Grant v Dalwood et Al
| Jurisdiction | Jamaica |
| Judge | Campbell, J. |
| Judgment Date | 16 June 2008 |
| Date | 16 June 2008 |
| Court | Supreme Court (Jamaica) |
| Docket Number | 3081of 2005 |
Supreme Court
Campbell, J.
3081of 2005
Mr. Kinghorn instructed by Kinghorn & Kinghorn for the claimant.
Mr. Donovan Williams instructed by Donovan St. L. Williams & Co. for the defendant.
Damages - Personal injury — Negligence — Motor vehicle — Employers' liability — Conductress on defendant's bus injured in fall whole vehicle in motion — Seatbelt supplied but not used by conductress — No system in place to ensure use of seatbelt — Duty of employer to provide a safe system of work and ensure system is adhered to.
On the 3rd day of February 2005, Schaasa Grant was the conductress on a JUTC number 21a bus, which plies the route from Cross Roads to Spanish Town via New Kingston. The bus was being driven by Salva Dalwood. The two had been working that particular route for about one year. Ms. Grant alleges that whilst seated in the conductress' seat, the driver applied his brakes suddenly and she was flung from her seat. She states that she was “pitched into the passengers' seats that are in front of where the conductress is supposed to sit.” She claims that she had to be assisted “out of the seat” into which she had been flung. Sometime later in the journey she started experiencing “some serious back pains”. She informed the driver of her inability to complete her tour of duty and the bus was driven to the depot.
At the depot, she completed an incident report form and spoke to the Human Resource Manager of the 2nd defendant, who referred her to Dr. Lisa Hoad. Her back was then swollen and she was given an injection for the pain and 10 days sick leave. She said that on leaving the doctor's surgery, the pain was so intense that she had to seek private transportation to return home. On her return to work, the travelling caused her extreme pain and following a further report to the company, she was again sent to Dr. Hoad, who referred her to Dr. Philip Waite. She saw several doctors including Dr. Murray, a pain management specialist and Dr. Bruce, a neurologist. Based on recommendations made by Dr. Bruce, she was placed on a four hour shift in the office.
An attempt to resume work as a conductress caused her great pain and discomfort. Further treatment of physiotherapy followed and she was referred to Dr. Christopher Rose, an orthopaedic surgeon. She sought further treatment from Dr. Dawson, pain Management specialist, whose treatment would sometimes involve 10 injections in her back. She was unable to attend her sister's wedding and her cousin's funeral because of the pains she was experiencing. She complains that her social and sexual life has been handicapped. She was made redundant by JUTC on the 2nd February 2008.
On the 8th October 2007, the claimant filed an amended claim form. She claimed against theist defendant for negligence and against the 2nd defendant for negligence as an employer. That the seat provided for the conductress did not have a seatbelt nor did the 2nd defendant provide any other form of safety restraint for the claimant.
The particulars of negligence of the 2nd defendant were listed as follows:
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(a) Failing to have or to maintain a safe system of work.
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(b) Exposing the claimant to an unreasonable and unforeseeable risk of harm.
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(c) Failing to provide a seatbelt or other form of restraint for the claimant whilst the claimant was lawfully carrying out her duties as a conductress.
The 1st defendant denied the particulars of negligence and averred that at all material times, he drove with due care and attention.
The Particulars of Negligence in respect of the 1st defendant alleged, inter alia;
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b) Operated the vehicle at a speed which was unreasonable in the circumstances.
The 2nd defendant averred that at all material times, the bus was equipped with the requisite seatbelt and alleged that the claimant was negligent.
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(a) Failing to use the seatbelt that was provided for her in the bus.
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(b) Failing to hold firmly to the rails that were provided in the bus.
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(c) Failing to have any or any sufficient regard for her own safety.
Ms. Grant had said she did not know why the driver suddenly applied his brake and admitted that the driver was not going extremely fast. The defendant, in his witness statement does not deny that he applied the brakes suddenly, but gives as the reason, a taxi driving out suddenly in his path. He admitted that the conductress spoke to him about her injury, and later, another conductress relieved her of her duties. In cross-examination, she admitted she had said in her accident report that a taxi driver had stopped suddenly in front of the driver. She also admitted that she had said in her evidence-in-chief that she did not know why the driver had braked, and that was not true. She testified that for the most part, her job requires her to be seated. There is no barrier separating her from the passenger seat into which she was flung.
The driver testified that it was not the first time he was aware of a conductress falling in the bus. The claimant was the only person on the bus who had fallen that day. The driver testified that he is required to do a daily inspection of the bus. He said he had been driving that particular bus for about three and a half years. He had been working with the claimant a year prior to the accident. There is no device on the bus to indicate to the driver if the conductress' seatbelt is engaged.
The unchallenged evidence of the driver is that he was travelling between 10 – 20 m.p.h. There is no evidence to support the claimant's contention that the bus was being driven too fast. It was agreed on both sides that the bus had just moved off from the bus stop. It is therefore most unlikely that it would have been going too fast. There was no opportunity for the driver to alert the passengers that he would be braking suddenly. There was no suggestion that the bus was being operated recklessly and violently. The claimant's evidence is to the effect that he was a careful driver with whom she was comfortable working. The uncontradicted evidence is that the taxi, (if that is what PA3698 is) darted off the side of the road and into the path of the bus. There was no evidence of any collision with any vehicle as alleged. That was not pursued at trial. The claimant has failed to prove that the 1st defendant was negligent.
The claimant said there was no seatbelt provided. It is agreed on both sides that the bus was a Johnkheere Volvo Bus. She says that she doesn't recall ever having seen any seatbelts in a Johnkheere bus. She admitted that she had not stated in the accident report that there was no seatbelt. She also admitted that there was no mention of there being no seatbelt in the claim form filed on the 8th October 2007. She said she cannot remember a seatbelt being there on the bus. She said she had never seen a bus with a seatbelt for the conductress and that the use of seatbelts was never a part of any course or training programme she had attended. No colleague of hers has ever raised the question of availability of a seatbelt. She said there was no seatbelt on the bus on which she worked after returning from her sick leave.
The defendants totally contradicted the claimant on the question of provision of seatbelt. The driver testified that all of Johnkheere buses are equipped with seatbelts. He says that he is aware that there are buses on which the seatbelts are unserviceable, and some on which the seatbelts are missing. He says there are no signs that alert the conductress that seatbelts must be worn. Neither is there a sign that the driver must wear seatbelt. John Percy, the defendants' accident investigator says he has seen JUTC buses without seatbelts. Kevin Blake, maintenance supervisor commenced working with JUTC in November 1999. At the time of the incident, he was a maintenance planner, whose duties involved scheduling buses for servicing and repairs. He stated that all Johnkheere Volvo buses had manufacturer's seatbelts attached to both driver and the conductress' seating area. He testified that, Company policy is, if there is a defective seatbelt, it should be reported to the maintenance department. Under cross-examination, he admitted that there are buses in which the seats have been replaced and the replacement does not carry the seatbelt.
I was impressed that the driver of the bus was aware of a seatbelt...
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