Victoria Mutual Building Society v Barbara Berry

• Jurisdiction: Jamaica
• Judge: SMITH, J.A. , HARRIS, J.A.
• Judgment Date: 31 July 2008
• Neutral Citation: JM 2008 CA 73
• Judgment citation (vLex): [2008] 7 JJC 3108
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE HARRIS, J.A THE HON. MR. JUSTICE DUKHARAN, J.A. (Ag.)

DUKHARAN, J.A. (Ag.)

I agree.

SMITH, J.A.

BETWEEN:

VICTORIA MUTUAL BUILDING SOCIETY

DEFENDANT/APPELLANT

AND

BARBARA BERRY

RESPONDENT/CLAIMANT

Emile Leiba instructed by Myers, Fletcher and Gordon for the Appellant.

W. Clark Cousins for the Respondent.

NEGLIGENCE - Contributory - Damages

OCCUPIERS' LIABILITY - Contributory negligence - Damages

SMITH, J.A.

I have read in draft the judgment of Harris, J.A. I agree with her reasoning and conclusion and there is nothing further I wish to add.

HARRIS, J.A.

1 This is an appeal from a judgment of Jones J, made in favour of the respondent on May 9, 2007, on the issue of liability.

2 On July 22, 1998 the respondent, a customer of the appellant, visited its establishment to transact business. On completion of the transaction, and while leaving the building, she slipped on a step. She fell on her knees with her feet trapped beneath her body. She was transported to the hospital where it was discovered that she had sustained a fracture of the right foot and a sprain of the left ankle.

3 At the time of the accident, she was proceeding from the customer service area of the building to the banking hall. The banking hall and the customer service areas are separate. To gain access to the banking hall the respondent had to go through a door way and descend a step which was three to four inches in height. A warning sign with the words "Please watch your step" was suspended from the roof of the building and was at a height of approximately six feet from the ground. This sign was within close proximity to the doorway through which the respondent entered. She stated that she did not see the sign.

4 On July 20, 2004, the respondent commenced an action against the appellant in negligence and/or the Occupiers Liability Act. The allegations of negligence and/or breach of statutory duty were particularized as follows:

• "(a) Placing short steps in a position which were not readily visible to customers likely to access and/or use same

• (b) Failing to provide any or proper warning of the presence of the said steps which were not obvious

• (c) Failing to provide any handrail to safely ascend or descend same

• (d) Exposing the claimant and other visitors to the risk of injury which given the circumstances the defendant knew or ought reasonably to know might occur

• (e) Failing to ensure that its premises were reasonably safe for persons using same for the purpose(s) for which they were invited

• (f) The claimant relies on the doctrine of res ipsa loquitor."

5 The appellant, in its defence, denied liability. It averred that a warning sign was in place and that it had taken all reasonable steps to ensure that all its visitors were not exposed to the risk of injury. Its further averment was that the premises were reasonably safe for all users thereof. It was also its averment that the doctrine of res ipsa loquitor was inapplicable in the circumstances of this case.

6 The learned trial judge gave judgment for the respondent with damages to be assessed, if not agreed. Costs were awarded to the respondent.

7 At common law, an occupier of premises owes a duty to take care as is reasonable in all the circumstances to ensure that visitors to his premises are reasonably safe. A common duty of care is also imposed on an occupier by statute as ensconced in the Occupier's Liability Act. Section 3 of the Act provides:

The statutorily regulated duty of care is essentially similar to that of the common law. However, at common law, a visitor is required to employ reasonable care for his own safety. Under the statute, the degree or want of care which would ordinarily be looked for in an invitee is only a relevant factor.

• "3. (1) An occupier of premises owes the same duty (in this Act referred to as the "common duty of care") to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor by agreement or otherwise.

• (2) The common duty of care is the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

• (3) The circumstances relevant for the present purpose include the degree of care and of want of care, which would ordinarily be looked for in such a visitor and so, in proper cases, and without prejudice to the generality of the foregoing-

  • (a) an occupier must be prepared for children to be less careful than adults;

  • (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

• (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances.

• (5) Where damage is caused to a visitor by danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe."

8 Where a visitor sustains damage by a danger of which he has been warned by the occupier, the warning, in itself, does not exonerate the occupier from liability unless the circumstances are such that the warning was sufficient for the visitor to be reasonably safe. In deciding whether an occupier has discharged his common duty of care, regard must be had to all the circumstances.

9 It is a question of fact whether a defendant, as an occupier, failed to take reasonable care for the safety of his visitor, and whether the visitor was contributorily negligent. In Indemaur v Davies (1867) L.R. 2. CP. 311 Kelly, C.B. in affirming the decision of the lower court quoted, Willes, J. who opined:

"... with respect to such a visitor at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, when there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding or otherwise, and whether there was such contributory negligence in the sufferer, must be determined by a jury as a matter of fact."

10 The following grounds of appeal were filed:

• "(a) The learned judge failed to appreciate that there was no evidence in this case which took it outside the general law applicable to "slip and fall" cases. ( Wheat v. Lacon [1966] 1 All ER 582; Bell v Travco Hotels Ltd (1953) 1 All ER 638; Davis v DeHavilland Aircraft Co. Ltd. (1950) 2 All ER 583; Anatra v Ciboney Hotel Ltd. & Anor. Unreported SC C.L. A-196J 1997 decided January 31, 2001)

• (b) The learned judge failed to appreciate that there was no, or no sufficient, evidence of a want of care on the part of the Appellant.

• (c) The learned judge erred in failing to find that the Appellant had taken such care as in all the circumstances of this case was reasonable to see that the Respondent would be reasonably safe in using the premises for the purposes for which she was permitted by the Appellant to be there.

• (d) The learned judge, in...