Jamellia Stoddart v White Diamond Hotel and Resorts Ltd
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson Shelly, J |
| Judgment Date | 17 May 2023 |
| Docket Number | CLAIM NO. 2018HCV04305 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC Civ 86
T. Hutchinson Shelly, J
CLAIM NO. 2018HCV04305
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Practice and Procedure — Negligence — Whether employer provided safe system of work — Whether the premises were reasonably safe for the purpose for which the claimant was permitted to be there — Handicap on the Labour Market — Personal injury — Damages.
Ms. Christine Hudson instructed by K. Churchill Neita & Co. for the Claimant
Ms. Faith Gordon instructed by Samuda & Johnson for the Defendants
On the 7 th of November 2018, the Claimant, Jamellia Stoddart, filed a Claim Form accompanied by a Particulars of Claim seeking damages against the Defendant company, White Diamond Hotel and Resorts Limited for negligence and/or breach of statutory duty. She has also claimed interest pursuant to the Law Reform (Miscellaneous Provisions) Act (‘LRMPA’) and costs.
Ms. Stoddart has averred that on or about August 27, 2017, she was employed to the Defendant as a waitress. She stated that while in the lawful execution of her duties, she slipped and fell on the floor in the kitchen as a result of which she suffered loss and incurred expenses.
The Defendant is a registered company in the service industry with its registered address at 48 Duke Street in the parish of Kingston. The Claimant was assigned to work temporarily at Royalton Blue Waters, a registered business owned and operated by the Defendant.
In her further amended particulars of claim filed on November 7, 2022, the Claimant alleged that her employer was negligent in failing to provide a safe place and system of work, and breached its statutory duty under the Act to ensure that she would be reasonably safe when using the premises of the Defendant. Specifically, she claimed that her fall was due to water that was leaking from the dishwashing machine in the kitchen of the Defendant's premises, and the failure of her employer to display sign warning of the danger of the slippery condition of the walkway, to place a mat to absorb the moisture at the entrance of the kitchen and/or to lay a non-slip covering on the floor of the walkway of the kitchen. The claimant further claimed that her employer failed to take any adequate precautions for the safety of the Claimant while she was engaged in her work.
A defence was filed on the 24 th of April 2019 in which the defendant denied being negligent. The Defendant also indicated that the accident was occasioned by the claimant's negligent action in not wearing the appropriate foot wear, while in the performance of her assigned duties that caused or contributed to her accidental fall. The matter was referred to mediation and the parties were able to arrive at an agreement, pursuant to which judgment on admission was entered on the 25 th of October 2019.
The issue which arises for determination in this claim is:
1. What is the quantum of damages, if any, which should be assessed for the various heads of damages pleaded by the Claimant?
On the day of trial, Counsel for the claimant and the defendant agreed a number of documents which were admitted as exhibits. Special damages for extra help was also agreed in the sum of $30,000 and the particulars were further amended to reflect earnings as $22, 284.60 per fortnight. The evidence in chief of Ms Stoddart was outlined in her witness statement, which was amplified with permission to a limited extent, after which she was cross examined. It was her evidence that on the night of August 27, 2017, she slipped in the kitchen, dropped to the floor and hit her right shoulder on a wall. She also said that she immediately started to feel pain in her lower back.
Ms Stoddart stated that she was taken to the nurse at the hotel who rubbed medication on her back. She was subsequently taken to the Cornwall Regional Hospital as she was experiencing pain. Ms Stoddart recounted that she was given an injection, some painkillers and sick leave for one week.
She stated that due to her injuries, she suffered severe pain which the painkillers prescribed failed to alleviate. As a result of these ongoing issues, she visited Trident Medical Centre in Sam Sharpe Square, Montego Bay. She was examined, given additional pain killers, sick leave and a referral to have an x-ray conducted.
The Claimant was also examined by Dr. Fray who explained to her that she had suffered a back strain and a right shoulder strain. He prescribed painkillers and a cream to rub on her back. He also gave her a referral to undergo an MRI. The MRI was done at North Coast Imaging and on a follow up visit she was informed by Dr Fray that she had a bulge in her back. She was advised to do physiotherapy to ease the pain. It was Ms Stoddart's evidence that she saw the physiotherapist on five occasions. She was unable to comply with most of the instructions by the physiotherapist however because of pain in her lower back.
As a result of on-going challenges in performing her assigned tasks, Ms Stoddart left the Royalton Hotel. She subsequently obtained employment as a hostess/waitress at Coral Cliff in Montego Bay. This job was short-lived as she left after 9 months. She explained that this was due to pain in her lower back coupled with the fact that it was mandatory for her to wear shoes with a heel which aggravated her injury. She also acknowledged that she was frequently absent from work because of illness.
On January 22, 2020, Ms Stoddart was examined by Dr Rose who advised her that her back issues could not be fixed with surgery and she would have to make life-changing adjustments instead. She was also advised to continue with physiotherapy which she did, completing in total 22 sessions. Ms Stoddart acknowledged that there was some improvement in her condition. As a result of her complaints of emotional upheaval, Dr. Rose recommended that she be assessed by a psychiatrist. She was examined by Dr George Leveridge who diagnosed her as suffering from Major Depressive Disorder and Alcohol disorder for which she was prescribed medication. Ms Stoddart also recounted that she was examined by Dr Sewell a few years later. She asserted that he misunderstood the information that she gave him about her drinking as she never told him that she drank liquor once a week.
She was cross examined and in response to the questions about the night of the accident and nearly every other question asked about the details of the incident, her response was that she could not remember. On one such occasion when asked by Counsel what day of the week the accident occurred, she responded by saying that “I do not remember the day. I do not remember if it was Monday, Tuesday, Wednesday, Thursday.”
Ms Stoddart was cross examined about the fact that she had not been employed after leaving Coral Cliff and indicated that she would not go back to the work she did before or a call centre work. She was asked about other employment and stated ‘nuff job deh a Bay’ but went on to insist that she was not able to engage in what she alleged was available. She was asked about her employment at Coral Cliff and acknowledged that she had not been terminated there. She insisted however that she was going to be sent off the job for not wearing the appropriate shoes and that was why she did not return to work.
Dr Delroy Fray, a Consultant Orthopaedic Surgeon, attended to the Claimant after she was seen at the Cornwall Regional Hospital. He stated that when he saw her on September 15, 2017, she was experiencing low back pain and right shoulder pain.
Dr Fray indicated that on examination of Ms Stoddart he found;
“She had a normal gait. Normal muscle bulk was noted. Spinal mobility was mildly restricted in her lumbar spine. Power, tone, sensation and reflexes were normal in her upper and lower limbs. Saddle sensation was normal. Spasm of the right trapezius muscle was noted with marked spasm of her right shoulder girdle.”
Dr. Fray noted that his investigations demonstrated that there was no bony injury based on plain x-rays of her right shoulder and lumbar spine. He observed however, that there was muscular spasm of the lumbar spine. Ms Stoddart was assessed as having a lumbar strain and strain to her right shoulder girdle. She was treated with NSAID and antispasmodics.
She was reviewed on February 21, 2018 and reported that she continued to experience low back pain and right shoulder pain. The doctor noted however that the examination did not show any deficits and Ms Stoddart was referred to have an MRI conducted on her lumbosacral spine. Dr Fray stated that another review was conducted on June 18, 2018 during which Ms Stoddart complained of low back pain, an inability to work or engage in sexual activities. The examination conducted revealed no deficit, there was however restricted movement in her lumbosacral spine but the spasm to her right shoulder girdle had subsided.
Dr Fray reported that the MRI lumbosacral spine done on March 28, 2018 at North Coast Imaging by Dr. Konrad Kirlew, Consultant Radiologist showed the following:
“…small disc bulges L3/4, L4/5 and L5S1. No herniation, spinal stenosis or nerve impingement. Mild oedema in the L1, L2 and L3 spinous process, possible resolving bone bruises. She was then referred for physical therapy.”
Dr Fray conducted two further reviews of the Claimant on July 11, 2018 and November 26, 2018. He observed that she had undergone an extended period of physical therapy and there was a 75% improvement in her low back pain whilst the neck and shoulder pain had completely resolved. In his final review of Ms Stoddart on October 14, 2019, Dr Fray noted that there was...
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