Wendy Popo v The Attorney General of Barbados

• Jurisdiction: Barbados
• Judge: Mr. Justice Barry L. Carrington
• Judgment Date: 18 February 2022
• Neutral Citation: BB 2022 HC 005
• Docket Number: NO. CV 0571 OF 2018
• Court: High Court (Barbados)

Between

Wendy Popo

Claimant

and

The Attorney General of Barbados

Defendant

Before:

The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.

NO. CV 0571 OF 2018

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Appearances:

Mrs. Shontelle N. Murrell-Hinkson of George Walton Payne & Co. Ltd, Attorneys-at-Law for the Claimant.

Ms. Ann-Marie A. Coombs and Mr. Wilfred Estwick, Attorneys-at-Law for the Defendant.

Introduction

1 The Claimant visited the Bridgetown Fisheries Complex and had occasion to use the bathroom facilities. While at a sink to wash her hands, a bar of soap fell to the floor and in her attempt to retrieve it, she placed her hand on to the sink for support. The sink collapsed to the floor and shattered causing her immediate injury. It was later discovered that there was a ‘shaky’ bracket supporting the sink that was allegedly tightened but not replaced. The Claimant commenced proceedings alleging a breach of the common duty of care owed while the Defendant alleged that the Claimant was contributorily negligent.

Issues

2 The issues which arise for determination by the court are as follows:

• i. whether the Defendant is in breach of the common duty of care owed to the Claimant by virtue of section 4 of the Occupiers Liability Act, Cap 208 (“Occupiers Liability Act”) and at common law, by failing to replace the ‘rusty’ brackets on the sink in the washing facility.

• ii. If the Defendant is in breach of the common duty of care, whether the Claimant was contributorily negligent pursuant to section 3 of the Contributory Negligence Act, Cap. 195 (“Contributory Negligence Act”).

Background

3 Wendy Popo (“the Claimant”) of No. 2 Sealy Land, Bank Hall in the parish of St. Michael was a lawful visitor to the premises of the Bridgetown Fisheries Complex. The Attorney General of Barbados (“the Defendant”) is a party to these proceedings by virtue of section 14(2) of the Crown Proceedings Act, Cap 197 as the Bridgetown Fisheries Complex is owned and operated by the Government of Barbados.

4 On August 16, 2016, one of the sinks in a washroom at the Bridgetown Fisheries Complex was reported to the maintenance artisan as being ‘shaky’ and coming off the wall. Later that day, he proceeded to tighten the brackets to secure the sink to the wall and reported that the sink was left in a sturdy condition.

5 However, on August 18, 2016, the Claimant, being a lawful visitor to the precincts of the Bridgetown Fisheries Complex, entered the said washroom to utilize facilities. While at the sink to wash her hands, the bar of soap dropped the and Claimant, in the process of retrieving it, placed her hand on the sink for support. It collapsed to the floor and shattered and in the process, the Claimant fell and suffered injury, loss, damage. She sought medical attention at the Queen Elizabeth Hospital and later from Dr. Shakilah Patel, and was unable to work for a period of twelve (12) weeks.

6 The Claimant has since instituted proceedings against the Defendant seeking damages for the injuries and losses sustained in accordance with the breach of section 4 of the Occupiers Liability Act and by reason of negligence.

The Evidence

7 Evidence was provided by witness statements and augmented by evidence on oath. Ms. Popo was the sole witness for the Claimant, and she said that she was using the washroom's facilities and the sink collapsed causing her to fall to the ground. Under cross examination, Ms. Popo was adamant that she merely touched the sink and was not holding on to it. She said that while touching the sink, she did not put any pressure on it.

8 Ms. Denise Coward a general worker at the complex said in her witness statement that while cleaning the bathroom the day before the incident, she noticed that one of the sinks was tilting slightly since the supporting brackets were slackening from the wall. She reported the matter to Mr. Winsley Brathwaite, the maintenance artisan, who in his statement indicated that he removed the sink, changed dowels that were needed and replaced the sink. Ms. Coward admitted not placing any warning tape or signs alerting visitors to the danger of the faulty sink. Mr. Brathwaite said that after he replaced the sink, he shook it, and it was sturdy. Mr. Brathwaite also indicated that he did not replace the rusty brackets since they were still sturdy. Under cross examination, he reiterated that the sink was repaired and sturdy when he finished. Mr. Gregory Payne, Senior Superintendent of Markets gave a witness statement in which he indicated that Ms. Coward notified him that the sink was a little shaky and coming off the wall. He said that Ms. Coward notified Mr. Brathwaite and not the maintenance supervisor or the senior maintenance supervisor, both of whom had the authority to order repairs to be carried out. Mr. Payne said, “I therefore concluded that the sink was not fixed.” Under cross examination, Mr. Payne said that Mr. Brathwaite was neither of the two (2) persons with the authority to order repairs to be carried out. He added that if the proper protocol was adhered to and the work completed, that either the maintenance supervisor or the senior maintenance supervisor would ensure that the work was done to his satisfaction. Mr. Payne stood by his statement that he concluded that the sink was not fixed.

Injuries Sustained

9 Attached to the Claimant's witness statement are medical reports from the Queen Elizabeth Hospital and Dr. Shakilah Patel. The hospital's report indicated that the Claimant, a forty-eight (48) year old female, presented at the hospital with multiple lacerations and abrasions to her right upper limb. She was examined and the significant findings were isolated to her musculoskeletal system and included the following:

• ▪ approximate 8 cm laceration to the posterior lateral aspect of the right forearm, extending down to the muscle with small incomplete laceration of muscle bed, with breach of fascial compartment contaminated with dirt and debris;

• ▪ 4 cm laceration to the ulnar border of right hand;

• ▪ 2 cm laceration just proximal to the metacarpophalangeal joint of right little finger;

• ▪ 1 cm laceration to 4 ^th interdigital space; and multiple abrasions to the dorsum of forearm mainly along radial half of forearm.

10 She was sent for x-rays which revealed no fractures, and the wounds were cleaned and sutured. She was also seen for follow up treatment by Dr. Patel on September 7 and 26, 2016, and December 12, 2017.

Law & Discussion

The statutory duty of care & its breach

11 The Occupiers Liability Act was designed to protect lawful visitors to any premise or property from imminent dangers which may be found on an occupier's premises/property due to lack of care or negligence. In its Long Title, it is stated that it is an Act to amend the law relating to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there.

12 Section 4(1)-(9) highlights the extent of the occupier's ordinary duty to a lawful visitor as follows:

“4.

• (1) An occupier of premises owes the same duty (in this Act referred to as “the common duty of care”) to all his visitors, except so far as he is free to and does extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement or otherwise.

• (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

• (3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor.

• (4) In determining whether the occupier of premises had discharged the common duty of care to a visitor, regard is to be had to all the circumstances.

• (5) Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.

• (6) Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, reconstruction, demolition, maintenance, repair or other like operation by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

• (7) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor.

• (8) Where the occupier fails or neglects to discharge the common duty of care to a visitor and the visitor suffers damage as the result partly of that fault and partly of his own fault, the Contributory Negligence Act, Cap. 195 shall apply.

• (9) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

13 Counsel for the Claimant in pursuing the claim in negligence relied on the decision of Donoghue v Stevenson[1932] A.C. 562 and urged the court to find the existence in law of a duty of care and that the Defendant breached its duty of care by failing and/or refusing to replace the ‘rusty’ supporting brackets of the sink and to that extent, Counsel noted that regard...