Norman Phillip v Errol Edmond
| Jurisdiction | St Lucia |
| Judge | Pariagsingh, J |
| Judgment Date | 01 March 2024 |
| Neutral Citation | LC 2024 HC 2 |
| Docket Number | Claim Number: SLUHCV2020/0540 |
| Court | High Court (Saint Lucia) |
the Honourable Mr. Justice Alvin Pariagsingh
Claim Number: SLUHCV2020/0540
IN THE EASTERN CARIBBEAN SUPREME COURT:
IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
Mr. Horace Fraser for the Claimant
Mrs. Maureen John – Xavier for the Defendant.
This is a claim in negligence brought by an employee against his employer. Both parties are electricians. On November 29, 2017, at about 1:15 pm, while the Claimant was working at Sandals Grande St Lucia Spa and Beach Resort owned by Jairo Management Ltd (Sandals) and using scaffolding which he alleges was under the control of the Defendant, he fell and suffered personal injuries. The Claimant suffered severe injuries that required prolonged medical treatment, including surgical intervention.
Sandals was initially named as the First Defendant in this claim. The Claimant's initial claim was that Sandals was under a duty to inspect and monitor the scaffold before allowing its use by employees or persons hired by them. It was initially pleaded that Sandals had a duty to ensure the scaffold was safe for use, and the Defendant in this claim now (originally named as the Second Defendant when the claim was filed) had a duty to ensure the equipment he was authorised by Sandals to use was safe.
In his amended claim, the Claimant has removed Sandals as the First Defendant and maintained the same allegations against the Defendant. In paragraph 10 of the amended claim, it is pleaded that on or about November 30, or December 01, 2017, shortly after the Claimant came out of the operating theatre, he was visited by an Attorney at Law. He contends that he was encouraged to sign a release and discharge document in favor of Sandals and the Defendant to receive an ex-gratia payment of $20,000.00. That document was never disclosed in these proceedings.
The Defendant denies liability for the damages suffered by the Claimant. He contends that, at no time, was the scaffolding under his control. He argues that this fact was known to the Claimant. The Defendant asserts that the scaffolding was not owned by him and was used by persons other than the parties who were doing renovation works for Sandals. The Defendant further contends that he was not responsible for the care, maintenance, or upkeep of the scaffold.
His defence is that, prior to each use by his employees, including the Claimant, he would inspect the scaffolding to ensure it was properly installed and braced for safe use. The Defendant contends that the scaffolding broke because the Claimant and another employee did not use it properly by standing too close to one end. Due to the excess weight, the platform slanted, causing it to break at the end where the Claimant was, resulting in them falling off the scaffold. The Defendant contends that he discharged his duty to provide a safe system of work by doing everything reasonably possible to ensure the safety of the Claimant and other employees.
The following are the relevant issues of fact to be resolved:
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1. Who was in control of the scaffold?
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2. Was safety equipment provided by the Defendant?
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3. Was the accident caused by the scaffold breaking, as the Claimant alleges?
The following are the relevant issues of law to be resolved:
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1. Was the Defendant in breach of his common law duty to ensure a safe system of work was in place, in breach of the implied term of the contract of employment between the parties?
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2. Whether the Claimant's pleadings are sufficient to put specific factual alleged failures to the Defendant in cross-examination, with no such particulars having been pleaded?
At the trial, the Claimant gave evidence and was cross-examined. His evidence was largely consistent with his pleaded case, except there appear to have been introduced new facts in the witness statement. In particular, at paragraph 8, he contends that he was never taught how to use the scaffold; at paragraph 12, the Claimant contends that had the scaffold been equipped with guard rails, the rails would have prevented him from falling.
The Claimant admitted in cross-examination that there were several employers who were doing work for Sandals on the same site at the time of the accident. He said that the ones present at the time of the accident were him and the Defendant's nephew. His evidence was that he could work independently, and when he worked with the Defendant, no NIC or Income Tax deductions were made.
The Claimant evidence is that the scaffold he fell from was a different one used throughout the project. His evidence was that the scaffold he fell from was used for the first time on the day of the accident. His evidence was that he had no idea who placed that scaffold there. He said it was there when he arrived. When asked whether he knew who owned the scaffold, he said no. When shown paragraph 5 of his witness statement in which he said the scaffold belonged to Sandals, he said he was told this by the Defendant.
The Claimant accepted that he had used the scaffold from morning to his lunch break with no issue. When it was suggested to him that there was safety harness available for use, he did not accept this suggestion and instead retorted by saying that he had asked for a harness.
The Claimant admitted that the Defendant was on site before him and on the scaffold when he arrived to work on the day of the accident. He said that he could not say that the Defendant did not check the scaffold.
In relation to inspecting the scaffold to determine where and how it broke, the Claimant admitted after the accident he did not inspect the scaffold nor did he see anyone do so in the 25 minutes he waited for an ambulance to arrive. The Claimant eventually admitted that he could not say what caused the scaffold to break.
The Claimant was evasive when asked whether Sandals accepted responsibility and said they would pay his medical bills. He immediately said ‘he never talked with Sandals’. When probed, he admitted that he has a sister Andrea who was in communication with Sandals regarding the accident and his medical bills.
In cross-examination, the Claimant contradicted his pleaded cases on the issue of signing the release and discharge. He admitted that he signed it before he had his surgery, and a signature was missing on one copy which he signed after this surgery. He admitted that Tapion Hospital where he had his surgery, required the signed document regarding the payment to cover the surgery before it was conducted. He admitted that Sandals paid for his two surgeries and took responsibility for his bills.
When asked about discontinuing his claim against Sandals, he contends that he never saw them in Court, so he did not sue them and ‘I had signed a paper already so he had to withdraw the case’. When pressed about not disclosing the release and discharge, the Claimant's answer was quite telling. When asked why he had not disclosed the document, he answered, ‘why do you all need that?’ When it was suggested to him that the release also discharged the Defendant from liability, his answer was ‘I can't remember what it says’.
Even more interesting was that the Claimant could not remember the name of the nurse his family allegedly hired to take care of him. Neither could he remember her name. He also could not say who signed the receipts for the nurse. Similarly, he could not explain why a nurse was being paid to take care of him during periods of time when he was hospitalised.
The Claimant also presented a bill in support of his clam for special damages which his Counsel quite admirably concedes ought not to be considered as it was not dated, signed or indicated what the substantial sum was for.
Overall, the Court did not find the Claimant to be a very credible witness. His testimony on central facts was unreliable. The Court did not accept him as a witness of the truth.
The Defendant's evidence was consistent with his witness statement. His evidence was that when he arrived at the site on the day of the accident, the scaffold was already mounted. In cross-examination, his evidence was that he employed responsible employees who, in the case of the Claimant, had 30 years' experience and was expected to conduct himself on the job. He denied that on the day in question he was in possession or control of the scaffold.
His evidence was that, on the day of the accident, other persons on site had...
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