Terry-Ann Bissick v Convenient Brands Ltd
| Jurisdiction | Jamaica |
| Judge | Dale Staple J |
| Judgment Date | 27 July 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2017 HCV 02950 |
[2022] JMSC Civ 138
CLAIM NO. 2017 HCV 02950
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Negligence — Employers Liability — Whether Claimant has established breach of duty of employer to provide safe system of work, sufficient staff and equipment — duty of claimant to provide sufficient evidence of breaches.
Ms. Krista-Lee Cole, Attorney-at-Law instructed by Jason Jones Legal for the Claimant
Ms. Jaavone Taylor Attorney-at-Law instructed by Nunes, Scholefield, DeLeon & Co for the Defendant
Dale Staple J (AG)
In or about January 2015, or so the Claimant's Particulars of Claim goes, the Claimant, a former employee of the Defendant, was given a task to clean out a pan kept under the fryer at the Barbican Branch of a popular chain of restaurants known as Wendy's. The Defendant is the franchise owner and operator of the restaurant chain and this branch is operated by the Defendant company.
The Claimant alleges that cleaning this pan caused her to suffer injuries and she has sued the Defendant as her employer for negligence arising from various breaches of their duty of care to her as an employer.
The Defendant claims that they breached no duty of care to her as an employer and maintain;
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(a) that the task was a simple one;
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(b) the Claimant was given sufficient tools and training to do the job;
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(c) and there was no need for more than one person to do the task.
In the circumstances, they did not breach their duty of care to her. What is more, they allege that the injuries suffered by her could not have been caused by the task she was given to perform.
The Court is therefore tasked with deciding whether or not the Defendant is liable to the Claimant in negligence for her injuries.
Before proceeding with the substance of the matter, the Court had to do a bit of housekeeping. Having consulted with the parties and secured their consent, the Court made the following orders as being necessary for the continuation of this matter:
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(i) The Defendant's name is corrected to be Convenient Brands Limited;
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(ii) The Witness Statement of the Claimant (incorrectly headed as the Witness Statement of Everton Bygrave) is treated as though headed “Witness Statement of Terry-Ann Bissick”
The Court is able to make the order in (i) above as it is simply to correct the name of the Defendant pursuant to Rule 20.6(2). It was simply a misnaming and there was never any doubt as to whom the Claimant was referring.
As to order (ii) above, this was in my view another bona fide mistake and there was no harm in simply correcting an error on the face of the document.
The facts in this case are somewhat Spartan. The Witness Statement filed on behalf of the Claimant on the 8 th February 2022 seems to have been drafted from a minimalist's perspective. Indeed, one is hard pressed to make a significant distinction between the Particulars of Claim and the Witness Statement.
The Claimant says that in January 2015 she was working at the Defendant's premises at the Barbican Branch of their Wendy's franchise. She says an international inspection was to be done of the branch and she was given the task of cleaning a pan kept underneath what she called the “fries machine”.
We have no evidence of the size or dimensions of this pan. We have no idea of the material with which the pan is constructed. We do not know it's weight. All of these are material facts which were neither pleaded, nor even put into evidence. The significance of this will emerge later.
Now the Claimant contends that the pan had never been cleaned before that day. But there is no evidence from her as to when the pan was first installed. She said she started working at that branch of Wendy's in December of 2015. That branch had been open from before the Claimant went there to work. So I cannot rely on such an assertion from the Claimant. She said the pan was in bad condition. There was no evidence from her as to what this meant. She said what she would usually do was change the filter pad.
Having been instructed to clean the pan, she said that she was given a knife, degreaser and grill scrubber to carry out the task. She said she spent all day cleaning the pad. In cross-examination, she agreed that she meant pan. In cross-examination, she admitted to receiving some form of training, albeit not physical training. She admitted she got the necessary tools and cleaning implements and cleaning supplies to do the job on the day in question. So this undermines her assertion in her witness statement that she did not. I find therefore that she did get the necessary tools and cleaning supplies for the job.
She said she was not given proper training or provided with any proper gears. She conceded on the gears in cross-examination. She said the conditions were unsafe and there were not enough people to help her with this task. However, there was no description by her of the process of cleaning the pan that was utilised by her that would warrant such a statement. In fact, she agreed that the conditions were safe in cross-examination. There was no evidence from her that would suggest she needed more than one person to help her. So I find that there was sufficient staff to do the job and that the conditions were safe.
She went to the Andrew's Memorial Hospital sometime after the incident and she saw a physiotherapist. There is a medical report presented from Dr. Adolfo Mena a consultant Orthopaedic Surgeon. There is no evidence that she saw a medical doctor at Andrew's Memorial Hospital or that she was recommended to see Dr. Mena by another physician. In fact, she conceded that she was sent to See Dr. Mena by her lawyer, who she admitted was not a physician.
The Defendant called one witness. This person is Calais Hayden, the Human Resource Manager of Wisynco Group Limited (not the Defendant company) since May 2, 2022. She manages the human resource needs for Convenient Brand Limited, the named Defendant company.
Among her responsibilities are the maintenance and review of employee records including documenting any training received, complaints, incidents, disciplinary breaches, promotions and so forth. She also has the responsibility for implementing and reviewing personnel policy including scheduling and safety practices in the company.
She clearly was not around at the time of the incident, so her knowledge, she admits, only comes from the Claimant's file. She said the Claimant started working at the Barbican Branch on the 1 st December 2014 when she had transferred from the Liguanea Brach. Her list of duties included, assisting the register operator with filling orders, serving and bagging customer orders, greeting and assisting customers with special orders, cleaning the stove, grills, counters, fry station, filtering fryers, French fryers, chicken fryers, floors and restrooms among other things. This was not challenged in cross-examination and I accepted same as being true.
It was communicated to her expressly that she would be required to bend, reach, wipe and carry items when cleaning and stocking and doing pre-close tasks. The witness stated that the cleaning activities are done before opening and closing daily. These cleaning activities are described by her as “non-technical” and are similar to ordinary household cleaning activities. No specialised skills, instruction or expertise is required in cleaning the equipment. None of this evidence was challenged in cross-examination and I accepted same as being true.
Degreasers, brushes, rags, gloves, soap and other cleaning equipment are provided in store to clean the items. Now according to her, the cleaning of the filter pan for the fryer is a normal task assigned to crew members and it is a one person job. Again, this was not challenged by the Claimant in cross-examination. I accepted it as being true.
Overall, I found Ms. Hayden's evidence to be reliable and credible. There was no real challenge to it on cross-examination and I found her evidence to be the truth.
The core issue in this case is whether or not the Defendant has breached their duty of care to the Claimant as an employer. Has she established, on a balance of probabilities, the several breaches she avers in her Particulars of Claim? She alleges as follows:
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(i) That they failed to set up and implement a safe system of work.
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(ii) That they failed to provide her with necessary tools/equipment for work;
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(iii) They failed to provide sufficient workmen to perform the task.
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(iv) They gave her an unreasonable task to carry out in a short space of time.
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(v) They Exposed her to unnecessary risk of injury
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(vi) They Ordered her to work in an area without training; and
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(vii) They Failed to put proper safety signs in place.
I will address each of these in turn in the analysis, but I must first examine the legal underpinnings of employer's liability.
It is not disputed that the Claimant was employed to the Defendant. As her employer, therefore, the Defendant would owe a duty of care to the Claimant to have and maintain a safe place of work.
The authority of Davie v New Merton Board Mills 1 established that amongst the duties of an employer to an employee is the duty to take reasonable care for their safety in providing, amongst other things, a safe place of work and a safe system of work. An employer must also provide sufficient and proper tools for the employee to perform their task as well as a sufficient and sufficiently competent staff of workers to carry out the necessary tasks.
The Claimant must satisfy the Court, that it was more likely than not, that the Defendant did not provide and maintain a safe system of...
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