Kevin Matthias v Crichton Automotive Ltd
| Jurisdiction | Jamaica |
| Judge | D. Fraser J |
| Judgment Date | 17 March 2020 |
| Date | 17 March 2020 |
| Docket Number | CLAIM NO 2011 HCV 00680 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 38
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO 2011 HCV 00680
Mr Sean Kinghorn and Ms Danielle Archer instructed by Kinghorn and Kinghorn for the claimant
Mr Kwame Gordon instructed by Samuda and Johnson for the defendant
Civil Procedure — Employers Liability — Duty of Employer to provide a safe place and system of work — Contributory Negligence — Assessment of Damages
The claim in this matter is brought under the tort of employer's liability. The claimant alleges that the defendant failed to provide him with a safe place of work, for that on or about 15 April 2008 he was lawfully engaged in his duties as a detailer at the defendant's place of business when another one of the defendant's employees negligently placed a running board beside the motor vehicle in which he was working, so that, in the process of exiting that vehicle, he stepped on the running board and fell to the ground. The claimant further alleges that as a result of the negligence of the defendant's employee and of the defendant, he sustained injuries, suffered loss and damage and incurred expenses.
The defendant denies the claimant's allegations. Its defence is that the claimant did not injure himself during the course of his duties and could not have done so in the circumstances he alleges because, in 2008, the company did not use running boards. The partial defence of contributory negligence is also raised.
The following issues arise for consideration:
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I Were running boards being used by the defendant's business in April 2008, and if so, was the claimant injured during the course of his duties?
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II. If in fact the defendant used running boards, whether the defendant failed to provide the claimant with a safe place or system of work?
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III. If the claimant was injured during the course of his duties was he contributorily negligent?
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IV. If the defendant is found liable, what quantum of damages is due to the claimant?
The first consideration is whether running boards were on site on the day in question. If the answer to that question is no, then the claim cannot succeed. The claimant maintains that there was a running board which he had seen in use by the mechanic that evening 15 April 2008. In cross-examination he stated that the running board was about 3' long and about 1 1/2' wide, and had about 6 sets of wheels on which it could go in any direction, as they are like a swivel. It was, he explained, like a skate board. He said it was used in the mechanical area to go under cars, but on the day in question it was being used in the detailing area as they were doing a “rush job”.
At paragraph 5 of the Amended Defence filed 25 February 2013, the defendant denies that a running board was placed beside the motor vehicle. The defendant stated that if one was there, it did not belong to the defendant company which did not authorise its use. The defence maintains that running boards were first introduced to the business in December 2009.
Mr Crichton, Managing Director of the defendant supports the defence by stating in his statement that the start date of the use of running boards on the defendant's premises was December 2009. He however does not profess to knowing first hand the state of the premises on the date of the alleged incident. Mr Blondell Depass witness for the defendant was the supervisor at the time but he was unable to recall the state of the premises on the day in question. Neither Mr. Crichton nor Mr. Depass was present when the Claimant allegedly fell; however based on their evidence the court is being invited to find that no running board was there to cause his fall. The defendant also relied on a receipt issued by National Supply Co Ltd on 3 December 2009 when it purchased two creepers i.e. running boards. The receipt is however not helpful in answering the question under consideration. It merely indicates that running boards were purchased in December 2009. It does not indicate that that was the first time the defendant had ever purchased running boards.
The question of whether a running board was on the defendant's premises on the day of the alleged incident is inextricably connected with the main issue of fact which the court has to decide, that is, was the claimant injured on the day in question while in the course of his duties, in the manner he indicated.
The claimant maintains that he was injured at work. In his witness statement he states that at the end of the work day, one of the managers asked two mechanics, Junior and Andrew and himself and Bruce Campbell as detailers to remain beyond the required work hours to finish servicing and cleaning one of the defendant's motor vehicles. He speaks of the vehicle being worked on by the four of them outside under a shed and that he turned on the lights when it became darker.
He indicated that after cleaning inside the vehicle he proceeded to exit the vehicle. He placed his left foot where he thought was ground but stepped on a running board, which moved and he found himself slipping. In his statement he indicated that as he was falling and trying to stop himself from falling, he hit his side on a piece of iron and hit his back on the door of the vehicle and on the ground.
When he was cross-examined he indicated that the door was right beside the post, but not resting on the post. Initially he also said the post was one foot away from the door then he said it could have been about four feet away. He said it happened fast and the hook of the door hit him after he hit his back on the post and he fell on his knee. He went on to indicate that he hit his left back and spine on the post and that the piece of iron that he said in his statement he hit into was the post. He maintained that he hit the metal post then the door hit him in his back.
In closing submissions counsel for the defendant argued that the difference in distances that the claimant suggested the door was away from the post, the equating of the post with the iron referred to in his statement, the first mention of him falling to his knee and the improbable sequence of events whereby he indicated his back hit into the post before his back also was hit by the door showed that the claimant was not speaking the truth.
The defendant, primarily through Mr Depass, maintained that the claimant was not injured on the job as he contends. Mr Depass says that he overheard other employees teasing the claimant that he had hurt his back after he fell from a wall, when he was engaged in spying on his baby's mother. It is therefore the defendant's case that it is not true that the incident alleged by the claimant occurred at all. Mr Depass testified that the claimant was being given money by the defendant's accountant, a Ms. Lewars, prior to 2008 to go to the company's doctor. Ms. Lewars was not called as a witness to speak to those assertions. Mr Depass maintains that the claimant was fired because he was always involved in fights and it was after the claimant was fired that he heard from the claimant directly that he had been injured, though he had already heard of it from the office.
Bruce was the detailing supervisor who the claimant said was working with him at the time he suffered the injury. When Mr. Crichton testified, he indicated Bruce was still working with the defendant company at the time of the trial. Bruce however was not called to testify. Neither was any other employee, some of whom continued to be employed to the defendant at the time of the hearing called to speak to when it was that the claimant started to complain about his back or that the incident did not happen at all.
What is clear is that the claimant did have an injury and was assigned lighter duties that he could manage because of that injury. An injury he maintains was sustained on 15 April 2008 and the defendant said pre-existed that date. Mr Gordon in his submissions contended that it is the claimant who must prove his injury. That is true. However it was the defendant that raised the matter of the claimant having a prior injury to his back in its defence and as such the defendant must prove that. It has not availed itself of adequate evidence to do so.
The claimant has the burden to prove on a balance of probabilities that he sustained the injury to his back while he was carrying out his duties at work. His evidence is supported by three medical reports which were admitted into evidence. The medical report from the Kingston Public Hospital signed by Dr Bolt dated 1 July 2010 was admitted into evidence as Exhibit 1; Dr Ravi Prakash Sangappa's medical report dated 23 February 2011 was admitted as Exhibit 2; and Dr Rory Dixon's report dated 25 March 2013 was admitted into evidence as Exhibit 3. The claimant's evidence is that he fell on 15 April 2008. At paragraph 12 of his statement he indicates that he went home and went to bed. He went to work the next day with some discomfort in his back. While at work he felt intense pain after he tried to lift a bucket of water. He went to the accountant and she sent him to a doctor. He got sick leave. Unfortunately no report from that first visit to a doctor was forthcoming.
The claimant's evidence at paragraph 14 of the witness statement is that during the night he had severe pains in his back. He was in torment and he could no longer walk. With the assistance of his wife and a co-worker, he was taken to the Kingston Public Hospital (“KPH”). That would have been 16 April 2008. The medical data that emanates from the KPH is that the claimant presented to KPH on 20 April 2008, that would be 5 days after the incident...
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