Lester Anderson Claimant v Penngor Ltd Defendant

• Jurisdiction: British Virgin Islands
• Judge: Joseph-Olivetti J
• Judgment Date: 18 July 2012
• Judgment citation (vLex): [2012] ECSC J0718-1
• Court: High Court (British Virgin Islands)
• Docket Number: BVIHCV 2011/102
• Date: 18 July 2012

[2012] ECSC J0718-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL SUIT)

BVIHCV 2011/102

Lester Anderson

Claimant

and

Penngor Limited

Defendant

Appearances:

Herbert McKenzie of Orion Law for the Claimant

Terrance B. Neale of Mc W.Todman & Co for the Defendant

( Negligence - employers liability - employers' duty at common law to take reasonable care for the safety of their workforce-painter falling off scaffold-whether accident due to unsafe system of work-whether employer liable for resulting injuries - quantum of damages)

Joseph-Olivetti J

1 The notable Renaissance sculptor/painter is said to have painted 12,000 sq. of frescoes on the ceiling of the Sistine Chapel in the Vatican in Rome and designed and built the scaffolding to enable him to execute his timeless masterpiece. No doubt, in so doing, the safety of himself and his assistants was paramount in his mind. Mr. Anderson is like Michelangelo in two respects only in that he was painting a ceiling and using a scaffold. Mr. Anderson in the course of his job fell off the scaffold and thus injured himself and he brought suit against his employers, Penngor Limited (Penngor) for negligence in failing to provide a safe system of work. Of course we are here because Penngor denied liability claiming in essence that Mr. Anderson was distracted by the use of his cell phone and did not watch his step.

2 The trial was a short one during the course of which we heard evidence from Mr. Anderson and for Penngor, Mr. Anthony Mason, Mr. Robin Sookraj and Mr. Andrew Gordon, its managing director testified. At trial the parties agreed to put all documents in the agreed trial bundle. At the end of the half day trial, on 26 June counsel sought and the court granted leave to exchange written closing submissions instead of oral addresses, by 3 July 2012. This was duly done by Penngor but Mr. Anderson was somewhat late, filing on 5 July.

Issues Arising

3 The issues for the Court to determine may be stated as-:

• (1) Is Penngor liable in negligence and/ or breach of contract for Mr. Anderson's injuries by failing to provide him with a safe system of work?

• (2) Was Mr. Anderson wholly or partly responsible for the accident by his failure to exercise the necessary care and skill to be expected of an experienced painter in the circumstances?

• (3) If Penngor is liable what is the appropriate measure of damages?

4 The gravamen of Penngor's defence was (1) that Mr. Anderson was an experienced painter, (2) that he was negligent or acted in disregard of his personal safety by, inter alia, walking on the end of the scaffolding thereby causing same to tilt and be off balance; (3) he failed to exercise due care and skill expected of an experienced painter in that he was constantly distracted by his cell phone as he was constantly making and answering calls.

The Law-employers duty in the workplace

5 An employer's obligation in the workplace is well established. He/she has a duty to use reasonable care to provide a safe place of work and a safe system of work, in short to take reasonable care for the safety of their workmen or women. Denning LJ in Clifford v Charles H. Challen & Son Ltd [1951] 1 KB 495 at 497 summed it up nicely in his inimitable way when speaking of the case of a workman who contracted dermatitis at work from the use of a known dangerous substance. The learned judge explained: -" The question is whether the employers fulfilled their duty to the workman. The standard which the law requires is that they should take reasonable care for the safety of their workmen. In order to discharge that duty properly an employer must make allowances for the imperfections of human nature. When he asks his men to work with dangerous substances, he must provide proper appliances to safeguard them; he must set in force a proper system by which they use the appliances and take the necessary precautions; and he must do his best to see that they adhere to it. He must remember that men doing a routine task are often heedless of their own safety and may become slack about taking precautions. He must therefore, by his foreman, do his best to keep them up to the mark and not tolerate any slackness. He cannot throw all the blame on them if he has not shown a good example himself."

Findings of Fact

6 Mr. Anderson is 30 years old. At all material times he was employed by Penngor having been so employed since May 2005. Penngor is a company which has been carrying on construction in the Territory of the Virgin Islands for about 30 years. He said he was hired as a general labourer and not a painter, a field in which he had little experience, but that at the time in question he had been asked to paint the ceiling of a house on which Penngor was engaged in building. It seemed strange as Mr. Neal suggested to Mr. Anderson in cross-examination that Penngor would allow an inexperienced painter to paint such a visible part of the house.

7 Had that evidence stood alone perhaps the point would have been decided in Penngor's favour. However, this point on which so much of the Defence rested of Mr. Anderson being an experienced painter can easily be put to rest by looking at the pleadings. In paragraph 2 of their Defence, Penngor admitted Mr. Anderson's allegations made in para 2 of his statement of claim (S/C) that he was employed as a builder's labourer on the construction site and that his duties included, inter alia, the painting of the roof and wall of the house. This therefore, was not in issue and albeit Mr. Anderson maintained his position as set out in para. 2 of the S/C despite being subjected to vigorous cross-examination and I accept his evidence also which indicates the admission in the pleadings was properly made.

8 Accordingly, I find Mr. Anderson's version more creditable. I accept that on that day he was asked to paint but that he was not an experienced painter as Penngor would have us believe. I find that Penngor was engaged at that time on more than one project, that their experienced painters were on another project and so Mr. Anderson was asked to take his time and paint the ceiling as Penngor had a deadline to meet.

9 Next, the height of the scaffold as claimed by Mr. Anderson was challenged. Mr. Anderson testified that he was working on a scaffold about 14 ft high. In cross examination he explained how he arrived at the height. He said that 2 scaffolds of 6ft each were joined together plus a platform or bulkhead made up of loose planks was placed on the scaffold. That there were two scaffolds joined was not disputed and I accept his estimate of the height of the scaffold on which he was working.

10 I now turn to consider how the accident happened. In his pleadings Mr. Anderson relied on the doctrine of res ipsa loquitur. Mr. McKenzie, learned counsel for Mr. Anderson is noted did not address this point, hardly a helpful stance. Nevertheless, for the reasons advanced by Mr. Neale learned Counsel for Penngor, I accept that this doctrine does not apply. A fall from a scaffold does not necessarily mean that it would not have happened without negligence on the part of the owner here, Penngor or that the instrument that caused the accident was under the sole control of Penngor as Mr. Anderson must have erected it himself to enable him to do his job. See Betitto Frett v John Schultheis et alCivil Appeal 2/2006 paras. 9–16 and para.7–176 Clerk and Lindsell on tort (17edn) both cited by Mr. Neal.

11 Mr. Anderson was not absolutely clear as to how he fell. However, he was certain that the platform from which he worked was made up of loose planks which were not fastened to the scaffold and that there was a space between the planks and the sides of the scaffold. This was not disputed. He explained how he was working immediately before the accident. He said in chief that as he painted he moved along with brush in one hand and the paint tin in the other and that the board on which he was standing suddenly gave way and he fell. He tried to explain more precisely in cross examination and I accept that the board did not break. Mr. Anderson was not supplied with and was not wearing a safety harness and no fall protection was in place. The only logical inference having regard to the fact that the planks were not fixed to the scaffold is that he inadvertently walked too close to the end of plank and that it shifted causing the scaffold to tilt and him to fall.

12 Did Mr. Anderson fall because of his own negligence in that he was constantly being distracted by his cell phone at the time of the accident? He claims that he was not. Penngor relied on the evidence of Mr. Robin Sookraj, a carpenter and that of Mr. Mason. Mr. Sookraj's, testimony is to the effect that he worked on the same project as Mr. Anderson and that he had observed him constantly using his cell phone which he kept strapped to his head under his shirt to conceal it, to make and receive calls whilst painting the ceiling. He said that he spoke to him about it and was told off by Mr. Anderson. His witness statement is striking from the absence of dates as to the alleged incidents of this user. Mr. Sookraj does not detail on what day he saw Mr. Anderson using the cell phone neither does he say he was doing so just before the accident. This evidence is so very vague that it cannot be treated as reliable.

13 Furthermore, in cross examination, Mr. Sookraj said that he acted as deputy foreman when the foreman was on another site and so was concerned about Mr. Anderson's use of the cell phone. Yet, there is no evidence that he brought this potentially dangerous situation to the foreman's attention. What is however of the utmost significance is that Mr. Sookraj did not see the fall and it does not appear that he assisted in any way thereafter. Therefore, his evidence that Mr. Anderson's constant use of the cell...