Whonder (Sydney) v Courts Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | BMCDONALD J (Ag) |
| Judgment Date | 25 September 2001 |
| Judgment citation (vLex) | [2001] 9 JJC 2501 |
| Date | 25 September 2001 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE
IN COMMON LAW
NEGLIGENCE - Falling on stairway - Whether breach of statutory duty - Res ipsa loquitor - Award of damages
The plaintiff brings this action in negligence and/or breach of statutory duty and/or breach of contract against the defendant claiming damages/injury and loss and expense arising out of a fall by the plaintiff on 30 th November, 1994, whilst conducting business as a customer of the Defendant Company.
PLEADINGS
Particulars of Negligence and Breach of duty alleged by the Plaintiff:-
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(i) Failing to take any or any reasonable care to see that the plaintiff would be reasonable safe in using the premises as a customer.
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(ii) Providing a staircase for the use of the Plaintiff which was partially unrailed and unguarded and hence inherently unsafe to the user thereof.
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(iii) Failing to provide any or any adequate warning of steps which were concealed and/or not immediately obvious to the user thereof.
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(iv) Permitting the Plaintiff to use the stairway when it knew or ought to have known that it was unsafe for her to do so.
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(v) In the premises failing to discharge the common duty of care to the Plaintiff in breach of the Occupiers Liability Act.
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(vi) The Plaintiff relies on the doctrine of Res Ipsa Loquitor.
DEFENCE
On the trial date the plaintiff's attorney consented to the Court granting leave to the defendant to file an amended defence in terms of the draft amended defence.
In answer to the foregoing allegations the defendant alleges inter alia:-
Paragraph 4 "The defendant denies paragraph 5 of the Statement of Claim. The defendant avers that the Plaintiff's fall was caused or contributed to by her own Negligence.
PARTICULARS OF NEGLIGENCE
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a) Failing to keep any or any proper look out whilst climbing the staircase;
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b). Failing to have any or any sufficient regard for her own safety;
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c). Failing to observe or heed a sign in the defendant's store which was clearly visible to her which stated, "watch your step."
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d). Failing to pay proper attention whilst ascending the said staircase".
THE PLAINTIFF'S CASE
The Plaintiff was by profession a life insurance underwriter working at Life of Jamaica at the time of her accident. Up to this time she had been employed in the Life Insurance Industry as a sales agent for 6 ½ years.
On the 30 th November, 1994, she entered the Courts Jamaica Store at 29 Constant Spring Road alone, not to shop but to make her monthly payment on a refrigerator she had purchased on hire - purchase at the said store in October, 1994. On the lower level she enquired as to the location of the cashier and as a result of what she was told, she climbed the stairs. It was the first time she was going upstairs. She describes the stairways as having rails to the sides, and when climbing the stairs she used the railing to the left side. On reaching the top of the stairs she saw a display of furniture laid out infront of her. To her right there was also furniture displayed that was adjacent to the staircase and the same obtained to the left hand side.
On reaching the top of the staircase, she states that she took about 2 steps and looked around for the cashier's sign. She saw an office sign to the rear of the floor and saw people lined up where the cashier was located.
She turned left which she describes as the first left, the "short one" and then a second left and fell down two steps. She testifies that these steps were not visible to her before she fell; there was no sign indicating where the steps were, there was no railing, there was a little wall but no rail, there was nothing to indicate that she would need to hold onto anything. Further she states "there was nothing to indicate that having ascended those stairs I would have to descend again to get to the cashier.
The plaintiff states that she fell and landed up on her back at the bottom of the two steps. She felt a terrible pain in her left ankle and right big toe. The pain was excruciating, she broke out into sweat and the place appeared to get dark. A male employee came and helped her to get up. He put her on a chair. Other employees came around and sent for the supervisor. A person who seemed to be the supervisor came and took control and asked them to place her on a reclining sofa so that she could sit back with her two feet on the sofa. The female supervisor sent for ice because the ankle had started to swell. The plaintiff asked for water which she received; and when the ice came, the supervisor iced the left ankle. The supervisor asked the plaintiff who she could call to take her to the doctor and the plaintiff gave her secretary Maureen Doig's number to call. The plaintiff asked the supervisor if she could make her monthly payment and gave her the money and purchase bill. The supervisor asked a store clerk to do so, and by the time the clerk returned with the receipt, the plaintiff's secretary had arrived.
Miss Whonder states that the youngman who made the payment and her secretary assisted her down the stairs to her car, and her secretary drove her to Oxford Medical Centre. There she was treated by Dr. Fisher who was on emergency duty, her toe and ankle were x-rayed. She saw Dr. Fisher again on 13 th December, 1994, and 13 th January, 1995. He prescribed medication and referred her for psysiotherapy. The cost of same by Kay Barned amounted to $2,000 – 20 visits at $100.00.
The plaintiff consulted Dr. Christopher Rose for a second opinion on 6 th April, 1995, as she was having continuous pain and severe tenderness in her right big toe and subsequently in May, June and October, 1995.
Dr. Rose gave her an injection in the toe and recommended psysiotherapy with Anna Chai Chung.
Transportation to and from medical treatment/psysiotherapy were agreed at $8,000.
On the recommendation of Dr. Rose the plaintiff purchased metatarsal pads.
THE DEFENDANT'S CASE
Mrs. Heather McKoy testified that she recalled an incident taking place at the Constant Spring branch of Courts where she was working as manager at the time.
On the day in question her desk was located right below the staircase which leads to the upstairs where there are additional showrooms and where the cashier is located. She heard a loud noise, a thud coming from upstairs, and it took her less than one minute to go upstairs to investigate. There she saw a customer sitting on the landing at the top of the stairs. She was assisted by male porters who lifted her from the floor and placed her in a chair which was nearby. Mrs. McKoy asked the trainee manager what had happened in the presence of the customer. She said they got ice and placed it on the customer's foot and asked someone to make the payment at the cashier, which was done. She does not recall what the customer looked like but recalls her name "Whonder" because it was so unusual. She had a few words with the customer, the contents which she does not recall. She recalls that the customer called some type of transportation and was assisted downstairs by the male porters. The trainee manager and herself went with Miss Whonder to the door downstairs and to the front main entrance. The actual cash for transportation was given to the trainee manager.
Mrs. McKoy states that she reported the incident to the Head Office by telephone and next heard about the incident this year.
In evidence-in-chief Mrs. McKoy testified that at the top of the stairs at the landing if one turns left, there are two short steps downwards, each thread is 3 – 4" in height and two threads would be 7 – 8" in height. In that vicinity Mrs. McKoy testifies that there was nothing in particular in the region of two steps, there is furniture as it is a showroom floor and a sign saying "please watch your step". She testified further that up to the day of that incident there has always been a sign of that sort saying "please watch your steps".
In cross-examination Mrs. McKoy states that at the top of the staircase there is a landing which is not separate but a part of the floor of the upperstore. She explained that the landing she refers to in her evidence is the area right at the top of the stairs where there is no furniture display; that area is not physically separated from the showroom floor - there is no separate landing and it is on the same level.
Mrs. McKoy agreed that the structure of the area of the two steps and the steps going up has not changed from that shown in Exhibits 7 and 8; and further that the area has always been carpeted. The length of these steps down to the wall are 15' and these half-steps extend from the wall when one turns left to the wall of the bathroom upstairs.
She further states that when one comes up the stairs and turns immediately left there is a white wall. This wall continues with the same trim as the rail coming up. The rail continues on the wall but she cannot recall if the...
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