Curlon Orlando Lawrence v Channus Block and Marl Quarry Ltd
| Jurisdiction | Jamaica |
| Judge | Sykes J |
| Judgment Date | 11 January 2013 |
| Neutral Citation | [2013] JMSC Civ 6 |
| Docket Number | CLAIM NO. 2006 HCV 03638 |
| Court | Supreme Court (Jamaica) |
| Date | 11 January 2013 |
[2013] JMSC Civ 6
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2006 HCV 03638
Sean Kinghorn , Alithia Leith and Danielle Archer instructed by Kinghorn and Kinghorn for the claimant
Symone Mayhew and Michael Deans for the defendant
Ancillary defendant unrepresented
NEGLIGENCE — VICARIOUS LIABILITY — WHETHER ACT OF EMPLOYEE SUFFICIENTLY CONNECTED TO EMPLOYEE'S DUTIES TO MAKE EMPLOYER LIABLE — BREACH OF DUTY TO PROVIDE SAFE SYSTEM OF WORK
Mr Anthony Charley, managing director of Channus Block and Marl Quarry Limited (“the company”), seem agitated by the possibility that the company may be held liable for injuries suffered by Mr Curlon Lawrence on September 23, 2006 while working as a labourer at the company's plant at Brown's Town, St Ann. Mr Lawrence suffered severe injury to both legs, which resulted in both legs being amputated above the knee, when Mr Owen Bailey, another employee of the company, switched on the paddle of a mixer on a block making machine. Mr Lawrence was inside the mixer cleaning it. He has framed his claim in both the torts of negligence and breach of the employer's duty to provide a safe system of work. In respect of the tort of negligence, Mr Lawrence is relying heavily on the principle of vicarious liability, that is, the company is to be held liable for the negligence of Mr Owen Bailey even though the company may not be at fault.
The company took the uncommon but legally valid step of bringing an ancillary claim against its former employee Mr Owen Bailey. The company is asking the court to find that Mr Owen Bailey is to make a contribution to the company in the event that it is found liable to Mr Lawrence. Mr Owen Bailey's defence was struck out some time ago. He attended this trial but in his capacity as a witness for Mr Lawrence and not as the ancillary defendant. Indeed, Mr Owen Bailey took no part in the proceedings other than in the manner just indicated.
The context of this claim is a horrific accident that took place on September 23, 2006 in which Mr Lawrence lost both legs above the knee. He was assigned the task of cleaning a machine known as a 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 Mr Lawrence 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 Mr Lawrence's injuries.
It has been said that vicarious liability is based on social and economic policy. That policy has decided that the employer should bear the damage arising from any negligent acts by his employee if the negligent conduct is sufficiently connected to the employee's job so that it can be said that he was acting on the employer's behalf at the crucial time. Vicarious liability does not depend on the employer being at fault. Indeed, the employer need not be at fault and no such conclusion is necessary. In fact, the employer may have done all that he could possibly have done to avert or prevent the injury which has occurred but the law, based on social and economic policy, will still hold him liable because he has engaged in an activity that carries with it certain risks. The employer, like the injured party, may be innocent of any blameworthy behaviour. The serious social question that arises in vicarious liability is this: of the two innocent parties which of them should bear the actual loss that arises from the negligent conduct of the employee? It has been said that justice and fairness dictate that the employer be responsible for those torts which are reasonably incidental to the business he operates. Why should this be so? The very general proposition is that anyone who employs another (excluding independent contractors) for his own purposes inevitably creates the risk that the person so employed may act negligently and therefore once the employer creates that risk (by employing another) then social and economic policy concludes that he should bear the risk of loss or damage which may arise ( Lister v Hall [2001] 2 AC 215, [64] Lord Millett). The negligent conduct of one employee to another employee or to a third party is one of those risks which are reasonably incidental to any kind of business or activity. In practical terms, vicarious liability is loss-distribution device ( Lister [64] Lord Millett).
The concept is not applicable only to business entities. Thus householders who employ gardeners take the risk that he may light a fire that escapes and burns the neighbour's house. Persons who offer care to children take the risk that the caregiver might molest the children under their care.
The difficulty many have in accepting this principle of vicarious liability is compounded when one is dealing with intentional torts (that is torts where the employee embarks upon a deliberate course of conduct such as killing, maiming or drafting documents that facilitate fraud), or where the tort is not presented by the claimant as an intentional one but the employer's defence resists the claim on the basis that the conduct of the employee was motivated by malice, spite or ill will. The problem also arises even if the tort is not presented in the forms just indicated by either the claimant or the defendant but the defendant asserts that the employee acted beyond “the scope of his employment.”
Any of the responses by the defendant just indicated always necessitates a close examination of the facts to see whether vicarious liability arises. In this regard the language now used is that of closeness of the alleged tortious act with the employee's job. This new found language is said to be more appropriate than the hitherto now-frowned-upon phrases such as “within the scope of employment”, “on frolic of his own”, “unauthorised mode of doing the job”, “unauthorised act” and such like. The new language, it is said, has not introduced a new concept but simply sharpened the focus of the analytical lens. This analytical model was triggered by the Canadian Supreme Court's decisions in Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. These decisions greatly influenced the House of Lords in Lister and Dubai Aluminium Ltd v Salaam [2003] 2 AC 366. These influences were eventually felt in Jamaica through the Judicial Committee of the Privy Council's decisions in Bernard v The Attorney General of Jamaica (2004) 65 WIR 245 and Brown v Robinson (2004) 65 WIR 258— both decisions from Jamaica. The Board also considered the matter in Attorney General v Hartwell (2004) 64 WIR 103, an appeal from the Court of Appeal of the Eastern Caribbean (British Virgin Islands). The Court of Appeal of Jamaica in Wright v Morrison [2011] JMCA Civ 14 held that the new language found in the advice of Privy Council and the judgments of the House of Lords applies to torts generally and is not restricted to intentional torts.
This sharpened analysis necessitated the reinforcement of some basic ideas. First, in order to make the defendant liable, the claimant must do more than show that the job created the opportunity to commit the tortious act. Second, he must show that the conduct complained of was so closely connected with the job functions of the employee at the material time that it is fair and just to hold the employer vicariously liable.
The Court of Appeal of England and Wales have held that where it can be said that the tortious act is closely connected to the job function of the employee then it will normally be fair and just to impose liability on the employer liable ( Gravil v Redruth Rugby Football Club Ltd [2008] IRLR 289; [2008] EWCA Civ 689 ).
The focus is on the nature of the employment, the duties of the employee and the act complained of. If, looking at the matter broadly, the act is closely connected with the employment and duties required then the employer will be held liable. The analysis by Lord Steyn of Lloyd v Grace, Smith & Co [1912] AC 716 in Lister provides a classic example of what is intended by the new language. In the Grace, Smith case, had the managing clerk rummaged through the bag of the client while she was sitting in the waiting room to see an attorney and stole the document to commit his tortious act then that would be a case of the job providing the opportunity to commit the tort. However, the firm held out the managing clerk as someone to whom the claimant could legitimately hand the documents which she did. Likewise in Morris v C W Martin & Sons Ltd [1966] 1 QB 716, the claimant handed the fur to a furrier who in turn handed over to the defendant for cleaning. The defendant's employee stole the fur. The defendant was has held liable because their employee got the fur in his capacity as an employee to clean the fur. He took it and stole it. The result would have been different if the employee had broken into the claimant's house and stole the fur.
As these cases have shown the employer cannot deflect liability by saying that what was done was a crime. The tortious acts ranged from dishonest misrepresentation in order to steal the client's property ( Grace, Smith ), to larceny ( Morris ), to preparation of a document to facilitate a criminal conspiracy (Dubai), to...
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