Ray McCalla v Atlas Protection Ltd and Ringo Company Ltd
| Jurisdiction | Jamaica |
| Judge | McDONALD-BISHOP, J |
| Judgment Date | 06 May 2011 |
| Judgment citation (vLex) | [2011] 5 JJC 0601 |
| Court | Supreme Court (Jamaica) |
| Date | 06 May 2011 |
| Docket Number | CLAIM NO. HCV04117/2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV04117/2006
Oraine Nelson instructed by K. Churchill Neita & Co. for the claimant
Ms. Jacqueline Cummings and Aon Stewart instructed by Archer Cummings & Company for the first defendant
Negligence – Employer's liability –safe place of work- safe system of work- employee security guard- duties performed on third party premises – injury of employee by criminals on premises –whether employer liable
This case deals with the broad issue of an employer's liability to his employee for injuries sustained as a result of the criminal acts of a third party over which the employer had no control. It also addresses, in, particular, the issue of the employer's duty to his employee while the employee is carrying out his contractual duties on the premises of a third party.
THE FACTS
The facts that have emerged from the unrefuted evidence may be summarized as follows: On or around August 1, 2004, Ray McCalla, the claimant, was employed to Atlas Protection Limited, the first defendant, as an unarmed security guard. The first defendant was at the time, and still is, engaged in the business of providing security services in Jamaica. The claimant was assigned static duty between 7:00 p.m. on July 31, 2004 and 7:00 a.m. on August 1, 2004 at premises located at 21 Hagley Park Road, Kingston 10. Those premises housed a factory owned and operated by Ringo Company Limited, the second defendant. The second defendant was at the time carrying on the business of food and juice manufacturing. The claimant was the only security guard assigned to perform duties at that location during that period.
At about 2:40 a.m., the claimant was seated in the guard room having just completed patrol of the premises. He was making entries in the log book. While seated around the desk, he saw the guard room door suddenly swung opened and a masked assailant entered armed with a machete. The assailant, whom he could not recognize, immediately proceeded to start chopping him with the machete. He eventually managed to disarm his attacker during a struggle that took them to the outside of the premises. The attacker escaped towards the back of the premises and has not been seen by the claimant since.
The claimant received injuries to his head and hands with the major injury being an incomplete severance of his left hand at mid - palm level. He managed to go to the front of the premises to get help and he was eventually assisted by police personnel to the Kingston Public Hospital. He was hospitalized and treated. He was subsequently taken to the Medical Associates Hospital where he underwent further treatment to include emergency surgery.
THE CLAIM
The claimant has laid the blame for this attack, and the consequential injuries and losses he allegedly sustained, at the feet of both defendants. He has alleged in his statement of case that the injuries he sustained were caused by the negligence of either the first or the second defendant or both of them. His particulars of negligence, as pleaded, has detailed the bases on which he is alleging that the defendants are liable in negligence. He seeks damages, interest and costs as pleaded.
Both defendants were duly served with the claimant's statement of case. However, the second defendant has failed to acknowledge service and to file a defence to the claim. On March 14, 2007, an Interlocutory Judgment in Default of Acknowledgment of Service was entered against it with damages to be assessed. Damages have not been assessed but at the commencement of this trial, Mr. Nelson advised the court that the claimant is no longer pursuing the claim against the second defendant. Accordingly, the proceedings are now between the claimant and the first defendant.
The claimant's allegation of negligence on the part of the first defendant is particularized in its statement of case in the following terms:
THE DEFENCE
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(i) Failing to have any or any sufficient regard for the safety of the claimant while engaged upon work.
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(ii) Failing to avert a reasonable foreseeable risk to the claimant's safety by providing him with adequate materials for the safe performance of his duty, in particular, a panic button.
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(iii) Failing to inspect the said premises and take adequate precautions to ensure that they were reasonably safe and practicable for the purposes for which the claimant was engaged.
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(iv) Allowing and/or permitting the claimant to carry out security services at the second defendant's premises which was poorly and/or inadequately lit thereby increasing the risk of danger and injury to the claimant.
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(v) Failing to provide adequate and/or sufficient personnel to carry out the assigned tasks, having regards to the large size /area of the second defendant's premises.
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(vi) Allowing and /or permitting the claimant, an unarmed security guard, by himself, to carry out the assigned tasks without accompaniment and /or assistance.
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(vii) Failing to heed the complaints made by the claimant to his supervisor, agent and/or servant of the first defendant as well as management about the unsafe state of the second defendant's said premises.
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(viii) Failing to ensure that the second defendant's premises were sufficiently and adequately equipped with the necessary security features in particular a panic button and to reduce the risk of injury to the claimant.
The first defendant has denied the claimant's allegation of negligence against it and has, in the alternative, pleaded contributory negligence. It contends that the claimant was under an implied duty to exercise reasonable care, skill and judgment in the exercise of his duties and was aware of the risks and dangers that his employment as a security guard entailed. He was negligent for the following reasons:
THE ISSUES
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(i) Failing to follow the prescribed system of work when exercising his duties, in that he was required to be on alert and utilize the prescribed procedures in cases of emergency.
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(ii) Failing to inspect, examine and/or properly patrol the compound so as to ensure that it was properly secured, thereby exposing himself and others to the risk of harm and injury.
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(iii) In neglecting to properly inspect, examine and/or properly patrol the compound the claimant failed to, if at all, exercise the requisite degree of skill, care and judgment that was expected of a security officer contracted to keep the compound secure from would-be intruders.
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(iv) Failing to observe and/or keep a proper look out, if any or at all, on the compound so as to detect unusual movement or the presence of unauthorized persons.
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(v) Failing to be on alert for obvious dangers given that the very nature of his duties required him to be on alert for unauthorized persons or activities.
The issues to be determined on the question of liability are, of course, grounded in the tort of negligence on which the claim is based. Therefore, for the claim to succeed, it must be established by the claimant to the requisite standard that the first defendant owed a duty of care to him at the material time; that there was a breach of that duty by the first defendant; that the injury he sustained was a foreseeable consequence of the breach of duty; and that the injury, in fact, resulted from that breach.
It may be stated then that for the claimant to successfully establish the first defendant's liability in negligence on the particular facts of this case, the following questions must be asked and answered in the affirmative:
Whether first defendant owed a duty of care to the claimant
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(1) Whether the first defendant owed a duty of care to the claimant at the time of the alleged incident.
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(2) Whether the scope of any such duty of care, if any was owed, extended to the claimant performing his assigned tasks on the premises of a third party.
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(3) Whether the duty of care, if any was owed, extended to the protection of the claimant from criminal acts of third parties on those premises.
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(4) Whether there was a breach of any duty of care owed by the first defendant to the claimant.
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(5) Whether it was foreseeable that such a breach, if any, would have caused or resulted in the injury suffered by the claimant.
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(6) Whether a breach of duty did, in fact, result in the injury suffered.
There is no dispute that the relationship of employer and employee existed between the first defendant and the claimant at the material time. It is also not in dispute that the claimant did, in fact, sustain the injury complained of and that at the time, he was on the second defendant's premises in connection with his employment.
It is well settled at common law that an employer owes a duty of care to his employees to take reasonable care for their safety. The duty is not an absolute one and can be discharged by the exercise of due care and skill: Davie v. New Merton Board Mills Limited [1959 1 All E.R. 346. This duty to take reasonable care for the employee's safety is personal and non-delegable. It is also said to be stricter than the duty to take reasonable care for oneself, and it exists whether or not the employment is inherently dangerous. See: Speed v. Thomas Swift & Co. Ltd [1943] K.B. 557, per Goddard L.J.
The duty has customarily been captured under four headings. These are: (1) to provide a safe place of work, including a safe means of access; (2) to employ competent servants; (3) to provide and maintain adequate plant and equipment; and (4) to provide a safe system of work. However, it was stated in Wilson v. Tyneside Window Cleaning Co. [1958] 2 Q.B. 110, 123-124, that although a master's duty to his servant may be divided into these categories, it is a single...
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