Paul Griffith v Resort Divers Ltd
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes, J. (Actg.) |
| Judgment Date | 28 January 2005 |
| Judgment citation (vLex) | [2005] 1 JJC 2801 |
| Date | 28 January 2005 |
| Court | Supreme Court (Jamaica) |
NEGLIGENCE - Vicarious liability
On the 30 th September 1997 at about 8:15 a.m., Paul Griffith was driving along the Tower Isle main road. Clifton Hamilton, a diver, employed to Resort Divers, driving in the opposite direction, moved from behind a line of traffic and collided with Paul Griffith's vehicle. Mr. Hamilton died from the injuries he received. Mr. Griffith survived but sustained serious personal injuries and his vehicle was damaged.
The evidence of the Claimant as to how the accident occurred has not been challenged by the Defendant. I will therefore confine my deliberations to the liability of the Defendant for the deceased's negligence.
The Defendant contends that the deceased was at the time of the accident on two (2) days leave, which commenced the day before the accident.
It is, however, the Claimant's case that he was not. Mrs. Beryl Hamilton, the widow of Mr. Clifton Hamilton, testified that that morning he told her he was leaving for work.
The first question is, "Was he on leave or was he going to work?"
The evidence is that about 5:00 p.m., the afternoon before the accident, a friend of the deceased attended his house and invited him to go fishing. Sometime later that night, and after his wife left for work, he went fishing. He returned at 5:30 a.m. the day of the accident.
The unchallenged evidence is that the deceased was an extraordinarily disciplined, careful and attentive employee who rarely took leave. He worked almost seven (7) days per week because of his concern for the welfare of the tourist. There were three dives each day. The first began at 9:30 a.m., the second at 11:00 a.m. and the third at 1:00 p.m. The 9:30 a.m. dive was the deepest. There were various grades of divers. The highest grade was the dive master. The deceased was a dive master. As a dive master he was responsible for preparing the equipment and instructing the divers before the dives. It was a requirement that a dive master was present on the 9:30 a.m. dive because of its depth and the risk involved. There were four dive masters. Two worked at each location.
Mrs. Hamilton's evidence
It is the evidence of Mrs. Hamilton that the deceased would leave the house for work as early as 6:00 a.m. depending on the number of tourists. He never left later than 7:00 a.m. because he lacked confidence in the other diver's ability to protect them. That morning he left home at 7:00 a.m. The evidence, however, is that he was heading in the direction of his place of employment. The unchallenged evidence is that he overtook a line of traffic and lost control of the vehicle. The reasonable inference is that he was in a hurry. His wife's testimony is that he is not a fast driver. Something impelled him that morning to hurry. What was it?
Mrs. Heron's evidence
Mrs. Laura Heron, a director of the Defendant gave evidence. Her testimony is that the deceased could not have been on his way to work as he normally reported to work by 7:30 a.m. to prepare for the first dive. It was her evidence that he needed to be at work by 8:30 a.m. to prepare the equipment, load them into the boat, interact with the guests and get them into the boat.
It was her evidence (and she was supported by Mr. Everton Suer) that the deceased would be required to travel at least one and a half hours from Harmony Hall where the collision occurred to get to Braco. He would be required to travel forty-five (45) minutes to get to Jamaica Jamaica. At 8:15 a.m. he was still at Harmony Hall. He would therefore not get to work for the first dive. Further, she testified, that the job, especially the first dive, was a technical one with dangerous physiological implications. He was required to dive at depth of 90 to 100 feet under water, which meant additional atmospheric pressure and increased inhalation of nitrogen. Those conditions necessitated a well-rested body.
A diver who was not well rested stood the risk of getting decompression sickness, which could result in serious injury such as paralysis or even death. Her evidence is that knowing he had gone fishing the night before and lacked sleep it would have been irresponsible of him to go to work. This behavior was uncharacteristic of him.
Assessment of the evidence
Mr. Hamilton's evidence is that he left home about seven the morning of the accident. Did he realize he was late and being the zealous worker he was he was in such a haste that he overtook the vehicles and lost control of his vehicle?
The contention of Mrs. Heron that he would not have been rested because he returned from fishing at 5:30 a.m. is flawed. The deceased was at home at least at 5:00 p.m. There is no evidence as to how early he got home that afternoon. On days unsuitable for diving they were allowed to leave as early as 1:30 p.m. In any event he could have rested before he went fishing. On the morning of the accident it is quite possible he was on his way to Jamaica Jamaica, which was forty-five minutes away or trying to get to Braco for the second dive. Mrs. Heron's evidence is that there were two dive masters assigned at each location and the divers worked out their own schedule. It was therefore not necessary that he should have going for the first dive. The Defendant has failed to produce any records to the court, which showed that the deceased was on leave at least on the previous day. On a balance of probabilities I find that the deceased was on his way to work.
Second question, "Who was the owner of the VW Golf at the time of the accident?"
Submissions
Miss Sandra Johnson...
To continue reading
Request your trial