Anatra (Marie) v Ciboney Hotel Ltd and Ciboney Ocho Rios Ltd

• Jurisdiction: Jamaica
• Judge: RECKORD, J.
• Judgment Date: 20 September 2001
• Judgment citation (vLex): [2001] 1 JJC 3101
• Court: Supreme Court (Jamaica)
• Date: 20 September 2001

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

MARIE ANATRA

PLAINTIFF

AND

CIBONEY HOTEL LIMITED

1 ^ST DEFENDANT

AND

CIBONEY OCHO RIOS LIMITED

2 ^ND DEFENDANT

Miss Sandra Johnson, Attorney-at-law for the plaintiff instructed by Sandra C. Johnson and Company

Mrs. Sandra Minott-Phillips, Attorney-at-law for the defendants instructed by Myers, Fletcher and Gordon.

OCCUPIERS' LIABILITY - Negligence - Breach of statutory duty - Damages

RECKORD, J

1 By Writ of Summons dated the 31 ^st of July, 1997, the plaintiff, through her attorneys-at-law claimed against the defendants, damages for breach of statutory duty under the Occupiers Liability Act and for negligence.

2 The plaintiff complained that on or about the 12 ^th day of November, 1991, while she was a lawful visitor and guest of the defendants' hotel and spa, which were owned and operated by the defendants' companies, whilst ascending the steep stair case with exceptionally smooth and round railways, which connects the upper level pool to the lower level, slipped and fell down the said stair case.

3 As a consequence whereof the plaintiff suffered serious injuries to her right toe and back.

4 The Plaintiff's Case

5 In November, 1991, the plaintiff was a 57 year old American Travel Agent visiting the island along with her husband. On the 12 ^th November they were both staying at Ciboney Hotel. After breakfast that morning they went to the pool on the upper level about 11:00 o'clock. Because the sun was brighter on the lower level and she needed a suntan, she decided to go to the pool on the lower level.

6 The plaintiff approached the stair ahead of her husband who was folding up the towels. Looking down the stairway she thought it was very steep. She held the railing on the left. She found it was too wide for her to grab, so she grabbed the outside. "The next thing I know I was sliding down the stairs and was thinking I was going to die — my life went before me. I have two children, it came to my mind that I would not see them again. I also worried about my back as I thought I would be crippled at that point. At one point I stopped falling. I tried to grab something to stop my fall and hesitated — stopped for a second and continued falling again and landed on my coxit bone at end of my spine — landed on my back. I was coming down on my back and head — every step there was I hit my head and back and continued bouncing down."

7 The plaintiff complained that the railing was too wide, she could not wrap her hand around it, it was about 6 inches wide. The steps were made of concrete with very smooth edges. The railings were wood painted white which made it very slippery. As far as she could recall the steps were straight down. The surface of the railing was continuously smooth all the way down. She was wearing rubber thongs on her feet which she had purchased at the hotel gift shop. It had rubber on the bottom. The steps were steep. Although it had rained between 4 and 5 a.m. she could not recall if the steps were wet or dry.

8 It was the first time she was using the stairs in that area. She saw no sign saying "slippery when wet." She subsequently was shown photographs of the stairway by her husband.

9 After the incident they went to the nurses station and spoke to a nurse there. She called Dr. Weider who came to the hotel. She was in lots of pain, her toe had fallen. She waited for 15–20 minutes for the doctor who gave her prescription for pain. Her toe was x-rayed at an x-ray unit in Ocho Rios. She gave a statement to a security guard at the hotel. The doctor never gave her any treatment for her fallen toe.

10 The plaintiff returned to New York on the 13 ^th of November, 1991, saw her foot doctor on the 14 ^th , he took x-rays. Doctor operated on the toe on the 15 ^th . She went to other doctor about her back. Prior to this incident she had back problem, described as a herniated disc.

11 Before this accident in Jamaica she could walk five miles per day. She can no longer walk that distance. She can't stand or sit too long from 1991 to 2000. Can't stand too long and cook, or vacuum. Can't lay on her back or belly, only on her side, or she gets pain. She can't wear closed shoes, only shoes that allow her feet to spread. During cold weather her foot gets black and blue, she never had this problem before.

12 Before this accident, the plaintiff said she ran her own office as a travel agent. In 1994 she sold the business and went to live in Florida. In January, 1999 she had surgery to take out pins that were holding the broken toe. Since the accident she has been walking differently. The big toe and one next to it were not straight, they were growing away and had to be straightened.

13 The plaintiff incurred expenses arising from this incident. Traveling to Jamaica for trial, hotel expenses, meals, taxi cab, medical expenses, correspondence (the application of Miss Johnson the statement of claim was amended to read that the plaintiff was descending instead of ascending the staircase, also to include special damages claim).

14 The plaintiff returned to Jamaica for the trial and saw Dr. Blake on the 25 ^th of May, 2000. She did x-ray for which she paid U.S.$70.00. She also paid $20,000.00 to Dr. Blake and obtained a receipt, $2,950 for lab services. She spent about U.S.$60.00 per day for meals for herself and her husband. About $400 per day for taxi fare to court and back to the hotel. From hotel to Dr. Blake for x-ray and back to hotel U.S.$42.00. Transportation to see lawyer 26/5/2000 $1,500. From airport to hotel U.S. $22.00.

15 The plaintiff regarded Ciboney Hotel as unsafe and the steps on which she tripped as too smooth, the banister too wide. As a travel agent she would not send anyone to Ciboney.

16 The area in which the pool is at Ciboney is not covered, it is open to the elements. All of her medical bills have been paid and her insurance paid some. Airfare to Jamaica U.S.$345.00.

17 Under cross-examination the plaintiff admitted going up and down the stairs to the witness box every day she testified. She always held the banister. She stayed at Ciboney four days and three nights. Sunday to Wednesday. She fell on the third day and the sun was shining when she went to the pool. She had on her swim suit with a short top over it. She had spent about one hour at the pool at the top level before moving to go to the bottom, but never went into the pool. She don't recall if she was wearing sun glasses. She would not be carrying a bag when re-locating, her husband carried the bags and towels.

18 There was no one in front of her on the steps and her husband was next behind her. There were no objects on the stairs. She did not miss her steps going down the stairs. She was descending the steps, not going from lower level to top level. She did not agree that it was her fault that she slipped and fell. She blamed the steps and the banister for her fall and breaking of her toe. She told Dr. Weider that she slipped and fell on the stairway. She told him where she was having pain. She denied that she did not have any injury to her back as a result of the fall.

19 The plaintiff admitted that she had a previous bump on her right big toe. She did a bunion operation on her right big toe about ten years before this accident. She did not know she had three procedures during the operation on the 15 ^th of November, 1991. She knew of operation for broken toe. She also had operation in 1980 to remove bunion on both feet.

20 The plaintiff denied all suggestions put to her that she did not take care when...