Anthonette Perrier v Mcmasters’ Meat Mart Ltd
| Jurisdiction | Jamaica |
| Judge | Wint-Blair,J(AG.) |
| Judgment Date | 18 September 2017 |
| Neutral Citation | [2017] JMSC Civ 124 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. CLAIM NO. 2011 HCV03542 |
| Date | 18 September 2017 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. CLAIM NO. 2011 HCV03542
Ms. Danielle Archer and Ms. Talia Soares instructed by Daly, Thwaites & Company for the claimant.
Mr. Patrick Bailey instructed by Bailey, Terrelonge & Allen for the defendant.
Negligence — Personal injury — Duty of Employer — Occupier's Liability Act
I have been assisted greatly by the written submissions prepared by counsel appearing in this matter. In this judgment I will reference the evidence and submissions only to the extent necessary to explain my findings and decision made on a balance of probabilities. The parties may rest assured that in order to arrive at my decision I have considered all the evidence and all the submissions made by counsel.
The claimant claims in negligence and for breach of statutory duty pursuant to section 3 of the Occupiers Liability Act. By way of an amended claim form filed on June 23, 2015 the claimant claimed damages, special damages, interest and costs as an employee and lawful visitor to the defendant's business. The claimant claimed that on March 1, 2011 upon exiting the defendant's meat cutting room, while carrying out her duties, she slipped and fell on the slippery floor which had been left in that state by the defendant, its servants and/or agents. The claimant relies on the particulars of negligence as filed to ground both causes of action.
The claimant was a 38 year old employee of the defendant company. She had been hired as a cashier to work along with other cashiers in the front of the shop. There are other employees who cut meat in the rear of the shop and servers who take the orders for meat back and forth between customer and meat cutter. All the employees engaged in serving and meat cutting are required to wear safety gear to include water boots.
The material date was the1 st day of March, 2011. On that date, the claimant was still on probation. She said there were 2 meat servers instead of 4. One server was at lunch and another was in the meat room completing an order. There were also many customers waiting to be cashed and served. She took the orders of two customers and went to the meat room to fill them. On returning from the rear of the shop she slipped on the concrete slope which led to the front of the store and fell sustaining injury. She argued that the area was wet and slippery with water from defrosted meat which led to her fall. She said in cross-examination, that she had been told by Pauline to help out as there were many customers and they were short-staffed. This would have been the second such occasion. The boss was not there that day, referring to Mrs. Lisa McMaster-Phipps. She said she did what she saw other cashiers do, namely, serving meat to the customers.
The parties disagree on the job description given to the claimant when she was hired. The claimant submitted that as a part of her duties the defendant required her to serve customers on the shop floor. She gave evidence that there were 12 servers who were employed to take the meat from the meat room. In cross examination, she denied that the meat servers were required to wear gloves. She said she had to wear gloves sometimes but did not elaborate on the reason for this. She also admitted knowing that every morning meat was taken from the freezer for defrosting it which meant there was water on the floor of the meat room. She had never seen the floor being washed or mopped, the workers would only use a broom on the floor.
The claimant in cross-examination said on March 1, 2011 she went into the meat cutting room to collect the order of two customers as she had been instructed to do so by the supervisor. She knew that meat had been taken from the freezer as usual to thaw. She saw water on the floor of the meat room from thawed meat. This was the state the meat room had been in since November 2010 when she was hired and on March 1, 2011 it had not changed. She wore slippers every day and on that date her slippers had a leather sole. She took a chance to help. She was in a hurry as customers were angry that they were not being served. She did not stop to look at the meat room floor. To exit the meat room she had to walk on a downward slope which led to the shop floor. She put the welfare of her customers and boss's money before herself. All the other cashiers were at their registers. This slope was slippery. She fell sustaining an olecranon frature and wrist fracture of the right wrist. Her arm was fractured at both the elbow and wrist.
The defendant's case was that the claimant was on probation on March 1, 2011. The area where meats are cut to order is always wet, as it is washed up to fifteen times a day to sanitize the area. The workers who come in contact with meats are given gloves, water boots, hair nets and aprons to wear. They are not expected to come in contact with money as they handle meat for customers. Conversely, cashiers have no duties which involve going into the meat room and are employed to collect money, provide change to customers and balance their till at day's end. They are not given any uniforms or special gear. The defendant gave evidence that there were four servers in March 2011 and that the policy of the company was to ensure sanitary conditions for service to their customers.
The defendant denies liability in negligence and any breach of statutory duty as alleged. They argue that the claimant was on a frolic of her own when she decided to go into the meat room. She is the author of her own misfortune. Alternatively, the defendant if found liable should be made to pay damages consistent with the a reduction in the award by 75% as the claimant's contribution to the accident. The defendant argued further that volenti non fit injuria applied.
The defendant gave evidence through one witness Lisa McMaster-Phipps, Director of the company. She and her husband have operated the company since 2005. There are six full time staff members. She worked as a cashier in the business and there are five servers. In 2011, cashiers were employed to weigh meats on a digital scale, collect money and hand customers their orders. Cashiers also bagged other orders. They were not responsible for packaging meats, they were not employed to go into the meat room and bring orders to the register as it would be unsanitary for them to handle both money and meat. They were only trained to cash goods. The business also employed meat servers who were trained to weigh and package orders. The meat servers were to wear gloves, hairnets, aprons, long pants, uniform shirt and water boots. The cashiers worked at the front of the store, behind them was a shelf with grocery items for sale. At the back there is an upward slope used for moving the meat cart in and out of the storage area. There is also a step which leads to the meat room.
The employees wash the area which may have drained meats fifteen times a day and dry the area with a mop. This is to maintain sanitary conditions. The defendant's witness admitted that she could not refute the factual situation as she was not there when the incident occurred and only learnt of it afterwards.
It was unchallenged that Mrs. Mc-Master Phipps worked in the store as a full time cashier and that it was she who primarily supervised the claimant. In cross-examination Mrs. McMaster-Phipps admitted that she had spoken to the claimant maybe once as it was the supervisors who dealt with the cashiers. She had never seen the claimant or any other cashier go into the meat room. Her evidence was that she would not have had to tell the claimant not to go into the meat room as that was not part of the job description the claimant would have been given on being hired. Mrs. Mc-Master Phipps agreed that it was Pauline who interviewed the claimant and who would have outlined the job description of a cashier. She herself could not say what job description would have been given to the claimant. The servers are supervised by herself and, Pauline. Servers cannot serve until they have changed from their street clothes into their safety gear. There was a sign on the cold room door which said “Authorized persons only” in respect of entry into the meat room.
Both sides agreed that when Pauline wasn't there Beverly would be in charge, the claimant said that on the material date, she received instructions to take meat orders from the supervisor.
The system for handling meat as described by the defendant's witness was that meat would be taken from the freezer and placed on a cutting table in the cutting area for defrosting. Water could not escape from the table to the floor as there was a drainage system in place under the cutting table. There is a slope to the front of the store some 7 feet 5 inches from the cutting table. The meat room is washed some 15 times a day and a broom is used to scrub the floor. Employees fill a bucket with water from a full sink in the room, when the water pressure is low, from the buckets they throw water onto the floor. Otherwise, a hose is used. They also take water out to the serving area and repeat this exercise. The area would be dried after. There is a drainage system by the serving area.
This is done to keep the area clean and hygenic. Sanitizer is used as directed by the public health department. Pauline or Beverly ensures that this is done. The witness was there almost every day to ensure that the supervisors comply. She disagreed that there was no system in place to prevent cashiers from entering the cutting room or proper supervision of cashiers. The system employed was that she, Mrs. McMaster-Phipps, was there each day, coupled with the job descriptions which had been given to each...
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