Astor Rowe v Seawell Air Services
| Jurisdiction | Barbados |
| Judge | Madam Justice Marguerite Woodstock-Riley |
| Judgment Date | 30 July 2009 |
| Neutral Citation | BB 2009 HC 35 |
| Docket Number | Suit No: 1399 of 2001 |
| Court | High Court (Barbados) |
Before the Honorable Madam Justice Marguerite Woodstock-Riley, Q.C., Judge of the High Court (Ag)
Suit No: 1399 of 2001
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Alrick Scott in association with Ms. Karen Prescott for the Plaintiff.
Mr. Elliott Mottley, Q.C. in association with Ms. Marilyn Moore and Ms. Lani Daisley for the Defendant.
The parties in this matter requested the court give its decision solely on the issue of liability. This decision was given on 30 th July 2009 and 1 undertook to give reasons for my decision at a later date. I do so now.
The Plaintiff was born on the 25 th September 1947. He gave evidence that he attended primary school and left secondary school in first form at the age of 14 and that he cannot read and cannot write well. He was employed with the Defendant Seawell Air Services from the 2 nd of July 1968 as a serviceman. His job involved lifting bags and freight, driving equipment such as the airline steps, the tractor taking baggage to the aircraft and a truck that goes to the aircraft to supply power.
The Plaintiff's Statement of Claim alleges that:
“Sometime on or about the 2 nd day of July 1998, while in the course of his employment, the Plaintiff was instructed to assist in lifting a paraplegic passenger onto a British Airways aircraft. Whilst so lifting the passenger, the Plaintiff'suffered a severe wrenching injury to his back.”
That the said accident was caused by negligence on the part of the Defendant its servants or agents in:
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(a) Failing to give any or any adequate instructions in safe-lifting techniques to be employed when lifting passengers.
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(b) Failing to provide an adequate number of staff to lift the passenger.
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(c) Failing to provide suitable or adequate mechanical hoists or lifting devices to enable the Plaintiff to lift the passenger without needing to do so manually.
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(d) Failing to warn the Plaintiff of the risk of injury to his back by lifting passengers.
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(e) Failing to have any regard to the weight of the passenger.
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(f) Failing to have any regard to the fact that lifting the passenger up the stairs was likely to involve unsatisfactory bodily movement or posture by the Plaintiff.
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(g) Failing to have any regard to the fact that the task involved holding the passenger at a distance from the Plaintiff's trunk.
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(h) Failing to employ staff to ensure the proper supervision of servicemen such as the Plaintiff when lifting passengers to ensure that good lifting practices were followed.
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(i) Failing to have any regard to the fact that the passenger was at approximately two hundred and fifty pounds or more and was bulky and unwieldy.
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(j) In the premises, the Defendant failed to provide the Plaintiff with a safe system of work, safe plant or equipment and thereby exposed him to an unnecessary risk of injury.
That the accident resulted in a severe injury to the Plaintiff's lower back. Radiological test revealed a herniated disc at L4-L5 with mild foraminal narrowing and borderline central canal stenosis. In addition a disc protusion was noted at the L5-S1 level. That, final medical reports on the Plaintiff's condition were not available and further particulars of the Plaintiff's injuries would be given at the stage of discovery.
In its Defence the Defendant admits that on 2 July 1998 the Plaintiff assisted in lifting a passenger into a British Airways aircraft but denies that it was guilty of the alleged or any negligence as alleged or at all, denies that the Plaintiff'suffered a severe wrenching injury to his back or at all and made no admission as to the alleged or any pain injury or damages.
By Amended Defence filed on the 18 th of May 2009 the Defendant alleged any injuries which are proven to have been sustained by the Plaintiff in the course of his duties as a serviceman on 2 nd July 1998 were caused or contributed to by his own negligence in:
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(i) failing to seek assistance when he realized that the passenger was too heavy for him to lift with the assistance of only two other servicemen;
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(ii) continuing to lift the passenger when he realized he was too heavy for him to lift;
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(iii) continuing to work after he realized that he had injured his back;
The Defence further contended in the alternative if it is proven that any injuries sustained by the Plaintiff were caused as a result of the negligence of the Defendant it is averred that the Plaintiff failed to mitigate his loss in;
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(a) refusing to undergo surgical intervention;
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(b) refusing to complete a course of lumbosacral spine epidural injections;
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(c) refusing to complete a course of physiotherapy;
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(d) failing to perform a course of muscle strengthening exercises of the abdominal and low back muscles;
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(e) continuing to lift heavy items contrary to the advice of Dr. Carolyn Tull who advised him to seek lighter duties once returning to work;
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(f) failing to seek medical attention for his injuries in a timely fashion;
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(g) continuing to lift heavy items upon his return to work contrary to the advice of his medical adviser who advised him to seek lighter duties;
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(h) failing to take reasonable care for his own safety;
The Plaintiff and Defendant in their submissions agreed the issues for determination in an action for negligence as being whether there was a duty owed by the Defendant to the Plaintiff; whether there was a breach of that duty by the Defendant and whether the Plaintiff'suffered loss and damage as a result of that breach. The onus of proof is on the Plaintiff.
The standard of proof is on a balance of probabilities.
In addition the court has to determine whether the Plaintiff contributed to his damage as alleged in the Defence and/or failed to mitigate his loss as alleged in the Defence.
The Plaintiff gave evidence and called Mr. St. Clair Alleyne a former employee and serviceman of the Defendant, Mr. Anthony Rocheford an expert in Occupational Safety and Health and Medical Practitioners Mr. Hadley Clarke, Dr. Carolyn Tull and Mr. Winston Seale.
The Defendant called Mr. Noel Nurse, a former Supervisor of the Defendant, Mr. Wayne Kinch a serviceman and employee of the Defendant, medical practitioners Dr. Sean Marquez and Mr. Jerry Thorne and Theophlus Francis a loss adjuster.
The duty of an employer to an employee is well established. I accept that the Plaintiff's submissions in this respect accurately sets out the law.
An employer owes a duty of care to his employees. Munkman on Employers Liability, 13 th edition at page 46, restated the accepted principle: “It is beyond doubt that an employer does owe an employee a duty of care to safeguard his health and safety; more problematic is the extent and standard of that duty….. The employer's duty is owed to each employee as an individual, so that individual weaknesses known to, or which should be known by, the employer are to be taken into account”.
The duty imposed on an employer is to take reasonable care for the safety of his workers during the course of their employment:
“ I think the whole course of authority consistently recognizes a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations.” Lord Wright in Wilson & Clyde Coal Co. Ltd. V.English [1937] 3 ALL.E.R. 628 at 644 Letter A to C.
The duty to take reasonable care is general and unrestricted. For convenience it is normally divided into a number of categories - safety of the place of work, adequate plant and equipment, competent staff and a safe system of work and effective supervision.
“ It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but I prefer to consider the master's duty as one applicable to all circumstances, namely, to take reasonable care for the safety of his men….. “ Parker L. J. Wilson v Tynesides Window Cleaning Co. [1958] 2 ALL E.R. 265 at 272 Letter 1 to 273 Letter B.
The standard of care varies with the circumstances. However, there are certain principles which a court will take into account in determining the standard of care to be met in a given circumstance. Various considerations include the knowledge of the risk, knowledge of precautions, the magnitude of the risk, individual characteristics of the individual, practicability of precautions and the employer's resources amongst other things. One or more factors may be relevant in a given case and sometimes the court may have to balance competing considerations. (Munkman on Employer's Liability page 47-65).
Mr. Scott further submits that the aspects of the employer's duty which are in sharp focus here relate to the provision of (1) safe plant and equipment and (2) a safe system of work. “One branch of the employer's duty is to take reasonable care to provide and maintain proper plant and machinery. ‘Plant’ is used in the context as a convenient general term to denote all manner of things used in the course of the work. It comprises, for example, such widely divergent objects as scaffold-poles, rolling mills, cart-horses, cranes and work processors.” Munkman on Employer's Liability, 13 th Edition, John Hendy and Michael Ford at page 117.
Further, that where the Court holds that particular equipment was necessary, but the employer has failed to provide the same, then the employer has failed in his duty of care to his employee. The point is made by Gilbert Kodilinye, Commonwealth Caribbean Tort Law, 2 nd edition, at page 172 thus:
“An employer must take the necessary steps to provide adequate plant and equipment for his...
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