Morgan (Willard) v Valley Fruit Company Ltd

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: ANDERSON, J.
• Judgment Date: 15 February 2006
• Judgment citation (vLex): [2006] 2 JJC 1502
• Date: 15 February 2006
• Docket Number: CLAIM NO. HCV 0805 OF 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. HCV 0805 OF 2003

BETWEEN

WILLARD MORGAN

CLAIMANT

AND

VALLEY FRUIT COMPANY LIMITED

DEFENDANT

EMPLOYERS' LIABILITY -

NEGLIGENCE - Crush injury to leg

ANDERSON, J

1 On the 11 ^th June 2001, the Claimant a 56 year old employee of the Defendant, received a crush-injury to his right leg which resulted in the amputation of the leg below the knee. The Claimant was sitting on the connection between a tractor and a trailer to which it was coupled. The tractor was pulling the trailer in which were being conveyed, several sacks of fertilizers as well as about ten workers. The tractor and trailer were held together by way of a metal bar at the back of the tractor (the "drawbar") and a metal projection from the front of the trailer. Each part had a hole through which a metal pin was inserted to secure the coupling. It was this pin that broke causing the trailer to run into and under the rear of the tractor and the Claimant's leg was pinned under the tractor.

2 The particulars of injuries according to the medical report are as follows:

• 1. Crush injury which lacerated the proximal leg.

• 2. Bleeding with laceration and exposed bone

• 3. Swelling deformity and inability to bear weight.

• 4. Seven (7) cm transverse laceration to the lateral aspect of the wound in the proximal tibia.

• 5. Comminuted fracture of the proximal third of the tibia and fibula.

• 6. Fracture site displaced and angulated.

• 7. Crush injury to leg with 111 B open fracture of proximal tibia.

3 The above are factual issues about which there is no dispute. The Claimant at the time when the accident occurred was sitting on the metal which connected the trailer to the tractor which he claimed was used as a seat but which the Defendant claimed was a step used by the ladies who worked on the Defendant's farm to get into the trailer for the purposes of being transported around the farm. This alleged seat was a piece of metal which was attached to the chassis of the trailer, According to the evidence, the trailer was a "make-shift trailer" converted from the back of a tipper truck. It is not in dispute that as the Claimant sat on this connection the pin which held the tractor and the trailer together snapped and when the tractor stopped the trailer continued moving forward, running under the rear of the trailer causing the injury to the Defendant's leg.

4 There are relatively a few issues for the court to consider in this claim which is both a claim in negligence as well as a claim for a breach of duty to provide a safe place of work for an employee.

5 The Claimant accepts that it is trite law that he must prove his case on a balance of probabilities but his counsel urges the court to the view that he may be assisted here by the doctrine res ipsa loguitor . In support of this, Miss Smith cited the judgment of Earle C.J., in the case Scott, v. London & St. Katherine Docks Company, where the learned Chief Justice quoted the following: -

"Where the thing is shown to be under the management of the Defendant or his servants and the accident is such an ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the Defendant that the accident arose from want of care."

6 I accept as Claimant's counsel does, that in order to rely on this doctrine the Claimant must establish that the thing causing the damage was under the management or control of the Defendant his servants or agents and. secondly, that the accident was of a kind such as would not, in the ordinary course of things, have happened without some negligence on the part of the Defendant or his servants. I believe that the Claimant clearly here can rely upon the principle of res ipsa lopuitor in support of his claim that the Defendant has been negligent.

7 The Defendant, in its defence, denied all of the Claimant's claims, However, at the end of the day it was conceded by the Defendant that the breaking of the pin was the proximate cause of the accident and is prima facie evidence of negligence, Further it seemed to be conceded that the Claimant may, because of this, rely upon the doctrine, res ipsa loquitur . However, in her response submissions Ms. McGregor cited Woods v Duncan [1946] 1 All E.R. 420 as suggesting that the doctrine does not apply. I do not believe that the case assists the Defendant in responding to the Claimant's submission that res ipsa applies. It was submitted that in that case, the House of Lords determined that the principle only shifts the onus of proof, and the defendant may discharge that burden even if the accident remains inexplicable. The defendant ought not to be held liable if the court is satisfied by affirmative evidence that he was not negligent. I agree. However, I do not agree with the submission that, "in this case, the defendant has proved that there was no want of reasonable care in its inspection and maintenance of the tractor/trailer". In fact, I hold to the contrary.

8 Among the issues of fact which the court must determine is whether to accept the evidence of the Claimant in respect of the following:

• (a) that he had assisted other workers to load the trailer with bags of fertilizer that morning;

• (b) that he had then gone back to fetch his machete, and that upon his return he attempted to board the trailer but the trailer was already full because of the fertilizer and personnel, and

• (c) the only place where he could sit was on what he called the "seat", being the metal piece in the front of the trailer. The Claimant further avers that he had seen other workers sit on that particular spot from time to time and he was not aware of any prohibition against workers sitting there

9 There was some attempt by the Defendant to argue that the Claimant, being an irrigation worker, could not have been required to assist with the fertilizing of the plants on the 69 acre papaya farm as that would not have been his job. It was the evidence of the Claimant, however, that on the farm, "everyone did everything Only some persons did spraying, but everyone certainly did fertilizing. The Court can take judicial notice of the fact that in Jamaica, on relatively small farms such as this one, employees are often required to be "jacks of all trade" and to assist wherever there is need for such assistance, and indeed, such was Claimant's evidence.

10 As far as (a) and (b) above are concerned, I accept the evidence of the Claimant as those facts are not seriously challenged. On the issue at (c), the Defendant, through its witness Mr. Somerville, strongly asserted that workers had been specifically told not to sit on that particular part of the trailer because it was dangerous. Mr. Somerville's evidence was also to the effect that at the time when the Claimant got onto the piece of metal which he described as a seat, the vehicle was some three or four chains away from where the trailer had been loaded. Although he noticed the Claimant doing what, he claims, had been expressly prohibited, he was unable to take any action to prevent his so sitting as he was too far away from Mr. Somerville.

11 On a balance of probabilities, I also accept the Claimant's evidence he was not aware of any prohibition concerning sitting where he had and that workers were accustomed to sitting there on being transported to different places on the farm. Moreover, as 1 observe below, if there had been such prohibition there was clearly no proper policing of the policy, if indeed it did exist.

12 Based upon the submissions of the Defendant's counsel, it is clear that the Defendant is prepared to accept some liability for the injuries, loss and damage which his Claimant has suffered. However, it is asserted by counsel that the liability for the injuries should be apportioned as to 70% for the Claimant and 30% for the Defendant and any damages should be apportioned appropriately. It will therefore be necessary for the Court to look at the authorities in so far as they relate to negligence and safe place and conditions of employment to determine whether, and if so to what extent, the Claimant may be held to have contributed to his own demise and therefore be liable to at least bear some damages which he has suffered. I shall do that here.

13 Claimant's case simply put is as follows: I was at work and being transported to another part of the farm by a method used by my employer to transport workers. That there was a break in the pin holding the tractor and trailer together and this break can only be explained on the basis of negligence: i.e. res ipsa loquitur, that my employer did not provide me with a safe work environment and as a result of the negligence or the failure to provide a safe work environment, I received injuries and suffered loss and damage.

14 It was the essence of Defendant's case that the piece of metal at the front of the trailer...