Cheryl Malone v AMS Financial Services Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J |
| Judgment Date | 13 May 2020 |
| Neutral Citation | VG 2020 HC 37 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV 2013/0241 |
| Date | 13 May 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim No. BVIHCV 2013/0241
Ms. Ruthilia Maximea and Ms. Nellien Bute of Maximea and Co., Counsel for the Claimant
Mr. Terrance Neale and Ms. Elizabeth Ryan of McW Todman, Counsel for the Defendant
An issue in this case is a claim for damages for injuries and loss sustained as a result of an accident which occurred in the Claimant's workplace. The background facts reveal that on 26 th August 2011, the Claimant who was employed by the Defendant as a maintenance administrator went into the filing room to retrieve a file. A ladder was kept in the filing room to assist filing clerks in accessing the filing cabinets in the room. While going to unlock one of the filing cabinets to retrieve the file, the Claimant's right foot became entangled in the ladder which was standing at the right of the filing cabinet. The Claimant lost her balance and fell against the handle of the filing cabinet hitting her left shoulder. In addition, the foot of the ladder punctured the top of her right foot. She contends that she suffered injuries and loss as a result of this incident.
In her amended statement of claim, the Claimant contends that the Defendant was at all material times in breach of its common law duty to provide a safe system of work in that they failed to provide a safe and functional working environment in the course of her duties. Although the Claimant provided full particulars of the injuries and loss suffered by her, she provided no further particulars of the negligence alleged.
The Defendant took issue with this lack of particulars and further denied that it was negligent in any way. In its amended defence, the Defendant contends that it provided a safe and functional working environment for the Claimant to carry out her duties at all times. The Defendant asserts that the filing room area was fully lit at all times so as to permit the Claimant to easily see any dangers which may occur during the course of carrying out her duties and so avoid the same. They state that a small stepladder was provided to allow employees to access those files which could not easily be reached. When not in use, the ladder could easily be folded and put away so as not to present a danger to anyone using the area. Further, the Defendant contends that the space between the filing cabinets were sufficiently wide to allow the Claimant and other employees sufficient room to manoeuvre without difficulty while carrying out their duties.
Alternatively, the Defendant contends that the Claimant was negligent and contributed to her injuries in that she failed to have sufficient regard to her own safety by failing to notice or avoid falling over the stepladder which was plainly visible in the well-lit filing room. The Claimant failed to take steps to ensure that the stepladder was stored against the wall and out of harm's way and further she failed to keep a proper look out or heed where she was going, so as to avoid falling over the ladder.
The Claimant filed no reply in the matter.
The following issues therefore arise for the determination by the Court;
-
a. Whether the Defendant breached its common law duty of care to the Claimant to provide a safe system of work?
-
b. Assuming that the Defendant breached its duty of care, did such breach result in the Claimant's injuries, loss and damage?
-
c. Whether the Claimant's acts or omissions contributed to her injuries, loss and damage?
-
d. What is the appropriate measure of damages if the Court finds that the Defendant's breach of duty caused or contributed to the Claimant's injuries?
In several English decisions the broad outlines of the employer's duties have now become well defined. Singleton L. J. in Latimer v A. E. C. Ltd. 1 summed up the position, in the following terms;
“The duty of the employer is to act reasonably towards his men; to take care, in the way that a prudent employer would, to see that his workmen are not exposed to unnecessary risks; and that obligation extends to the building in which they work, to the plant, and in some cases at least it covers the providing of a proper system of work.”
In light of this statement, an employer's duties have been generally classified as including:
-
i. The duty to provide a competent staff;
-
ii. The duty to provide a reasonably safe place of work;
-
iii. The duty to provide reasonably safe plant, machinery, and materials; and
-
iv. The duty to provide a reasonably safe system of work.
In respect of the duty to provide a reasonably safe system of work, this has been said to include “ the physical lay-out of the job; the setting of the stage, so to speak; the sequence in which the work is to be carried out; the provisions in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job, or it may have to be modified or improved to meet the circumstances which arise.” 2 An employer must therefore organize a safe system of work for his employees and must ensure as far as possible that the system is adhered to as far as possible.
What a reasonable employer would do in order to safeguard the health and bodily integrity of his employees is a question of fact. In this case, the Parties each relied on one witness as it relates to the question of liability. In her witness statement, the Claimant recounts the accident and she denies that her actions contributed to her injuries. At paragraph 15 of her statement she stated
When she started working there the Claimant states that she saw the ladder there. The ladder was a part of the filing room. It was never closed and in fact files were often stored on the ladder itself. It was provided by the Defendant and placed in the filing room in order to assist shorter persons in accessing files. She stated that she had nothing to do with the placement of the ladder and she was not aware that the Defendant took any steps to ensure that the ladder was folded or closed or stored against the wall. She reiterated that her foot got caught in the ladder because it was protruding in the passage and the passage was a narrow one. The Defendant however, was well aware that the area was a very narrow one which could not accommodate two persons passing side by side and were it not for its placement; she avers that her foot would never have become caught and she would not have been injured.
When she was cross examined, the Claimant stated that she began working with the Defendant in 2008. The accident occurred in August 2011. She agreed that the ladder would have been in the filing room for a considerable period while she was employed there and so its presence on 26 th August 2011 would not have been a surprise to her. As she was taller, she made no use of it but it was routinely used by the other employees who would also go into the filing room to retrieve files on a daily basis. However, none of the other employees had ever slipped and fallen on the ladder. She further stated that before the accident occurred, she was not aware that the ladder posed a danger but when she tripped on it, it was sticking out between the filing cabinets.
In describing the lighting in the filing room on the day of the accident, she noted that it was not dark but it was also not brightly lit. The Claimant was then shown photographs of the filing room and she was somewhat critical indicating that only some scenes depicted in the photographs were familiar to her. She agreed that the room was well lit and that she could readily see the ladder in the photographs. However, when she was reexamined, the Claimant explained that the photographs do not accurately represent or depict the room as at the date of the incident. She noted that on the date of the incident, the ladder was not in the same position as it appears in the photographs.
At a critical point in her cross examination, the Claimant made two important statements which would carry much weight. When she was asked to describe the room. She stated that it had a straight corridor that was well lit, and so she could readily see the ladder. And later she reiterated that when the four filing clerks would enter the room, they would know the situation in the room and none of them have ever fallen as a result of the ladder.
The Defendant's sole witness was Ms. Fay Roberts, the compliance manager who only took up employment with the Defendant in March 2012 some 7 months after the Claimant sustained her injuries. As a result she did not have first-hand knowledge of the circumstances surrounding the incident or the conditions of work which existed prior to her joining the Defendant. Instead, she relied on the written records which were maintained by the Defendant.
In her witness statement, Ms. Roberts described the filing room as a rectangular room approximately 19 feet 8 inches long with a walking access corridor approximately 1 foot 10 inches wide with files stacked in open shelves approximately 4 foot 7 inches on one side and a glass partition on the other side. She also stated that the floor is laid with ceramic tiles and the area very brightly lit with several fluorescent bulbs so that someone entering the filing room would have a clear view of any obstacles in their path.
According...
To continue reading
Request your trial