Desnoes and Geddes Ltd v Garry Stewart

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: FORTE, P: , SMITH, J.A.: , McCALLA, J.A. (AG):
• Judgment Date: 03 November 2005
• Neutral Citation: JM 2005 CA 57
• Judgment citation (vLex): [2005] 11 JJC 0302
• Date: 03 November 2005

BETWEEN

DESNOES AND GEDDES LTD.

DEFENDANT/APPELLANT

AND

GARRY STEWART

PLAINTIFF/RESPONDENT

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE McCALLA, J.A. (Ag.)

IN THE COURT OF APPEAL

NEGLIGENCE - Contributory

Emile George, Q.C. and Laurence Jones instructed by DunnCox for appellant.

P. Alexander Beswick and Mrs. Antonette Haughton-Cardenas instructed by Haughton & Associates for Respondent.

FORTE, P:

1 Having read in draft the judgment of McCalla JA, (Ag). I agree with the reasons and conclusions therein and have nothing further to add.

SMITH, J.A.:

2 I have read the draft judgment of McCalla JA, (Ag) and I agree.

McCALLA, J.A. (AG):

3 On June 8, 2005, after hearing submissions, we dismissed this appeal and affirmed the order of the court below with costs granted to the Respondent to be agreed or taxed. At that time we promised to put our reasons in writing and these reasons are in fulfillment of that promise.

4 Desnoes and Geddes Ltd. (the appellant) appealed against the judgment of James J. handed down on May 10, 2002 in favour of Garry Stewart (the Respondent), for damages in negligence and breach of statutory duty under the Factories Act. The Respondent, a lithographic printer had sustained injuries in March, 1995 during the course of his employment with the appellant, when his left hand was crushed by a machine which the Respondent alleged was defective.

5 The appellant prays for an order to set aside the judgment and for judgment to be entered in its favour or alternatively, that there be an apportionment of liability between the parties.

6 The grounds of appeal are as follows:

• "1. The learned trial judge erred in not finding that the Plaintiff was contributorily negligent.

  The learned judge so erred having regard to the following evidence:

  • (i) The evidence of the Plaintiff/Respondent that he placed his hand on the moving roller in an effort to remove a foreign substance.

  • (ii) The evidence of the Plaintiff/Respondent that he knew that it would be safer to attempt to remove the substance by stopping the machine using a button which was within arm's length.

  • (iii) The evidence of the Plaintiff/Respondent that during the 9 years of employment with the Defendant/Appellant he had received safety instructions, reminders or training every six months including instructions not to place hands into or on a moving machine.

• 2. The amount of $1,225,000.00 awarded by the learned trial judge for general damages for pain and suffering and loss of amenities is excessive having regard to the range of awards in previous cases involving Plaintiffs with similar injuries."

7 On June 30, 2004, the appellant filed a supplementary ground of appeal to the effect that "the Learned Trial Judge erred in not finding that the Respondent's admitted deliberate act of folly was the sole and effective cause of his injury. In so erring the Learned Trial Judge also erred in finding the Appellant liable". Leave was not sought to argue this ground, but the court heard submissions from counsel.

8 These are the particulars of negligence which the Respondent alleged:

• "(i) Failing to fence or secure the lithographic machine in an adequate manner or at all and in particular failing to ensure that a metal guard was around same.

• (i) Failing to take the necessary steps or measures to repair the said machine.

• (ii) Causing the Plaintiff to use and operate the said machine when they knew or ought reasonably to have known that same was defective and not functioning properly and in need of repairs.

• (iii) The said machine was at the time of the accident unable to detect that an irregular object albeit the Plaintiff's hand had made contact with same and could not and did not stop automatically as it would otherwise have done had the same been in proper working condition.

• (iv) Failing to keep or to maintain the said machine in proper and reasonable condition and state of repair.

• (v) Failing to use material of sufficient or reasonable quality in its maintenance and repair of its machine.

• (vi) Res ipsa loquitur."

9 The appellant does not deny that on the material date the Plaintiff's hand was injured in one of its machines. However, it denied the particulars of negligence and breach of statutory duty being alleged. It maintains that it abided by the statutory regulations prescribed for the provision of a safe system of work, to ensure the safety, health and welfare of the Respondent at the workplace.

10 The appellant attributed to the Respondent the following particulars of negligence:

"(1) Failing to follow the established procedure when handling a machine that was in operation - to wit, failing to turn off the said machine before placing his hand thereon.

(1) Attempting to remove a foreign object from a machine that he had set in motion and when it was manifestly unsafe and dangerous so to do.

(2) Failure to have heed or sufficient heed for his own safety."

11 A brief summary of the relevant circumstances, extracted from the

12 judgment of James J., is to the following effect:

"The Plaintiff, now aged 36 was employed by the Defendant Company where at the time when this action arose worked at the 'Coating machine'.

In this department, metal sheets from which bottle stoppers are made, are varnished with lacquer by the coating machine so as to enable the plastic liner to hold on the bottle stopper or crown.

On the 15 ^th March, 1995 the Plaintiff was so engaged in his work when he observed some irregularity in the spread of the lacquer on the metal sheets. He stopped the machine and did some adjustment similar to others he had done on numerous occasions. A junior foreman was present.

After making the...