Garth Burton v Jamaica Biscuit Company Ltd
| Jurisdiction | Jamaica |
| Judge | Straw J. |
| Judgment Date | 23 February 2011 |
| Judgment citation (vLex) | [2011] 2 JJC 2301 |
| Docket Number | CLAIM NO. 2008HCV04637 |
| Court | Supreme Court (Jamaica) |
| Date | 23 February 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2008HCV04637
Mr. Shawn Kinghorn instructed by Kinghorn and Kinghorn for Claimant
Mr. David Johnson instructed by Samuda and Johnson & Defendant
Employers Negligence — Vicarious Liability —Safe System of Work
The claimant is an assistant line operator employed to the defendant and has been employed to the said company since 1998/99.
The defendant company operates a factory and is in the business of making and manufacturing biscuits for sale.
On December 7, 2006, two of the claimant's fingers were amputated while he was engaged in the process of clearing a machine referred to as a cutter on Band plant number two at the company's premises. He is suing the defendant on the basis, firstly, of vicarious liability i.e., his injuries occurred due to the negligence of the defendant's servant and/or agent. Secondly, he is suing the defendant for negligence as an employer and alternatively, for breach of an express or implied term of the contract of employment that the defendant would take all reasonable care to execute his operations in the course of its trade in such a manner so as not to subject the claimant to reasonably foreseeable risk of injury, and that in breach of the said contract, the defendant has exposed the claimant to reasonably foreseeable risks of injury.
Agreed Facts
Both parties agree substantially on the facts surrounding the incident which are outlined below:
The Claimant's Account
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— On December 7, 2006, the claimant was assigned to Band plant number one as the assistant operator. He was on the 10:00 p.m. to 6:00 a.m. shift. His duties included pushing out the dough, putting it into the hopper and then pressing the button to close the gate, sending up the dough and dumping it. His duties also included clearing the cutter if it was jammed.
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— The Band plant is normally operated by the operator and an assistant. At some point during the shift, the claimant was called to Band plant number two by a co-worker, Cleveland O'Hara, the assistant operator for the said plant to assist in clearing that cutter as the dough was not running smoothly through that section of the machine.
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— On each Band plant machine, there are 16 emergency buttons. There is also a control panel, 6 to 7 feet from the cutter section of the Band plant with an emergency or kill switch. There are also other buttons on this panel that can shut down particular areas of the Band plant. However, once the emergency switch is engaged, the Band plant is totally shut down. It can only be restarted by discharging the emergency switch and pressing a button.
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— If the cutter is jammed, the equipment should be shut down immediately by pressing the nearest emergency button.
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— At the particular time, Mr. Burton stopped the machine. Both parties disagreed as to the method he used to do so. The claimant instructed Mr. O'Hara not to restart the machine until he told him to do so. While he was in the process of clearing the cutter with his hands in the cutter area, Mr. O'Hara restarted the cutter section. As a result, the claimant's index fingers were cut off.
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— Since the incident, the defendant has changed the system in relation to rectifying problems that might occur. The control panel now has locks on it. The person who turns it off, locks it and keeps the key so that no one else can access it. This is described as the lock out/tug out system.
The claimant contends that he shuts down the entire operation for the Band plant by engaging the kill switch on the control panel. He further contends that while he was clearing the cutter, he heard Mr. O'Hara moving towards the control panel but he paid no attention to him as he had instructed him not to turn it on until directed.
He is contending, and there is no evidence to contradict him, that Mr. O'Hara accidentally and negligently turned on the machine.
His evidence that he had engaged the emergency switch is inconsistent with evidence contained in his witness statement. In that statement, he stated that he went over to the control area of the machine and shut down the cutter section by pressing the stop button. He further stated that there was no need to use the button that shuts down the entire machine as it was just the cutter area that had the problem. He explained that the system of work was so designed that one could shut down the cutter section independently of the other work areas so that one could fix the problem in the particular area without shutting down the entire operation.
According to the claimant, the emergency or kill switch would be used in the most extreme emergencies and that it was standard procedure merely to switch off the power in the area of the cutter to deal with the problem of blockage.
Mr. Burton's evidence is as follows:
"This is what I was taught and instructed to do by the company and for the 11 years I have been working --- this is what I did. --- I still work for the company and this is the procedure that the workers undertake when there is a problem with the machine and this is done to the company's knowledge."
The claimant was confronted with these inconsistent statements. However, he denied that he only shut down that area of the plant where the cutter operated and stated that that it was the normal procedure to shut down the entire plant by pressing the kill switch.
At the time of the incident, the supervisor on shift was sleeping.
The Defendant's Account
The defendant company has called no witnesses as to material facts surrounding the injuries received by Mr. Burton. It is being contended, however, that Mr. Brown breached the safety procedure by failing to engage the kill switch.
Mr. Lennox Nelson, the Process Implementation Coordinator was the Production Coordinator in December 2006. He explained that the claimant breached the safety procedure as described above and stated that once the kill switch is engaged, power can only be returned to the Band plant by disengaging the kill switch and then pressing a green button. He further stated that the pressing of this button signals an alarm for 36 seconds to indicate that the plant is about to start.
According to Mr. Nelson, this alarm system existed in 2006 as it is on the equipment from the time it is brought into the plant.
Mr. Nelson also stated that once the cutter is jammed, the person who is to clear the blockage must engage the emergency or kill switch and the same person would also disengage the said switch.
It is to be noted that Mr. Burton said he knew nothing of this pause and alarm after the kill switch is disengaged before the machine becomes active.
Mr. Nelson stated that the procedure was not breached because Mr. O'Hara turned on the machine, but it was breached by the failure of the claimant to engage the kill switch.
If this were a mystery movie, one could say that "the plot thickens", because Mr. Dennis McDonald, a second witness called by the defence has contradicted both Mr. Nelson's and the claimant's evidence in relation to the standard procedure.
Mr. McDonald is the Production Coordinator for the company. It is important to note that in December 2006, he was the Production Supervisor with responsibility of a Safety Coordinator. His duties as a supervisor, included establishing and implementing safety procedures and if there were safety breaches, to address and correct them. He also gave evidence that the production supervisor on the shift has ultimate responsibility for the safety of employees and that there are safety personnel throughout the plant along with team leaders that are placed on the line and are responsible for ensuring that procedures are upheld.
According to Mr. McDonald, once the cutter is jammed, the equipment should be shut down immediately by pressing the nearest emergency button. This is done by either the operator or the assistant. One then makes an assessment of the cutter, releases the emergency button, clears the blockage and resumes production. However, once the machine stops, one should make observation to the cutter area before restarting the machine.
Mr. McDonald further stated that if a worker, who is on the operating side of the machine, restarts the machine while another worker is clearing the machine, he would have breached the safety procedure. The operating side is the area nearest to the control panel.
Mr. McDonald confirmed the evidence of Mr. Nelson that there is an alarm system on the Band plant and in the event that the unit shuts down, the alarm will be heard when the plant is re-engaged. However, Mr. McDonald emphasized that "this is not for when the cutter is jammed."
In relation to the established safety procedure, Mr. Nelson stated that employees are fully briefed before they begin working with the company. He further explained that the safety procedures are reinforced by warnings and signs located in the factory and by the safety supervisors.
In the area where Mr. Burton worked, Mr. Nelson recalls only two signs "Don't put your hand there" and "Emergency Shift."
Analysis of the Evidence
Based on Mr. McDonald's evidence alone, the court would be entitled to make a finding that Mr. O'Hara breached the safety procedure when he went towards the control area and turned on the button controlling the cutter area. He would therefore have been negligent in carrying out his duties.
However, if the court accepts the evidence of the claimant and Mr. Nelson, the standard procedure would have been to engage the kill switch.
A relevant question would therefore be whether Mr. Burton actually engaged the kill switch.
On a balance of probabilities, based on his inconsistent evidence, I am not able to make a finding that he did. However, this is not the...
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