necessary. He further said that as soon as they started working they heard the plaintiff shouting and when the [*127] witness and a number of other labourers approached the plaintiff they saw him sitting on the cube of bricks, in the dark, holding his foot which was in an empty space between the rows of the piled bricks. The witness confirmed that there was no other way by which the plaintiff could switch on the light unless by climbing on the cube. He also said that the cubes of bricks were piled up the day before by other workers as the plaintiff was engaged elsewhere. He said that the bricks were piled up by young workers who did not know how to do the work and therefore, they failed to leave a corridor through the bricks towards the pole with the light switch. When they approached, the foreman was not present. The evidence of P.W.1 was confirmed by P.W. 2, Christodoulos Demetri, another labourer who together with the previous witness went to help the plaintiff when they heard him shouting for help. The witness also confirmed that the cube of bricks was not constructed by the plaintiff but by young and inexperienced workers.

It should be noted that the plaintiff alleged that it was not his job to switch on the light and therefore, he asked some of the young workers to do it but they refused. He alleged further that the foreman ordered him to switch on the light and when the plaintiff asked for a torch-light the foreman left without supplying him with one. According to the plaintiff the empty space between the rows of bricks was not visible although it was 6" wide. An empty space, as the one in which the foot of the plaintiff was caught, is left in every cube in order to facilitate the removal of the bricks with the forklift. Before his foot was caught in the said empty space the plaintiff passed over a number of other empty spaces. [*128]

For the Defence, the only evidence as to how the accident occurred comes from D.W.l, Panayiotis Zambas, the foreman. He said that before the workers start their work they have to switch on the lights. On that particular day he shouted ”switch on the lights and start working” and then after seeing the plaintiff proceeding towards the lightswitch he left. He denied that he ordered other labourers to switch on the lights and that they refused. He also denied that the plaintiff asked him for a torch-light, The foreman did not witness the accident. When he returned, 15 minutes later, he was informed that the plaintiff was injured and noticed that the lights were on. In cross-examination he confirmed that the cubes were piled up around the pole with the light-switch and that the said cubes were constructed the day before the accident. He alleged, however, that the cubes were constructed by the Plaintiff together with two or three co-labourers. Continuing, however, he admitted that he could not remember what the plaintiff was doing the day before. To a straight question suggesting that the cubes were not constructed by the plaintiff who at the time was engaged in another part of the factory, he answered that he could not remember.

Factually the case presents little difficulty. In fact the differences between the version of the plaintiff and that of the defendants are minor ones. It is a fact that the bricks were piled up in such a way as to prevent any person from switching on the lights. It is also a fact that artifi - cial lighting was necessary for the work to commence.

The only questions are, whether the plaintiff was one of the persons [*129] who constructed the cubes and whether the plaintiff was ordered to

switch on the lights or not. Another minor question is whether the plaintiff asked for a light-torch or not.

I have examined with the utmost care the evidence before me and having done so, I find that the true facts of the case are as follows:

There was no way for the plaintiff to switch on the lights unless he would climb on the bricks, as he did. I also find that the bricks were piled-up by other workers without the help of the plaintiff. The version of the plaintiff on this issue is corroborated by the evidence of two other witnesses. In the contrary, D.W.l, could not safely say where the plaintiff was working there the day before the accident. I have certain doubts whether the plaintiff was ordered personally to switch on the lights and in-this respect I believe the evidence of the foreman who testified that he gave a general order to all the workers to switch on the lights, I entertain the same doubts as regards the allegation of the plaintiff that he asked for a torch-light.

Before proceeding any further, I find it pertinent to examine the legal aspect of the case.

The principle is that an employer has a duty to take reasonable care and so to carry on his operations as not to subject those employed by him to unnecessary risk (see Smith v. Baker & Sons

(1891) A.C. 325 )

In Harris v. Brights' Asphalt Contractors Ltd., Allard & Saunders Ltd., (1953) 1 All E.R. 395, Slade J. said at p. 397: [*130]

"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. I am prepared to approach this case on whichever of those definitions imposes the lowest duty on the defendants."

In Hicks v, British Transport Commission, (1958) 2 All E.R. 39, it was also said at p. 49:

"Whether the risk is such that a prudent employer exorcising reasonable care should take steps to guard against it depends on a number of considerations - certainly on three: first, whether such an employer could reasonably foresee the risk of accident to an employee; secondly, if so, the degree of injury likely to result; and, thirdly, the nature of the precautions necessary to guard against that risk. If no precautions can guard against the risk, then it cannot be said to be an unnecessary risk. Equally, if the precautions involve great expense, that is to be put into the scale and weighed with the other considerations.”

(See also Savvas Athanassiou v. Attorney-General of the Republic. (1969) 1 C.L.R. 163: Nicos Panayi v. Georghios S. Galatariotis & Sons Ltd. (1971) 1 C.L.R. 416). [*131]

The duty of the employer to provide a safe system of work is not an absolute one. The employer is not bound to provide a system as safe as it can possibly be made, but a reasonably safe system and the precautions taken must be proportionate to the risk involved (Roberts v. Dorman Long & Co. Ltd. (1953) 2 All E.R. 428; General Cleaning Contractors Ltd. v. Christmas, (1953) A.C. 180).

The duty of an employer to his servants at Common Law is discussed in Charlesworth on Negligence, 6th edn. p. 6l8:

"....It is a single personal duty, which is nondelegable, and the importance of this feature is that the employer must see that care is taken by all those persons engaged by him. It is insufficient merely for him to take care himself. Lord Oaksey expressed his opinion that: 'The duty of an employer towards his servant is to take reasonable care for the servant's safety in all the circumstances of the case’. It has also been described as 'the duty of taking reasonable care '...so to carry on his operations as not to subject those employed by him to unnecessary risk. Lord Keith opined that the ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules of formulas must be taken subjéct to this principle.' ''

In Charalambous v. Gargour & Co. (1980) 1 C.L.R., 138, Hadjianastassiou J. said at p. 142: [*132]

"Time and again it was said that a master is under a duty, arising out of the relationship of master and servant, to take reasonable care for the safety of his workmen in all the circumstances of the case (see Wilsons and Clyde Coal Co. v. English (1938) A.C. H.L., at p. 84) not to expose them to unnecessary risk. The duty to exercise reasonable care is, however, one which is personal to the master, and if he entrusts its performance to a servant, agent, or it seems an independent 1 * contractor, he is vicariously liable for any negligence on the part of the person so appointed in performing the duty. The master’s duty to take reasonable care so to carry on his operations as not to subject his servants to unnecessary risk, is a single duty applicable in all circumstances (see Paris v, Steoney Borough Council (1951) A.C. H.L., 367 at p. 384),- and has an obligation to provide a proper system and effective supervision as well as to provide a reasonably safe place of work."

And in Winter v. Cardiff Rural District Council, (1950) 1 All E.R. 819, Lord Porter said at p. 822:

"The duty cast on the master is, of course, not absolute, but only to do his best to fulfil the obligation imposed on him, though, indeed, a high 2 standard is exacted. As the law stands, that duty must be considered in relation to the circumstances of each particular case, and the question to be answered is whether adequate provision was made for the carrying out of the job in hand under the general [*133] system of work adopted by the employer or under some special system adapted to meet the particular circumstances of the case."

In Colfar v. Coggins & Criffith (Liverpool) Ltd. (1945) A.C. 197, it is stated that:-

"...in these cases the plaintiff must allege and prove specifically what is the defect in the system of which he complains. In other words, it is not sufficient that the system adopted was in fact unsafe, he must show something which could reasonably have been done or omitted which would have made the system reasonably safe and that this failure was the cause of the accident.”

(See also Ioannou & Paraskevaides Ltd. v. Christos Neocleous, (1973) 1 C.L.R. 141; Cyprus Trading Corporation Ltd. v. Costas Chimonas, (1975) 1 C.L.R. 211; Christos Pericleous v. Comarine Ltd. and Another, (1977) 1 C.L.R. 315; Georghiou v. Planet Shipping Co. Ltd. (1979) 1 C.L.R. 188).

The duty of the employer to provide a safe system of working is not absolute, but only to do his best to fulfil the obligation imposed on him, though, indeed, a high standard is expected. That duty must be considered in relation to the circumstances of each particular case, and the question to be answered is whether adequate provision was made for the carrying out of the job in hand under the general system of work adopted by the employer or under some special system adapted to [*134] meet the particular circumstances of the case. It is always a question whether the negligence complained of is the failure of the employer to inaugurate and maintain a safe system or the casual departure from that system as the result of the negligence of an individual fellow workman. The difference is between a case where sufficient and adequate provisions have been made, which will, if carried out protect the workman unless one of his fellows does not use proper care in carrying out the system, and a case where the system itself makes no such provision. The duty of the employer is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not. méan that the employer must decide on every detail of the system of work or mode of operation, Where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently it is natural and reasonable that it should be left to the foremen or workmen on the spot. 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 [*135] employer's obligation to take reasonable steps for the safety of those employed on the task.

In Winter v. Cardiff Rural District Council, (1950) 1 All E.R. 819, Lord Oaksey said at pp. 822-823:-

"In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decile on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. It is not easy to define these spheres, but where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple, and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot." [*136]

In Georghios Tziellas v. The s hip "Nadalena H" and Others, (1982) 1 C.L.R. 867, Pikis J. said at pp. 815-817:

"Under the common law, an employer owes a duty to his employees not to expose them to unnecessary risk at work. A risk is unnecessary if foreseeable and reasonably avoidable by taking appropriate precautions. The law reports abound with cases establishing the extent of the duty and illustrating its application. (See, Yiangos Christodoulou v. Pantelis Angeli (1968) 1 C.L.R. 338; Athanassiou v. A-G (1969) 1 C.L.R. 160; Foulder v. Canadian Pacific Steamships (1969) 1 All E.R, 283; Kykon Ltd, v. Demetriou and Another (1982) l C.L.R. 453).

As technology advances and safety devices and apparatus become available in increasing numbers, the easier it becomes to foresee risks and eliminate them. (See, Vassiliko Cement Works v. Stavrou

(1978) 1 C.L.R. 389; McCafferty v. Metropolitan Police Receiver,

(1977) 2 All E.R. 756 (C.A.)). So, while the duty of the employer remains the same, the range of risks that are foreseeable increases, and the means of preventing multiply. Consequently, the employer is in fact expected to guard against a greater variety of risks.

Among the first duties of the employer is to ensure safety at work, so that the place of work is [*137] as safe as it might be reasonably rendered, that, in turn, includes safe passage from and to the actual site of work..... The duty to take reasonable care for the safety of the worker remains unabated; but the performance of it will vary with the circumstances of each case. The duty of care extends to any system adopted to carry out the employer's work. It is not limited to the settled methods of doing the employer's work. (See, Elia v, Progress Shipping and Others (1978)

1 C.L.R. 332). Further, the duty of the employer extends to providing safe means of access to one's work within the place of employment, as well as getting to it. (See, Charlesworth on Negligence, it “6th ed., para. 1043, where the case-law on the subject is reviewed.) In determining whether the employers discharged their duties, relevant is the question of the individual safety requirements of workers in order to gain access to their place of work. (See, Emney, v. Chipperfields Ciecus and Zeo, The Times, Oct. 17, 1961). The pertinent question is whether the employers are guilty of a breach of their duty to the Plaintiff in failing to supply safe means of access to his work. We can safely draw the inference, as already stated, that the ladder was defective in view of its breakdown, in the absence of any interference with it. The Plaintiff was required to approach the site of his work by the means of the defective ladder, by the foreman of Limaship. Therefore, he had little choice but to obey the instructions of his master. It [*138] is well settled that such instructions need not be issued by the master himself. The master will be held liable so long as the instructions are issued by a subordinate with ostensible authority to issue such instructions. (See, Tsopanis v. Ayraam (1978) 1 C.L.R 27)".

(See also The Cyprus Palestine Plantations Co.Ltd. v. Kalliopi Leandrou (1 982) 1 C.L.R.880; Kakou v. Adriatica and Another (1 980) 1 C.L.Ro 357; Perentis v. General Constructions, (1981) 1 C.L.R. 1; Kyriacou v. Eliades (1981) 1 C.L.R. 373; Charalambous v Metalco Ltd (1982) 1 C.L.R, 636 where our Supreme Court dealt with the duty of the employer to provide a safe system of work).

The whole question is also connected with the issue of contributory negligence of the plaintiff The principles of contributory negligence were expounded many times and I need not repeat them (here (see inter alia, Tessi Christodoulou v. Nicos Savva. Menlkou and Others (1966) 1 C.L.R 17) .

A person 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 hurt himself. (See Ali Riza Omer v. Ioannis Pavlides and Another (1971 ) 1 C.L.R. 404).

On the issue of contributory negligence, Pikis, J. had this to say in Kykon Ltd., v. Michael Demetriou and Another (1982) 1 C.L.R 453 at 458,459: [*139]

"Contributory negligence lies in failure to take appropriate precautions for one's safety, What precautions are necessary for one’s safety, is a matter of fact and degree. As with negligence, foreseeability is the guide to determining whether 5 the plaintiff has taken appropriate precautions for his safety. An element of fault and a degree of blame must attach to plaintiff, consisting of failure to take appropriate precautions for his safety, before a finding of contributory negligence is justified. We may remind that the tort of negligence is designed as a code of reasonable conduct. What is reasonable in the given circumstances of a case, is a matter of fact and degree. The facts must, in each case, be judged with common sense and experience as a guide. As the Supreme Court pointed out in Nicolaou and Another v. Constantinides (1969) 1 C.L.R. 117, treading along the lines of what was said in Glasgow Corporation v. Meir (1943) (A.C.) 448, what is reasonable may vary from case to case depending 2C on the risk involved and the magnitude of the prospective injury. But what happens when the plaintiff had voluntarily undertaken the risk?

In Smith v. Charles Baker & Sons, (1891) 60 L.J.Q.B.D. 683, Lord Watson explaining the maxim volenti non fit injuria said at p. 693: [*140]

"The only question which we are called upon to decide, and, I am inclined to think, the only substantial question in the case, is this, whether, upon the evidence, the jury were warranted in finding, as they did, that the plaintiff did not ’voluntarily undertake a risk employment with a knowledge of its risks’. Whether the plaintiff appreciated the full extent of the peril to which he was exposed, or not, it is certain that he was aware of its existence, and apprehensive of its consequences to himself; so that the point to be determined practically resolves itself into the question whether he voluntarily undertook the risk? If, upon that point, there are considerations pro and contra, requiring to be weighed and balanced, the verdict of the jury cannot be lightly set aside. The defendant’s case is that the evidence is all one way; that the plaintiff’s continuing in their employment, after he had become aware and had complained of the danger, of itself affords proof absolute and conclusive of his having accepted the risk of a stone falling in the course of its transit from the quarry to the loading bank".

And he goes on at p. 694:-

"In its application to questions between the employer and the employed, the maxim, as now used, generally imports that the workman had either expressly or by [*141] implication agreed to take upon himself the risks attend#t upon the particular work which he was engaged to perform, and from which he has suffered injury. The question which has most frequently to he considered is not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his master’s. When, as is commonly the case, the incidence of the risk is left to implication, the workman cannot reasonably be held to have undertaken it, unless he knew of its existence, and appreciated, or had the means of appreciating, its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the workman’s connection with it, as well as upon other consideration which must vary according to the circumstances of each case".

In Bowater v. Rowley Regis Corporation, (1944) K.B. 476 Lord Goddard said at p. 480:

"The maxim 'volenti non fit injuria’ is one which in the case of master and servant is to be applied with extreme caution. Indeed, I would say that, it can hardly ever be applicable where the act to which the servant is said to be ’volens’ arises out of his ordinary duty, unless the 2 work for which he is engaged is one in which danger is necessarily involved. Thus, a man in an explosives [*142] factory must take the risk of an explosion occurring in spite of the observance and provision of all statutory regulations and safeguards. A horse-breaker must take the risk being thrown or injured by a restive or unbroken horse. It is an ordinary risk of his employment. A man, however, whose occupation is not one of a nature inherently dangerous but who is asked or required to undertake a risky operation is in a different position. To rely on this doctrine the master must show that the servant undertook that the risk should be on him. It is not enough that, whether under protest or not, he obeyed an order or complied with a request which he might have declined as one which he was not bound either to obey or to comply with. It must be shown that he agreed that what risk there was should lie on him. I do not mean that it must necessarily be shown that he contracted to take the risk, as that would involve consideration, though a simple way of showing that a servant did undertake a risk on himself would be that he was paid extra for doing so, and in some occupations ’danger money’ is often paid”.

In Emir Ahmet Djemal v. Zim Israel Navigation Co. Ltd. (1967)

1 C.L.R. 227, it is said at p. 244:

"With regard to the first contention of counsel, I think it will be convenient if I reiterated that the maxim of res ipsa loquitur is not a rule of law. It is not more than a rule of evidence affecting onus. It is based on common sense and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant [*143] are on the outset not known to the plaintiff and are or ought to be within the knowledge of the defendant. See Barkray v. S. Wales Transport Co. Ltd., (1950) 1 All E.R. 392 at p. 399 per Lord Normand. ”

And at pp. 247, 248:

"It appears to me that the proposition upon which the case for the defendants has been argued must be a far wider one .than is involved in the maxim volenti non fit injuria. I think they must go to the extent of saying that wherever a person knows that there is a risk of injury to himself, he debars himself from any right of complaint if an injury should happen to him in doing anything which involves that risk; and if applicable to the extent that counsel has invited the Court to accept, no person ever would have been awarded damages for being run over in the streets. There is, of course, ample authority that rare knowledge of the risk does not necessarily involve consent to the risk because as it was aptly stated the maxim is not scienti non fit injuria, but volenti non fit injuria."

As a result, I find that the Defendants failed to take reasonable care as. not to subject the plaintiff, their employee, to unnecessary risk. The injury to the plaintiff could be easily avoided if the defendants' servants had left a corridor so that the lights could be easily switched on. [*144]

It may be said that the accident was due to a casual departure from the ordinary system of work as a result of the negligence of an individual fellow workman.

Nevertheless the injury of the plaintiff was something which could easily be foreseen as it was obvious that by t he failure of the defendants or their servants to leave ample space between the bricks for the workers to be able to reach the light-switch would make it necessary f or anybody intending to put on the lights to climb on the cube of bricks inspite of all the risks involved. A small precaution was .enough for the risk to be avoided. All that it was needed was the supervision of the inexperienced workers who constructed the cube at no extra cost.

Of course, the plaintiff is not blameless. He was working with the defendants for some time and he knew that empty spaces were, as a matter of practice, left between the rows. He admitted so himself and he ought to take all necessary precautions to avoid injury to himself. Therefore, I find that the defendants are 80% to blame and the plaintiff 20%.

I shall now proceed to examine the issue of special and general damages-.

The

medical fees amounting to £130 are not disputed. What was hotly disputed was the loss of earnings. The plaintiff and his

treating doctor alleged that he remained out of work for thirteen and a half months; the reason was that the plaintiff developed osteoporosis which is a complication due to long term immobilisation of his leg in plaster. Evidence was [*145] adduced on behalf of the plaintiff to the effect that 'at the material time and during his absence from work, his net wages would be £32.170 mils per week. Nevertheless, as in the Statement of Claim it is alleged that the plaintiff' was earning £30 per week, I cannot award to the plaintiff' more than that. The first question that must be answered is for how long the plaintiff remained out of work and whether such period 'was reasonable.

As I said earlier, it is in evidence that the plaintiff remained out of work for thirteen and a half months. Dr. Zemenides testifying for the plaintiff, said that the plaintiff’s treatment was completed on 28.5.81 and since that day no further treatment was offered to the plaintiff. The witness said that merely he was issuing sick leave certificates and was simply advising the plaintiff. The witness admitted that when the plaintiff was visiting him from time to time asking for the issue of sick leave certificates, the doctor without examining him and based on the complaints of the plaintiff that he was still in pain, was issuing the said sick certificates. He further said that as regards osteoporosis some movement of the injured part helps. On the other hand, Dr. George Tornaritis who testified on behalf of the defence, stated that when he examined the plaintiff he was aware of the medical report issued by Dr. Zemenides and that having in mind the plaintiff’s injuries, i.e. that his foot remained in ; plaster for three months, the period of time which is required for recovery is about two months, but due to the existence, of osteoporosis

possibly the plaintiff would need three to four [*146] months. In other words, Dr. Tornaritis estimated that in six to

seven months from the date of the accident the plaintiff had recovered and was able to return to his work. The witness further stated that osteoporosis can only be diagnosed by Rays, and that a mere clinical examination of the patient is not enough. The doctor found the period between 23. 3.81 and 23. 6.81 for which Dr. Zemenides granted sick leave, unreasonable .

In view of the above and especially having in mind that periods of sick leave were issued repeatedly by Dr. Zemenides without examining the plaintiff - although even a clinical examination would reveal, according to Dr. Tornaritis, nothing material as regards osteoporosis

- and in view of the obligation of the plaintiff' to mitigate his damages, I find that the plaintiff was entitled to sick leave until the 4th August 1981, i.e. seven months after the accident. Therefore, the plaintiff is entitled to loss of earnings for 31 weeks at £30 per week totaling to £930.

It is in evidence that the plaintiff was entitled to an annual leave of 14 days had the plaintiff worked the whole year, but as the plaintiff is entitled to only 31 weeks of earnings, the above benefits (i.e. the annual leave and the 13th salary) should be calculated proportionately. In view of the above and after making the necessary mathematical calculations, I find that the plaintiff is entitled to another . £42.500 mils for his annual leave and £85 for his 13th salary.

As a result, I find that the plaintiff is entitled to the total sum of £157.500 mils for Ioss of earnings annual leave [*147] and 13th salary, plus £131 medical fees, thus making the total of special damages to which the plaintiff is entitled to £1,l88.500mils.

The Plaintiff’s injuries consisted of a fracture of the lower end of the left tibia, The fracture was immobilised in plaster till the end of February, 1981. After the removal of the plaster he was treated .with physiotherapy and anabolic .Injections of calcium. Dr. Tornaritis in his medical report (Exh. 3) found the following:

1. No limitation of the range of motion of the left ankle.

2. No muscle wasting of the left thigh or calf.

3. 0.5 cm. circumferential thickening of the left ankle.

4. Squatting is possible, but. uncomfortable if sustained.

5. Can stand in tip-toe.

6. X-rays of the left ankle show good consolidation of the fracture; some degree of osteoporosis appears to be still present.

The fracture has well consolidated although the plaintiff developed disuse osteoporosis which is described as a frequent happening after prolonged immobilization. This osteoporosis delayed his recovery. He had to put up with a fair amount of pain and suffering, but he made good progress [*148] and the functional result is quite satisfactory with joint motion and muscle volume back to normal range. According also to Dr. Tornaritis, the plaintiff may still experience occasional aching after prolonged standing, but further improvement is most likely, both, as far as the pain is concerned, as well as in his endurance to prolonged standing.

On the other hand, Dr. Zemenides in his report dated 9th June, 1981 states that the plaintiff’s symptoms will continue for considerable time, possibly for as long as two years from the date of the report, which will deteriorate with fatigue, standing and changeable weather.

Having examined the medical evidence before me with the utmost care and having in mind the comparable awards in other cases, I decided that an amount of £2,250 is a just and fair compensation as general damages. Adding to the above the sum of £1,188.500 mils already estimated as special damages, I find that the plaintiff is entitled to a total sum of £3,438.500 mils on a full liability basis. However, as I found earlier that the plaintiff is 20% to blame, a proportionate deduction from the above sum shall be made.

In the result, judgment is given in favour of the plaintiff and against the defendants in the sum of £2,750, with costs on the appropriate scale, as will be assessed by the Registrar.

Judgment for £2,750- in

favour of plaintiff with costs.