Channus Block and Marl Quarry Ltd v Curlon Orlando Lawrence

• Jurisdiction: Jamaica
• Judge: Morrison P,Sinclair-Haynes JA,Pusey JA (AG)
• Judgment Date: 15 February 2019
• Neutral Citation: JM 2019 CA 8
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2013
• Date: 15 February 2019

IN THE COURT OF APPEAL

BEFORE:

THE HON Mr Justice Morrison P

THE HON Mrs Justice Sinclair-Haynes JA

THE HON Mr Justice Pusey JA (AG)

SUPREME COURT CIVIL APPEAL NO 16/2013

BETWEEN:

Channus Block and Marl Quarry Limited

Appellant

and

Curlon Orlando Lawrence

Respondent

Mrs Nesta-Claire Hunter instructed by Ernest A Smith & Company for the appellant

Sean Kinghorn instructed by Kinghorn & Kinghorn for the respondent

Morrison P

Introduction

1 In a judgment given on 11 January 2013, Sykes J (as he then was) (‘the judge’) found for the respondent in a claim against the appellant, his former employer, for negligence and breach of duty to provide a safe system of work.

2 The claim arose out of an accident at the workplace in which the respondent sustained injuries which the judge, without exaggeration, characterised as catastrophic. As a result, the respondent had to have bilateral above-knee amputations, leading to a 64% whole person disability and a subsequent diagnosis of post-traumatic stress disorder and major depression.

3 The judge's finding against the respondent was based on his conclusion that (i) its servant or agent, Mr Owen Bailey (‘the ancillary defendant’), having negligently done the act which caused injury to the respondent, the appellant was vicariously liable for his conduct; and (ii) the appellant, as the respondent's employer, was in breach of its duty to provide him with a safe system of work.

4 Having found for the respondent, the judge awarded him substantial damages, made up of general damages of $34,256,000.00, and special damages of $1,782,012.18 1.

5 The judge also gave judgment for the appellant against the ancillary defendant and ordered that the sum of the contribution to be made by him should be the full sum for which the appellant was liable to the respondent. There is no appeal against this finding or order and nothing further therefore needs be said about it.

6 In this appeal, the appellant challenges the judge's findings as to both liability and damages. As regards the former, the appellant contends that, bearing in mind the “overall facts” of the case, the judge erred in finding the appellant liable, on the basis of either vicarious liability or breach of duty to provide a system of work (‘the liability issue’). As regards the latter, the appellant complains that (i) the judge's award of

general damages was “wholly erroneous and inordinately high”; and (ii) the award of special damages was wrong in principle, in that it included items which were not pleaded and proved by the respondent (‘the damages issue’).

The liability issue

The evidence

7 The judge's terse summary of the facts of the case suffices to establish the basic background:

“[3] The context of this claim is a horrific accident that took place on September 23, 2006 in which [the respondent] lost both legs above the knee. He was assigned the task of cleaning a machine known as a [concrete] mixer. This mixer was controlled by four switches. Two are known as isolator switches and the other two are called on/off switches. One on/off switch operates paddles in the mixer where [the respondent] was. The other activates the conveyor belt which is connected to the mixer. The isolator switches prevent electricity from reaching the on/off switches. In order to get the machine working, both isolator switches have to be turned on and even then the machine does not work. The on/off switches have to be turned on as well. In this case it is alleged that the isolator switches were turned on and the paddle switch turned on and this led to [the respondent's] injuries.”

8 The evidence which the judge accepted was that the respondent, who was employed to the appellant as a labourer, and the ancillary defendant, were assigned by Mr Donovan Bailey, one of their supervisors, to clean the mixer. This was usually done by using a two pound sledgehammer to remove hardened concrete deposited on the inside of the mixer whenever it was used to make concrete blocks. While the respondent was, unknown to the ancillary defendant, actually inside the mixer, the latter pressed the on/off switch and thereby activated the paddles, thus injuring the respondent.

9 In its pleaded defence and evidence at trial, the appellant took the position that, in pressing the on/off switch, the ancillary defendant acted deliberately and with malevolent intent to cause injury to the respondent. Based on remarks allegedly made by the respondent to the appellant's managing director, Mr Anthony Charley, at the hospital after the accident, the appellant's case that the ancillary defendant was motivated to kill the respondent because of, as the judge put it 2, “a dispute over money and a female”. However, the ancillary defendant strongly denied this and, in his evidence before the judge, he maintained that he had done so inadvertently, not knowing that the respondent was inside the mixer.

What the judge found

10 The judge rejected the appellant's position and accepted the ancillary defendant's evidence on this issue. Expanding on his conclusion on the point, the judge said this 3:

• “[42] Before leaving the issue of liability something must be said about the company's allegation that [the respondent], in conversation with Mr Charley said that the [ancillary defendant] tried to kill him because of a dispute over money and a female. The theory was that [the ancillary defendant]

  from his vantage point could have seen inside the mixer and he also could have heard when [the respondent] was using the hammer to clean the mixer.

• [43] The court wishes to say that none of this was established by reliable and cogent evidence. Any serious allegation of this nature must be established by strong evidence. They involve very serious imputations on the character of a person and ought not to be lightly made.

• [44] It became clear from the evidence that the company did not have good evidence to back up its assertions of malevolence. The case of malice because of a dispute over money turned out to be false. The explanation given by [the respondent] and [the ancillary defendant] was that on the day of the incident [the ancillary defendant] borrowed JA$1,000.00 from [the respondent] who asked for JA$500.00 extra when the money was being repaid. The [ancillary defendant] agreed to this Shylockian interest rate of fifty percent. The court accepts this explanation.”

11 In answer to the respondent's case that the appellant had failed to provide him with a safe system of work, Mr Charley gave evidence of the company's safety protocol for the cleaning of the mixer. Basically, this required that the person cleaning the mixer should padlock the various switches and keep the key in his possession while doing the cleaning. The protocol was designed, as the judge explained it 4, “to prevent anyone from turning on the mixer while it was being cleaned because there was the risk of serious injury if that happened”.

12 However, based on the evidence given by Mr Donovan Bailey, the judge found that the appellant had failed to comply with its own safety protocol on the day of the accident. This is how the judge concluded this section of the judgment 5:

• “[36] The company's safety protocol for cleaning the mixer has been stated. Let us now look at what happened. Mr Donovan Bailey's evidence is that he took off the padlock. He turned off the isolator switch. He went to the office. He was the one who assigned [the respondent] to clean the mixer. He never said, in accordance with the safety protocol outlined by Mr Charley, that he relocked the switches or instructed [the respondent] to do so or saw that it was done … He did not testify that he gave the key to [the respondent] with clear and explicit instructions to lock the switches and keep the key in [his] pocket. In short, Mr Donovan Bailey did not ensure that the company's safety protocol was followed. Mr Donovan Bailey breached the crucial parts of the safety protocol as outlined by Mr Charley. This translates into a lack of supervision and breach of the safety protocol which means that there was a breach of duty to provide a safe system of work.

• [37] To put it bluntly, Mr Donovan Bailey's evidence really amounts to an admission that no safety protocol was used on the fateful day when the mixer was being cleaned. No measures were put in place after he removed the padlock to ensure that the very thing that the padlock was used to prevent did not happen.”

13 The judge next went on to highlight 6 a further area of weakness in the appellant's system of work, that is, the lack of training of either the respondent or the ancillary defendant:

• “[38] There is no evidence that [the respondent] was specifically instructed about the safety protocol relating to cleaning the mixer. There is no evidence that he was told that he should padlock the switches and keep the key in his pocket. It appears that [the respondent's] training for cleaning the mixer was less than rudimentary regarding the safety aspect of the job as distinct from actual mechanics of cleaning the mixer.

• [39] The court's impression of the lack of adequate training was reinforced by Mr Donovan Bailey's testimony on the point. When cross examined his testimony was that the only precaution he told the respondent to take when cleaning the mixer was that he should not go in while it is running.”

14 In the result, the judge found the appellant liable on the basis of (i) vicarious liability for the negligence of the ancillary defendant in turning on the switch of the mixer; and (ii) breach of its duty to provide a safe system of work to the respondent, by its failure “to execute the safety protocol on the day in question”; and, secondly, “to train adequately [the respondent] and [the ancillary defendant] for the task of cleaning the mixer”.

15 As regards the applicable law on the issue of vicarious liability, the...