Jamaica Public Service Company Ltd v Barr et Al
| Jurisdiction | Jamaica |
| Judge | Kerr, J.A.,Wright, J.A.,Downer, J.A. |
| Judgment Date | 29 July 1988 |
| Neutral Citation | JM 1988 CA 148 |
| Docket Number | Civil Appeal No. 45 and 48 of 1985 |
| Court | Court of Appeal (Jamaica) |
| Date | 29 July 1988 |
Court of Appeal
Kerr, J.A.; Wright, J.A.; Downer, J.A.
Civil Appeal No. 45 and 48 of 1985
C. M. Daley and L. Heywood for the appellant.
D. Muirhead, Q.C. and Dorothy Lightbourne for the first defendant/respondent.
Dr. L. Barnett and E. Frater for the Plaintiff/respondent.
W. K. Chin See, Q.C. and Dennis Morrison for the third parties/respondents.
Damages - Personal injury — Electrocution — Injuries sustained in course of employment — Duty to provide safe system of work — Breach of duty of care — Negligence — Public utility company operating pursuant to statute — Breach of statutory duty — Appeal against judgment for plaintiff — Various parties — Various grounds of appeal — Apportionment of liability — Contributory negligence — Whether trial judge erred in holding that plaintiff was servant or agent of first defendant — Whether plaintiff independent contractor — Claim against third parties — Plaintiff's appeal against assessment of damages — Whether assessment erroneous.
(Dissenting on the apportionment of liability) The plaintiff by Writ dated March 11, 1980 brought an action against the first and second defendants claiming damages for personal injuries and attendant loss and damages suffered by him as a result of an accident which occurred at Boone Hall, Golden Spring in the parish of Saint Andrew on the 23rd March, 1979. The plaintiff, a steel fitter, sustained his injuries through electrocution when the steel he was fitting to a house under construction by the first defendant (hereinafter referred to as Bryad) came in contact with the power lines of the second defendant, the Jamaica Public Service Company Limited (hereinafter referred to as J.P.S.). Bryad is a building and construction company. The J.P.S. are the undertakers under license granted pursuant to the Electric Lighting Act to supply electricity throughout the island.
In his statement of claim, the plaintiff alleged that at the material time he was employed by Bryad and his injuries were sustained in the course of his employment. He founded his action in respect of Bryad on (1) breach of his duty as an employer to take adequate and effective precautions for his safety (2) negligence and (3) liability under the Occupiers' Liability Act and against the Jamaica Public Service for (1) breach of statutory duty under the Electric Lighting Act and (2) negligence. From the prolix and oft amended pleadings, in addition to general denials as to liability, the issues specifically raised may be broadly categorised thus:
- That the plaintiff was not at the material time an employee of Bryad but of Charles Porter, an independent contractor. 2. That the plaintiff was either solely to blame or materially contributed to his injuries. 3. That the J.P.S. in negligence or breach of statutory duty was solely responsible for or contributed to the injuries of the plaintiff. 4. That the injuries to the plaintiff were due to the negligence of Charles Porter an independent contractor and employer of the plaintiff or to that of Demercado and Associates, Independent Contractors, on whom lie the duty and responsibility to ensure that the power lines were re-located.
- That Bryad was solely to blame for negligence and breach of duty towards the plaintiff. 2. That the injuries to the plaintiff were caused or contributed to by his own negligence. 3. By third party proceedings that if found negligent J.P.S. was entitled to an indemnity from the third parties, who as registered owners were in breach of a covenant running with the land and endorsed on the registered title, in that they permitted the erection of buildings within the prohibited proximity to the power lines.
- That at the material time the lands were not in their possession but in the possession of developers, Verbrad Limited, under an oral agreement for sale and they did not permit the erection of by the buildings by Bryad. 2. That in any event the damages were too remote.
Ellis, J., after a hearing lasting fifteen days between September 1984 and March 1985, in a written judgment delivered September 23, 1985, gave judgment for the plaintiff:
Against Bryad and J.P.S.:
General Damages $532,190 with interest at 4% from the date of service of the Writ,
Special Damages $21,557 with interest at 3% from the 23rd march, 1979.
The judge apportioned liability in the ratio of 40% to Bryad and 60% to J.P.S. with costs in the same proportions.
On the third party proceedings, he found in favour of the third parties with attendant costs against J.P.S.
From this judgment J.P.S. appealed in respect of (i) the finding of liability against J.P.S. (ii) the apportionment of liability and (iii) the judgment in favour of the third parties. Bryad appealed against (i) the failure of the learned judge to find contributory negligence in the plaintiff (ii) the finding that the plaintiff was servant or agent of Bryad and (iii) the finding of liability either wholly or partly against Bryad. The plaintiff embraced the opportunity and by Respondent Notices (a) sought an increase in the damages awarded by contending that the award of damages was erroneously assessed (b) complained that the trial judge erred in holding that J.P.S.' breach of Regulation 9 of the Electric Lighting (Extra High Pressure Conductors) Regulations 1928 had no causal connection with the plaintiff's injury and were not liable for breach of statutory duty. The question of the plaintiff's employment was raised on behalf of Bryad by the following ground: “That the learned trial judge erred in law and misdirected himself on the facts in holding that the plaintiff was the servant and/or agent of Bryad and not an independent contractor.”
On this issue, the plaintiff gave evidence that he was employed and paid by Bryad. His statutory deductions were made by Bryad and he tendered a number of his pay slips. In cross-examination, he denied being employed by Porter but admitted that Porter gave him instructions. In re-examination he said that he had been working on the Boone Hall site about one year before the accident and when he went there “they were just excavating”. As his witness, Mrs. Andrea King-Bird, senior Legal Officer in the Ministry of Social Security, tendered certain records including those pertaining to deductions from his wages to the National Insurance Scheme and in which Bryad was the named employer making the deductions and payments. Porter's name did not appear on these records. To maintain this contest, Raymond Adams, Managing Director of Bryad and Project Engineer gave evidence that Charles Porter was the sub-contractor in charge of steel erection and that the plaintiff was employed on the site by Porter. In cross-examination, he said that Bryad supplied steel and had on site, its supervisor to supervise the work and that Bryad paid for the work. Hazel Thompson, the payroll clerk, said that Porter submitted a sheet containing the names of the workers and she paid them. The statutory deductions for National Insurance Scheme were for convenience. Although she referred to Porter as the foreman, he was really a subcontractor. Such weekly payments to the plaintiff after the accident were gratuitously made. Charles Porter also gave evidence that the plaintiff was employed by him as a third class steel fitter. When he submitted his job work claim to Bryad's office, his workers' wages were deducted from it and paid directly to them and the remainder paid to him.
On this question Ellis, J., said:
“In spite of the evidence of Messrs. Adams and Porter, I am left with the fact that the first defendant prepared payslips, deducted statutory impositions from the plaintiff's pay, paid the plaintiff and above all, prepared the accident report (Exhibit 6) impressed with its corporate seal. The existence of an employer/employee relation is a question of fact. The behavior of the first defendant to the plaintiff in the circumstances outlined has constrained me to conclude that the plaintiff was an employee of the first defendant.”
In support of this ground of appeal, Mr. Muirhead argued that the learned trial judge failed to apply the proper determinants, namely (i) who had the proper control of the plaintiff in his work and (ii) if it was Porter, was he an independent contractor?
Although the trial judge's findings were concise, it would be an unwarranted assumption to hold that he did not address his mind to these important considerations. Accordingly, it is enough to say that on the evidence before him this finding was reasonable and, therefore, I find no merit in this ground of appeal.
On the question of liability, regard must be had to the issues in contention and the evidence relevant thereto and in particular to the chronology of events leading up to the incident in which the plaintiff was injured. At all material times, the Registered Proprietors of the land at the site as evidenced by two Certificates of Title dated August 29, 1978 were, as tenants in common, Raymond Adams, Noel Bryan, Dennis Brown and Milton Verley. All four were named as third parties but apparently Brown was not served with the proceedings and accordingly not before the Court. On the certificates incorporated by reference were the rights and covenants granted to J.P.S, by the former owners, Aubrey Frank Hall and his wife, Margaret, in similar indentures registered at encumbrances on December 15, 1954. The third parties before the Court are principals of a company named Verbrad which, by an agreement dated July 7, 1978 between that company and the National Housing Trust, the company undertook to provide a number of housing units for the Trust on the registered lands. It appeared that although there was no formal transfer, Verbrad was in possession pursuant to an oral agreement for sale between...
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