Reid (Joseph) v Mobile Welding and Engineering Works Ltd and Newton Rodney

• Jurisdiction: Jamaica
• Judge: CORAM: ANDERSON, J.
• Judgment Date: 07 December 2007
• Judgment citation (vLex): [2007] 1 JJC 2601
• Court: Supreme Court (Jamaica)
• Date: 07 December 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

AT COMMON LAW

SUIT NO: C.L. 2000 R - 030

BETWEEN

JOSEPH REID

CLAIMANT

AND

MOBILE WELDING AND ENGINEERING WORKS LIMITED

1 ^st DEFENDANT

AND

NEWTON RODNEY

2 ^nd DEFENDANT

DAMAGES - Pain and suffering - Loss of amenities

NEGLIGENCE - Crush injury to foot - Safe system of work

CORAM: ANDERSON, J

1 Whatever version of the facts in the incident giving rise to this case that is ultimately believed, whether that alleged by the Claimant or by the Defendants, this was a singularly unfortunate accident with significant, if as yet unquantified, consequences.

2 Joseph Reid, who at the time of hearing a teacher was, in December 1995, a welder by trade and had been employed in that capacity by the 1 ^st Defendant, since January of that year. The 2 ^nd Defendant, Newton Rodney was, and is, the chief executive officer and agent of the 1 ^st Defendant. The business of the 1 ^st Defendant, which was carried on at Lot 29, Marian Road in Montego Bay involved sheet metal forming. On a fateful evening of December 12, 1995, the Claimant was severely injured when his foot was crushed as he stood on a sheet of metal, 20' by 6' by ¼ inch which was being rolled for configuration to particular specifications, in a machine which was being operated by the 2 ^nd Defendant.

3 The Claimant's Statement of Claim alleges that the 1 ^st Defendant, and the 2 ^nd Defendant, as its servant or agent, are liable for his injuries, loss and damages because of negligence and/or, a breach of statutory duty. Among the particulars of negligence pleaded were, a failure to provide a safe place of work and a failure to fence dangerous machinery; a failure to instruct the plaintiff in the safe use of the machine or to keep a proper look-out for the safety of the plaintiff and, switching on a dangerous machine when it would have been obvious to a reasonable person that danger or injuries would befall the plaintiff.

4 According to the Claimant's Witness Statement, at approximately 8:40 p.m. on the evening in question, the Claimant was on the premises rolling sheet metal. Along with him were, Mr. Gladstone Johnson who operated the crane which was used to lift the metal sheets into position for insertion into the rolling machine, and the 2 ^nd Defendant who was responsible for actually operating the rolling machine. The sheets of metal are shaped by the rolling machine for use in making things such as tanks. It is common ground that the processes involved sliding the sheets of rectangle-shaped metal of various thicknesses between cylindrical rollers, into a rolling machine consisting of two rollers at the bottom which move, and one roller above them, (the "beam") which does not move. The position of the rollers at the bottom is adjusted in order to produce the shape desired for the particular item required.

5 In lifting the sheets of metal onto the machine, chains from a crane are attached to the metal by connectors called jigs which also hold the metal in place while it is passed through the machine. Once the metal has passed through the machine to a sufficient length on the other side of the rollers, it is necessary to move the jigs to the other side of the rollers to hold the metal sheet in place while the rolling continues. When the rolling process is reversed so the metal is being pushed in the opposite direction, there then comes a time when the jigs again have to be moved to be attached to the metal sheet on the other side of the rollers; that is, the side in which direction the metal sheet is being rolled.

6 According to the Claimant's evidence, during the time when they were rolling the "second sheet" of metal, it became necessary to move the jigs from one side of the rollers to the next. He said he was instructed by the 2 ^nd Defendant to climb on top of the metal sheet to detach the jigs, throw them over the rollers and to re-attach them to the metal on the other side. However, when he had climbed onto the sheet, he said he noticed that Mr. Rodney had in his hand, the remote control which may be used for starting the machine. It is common ground that there is a panel with levers or gears. The levers on this panel are normally used in the operation of the machine and the remote control is a wired remote in that it is connected by an electrical cord to the motor. According to the Claimant, he had stooped to adjust the jigs and when he attempted to stand up, he realized that his leg was caught between the sheet of metal and the roller. Soon thereafter he realized that the rolling machine was on and he screamed "Mi foot" but the machine did not stop until he had shouted "mi foot" about four times.

7 It should be noted that in the witness statement, the Claimant said that while his foot was being crushed, he could hear the sound of his boot being crushed but he could not hear the sound of the machine. As a result of the accident he lost the five toes on his right foot and had to have a skin graft by which skin was transferred from his thigh to his foot to replace dead skin on the foot. He remained in the Cornwall Regional Hospital for about a period of about fifty-eight (58) days until the 4 ^th of February 1996. Thereafter, he was an out-patient of the hospital for a further period of a year. The Claimant admits that as a result of the accident he received benefits under the National Insurance Act, although it is not at all clear what amount was received. It is also not in dispute that the Claimant received the proceeds of an insurance policy maintained by the employer.

8 The Defendants on the other hand, deny that there was any negligence on their part and instead say that if there was any negligence, it was on the Claimant's part or he had contributed to his own injury and loss. According to the evidence of the 2 ^nd Defendant, the accident occurred that evening as they were rolling the eighth sheet of metal (not the second, as alleged by the Claimant). The sheet had already been rolled through the rollers from West to East, that is from the side on which sheet had been loaded, and they were now about to roll from East back to the Western end of the machine shop. The jigs, or "grabs" as Mr. Newton refers to them, had to be moved over to the Western side of the rollers. He said that at the time just before it became necessary to move the jigs, he had been talking to the Claimant. As they finished talking, he moved towards the control panel on which the levers for operating the machine are located and started the rollers.

9 In his witness statement he said: "After I started the rollers and looked up from the control panel I saw Mr. Reid up in the air and I shouted: "Hell, what is this?" And I immediately pressed the emergency shut down button which stops the rollers and then I re-started and reversed the rollers while he shouted; "Leggo mi foot". Further along in his witness statement he alleges that the Claimant told both himself and Mr. Johnson after the accident that he saw the chain lying on the top roller (the beam) and he thought it would go over and damage the metal sheet, so he jumped onto the machine to move the chain and in so doing his foot slid under the rollers.

10 In the defence filed, in addition to denying any negligence on their own part, the Defendants listed particulars of negligence on the part of the Claimant. In that regard, the Defendants claimed that Mr. Reid had failed to obey express instructions given to him by the 2 ^nd Defendant with respect to the safe system of work to be carried out by him in assisting the 2 ^nd Defendant. It was also pleaded that the Claimant had climbed or jumped onto the roller machine after it had been switched on by the 2 ^nd Defendant to stand on the metal which was being rolled in breach of instructions. The Claimant also allegedly failed to call out or shout to or warn the 2 ^nd Defendant that he was intending to jump on the machine. It was also pleaded that the Claimant had had no regard for his own safety and had voluntarily assumed the risk of injury when he climbed onto the machine which was switched on.

11 The Defendant further denied that there had been any breach of statutory duty or any other obligation imposed on the 1 ^st Defendant under the Factories Act. In particular, it was pleaded that the machine was not dangerous and therefore there was no obligation to fence it.

12 The Issues to be decided by this Court .

13 The issues to be determined in this matter may be summarized as follows:

• 1. Were the accident and subsequent injuries and loss suffered by the Claimant the result of the negligence, or a breach of the duty to provide a safe place of work with proper and effective supervision, on the part of the Defendants?

• 2. If the answer to question 1 above is "Yes", was the Claimant contributorily negligent in his acts or omissions?

• 3. Was the rolling machine on which the accident occurred "dangerous" for the purposes of the Factories Act, so as to require it to be fenced, in the absence of which there was a breach of statutory duty? If it was, was this the cause of the accident?

14 The Witnesses

15 The Claimant was the only witness called in support of his case, while the Defendants called both the second Defendant and an Expert Witness, Mr. Louis Aiken, Managing Director of Tank Weld Fabrication Limited, a company with a similar kind of operation as the 1 ^st Defendant.

16 While Mr. Aiken was able to assist the court on the limited question as to how machines of the kind on which the injury took place operated, and whether there was ever a need for anyone to stand atop the metal during the course of rolling metal, he had little else to contribute. The court, however, did have the benefit of a video showing the rolling machine in operation. The video had been produced pursuant to an Order on Case Management by my...