Ehoan Green v The Captain's Bakery Ltd
| Jurisdiction | Jamaica |
| Judge | Anderson, K., J |
| Judgment Date | 18 July 2014 |
| Neutral Citation | [2014] JMSC Civ 103 |
| Docket Number | CLAIM NO. 2008 HCV 0538 |
| Court | Supreme Court (Jamaica) |
| Date | 18 July 2014 |
[2014] JMSC Civ. 103
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2008 HCV 0538
Aon Stewart and Ano Miller , instructed by Knight, Junor & Samuels for the Claimant
Alexander Williams and Anthony Williams , instructed by Usim, Williams & Company for the Defendant
CLAIM FOR BREACH OF STATUTORY DUTY AND/OR NEGLIGENCE — DUTY TO SECURELY FENCE ANY DANGEROUS PART OF ANY MACHINERY IN A FACTORY — DUTY TO SECURELY FENCE IS NOT DEPENDENT ON WHETHER MACHINE CAN BE USED AS INTENDED WITH SECURE FENCING OF SAME IN PLACE — DEFINITION OF “DANGEROUS PART”— WHETHER PROTECTION AFFORDED TO THOSE WHO UNAUTHORIZEDLY INTERACT WITH DANGEROUS PARTS OF MACHINERY IN A FACTORY
This claim is for damages for breach of statutory duty under the Factories Act and/or negligence.
The claimant has listed in his particulars of claim, the respective circumstances which he has alleged occurred, on the 7 th day of October, 2003, whilst he was then an employee at the defendant's workplace. Those listed circumstances are as follows:
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“(a) The defendant was in breach of their common duty of care under the Factories Act in that they caused or permitted the claimant to be exposed to conditions in which the defendant knew or ought to have known that the said dough machine was extremely dangerous and could cause serious injury in particular to the claimant.
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(b) Failed to ensure that the claimant was properly trained in the use of the said dough machine.
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(c) Failed to give the claimant protective gear and/or garments for his protection while using the said dough machine.
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(d) Failed to have a supervisor monitoring the work that the claimant was doing on the said dough machine.
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(e) Failed to consider that the claimant was not trained in the use of the said dough machine and thereby exposing the claimant to danger.
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(f) Failed to ensure that the claimant would not be at risk of injury by the said dough machine.
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(g) Failing to take any or any adequate precautions to ensure the safety of the users of the said dough machine and in particular the claimant.
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(h) Failed to fence and/or provide a safety fence around the said dough machine.”
Of all the aforementioned particulars of breach of statutory duty and/or negligence, it is noteworthy that only the averments listed as (a), (f), (g), and (h), are of particular importance and thus are worthy of serious consideration by this court, based on the particular facts of this particular case. This is so because the other averments made as regards alleged negligence and/or breach of statutory duty by the defendant in relation to the claimant, could only have been successfully proven if it had been the claimant's case, that at the time when the injuries to him, which form the subject of this claim, occurred, he had been assigned by the defendant to work either on or with the defendant's dough break machine. That though, has never been the claimant's case, as will be addressed in further detail, further on in these reasons for judgment. As such, in these reasons, this court will address its mind to issues concerning the safety of the defendant's dough break machine, at the material time, considered particularly in the context of both that which the claimant's counsel has quite properly conceded, was the claimant's unauthorized use of that machine, at that time and the Factories regulations of Jamaica.
The claimant was born on May 7, 1976 and was aged 27 when he suffered injury while working at the defendant's workplace, which is admittedly a “factory” within the definition of that term as set out in the Factories Act , as it was then a location at which the defendant had in place, machinery and equipment and employees, who baked bread and pastries and cakes, there, using that machinery and equipment.
The claimant suffered serious injuries and deformity of his left hand, arm, elbow and forearm. He has proven those injuries, by means of his own evidence and also, by means of expert evidence which was provided to this court in an expert report which was prepared by Dr. Melton Douglas.
The claimant gave evidence of loss of amenities, but did not at all allege same in his amended particulars of claim. In the circumstances, rule 8.9A of the Civil Procedure Rules (CPR) , precludes him, even if he is successful in proving the defendant's liability, from recovering any damages for loss of amenities.
The claimant has claimed for damages, interest and costs and in respect of special damages, has claimed $24,000.00 for a medical report. That expense has been proven. He has also claimed $4,400.00 for medication. That expense has also been proven, as has his transportation expense of $2,850.00. He has also claimed for loss of income, but as was admitted by his counsel, the claim for loss of income has been wholly unproven. The claim for legal costs cannot properly be claimed for as special damages and not surprisingly, the claimant's attorney has also conceded on this point.
Section 12 of the Factories Act permits “the Minister” to make regulations from time to time, for the purpose of ensuring the safety, health and welfare of persons who are employed in any factory, or in connection with machinery and in that regard, the Minister is specifically empowered to make regulations for the fencing and covering of all dangerous places or machines, as well as securing safety in connection with all operations carried out in a factory, as well as in connection with the use of any machinery.
Such regulations, under the Factories Act , do exist in Jamaica. Those regulations are the Factories regulations , 1961. In particular, those regulations provide that –“ Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every worker as it would be if securely fenced .”
Only one defence witness testified in this case, namely, Wayne Saulter, who functions as the defendant's Chief Executive Officer and who also functions as the defendant's financial controller and as the person responsible for matters pertaining to the defendant's personnel. He was functioning as the financial controller with responsibility for the defendant's personnel, at the time when the claimant began working with the defendant and thus, is aware of training which the claimant received in respect of the use by the defendant's employees, of the dough break machine at the defendant's factory.
The claimant's work history at that factory has been far less than beneficial to him, this insofar as he had been employed by the defendant on March 10, 2003, as a general production worker. On June 2, 2013, while being trained to operate the dough break machine, the claimant's right arm was injured as a result of an accident with the said machine, following on which, the claimant underwent medical treatment and physical therapy completely at the defendant's expense, inclusive of payment of the claimant's weekly salary. The claimant had gone on sick leave as a result of that accident and he returned to work on September 29, 2003, while still then undergoing physical therapy. The claimant was then assigned lighter work duties. Not long thereafter, the accident at that factory, for which the claimant is now seeking redress, occurred. The same occurred on October 7, 2003, while the claimant was assigned to work only with the divider machine. That accident though, occurred during the claimant's unauthorized use at that time, of the dough break machine.
All of the facts as hereinbefore referred to, are undisputed and have been derived either from the evidence of the sole defence witness – Mr. Saulter, or from the claimant himself, or from a combination of both of these sources. It is equally too, uncontradicted, that the claimant failed to follow the defendant's standard operating procedure when using and/or operating the dough break machine at the defendant's factory, on the relevant occasion for the purposes of this claim, and that his injuries resulted from his left hand having been dragged onto the dough break machine, during a process whereby the defendant was, without having been authorized to do so, grabbing dough which had previously been falling to the ground from the dough break machine and throwing that dough which was falling, back onto that dough break machine. During the process of throwing the dough back onto the machine, the dough wrapped around the claimant's left hand, as a consequence of which, his left hand was then dragged onto the rollers of the dough break machine and the fingers of that hand was crushed and additionally, he suffered injury to his left arm, his left elbow and his left forearm. As a consequence, the claimant has suffered permanent partial disability to the extent, as certified by Dr. Douglas, of 38%. Those portions of the claimant's body have also been significantly disfigured and this court did, during trial, see that.
The defence witness has made it clear to this court, while he was undergoing cross-examination, that if the dough break machine were to be fenced, the same could not be used, since, according to his evidence, which is uncontradicted in this respect, the dough break machine would not be able to pick up the dough, if it were to be guarded. Whilst that evidence has not been contradicted, this court is, of course, not obliged to accept it. See: Industrial Chemical Co. (Jamaica) Ltd v Ellis– [1986] 35 WIR 303. As such, this court had to consider such evidence, as indeed all other evidence in this case, carefully. This court has done just that. This court knows nothing of the working of a dough break machine other than to the limited extent that it learnt of same from the...
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