Wayne Ann Holdings Ltd v Sandra Morgan

• Jurisdiction: Jamaica
• Judge: HARRISON JA , HARRIS JA , MORRISON JA
• Judgment Date: 02 December 2011
• Neutral Citation: JM 2011 CA 120
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 73/2009
• Date: 02 December 2011

BETWEEN

WAYNE ANN HOLDINGS LIMITED (T/A SUPERPLUS FOOD STORES)

APPELLANT

AND

SANDRA MORGAN

RESPONDENT

[2011] JMCA Civ 44

BEFORE:

THE HON MR JUSTICE HARRISON JA

THE HON MRS JUSTICE HARRIS JA

THE HON MR JUSTICE MORRISON JA

SUPREME COURT CIVIL APPEAL NO 73/2009

JAMAICA

IN THE COURT OF APPEAL

OCCUPIER'S LIABILITY - Duty of care - Breach - Negligence - Damages - Liability - Quantum

W Clark Cousins for the appellant

Miss Christine Hudson instructed by K. Churchill Neita & Co for the respondent

HARRISON JA

1 I have read in draft the judgment of my sister Harris JA and agree with her reasoning and conclusion. There is nothing that I wish to add.

HARRIS JA

2 This is an appeal against the decision of P.A. Williams J, wherein she found that the appellant had been in breach of the duty of care which it owed to the respondent under the Occupiers” Liability Act. She ordered as follows:

‘(a) Judgment for the Claimant on the issue of liability apportioned. 60% responsibility as to the Defendant and 40% responsibility as to the Claimant;

(b) Special Damages

Medical expenses	$111,500.00
Travelling expenses	10,000.00
Loss of earnings	412,500.00
Cost of extra help	326,400.00
Total	$860,400.00
Award at 60% thereof with interest @ 3% from 26/08/2000 to 21/06/06 and 6% from 22/06/06 to 29/05/09	516,240.00

(c) General Damages

Pain & suffering & loss of amenities	$2,000,000.00
Award to Claimant 60% with interest @ 3% from 07/08/01 to 21/06/06 and @ 6% from 22/06/06 to 29/05/09	$1,200,000.00
Loss of future earning capacity	750,000.00
Award to the Claimant 60%	450,000.00
Future extra help	832,000.00
Award to Claimant	499,300.00’

3 The appellant is a supermarket food chain operating in Jamaica. At all material times, the respondent was employed at the appellant's branch located in Christiana in the parish of Manchester. On or about 26 August 2000, she slipped in liquid which had been spilled on the floor while walking in the supermarket. This caused her to fall and sustain injuries.

4 She was seen on 30 August 2000 by Dr Kharl Wright, a general practitioner. At that time, she complained of pain in her left shoulder radiating to the fingers of her left hand associated with numbness of the left upper limb. He observed that she had weakness in the fingers of her left hand. She was assessed as having brachial plexus lesion and was referred to a physiotherapist. After six sessions of physiotherapy, her condition remained unsatisfactory. She further complained of severe pain and numbness from the left side of her neck to the fingers of her left hand. The doctor expressed the view that she was considered to be disabled at that point. She was then referred to an orthopaedic surgeon.

5 In May 2001, she was seen by Dr G.G. Dundas, an orthopaedic surgeon who examined her and found that she had left trapezius spasm in her upper extremities with tenderness but ‘full range of motion was executed’ from the shoulder when she was distracted, and that there was tenderness in the left brachial plexus. His diagnosis then was carpel tunnel syndrome and shoulder contusion. He posed a query as to whiplash injury. After a nerve conduction test was done, he concluded that the ‘symptomatology be assigned to the effect of her whiplash injury’ and assessed her as having 5% disability of the whole person. On 30 October 2002 she saw Dr Daniel Graham, a neurologist, who after conducting a number of tests, concluded that ‘the cause of the patient's persistent complaints remains undetermined’.

6 On 16 September 2005, she was re-examined by Dr Dundas who observed that she had pains in the left arm extending to the hand and that she was weak in ‘all resisted’ muscular exercises of the left upper extremity. He found that she had a mild ulnar claw of the left hand and intrinsic ulnar wasting as well as a sensory ulna blunting. He opined that she was suffering from a brachial plexus injury. At that time, he assessed her disability as 12% of the whole person.

7 On 17 September 2008, she was seen by Dr Mark Minott, an orthopaedic consultant, apparently at the appellant's request. He found that there was a reduced range of motion in her cervical spine due to spasm to the trapezius and paraspinal muscles of her neck, but that the spinal cord seemed normal. He diagnosed that the injury to the neck was only of mild severity. After taking into account a number of variables, he assessed her as having 5% permanent partial disability of the whole person. During cross-examination, he stated that where an injury of this type (whiplash injury) is sustained, with proper treatment including physiotherapy, recovery is expected after six months to a year. He, however, admitted that physiotherapy is not a panacea for whiplash injury and this type of injury could affect the respondent's daily living.

8 On 17 July 2001 the respondent brought an action against the appellant claiming damages for negligence and/or breach of statutory duty under section 3 of the Occupiers” Liability Act 1969. The particulars of negligence and/or breach of statutory duty were couched in the following terms:

‘i.) Failing to institute and/or ensure the operation of a system of inspection and reporting of spillages by their staff and prompt cleaning of any spillage

ii.) Failing to detect and clear the spillage

iii.) Failing to warn the Plaintiff and other lawful users of the Supermarket of the presence of the detergent and/or slippery substance on the floor by the cosmetic area

iv.) In the circumstances exposing the Plaintiff to a risk of injury of which they knew or ought to have known.’

9 In her witness statement, she related that her duties included cashiering and pricing goods and that on the day in question, she had just finished pricing a box of saltfish and had started placing it on the shelf when one of her co-workers borrowed her pricing gun. After completing her task, she left in search of the co-worker to recover the pricing gun. She stated that on reaching a corner, before entering the aisle where the detergents were kept, as she ‘was about to turn to go in between the aisle’, she felt herself sliding and tried to balance on a trolley which was to the right. After she fell, she said, she saw Dannette Daley, a co-worker of hers who was mute, stamping prices onto goods and packing a shelf in the aisle. She stated that before the fall, she saw a damaged bottle of liquid soap on the floor and that after falling, Miss Daley used cornmeal to spread over the area. She also stated that because of her injuries, she had to get paid help to assist with her household chores. She was dismissed by the appellant in November 2000 but did not seek further employment because of her injuries. She, however, started to rear chickens for sale which would yield income between six to seven weeks after the stock was purchased. Her injuries, she asserted, resulted in her having to pay for assistance in that venture, which reduced the income she gained from it.

10 The appellant filed a defence in which it denied that it was negligent or in breach of its statutory duty and averred that the injury and loss suffered by the respondent had been wholly or contributorily due to her own negligence. It was further averred that the spillage had occurred when a bottle of fabric softener had fallen from a customer while it was being taken from the shelf and that Miss Daley, who had been present at the time, took preventative steps pending the spillage being cleaned up. The particulars of negligence alleged in paragraph 5 of the defence were stated as follows:

‘(a) Failing to observe that the end of the aisle in which the spillage had occurred was blocked off to prevent entry.

(b) Failing to look where she was going and observe the presence of the spillage on the floor.

(c) Failing to heed the signal of her co-worker warning her of the presence of the liquid on the floor.

(d) Walking into the liquid despite the signal of her co-worker not to enter the area.

(e) Failing to exercise due care with respect to a risk that was obvious and of which she ought to have known given her shop floor experience.’

11 Miss Daley was called as a witness for the defence. In her witness statement, she related that she had been tagging products in one of the aisles. Having climbed on a stool, she took down a bottle of fabric softener and put it in a shopping cart without realizing that it had not been properly closed. The bottle overturned and spilled on the floor where the liquid remained for about two minutes. She stated that she saw the respondent walking towards her and would have gotten something to clean up the spillage, if the respondent had not been approaching. She waved to the respondent, pointed down to the softener and ‘flagged her to stop’. The respondent, she said, looked at her and smiled. During cross-examination, she denied that she had said that she had taken down the bottle but instead said that it had fallen when she had climbed on the stool. In cross-examination, she also denied touching the bottle before it fell but further said that she grabbed it quickly before it fell. Later, however, she said that the respondent entered and fell before she picked up the bottle. She also denied blocking off the entrance to the aisle or seeing anyone do so.

12 In support of its defence, the appellant also relied on the evidence of Mr Wayne Chen, its managing director. In his witness statement, he stated that the appellant had 38 locations across Jamaica at the time of the incident and related that over a period of six years, there had been 14 reported incidents of slippage caused by spillages. During the course of a day, all the staff members and janitors would clean the store on an on- going basis. In all stores, the staff members were trained to be on constant lookout for...