Josette Mills-Mclarty v Jamaica Urban Transit Company Ltd
| Jurisdiction | Jamaica |
| Judge | Pettigrew-Collins, J |
| Judgment Date | 27 July 2023 |
| Docket Number | CLAIM NO. 2018 HCV 03367 |
| Court | Supreme Court (Jamaica) |
[2023] JMSC Civ.149
Pettigrew-Collins, J
CLAIM NO. 2018 HCV 03367
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Negligence — Breach of contract — Breach of Employers Liability Act — Breach of Occupiers Liability Act — Assessment of damages.
Mr Clifton Campbell instructed by Archer Cummings and Co. for the claimant.
Mr Leslie Campbell instructed by Miss Kimberlee Dobson for the defendant.
The claimant was at all material times a forty-three years' old auto mechanic employed to the Jamaica Urban Transit Company Limited (herein after referred to as the JUTC).
The JUTC is a company duly incorporated under the Companies Act of Jamaica and carries on the business of transportation.
The claimant brought her claim in negligence and/or for breach of contract and/or breach of the Employers Liability Act and/or breach of the Occupiers Liability Act. She claims that on or about October 14, 2016, at the defendant's garage located at the Portmore depot, she was engaged in a task assigned to her when on completing the task in the pit which was poorly lit, she fell in an oil spill and the fall resulted in injuries to her back.
The particulars of negligence and/or breach of contract and/or breach of Employers Liability Act are set out as:
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a. Failing to provide a safe place of work
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b. Failing to provide a safe environment/system of work with effective supervision
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c. Failing to provide adequate plant and equipment
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d. Failing to provide a competent staff of employees
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e. Failing to provide proper lighting in the work area for the employees
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f. Failing to cause oil spoilage in the “pit” to be cleaned before the Claimant started working
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g. Having the Claimant working in poor lighting conditions
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h. Failing to ensure that the cleaning staff properly cleans all work areas
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i. Failing to ensure that all reasonable care was taken while the Claimant carries out the company's operations
The breaches of the Occupiers Liability Act are particularized as follows:
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a. Failing to take any or any reasonable care to see that the claimant would be reasonably safe in working on the premises
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b. Exposing the claimant, while she was engaged in work, to a risk of damage or injury from working in a poorly lit and unkempt area
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c. Failing to take any or any adequate or effective precautions to ensure that the claimant's work area was properly lit and cleaned
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d. Failing to discharge the common duty of care to the claimant in breach of the Act.
The defendant admitted that it was an express and/or implied term of the contract of employment to provide a safe system and safe place of work for the claimant, but says it discharged its duty by maintaining a procedure for the daily cleaning of the pit by janitorial staff and ensuring the use of personal protective equipment by all employees including the claimant.
The defendant also alleges that the claimant was contributorily negligent. That negligence was particularized as follows:
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i. Failing to have any or any regard for her safety;
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ii. Failing to take any adequate measures to prevent herself from slipping;
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iii. Walking through the pit when she knew or ought to have known that it was unsafe to do so;
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iv. Failing to take adequate care while walking through the pit; and
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v. Exposing herself to the unnecessary risk or injury.
On the morning of the trial, the defendant was permitted to amend its defence and the following particulars of negligence on the part of the claimant were added:
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i. Failing to alert supervisor to presence of oil in pit.
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ii. Failing to look while walking
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iii. Failing to use or make use of available additional lighting and protective equipment if necessary, in the circumstances.
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iv. Performing the assigned task in a way contrary to company procedure.
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v. Failing to adhere to the company's system as it relates to degreasing of the pit.
The defendant, by its amended defence, also alleged that it provided degreasing agent and denied that the pit was poorly lit. It also averred that the lighting in the pit was sufficient. The defendant also claimed that it provided staff as well as additional lighting equipment. It was also averred that the presence of oil spill was incidental to the nature of the job of the claimant.
The following facts are not disputed:
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i. that the claimant was assigned to undertake work on one of the defendant's motor buses at the Portmore depot.
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ii. that she had to enter the pit in order to carry out the work assigned.
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iii. that she made a report the same morning that she had fallen in the pit.
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iv. that there was an oil spill on the floor of the pit on the morning in question.
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v. The pit can accommodate two buses over it at the same time.
In the interest of brevity, I do not intend to set out all the evidence in this matter. I will state the salient facts and indicate those which are accepted and those which have been rejected in so far as those facts are relevant to the claim or the defence.
The evidence as it stood at the end of the case regarding the lighting in the pit, was that there was one bulb that was working, although the area was made to accommodate four bulbs. The claimant's evidence was that this bulb was only partially working in that it was not fully lit. Mr Wilson's evidence is that that bulb was fully functional. I accept the claimant's evidence and reject that of Mr. Wilson that the bulb was fully working.
The claimant's evidence was that there were two buses over the pit at the time that the incident took place. It was Mr. Wilson's evidence that when the accident was reported to him and he went to look, there was only one bus. I accept the claimant's evidence in this regard. There is no need for the court to decide whether Mr Wilson's assertion is true, as the second bus could have been removed before Mr. Wilson's arrival at the pit.
Mr Andrew Grant, one of the defendant's witnesses, agreed that if two buses were over the pit, they would have to be parked close to each other in order to fit over it. He also agreed that the buses would block the light from the shed from entering into the pit and a mechanic could not rely on the light from the shed while in the pit. Neither would he/she be able to rely on natural light entering the pit. The claimant's evidence that the buses would be parked one behind the other, back to front, was not contradicted. Given my finding that there were two buses over the pit, I accept the evidence that much of the natural lighting as well as the light from the shed would have been blocked out of the pit by the presence of the two buses over it. My finding is that the area was not sufficiently lit.
The claimant's evidence in cross examination was also that JUTC provided a work light at the time of her employment, but she was not supplied with a replacement throughout her employment, although she had returned the one she was initially issued with. She stated that once the light initially issued was “mashed up” it would be returned. I accept the claimant's evidence that she utilized her phone light in order to see to carry out the task that she had been assigned that day.
The claimant's evidence was also that she was not issued with a helmet with headlights. However, she was issued with a helmet that had no headlights, but she was not wearing it on the occasion in question. Her evidence that she was wearing her work clothing and the boots assigned to her was not disputed.
In her first witness statement, the claimant said that the area was dark and she did not see the oil spill, but in her supplemental witness statement, she claimed that she had observed that the pit was dirty and she reported the fact of the dirty pit to Mr Wilson who insisted that she carried out the work assigned, as he was under pressure to return the bus. Mr Wilson of course denied that the claimant had told him about the spill, or that he had any conversation about being under pressure to return the bus. Further, he said he would not have sent the claimant to the pit had he known it was not cleaned. Mr. Wilson disputes the claimant's evidence that the pit was dirty. The claimant stated that the cleaning staff should have come in and cleaned at about 6 am.
There is this critical piece of evidence which emerged when the claimant was being cross examined by Mr Leslie Campbell:
Q. What if anything did you see on the floor over the distance from the first bus?
A. I know there was an oil spill. I saw filters.
Q. At the point when you saw it, what did you do to avoid slipping?
A. When I saw the filters, I returned before working on the bus to my supervisor and tell him that the area is dirty. There is oil spill there.
From the above evidence, it therefore emerged that the claimant saw the oil on the floor of the pit prior to the point at which she fell.
Although initially the claimant had said that the spill was some 6 or 7 feet into the pit from where she had entered, it became apparent from her later evidence that the spill was closer to the second bus on which she had worked. That the spill was not six or seven feet from the entrance was confirmed by Mr Wilson who said that the spill was more to the back of the bus, between the engine and transmission area. It will be recalled that his evidence was that there was one bus over the pit. He was clear that he was not saying that the oil had come from the bus on which the claimant had worked, and in any event, I accept the claimant's evidence that she had worked on the air system and that the work she did would not have resulted in oil coming from the bus.
It was Mr Wilson's evidence in his witness statement that saw dust was...
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