078-NLR-NLR-V-44-ARNOLIS-HAMY-Appellant-and-ALAGAN-Respondent.pdf
DE KRETSER J.—Arnolis Hamy and Alagan.
303
1943Present: de Kretser J.
ARNOLIS HAMY, Appellant, and ALAGAN, Respondent.
207—-C. R. Hatton, 4,870.
Action for damages—Injury to workman—Action based on negligence—Contributory negligence of plaintiff.
In an action to recover damages for injury caused to a workman,which was based on the negligence of his employer, the plaintiff is notentitled to succeed, where he has himself been guilty of contributorynegligence.
^ PPEAL from a judgment of the Commissioner of Requests, Hatton.
H. W. Jayewardene, for defendant, appellant.
F. A. Tisseverasinghe (with him P. Malalgoda), for plaintiff, respondent.March 26, 1943. de Kretser J.—
The plaintiff is undoubtedly entitled. to much sympathy. He haslost four fingers of his left hand and has endured pain and suffering andloss. It is not questioned that the damages are reasonable. But thefacts must be looked at quite dispassionately. The defendant is amason who had taken a contract some years ago to erect some buildingson an estate. He required stone for his work and apparently he wasallowed to take these from the estate. Plaintiff has been employedunder him for about five years and as far as one can see he was paid by'44/24
304.
DE KRETSER J.—Amolis Hamy and Alagan.
the quantity, i.e., at Rs. 5 per cube. .'His evidence that he was paid 60or 65 cents a day seems, to be clearly untrue. He got in the aid of hiswitness Adaikkan, paying him at Rs. 4.50 a cube. Adaikkan was notemployed by defendant but by the plaintiff, which suggests that plain-tiff had a free hand. One Bempy Singho was employed to break largeblocks of stone at Rs. 3 per hundred blocks. The work had gone forfive years at. least and plaintiff knew the conditions of work. He andBempy Singho had been warned to take all precautions. Others didsimilar work. The accident occurred on January 4, 1942. Plaintiffhad then been working on this particular job for five days. He hadbeen requested to break 20 cubes more. There is a suggestion that hewas to break small stones for concrete work, and plaintiff seems to haveaccepted it. It would be convenient for him to handle small stones forthis purpose. •
On January 2, defendant noticed that they had changed their venueof work and were working lower down a hill near a stream. Plaintiffsays it was a convenient spot to break small Stones for concrete work.The defendant advised them to work higher up where they had beenworking and where others also worked. Adaikkan says, “ The defendantdid not ask us to break metal at this spot, but higher up ”. This supportsdefendant’s evidence that he had told them to break near the roadhigher up. Adaikkan also says . that defendant told the plaintiff tobreak “ where there is room ”.
On the 3rd, according to Bempy, he told the plaintiff not to breakmetal at -that spot. This was not put to plaintiff or Adaikkan butBempy was a witness for plaintiff, and seems anxious to shift responsi-bility on to the defendant or else on to the superintendent. Accordingto plaintiff, on the 4th about midday the other labourers had gone fromtheir work but he and Adaikkan were still at work. Bempy came along,had a chew- of betel, fixed a handle to a hammer and went higher, up. -His mission was obvious. Adaikkan supports plaintiff, but Bempyplaces the meeting on the 3rd and alleges that he did not know the twowere at work at that spot at that hour. Adaikkan, who had just giventhe evidence I have stated, tried to bring himself into line by saying. that Bempy did not know they were there as he believed they had gonefor their meals. He could not say this unless Bempy had said so subse-quently or they had told him they were just going. He also says thatif they knew Bempy was breaking stones at the top they would not haveremained where they were. He had told the Police that he knew Bempjwas breaking stones on the hill. Quite clearly they knew but remainedin spite of advice to move elsewhere.*"
A biggish stone got dislodged and began to roll down the hill. Bempydoes not explain how it happened. When blocks had accumulatedthey used to be rolled down the hill, two men being posted to warnpeople and cries being raised as each stone started on its career. Thispractice ought to have been ‘ known to the plaintiff. On this occasionBempy called out. Plaintiff ' says he; heard “ someone ” shouting“ stone ”. Adaikkan Says he heard no shout. But though plaintiffheard the shout and ought to- have known what it meant, especially
DE KRETSER J.—Arnolis Hamy and Alagan.
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as he had seen Bempy go up the hill shortly before, hammer in hand,he does not say what lookout he kept and what steps he took to protecthimself. He made the significant statement in his examination-in-chiefthat he heard the shout of “ stone ” but could not hear more owing to thenoise of water. It looks like a qualification of a statement unguardedlymade or an apology for his own delay. Eventually the stone crushedhis hand. To the Police he said no one was to blame. Defendant saidthat though both Bempy and plaintiff were paid by the job he consideredthem his workmen. No pleading and no issue raised the question ofeither being an independent contractor but it finds a passing referencein the judgment and was one of the main points in appeal. The other wasthat both were employed in a common employment, and certain caseswere cited. No pleading nor issue had been raised on this questioneither and it finds no place in the judgment. It was urged that the workwas of a dangerous nature and defendant’s admission was relied upon.No issue had been raised on this point either. Defendant's admissionmust be taken at its proper worth: There would be danger in quitecommon types of work but the work may not be per se dangerous. Infact this work had gone on for a considerable time and there is no evidenceof a previous accident. As far as I can gather, small boulders would bebroken in situ. Possibly they occasionally got dislodged.
To the Police the plaintiff said Bempy was “ loosening ” stones.It is not clear whether this was before or after he had used his hammernor how the stones were loosened. I visualize stones being broken on ahill a little above a public road and passers-by being warned when stones,after being broken, were sent down. These stones would ordinarilycome to rest on the road and be transported from there. Plaintiffinstead of working above the road was working down near a streamto suit his own convenience.
The trial judge held that Bempy had been negligent in not providingfor the contingency of a stone slipping down, and he held that defendanthad given no instructions to plaintiff not to work there, but that evenif he had, he was still liable. Defendant petitioned for leave to appealand this was allowed and the appeal filed at the same time was heardtogether with the’application. Had I been satisfied with the judgmenton the facts I should not have given leave to appeal, and I do not propose .to discuss, questions of law now raised and of considerable difficultywithout a trial on proper issues.„
I shall accept the finding that Bempy was negligent and that he wasdefendant’s servant, and that defendant would bq prima facie liable, ,but I cannot accept the finding that plaintiff was not guilty of contributorynegligence. He had elected to use his freedom of choice and to workwhere he did in spite of being advised not to do so. He had been advisedwhere to work, and to work where there jvas space : apparently wherethe possibility of accidental injury would be avoidable. He knew, whatBempy was doing but continued with his work. He “had heard the shoutof warning, he ought,to have known what it meant, but he was not alertand did not take shelter, apparently trusting to the stone npt coming ’his way or waiting till too late. The final cause-of his injury was hisneglect to take an elementary precaution. It is not surprising he said
306 KEUNEMAN J.—Abdul Cafioor and Municipal Council, Colombo.
at once that no one was to blame. Plaintiff may have his remedy underthe Workmen’s Compensation Ordinance, but I do not think he is entitledto succeed in an action based on negligence.
1 allow the appeal, set aside the decree and dismiss plaintiff’s actionwith costs of the action and of the appeal. I hope defendant will notrecover the costs awarded and that he will see to it that the plaintiff iscompensated.
Appeal allowed.