Desmond Bennett v Jamaica Public Service Company Ltd and Another

JurisdictionJamaica
CourtCourt of Appeal
JudgePanton P,McIntosh JA,Brooks JA
Judgment Date19 Jul 2013
Neutral Citation[2013] JMCA Civ 28
Docket NumberSUPREME COURT CIVIL APPEAL NO 66/2009

[2013] JMCA Civ 28

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 66/2009

Between:
Desmond Bennett
Appellant
and
Jamaica Public Service Company Limited
1st Respondent
Clarence Bailey
2nd Respondent

NEGLIGENCE - Electrically-charged wires - Claimant injured - Personal injuries - Damages for negligence and breach of statutory duty - Leave to appeal decision to grant judgment in favour of Jamaica Public Service Co. - Causation - Res ipsa loquitor -Escape of dangerous thing - Whether Jamaica Public Service Co. was liable for claimant's injuries

Panton P
1

I have read, in draft, the judgment of Brooks JA. I agree fully with his reasoning and conclusion and have nothing to add.

McIntosh JA
2

I too have read the draft judgment of Brooks JA. I also agree and have nothing to add.

Brooks JA
3

On 28 April 1995, the appellant Mr Desmond Bennett suffered life-changing injuries when he came in contact with electrically charged wires installed by Jamaica Public Service Company Limited (JPS). JPS is the holder of a licence to supply electricity to the public. Mr Bennett was, at the time, working as a mason on the roof of a two-storied house at number 23 Sherlock Crescent in the parish of Saint Andrew.

4

In 1999, Mr Bennett instituted a claim against JPS to recover damages for negligence and breach of statutory duty. JPS, in turn, joined the owner of the house, Mr Clarence Bailey, as an ancillary defendant. It sought a contribution and/or indemnity from Mr Bailey, in the event that the court found that it was liable to Mr Bennett. The claim came on for trial before R Anderson J in February 2006. The trial occupied the court's attention for a number of days of hearing, which stretched over the course of five months. Judgment was delivered on 24 April 2009.

5

The issues before the learned trial judge turned on the pleadings and questions of fact as well as of law. In resolving those issues, he found in favour of JPS, essentially determining that Mr Bennett had not proved that it was liable for the injuries that he had suffered. The learned trial judge, therefore, gave judgment for JPS againstMr Bennett with costs to JPS. He also ruled that JPS should pay Mr Bailey's costs, but that it could recover those costs from Mr Bennett.

6

Mr Bennett has appealed against this judgment. Mr Ainsworth Campbell, on his behalf, filed 41 grounds of appeal in seeking to have this court overturn the judgment of the court below. These wide-ranging grounds criticised, among, other things, the findings of fact, the finding in respect of the duty placed on JPS and the application of the law. JPS has also appealed against the learned trial judge's order that it should pay Mr Bailey's costs in respect of the ancillary claim. It argues that Mr Bailey's costs should be paid directly by Mr Bennett. Before addressing the grounds of appeal, it would be of assistance to outline the factual background to the claim.

Factual background
7

The project that Mr Bennett was engaged in included an extension to the front section of the upper floor of the house. The extension brought the building closer to the JPS wires, which ran in front of it. The event resulting in his injury was not the first occurrence of electrical shock at those premises. Just one day prior to this incident, that is on 27 April 1995, the electrician employed on that construction project suffered electrical burns while working on the same building.

8

Mr Donald Card, who was the contractor in charge of the work, was very shaken by that previous incident. He testified at the trial that he and Mr Bennett assisted the injured electrician from the roof where the electrician had been working. Because ofthat experience, Mr Card resolved that he would not go back to work on the building under those conditions.

9

According to Mr Card, Mr Bennett was, at the time of assisting the electrician, similarly disinclined to resume work in those circumstances. It seems, however, that Mr Bennett's resolve was not as firm as Mr Card's. On the morning following the incident with the electrician, Mr Bennett approached Mr Card suggesting that they should both go back to work on the building. Mr Card declined the invitation, and sought to dissuade Mr Bennett from returning to the building. Mr Bennett, however, dismissed Mr Card's entreaties. According to Mr Card, Mr Brown's response was that ‘him have children so him haffi work’ (paragraph five of Mr Card's witness statement). Mr Bennett had initially included Mr Card as a defendant to the claim but he discontinued against Mr Card. At the trial, Mr Card gave evidence at the instance of JPS.

10

Mr Card was not the only person who sought to convince Mr Bennett not to work in those conditions. A maintenance engineer employed to JPS, Mr David Archer, testified that he went to number 23 Sherlock Crescent at about 1:00 pm on 28 April 1995. He said that when he got there, he saw a man working on top of the building. He noticed that the existing structure was being extended. At paragraph four of his witness statement, he described the scene thus:

‘…It appears as if an additional floor was being built on top of the existing building and also a balcony which was extending outwards towards the road. The additional floor and balcony were being constructed very close to JPS' electric lines/conductors which ran along poles erected along the road. On observation it appeared that the distance between the electric lines/conductors and the modificationsto the existing building was in breach of the clearances stipulated by JPS. The distance appeared to be less than 5 feet both horizontal and vertical. Construction steel was vertically protruding out of concrete blocks which were being placed on top of the existing building which posed even greater danger as metal is a conductor for electricity.

11

Mr Archer said he noticed a man working on top of the building. The man, Mr Archer said, was ‘too close to the JPS' electric lines/conductors as he could almost reach out and touch [them] if he raised his arms in the air or to the side’. In addition to that situation, the man had a metal object in his hand ‘which would cause electricity to flow much easier into and through his body resulting in electric burns and possible electrocution, should he touch any of the electric lines/conductors or get caught in the electric field’.

12

Mr Archer said that he warned the man of the danger of injury and death occurring in those circumstances, as those electric lines/conductors were carrying 24,000 volts. He tried to convince the man to stop working there, but the man dismissed his warnings and entreaties, saying that, ‘he knew what he was doing’.

13

Mr Archer then left the scene intending to report the situation and to have the construction stopped. Within an hour of leaving, he received some information that led him to the burn unit at the University Hospital. At the hospital, he saw a patient suffering from electrical burns. The patient was the same man that he had spoken to at number 23 Sherlock Crescent earlier that day. The patient proved to be Mr Bennett.

14

Mr Bennett was not able to give any details as to how he came to be injured. In his witness statement, he said that he was working on the roof with others but they had left him working there. He finished working at about 1:30 pm. He took up his tools and was walking toward the ladder to get off the roof. He said that as he was walking under a high-tension wire that was running over the roof and about eight feet above the roof, he heard a loud sound. According to him, ‘I know nothing more until I found myself in University Hospital of the West Indies about 11:00 p.m.’.

15

The only witness who claimed to have seen what occurred was Mr Jomo Gibbs. Mr Gibbs was only 10 years old at the time of the incident. He was then at home, directly across the road from number 23, at number 16 Sherlock Crescent. He saw the men working on the roof at about 2:00 pm. He described the incident, at paragraph five of his witness statement, in this fashion:

‘…I saw when [Mr Bennett] started to stand up. He was then about 2 feet from the overhead wires. I saw when he was lifted and dangling from the wires. Then I heard a loud explosion like the bursting of a high balloon. Then I saw a little ball of fire from the transformer that was by 23 Sherlock Crescent. I had been sitting on the balcony of my house and saw everything.’

At paragraph six, Mr Gibbs described what happened next, and gave a graphic outline of Mr Bennett's initial condition:

‘Bennett fell on the gravel that was on the ground missing some spikes just by a shave. About twenty minutes later a policeman on [a] bicycle and a passerby took Bennett away. His skin had [been] burnt and I could smell the flesh burning. His shoes caught fire and his clothes were burnt unto his body. Bennett asked for water but no one gave him any.’

16

That condition was only to get worse. Mr Bennett described his resultant injuries and disabilities at paragraph 14 of his witness statement:

‘Because of the accident I have lost both legs above the knees, damaged my eyes and sustained serious bodily burn [sic] all over my body. My head and face were burnt, my chest, shoulders, stomach, upper and lower arms were all burnt.’

17

In addition to the evidence as to fact, there was also technical evidence adduced before the learned trial judge. Mr Archer gave that evidence on behalf of JPS and Mr Earl Parker gave evidence on behalf of Mr Bennett. The details of that evidence will be addressed during the course of assessing the ground of appeal against the findings of fact by the learned trial judge.

The grounds of appeal
18

Mr Bennett's 41 grounds of appeal need not be set out in full, neither will they be considered...

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2 cases
  • Ernest Smith & Company v Hugh Thompson
    • Jamaica
    • Supreme Court
    • 29 May 2020
    ...a reasonable time guarantee under section 16 (2). 24 In Desmond Bennett v Jamaica Public Service Company Limited and Clarence Bailey [2013] JMCA Civ 28, the Court of Appeal accepted time standards emanating from the Caribbean Court of Justice. One of the grounds of appeal in that case was t......
  • Cowell Anthony Forbes v Miller's Liquor Store (Dist) Ltd
    • Jamaica
    • Court of Appeal
    • 11 January 2016
    ...(Emphasis supplied) 71 Cobham has been relied upon for that principle by this court in Desmond Bennett v Jamaica Public Service Co Ltd [2013] JMCA Civ 28 (see paragraph [72]). The court of appeal of Belize also cited Cobham with approval in Arthur Hoy Jr and Another v Aurora Awe and Others ......