Tara-Mahalia Smith v Grande Cass. Management (Barbados) Ltd t/a Sandals Barbados Resort & Spa

• Jurisdiction: Barbados
• Judge: Alleyne, J.
• Judgment Date: 28 June 2019
• Neutral Citation: BB 2019 HC 16
• Date: 28 June 2019
• Docket Number: Suit No: CV 1746 of 2018
• Court: High Court (Barbados)

High Court

Judge(s): Alleyne, J.

Suit No: CV 1746 of 2018

Tara-Mahalia Smith

and

Grande Cass. Management (Barbados) Limited t/a Sandals Barbados Resort & Spa

Appearances:

Ms. Faye Finisterre in association with Ms. Sophia Billingy for the Claimant/Applicant

Ms. Alicia Archer for the Defendant/Respondent

Civil practice and procedure - Application for interim payment — Whether application and supporting affidavit met the requirements asset out in the Civil Procedure Rules.

INTRODUCTION

1 Before me is an application filed on 23 January 2019 by the claimant, Ms. Tara-Mahalia Smith (“the claimant”) for an order that the defendant, Grande Cass. Management (Barbados) Limited t/a Sandals Barbados Resort & Spa (“the defendant”) pays her the sum of $35,000.00 by way of an interim payment. It is expressed to be made pursuant to Part 17.2 (1) of the Supreme Court ( Civil Procedure) Rules, 2008 (“CPR”).

2 The application is supported by two affidavits sworn by the claimant. The defendant filed no affidavit in response. I had the benefit of written and oral submissions from Counsel for the respective parties. Ms. Faye Finisterre in association with Ms. Sophia Billingy appeared for the claimant and Ms. Alicia Archer for the defendant. For the reasons which follow, I have determined that the application must be refused.

THE PROCEDURAL RULES

3 Interim payments are a species of interim remedies. CPR 17.2(1) provides that the Court may make an order for an interim remedy at any time. However, interim payments are more specifically regulated by CPR 17.5 to 17. 9. CPR 17.5 sets out the general procedure for making an application; and CPR 17.6 specifies the conditions that must be satisfied before the Court may make an order.

4 CPR 17.5(3)(b) requires that an application be supported by evidence on affidavit. CPR 17.5(4) is a content-related rule. It provides that the affidavit must:

(a) state the claimant's assessment of the amount of damages or other monetary judgment that is likely to be awarded;

(b) set out the grounds of the application;

(c) annex or exhibit any documentary evidence relied on by the claimant in support of the application; and

(d) where the claim is made under any relevant enactment in respect of injury resulting in death, contain full particulars of the

• (i) nature of the claim in respect of which the damages are sought to be recovered; and

• (ii) person or persons for whom and on whose behalf the claim is brought.

5 CPR 17.5(4)(d) does not apply in this case as the claim is not in respect of an injury that resulted in death. Of the conditions in CPR 17.6, only that contained in CPR 17.6(1)(d) is relevant. However, context is important therefore I shall reproduce most of CPR 17.6(1). I shall also reproduce CPR 17.6(4) which prescribes a bar in respect of the amount that may be awarded. Those provisions read:

17.6 (1) The court may make an order for an interim payment only if

• (a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;

• (b) the claimant has obtained an order for an account to be taken as between himself and the defendant and judgment for any amount certified due on taking the account;

• (c) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money, including costs, to be assessed;

• (d) except where sub-rule (3) applies, it is satisfied that if the claim went to trial, the claimant would obtain judgment against the defendant from whom he is seeking an order for interim payment for a substantial amount of money or for costs; or

(4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

(5) The court must take into account

• (a) contributory negligence; where applicable; and

• (b) any relevant set-off or counterclaim.

6 Sub-rule (3) which is referred to in CPR 17.6(1)(d) relates only to claims for damages for personal injuries involving two or more defendants. It is not relevant here. Though it will usually do so, a court is not bound to grant an interim payment merely because it is satisfied that one of the conditions in CPR 17.6(1)(d) has been met. It is a matter for the court's discretion.

THE ISSUES

7 Two primary issues are of concern. These are (i) whether the claimant's affidavits satisfy the content-requirements imposed by CPR 1Z5(4) and (ii) whether the application has met the condition set out in CPR 17.6(1)(d). THE STATEMENTS OF CASE

8 Before turning to the claimant's affidavits, I will outline the statements of case that have been filed by the parties in order to discern the issues in the proceedings. The relevant documents are the claimant's claim form and annexed statement of claim filed on 2 January 2019; the defendant's defence filed on 30 January 2019; and the claimant's reply filed on 5 May 2019.

9 The claim form discloses that the claim is one for damages for personal injury and consequential loss arising from the defendant's “negligence and/or breach of statutory duty” “which occurred on September 24, 2018”. It is common ground that on that date the claimant was employed by the defendant as a restaurant server and that she fell in a restaurant on the defendant's premises. The parties also agree that the defendant is the occupier of certain premises within the meaning of the Occupiers Liability Act, Cap. 208 (“OLA”) and section 2 of the Safety and Health at Work Act, Cap. 356 (“SHAW”).

10 The claimant asserts that the premises is a “workplace” within the meaning of SHAW and a place to which sections 6, 7, 8 and 43 of that Act applied at the time of the fall. She asserts further that “[b]y operation of section 4 of OLA the Defendant owed to the Claimant … the common duty of care”. The defendant admits the applicability of section 4 of OLA but states that “only sections 6(5) and 6(6), 7(1)(a) and (b), 7(4) and 7(5), 8 and 43 of [SHAW] apply to the Defendant's premises”. Among the general purposes of SHAW as expressed in its long title is the securing of “the health, safety and welfare of persons at work”; and the consolidation of the law relating to health, safety and welfare in the workplace.

11 At paragraph 4 of her statement of claim, the claimant asserts that the accident was caused by “the negligence and/or breach of statutory duty under section 6 of [SHAW] and/or section 7 of [SHAW] and/or section 43 of [SHAW] and/or section 4 of [OLA].” However, she provides no particulars in respect of the alleged breaches of statutory duty, only in respect of negligence. She states those to be:

• i. Causing or permitting the accumulation of some liquid or other substance on the floor of the said workplace.

• ii. Failing to institute and/or maintain any or any adequate system for the inspection of the said floor and/or removal of the said substance.

• iii. Failing to provide any warning whatsoever of the presence of the said substance on the floor.

• iv. Failing to fence off the area where the substance was lying.

• v. Failing to take reasonable steps to ensure that the premises were reasonably safe for the Claimant.

• vi. Failing to maintain the said workplace in an efficient state.

• vii. Failing to keel (sic) the floor properly maintained and free from obstructions and/or substance that is likely to cause a person to slip.

12 In the remainder of the statement of claim, the claimant particularises the injuries and loss which she allegedly sustained; the treatment she has undergone; and the effects of the injury on her. She also provides details of the relevant medical reports. The defendant puts her to strict proof in these respects.

13 The defendant denies that the floor was wet before the claimant fell or that the accident was caused by its negligence or breach of statutory duty. It denies any responsibility for the accident which it alleges was caused by the defendant's negligence in failing to wear “the appropriate approved footwear”. It states further that if the court finds that the accident was caused partly by its negligence and partly by the negligence of the claimant, it claims contributory negligence pursuant to section 3 of the Contributory Negligence Act Cap 195.

14 The defendant asserts at paragraph 4 that:

• a. There was no water or other liquid on the floor before the Claimant fell and denies that it allowed any liquid or other substance to accumulate on the floor. The only substance on the floor was subsequent to the Claimant's accident when the dishes she was carrying fell;

• b. The Defendant has instituted and maintains an adequate system for inspection and cleaning as follows:

  • i. Every restaurant goes through a deep cleaning process at the end of the shift and when the restaurant is closed for the day;

  • ii. In the morning the restaurant is cleaned again and prepared for breakfast and then cleaned afterwards for dinner.

  • iii. Each employee is responsible for identifying and reporting hazards in their work area and then following up to ensure that the matter has been rectified. In identifying the hazard they are required to put signage for wet floors.

  • iv. The Manager does snagging to identify flaws and faults and reports the same to upper management, engineering or housekeeping depending on the nature of the issue.

  • v. Each employee undergoes a system of on-the-job training pertaining to their specific duties and other general matters.

15 Paragraphs 4(c), (d), and (e) respectively state that there was no need to provide any warning; fence off the area; or take any steps to ensure the safety of the claimant since there was no substance on the floor prior to the fall. Further, at paragraph 4(c), the defence outlines the system that it alleges is in place in the event of a substance being found on the floor.

16 At paragraph 4(f), the defendant avers that at all...