Adele Shtern v Villa Mora Cottages Ltd and Another

• Jurisdiction: Jamaica
• Judge: Panton P,Morrison JA,Phillips JA
• Judgment Date: 16 April 2012
• Neutral Citation: JM 2012 CA 32,[2012] JMCA Civ 20
• Docket Number: SUPREME COURT CIVIL APPEAL NO 126/2009
• Court: Court of Appeal (Jamaica)
• Date: 16 April 2012

Between

Adele Shtern

Appellant

and

Villa Mora Cottages Ltd

1st Respondent

and

Monica Cummings

2nd Respondent

[2012] JMCA Civ 20

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 126/2009

JAMAICA

IN THE COURT OF APPEAL

NEGLIGENCE - Breach of common duty of care - Occupier's Liability Act - Whether the 2nd respondent was an "occupier" for the purposes of liability under the Occupier's Liabiity Act - Damages

Miss Carol Davis for the appellant

David Batts and Mrs Terri-Ann Gibbs instructed by Livingston , Alexander & Levy for the respondents

Panton P

1 I have read the reasons for judgment written by my learned brother Morrison, JA. I agree with him fully and have nothing to add.

Morrison JA

Background

2 This is an appeal from a judgment of Lawrence-Beswick J, given on 23 June 2009, in which she gave judgment for the respondents in an action brought against them by the appellant for damages for negligence and breach of the common duty of care under the Occupiers” Liability Act (“the Act”). The principal issue that arises on the appeal is whether the learned judge was correct in her conclusion that the appellant had failed to prove on a balance of probabilities that the respondents were in breach of a duty of care to her, whether under the general law or under the Act. A subsidiary issue, which the judge did not find it necessary to address in the light of her conclusion on the principal issue, is whether the 2 ^nd respondent was an “occupier” for the purposes of liability under the Act.

3 The appellant is a citizen of the United States of America, who was, on 15 February 1996, a paying guest at the Villa Mora Hotel and Cottages (“the hotel”) situated at Norman Manley Boulevard, Negril, in the parish of Westmoreland. The hotel was at the material time owned and operated by the 1 ^st respondent on land owned by the 2 ^nd respondent.

The appellant's case

4 The appellant's case at trial was that, during her stay at the hotel, she was permitted by Mr Keith Black, the then manager of the hotel, to use a refrigerator located in the office of the hotel for the purpose of storing her own personal items, there being no refrigerator in her room. On 15 February 1996, as she attempted to open the door of the refrigerator, she received a severe electrical shock, as a result of which, she further alleged, she sustained severe injuries, suffered loss and damage and incurred substantial expenses.

5 The appellant claimed that this accident and as a consequence, her injuries, loss and damage, were caused by the negligence of the 1 ^st respondent, as the operator of the hotel, and/or the 2 ^nd respondent, as the owner of the premises upon which it was situated. The appellant also placed reliance on the common duty of care owed by an occupier of premises to visitors under the provisions of the Act.

6 The pleaded particulars of negligence were as follows:

• ‘(a) Failing to take any or any reasonable care to see that the Plaintiff would be reasonably safe in using the said hotel and in particular in using the said refrigerator.

• (b) Failing to take any or any reasonable care to prevent injury or damage to the Plaintiff from unusual dangers in the said hotel of which they knew or ought reasonably to have known.

• (c) Causing or permitting the said refrigerator to be and/or to become and/or to remain in a defective and dangerous condition and to be a danger and a trap to persons lawfully staying at the said hotel and using the same.

• (d) Failing to replace or to repair the said refrigerator or to take any or any reasonable measures to render the said refrigerator safe to use when they knew or ought reasonably to have known that it was in a defective and dangerous condition and was likely to expose the Plaintiff to injury and damage from electrocution.

• (e) Failing to take any or any adequate measures whether by way of periodic or other examination, inspection, test or otherwise to ensure that the refrigerator was in a reasonably safe condition and was not defective or dangerous and in a condition in which it was likely to expose the Plaintiff to injury and damage from electrocution.

• (f) Failing to give the Plaintiff any or any adequate warning of the dangerous condition of the refrigerator.

• (g) Exposing the Plaintiff to a risk of damage or injury of which they knew or ought reasonably to have known.

• (h) Causing or permitting the Plaintiff to use the said refrigerator when they knew or ought reasonably to have known that it was in a defective state and was unsafe.

• (i) In the circumstances failing to discharge the common duty of care to the Plaintiff in breach of the Occupiers' Liability Act. The Plaintiff will rely so far as is necessary on the doctrine of Res Ipsa Locquitur [sic].’

7 The appellant, who was a resident of Long Island, New York City, in the United States of America, gave evidence that early in the month of February 1996, she travelled on vacation to Negril in the parish of Westmoreland. She described herself as an American Professor of Arts, a multi-disciplinary artist, a graphic designer and a consultant, in addition to which she was a published poet and author, and a performance artist of novels and movement. On 15 February 1996, about one week after having checked in at the hotel as a paying guest, the appellant attempted to open the door of a refrigerator located in the hotel's office, in which she had been storing her food items during her stay. She was intending to go to the beach later that morning, so she was barefooted, but she was not wet. This is what, by her account (from the judge's acceptance of which there is no appeal), then ensued:

‘I attempted to open the refrigerator using the handle which was on it. However, on touching the refrigerator with my left hand I became stuck to it, and I was unable to detach my hand. I could not breathe and I could not speak. I was aware of the sound and rhythm of the refrigerator, but I was electrified. I absolutely deny that my use of the refrigerator was unauthorized. As far as I am aware, a fridge is supposed to be a safe appliance. I was entirely unaware that there was any risk involved in using a fridge without shoes. Prior to this incident, I did not consider a refrigerator dangerous equipment [sic]. I have throughout my life used a refrigerator while I was barefooted, and never hither to this incident been shocked doing so. I take the safe use of a refrigerator for granted, and everyone I know does too.

After what seemed like an eternity and a very close call with death, but what was probably less than a minute I was able to let go of the handle. My hand just came loose from it. I was in shock. I was shaking visibly. Mr. Black who was in the office told me to calm down. I was out of breath and gasping for air. I had to make a great effort to take conscious breaths. I was eventually able to sit down on a chair opposite to Mr. Black. I stayed on the chair for about 20 minutes, and eventually I was able to get up and walk.

I slowly got up, feeling traumatized, and I made my way to the beach to seek help from some acquaintances Phil and Andre who were expecting me on the beach. They helped me back to my room. I got no help from the hotel management. Hours later my friend Angelena Craig came to see me. I was still feeling very weak. I decided to see a doctor. Dr. Clarke was recommended, and I called him. He made a house call and came to see me in my room at the hotel. He diagnosed that I was suffering from electric shock, recommend bed rest and massage and gave me a tranquilizer. He said that it was too early to tell how it would affect me, but I might have nerve or heart damage. I requested a written report from him. Initially he agreed, but subsequently when I told him that I was making a complaint against Villa Mora to the Tourist Board, he refused to see me or to answer my calls to his office. I paid his bill during his visit.’

8 The appellant sought and received medical treatment in Negril and, after remaining in Jamaica for another two weeks, during which she attempted to continue her vacation, although, she said, she ‘was not feeling at all well’, she returned to New York on 29 February 1996. Thereafter, she became increasingly ill and found herself spending a lot of time confined to bed, suffering from chronic fatigue and barely able to function. In her own graphic language, ‘my life was forever changed.’ Up to the date of her written statement (6 December 2005), nearly 10 years after the incident, the appellant continued to consult physicians and to receive treatment, frequently experiencing migraine headaches, vertigo, muscle spasms on both side of her body and a number of other disabling sequelae . Medical reports on her condition and treatment from more than 15 doctors were produced in evidence by her and the appellant claimed special damages attributable to her injuries totalling US$1,378,809.00.

The appellant's expert's evidence

9 Mr Eric Hudson, a registered professional engineer and a member of the Jamaica Institute of Engineers, was instructed on behalf of the appellant to visit the hotel and ‘to examine the Refrigerator and its electrical installation particularly…Special attention should be paid to the integrity of the electrical installation and to establish if there was any defect that would have lead [sic] to the electric shock that [the appellant] experienced’. On the day of his visit to the hotel (11 December 2008), Mr Hudson was shown a white, double door refrigerator (of the Kenmore brand), which was ‘showing signs of its age by its worn paintwork, touches of corrosion, and an external water bottle condensate collector etc., is plugged into the receptacle at the right side of the room’. The refrigerator was in...