Lenoria Taylor v Hojapi Ltd

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 17 June 2015
• Neutral Citation: [2015] JMSC Civ 119
• Docket Number: CLAIM NO. 2011 HCV 05207
• Court: Supreme Court (Jamaica)
• Date: 17 June 2015

[2015] JMSC Civ 119

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2011 HCV 05207

Between

Lenoria Taylor

Claimant

and

Hojapi Limited

Defendant

Danielle Archer instructed by Kinghorn and Kinghorn for the claimant

Keresa McKenzie instructed by Murray and Tucker for the defendant

CIVIL PROCEDURE — APPLICATION TO STRIKE OUT STATEMENT OF CASE — WHETHER APPLICATION CAN BE TREATED AS SUMMARY JUDGMENT APPLICATION

IN CHAMBERS

Sykes J

1 Miss Lenoria Taylor has lost the end of her right index finger, that is, from the last joint to the tip of the finger. In sophisticated medical terms, she has suffered an amputation of the distal phalanx. She received her injury while using a knife she was not trained to use to cut frozen food. The knife slipped and she was injured in the manner just stated.

2 Hojapi Limited (“the hotel”) is not disputing her injury. Indeed it has accepted, by its defence, all that she has said about her injured finger. Its challenge to her is that she was never trained to use the machines or knives to cut frozen food because it was never part of her job to cut frozen food. It had other people for that and in any event it had a protocol for chefs who found that the frozen food was not cut up as required. The hotel says she failed to follow that protocol. The hotel is seeking to have the claim struck out.

The pleadings on how the distal phalanx came to be lost

3 Miss Taylor was employed as a chef. The hotel provides accommodation and meals for its guests. As part of its hospitality package, it provides meals on demand or as is said in Jamaica, cooked to order.

4 According to Miss Taylor on November 10, 2009, she was on the property in her capacity as a chef. Other than this assertion, the further amended particulars of claim are wonderfully vague. It simply says:

The claimant was lawfully in the execution of her duties as a chef upon premises under a contract of service with the defendant, when as a result of the negligent manner in which the defendant executed its operation in the course of its trade the claimant was exposed to the risk of injury and a consequence has sustained serious injury and suffered loss and damage. In particular, on the 10 ^th day of November, 2009, the claimant was in the process of executing her duties when the knife she was in the process of using cut her finger on the right index finger.

5 The paragraph continues by alleging the following particulars of negligence:

• a. failing to provide the claimant with requisite instruction in the use of the said knife;

• b. causing the said knife to cut the claimant;

• c. failing to provide a safe place to work;

• d. failing to provide the necessary safety equipment and safety gear to the claimant in the execution of her duties causing hot water to burn claimant;

• e. failing to provide the requisite warnings, notices and/or special instructions to the claimant and its other employees in the execution of its operations so as to prevent the claimant being injured;

• f. failing to provide a safe system of work;

• g. failing to provide a competent and sufficient staff of men;

• h. failing to modify, remedy and/or improve a system of work which was manifestly unsafe and unlikely at all material times to cause serious injury to the claimant;

• i. failing to take such care as in all the circumstances was reasonably safe in using the premises for the purposes of which she was invited or permitted by the defendant to be on the said premises.

6 If that were not enough, she alleges, in the alternative, breach of contract with the breach being that the “defendant would take all reasonable care to execute its operations in the course of its trade in such a manner so as not to subject the claimant to reasonably foreseeable risk of injury' (para. 6).

7 It is not clear why the allegation of injury with hot water is in the particulars when no one has suggested that she was scalded with hot water.

The affidavits

8 The affidavits filed in support of and in opposition to the application have revealed that this knife was a regular kitchen knife. The affidavits from the hotel say the following:

• a. it was aware of the dangers that may arise from cutting frozen meat and fish products;

• b. in light of this knowledge the task of cutting up frozen meat products was restricted to butchers who were trained in the use of the tools used to undertake this task;

• c. the butchers used electrical cutting equipment and special butcher's knives;

• d. the cook was never required, expected or authorised to cut frozen meat products;

• e. cooks were not provided with the tools, equipment or training to undertake the cutting of frozen meats;

• f. the system in place was that if the butchers had not cut up the meat the cook was to make a report to the supervisor in charge of the kitchen and in that event, the supervisor would direct that another menu item be prepared;

• g. if the supervisor had not adequately addressed the issue, the cook could complain directly to the Sous Chef;

• h. if the Sous Chef had not dealt with the matter satisfactorily, the cook may make a report to the Executive Chef either directly or through his secretary;

• i. there was absolutely no protocol prescribed by the defendant whereby cooks was directed or even permitted to undertake the cutting up of frozen products where this was not done by the butchers.

• j. the claimant was never trained to use a kitchen knife to cut frozen meat or fish products and neither was she provided with any safety guidelines or warnings in improvising in the use of the kitchen knife to cut up frozen meat and fish because this was not part of her duties.

9 Miss Taylor swore to the following in her affidavit:

• a. she was employed as chef between December 2007 and January 2010;

• b. on November 10, 2009, she reported for work;

• c. she noticed that the frozen fish was not cut up;

• d. she knew that her supervisor would not be lenient with her if she did not prepare the meal on time and so she sought his instructions on what she should do;

• e. he told her to go to the refrigerator and find something to prepare;

• f. she did not oppose him “because as far as [she] was concerned it became [her] duty to cut the fish if the butchers had not done so”;

• g. she used the kitchen knife which slid from the fish and injured her;

• h. she never received any training from the hotel in the use of the knife to cut up frozen products;

• i. she never received any safety guidelines or warnings in improvising by using the kitchen knife;

• j. her supervisor told her to find something to prepare and to do so quickly so that the guests would be satisfied.

10 As can be seen there is no difference on the facts indicating how Miss Taylor received her injury. Miss Taylor has not mounted any challenge to the accuracy or existence of the safety procedures spoken to by the hotel. From this narrative it is not clear why Miss Taylor thought that cutting up the frozen fish became her duty. That was not the procedure established by the hotel. Indeed, by all appearances, the hotel moved heaven and earth to dissuade cooks or chefs from even beginning to think that it was part of their function to fill the breach left by the butchers. So strongly did the hotel feel about this that it did not even give the cooks or chefs any instruction of any kind regarding cutting up frozen meats and fish lest they begin to think that it was part of their duty.

11 The court accepts the following as an accurate statement of principles applicable to striking out applications. The passages are from Lindsay J in Miller v Shires (a firm formerly known as Gartons) and another [2006] EWCA Civ 1386:

[8] Ward LJ made no express reference to the application before him being for permission for a second appeal, but that is inescapably what it is and, for that reason, when the application came before us, we elected to hear the application for permission first and separately so that we could examine whether the relatively stringent test appropriate to second appeals was passed. However, before I move on to that test I need to say something briefly about the jurisdiction...