Docstoc

TRINIDAD AND TOBAGO

Document Sample
TRINIDAD AND TOBAGO Powered By Docstoc
					TRINIDAD AND TOBAGO

                       IN THE HIGH COURT OF JUSTICE

H.C.A. No. Civ. 249 of 1990

                                      Between

                                 GERALD WEBB
                                                                             Plaintiff

                                        And


                          SEEREERAM BROS. LIMITED
                                   And
                            HASMATH MOHAMMED
                                                                        Defendants

BEFORE THE HONOURABLE MR. JUSTICE STOLLMEYER

Appearances:
Mr. S. Singh for the plaintiff
Mr. A. des Vignes for the defendant

                                 J U D G M E N T:


In this action, the plaintiff’s claim against the defendants is for damages for

personal injuries arising out of an accident which took place in Grenada on 23rd

March, 1988. The plaintiff alleges that the accident was caused by the second

defendant’s negligence in operating an item of equipment known                 as a

“traxcavator”   owned by the first defendant during the course of the second

defendant’s employment with the first defendant.

A determination of liability in this matter turns upon the relatively narrow issue of

whether the measures taken by the second defendant to correct or stop the

sliding/slipping of the traxcavator constituted negligence on his part. Apart from

the issue of negligence, several other issues were raised on the pleadings and

arose from the evidence, namely: (i) whether the plaintiff was an employee of,



                                                                          Page 1 of 16
or consultant to, the first defendant; (ii) whether the second defendant was an

employee of the first defendant or of a third party called S.B. Caribbean Ltd;

(iii)   whether the defendants could successfully maintain the defences of

inevitable accident or volenti non fit injuria; (iv) whether, assuming there had

been negligence on the part of the second defendant, there had been

contributory negligence on the part of the plaintiff; (v) whether, on the evidence,

the plaintiff had succeeded in proving his special damages; and            (vi)   the

quantum of general damages. I will, however, deal with the particular issue of

negligence first.

Before examining the evidence in this regard, there are certain observations

which I think should be made as to the evidence generally and that of the plaintiff

in particular, he being the only person to give any viva voce evidence. There

was, as I have just said, only the viva voce evidence of the plaintiff and, except

for the claim for special damages, there was no supporting documentation

whatever. Nor was there any corroborating viva voce evidence, or any evidence

for or by the defendants, against which the plaintiff’s evidence might be tested

or assessed, or which might have assisted the court in deciding issues of fact.

Further, the passage of time, being almost ten years exactly since the accident

occurred, must be accepted as having dulled the recollections of the plaintiff.

Oral evidence can of course suffice for the determination of issues before the

court and this is so even if the evidence is only that of the plaintiff, unless that

evidence is displaced or not found to be sufficiently creditable. In the instant

case there was no such displacement by evidence by or for the defendants:

there was no evidence to counter that of the plaintiff. As to his credibility, he

was generally forthright and candid, subject to the limitations of his recollections,



                                                                          Page 2 of 16
and he was not seen to dissemble nor attempt to fabricate, although he was

hesitant on occasions.       In    general, therefore, his evidence was in my view

acceptable and, indeed, accepted subject, of course, to my particular findings

which I set out later on.

There are certain further observations which I must make with respect to the

plaintiff’s evidence. The first is that he is a civil engineer, holds a Ph.D. in Civil

Engineering, and has considerable experience in the construction industry. His

association with the first defendant started in 1976. With these factors in mind I

would, first, have expected a higher than usual quality of evidence from the

plaintiff, particularly with respect to the provision of supporting documentation,

and it is a matter of some regret that this was not so. Second, I would have

expected a higher than usual degree of credit worthiness of an individual of his

education, experience and position and in this regard I am satisfied that the

expectation was met. While his recollections as to events which took place ten

years ago might not have been as good as might be expected of him, he was

forthright and candid. When he could not recall something he said so and as I

have said, did not in my assessment dissemble or fabricate or in any way

attempt to do so. I now turn to the evidence and the circumstances in which the

plaintiff suffered his injuries.

The accident       took place at about 2.30 p.m. on 23rd March, 1988 at a

construction site at Bylands, Grenada.             The plaintiff was the Project

Manager/Project Engineer of the Feeder Roads Contract which the Government

of Grenada had entered into with the first defendant after a tender process.

The plaintiff had been on the construction site for perhaps two to three hours,

having flown to Grenada from Trinidad that morning, and had come to an area


                                                                           Page 3 of 16
on a roadway where a machine called a traxcavator owned by the first defendant

was being used to excavate a soft spot on the roadway. The traxcavator was

being operated by the second defendant, who was known to the plaintiff.

The soft spot was on a section of the roadway which, at that point, sloped

upwards at an angle at about 10 degrees, about 100 ft beyond the point where

this 10 degree slope left the horizontal, or flat, section of the roadway. The

traxcavator was facing up the slope and some distance further along the road,

the angle of the slope increased appreciably. The plaintiff, immediately prior to

arriving at the area of this soft spot being excavated, had been on the steeper

slope with Paras Seeram who was the Superintendent on the Project.              The

plaintiff left Seeram where they had been talking and walked down the

slope/road to the area of this excavation, but in so doing had not noticed the soft

spot.

The area actually being excavated was to the right of the centre line of the road,

extending roughly to the centre line of the road itself, and the traxcavator was

located more to the right hand side of the road than to the left. From the left

extremity of the road to the right extremity of the road i.e. when the road was

viewed as a cross section, the road was level prior to commencement of the

excavation.

The plaintiff stood on the roadway about 8 to 10 ft away from, and on the left

side of, the traxcavator watching the operation. There was no one else in the

immediate vicinity of this operation, at least so far as the plaintiff could recall.

Paras Seeram was standing at the site of another operation about 200 to 300 ft

away, where the plaintiff had left him.




                                                                         Page 4 of 16
The plaintiff gave no instructions, directions or guidance to the second defendant

as to how the excavation should be carried out, nor did the plaintiff think that he

needed to give any, or that he should tell the second defendant about any

special precautions which the second defendant should take in carrying out this

excavating operation. The operation appeared to be, said the plaintiff, a fairly

routine task and it did not strike the plaintiff that there was anything dangerous

about the operation being carried out. It was a relatively safe manoeuvre.

Material from the area being excavated was being placed in an area to the right

hand side of the road, off the surfaced portion of the road itself, and as the work

continued   a slope was created.     As a consequence of this, the traxcavator

moved from a level position when viewed from left to right, to an inclined position

of perhaps 5 degrees i.e. it assumed a tilt or lean of about 5 degrees to its left.

The plaintiff did not consider the operation to be becoming dangerous as a

consequence of this.

Indeed, the plaintiff considered that the operation was going smoothly, was being

carried out in a proper manner and gave no directions to the second defendant.

He remained standing where he was about 8 to 10 ft. to the left of the

traxcavator facing down the slope of the road.

When the second defendant had started this excavating operation, the plaintiff

did not think it necessary for the second defendant to take any special

precautions over and above those which would normally be taken. Those usual

precautions were in fact being taken and the second defendant was doing all

that he should do as regards safety, and, presumably, a safe operation. The

plaintiff did not consider at any time that the operation was becoming dangerous.




                                                                        Page 5 of 16
The operation had been almost completed when the traxcavator suddenly

started to slip, or slide, to its left down the 5 degree slope to which I have

referred, and towards the plaintiff. It moved, said the plaintiff, for “............. a

split second....... 3 to 4 ins. .......’

Interestingly perhaps, the plaintiff said in cross-examination that this sliding of

the traxcavator did not come as a surprise to him; that he “.......would not have

been surprised by a slight sliding on that terrain”.        Mr. des Vignes for the

defendant submitted that this evidence, when taken in the light of the plaintiff

standing where he was during the operation, and because the plaintiff assumed

or thought or considered it to be safe to do so, was inconsistent with the

plaintiff’s evidence-in-chief and that it should be preferred to his evidence in-

chief. Further, that his later evidence should be considered in support of the

defense of volenti i.e. that the plaintiff knew of the risk and agreed to run the risk

of injury.       I am of the view, however, that this particular evidence should be

taken in the context of the plaintiff being (as he was at the time) cross-examined

as to the second defendant having taken all the usual precautions and that no

special precautions were necessary. Taken in that context, I do not find this

later evidence to be inconsistent. In my view it is to be taken as the plaintiff

saying that there was a possibility of the traxcavator sliding on that terrain, but,

that even with this possibility, the second defendant had done and was doing all

that was reasonable and usual in carrying out the operation in question.

The slide, or sliding, occurred very quickly. The second defendant swung the

bucket located at the front of the traxcavator and which was being used to carry

out the operation, to the left and grounded it. It came to rest on the plaintiff’s

foot. In cross-examination, the plaintiff said:



                                                                           Page 6 of 16
        Q:        “The second defendant     had little or no time between
                  commencement of the slide and the time you were struck?
        A:        It happened very quickly.
        Q:        So there was little the second defendant could have done to
                  avoid hitting you?
        A:        He did what he considered to be an appropriate defensive action.
        Q:        Having done that, there was little he could have done to avoid
                  striking you?
        A:        I offered an opinion . Perhaps he didn’t have to swing the
                  bucket that much ....... he could have dropped it vertically. But I
                  am not an operator.”


Earlier in cross-examination the plaintiff had said that the second defendant had

swung the bucket “.............. swiftly to the left .........” and that “.......... there was

not much I could do .......” by way of taking evasive action.

        Q         “You could not take evasive action because of your proximity?
        A:        I did not expect that response from the operator. What he did
                  was abnormal and excessive. That is, the distance he swung
                  the bucket.”


The plaintiff says the bucket swung about 8 ft to the left. “The bucket could

have been dropped vertically ......... that is an option one would expect ......... I

have seen construction machinery operate for a considerable length of time and

I do not consider it         [what the second defendant actually did] a proper

manoeuvre “.

From the evidence it is to my mind clear that prior to the slide taking place there

was no question of the second defendant having been negligent in any way.

That is the plaintiff’s evidence. The contention is that the manoeuvre adopted

by the second defendant to correct or stop the slide constituted negligence; that

the second defendant did not exercise the requisite standard of care.




                                                                                  Page 7 of 16
In the context of the traxcavator operating as it was on an incline, or slope, of 10

degrees and also ultimately on a second slope from right to left of 5 degrees, it is

clear that the traxcavator was at the time the slide occurred on what might be

called a “double slope”      In other words, it was facing up a slope of some 10

degrees and it was tilting or leaning to its left at some 5 degrees. The slide was

sudden and apparently without any forewarning. It is accepted by the plaintiff

that grounding the bucket is and was then an acceptable method of stabilising

the traxcavator. The slide was taking place to the left and in the circumstances

it would not appear to be unreasonable for the second defendant to swing the

bucket to the left and ground it (presumably all in one motion as distinct from two

separate actions of first swinging the bucket to the left and then grounding it) so

as to seek to prevent further movement of the traxcavator to the left. Grounding

the bucket vertically would not appear to serve this purpose, or to do so as well

or as effectively as first swinging it to the left then grounding it.

I am therefore not persuaded that this manoeuvre by the second defendant

was unreasonable or that he failed to exercise an appropriate standard of care,

that   being the standard of a reasonable man.             And I have come to this

conclusion after having considered the plaintiff’s view of what should have been

done based on his years of experience in the construction industry and seeing

construction machinery in operation. I might add also that all those years of

experience are what one must conclude led the plaintiff to consider that standing

where he was standing was in fact a perfectly safe place to do so.

But if I were to be wrong in coming to this conclusion, there is the question of

whether the degree of care required of the second defendant in these particular

circumstances was of the standard to which I have just referred.          It is well



                                                                         Page 8 of 16
accepted that the standard of care required will vary with the circumstances and

that “........this means that    reasonable conduct        depends on the balance

between the degree of likelihood that harm will occur on one hand, and the cost

and practicability of measures needed to avoid it, the seriousness of the

consequences, the end to be achieved, including the importance and social utility

of the activity in question, and the exigencies of an emergency, dilemma or

sport, on the other.” See Clerk & Lindsell On Torts 15th ed. Para 10 - 32.

It is clear that the slide in question was sudden. It was sudden and unexpected,

and I find it difficult to accept without reservation that it did not come as a

surprise to the plaintiff. If it was not a surprise to him, then it is incontrovertible

that he should not have placed himself physically where he did. There was, the

plaintiff said, a possibility “........... a small risk” that the traxcavator could have

overturned as a result of the slide, and that there was a possibility of the second

defendant losing control of the traxcavator. But perhaps most important of all,

there was very little time available to take any avoiding action.

In short, there was in my view an emergency or an event in the nature of an

emergency. In such a situation the degree of care required of a defendant will

not be such that a breach of the duty of care ordinarily owed occurs simply

because the course of action decided upon turns out to have been the wrong

one.    “All that is necessary is that the decision should not have been

unreasonable, taking the exigencies of the particular situation into account..”

See Clerk & Lindsell para 10 - 40. The plaintiff’s view that the bucket could

have been dropped vertically is an opinion and was one option available to the

second defendant. I am not persuaded that in all the circumstances of this case

the action taken by the second defendant was unreasonable.



                                                                            Page 9 of 16
Having come to this conclusion, the other issues to which I referred earlier do

not fall for consideration and decision but had the necessity arisen for me to do

so then, briefly, I would have said as follows:

The status of the plaintiff

The plaintiff’s evidence was that he first went to work with the first defendant in

1976 and continued his association with the first defendant until the end of July,

1988. It does not appear that at any time during those years any income tax

was ever deducted from his salary, although he said that at the end of 1976 the

first defendant paid his taxes. Certainly, however, this did not occur at any time

thereafter. Further, no deductions were made from his salary at any time with

respect to the National Insurance Scheme, or any other deductions required to

be made by statute. Further yet, there was no evidence before the court that

the plaintiff was a member, or had the benefit, of any of what might be

considered the usual or normal benefits afforded to employees such as a

medical/health plan, pension plan or group life insurance plan. To the contrary,

the plaintiff received his salary gross and during the entire period of his

association with the first defendant was free to accept consulting work from third

parties which in fact he did and for which he was in fact paid, albeit that for some

time prior to March 1988 the demands made of him by the first defendant for his

services was such that he was not in a position to do any consulting for third

parties.

The plaintiff has not persuaded me, on the evidence before the court, that he

was in fact an employee, although I consider this to matter not one whit in so

far as the question of liability is concerned, because whether the plaintiff was a

consultant or employee makes no difference. In my view there was very clearly a


                                                                        Page 10 of 16
duty owed to the plaintiff by the second defendant.      On the evidence before

me, I would have said as to this particular issue that the plaintiff has failed to

satisfy me that he was in fact an employee and must be therefore be classified

or categorised as a consultant.

The status of the second defendant

As to the second defendant, and whether he was in fact an employee of the

first defendant, a great deal has been made of the existence, or supposed

existence of S.B. Caribbean Ltd. In the absence of any evidence whatever to

this effect, save the plaintiff conceding that the second defendant may have

received a part of a salary from a company by that name, I have only the

unshaken evidence of the plaintiff that the second defendant, whom he knew,

was in fact employed by the first defendant and was sent or brought to Grenada

for the purpose of working on this project.        Consequently, I would have

concluded that the second defendant was an employee of the first defendant..

The defence of inevitable accident

As Mr. des Vignes rightly and properly conceded, if there was a finding of

negligence prima facie on the part of the second defendant then this defence will

not be available to the defendants.

The defence of volenti non fit injuria

The basis of this defence is that the plaintiff must have agreed to the breach of

the duty of care and that he consented to waive his right of action against the

defendant in respect of that breach. If the plaintiff does not see a danger then

he cannot consent to the injury.




                                                                      Page 11 of 16
The plaintiff clearly saw no danger in the operation which was being carried out.

He could not, for why else would he stand a mere 8 -10 ft away from the

traxcavator, to his left and down the slope.

Accordingly, I would have said that this defence must fail.

Contributory negligence

I find it very difficult to accept that a man of the plaintiff’s qualification and

experience should, even if there was no apparent risk or danger, stand within

obvious range of the bucket of a traxcavator.       From the evidence it      would

appear to me that if the second defendant had swung the bucket 8 ft to the left

without grounding it then, if he would not have hit the plaintiff in the head, then

the bucket would have been in line with the plaintiff. In other words the plaintiff

was within the range of the area of a swinging bucket.

It was not in my view a safe place for the plaintiff to stand and if there were to

have been a finding of negligence on the part of the second defendant then I

would have had little hesitation in saying that to some extent the plaintiff brought

the injuries upon himself and apportion liability. The evidence before the court

makes it extremely difficult to decide upon any precise apportionment, but

bearing in mind the observations I have made as to the physical location of the

plaintiff I would have said that his contribution could not be regarded as minimal.

Indeed, it would have to be substantial or fairly substantial and I would have

apportioned liability as to sixty per cent to the second defendant and forty per

cent to the plaintiff

Special Damages




                                                                        Page 12 of 16
I accept Mr. des Vignes’ submission that it is for the plaintiff to prove that the

medical expenses were both necessary and reasonable.             On the evidence

before me I would have thought that further medical attention after the cast

removed in Winnipeg at the end of June/early July 1988             was necessary.

Whether it should have been sought in Canada or Trinidad and Tobago is not

of great materiality. The fact of the matter is that the plaintiff chose to do so in

Canada and it is well accepted that such a choice was his to make. As to the

question of whether the expenses were reasonable, and the basis upon which

the court might make an award, I think that the decision of the court of appeal in

Grant v Mootilal Moonan Ltd & Anor (1988) 43 WIR 372 to be of assistance.

There is no explanation as to how the amounts of CDN $1,950 and $48,525

came to be payable to Health Sciences Centre in Winnipeg, except for what is

written on the receipts “GW3 (c)” and “GW3 (d)”. The receipt “GW3(c)” dated

July 8, 1988 is of no assistance.     “GW3(d)” details the doctor’s fee of CDN

$1,700 and the anaesthetist’s fee of CDN $1,000, both of which I find to be

reasonable, particularly when compared to Dr. Toby’s fee of TT $7,000 for the

same surgical procedure.

The other item “Hospital Stay” is less enlightening and equates to nearly CDN

$1,100 per day.    Previously, the plaintiff had spent “about 25 days” at St. Clair

Medical Centre and I would have thought that a similar period of time in hospital

in Winnipeg would have sufficed. In the absence of any explanation as to the

reason for the length of stay and the equivalent daily rate at the Health Science

Centre, I would have allowed CDN $10,000 for this item of expenditure.

As to loss of income, I would have accepted a monthly income of TT $10,000

gross,   but not for a period of longer than three months.           The plaintiff’s



                                                                        Page 13 of 16
evidence is that he returned to work very shortly after being discharged from the

St. Clair Medical Centre and that he had gone to Winnipeg on holiday, knowing

that his association with the first defendant was coming to an end at the end of

June, 1988, or that it had already come to an end.         I would therefore have

allowed an amount of TT $30,000 for loss of earnings subject to the incidence

(and deduction therefrom) of income tax and any other statutory deductions. I

would have also allowed the expenses of CDN $491 for follow-up visits in the

day care ward; CDN $100.79 for medication; and CDN $73.53 paid to Von

Nursing Service (Victoria Order of Nurses).

General Damages

I agree with Mr. des Vignes’ submission that the awards referred to by Mr. Singh

in the cases of Bedlow v Joseph HCA 1572/70 and Chan Pong v BWIA HCA

309/66 are distinguishable on the basis of the injuries suffered. While I do not

totally discount the “straight line” method of adjustment utilised in “the Lawyer”,

I do not accept it without reservation because it can lead to older awards being

adjusted upwards to substantially higher degrees than more recent awards. I

accept however, that some recognition must be given to the changing value in

money and the need to maintain at least to some extent the element of

purchasing power.     Taking all of this into account, as well as the injuries

suffered and the plaintiff’s present physical condition, I would have awarded the

plaintiff TT $25,000 in general damages, taking into account the apportionment I

made in relation to contributory negligence..

Having arrived at my conclusions initially set out, however, the plaintiff’s claim

must in my view fail. Accordingly, the claim is dismissed and the plaintiff will pay

the defendant’s costs.


                                                                        Page 14 of 16
No evidence was led in support of the counterclaim and, consequently, it is

dismissed. The defendant will pay the plaintiff’s costs on the counterclaim.

Dated this 24th day of March, 1998.




              ...............................................
              C.V.H. Stollmeyer,
                          Judge.




                                                                      Page 15 of 16

				
DOCUMENT INFO