Fisher (Jestina Baxter) (as mother and near relative of Langston Burke) and Administrator General for Jamaica (Administrator for the estate of Langston Burke deceased) v Winston Atkinson and Others

• Jurisdiction: Jamaica
• Judge: CLARK, J.
• Judgment Date: 23 June 2000
• Judgment citation (vLex): [2000] 6 JJC 2303
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L. 1993/F-202
• Date: 23 June 2000

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 1993/F-202

SUIT NO. C.L. 1993/R-249

BETWEEN

JESTINA BAXTER FISHER (As mother and near relative of LANGSTON BURKE)

1 ^st PLAINTIFF

AND

THE ADMINISTRATOR GENERAL FOR JAMAICA (Administrator for the Estate of LANGSTON BURKE deceased)

2 ^nd PLAINTIFF

AND

WINSTON ATKINSON

1 ^st DEFENDANT

AND

HECTOR STEPHENSON

2 ^nd DEFENDANT

AND

ALLAN STONE (Acting on behalf of themselves and all other members of the Board of management of St. George's College)

3 ^rd DEFENDANT

AND

H. WISDOM (GENERAL CONTRACTORS) LIMITED

4 ^th DEFENDANT

AND

THE JAMAICA PUBLIC SERVICE COMPANY LTD.

5 ^th DEFENDANT

AND ALSO

BETWEEN

CLIFTON ROBINSON

PLAINTIFF

AND

WINSTON ATKINSON

1 ^st PLAINTIFF

AND

HECTOR STEPHENSON

2 ^nd DEFENDANT

AND

ALLAN STONE (Acting on behalf of themselves and all other members of the Board of Management of St. George's College)

3 ^rd DEFENDANT

AND

H. WISDOM (GENERAL CONTRACTORS) LIMITED

4 ^th DEFENDANT

AND

THE JAMAICA PUBLIC SERVICE COMPANY LTD.

5 ^th DEFENDANT

^{st nd rd}

^th

^th

NEGLIGENCE - High tension electricity lines - Electrocution - Electric shock injury - Whether caused by defendant's negligence or breach of statutory duty - Whether plaintiffs responsible for accident by reason of negligence - Whether contributory negligence - Occupier's Liability - Award of damages

CLARK, J

1 The Board of Management of St. George's College is sued through its representatives, the first, second and third defendants, whom I shall hereinafter refer to as St. George's College. In 1992 they were desirous of constructing additions to the "Butler Building" classroom block on their campus at Winchester Park, North Street in the parish of Kingston. They accordingly instructed a firm of architects, David Kirkwood and Associates Limited, to prepare working drawings for the construction of the said additions. When these had been prepared tenders were invited and in due course the fourth defendants entered into a written J.C.C. standard form of building contract with St. George's College dated 15 ^th June 1992.

2 Before and during the construction of the additions, high tension electricity lines servicing the campus ran north to south along a section of the premises to the west but to the rear of the Butler Building. Prior to the commencement of construction the lines were some 30 feet from the nearest point on the building and ran on posts and apparatus provided by the fifth defendants for supplying electricity pursuant to the Electric Lighting Act. The work on the project involved the construction of another storey on the top of the existing building as well as an expansion of it at the northern end. The building was transformed from a rectangular shaped structure into T-shaped one, two floors high. The expansion of the northern end, consistent with the T-shape, brought the north western section of the addition significantly closer to the high tension electricity lines.

3 Langston Burke was employed by the fourth defendants to do steel work on the project. Burke in turn employed (Clifton Robinson, a resultant plaintiff, to assist him. By December, 31, 1992 the walls and columns of the upper floor had been added. On that day Burke was standing atop the ground floor, and Robinson was standing in a box eave about 22 feet from the ground. They were in the north western section of the T-shaped structure. Burke was passing 30 feet long steel bar to Robinson. While Burke was passing the third steel bar to Robinson same came into contact with the fifth defendants' high tension power lines which were alive at the material time. Burke was electrocuted and Robinson suffered electric shock injury and damage.

4 Separate actions have been brought against all the defendants: one by Mr. Robinson and the other by the mother of Langston Burke, deceased, under the Fatal Accidents Act by the Administrator General on behalf of the deceased's estate under the Law Reform ( Miscellaneous Provisions) Act. In both actions, tried together by consent, the plaintiffs claim that the damage and loss which they suffered were caused by the defendants' negligence or breach of statutory duty.

5 It is, I think, unarguable that the power lines were in such close proximity to the building that whilst performing their normal work on the site Burke and Robinson were exposed to the risk of injury or death if the line were energised. The primary issues, as Mr. Henry correctly identified, are therefore as follows:

• (a) Whether the defendants or any of them are liable for the injury, loss and damage which Robinson and the dependants and estate of the deceased Burke have suffered by reason of both men coming into contact with the energised high tension lines.

• (b) Whether Robinson and/or Burke were wholly responsible for the accident by reason of negligence of the one and/or the other, or whether one or both of them were contributorily negligent and so partly responsible for the accident.

6 It will now be convenient to consider the question of the liability of the several defendants.

7 St. George's College (1 ^th , 2 ^nd and 3 ^rd defendants)

8 The plaintiffs' claim for damages against St. George's College is based on the Occupiers Liability Act and on the general law of negligence. I have no doubt on the evidence before me that the fourth defendant, themselves independent contractors, employed Burke as an independent contractor to do steel work on the project. And Burke in turn employed Robinson, as he was wont to do, to assist him in the steel work that was sub-contracted to him. Burke and Robinson were therefore visitors within the meaning of the Occupiers Liability Act. The occupier(s) of the work site owed them the common duty of care "in respect of damages due to the state of the premises or to things done or omitted to be done on them", that is to say, "the duty to take care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for which he is invited or permitted by the occupier to be there": see sections 2(1) and 3(2) of the Occupiers Liability Act.

9 The test of who is an occupier of premises is whether a person has a sufficient degree of control associated with, and arising from his presence in, or use of, or activity in, the premises to ensure their safety and to appreciate that a failure on his part to use care may result in injury to a person lawfully coming on to them: see Wheat v E. Lacon & Co. Ltd. [1966] A.C. 552 at 577–579 per Lord Denning. Two or more persons may be occupiers of the same premises, each under a duty to use such care as is reasonable in relation to his degree of control: see Hals, Laws of England, Fourth Ed. Vol. 33, para. 630. In one case, the owners of a club and the defendants who ran a restaurant in the club under a license were both held to be occupiers:

10 Fisher v. C.H.T. Ltd. and Others [1960] 2 Q.B.475. And in another case a building contractor and the building owner were both occupiers of the whole building although part of the building was separated by a screen beyond which the building contractor only went to attend to heating and lighting:

11 AMF International Ltd. v Magnet Banking LTD [1968] 2 All E.R. 789. Although the fourth defendants in the case before me were unarguably occupiers of the work site, a question that arise concerns whether St. George's College were also occupiers of the site.

12 While I bear in mind that the work site was at all material times fenced around by the fourth defendants to whom possession had been given by St. George's College under a contract, I accept the evidence that St. George's College through their representatives, David Kirkwood the architect, and Father Schneider, the President of the College, attended all site meetings and gave directions concerning the conduct of the work and the performance of the contract. I find therefore, that St. George's College as owners did not divest themselves of control over the work site to the fourth defendants as to take them (St. George's College) outside the scope of being occupiers at the relevant time. Indeed, although the question of who is an occupier is a question of mixed law and fact, their statement of defence admitting that they were owners and/or occupiers is consistent with that finding.

13 So, was the common duty of care in relation to Burke and Robinson broken by St. George's College? Section 3(6) of the Occupiers Liability Act, relied on by Mr. Pearson, provides as follows:

"Where damage is caused to a visitor by a danger due to the execution of any work of construction, maintenance or repair by an independent contractor, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps, if any, as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done".

14 The principal argument for St. George's College related to the general rule of non-liability of an employer for the negligence of their independent contractor in the execution of the work and to the applicability of section 3(6) of the Occupiers Liability Act. They are not liable as employers for the negligence of their independent contractors, the fourth defendants, and a fortiori they are not liable for the negligence of Burke to whom the steel work was subcontracted as an independent contractor by the fourth defendants...