Easton Marsh v Guardsman Ltd
| Jurisdiction | Jamaica |
| Judge | Edwards, J. |
| Judgment Date | 28 October 2011 |
| Judgment citation (vLex) | [2011] 10 JJC 2801 |
| Court | Supreme Court (Jamaica) |
| Date | 28 October 2011 |
| Docket Number | CLAIM NO. 2006 HCV 01819 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2006 HCV 01819
Mr. Dale Staple instructed by Kinghorn and Kinghorn for the Claimant
Ms. Kristina Exell instructed by Bailey Terelonge Allen for the Defendant.
Negligence- breach of contract of employment- motor vehicle accident- whether caused from mechanical defect- provision of equipment by employer- duty of care- differing expert opinions- res ipsa loquitur.
THE CLAIM
This claim for damages in negligence and/or breach of contract arose out of a motor vehicle accident which occurred on December 16, 2005. The claimant at the time of the accident was employed to the defendant on a one year contract, at the level of a Security Officer but with his substantive duties being that of a driver. He now claims before this court that whilst driving the defendant's vehicle in the lawful execution of his duties, the vehicle overturned. He has averred that the direct cause of the accident was a mechanical defect which was a consequence of the defendant's negligence in the maintenance of the said vehicle. As a result, he claimed to have suffered injury and loss.
He also claimed that he was in the lawful execution of his duties as a Security Contractor under a contract of service with the defendant when as a consequence of the negligent manner in which the defendant executed its operations in the course of his trade, he was exposed to risk of injury and as a result he sustained serious personal injury and suffered loss and damage.
Further, or in the alternative, his claim against the defendant is to recover damages for Breach of Contract for that in or about the year 2005, he and the defendant entered into a contract of service whereby it was agreed that in consideration of certain remuneration he would provide his services as a Security Guard to the defendant. It was an expressed or implied term of the contract that the defendant would take all reasonable care to execute its operations in the course of his trade in such a manner so as not to subject him to reasonably foreseeable risk of injury. In breach of the said contract the defendant exposed him to reasonably foreseeable risks of injury as a consequence of which he sustained serious personal injury and suffered loss and damage.
In his particulars of claim, the claimant particularized the defendant's negligence as;
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a. Failing to take reasonable care to provide effective, danger free equipment to the claimant in the execution of his duties.
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b. Providing the claimant with a defective vehicle to drive.
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c. Failing to take reasonable care to carry out the requisite checks on the said motor vehicle to ensure that same was safe to be driven before giving the said motor vehicle to claimant.
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d. Failing to provide the requisite warnings, notices and/or special instructions to the claimant and his other employees in the execution of his operations so as to prevent the claimant being injured.
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e. Failing to provide a safe system of work.
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f. Failing to provide a competent and sufficient staff of men.
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g. Failing to modify, remedy and/or improve a system of work which was manifestly unsafe and likely at all material times to cause serious injury to the claimant.
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h. Causing the said motor vehicle to lose control and overturn.
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i. Failing to implement a safe system which would prevent the claimant sustaining injury as was sustained by the claimant.
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j. Failing to warn or take reasonable care to warn, the claimant of the possibility of probability of the said motor vehicle being mechanically defective.
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k. Failing to take reasonable care in all the circumstances to carry out its operation in such a manner so as not to expose the claimant to reasonably foreseeable risks.
He also listed general particulars of negligence against the defendant for:
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(i) Failing to take reasonable care to provide effective, danger free equipment to the claimant in the execution of his duties.
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(ii) Providing the claimant with defective vehicle to drive.
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(iii) Failing to take reasonable care to carry out the requisite checks on the said motor vehicle to ensure that same was safe to be driven before giving the said motor vehicle to claimant.
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(iv) Causing the said motor vehicle to lose control and overturn.
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(v) Failing to warn or take reasonable care to warn, the claimant of the possibility or probability of the said motor vehicle being mechanically defective.
The Claimant averred that he suffered the following injuries which were listed in his particulars of claim:
The Defence and Counter Claim
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(i) Dislocation of the right shoulder
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(ii) Open fracture of the right elbow (olecranon)
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(iii) Degloving injury to the right forearm
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(iv) Degloving injury to the right hand
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(v) 15 × 8 cm scar over the right olecranon
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(vi) Deformity of the fingers of the right hand particularly the middle and ring fingers
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(vii) Loss of the extensor tendon of the right index finger
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(viii) Flexion of the elbow was grade 3
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(ix) Deformity of the index, middle and ring fingers
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(x) No extensor tendon to the index finger
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(xi) Fixed flexion deformity of 30 degrees
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(xii) No movement at the proximal interphalangeal joint of the middle finger and distal interphalangeal joint of the ring finger.
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(xiii) Flexion of the fingers at the metacarpophalangeal joints was about 45 degrees.
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(xiv) 45 degrees of flexion at the PIP J and 30 degrees of flexion of the distal IPJ.
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(xv) Chronic dislocation of the PIP J of the middle finger and the DIPJ of the ring finger
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(xvi) Permanent partial disability of 27%
Guardsman Limited, through its attorneys, have denied any negligence or breach of contract as asserted and claimed that the accident was due wholly or partially to the claimant's own negligence. They have counter claimed for the cost of the repairs to the motor vehicle in the sum of $1,100,000.00.
The Issues
The issues as itemized by both sides are:
LIABILITY
The Claimant's Submissions
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(1) Whether the defendant is liable in negligence or in breach of contract of employment, for providing the claimant with a defective vehicle, if so;
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(2) Whether the defect caused the accident;
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(3) If answer to 1 and 2 is in the negative, was the accident and loss of the bus due to the claimant's own negligence.
On December 15, 2010, the claimant commenced a full driving shift with the defendant's vehicle, a Toyota Reguaice, registered 1385 EN. His evidence was that before commencing the shift, he carried out his usual routine checks to ensure the vehicle was in reasonable condition to carry out the task. The shift began at 7 p.m. and involved several routes in and out of the corporate area.
The accident occurred December 16, 2005 sometime after 7 a.m. at the end of the claimant's shift. He was returning from his home in Port Royal and whilst negotiating a right hand corner, the bus continued drifting right. Another vehicle was coming in the opposite direction so he aggressively turned the steering wheel to the left, he felt the bus go down on his side, which was the right side, flipped over, slid on the side and ended in a ditch, flipped again and came to a stop on the left side of the road.
The claimant had described it as the vehicle becoming unbalanced and it was submitted on his behalf that in the normal course of events, a vehicle does not become unbalanced unless there is an inherent defect. The fact of the vehicle becoming unbalanced required some explanation from the defendant to show that it was not due to any negligence in their maintenance of the vehicle.
The claimant's description of the action of the vehicle, it was submitted, was supported by the vehicle examiner's evidence that the ball joint was broken. Mr. Forde, the examiner, testified that when a ball joint broke, the vehicle would go down on the side of the break and touch the road service. He also testified that the control arm would fall to the ground and would leave an indentation in the driving surface.
It was submitted that the claimant's account did not suggest negligence on his part but suggested that the vehicle had an inherent defect. It was further submitted that the inherent defect was a damaged or worn ball joint which gave way following a hectic night of driving. It was argued that the only conclusion to be drawn was that it was the defective ball joint which caused the accident and therefore the defendant was to be blamed.
It was also submitted that the defendant was in breach of contract with the claimant to provide him with the proper equipment with which to perform his task and not to expose him to reasonable and foreseeable risk of harm in the course of his employment.
The claimant's contention was that it was as a consequence of the failure by the defendant to properly and sufficiently maintain the motor vehicle that it developed a mechanical defect, resulting in the accident.
The Law
The common law duty of care owed by an employer to an employee is to take reasonable care for their safety; Davie v New Merton Board Mills Limited (1959) 1 ALL ER 346. It includes the duty to provide a competent staff of men, adequate plant and equipment, a safe system of work with effective supervision and a safe place to work. The duty also involves providing sufficient staff to assist an employee in performing his tasks.
The employer must take the necessary steps to provide adequate plant and equipment for his workers and he will be liable to any workman who suffers injury though the absence of any equipment which is obviously necessary or which a reasonable employer would recognize as being necessary for the safety of the worker.
There may be instances where the employer is liable...
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