Atkins v Mika Inc.

JurisdictionBarbados
JudgeCornelius, J.
Judgment Date12 December 2014
Neutral CitationBB 2014 HC 62
Docket Number89 of 2010
CourtHigh Court (Barbados)
Date12 December 2014

High Court

Cornelius, J.

89 of 2010

Atkins
and
Mika Inc.
Appearances

Mrs. Sharon Edgecombe-Miller for the claimant.

Mr. Elliott D. Mottley Q.C., and Ms. Marilyn Y. Moore of Messrs. Elliott D. Mottley & Co. in association with Ms. Keren Prescott for the defendant.

Negligence - Personal Injury arising out of a fall — Whether the defendant's breach of their duty of care caused the claimant's injuries — Novus Actus Interveniens.

Cornelius, J.
1

This is a claim for damages for personal injuries arising out of a fall sustained by the claimant during a visit to “Walker's World”, a home furnishing boutique store.

2

The claimant is the mother of two children and at the time of the incident was a self-employed nail technician. The defendant is a company registered under the provisions of the Companies Act Cap 308. It carries on business via a retail outlet in the name of “Walker's World” located at Battery House, St. Lawrence Gap in the parish of Christ Church.

THE CLAIM
3

On 13th October 2008, the claimant, whilst attending the defendant's premises, slipped and fell down a flight of stairs. The claimant states in her claim form that personal injuries, consequential loss and damages are a direct result of the negligence and or breach of statutory duty of care of the defendant. Her particulars of breach of Statutory Duty and Negligence are as follows

  • (a) Failing to bring to the claimant's attention the steepness of the staircase;

  • (b) Negligently failing to heed it duty to satisfy itself that the design of the staircase was such as to avoid foreseeable risk to the claimant's safety;

  • (c) Failing to warn the claimant as to the steepness of the said staircase;

  • (d)Failing to provide and make accessible to the claimant alternative means of passage way.

  • (e) Failing to heed or to adequately heed that the gradient or slope of the staircase was to such an extent that it was likely to cause injury and consequential loss to the claimant;

  • (f) Failing to provide suitable means of passage for the claimant

  • (g) Failing to ensure or adequately ensure that the said staircase was designed to prevent foreseeable or likely risk of injury and loss to the claimant;

  • (h) Failing in all the circumstances to discharge the common duty of care in breach of Section 4 of the Occupiers Liability Act, Cap 208.

4

The claimant therefore seeks special damages in the amount of $1,292.00 (as evidenced by the accompanying medical receipts), general damages, interest; costs and such other relief as the Court thinks fit.

CLAIMANT'S EVIDENCE
EVIDENCE OF SHARON ATKINS
5

In her witness statement Ms. Atkins deposed that on 13th October 2008, it was a raining day. She went to Walker's World with a friend and co-worker by the name of Nadia Ifill. The store was on two levels and on entering they decided to go to the ground floor to look for items. In order to get to the ground floor, they had to descend a flight of stairs. Nadia (Ifill) started down the stairs in front of her. Ms. Atkins stated that she then held on to the hand rails and started down the flight of stairs which she found to be steep. Soon after steeping off the landing she fell on her buttocks and slid down past Nadia to the bottom of the flight of stairs. She was in shock and pain; particularly to her left buttock and lower back; and could not move for some time.

6

Whilst at the bottom of the stairs, and sitting on her buttocks two women whom she believed were the defendant's employees came to see what happened. She could not stand far less walk. She received help from her friend Nadia and another person to get up and then to go very slowly back up the stairs. She told her friend Nadia that she needed to see the Doctor and one of the defendant's employees told her to contact them after the visit. She then made her way to Dr. Stephen King's office who examined her and told her that she sustained soft tissue injuries to her left buttock, loin and shoulder. Her buttocks were swollen and discoloured and she was given an injection to help with the pain.

7

Ms. Atkins deposed that she had pain in her neck and back and X-Rays were ordered on 17th October 2008 during one of her subsequent visits to Dr. King. X-Rays of her cervical and lumbar spine were done on 20th October 2014. The X-Rays were reviewed by Dr. King in her presence on the same day and due to the results she was admitted to the Queen Elizabeth Hospital (QEH) from 21st October until 25th October 2008. She understood the reason for her admission was that a disc in her spine appeared to be out of place. The swelling was still present and she was in great pain in the areas of her buttocks, shoulder, chest and neck.

8

Whilst at the QEH she underwent a CT Scan. She was fitted with a cervical collar and the pain was so constant the her blood pressure escalated and had to be monitored as she was hypertensive. When she left the QEH she understood that her cervical spine was normal. She continued to visit Dr. King in respect of her injuries which remained unresolved and he referred her to Dr. Gerry Warner for physiotherapy.

9

Between November 2008 and January 2009, she underwent about 15 sessions of physiotherapy inclusive of strength exercises and heat treatments. Dr. Warner referred her to Dr. Hadley Clarke a Neurosurgeon in November 2008. His examination revealed no neurological deficits but he treated her with medication and exercises to help with the pain and to strengthen her. She could not continue the session with him given that she could afford to do so. She still experienced pain to her back and neck especially after long periods of sitting or standing and the fall had affected her in all aspects of her life.

10

She deposed further that “immediately following the fall it seemed as if pain was a constant companion”. Her back started to hurt her and even walking was a problem. Sleeping during the first week of the accident was an ordeal; her body ached and her bed which was usually comfortable became unbearable some nights. She could not deal with her two kids (Ages 7 and 5 years) as she usually did and could not wear close fitting jeans for months after the accident.

11

She stated that she used to take her kids to the beach, to Chefette Restaurants to eat and to drive in the country on Sundays or during the week on light evenings but she could not do this after the fall as she could not walk properly. It caused her much distress.

12

She had to rely on her mother to do housework and look after the kids. She could not do household duties and had to rely on her mom to bathe her and do her hair; all things which she did competently before the fall. To her recollection, her mother assisted her for some six months after the fall. After that period she could help herself but any excessive activity caused pain in her leg and back. She had to leave many things undone when the pain started to act up.

13

Ms. Atkins stated that prior to the fall, she owned ‘Virgo Hair, Nails and Barber Studio’. She worked there as a nail technician offering different nail services in addition to subletting space to other persons who offered hairdressing and barber services. Prior to the fall she did about 4–5 persons’ nails comfortably daily from Monday — Thursday and 10–12 persons daily on Fridays and Saturdays. She enjoyed her work immensely. On a weekly basis (six days) she saw on average 25 persons but that could easily rise to 40 persons during the week if there was a big event.

14

She returned to work some 4 to 6 weeks after but could not do the work. Her clientele declined and she had to start referring customers to outside technicians. Her line of work required sitting and bending over for very long periods of time but that impossible because of the injury to her back. She used her savings and money from the sub-tenants to pay the rent but eventually all of her savings were depleted and she had to give up the Studio. Her boyfriend would assist her financially and help her out with the kids. Her aunt would give her meat sometimes but she suffered from hypertension and her (blood) pressure went up with the stress of not being able to care of herself and her family.

15

In an attempt to help herself, Ms. Atkins stated that she found a part time job as a receptionist in 2010. She could not sit for long periods but the nature of the job allowed her to sit and stand and manoeuvre to free herself from the numbness and pain of staying in one position for too long. She relied on medication because she had to work. She had no choice but to bear the pain as she had a family to support. Dr. Warner told her that she would not be completely pain free so she had to find a way to cope with the pain and work.

16

Subsequent to the fall she continued verbal communication with Ms. Karen Truedsson whom she understood to be one of the owners or Directors of the defendant. She retained counsel who wrote in an attempt to resolve this matter but it was to her knowledge that talks had failed.

17

Ms. Atkins stated that she believed that the defendant was negligent and that to the best of her knowledge the steps at the establishment continued to be steep. She took all precautions and held onto the hand rails because of this despite, at the time of the incident, there being no signs alerting customers to hold onto the handrails. She stated that she had professional architects examine the stairs and they told her the steps were not in keeping with the Barbados Building Codes. It was also her belief that the steps were wet from the rain and there were no sign cautioning her or other customers to this fact.

18

For the reasons therein, she believed the defendant was negligent and she should be awarded compensation for the losses she sustained.

CROSS EXAMINATION
19

Under cross-examination Ms. Atkins stated that it was the first time she visited the defendant's premises. She and...

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3 cases
  • Wendy Popo v The Attorney General of Barbados
    • Barbados
    • High Court (Barbados)
    • 18 February 2022
    ...there was no effective system in place at the Defendant's business for dealing with spillages and other dangers. 22 In Atkins v Mika Inc. BB 2014 HC 62, Cornelius J. was required to determine whether a fall sustained by a Plaintiff on a wet stairway in a boutique store was sufficient to be ......
  • Adrian King v Attorney General
    • Barbados
    • High Court (Barbados)
    • 12 December 2022
    ...juridical principle to justify this result.” 17 The cases of Mayers v Transport Board and Holder BB 2005 HC 27, Atkins v Mika Inc. BB 2014 HC 62, Timothy Gibson v Milton King BB 2020 HC 13, Allan Francis v Andy Brathwaite HC. Suit No. 1847 of 2014 (decided 13th December 2019) Lorraine Authi......
  • Helen Smith v Bridgetown Cruise Terminals Inc.
    • Barbados
    • High Court (Barbados)
    • 13 May 2022
    ...statutory duty to the plaintiff and is liable for the personal injuries which she suffered”. [Emphasis mine]. 42 In Atkins v Mika Inc. BB 2014 HC 62, Cornelius J. considered whether a fall sustained by a plaintiff on a wet stairway in a boutique store was sufficient to be deemed a breach of......

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