Harris v Hodge

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph, J.
• Judgment Date: 02 May 1986
• Neutral Citation: VG 1986 HC 3
• Docket Number: High Court No. 19 of 1981
• Date: 02 May 1986

Court of Appeal

Joseph, J.

High Court No. 19 of 1981

Harris

and

Hodge

Appearances:

Mr. E. Hewlett for the plaintiff.

Mr. J.S. Archibald Q.C and Mrs J. Creque for defendant.

Industrial law - Workmen's compensation — Crushed index finger — Whether acceptance of compensation under the Workmen's Compensation Ordinance, 1962, s. 27(1) precluded the plaintiff from seeking further redress at common law –

Held: If a workman accepts compensation under the Ordinance the amount must be deducted from any damages awarded, but normally a workman must make a choice between the procedures.

Joseph, J.

1 This action was commenced by a writ (amended on the trial date) claiming damages for personal injury and damage in respect of an injury sustained in an accident arising out of and in the course of employment.

2 The Statement of Claim alleges that:

• (1) The plaintiff was employed by the defendant as a construction workman on a building site at Cane Garden Bay.

• (2) It was part of the plaintiff=s duties that at the end of the day he should clean out the cement mixer used on the building site.

• (3) It was a condition of the contract of employment between the plaintiff and the defendant that the defendant would take all reasonable precautions for the plaintiff's safety while he was engaged in his work; not to expose the plaintiff to any risk or damage or injury of which he knew or ought to have known to provide and maintain adequate and suitable appliances to enable the plaintiff to carry out his work in safety; to take all reasonable methods and ensure that the cement mixer used for his construction work were safe and to provide and maintain a proper system of work.

• (4) On 3rd day of July 1979, the plaintiff in the course of his said employment was cleaning out one of the defendant's mixers when the piece of cloth which he was using caught between the cog wheel that turns the barrel and pulled in his hand thereby crushing completely the index finger of his right hand.

• (5) Consequent on injury received the plaintiff was hospitalised for twenty-one days, underwent an operation on his right hand and was an out-patient of the hospital for many days.

3 The plaintiff claims that the accident was caused by the negligence or breach of the contract of employment or both negligence and breach of contract. The plaintiff –

• (a) alleges that he was paid the sum of $904.00 in partial satisfaction for the injuries sustained, the balance to be paid when a full and final figure was settled upon;

• (b) claims three weeks salary, that is, from the 25th November 1979 to the 15th December, 1979 at $50.00 per week;

• (c) claims damages and in the alternative compensation under the Workmen's CompensationOrdinance 1962 (No. 1 of 1962) (hereafter referred to as the Ordinance).

4 The defendant in an amended defence states that the plaintiff was employed under an oral contract of employment as a labourer, but denies that it was part of the plaintiff=s duties or a condition of his said contract of employment that at the end of the day or at any time, he should clean out the cement mixer used on the building site.

5 The defendant states that the plaintiff prior to 3rd July 1979 during the course of the plaintiff's employment, never handled, cleaned or operated a cement mixer on the building site neither was he instructed the defendant, his servants, agents or employees to do so.

6 The defendant denies that he or his servants, agents or employees were guilty of any negligence or breach of contract of employment and alleges that any injuries sustained by the plaintiff were caused wholly or in part by his own negligence.

7 The defendant further alleges that the plaintiff at his option, claimed compensation for the injuries sustained under the Ordinance; that compensation in the sum of $904.00 was agreed between the Labour Commissioner the plaintiff and the defendant and the amount was paid in two installments to the Labour Commissioner who paid the instalments to the plaintiff.

8 The defendant states that, in point of law, he is not liable to pay compensation under the Ordinance in addition to damages.

9 Before commencement of the hearing, learned counsel for the defendant conceded that compensation under the Ordinance was payable and submitted that judgment should be entered up under the Ordinance — to be assessed.

10 Learned counsel for the plaintiff argued that the court ought not to deal with damages and compensation as the Ordinance provides that compensation and damages are not to be given.

11 The court deferred a ruling on this issue. In view of the findings I shall make later in this judgment I consider it necessary to rule on this submission.

12 The facts I have found are that the defendant visited St. Kitts and recruited the plaintiff to construction work for him in Tortola. The plaintiff came to Tortola on 7th February, 1979 and after immigration formalities commenced work for the defendant. He was employed as a handyman, that is, he mixed mortar, transported blocks to the mason, at the end of the day he collected the tools of the workman and cleaned the cement mixer. I believe the plaintiff=s evidence that the defendant had told him that cleaning the mixer was one of the tasks he was to perform and that the defendant showed him how to clean the mixer while in motion with the use of a T-Shirt. I pause here to observe that the defendant did not give evidence at the trial. To continue, the defendant paid wages of $50.00 a week to the plaintiff and provided accommodation.

13 On the 3rd July, 1979 at the end of the day=s work following the instructions of the defendant the plaintiff was cleaning the cement mixer while it was in motion, with a “old T-shirt” when the shirt was caught between the cog wheels of the mixer and his right hand was caught under the cog wheel. The plaintiff's witness considered that the cleaning of the mixer was a dangerous task.

14 It seems to me that the method of cleaning the mixer as demonstrated by the defendant to the plaintiff was unsafe and I find that the defendant was negligent in that he failed to demonstrate to the plaintiff a safe method of cleaning the mixer.

15 The plaintiff did not work after the 3rd July 1979. He stated that the defendant dismissed him and the fact that in November 1979 the defendant ceased to pay him supports what he stated. The plaintiff left Tortola on 18th December, 1979.

16 The plaintiff was examined by Dr. Orlando Smith who testified that there was a ragged laceration along entire length of the palm surface of the thumb; a comminuted compound fracture of the 1st phalanx of the thumb; laceration 3” in length on the dorsal aspects of the first web space. The index finger was mangled and connected to the rest of the hand only by a small...