Dorothy Henry v Superior Plastics Ltd
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 06 June 2002 |
| Judgment citation (vLex) | [2002] 6 JJC 0601 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C.L. H-104 OF 1994 |
| Date | 06 June 2002 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
EMPLOYER'S LIABILITY - Negligence - Personal injuries - Breach of statutory duty - Breach of common law duty to provide safe system of work - Award of damages
November 20, 1991 will live long in the memory of the plaintiff. That was the day on which she was injured at her place of work, Superior Plastics Limited, located in salubrious Mandeville, Manchester. The plaintiff in this matter has lost four fingers on her right hand and the distal phalanx on the thumb of her right hand. According to the medical report of Dr. Ian Titus, dated July 28, 1992, the injuries received by the plaintiff meant that she lost "90% of her hand function [which] represents a (sic) 81% loss of upper limb function and a 49% loss of whole body function." The plaintiff herself says that since her accident she is unable to work. She is unable to comb her hair, cook her meals or wash her clothes. The plaintiff now has the function of her left hand only.
She now seeks to recover damages for her injuries from her employer by bringing an action under the Factories Regulations made pursuant to the Factories Act and for breach of the employer's common law duty of care to provide a safe system of work for employees. At the commencement of the trial the plaintiff sought, without objection from the defendant, to amend the endorsement on the writ of summons and the statement of claim. The writ and the statement of claim bear the same date, April 28, 1994. The endorsement on the writ did not refer to any breach of statutory duty but only to a claim in negligence whereas the statement of claim particularised the claim in both negligence and breach of statutory duty. Mr. Williams sought to amend the endorsement to include a claim for breach of statutory duty and to amend the statement of claim to add that the defendant was in breach of their common law duty to provide a safe system of work with effective supervision. These amendments were granted.
Shortly after cross-examination of the plaintiff began Mr. Adidepe, for the defendant, applied to amend his defence by deleting "1993" and substituting it with "1991" in paragraphs 1, 3 and 4 of the defence. This was clearly an error since it is agreed that the accident occurred in 1991 and not 1993. The amendments were granted.
THE EVIDENCE
The plaintiff contended that she was a weekly paid employee of the defendant. Her employment with the defendant began on July 25, 1991 and ended on November 20, 1991, the date of her injuries. She says that she was employed to do a number of tasks including operating the machine that she says injured her. According to the plaintiff, she was taught to operate the machine by Mrs. Senior (called Mrs. Beswick by plaintiff) who was a manager of the defendant company. The plaintiff said that the machine that she was taught to operate functioned in this manner: the machine made large pieces of plastic. The machine by some process would make the piece of plastic and when it was ready to be removed a red light would come on. This would alert her to the fact that a piece of plastic was now made and ready for removal. She would open the door with her left hand and remove the plastic from a part of the machine that was described as a "round piece" with her right hand. From the description I formed the view that it was similar to two rolling pins, only much larger. The piece of plastic when it emerged from the machine would be hot to the touch. She would have to grab hold of it, remove it quickly from the machine and deposit it on a nearby table. The door would then be closed and the machine would resume its cycle. The plaintiff said that at times the plastic would be so hot that it would fall from her hands to the floor. She added that the machine itself generated much heat. She says that she was not provided with any gloves to handle either the door or the plastic. She said further that the red light would remain on even after the plastic was removed and would only go off when the door was closed.
On the fateful day she was operating the machine in the manner above when a piece of plastic got stuck. Despite her strenuous efforts she could not remove the plastic from the "round piece". She tugged even harder but it would no budge. The next thing she knew was that her right hand was caught in the "round piece". When this happened she says that no one else was in the factory. Her cries of anguish brought no response until after a period twenty minutes when another co-worker, one Miss Brown, entered the factory, saw what was happening and raised the alarm. At one point she said that Miss Brown raised the alarm and then fainted immediately. At another point she said that it was Miss Brown who removed her hand from the machine. In cross-examination she said that she could not say who took her hand from the machine because she was "so fainted". Despite being "so fainted" she was able to see Mrs. Senior and Mr. Wright, the supervisor, rushing into the factory after Miss Brown had screamed. She said that it was Mr. Wright who turned off the machine.
The plaintiff said that prior to her employment in the factory she had never worked in a factory before and in relation to the machine she only had received only two weeks training. She said that she told Mrs. Senior that the machine was dangerous and the response was, "Nothing will happen to you."
To bolster her case, she added that the machine did not stop operating when the door was opened. The "round piece" moved from back to front and this motion continued when one was removing the plastic. She said that she was not able to turn off the machine because she was not taught how to do this.
As I listened to the plaintiff I could not help but think that she was describing a factory that had only been catapulted forward in time but remained essentially a nineteenth century operation that existed during the worst days of the industrial revolution.
For good measure the plaintiff added that the factory contained twenty five machines and while the machines were operating a tremendous din was created that had the effect of smothering her screams. In addition she said that in the factory music was playing very high volume. This was no doubt put forward as an explanation for the apparent lack of response to her cries of distress for twenty minutes. No other witness testified for the plaintiff.
The plaintiff, in an attempt to demonstrate that she worked at the machine asserted throughout her evidence, that she does not interfere with anything unless she is given specific instructions to do so. No doubt she was saying that she would not be at the machine unless she was placed there to work. No other witness testified for the plaintiff.
The defendant called three witnesses - Mrs. Senior, Mr. Wright, the supervisor and Mr. John Senior who was also a supervisor as well as the brother in law of Mrs. Senior. Mr. Wright and Mr. Senior were also responsible for the maintenance of the machines. Mrs. Senior and the other witnesses made it abundantly clear there were only four machines in operation at the factory. The technical descriptions came from Mr. Wright and Mr. Senior. The machines were Reed Injection Moulding machines. They varied in size and tonnage but those at the factory were of two types: 150 tons and 300 tons. There were two of each. From the explanation given by the two gentlemen these machines were quite sophisticated. Both types machines could be operated in either full automatic or semi-automatic mode.
Full automation was said to be appropriate for the 150-ton machine because it made small items such as the cover for a 16oz bucket of ice cream.
The 300-ton machine made bigger objects and although it could be completely automated it would not be prudent to operate it in that manner.
Full automatic mode/operation means that the machine can make its products without any human being needed to operate the machine or touch the machine save to add more raw material to the hopper. In other words, once the machines were properly calibrated and enough raw material was in the hopper and the machine switched on, barring some malfunction, it would make the products until the raw material was finished.
Semi-automatic mode means that human intervention was needed to remove the finished product from the taddle.
Both types of machines operated in identical manner save that the 300-ton machine was in fact operated as a semi-automatic machine. What follows is a description of the operation that is common to both machines. Where they differ I will so indicate.
According to Mr. Wright, in the mornings as soon as he arrived at the factory the machines would be switched on. Next he would go to an electrical panel that provided the electrical energy that heats a barrel that is on the machines. This barrel liquefies the polystyrene that is used to make the plastic products. The polystyrene gets to the barrel from a hopper into which the material is placed. After the barrel has been heated for some time a small sample is ejected from the barrel for the purpose of seeing whether it is of the right consistency to be used in the manufacturing process. This sampling is called "purging". The heater was controlled by timers that tripped on and off thereby regulating the temperature of the barrel. This was the method of regulating the temperature in the barrel. The barrel itself is movable. It can be slid forwards and backwards.
When it was determined that the material was of the appropriate consistency the barrel would be moved forward to another part of the machine known as a taddle. This taddle has two parts: male and female. The male portion of the taddle is mobile and moves back...
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Reid (Joseph) v Mobile Welding and Engineering Works Ltd and Newton Rodney
... ... 32 Defendants' counsel referred to the Jamaican case of Henry v Superior Plastics Limited, Suit No: C.L. H - 104 of 1994 , heard by ... ...