Oreth Hill v Super Plus Trucking and Equipment Ltd
| Jurisdiction | Jamaica |
| Judge | Simmons J |
| Judgment Date | 10 July 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2007HCV03341 |
| Date | 10 July 2020 |
[2020] JMCC Comm 152
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2007HCV03341
Leonard Green instructed by Chen Green & Company for the claimant Matthew Ricketts instructed by Samuda and Johnson for the defendant
Negligence — Employer's duty of care — Safe system of work — Whether there was a breach of that duty
On the 10 January 2007, the claimant who was employed to the defendant as a driver was injured when the crane section (the crane) of the boom truck which he was operating came into contact with one of the Jamaica Public Service Company's power lines (the power lines).
He has claimed damages for injuries, damage and loss as a result of the defendant's failure to provide a safe system of work.
The claimant stated that on 10 January 2007 he went to premises at Sunset Drive, Mandeville in the parish of Manchester to pick up and deliver motor vehicle parts, as instructed by the defendant's managing director, Mr. Charles Chen.
It was averred that the claimant was instructed to use the boom truck although he had no previous training in its operation.
Whilst loading the motor vehicle parts onto the truck, the crane came into contact with power lines and the claimant was electrocuted and he sustained injuries to various parts of his body.
Based on the circumstances, it was averred that the defendant was negligent in that it failed to provide a safe system of work.
The particulars of negligence were stated to be as follows:
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(i) The defendant's failure to ensure that the claimant was properly trained or had sufficient experience to operate the boom truck.
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(ii) The defendant's failure to ensure that there was another worker to assist the claimant in the loading of the motor vehicle parts on the truck.
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(iii) The defendant's failure to provide the claimant with proper safety gear in carrying out the job.
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(iv) The defendant's failure to provide another person who would have been able to alert the claimant to the danger of operating the crane in the area where the claimant was directed to carry out the job, thereby leaving him to operate the crane without any or any due regard to the danger that he was being exposed to at the time.
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(v) The failure of the defendant to take reasonable care to ensure that the claimant was not injured whilst operating the boom truck.
The particulars of injuries are stated to be:
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(i) Severe burns to the body
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(ii) Unconsciousness
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(iii) Electrical burns to the right shoulder and foot, left leg and buttocks.
Special damages were claimed in the sum of twenty-five thousand six hundred and ten dollars ($25,610.00).
The defendant admitted that the claimant was asked by its managing director to deliver the truck chassis to a customer. It was however denied that he had been instructed to collect motor vehicle parts. The defendant also asserted that the claimant was told not to operate the crane as the customer was responsible for offloading the chassis. It was also stated that a forklift had been used to load the chassis onto the truck.
In breach of the directive issued by the defendant's managing director, the defendant attempted to operate the crane and was electrocuted. Liability for the injuries suffered by the claimant was denied and it was asserted that the accident was either caused by or contributed to by the claimant's negligence.
The claimant in his witness statement gave evidence that he was employed by the defendant as a driver. He stated that on the day before the accident he was called by the defendant's dispatcher who told him that Mr. Chen had some iron which was to be delivered and that he was to speak with “Larr” at the defendant's garage in Lacovia to get instructions.
The next day, he reported to “Larr” but was unable to get any instructions. He was instructed to wait for Mr. Chen. When Mr. Chen arrived he told him about the iron that was to be delivered. The iron was loaded onto the truck by another employee. Mr. Chen then instructed “Juds” who was an operator at the garage and who also did welding to show the claimant how to operate the crane. She did so for about five to ten minutes.
Mr. Chen further instructed the claimant to pick up two pieces of iron at the same location where he was to deliver the chassis. On arrival at the location he spoke to a man who instructed him where the iron was to be offloaded. That exercise was conducted without incident.
Whilst using the crane to load the second piece of iron he felt “…bare fire” in his hands. The next thing he remembered was that he was being taken in a car to the hospital. He gave Mr. Chen's telephone number to the driver who contacted Mr. Chen.
He was admitted in hospital. The claimant indicated that he has scars all over his body and does not have the same amount of energy as he did before the accident. He can no longer play football due to the injury to his toe and his sex drive has diminished.
His evidence is that he still drives trucks but cannot do so for long hours. Prior to the accident he earned between twelve and twenty-two thousand dollars ($12,000.00 – $22,000.00) per fortnight depending on the number of trips he made. He expressed doubt regarding his future as a truck driver.
He was hospitalised for four (4) days but could not work for one year. He was paid sixty thousand dollars ($60,000.00) representing ten thousand dollars ($10,000.00) per fortnight for twelve weeks.
In cross examination, the claimant indicated that he had never been asked to use the crane before and had never done so. On the day in question, he was asked to drive the boom truck. When asked if other trucks were available he declined to answer and when it was suggested that that was the case, he said that he didn't know.
He agreed that a forklift was used to place the chassis on the boom truck. He had never seen “Juds” operate the crane but thought she was a trained operator because Mr. Chen had asked her to instruct him in its operations. He maintained that Mr. Chen had asked “Juds” to instruct him. He was unable to state which levers were used to raise the crane and did not remember how many levers it carried. He then said that there could have been six levers. He also indicated that he couldn't remember which levers he had used whilst off-loading the chassis.
He maintained that he had been given instructions on how to operate the crane and denied that it was his decision not to wait for assistance to offload the items.
The claimant stated that he was a driver and he accompanied side men who would deliver boxed goods to customers. He would sometimes assist to offload the boxes but it would sometimes be done by persons at the location. He maintained that Mr. Chen did not instruct him that he was only required to transport the items and that someone at the location would offload them.
When challenged in relation to his diminished sex drive he said that he had told Doctors Kidd and John about the problem. When it was suggested to him that he said nothing about the issue to Dr John, he declined to answer. He did however state that he got medication for the problem but could not recall the name of the medication.
It was the claimant's evidence that he no longer drives trucks. He said that he had continued to drive trucks until April 2014. He said that he used to deliver marl from a quarry to customers in Black River, New Market and other locations. He stated that one bag of marl would cost approximately thirty-five thousand dollars ($35,000.00) and he would pay cash for the marl or sometimes purchase it on credit.
Counsel referred to paragraph fifteen (15) of the claimant's witness statement which states as follows:
“There is no way I can do that type of work anymore because of my injuries and I am not sure how long I will be able to continue to drive trucks in order to make a living”
When it was suggested to him that the above statement was not true. To this suggestion, the claimant said “I don't drive for long hours”.
The claimant told the court that his employer required him to drive seven (7) days per week.
During re-examination counsel for the claimant sought clarification on what the claimant meant by long hours. The claimant said that long hours meant every day. He said that he would work from 7am to 3pm.
He gave evidence that he has known “Juds” since he started working for Mr. Chen but he has not had any contact with her since the day of the accident.
The claimant stated that he did not know anyone at the garage where he went to deliver the chassis. He said that it was located on the roadside and had no gate, fence or yard. He also said that when he went there he saw men working on trucks on the roadside and a man who told him where to place the chassis.
He also stated that when he arrived no one came out so he proceeded to offload the chassis. It was his evidence that he had looked around and he saw that the place was clean in that there was nothing which would have prevented him from doing what he did. The claimant said that he had never been to the location before.
The claimant gave evidence that as a result of his injuries his sexual performance has been affected as he does not feel strong. He also indicated that he used to take nerve pills.
Mr. Charles Chen, the defendant's managing director gave evidence on its behalf. He indicated that the defendant had been contacted by a customer to transport two pieces of truck chassis to a location in Knockpatrick in the parish of Manchester. The boom truck was the only truck available that day which could transport those items. They were loaded onto the truck using a...
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