IN THE HIGH COURT OF JUSTICE BETWEEN AND ERROL BOODRAM TRADING AS PRICE RIGHT FURNITURE FACTORY

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV DEVANAND NARINE BETWEEN Claimant AND ERROL BOODRAM TRADING AS PRICE RIGHT FURNITURE FACTORY Defendant BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER Appearances Mr. Rennie Gosine for the Claimant. Mr. Wesley Ramjattan for the Defendant. REASONS Introduction 1. On the 20 th April, 2010, I delivered a ruling in favour of the claimant and awarded him both general and special damages. The reasons for so doing are set and below. 2. In this action the Court was required to resolved issues of fact and to consider whether on a balance of probabilities the defendant had breached the common law duty of care which he carried as an employer. Page 1 of 9

2 3. On the 7 th June, 2006, the Claimant s fingers were caught in the blade of a table top saw and were so severely damaged that it became necessary for him to undergo emergency surgery and to have his left thumb, index finger, middle finger and ring fingers completely amputated. 4. This incident occurred while the Claimant was occupied with the performance of his duties as an employee of the Defendant, Errol Boodram, who traded as Price Right Furniture Factory and who was engaged in the manufacture of furniture. 5. Just prior to this accident, the Claimant was in the process of cutting a length of wood on a table saw. He alleged without contradiction that he was a left hander and that he was pushing the wood with his left hand while using his right hand to hold the guide. 6. It was the Claimant s allegation that the blade of the saw was dull and that he had pointed this out to the Defendant, who told him to continue using the dull blade which would be changed the next day. 7. The Claimant alleged that he was required to use greater force because the blade was dull. He contended further that he lost control of the wood because of his need to exert greater force on the dull blade. The sudden movement of the wood caused his fingers to be caught in the blade. 8. The Defendant has denied the Claimant s account of the accident. In his statement of defence, the Defendant denied that the blade was dull and argued that if the blade was dull, it would not have cut the Claimant s fingers with such precision. 9. In his statement of defence, the Defendant also denied that the Claimant ever informed him that the blade was dull. Page 2 of 9

3 10. The allegations of the Defendant were unsupported by any evidence. There was no evidence to contradict the Claimant s allegation that he complained to the Defendant that the blade was dull and that his complaint was met by an order to use it for that day. 11. In his statement of defence, the Defendant alleged that the accident was caused because the Claimant was holding his cell phone to his ear with his right hand while using his left hand to guide the lengths of wood which was being cut. 12. In support of this allegation, the Defendant relied on the evidence of another employee Govinda Tulsi Rambaran. In his witness statement, Mr. Rambaran gave the following evidence: I was working with the rip saw when the Claimant came and took over from me. He was on his cell phone at the time and I cautioned him to finish his phone call before starting work on the machine but he ignored me. 13. Mr. Rambaran continued at paragraph 4 of his witness statement: while working on my machine I saw the Claimant still talking on the phone and using the rip saw with one hand. 14. Both witnesses were cross-examined. Learned counsel, Mr. Ramjattan, put it to the Claimant that he was speaking on the cell phone while working. The Claimant, under crossexamination, denied the suggestion, saying that he had no cell phone at the time. 15. Mr. Rambaran was the only witness who testified on behalf of the Defendant. Under crossexamination, Mr. Rambaran told the Court that he was employed with the Defendant at the time of the trial and had been so employed for three years. It is a matter of the Court s record Page 3 of 9

4 that the trial took place on the 27 th April, This would place Mr. Rambaran s date of employment at April, 2007, almost one year after the date of the Claimant s injury. 16. Learned Counsel, Mr. Gosine, also asked Mr. Rambaran to state when he started working. Mr. Rambaran responded with certainty August 2006 When asked when the incident occurred, Mr. Rambaran replied that he did not recall the date. Learned Counsel, Mr. Gosine then asked Mr. Rambaran to confirm that he started working for the Defendant in August, Mr. Rambaran replied in the affirmative. Learned Counsel then put to the witness that the incident occurred on the 7 th June, Mr. Rambaran s reply was that he probably made a mistake as to the year. 17. In my view, Mr. Rambaran was an unreliable and untruthful witness. He asserted with confidence that his working relationship with the Defendant began in August 2006, three and one-half years before the trial. If either part of this answer is accepted as true, the witness has placed the commencement of his employment with the Defendant squarely in the latter half of 2006, which is consistent with his testimony that he began working in August The incident in question occurred in June If Mr. Rambaran s evidence is accepted, it follows inexorably that on the relevant date he was not in the Defendant s employment. 18. When confronted with the date of the accident, the witness merely suggested that he was probably mistaken thus providing no evidence to alter his earlier testimony. 19. In my view, Mr. Rambaran was being untruthful. He was not a co-worker of the Claimant at the time of the accident and his testimony about the cell phone is pure fabrication. 20. The Defendant himself was present in Court but chose to give no evidence in defence of the allegation that he did not provide a safe system of work. Page 4 of 9

5 21. Accordingly, it is my view and I hold that Claimant has succeeded in establishing on a balance of probabilities that he was forced to work a dull blade for the purpose of cutting wood and that the use of the dull blade resulted in his injury and eventually in the amputation of his fingers. 22. It was recognised by their Lordships in White and others Versus Chief Constable of South Yorkshire (1999) 2 A.C that the basic obligation of the employer arises from the relationship between him and his employee, under which the employer is under a duty to take reasonable care for the safety of his employee at work. 23. It is a well-established principle that one aspect of the employer s common law duty is to provide a safe system of work Learned Counsel, Mr. Ramjattan referred to two local decisions in support of his contention that the claimant failed to take steps to protect himself. The decisions were: HCA# S-1388 of 1995 Deonarine Rampersad v Rentokil where the Honourable Justice Kokoram dismissed the claim on the ground that the Claimant had failed to exercise any sufficient care for his own safety. Cv Kingston Khan v Kiss Baking Company, where the Honourable Justice Stollmeyer, as he then was dismissed the claim on the ground that the claimant failed to demonstrate that he took reasonable care for his own safety. 25. In the decision of Justice Z. Hosein, as he then was in Keith Morris v Point Lisas Steel Products Ltd., 3 the learned Judge considered the claims of a machine operator who suffered injury to his right eye by a piece of steel. The question which arose in that case was whether 1 White and others v Chief Constable of South Yorkshire [(1999)] 2 A.C Wilson and Clyde Coal Company Ltd v English [1938] AC 67 at H.C.A. #S-1336 of 1983 Keith Morris v Point Lisas Steel Products. Page 5 of 9

6 the employer had an obligation to insist that goggles be worn. At page 12 of his decision Justice Hosein had this to say: since the risk was obvious to the defendant and not insidious then this defendant ought to have goggles available and also give firm instructions that they be worn. Reasoning and Decision 26. The cases 4 cited by learned Counsel Mr. Ramjattan would have been relevant had the Court accepted the testimony of Mr. Ramberran, witness for the defendant. Surely, if the claimant operated dangerous machinery while holding his cell phone, this would have constituted negligence on his part. 27. The Court has however already rejected the evidence of Mr. Ramberran. Having accepted the evidence of the claimant, the court found a balance of probabilities that the claimant s injury was the direct result of the use of a dull blade and the clear direction of the defendant to continue using the blade not withstanding its bluntness. 28. In my view, it is inescapable that these facts point to a failure on the part of the employer to provide safe system of work. Because the risk of severe injury was obvious, the defendant ought to have taken the further step to insist that only sharp blades be used I considered the issue of the quantum of damages due to the claimant. Attorney-of-Law for both the claimant and the defendant made their submissions on the basis of the principles laid down by Wooding CJ in Cornillac v St. Louis 7 W.I.R H.C.A. #S-1388 of 1995 Deonarine Rampersad v Rentokil. Cv of 0560 Kingston Khan v Kiss Baking Co. 5 See Morris v Point Lisas Steel Products cited supra. Page 6 of 9

7 The well established guidelines are set below: Nature and extent of the injury sustained Pain and suffering endured The rebut and gravity of the resulting disability Loss of amenities Loss of planning prospects The nature and extent of the claimant s injuries were severe. The claimant suffered the sudden, traumatic loss of four fingers. According to his evidence, his pain was excruciating. No evidence was produced to support a claim for loss of amenities, however The court estimated that the claimant s loss of pecuniary prospects must be substantial firstly because he was an uneducated manual worker and secondly because the injury in question resulted in the complete loss of the use of his dominant hand. 30. Learned attorney-at-law for the Claimant identified two local decisions which provided a guide to the Court s estimate of an appropriate quantum of general damages. In H.C.A.# 1293 of 1998 Lovell v Tyre Manufacturing Company, Master Paray-Durity awarded the claimant damages in the sum ninety thousand dollars ($90,000.00) in respect of the loss of the index, middle and ring fingers. Bearing in mind reservations expressed by their Lordships in Peter Seepersad v Theophilus Persad 6 as to the usefulness of resort to awards of damages in cases decided a number of years ago... and mindful that in this claim the claimant, lost four fingers, including his 6 Peter Seepersad v Theophilus Persad & Capital Insurance Co [2004]UKPC 19 at paragraph 14. Page 7 of 9

8 thumb, it was my view that one hundred and fifteen thousand dollars ($115,000.00) was an appropriate sum for general damages. 31. From this sum should be deducted the sum of Five Thousand Dollars ($5,000.00), the amount paid as workmen s compensation. 32. The Claimant has, by his evidence, established his claim for special damages in respect of medical expenses, transportation costs, domestic assistance and loss of earnings from the date of the injury to the date of trial. Accordingly, the Claimant is entitled to special damages as claimed in the sum of one hundred and twenty four thousand, nine hundred and fifty dollars ($124, ). 33. In respect of loss of earning power in the future, it is my view that the evidence suggests that the Claimant s prospects of future employment are very dim. He is uneducated and is not equipped to do anything but manual work. His dominant hand has however been rendered completely useless. Accordingly, guided by the learning in Cole v Bujou and Another as well as Keith Morris v Point Lisas Steel Products Ltd., it is my view and I hold that the sum of fifty thousand ($50,000.00) is appropriate. Awards The Defendant pay to the Claimant damages as follows: 1. General damages: One Hundred and Fifteen Thousand Dollars ($115,000.00) with interest at the rate of 12% from the date of the action. Page 8 of 9

9 2. Special damages: One Hundred and Twenty Four Thousand Dollars ($124,970.00) with interest at the rate of 12% from the date of the action. 3. Compensation for loss of future earning power: $50, Dated this 14 th day of October, Mira Dean-Armorer Judge 7 7 Ms. Camille Warner - Judicial Research Assistant Mrs. Irma Rampersad Judicial Secretary Page 9 of 9