Richard Henry v Marjoblac Ltd

• Jurisdiction: Jamaica
• Judge: Wint-Blair,J(AG.)
• Judgment Date: 17 March 2017
• Neutral Citation: [2017] JMSC Civ 42
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013 HCV 05052
• Date: 17 March 2017

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2013 HCV 05052

BETWEEN:

Richard Henry

Claimant

and

Marjoblac Limited

Defendant

Ms. Christine Mae Hudson for the Claimant

Mrs. Stacia Pinnock-Wright for the Defendant.

Negligence — safe Place Of Work— duty Of Employer — contributory Negligence

Wint-Blair,J(AG.)

1 I have been assisted greatly by the written submissions prepared by counsel appearing in this matter. In this judgment I will reference the evidence and submissions only to the extent necessary to explain my findings and decision. The parties should rest assured that in order to arrive at my decision I have considered all the evidence and counsel's submissions.

The Claim

2 The claim filed by Richard Henry is against the defendant, his former employer. It is brought in negligence as Mr. Henry alleges that during the course of his employment, he was instructed by Mr. Roy Jones, the owner and operator of the defendant company to assist him in removing the curling rod from the jack on a front —end loader. Mr. Henry experienced difficulty in the execution of these instructions. Mr. Jones then went into the machine, pressed the switch that controlled the hydraulic system and the curling rod suddenly and without warning shot out speedily from its barrel into the path of Mr. Henry. This caused him to shift to avoid being hit. Mr. Henry lost his balance, fell onto the loader bucket on his back and then to the ground. He sustained injuries, loss and damage and has incurred expense as a consequence.

Evidence of Mr. Richard Henry:

3 The evidence of Mr. Henry was that he commenced his employment with Mr. Jones' company in 2005. He was hired to operate a front-end loader (“the loader”) and was possessed of 25 years of prior experience operating this type of machine. He worked as a machine operator earning $20,000 per fortnight. He safety gear, boots and a hard hat as safety gear which he was expected to wear at all times. He used the loader to move materials from the stock pile to the crusher and also to load trucks.

4 On July 5, 2011 at approximately 8:30am Mr. Henry went to work. The loader he normally operated was being driven by another worker. He asked for that day off as vacation leave. Mr. Jones refused and sent him to the garage saying “I'm going to turn you into a mechanic today.” Mr. Jones then gave him instructions to tighten the slack bolts on another loader that was leaking. Mr. Henry can and does operate more than one loader at the defendant company. When that task was completed Mr. Jones told Mr. Henry that he should switch loaders with a worker by the name of ‘Indian’.

5 Having done that, Mr. Henry was instructed by Mr. Jones to remove the curling rod from the loader he had taken from Indian. Mr. Henry had never done this type of work before, but he did what he had seen other employees do, he loosened the bolts on the curling jack and unscrewed the pins from the rod. He then climbed into the cabin and attempted to use the lever to push the curling rod out. He was engaged in this solitary pursuit until he recognized that he was unable to get the curling rod out of its barrel and called for reinforcements from Mr. Hacker and Mr. Burrell aka “Jubbie”, who are welder and mechanic respectively on the site. Mr. Hacker and Mr. Burrell remained on the ground using their manpower to pull the rod from its barrel. They could not accomplish this feat and so they got Mr. Jones who climbed up into the cabin of the machine and sat in the driver's seat. At this time, Mr. Henry was atop the machine at the location of the curling rod tightening hoses. His feet were not placed on a level surface. The loader bucket was on the ground beneath the barrel. He came down from that position to retrieve a 9/16 spanner to tighten the hose on the left side of the cylinder and climbed back up onto the loader. Mr. Jones then revved the loader and shouted, “Watch It.”

6 Mr. Henry heard a loud explosion the curling rod flew out past his face. Hot oil from the hose sprayed out and onto his face. He was frightened and covered his face he made a step, slipped and fell backwards onto the bucket then onto the ground. The fall was from a height of some six feet. He and Mr. Jones were the only ones on the loader when the incident occurred. The other men were never on the loader. They had remained on the ground at all times. Mr. Jones had not given him any instructions regarding his safety nor did he tell the men what he was going to be doing. Mr. Jones did not tell Mr. Henry to get down from the loader even though the other two men had moved to the side of it. It was the shock of the oil being sprayed into his face and the curling rod being suddenly ejected from the barrel which caused him to lose his balance. In Mr. Henry's particulars of claim he described his movement as a shift as the curling rod flew by.

Evidence of Mr. Calvin Jones

7 The evidence of Calvin Jones was that Mr. Henry could not have removed the curling rod by himself, as two people were needed to knock out and remove the pin. He gave no instructions to Mr. Henry to work on the hoses. He paid Mr. Henry $10 -12,000 per week. Mr. Henry was a good worker, with whom he had had no problems whom, he described as respectful. Problems with the curling rod occurred three or four times per year among his four loaders. Mr. Jones told Mr. Henry to operate the lever and that Messrs. Hacker and Burrell would perform the mechanical aspects of the removal operation. The effluxion of oil was to be expected during the removal exercise, this is oil that is used in the operation of the loader and is expensive. This oil though not re-used is caught.

8 To remove the rod, the pin is disconnected. This pin is connected to a lever which had to be “prised out” after which the hose had to be disconnected. One would then start the engine and force the rod out to a point. At that time others are needed to take out the rod out so it doesn't fall. The usual process allows it to be easily removed. When it sticks the workers are trained to know what to do. Sometimes they use the forklift. In this case the forklift could not remove it and, this signalled a larger problem.

9 Having inspected the equipment himself, Mr. Jones decided to do things differently. While standing on the ground he told the men he was going to use the hydraulic system to force the curling rod from the barrel. He explained this to the men as the cylinder would move forward and he did not want anyone to get hurt. He told Mr. Burrell to connect one hose. All three men were then standing on the loader. As Mr. Jones climbed onto the loader, or and he told the three men on the loader to get down from the machine. Mr. Henry had one foot on a tyre and the other on the bucket, one foot forward, one to the side.

10 Mr. Jones had never used the hydraulic system to remove the curling rod with these workers before. He said, “if someone was in front of it when I move it, it could damage or kill someone.” Thus, he told the men to come off the loader because there was a risk of danger. Messrs. Hacker and Burell complied then, he sat down in the seat. He asked Mr. Henry to get down, who instead responded that he was ‘alright.’ Mr. Jones said he had used a loud, stern voice yet Mr. Henry remained. Mr. Jones admitted that he did not insist that Mr. Henry get down. He could see Mr. Henry clearly standing some 4 to 5 feet below his level. He looked around and no one was in any danger. He tapped the lever and the curling rod shot out with sudden force falling some ten to twelve feet away from the machine.

11 There was oil leaking from the barrel which did not splash as it was captured in a bucket he had sent Jubbie for earlier. He denied telling Mr. Henry to tighten loose bolts that morning. He denied when pressed that one person can do the operation up to the point when the rod is to be taken out physically. The accelerator was pressed, the machine revved and then he gave a tap to the lever and shouted “Watch It!” There was a loud noise. There was no splash of oil. Mr. Henry somersaulted off the machine into the bucket then, fell to the ground. This was just about when the shout was made and the rod was on the ground. The rod passed two to three feet from Mr. Henry within an arms length. A film of oil would have been on the rod itself and oil would have been in the cylinder to force the rod out. Mr. Henry did not cover his face with his hands. His hands went down onto the bucket and he flipped over onto it. The safest way of removing the curling rod would have been to take off the jack and use a tractor to pull it out. There were tractors on site that day.

12 Issues:

• 1. Whether Mr. Jones had provided a safe system of work for Mr. Henry.

• 2. Whether the defendant discharged this burden to Mr. Henry

• 3. Whether Mr. Henry is to be found contributorily negligent.

Submissions on behalf of the claimant:

13 Ms. Hudson submitted that there was a failure on the part of Mr. Jones to provide adequate training and supervision to Mr. Henry before asking him to remove the curling rod. Mr. Henry was an operator of the front-end loader and had been so for many years, he was not a mechanic. She disagreed with the suggestion that Mr. Henry had been asked to get down from the machine before the operation to remove the curling rod by Mr. Jones and that Mr. Henry disobeyed this instruction. The fault was attributed to Mr. Jones in that it was he who allowed Mr. Henry to remain on the machine while undertaking the removal operation which was fraught with danger. It was Mr. Jones she contended who controlled the proceedings and accordingly he failed to properly supervise Mr. Henry. He further failed to ensure that Mr. Henry got down and moved to a safe distance before attempting to remove the curling rod.

14 Ms. Hudson relied on a number of authorities, the first being Morton v...