Joseph Nelson v David Robert Spencer, Shain White and Cluthild Spencer

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Lindo, J.
• Judgment Date: 19 May 2020
• Docket Number: CLAIM NO. 2009HCV05253
• Date: 19 May 2020

Between

Joseph Nelson

Claimant

and

David Robert Spencer, Shain White and Cluthild Spencer

(trading as Pneumatron Electrical Services)

First Defendant/Ancillary Defendant

UC Rusal Alumina Jamaica Limited

Second Defendant/Ancillary Claimant

[2020] JMSC Civ 99

CLAIM NO. 2009HCV05253

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Negligence — Employer's Liability — Contributory Negligence — Volenti Non Fit Injuria — Novus Actus Interveniens — Personal injury — Damages — Assessment — Loss of Earnings —

Ms Christine Hudson instructed by K. Churchill Neita & Co. for the Claimant, Joseph Nelson.

Mr Canute Brown instructed by Brown, Godfrey & Morgan for the First Defendant/Ancillary Defendant.

Mr Christopher Kelman and Ms S Ewbank instructed by Myers, Fletcher & Gordon for the Second Defendant/ Ancillary Claimant

IN OPEN COURT

Lindo, J.

Parties

1 The Claimant, Joseph Nelson (Mr Nelson) was a Linesman employed to the 1 ^st Defendant/Ancillary Defendant, Pneumatron Electrical Services (Pneumatron) and he resided in the parish of Manchester.

2 Pneumatron is an unincorporated entity registered under the Registration of Business Names Act and having its office at 37 Caledonia Road, Mandeville in the parish of Manchester. At the material time, Pneumatron was contracted by the 2 ^nd Defendant.

3 The Second Defendant/Ancillary Claimant, UC Rusal Alumina Jamaica Limited (Windalco) is a company duly incorporated under the Companies Act of Jamaica and having its registered office at Kirkvine P.O., in the parish of Manchester

The Claim

4 The claim is grounded in negligence, more specifically, employers' liability. The allegations are that due to the negligence of Pneumatron and or Windalco “and/or in alternative by both …”, Mr Nelson sustained injuries and suffered loss on or about June 8, 2007. He now claims damages, inclusive of loss of earnings, costs to future surgery, handicap on the labour market and interest and costs.

5 In his Second Further Amended Particulars of Claim, Mr Nelson particularizes the alleged negligence of Pneumatron and Windalco and their servants or agents, and sets out the particulars of his injuries, treatment and prognosis and special damages.

1 ^st Defendant's Defence

6 Pneumatron, by their Defence filed on February 27, 2015, admit that they were engaged by Windalco to carry out repairs on transmission lines at Melrose in the parish of Manchester but deny that they, or their employee George Burton, were negligent or that the accident was caused by negligence on their part. Pneumatron pleads volenti non fit injuria and contends, inter alia, that Mr Nelson climbed the electrical pole without being instructed to do so, and came in contact with energized lines which resulted in the sustained injuries.

7 In their defence they state, inter alia, that:

“… The Claimant knew or ought to have known as a competent and experienced linesman that it was dangerous to climb the utility pole without being satisfied that the transmission line/lines were de-energised …”

2 ^nd Defendant's Defence and Ancillary Claim

8 By their Further Amended Defence filed on February 22, 2019, the 2 ^nd Defendant admits that on June 8, 2007, by oral agreement, it engaged the services of the 1 ^st Defendant to effect repairs to a corroded cross arm on an electrical pole, but deny that the repairs were to be carried out on transmission lines along Melrose Hill in the parish of Manchester. Windalco contends that the repairs should have been carried out between Trinity and Porus well sites in Porus in the parish of Manchester.

9 In the Particulars of Negligence of the 1 ^st Defendant, Windalco states, inter alia, that Pneumatron failed to follow their instructions to attend and carry out repairs on electrical pole between Trinity and Porus well sites; failed to follow their electrical clearance procedure; failed to complete a short and ground prior to commencing work, albeit at the wrong location; failed to provide adequate and proper supervision of its staff and failed to exercise the skill, care and diligence of specialist contractors while rendering its services to the 2 ^nd Defendant/Ancillary Claimant.

10 In the Particulars of Contributory Negligence of the Claimant, Windalco states the following:

• “i. Failing to pay any or any sufficient regard for his personal safety.

• ii. Ascending electrical pole without first ensuring that short and ground was properly installed.

• iii. Failing to observe the 2nd Defendant's Standard Electrical Clearance Procedure.

• iv. Failing to exhibit the ordinary care and skill of an experienced Linesman

11 Windalco says that “but for the Claimant ascending the pole prior to the installation of the short and ground, the Claimant would not have suffered the injuries alleged or any injury at all” and that “the Claimant's premature ascension of the pole prior to the installation of the short and ground constituted a novus actus interveniens, thereby breaking the chain of causation (which is not admitted) between any of the 2 ^nd Defendant's actions and the Claimant's alleged injuries”

12 In the Ancillary Claim brought against Pneumatron, Windalco states, among other things, that in breach of the oral contract and on account of a failure of its own internal system of communication, the 1 ^st Defendant/Ancillary Defendant failed to properly advise its staff of the correct work site and consequently the Claimant and other members of the 1 ^st Defendant's staff proceeded to the wrong location and in the circumstances the Claimant embarked on the works in a location where the transmission lines were not isolated and as a result “allegedly has sustained injuries, loss and damage.”

13 Windalco therefore claims a declaration that it is entitled to an indemnity from Pneumatron with respect to any alleged losses sustained by the Claimant as a result of Pneumatron's negligence.

Reply to Defence of 1st Defendant

14 Mr Nelson joins issue with Pneumatron on its defence and states that the accident was caused by a miscommunication between Pneumatron and Windalco in relation to the physical location of the Claimant and his co-workers which was compounded by the fact that no representative of Windalco was physically present at the site at which the Claimant and his co-workers were.

15 He adds that it was common practice for workers to ascend the pole to the middle whilst the short and ground process was being completed, once there was confirmation from the supervisor that “the line is dead”. He also states that at no material time did any of the servants or agents of Pneumatron warn him to refrain from ascending the pole before the short and ground process was completed.

The Trial

16 Joseph Nelson gave evidence and called one witness, Glenroy Campbell in support of his claim, while David Spencer and George Burton gave evidence on behalf of Pneumatron, and Errol Mosely and Berris Brady gave evidence for Windalco.

17 The Bundle of Agreed Documents comprising medical reports, receipts for medical expenses, the Windalco Manual of Safety Rules for Contractors; Alcan Jamaica Company Contractors Acknowledgement dated March 1, 2007; Records of Report from meeting in relation to investigation into the accident and photographs of the site of the accident were collectively admitted into evidence as Exhibits 1 – 3.

The Claimant's Case

18 Mr Nelson's witness statement filed on June 29, 2016 stood as his evidence in chief after he was sworn and it was identified by him.

19 His evidence is that he was sent by Mr Spencer, as a part of a crew of five men, to Melrose Hill to repair a light post with a rotten cross arm and when they got there they waited on his supervisor, Mr George Burton, to speak with a Windalco supervisor in order to know if work could begin. He says he saw Mr Burton on his phone and after he hung up, Mr Burton said “the line dead”, by which he understands that there was no electricity in the line.

20 He states further that he and his co-worker Peter Williams put on their gears and he mounted the pole with the rotten cross arm and Peter mounted the light pole next to him, to put on the short and ground. He adds that he stayed at the middle of the pole waiting on Mr Williams to put on the short and ground, and while waiting, he saw a fire start on the pole he was on, and did not know anything until he woke up in the Mandeville Hospital.

21 He says he saw gauze all over both arms, his back, was in “some very bad pain”, he spent about two weeks in Mandeville Hospital and after being discharged he was sent to National Chest Hospital and he made several visits to the clinic where he received dressings to the burns, did an operation in April 2008 and spent two days and continued to attend the National Chest Hospital for treatment for about five months. He also says that he was to do another surgery but could not afford it and that he incurred expenses for treatment, transportation and costs

22 When cross examined by Mr Kelman, he said he was a trained, Grade 1 Electrician and had worked with other companies as linesman, all of which involved high tension wires. He said “no current no in deh” means it is safe, and said before climbing, a short and ground has to be done “but it not a must”. He said it took about ten minutes to put on the short and ground and that to do the work of a linesman you have to climb the pole or you could use a ladder ………………….

23 The evidence in chief of Glenroy Campbell is contained in his witness statement filed on July 1, 2016. He states that he was an Electrician for Pneumatron at the time of the incident and that during a de-bushing exercise at Melrose Hill in June 2007, a broken cross arm was discovered. He says the information was passed on to Mr Spencer and, about a week or less, they were advised there would be a one hour close down to change the broken cross arm.

24 He adds that there was to be a “close...