Helen Smith v Bridgetown Cruise Terminals Inc.
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry Carrington |
| Judgment Date | 13 May 2022 |
| Neutral Citation | BB 2022 HC 014 |
| Docket Number | NO. CV 2098 OF 2013 |
| Court | High Court (Barbados) |
The Honourable Mr. Justice Barry Carrington, Judge of the High Court.
NO. CV 2098 OF 2013
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mrs. Marguerite Woodstock-Riley Q.C. and Ms. Lorie N. C. Yarde, Attorneys-at-Law for the Claimant.
Mr. Satcha S-C. S. Kissoon of Denton's Delaney in association with Ms. Maya Carrington, Attorneys-at-Law for the Defendant.
The Claimant was a cruise ship passenger from the United Kingdom, sailing on the “Azura” which visited Barbados on one of its scheduled stops. The Claimant, her husband and two (2) friends disembarked and spent several hours on a local beach. On her way back to the ship, she slipped and fell while walking through the cruise terminal. She said that she was wearing “sensible sandal type shoes without a heel” and alleged that her fall was because of the floor being slippery since it was full of sand, water and debris, and there were no warning signs in place at that time. She landed on her hip and sustained serious injuries. She was transported to the Queen Elizabeth Hospital where she underwent an operation and was detained for ten (10) days before being airlifted to the U.K. where her treatment continued.
The Defendant was not notified of the incident until about twenty-seven (27) months later when it received correspondence from the Claimant's counsel. Proceedings were commenced thirty-five (35) months after the fall and the Defendant denied liability. It alleged that the significant delay in notifying the Defendant of the incident militated against the carrying out of timely and effective investigations. Additionally, the medical evidence disclosed that the Claimant fell about five (5) times prior to and after the incident and the Defendant claimed that the Claimant has a propensity to fall. The Defendant contended that its premises were reasonably safe as it has in place an effective system to ensure the safety of all visitors.
The issues which arise for determination are as follows:
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i. whether pursuant to section 4 of the Occupiers Liability Act, Cap. 208 of the Laws of Barbados the Defendant breached its statutory duty of care to the Claimant, a lawful visitor to its premises?
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ii. whether the Defendant was negligent at common law resulting in injury to the Claimant?
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iii. if the Defendant breached the duty of care or was negligent, what measure of damages is the Claimant entitled?
Ms. Helen Smith (“the Claimant”) was seventy (70) years old at the time of the incident and resided at #18 Edgworth Drive, Bury, BL8 2 EB, United Kingdom. The Bridgetown Cruise Terminals Inc. (“the Defendant”) is a limited liability company incorporated and registered under the provision of the Companies Act Cap. 308 with its principal place of business situate at the Bridgetown Port. It owns and operates the Bridgetown Cruise Terminal (“the Cruise Terminal”, “the Terminal”).
On the 10 th day of December 2010, while walking through the Duty Free Shop area of the Cruise Terminal with her husband and two other persons on their way back to the cruise ship that they earlier arrived on, the Claimant suddenly slipped and fell to the floor and landed on her right hip. She was transported to the Q.E.H. where she underwent surgery and spent ten (10) days before being airlifted to the UK. It is alleged that the area where the Claimant fell was covered with brown tiles which were wet and slippery because of sand and water brought by the shoes of other tourists who traversed the area. The Claimant has further alleged that she did not see any warning signs which would have alerted her to the fact that the floor was wet, sandy and slippery.
On the 9 th day of November 2013, the Claimant instituted proceedings against the Defendant seeking damages for the injuries sustained in the said fall. In her pleadings, the Claimant alleged that the Defendant was in breach of its statutory duty under section 4 of the Occupier's Liability Act Cap. 208 and that the Defendant also was negligent and responsible for the injury and damage she suffered. She seeks the following:
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i. General Damages;
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ii. Special Damages;
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iii. Interest pursuant to the Supreme Court of Judicature Act Chapter, 117A; and
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iv. Costs.
The evidence in this matter was provided by witness statements, which were augmented by evidence on oath. I shall first highlight the evidence that will assist in determining liability.
Mrs. Smith in her witness statement said that she and her husband (who has subsequently died) disembarked the cruise ship the ‘Azura’ on the penultimate day of their cruise and spent about four (4) hours on a beach in the company of their friends, Mr. and Mrs. Joyce. They were returning to the ship, having washed the sand off their feet at a restaurant at the beach, and boarded a taxi for the port While walking through the port building, suddenly, her “feet went from under [her]”. She fell and landed on her right hip. She was transported to the Queen Elizabeth Hospital and underwent surgery and later transported to the UK where her treatment continued.
During her recuperation she indicated that the floor was covered in brown tiles and she did not remember seeing any warning signs “that might have alerted me to the fact that the floor was so slippery with sand”. Under cross examination, it was suggested to the Claimant that she was not certain that there was sand on the tiles when she said in her witness statement that “there must have been sand on the floor”. Her response was: “I will change and say that there was sand on the floor not there must have been”. She was adamant that she was telling the truth.
She was provided with domestic assistance and struggled significantly since her bedroom was upstairs and the bathroom downstairs and trips to and from the bathroom were assisted and painful. She installed a handrail and eventually a stair lift to assist. She was examined by Prof. Sanjiv Jari, a Consultant Trauma and Orthopedic Surgeon, Ms. Susan Filson, a Chartered Physiotherapist, Ms. Julia Ho, a qualified Occupational Therapist and Mr. Peter Harding, a Physiotherapist, The Claimant recounted the difficulties she experienced since the fall, the significant help with domestic services, efforts at mitigating the pain and lifestyle changes (no more travelling, swimming and dancing).
Mr. Kissoon cross examined the Defendant on her past medical history which indicated that she had a few falls (approximately five (5)), prior and subsequent to the 2010 incident. He put to her an entry of a handwritten note from her general practitioner that said that she ‘had an x-ray of her ankle and hips which were unremarkable’. The entry indicates that she had some occasional left ankle giving way….” The Defendant said that she did not remember her left ankle giving way but admitted that she suffered falls prior to the date of the incident but denied that she had a weak ankle as evidenced by her participation in line dancing and ballroom dancing. She also admitted that the medical reports of her visits to the hospital in her area were true, vis a vis her having some form of dizziness from 1996 to 2009 and beyond. She said that she did not recall falling and fracturing her wrist that required her to go to the Bury NHS in the U.K. where she lives.
On the date of the alleged fall, there were two witnesses present with the Claimant and her husband namely, Mr. John Joyce and his wife Mrs. Rita Joyce. These witnesses are elderly and because of COVID-19 restrictions, their statements were recorded and entered into evidence by Ms. Lesley Edwards, an English Solicitor. None of these witnesses was able confirm whether the Claimant slipped and fell on water, sand or debris while in the terminal. Mr. Joyce in his witness statement filed on the 27 th July 2020 stated that “suddenly Mrs. Smith slipped on something and fell onto her hip”. Similarly, the witness statement of Mrs. Joyce filed on the 27 th July 2020 also failed to mention exactly what caused the Claimant's fall but stated that “suddenly, Mrs. Smith slipped and fell onto the floor landing on her hip”. Both witnesses have however stated that they do not recall seeing any warning signs in the Terminal to warn against a slippery surface at the time of the alleged fall. These witnesses were not available to be cross-examined.
The Defendant relied heavily on the evidence of Dr. Paul W. Lemon, an established slips and fells specialist to show that the surface where the Claimant fell was unsafe. Dr. Lemon is a Scientific Consultant to clients including Barristers, Solicitors, insurance companies and loss adjusters. He has substantial experience and expertise in the specialist forensic investigation of pedestrian safety incidents, concentrating on slips and trips, falls involving stairs, ladders, vehicles, escalators, skylights, chairs and footwear failures. His report was filed on 12 th August 2020 and was entirely dependent on photographs taken by a third party which were obtained approximately ten (10) years following the incident. Dr. Lemon noted that there were limitations to his “desktop report” as he was unable to be physically present to conduct a thorough inspection of the premises. He also accepted that the quality of the photographs produced were low combined with the absence of the negatives which operated to impact his ability to properly analyze the photos of the tiles.
His conclusions were as follows:
“On analysis of the supplied documentation and photographic evidence, I consider that the walking surface on which the Claimant fell was formed from flat, vitrified ceramic tiles. I understand that those...
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