Glenford Dyer v Mechanical Services Company Ltd

• Jurisdiction: Jamaica
• Judge: Evan Brown, J
• Judgment Date: 29 March 2016
• Neutral Citation: [2016] JMSC Civ 44
• Docket Number: IN CIVIL DIVISION CLAIM NO. 2009 HCV 02263
• Court: Supreme Court (Jamaica)
• Date: 29 March 2016

[2016] JMSC Civ 44

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION CLAIM NO. 2009 HCV 02263

Between

Glenford Dyer

Claimant

and

Mechanical Services Company Limited

Defendant

Mr. Sean Kinghorn and Ms. Danielle Archer , instructed by Kinghorn and Kinghorn for the claimant.

Ms. Georgia Hamilton and Mr. Hadrian Christie , instructed by Georgia Hamilton and Company for the defendant.

EMPLOYER'S LIABILITY - Grinder - Claimant injured by grinder's blade - Defendant's duty to provide a reasonably safe grinder - Whether res ipsa loquitor applied - Contributory negligence considered - Assessment of damages

Evan Brown, J

Introduction and background

1 [1] Mr. Glenford Dyer sustained injuries when the blade of a grinder broke while he used it. The grinder was owned by his employer, Mechanical Services Company Limited, and was issued to him to perform his work. At the time of the incident, he was working with his supervisor at the Breezes Runaway Bay Hotel, as it was part of his employer's business to provide plumbing services to hotels.

2 [2] The grinder was electrically powered and used for cutting and grinding. It operated by rotation as its blades rotated anti-clockwise. The blades used on the grinder were an abrasive blade for grinding and another for cutting. For the installation of either blade, it was mounted to the metal shaft of the grinder and the blade was then secured by a metal locknut, which was tightened by the operator with a two-pronged spanner.

3 [3] The blade was further tightened while in motion, as the blade rotated in an anti-clockwise motion, while the locknut was tightened in the opposite direction. It was an additional security feature of the tool. If the blade became loose while in motion, it would go in the direction the shaft was pointed.

4 [4] The defendant's storekeeper issued the tools, work material and safety gears to the workmen. He also checked the tools and safety gears to ensure they were fully operational before he issued them. Where the grinder's blades became worn, the workmen were to bring it to the storekeeper's attention. The workmen were required to attend the storeroom and request new blades which they installed.

5 [5] At this point, when the new blades were issued, the grinder itself was not examined by the storekeeper. Safety gears, after they were supplied to the workmen, were also replaced when they became worn or lost. Though the workmen were issued with safety gears, not all wore them. Those workmen were either reprimanded by the defendant, or they were requested to wear those gears.

Case for the claimant

6 [6] It was about 1:30 pm on the 1 ^st December 2006. Mr. Dyer was in a room on the hotel with his supervisor Mr. Ryan Tomlinson. Mr. Tomlinson suggested using the grinder to test the room for electricity and then plugged the grinder into the electrical socket. He then instructed Mr. Dyer to start the grinder. Mr. Dyer then held the grinder by the handle closest to the blade and did as he was instructed.

7 [7] While the grinder operated as evidence of flowing electricity, the blade suddenly broke and became dislodged. The pieces of the dislodged broken blade struck Mr. Dyer to the right side of his neck and chest, and to his left hand. He was knocked unconscious. He was taken to the St. Ann's Bay Hospital where he regained consciousness and received treatment for the injuries.

8 [8] Under cross examination, the claimant recalled that he did not see anything wrong with the blade though he did not check it. In terms of safety equipment, he agreed that he received gloves from the storeroom. Though he knew they were to be worn when operating the grinder, he was never told at any point to wear them. His reason for not wearing them on the day of the incident was that he had not started working as yet. The gloves, he described, were thick and made of canvas.

9 [9] At the start of the workday, he was issued a different grinder from the storeroom. Then, at the end of each workday, he customarily returned the grinder to the storeroom. He recounted that the grinder which caused his injury was different from the one he got the previous day. The difference was that there was no guard on the grinder issued to him last.

Case for the defendant

10 [10] The grinders were inspected by Mr. Brown, the storekeeper, who checked to ensure that the guard was in place. He also inspected the blades for cracks and whether they fitted properly. A record of all tools issued was also made by him. These records however were not produced at trial.

11 [11] Mr. Brown also said there were only two circumstances that warranted the tools being returned to the storeroom: (1) where the workmen completed the work, and (2) where the tool operated ineffectively. Ordinarily, the tools were stored in the tool pans at the end of the work day.

12 [12] The tool pans were owned by the defendant and were provided on the worksite. The supervisors had custody of the keys for these tool pans and issued the tools to the workmen at the start of each workday. At this point, the storekeeper was not responsible for the tools. Though ultimately the tools were returned to the storeroom, he said he had not seen the grinder that caused Mr. Dyer's injury nor was it returned to the storeroom.

13 [13] The Production Controller Mr. Omri Dunstan had daily interaction with the workmen. He spent 10 to 30 minutes with each crew. An aspect of these interactions was to ensure the workmen wore their required safety gears. He, however, did not have any interaction with the Mr. Dyer on the day of the incident.

14 [14] Mr. Dunstan said the tools were either returned to the storeroom at the end of the workday or the supervisors kept them in their vehicles, if they drove. However, the procedure was that the tools should be returned to the storeroom.

15 [15] The Project Director, Mr. Alvin Blake, confirmed that the company provided tools and safety gears for its employees. These supplies were also replenished regularly. Like Mr. Dunstan, he too sought to ensure that the workmen wore their safety gears. This he did on his occasional visits to the worksite.

16 [16] He then confirmed that Mr. Dyer was employed to the company from March 2005 to October 2008. Mr. Dyer, he said, was paid wages between January 2007 and October 2008 for regular, overtime and weekend work done in this period.

Submissions

The claimant's submissions

17 [17] Mr. Kinghorn for the claimant submitted that Mechanical Services Company Limited was liable for the injuries Mr. Dyer sustained. He contended that Mr. Brown, as an agent for the defendant, did not do his due diligence in checking the grinder before he issued it to Mr. Dyer. He further submitted that the grinder was already in a dangerous state as there was no protective guard in place at the point of being issued.

18 [18] Mr. Brown's evidence that he could not recall when he issued the grinder amounted to speculation that he exercised due diligence to examine it. Mr. Kinghorn contended that the defendant had no other system in place to detect this failure by Mr. Brown. The result then, counsel concluded this point, was that the defendant was unable to provide an explanation for the blade becoming dislodged.

19 [19] Mr. Kinghorn then submitted that, applying res ipsa loquitur , the defendant was liable due to its inability to explain the cause of the accident. He then sought to rely on Courage Construction Limited v Royal Bank Trust (Jamaica) Ltd and Jennifer Colleen Silvera (Administrator of the Estate of Clifford Anthony Silvera) [1992] 29 JLR 115, for this point.

20 [20] Finally, Mr. Kinghorn submitted that the defendant did not prove that the Mr. Dyer was guilty of contributory negligence. The defendant, he said, has failed to support its averments of the claimant's negligence. He relied on Ramon Burton v Wilburn Barton and others Claim No. CL 1996/B110, delivered March 13, 2008, paragraph 16, in contending that the averments must be rejected for want of evidence in support.

The defendant's submissions

21 [21] On the other hand, Ms. Hamilton for the defence submitted that it was Mr. Dyer's responsibility to report any defect with the grinder to Mr. Brown. The absence of this report, counsel said, placed the grinder outside of the defendant's power to remedy any perceived issue.

22 [22] Counsel then submitted in the alternative that if the grinder was indeed defective, then Mr. Dyer was liable for contributory negligence for failing to wear protective gloves and using the grinder without a protective guard. She then sought to rely on the English case Haynes v Qualcast (Wolverhampton) Limited [1958] 1 WLR 225 as basis that the claimant should be found liable for contributory negligence to the degree of 75%.

23 [23] Ms. Hamilton further submitted that res ipsa loquitur does not arise in this case. She cited Jeffrey Johnson vs Ryan Reid (2012) JMSC CIV. 7 to submit that Mr. Dyer must prove: the grinder was under the control and management of Mechanical Services Company Limited, and the accident would not have occurred without negligence by the defendant.

24 [24] Finally, Ms. Hamilton submitted that for Mr. Dyer to successfully rely on res ipsa loquitur he must prove both limbs. She placed reliance on Easton Marsh vs Guardsman Limited 2006 HCV 01819, then submitted that Mr. Dyer's failure to prove that the grinder was under the management and control of the defendant was fatal to the application of res ipsa loquitur.

Issue for determination

25 [25] The primary issue for my determination is: whether Mechanical Services Company Limited, through its agents, failed to provide Mr. Dyer with a reasonably safe grinder.

Brief statement of the applicable law

26 [26] The liability of an employer...