Avis Williams v The Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Thomas, J |
| Judgment Date | 04 October 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2013HCV00216 |
| Date | 04 October 2019 |
[2019] JMSC Civ 218
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2013HCV00216
Ms. Ishia Robinson, Ms. Christine May Hudson instructed by K. Churchill Neita & Co. for the Claimant
Mr. Andre Moulton instructed by the Director of State Proceedings for the Defendant.
Personal Injury — Negligence — Breach of Duty of Care — Employer's Duty to Employee — Occupiers' Liability Act — Common duty to take care — Assessment of Damages.
The Claimant, Ms. Avis Williams, has brought this claim against the Defendant, the Attorney General of Jamaica seeking damages for negligence and/or breach of duty under the Occupiers' Liability Act. Ms. Williams alleges that on or about the 4 th day of April 2007, while taking items to the records unit, she tripped over a desk drawer located in the records unit in the Ministry of Foreign Affairs and Foreign Trade and fell. As a result, she sustained injuries, suffered loss and incurred expenses. She contends that the Defendant failed to consider the duty they had to take reasonable care to provide and maintain a safe and proper place of work, and to take all reasonable precautions for her safety while she was engaged in her employment, not to be exposed to a risk of injury or damage which they knew or ought to have known.
The Defendant, The Attorney General of Jamaica, contends that any injury suffered by the Claimant was due to her inability to reasonably care for her own safety. The Defendant countered by indicating that it was not aware of the desk drawer she allegedly tripped and fell over and that she must identify the desk in question. Further that there was no report of a faulty desk, either by the Claimant or any person who works in the Records Unit.
Further, the Defendant contends that the Claimant:
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(a) Failed to keep any or any proper lookout;
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(b) Allowed and/or permitted the desk and/or desk drawer to be open and/or remain open
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(c) Allowing and/or permitting the desk drawer to protrude into the pathway of the Claimant thereby exposing herself to risk of injury;
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(d) Failing to have or any due regard for her own safety;
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(e) Failing to take any or any adequate precautions for her safety, such precautions to include not walking into the path of the open desk drawer and/or closing the said desk drawer;
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(f) Failing to report the presence of open desk drawer
The Claimant pleads that as a result of the fall she has sustained the following injuries:
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(a) Pain and decreased power with plantar-flexion and dorsi-flexion in the lower back;
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(b) Severe pain on deep palpitation over the right L4/5 facet area with radiation down to her right leg;
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(c) Straight leg raising could not be performed due to pain;
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(d) Nerve root irritation at L4/5 causing radicular pain;
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(e) Mild posterior lumbar disc bulging at L4/5; L5/S1 and cervical spondylosis C3 through C5 with C/3/C4 sublaxation;
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(f) Combined mysofascial pain and neuropathic pain;
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(g) Cervical spondolysis
The effects of her injuries on her activities of daily living are stated as follows:
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(a) Inability to perform normal household chores functions such as washing and sweeping without help
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(b) Inability to wear closed toe shoes for more than a few minutes
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(c) Inability to engage in physical activities such as doing exercise
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(d) Inability to sleep on the right side, back or stomach
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(e) Constant feelings of nausea, drowsiness, dry-mouth, constipation, insomnia, stomach pains, itching due to plethora of medication
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(f) Increased frequency and severity of headaches
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(g) Inability to sit, stand or walk for long periods
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(h) Feelings of depression due to uncertainty over future
This is a claim in negligence and breach of the Occupiers Liability Act. Consequently, the issues which lie to be determined are subject to the commonlaw duty of negligence and the statutory duties imposed by the Occupiers Liability Act.
Therefore, the issues which arise in this case as it relates to the Claim in Negligence are;
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(i) Whether the Defendant owed a duty of care to the Claimant
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(ii) If it is established that the Defendant owes a duty of care to the Claimant; whether the Defendant has breached that duty of care to the Claimant.
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(iii) Whether the Claimant has sustained injuries as a result of the Defendant's breach of its Duty of Care to the Claimant
As it relates to the Claim for Breach of the Occupiers Liability Act: Whether the Defendant through its agent, the Ministry of Foreign Affairs and Foreign Trade has failed to take reasonable care in all the circumstances to ensure that the Claimant would be reasonably safe in performing her duties as an employee in the premises occupied by and under the control of the agent of the Defendant.
In the case of Caparo Industries plc v Dickman [1990] 1 All ER 568, Lord Bridge of Harwich, after reviewing the relevant authorities expounded that the law as it relates to negligence as follows:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” (See page 573–574)
Section 3 of the Occupiers' Liability Act states that:
“3 - (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 in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise.
(2) The common duty of care is the 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 purpose for which he is invited or permitted by the occupier to be there”.
The Claimant testifies that:
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(1) She was employed to the government of Jamaica and assigned duties as a Records Clerk at Ministry of Foreign Affairs and Foreign Trade at 21 Dominica Drive, Kingston 5 in the parish of Saint Andrew. In carrying out of her duties she is required to go to other departments including the Registry and Protocol. On the 4 th day of April 2007, she was required to dispatch the contents of a diplomatic bag containing parcels for the supervisor to sign in the Registry which is on the same floor as hers. There were about eight to ten industrial desks in the Registry at the time. These industrial desks are not single desk, they are attached together and cannot be moved easily. In order to reach to the supervisor's desk from the Registry door she had to pass about eight of these desks and it is about 9 feet from the door to the supervisor's desk.
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(2) She walked through the door of the Registry and made a left turn. She was now facing the back of a chair in front of one of the desks. She walked pass the chair and then turned right at the end of the other desk and took about two steps when she tripped over something near the ground hitting her hands and knees. While on the floor she realized that she fell over the bottom drawer of one of the desk.
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(3) On the same day the accident occurred, Mrs. Sharon Burrell-Green along with other persons working in the Registry converged on the scene of the incident and she told her what had happed. The nature of the accident to include date, the particular desk and things like that was made known to Ms. Sharon Burrell-Green who was present on the scene of the incident when the incident occurred. She was not aware of any time period in which the accident was to be reported. Her supervisor at the time was Ms Burrell Green. Faulty equipment is reported through Ms. Burrell Green, her Supervisor at the time, or anyone in office management. Mrs. Burrell-Green caused a letter to be sent to Medical Associates and Medical Centre for her to be treated at that facility.
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(4) She made a formal written report of the accident about one month later. She also provided Ms. Julia King, the Director of Human Resources, with the names of the persons who were present at the time of the accident to identify the desk. In the year 2009, Miss King contacted her to ask if the desk/drawer was defective. She recalls giving the names of Dayton Thomas, Anthony Williams, Demisha Brooks, Miss Burrell Green, and Mr. Samuel Harris to identify the desk. She gave her the names when she contacted her. She was never contacted further by Ms. King or anyone else from the Ministry in relation to identifying the desk. Dayton Thomas worked at the registry at the time. She denies that she contributed to this accident in any way. She did not work in the Registry and as such she could not have reported the desk as being defective because she was not aware that it was. Further, if she had seen that the desk drawer was open she would have closed it herself or walked around it. She knew the desk was defective because she saw that the drawer was taped shut the day she returned to work (four) 4 days after the incident.
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(5) On cross examination she stated that she carried the contents of the bag in one hand. The books and documents did not obstruct her view when she was walking. She was careful with how she moved around. She was still looking where she was going. She did not see anything obstructing her path way.
The only witness called by the defence is Ms. Julia King, Senior Director in the Human Resource Management and Development Department...
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