IN THE HIGH COURT OF JUSTICE. Between ANDY MARCELLE. And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between ANDY MARCELLE Claimant And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Ronald Simon for the Claimant Ms Natoya Moore instructed by Ms Tracey Mae Brassington for the Defendant Date: 30 June 2016 REASONS (Edited Oral Judgment) 1. By statement of case filed on 10 May 2013 the claimant sought damages for breach of his contract of employment and negligence for personal injuries sustained on job. Page 1 of 7

2 2. He is a prison officer and part of the construction department at the Royal Gaol. He supervised inmates, secured construction tools and related duties. 3. It was not in dispute that he sustained an injury on the job. This happened when he fell into a trench which had been dug as part of a kiosk improvement project at the prison. The trench was 2 feet wide and 2 feet deep. 4. It was not in dispute that he had a left shoulder injury although the extent of it is disputed. 5. On 24 October 2012 about 10 am he was proceeding to a meeting. There was a pathway where the works were being done. In his witness statement he says the concrete pathway collapsed under him causing him to lose his footing and to fall into the trench striking his left shoulder. 6. He said the construction and excavation works had caused the pathways to be narrowed, eroded and weakened and the defendant s agents had put steel plates and board for the purpose of crossing, walking and traversing the area. There were no warning signs or caution tape to alert users. He alone gave evidence for himself. 7. The defendant called 4 witnesses. Another witness who may have given material evidence did not turn up and his witness statement was disregarded. 8. The defendant did not have any witnesses who witnessed the incident. This is important because this means that the claimant s version of how it happened stood alone. Page 2 of 7

3 9. The court had to consider whether the claimant s version had been undermined in any way. 10. The claimant did give inconsistent evidence about whether there was a steel plate to cross over. 11. The defendant s case in cross examination, and as advanced in submissions, seemed to be that he was crossing at a point, but not where the steel plates were, which was the designated crossing. 12. The claimant said he was on his way to a meeting which would have required him to cross over the trench, but he did not actually say he was in the process of crossing over the trench when the trench gave way under him. It is entirely consistent with his case that he was walking in the area when it gave way. 13. I accepted his evidence as unchallenged that he fell while walking at the side of the trench on his way to his meeting. 14. While the case put to the claimant by the defendant was that he jumped over an area he was not supposed to cross at, the defendant did not advance any evidence of this in their case. 15. As such, the claimant s evidence remained uncontroverted. I did not find the inconsistency about the existence of the metal sheet to be significant given that he had Page 3 of 7

4 asserted this in both his witness statement and statement of case and the defendant accepted that there was this metal sheet. 16. The defendant helpfully put in coloured photos of the area and the court was been able to get a good view of the scene. 17. I accepted the defendant s witnesses as being truthful when they say the photographs represented how the area was when the claimant fell. But the defendant did not give a contrary version as to how the claimant fell. 18. The law was not disputed in this case. The defendant had a duty of care. The claimant sustained an injury. The question was whether there was a breach of that duty. Was the environment unsafe and had the defendant taken reasonable steps to ensure a system which would be reasonably safe for the claimant? What follows from this was if the claimant did in any way contribute to his injury. 19. In providing the metal sheet, this can be seen as having provided reasonable steps to ensure the claimant s safety in traversing from one side to another. But that was not the end of the duty. The area around also had to be made reasonably safe for work and for passage. That included the side of the trenches so that someone walking near the side would not be in danger of falling in. 20. It was clear in this regard that no such steps were taken in this job. That would have meant, in this case, blocking off the area so that no one would be able to go so close to the edge that they could fall in or to prevent persons from jumping over the trench such as by an appropriate barrier. In this respect there was a breach of duty. Page 4 of 7

5 21. But that is not the end of the matter. The claimant was working on the construction job. In fact he would supervise it from time to time. 22. He ought to have known of certain of the risks and he therefore should have taken reasonable precautions to avoid the edges and to keep a safe distance from the edges and walk around to where the metal sheet was if he had to cross. 23. In this respect the claimant carelessly did not look after his own safety: From v Butcher [1976] 286 at 291 per Lord Denning. 24. As Lord Denning said in Clifford v Charles [1951] 1KB 495: The employers must take care of the men, but the men must also take care of themselves. 25. I found that the claimant contributed to his injury. In my view, given that he was aware of the site, and indeed supervised it, and he chose to walk close to the edge, he was as blameworthy as the defendant and I therefore apportion liability as 50/ Next came the issue of damages. The claimant s evidence was somewhat lacking on this aspect including in his presentation of medical evidence. Both liability and quantum were being tried together as the court had made no decision to split the trial and therefore the onus was on the claimant to prove his damages. 27. I accepted that the claimant had a dislocated shoulder. I was prepared to attach some Page 5 of 7 weight to the hospital medical report of Dr Aina Jones dated 30/12/12 which established

6 this. He was discharged the same day he was treated on 24/10/12 and followed up in the clinic. This is a public institution with no special interest. The doctor noted he complained of pain up to December. 28. I was not prepared to attach much weight to the other reports because of their date and because they did not show any proper nexus to the injury. 29. What was left was the claimant s evidence in his witness statement. He said he was unable to work for 260 days; he returned to work and was assigned light duties; he feels weakness in his shoulder. He said he is unable to lift weights. Before, he engaged in exercising, doing chores and social activities. These he said were affected. In cross examination, however, he noted he returned to full duties. He has not provided evidence of any resulting disability or which shows he will be unable to continue to work and advance in his career. I did not agree therefore that his future pecuniary prospects have been affected. 30. As stated before, the evidence of the claimant in pursuit of his damages claim was deficient in several respects. 31. He would have had some pain and suffering; the injury itself is noted; and there would obviously have been some loss of amenities for a significant period of time. 32. Having considered the authorities advanced on both sides, I agreed with the defendant s submissions that the award should be on the lower end. Page 6 of 7

7 33. In my view, given all of these factors, an appropriate award was the sum of $50, The defendant is liable for 50% of this as general damages. Nothing was advanced to establish any claim for special damages. 34. I therefore gave judgment for the claimant against the defendant for 50 % of his claim. 35. The order was that the defendant must pay the claimant the sum of $25, as general damages. The defendant must pay the claimant prescribed costs in the sum of $7, Interest is to run at 6% per annum from the date of the filing of the claim form on 10 May 2013 to the date of judgment. 36. I would be remiss if I ended without commending the attorneys on their written submissions, in particular Ms Moore, whose submissions were comprehensive as they were clear and relevant. There is a stay of execution of 42 days. Ronnie Boodoosingh Judge Page 7 of 7