Calvin Morris v Geary Hutchinson
| Jurisdiction | Jamaica |
| Judge | Lindo, J |
| Judgment Date | 13 November 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2014 HCV 05648 |
| Date | 13 November 2020 |
[2020] JMSC Civ 217
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2014 HCV 05648
and
Ms Lesley McCalla instructed by Robinson, Phillips & Whitehorne and Ms Kinberley Facey and Ms Courtney-Dawn Johnson instructed by Facey and Partners for the Claimant
Mrs Tana'Ania Small Davis, Ms Keisha Spence and Ms Monique Hunter instructed by Livingston, Alexander & Levy for the Defendants
Negligence and/or Breach of Statutory Duty — Whether Claimant was an independent contractor — Employer's Liability — Volenti non fit injuria — Contributory negligence
Damages — Assessment — Personal injury — Loss of earning capacity — Loss of earnings — Future medical expenses
Mr Calvin Morris (Calvin) (the Claimant) a mechanical labourer and fisherman, was among a group of men engaged in bushing and clearing debris from along the Jamaica Public Service Company's distribution lines in Bellefield, Saint Mary after the passage of Tropical Storm Sandy in November, 2012. His father, Mr Dave Morris, (Dave) as well as his brothers and other men from the community were also involved.
On November 6, 2012 while the men were in the process of cutting down a guango tree, with the aid of a power saw, a large branch fell, causing serious injury to Calvin.
By his Amended Claim Form and Particulars of Claim filed on September 14, 2018 Calvin is seeking to recover damages for negligence and/or breach of statutory duty against the defendants as a result of personal injuries and loss suffered by him.
He alleges that he was hired by Mr Hutchinson on behalf of the Jamaica Public Service Company (JPS Co) and that the incident happened while he was carrying out his assigned duties. He attributes his injuries to the negligence of the Defendants in their failure “ to provide…a safe system of work, a competent staff of men, adequate training…plant and equipment…”, among other things.
In their amended defence filed on November 7, 2018, the Defendants deny any negligence or breach of statutory duty on their part and contend that the injuries sustained by Calvin Morris were caused by his own negligence or the negligence of the independent contractor to whom he was employed/and or engaged. In their particulars of negligence of the claimant they also plead “ volenti non fit injuria”
The Defendants aver that Calvin was not “employed and/or hired and/or contracted” by Mr Hutchinson, but it was his father, Dave who was engaged as an independent contractor and that Dave held himself out as having the requisite expertise and a reliable crew to carry out the work. They deny that Mr Hutchinson gave instructions for the guango tree to be cut down and state, in the alternative, that if such instructions were given by him, it was not in a supervisory capacity but to ensure that the workmen understood the scope of the work to be carried out.
The trial commenced on November 4, 2019 and lasted for five days during which time the court heard evidence from Dr Rory Dixon, the expert witness, and from Calvin Morris, Dave Morris, Tomica Morris and Wesley Gibbs who gave evidence in support of the claim, and from Shelton Thomas and Geary Hutchinson who gave evidence on behalf of the Defendants.
The Bundle of agreed documents, (including receipts totalling $78,455.00 as part of the special damages claimed) filed on October 18, 2019 was received in evidence.
Dr Rory Dixon, Orthopaedic surgeon, was called as an expert witness and his evidence was by way of video link from Nice, France, where the oath was administered to him by Ms Aurelib Baillie, an attorney at law. His reports dated March 25, 2014, January 14, 2016 and July 19, 2018 were admitted in evidence. He states that in all three reports he assessed Calvin as having 50% impairment guided by the Guides to Assessment of Permanent Impairment (Table 13–12).
The following documents were also admitted in evidence through this expert witness:
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1. Receipt dated March 25, 2014 in the sum of $25,000.00
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2. Receipt dated January 14, 2016 in the sum of $45,000.00
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3. Medical report dated December 10, 2013 signed by Dr Thein H. Soe
When cross examined by Ms Spence, Dr Dixon admitted to being guided by the Medical Association Guidelines to the Evaluation of Impairment, 6 th Edition, and agreed that it introduces new approaches to assessing impairments. He said the 4 th Edition, termed Diagnosis Related Estimates or Injury Model, allows for assessment of impairment based solely on diagnosis. Dr Dixon stated that it is not totally correct to say that based on the 4 th edition, even if a patient had not reached maximum medical improvement (MMI) an impairment rating could still be obtained because it would depend on the medical condition. He disagreed that based on the 6 th Edition guidelines, the main focus is on the permanent impairment when MMI has been reached and stated that the main principle of the 6 th edition concerns factoring in the functional capacity of the patient when they have achieved MMI. He said he was rating functionality when the patient has achieved MMI and agreed that based on his report dated March 24, 2014, Calvin had not reached MMI when he assessed him as having a 50% impairment rating. He disagreed that his assessment was not in keeping with the 6 th Edition guidelines, but agreed that in the reports dated January 14, 2016 and July 19, 2018, there are two instances where he stated that Calvin had reached MMI.
Dr Dixon said Calvin's cost of living, estimated in his reports as $2.3m, is based on Economic Impact of Spinal Cord Injury published in the journal “Topics in SCI Rehabilitation, Volume 6, No. 4, 2011, and that the figures are based on data from the United States of America, as currently the Caribbean has no data. He admitted that he did not include data from Jamaica relating to the inflation rate, but that the figure quoted in the journal article was between US$2.1 to US$5.4M. He denied that his reports provided very little information as to the medical procedures carried out.
In re-examination, Dr Dixon said in relation to rating functionality, when he stated that Calvin has reached MMI and improved thereafter, he means:
“Comparing to where he started from, bedridden, Mr Morris was better able to balance himself in terms of sitting up properly and stand with support. He cannot walk, he cannot run but by definition, he would still remain at 50%.”
The witness statement of Calvin Morris dated January 15, 2019, stood as his evidence. He states that on November 4, 2012 he was hired by Mr Hutchinson and became part of a team of seven men who worked along the roadway from Esher Gully towards Egypt Pen crossing. He says they reported directly to Mr Hutchinson who told them which areas to bush, which trees to cut and that they were to clear the power line twelve feet apart, on each side of the road. He adds that they were not given any orientation, protective gear or equipment and there was no supervision when they were working.
He also states that they finished working at about 5pm and went home, and at about 7pm, Mr Hutchinson came to his house, indicated that he wanted to restore electricity to the police station that night, and along with the other men, including his father, he went with Mr Hutchinson and they finished working about 8pm.
Calvin states further that on the following day, before they started working, Mr Hutchinson made a note of their names, and that during the day, he, Mr Hutchinson, hired five more men. He says they cleared debris from the police station to a light post about a mile away and that there was a second set of work men who were ‘linesmen’ who worked under D.S. Wedderburn Limited and they were responsible for restoring electricity. He adds that towards the end of the day, Mr Hutchinson gave them instructions for the following day's work and inspected the work done on that day and during the inspection, he noted that a guango tree was not cut and specifically instructed the bushing crew to cut it from its root.
He says Mr Hutchinson told them to report to work early the next day and that they could start working without him and gave them a piece of rope about 20 feet long. He says further, that on November 6, 2012, they went to where they had stopped working the previous day, he was assisting his brother Levan, to cut the guango tree and noticed that it was going to fall in the road and he tried to run across the road but a limb from the tree fell onto his back and he became unconscious. He states that when he regained consciousness he was in severe pain and he recalls being rushed to the Annotto Bay Hospital.
In amplifying his evidence, Calvin said he did not know Wesley Gibbs and that Mr Hutchinson gave instructions for them to start working before the lines men, “to give them a lead”. He said five of them started and Mr Hutchinson sent “two more power saw man” and it was the guango tree Levan was cutting that fell on him.
In relation to his employment before the incident, he said he did mechanic work two days per week and “ ketch crab and shoot fish” and that he would earn $40,000.00 from the mechanic work and sometimes $20,000.00 or more, from fishing. He said he saw a psychiatrist whose first name is Yvonne, and that he paid her and received a report, but she is now dead.
When cross examined by Mrs Small-Davis, Calvin stated among other things, that when they went to the Egypt Pen crossing on Sunday, November 4, 2012, he saw a JPSCo van from which Mr Hutchinson came and said he wanted some workers to do bushing. He said he told Mr Hutchinson he had no experience in bushing but he “ ...
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