Morgan (Sandra) v Wayne Ann Holding Ltd (t/a Super Plus Food Store Ltd)
| Jurisdiction | Jamaica |
| Judge | P.A. Williams, J. |
| Judgment Date | 29 May 2009 |
| Judgment citation (vLex) | [2009] 5 JJC 2901 |
| Date | 29 May 2009 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2001/M-130 |
Miss Christine Mae Hudson instructed by K. Churchill Neita & Co. for the Claimant.
Mr. W. Clark Cousins for the Defendant.
NEGLIGENCE - Slipping on floor - Claimant injured - Breach of Occupier's Liability Act - Breach of statutory duty and/or breach of contract
Background
Sandra Morgan, the claimant, was employed to Wayne Ann Holdings Ltd, T/A Super Plus Food Stores Ltd., the defendant, at their Christiana branch in Manchester.
She was employed as a cashier, however on the 26 th of August, 2000 she was assisting in pricing salt-fish. She was walking along the shop floor when she slipped and fell. She slipped in a substance that had spilled from a bottle which it is generally accepted could have been fabric softener. She sustained injuries and was seen by a doctor. She was eventually relieved of her position due to her alleged inability to perform her duties and her employer's perception that she was unwilling to continue in their employ.
She now claims to recover damages for negligence and/or breach of the Occupier Liability Act and/or breach of contract. The defendant, while accepting that she fell and may well have been injured, denies any liability for her injuries.
The circumstances of the fall
The claimant maintained that she was in the process of going to retrieve a pricing gun to price some salt-fish. She had rounded one aisle and was about to enter another, where detergents were kept, when she felt herself sliding. She tried to hold on to a trolley using her right hand but the trolley slid away and she fell to the ground. Her left side made contact with the floor first.
Under cross-examination she admitted seeing a co-worker Dannette Daley, a witness for the defence. Daley was working in an aisle — the second one away from the one she had been working in. She also admitted seeing a trolley which she said Daley was using as it contained items Daley was pricing and packing on the shelf. This, however, was not the trolley she had referred to as the one she tried to use to break her fall.
Daley and her trolley were to the left whilst the trolley used to attempt to break her fall was to the right. She was unable to say which one was further down.
She explained that it was as she entered the aisle and had taken two (2) steps that she started her slide. Up to this time she had not seen Daley. It was after she had landed on the floor, that she became aware of Daley up on a stool, still packing.
It is useful and pertinent to note that Dannette Daley is hearing and speech impaired.
The claimant maintained that it was some man who assisted her from the floor and then got Daley's attention.
She said the liquid on the floor was pink and not blue as was suggested to her. This liquid was spilt all over the area and most of the contents of the bottle had spilled.
The defendant had Miss Dannette Daley give their version of what they alleged happened. Through an interpreter, Miss Daley said she actually saw the claimant fall and had tried to prevent it.
In their defence, the explanation proffered for the liquid being on the floor was that the spillage had just occurred when a bottle of fabric softener fell from a customer who had been taking same off the shelf. They also asserted that a co-worker, presumably Miss Daley; observed the spillage and took preventative steps by blocking off the aisle to prevent entry. This co-worker had also signaled the claimant not to enter the area, pending same being cleaned up.
In her witness statement/examination-in-chief Miss Daley who has been employed as tagger with the defendant since 1999 explained that she was duly tagging products on the fateful day. She explained that it was while so engaged she took down a bottle of fabric softener and put it in a shopping cart. It was this that spilled to the floor — she surmised that it had not been properly closed because a customer may have opened it to smell it.
Upon looking around she saw the claimant and waved to her while pointing to the spill. The claimant smiled at her but she walked on, stepped into the softener, slipped and fell. Miss Daley says it was she who helped the claimant from the floor.
She estimated the softener had been on the floor for approximately two (2) minutes but she could not have left it there and would have had to stay with it and ask someone to clean it up.
Under cross-examination Miss Daley said she had not in fact been tagging — she had been cleaning the shelf. Further she did not touch the bottle before it fell. She did not take it down, she did not put it in a shopping cart and she had not seen when anyone opened it.
She now claimed that she had climbed up on a stool to clean the shelf and the bottle fell — without her touching or interfering with it. She did not actually see it rum over and spill unto the ground.
Aspects of her witness statement which were clearly inconsistent with her viva voce evidence were put to her but she denied ever saying what was in the statement.
When questioned about attempts to block off the entrance to the aisle she said there had been none — she did not do so neither did she see anyone doing so.
She denied having a shopping cart using, but admitted that one was there which the claimant had held on to with her right hand while falling.
She insisted she did wave to the claimant while on the stool resulting in the claimant looking at and smiling with her. She however conceded that she did not know if the claimant had understood the attempts to warn her. She agreed the claimant would have been looking up at her as she waved.
In her submissions for the claimant, Miss Hudson highlighted the inconsistencies in the defence case, the fact that Miss Daley's evidence was contradictory and conflicted with the defence stated.
Hence Miss Hudson urged that the defence must fail.
Mr. Cousins for the defendant agreed that there were some issues of inconsistencies and credibility with both the claimant and Miss Daley. He however submitted that their differences on crucial points do not affect the outcome of the case. He also opined that given Miss Daley's disability and the difficulties which may have arisen with respect to translation, it would be prudent to rely on her own physical depiction of the facts wherever possible.
The fact is that Miss Daley was impressively clear in her effort to depict what she said took place. This cannot therefore be said to explain the inconsistent accounts presented by the defence.
I am guided by the words of Lawton L.J. in Ward v. Tesco Stores Ltd. [1976] 1 All ER 219 at page 221.
"If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forth coming from the defendants to show that the accident did not arise from any want of care on their part, and in the absence of any explanation, the judge may give judgment for the plaintiff. Such burden of proof as there is on the defendant in such circumstances is evidential and not probative"
The irreconcilable inconsistencies in the defence's attempt to explain the spillage causes the sincerity of the defence to be questioned.
The only person, other that the claimant, who it is agreed was present has not been able to convince the court that she saw how the spillage occurred. There is no believable evidence as to how long the spillage was on the floor. The assertion that an attempt was made to block off the aisle has been refuted by the evidence. Further Miss Daley's insistence that she tried to warn the claimant is defeated by the fact that she admitted she doesn't know if she was understood. In any event her demonstration of what she said she did, could have more likely distracted the claimant from the possible danger; hence her alleged response — she looked up and smiled.
The evidence of the claimant was significantly more consistent and more credible, hence her account is accepted as to the circumstances of her fall.
The issue of liability
In her submission for the claimant Miss Hudson stated that (1) the defendant failed to discharge their common law duty of care owed to the claimant and (2) the claimant being an invitee/visitor to the premises the defendant failed pursuant to the Occupier's Liability Act in ensuring that the premises was reasonable safe for the claimant.
For the defendant Mr. Cousins acknowledge that the claim properly falls to be considered on the common law tort of negligence and the statutory obligations contained in the Occupier's Liability Act. However, he contends in the defence stated, that there had been no breach of the common law duty of care and that the degree of care that was reasonably practicable, given all the circumstances, was exercised.
It is their assertion that the claimant was clearly the author of her own misfortune and that judgment should properly be entered for the defendant.
In ultimately deciding this matter the provision of the Occupiers Liability Act is to be borne in mind.
Section 3 (2) states:-
"The common law duty of care is the duty to take such care as in all the circumstance of the case is reasonable to see that the the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there"
In a decision from our Court of Appeal Victoria Mutual Building Society v. Barbara Berry SCCA 54/2007 Del. July 31, 2008. Harris J.A. at paragraph 7...
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