IN THE HIGH COURT OF JUSTICE. Between

Transcription

1 THE REPUBLIC OF TRINIDAD & TOBAGO CV IN THE HIGH COURT OF JUSTICE Between Ian Gonzales (Claimant) v Scaffolding Manufacturers (Trinidad) Limited First Defendant And Nu-Iron Unlimited Second Defendant/Ancillary Claimant And Lexicon Inc. First Third Party Atco Caribbean Limited Second Third Party Before the Honourable Mr. Justice A. des Vignes Appearances: Mrs. Lynette Maharaj S.C and Mr. Kingsley Walesby instructed by Ms. Shaheera Allahar for the Claimant Mr. Richard Jagai instructed by Ms. Deedra Maharaj for the First Defendant JUDGMENT Page 1 of 60

2 Claimant s pleaded Claim 1. The Claimant s claim is for damages for personal injuries, loss and damage that he sustained on 8 th October 2005 during the course of his employment with the First Defendant, at the premises of the Second Defendant. He alleges that the injuries and damages he sustained were caused by the negligence and/or breach of statutory duty of the First and/or Second Defendants, their servants or agents. 2. On 3 rd June 2013, the Claimant filed a Notice of Discontinuance against the Second Defendant and at the trial, the Second Defendant sought and obtained leave of the Court to withdraw the ancillary claims against the Ancillary Defendants. Accordingly, for all intents and purposes, the issues of liability and quantum to be determined in this action arise as between the Claimant and the First Defendant only. 3. The Claimant, who was born on 10 th February 1985, was employed by the First Defendant as a Rigger. By his Re-Re-Amended Statement of Case filed on 13 th May 2011, he alleges that the First Defendant was engaged in the business of building scaffolding and on 8 th October 2005 was so engaged at the Second Defendant s premises at Point Lisas Industrial Estate, Couva. 4. On 8 th October 2005, the Claimant reported for work at the Second Defendant s premises for the purpose of building scaffolding around a pipe 50 feet above the ground. 5. On that day, the Claimant put on his harness and entered the lift which elevated him 50 feet above the ground. He exited the lift and walked along the pipe of scaffolding to attach his harness to the lifeline which was approximately 7 feet away from the lift. After taking four steps towards the lifeline, the Claimant's foot slipped and he fell to the ground. As a result, the Claimant suffered injuries, loss and damage. 6. The Claimant alleges that the accident and the injuries, loss and damage were occasioned by the negligence and/or breach of statutory duty of the First Defendant, its servants and/or agents. First Defendant s pleaded Defence 7. The First Defendant admits that the Claimant was employed by it as a Rigger. It alleges that at the material time it had been hired by Atco Caribbean Ltd, to erect access scaffolding for a Page 2 of 60

3 pipe around a reformer at the Nu-Iron Plant in the Point Lisas Industrial Estate. This scaffolding was intended to be used by third parties to gain access to the pipe, in order to weld the same. 8. The Claimant s duty on the day of the accident was to hoist scaffolding material approximately 50 feet off the ground to the job site, which was located at the edge of the reformer. The Claimant was responsible for passing scaffolding to the other Riggers who were responsible for assembling the scaffolding around the pipe. 9. The First Defendant denies the allegation that there was a lift which was used by the Claimant to get to the job site. The First Defendant contends that the established procedure for its employees to reach the job site was as follows: a) The First Defendant s employees would hold a tool box meeting on arrival at the site; b) Thereafter, the site would be cordoned off to prevent other workers from passing beneath and all workers would have their safety equipment including a safety harness with two lanyards attached; c) The employees would get to the job site by ascending stairs which were already located on either side of the reformer and which took the employees to the height of the job site; d) The employees would then exit the stairs onto a catwalk which was about2 feet wide and which had hand railings on both sides as well as a lifeline overhead. The employees were supposed to safely latch their lanyards onto this lifeline at all times; e) The employees would then walk along the catwalk and latch their lanyards onto a beam strap which was secured with a steel beam overhead. f) The employees would then step over the hand railing onto another steel beam which ran underfoot and perpendicularly to the catwalk and which was about 2 or 3 feet wide. g) The employees would then walk along the beam underfoot to the job site at the edge of the reformer while still being attached to the steel beam overhead. h) Employees could hook one lanyard at a time onto another fixed point on the reformer so that at all times the workers were attached to a fixed point. 10. The First Defendant alleges that this procedure ensured that the employees would be able to move freely and safely to the job site without falling. 11. However, the First Defendant says the Claimant did not follow the procedure and tried to reach the job site via an alternative and unsafe method, which was not part of the First Page 3 of 60

4 Defendant's system of work. It denies that the Claimant had to walk upon a pipe as alleged by the Claimant. 12. It contends that the type of footwear which the Claimant was wearing on the day of the accident was suitable for the performance of his duties and that specialised footwear was not necessary. 13. The First Defendant also contends that there was a tool box meeting on the day of the accident, at which the employees, including the Claimant, were reminded of the necessity of maintaining 100% tie-off at all times and of using the stairs to get to the job site. Further, the First Defendant denies that the Claimant was not trained but asserts that he was adequately trained prior to the accident. 14. The First Defendant also contends that neither the Second Defendant nor the First Ancillary Defendant had put safety procedures in place for the First Defendant. They left the First Defendant to its own devices to formulate and implement a safe system for performing its subcontracted work, which it did, without any complaint by the Second Defendant or the Ancillary Defendants. 15. Accordingly, the First Defendant denies each and every allegation of breach of statutory duty and/or negligence made by the Claimant against it. 16. In the alternative, the First Defendant says that the Claimant contributed to his injury by his own negligence and that the Claimant willingly accepted the risk of such damage. They further allege that the injuries and loss claimed by the Claimant are exaggerated and/or excessive and that he failed to mitigate his losses. 17. The First Defendant further alleges that the Claimant returned to work with the First Defendant as a laborer as well as a driver from August 2006 to 11 th February 2007, during which time he had no difficulty performing his tasks. The Claimant then left the First Defendant s employ of his own volition. 18. The First Defendant also denies the prognosis contained in the Claimant s medical report and contends that the Claimant received workmen s compensation in the sum of $13,403.28, which sum ought to be deducted from any award granted to the Claimant for loss of earnings. Page 4 of 60

5 Liability The Evidence 19. In support of the allegations of breach of statutory duty and/or negligence, the Claimant relied on his evidence as contained in his witness statement filed on 4 th June In support of its Defence on liability, the First Defendant relied on the evidence of Phillip Archie, Desmond Durham and Tarran Singh. Although a witness statement was filed in the name of Shane Rambharath, he was not called to give evidence at the trial. 21. By Rule 29.9 of the Civil Proceedings Rules 1998 (as amended), if a party has served a witness statement and he wishes to rely on the evidence of the witness who made the statement, he must call the witness to give evidence unless the court orders otherwise. Since Mr. Rambharath failed to attend at the trial to put into evidence his witness statement and to be cross-examined thereon and the First Defendant did not advance any good reason for his non-attendance, I propose to exclude his witness statement from my consideration of the issues of liability. The Issues 22. The following issues arise for determination in this matter: a) Did the First Defendant fail to provide a safe system of work for the Claimant? b) Were the Claimant's injuries caused by or contributed to by his negligence? The Law 23. The Claimant's claim against the First Defendant is based on alleged breaches of sections 20 and 21 of the Factories Ordinance Chapter 13 No.2 as well as on common law negligence. 24. Section 20(1) of the Factories Ordinance provides as follows: "All floors, steps, stairs, passages and gangways and all hand-rails and guard-rails shall be of sound construction and properly maintained." 25. Section 21 provides as follows: "(1) There shall, so far as is reasonably practicable, provided and maintained safe means of access to every place at which any person has at any time to work' Page 5 of 60

6 (2) Where any person is to work at a place from which he will be liable to fall a distance of more than ten feet, means shall be provided, so far as is necessary and practicable, by fencing or otherwise for ensuring his safety." 26. At common law, the term "system of work" is used to describe: a) the organisation of the work; b) the way in which it is intended the work shall be carried out; c) the giving of adequate instructions (especially to inexperienced workers); d) the sequence of events; e) the taking of precautions for the safety of the workers and at what stages; f) the number of such persons required to do the job; g) the part to be taken by each of the various persons employed; and h) the moment at which they shall perform their respective tasks The duty to prescribe a safe system of work is neither one to provide perfection nor an absolute duty. It is a duty "to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation. In deciding what is reasonable, long established practice in the trade, although not necessarily conclusive, is generally regarded as strong evidence in support of reasonableness." Further, the fact of prescribing a safe system of work does not sufficiently discharge an employer's duty, unless it is also accompanied by steps reasonably to ensure it is followed or operated 3, such as, for example, inspection and supervision. An employer does not discharge his duty by establishing a system and turning a blind eye to its breach Contributory negligence means that there has been some act or omission on the Claimant's part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence. For these purpose, "negligence" is to be taken in the sense of careless conduct rather than its technical meaning involving breach of duty. It means the failure by a person to use reasonable care for the safety of either himself or his property so that he becomes blameworthy in part as an author of his own wrong. 5 When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the 1 Charleworth & Percy on Negligence (10th Ed.) paragraph page General Cleaning Contractors Ltd v. Christmas [1953] AC 180 at 195 per Lord Tucker 3 McDermid v. Nash Dredging & Reclamation Co Ltd [1987] AC 906 at McGregor v. A.A.H. Pharmaceuticals 1996 S.L.T Charleworth & Percy on Negligence (10th p.170 Page 6 of 60

7 injured party to the party sued. All that is necessary to establish such a defence is to prove that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. The burden of proving contributory negligence lies on the Defendant; it is not for the Claimant to disprove it. If the Defendant's negligence or breach of duty is established as causing the damage, the onus is imposed on the Defendant to establish that the Claimant's contributory negligence was a substantial or material co-operating cause. The Defendant must first prove that the Claimant failed to take ordinary care of himself or such care as a reasonable man would take for his own safety and secondly, that his failure to take care was a contributory cause of the accident. Analysis of Issues Safe system of work 30. In considering this issue, I am of the view that I need to consider and determine the following issues of fact: I. (a) Did the First Defendant hold a safety orientation meeting before the commencement of scaffolding construction? (b) Did the First Defendant, through its foreman, instruct its employees, and in particular, the Claimant to follow the procedure of maintaining 100% tie off at all times? II. Was there a lift in operation at the site which was used by the Claimant or did he use the stairs or some alternative unsafe method to get to the location where he was required to perform his duties? III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and a lifeline overhead onto which the employees of the First Defendant could latch on their lanyards? IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the Claimant to perform his duties at a level of 50 feet or at a lower level? V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from the place where the Claimant was required to perform his duties? Page 7 of 60

8 VI. Did Mr. Rambharath require the Claimant to walk across a hazardous and/or slippery pipe for several feet without his harness being attached in order to perform his duties? VII. Did the First Defendant provide to the Claimant adequate health and safety training and/or orientation in accordance with accepted industrial standards before commencing work? VIII. Did the First Defendant fail to provide the Claimant with suitable protective equipment (including but not limited to non-slip footwear, footwear with special grips or non-slip covers for his shoes) to protect him from slipping? IX. Did the First Defendant fail to implement suitable/sufficient protection measures to prevent the Claimant from injuring himself from falling, including the provision of railings and/or safety nets? X. Did the First Defendant fail to carry out a suitable risks assessment? XI. Were the passageways and gangways which the Claimant was required to use of unsound construction and/or not properly maintained? XII. Was there an absence of fencing or other means to ensure the Claimant's safety? XIII. Did the First Defendant fail to provide adequate supervision? Evaluation of the evidence I. (a) Did the First Defendant hold a safety orientation meeting before the commencement of scaffolding construction? (b) Did the First Defendant, through its foreman, instruct its employees, and in particular, the Claimant to follow the procedure of maintaining 100% tie off at all times? 31. In his witness statement, the Claimant gave evidence that he did not recall attending any safety orientation from the First Defendant or the Second Defendant. He also did not recall meeting with or observing any safety officers employed by the First Defendant or Second Defendant on the site. However, under cross-examination, he admitted that there was a "tool box" meeting held by the foreman, Shane Rambharath, at which he was present. He also Page 8 of 60

9 admitted that the procedure for the performance of the job was explained to the workers and they were instructed to maintain 100% tie off. 32. Accordingly, I hold that the First Defendant held a safety orientation meeting before the commencement of scaffolding construction on 8 th October 2005 and that Mr. Rambharath instructed the First Defendant's employees, including the Claimant, to follow the procedure of maintaining 100% tie off at all times. II. Was there a lift in operation at the site which was used by the Claimant or did he use the stairs or some alternative unsafe method to get to the location where he was required to perform his duties? 33. At paragraph 4 of the Re-Re-Amended Statement of Case, the Claimant alleged that he entered a lift which took him to a height of 50 feet above the ground. However, in the Reply, (at paragraph 5.4) he alleged that he "ascended to the job site using one of the existing means to get to the job site above the ground but does not recall if there were stairs on either side of the Reformer and puts the First Defendant to strict proof thereof. The Claimant states that he was instructed by Shane to follow the other workmen going to the job site which he did." Further, (at paragraph 7 of the Reply) he stated that he reached the location where he had been assigned to work by using the same means of access used by the other workers in accordance with Shane's instructions to follow them. Then, (at paragraph 11 of the Reply), he alleged that he was assigned to work on a steel pipe located below the job site and that he was required to ascend a ladder to reach the said location. 34. In his witness statement, the Claimant stated (at paragraph 11) that before he started to work, "Shane told me to follow Damion to the jobsite...i then put on my harness with 2 lanyards attached and followed Damion to the job site. Damion continued to climb to higher level whilst I remained on a pipe at a lower level in order to assist the other workers in hoisting up the materials from the ground." 35. Under cross-examination, however, the Claimant responded that he was about feet above ground at the time he fell and "I got up there by a man-lift" and he insisted that what he was saying in court was true. 36. Mr. Durham in his evidence referred to the workers going up the stairs although he did not look up to see who was going up the stairs as he was focusing on his work. Page 9 of 60

10 37. On the other hand, Mr. Tarran Singh stated that to reach the job site the procedure was to climb up a set of stairs which were located at the side of the reformer and which would take the workers to the top. As the senior rigger on the site, he was the first person to ascend the stairs to get to the job site. He also stated that there was not a lift in operation on that day and at all times access to the scaffolding was by the stairs and the catwalk. 38. Under cross-examination, Mr. Singh stated that the Foreman gave instructions to use the stairway to get to the reformer and "We got from ground to top by using steps." However, although he was in charge of Riaz and the Claimant, he did not look back for him because "I was going straight to top and I thought he knew what he had to do." 39. Having considered the evidence on both sides, I have come to the conclusion that the Claimant is not speaking the truth when he said he used a man-lift to get up to the height from which he fell. I believe the evidence of the First Defendant's witnesses that the procedure required all the workers who were involved in the construction of the scaffolding at the edge of the reformer to use the stairs to get to the job site and that the Claimant followed the other workers, such as Tarran Singh and Damion Doolcharan, up the stairs. III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and a lifeline overhead onto which the employees of the First Defendant could latch on their lanyards? 40. In his witness statements, the Claimant did not refer to the existence of a catwalk with handrailings and an overhead lifeline. However, under cross-examination, he gave the following evidence: "I agree there was catwalk to get up to reformer which was about 2 feet wide with railings on both sides of it. They were about 3 feet high on both sides. The floor had metal grating. I can t recall a lifeline running above that catwalk. I agree workers were to attach lines to life line. Workers were supposed to walk along the catwalk and attach to a beam strap. Workers were to step over the railing and then walk onto another beam." 41. Based on this evidence of the Claimant and the evidence of Mr. Taran Singh (at paragraph 10), I am satisfied that there was a catwalk at the job site approximately 2 feet wide with railings on both sides thereof. Those railings were approximately three feet high. In addition, Page 10 of 60

11 there was a lifeline overhead onto which the workers were supposed to attach their lanyards in order to maintain 100% tie off. IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the Claimant to perform his duties at the level of 50 feet or at a lower level? 42. In the Re-Re-Amended Statement of Case, the Claimant alleged that he put on his harness and entered the lift which took him to a height of 50 feet above the ground. In the Reply, (at paragraph 5.2) the Claimant described the "job site" as being 50 feet above the ground. He then stated (at paragraph 5.4) that he ascended to the "job site" using one of the existing means to get there. He also alleged that he was instructed by Shane Rambharath to follow the other workmen going to the "job site" which he did. He then alleged that Mr. Rambharath instructed him to hoist the material up to the job site from a lower beam and he complied with his instructions to exit at a lower beam which did not have a catwalk. Upon reaching the lower level, the Claimant was required to walk approximately 7 feet across a narrow steel pipe measuring approximately inches in circumference which had no handrails or catwalk in order to reach the overhead lifeline onto which he could fasten his lanyard. 43. In his witness statement, the Claimant gave evidence that "Shane told me to follow Damion to the job site... Shane also told me that I would have to go to a lower beam in order to assist the other workers and to assist them by hoisting the material from the ground up to the job site from the lower beam." Under cross-examination, the Claimant insisted that he was instructed to work on the lower beam. 44. In its Re-Re-Amended Defence, the First Defendant pleaded that there was an established procedure to reach the job site which was approximately 50 feet off the ground and that the Claimant did not follow that procedure. According to the First Defendant, "the Claimant did not follow the procedure set out above by not ascending the said stairs all the way up to the catwalk but instead tried to reach the said job site via an alternative, unsafe method which was no part of the said system of work." Further, the First Defendant alleged that any injury, loss and damage that the Claimant may prove was solely caused by him or in the alternative was contributed to by his own negligence. Page 11 of 60

12 45. However, at the trial, the witnesses called by the First Defendant were not able to give evidence in support of the pleaded Defence. Firstly, Desmond Durham was not able to shed any light on the actual instructions given to the Claimant by the foreman. In his witness statement, he stated that "Before the job started that morning the foreman assigned each of us a specific job for the day" and, under cross examination, he stated that the foreman gave the workers other duties but he could not recall what he gave them to do. 46. In his witness statement, Mr. Tarran Singh stated that at the tool box meeting the foreman explained to the workers the procedure to get to the work area and how the job was to be performed and he warned the workers about maintaining a 100% tie off at all times once they reached the top of the stairs. He also said "at no point while I was climbing up the stairs did I see Ian... His job at the time was to stay on top the scaffold and to lend whatever assistance to Raiz and I by passing material and whatever equipment or tools we would have needed to erect the scaffold." From his knowledge of the site and the procedure for access to the reformer, walking on a pipe never formed part of the proper procedure. Under crossexamination, Mr. Singh gave the following responses: "All I can say with regard to Ian is that he was given role to hoist material to top to help me. Next thing I knew he was on ground. Where I was working my tie off was beam. This beam was beam that we were erecting scaffolding on. I don t know if there was any other beam or pipes below. It is not correct that he was below us to pass material to us. My evidence is based on what I recollect and not on what would usually happen... I was senior rigger. I was in charge of person pulling up material. I was in charge of Riaz and Ian. I did not look back for Ian. I did not see him. I was going straight to top and I thought he knew what he had to do." 47. Based on this evidence, therefore, Mr. Singh did not state what were the specific instructions given to the Claimant by Mr. Rambharath and he was not able to contradict directly the Claimant's evidence that he was instructed to work at the lower level. 48. As earlier stated, the First Defendant failed to adduce any evidence from the foreman, Mr. Rambharath with regard to the specific instructions given to the Claimant. The Claimant's Attorneys submitted that in the light of the evidence given by the Claimant as well as the evidence of Tarran Singh and Phillip Archie, it was incumbent upon the First Defendant to lead direct evidence from Mr. Rambharath on this issue. Having failed to do so or to give to Page 12 of 60

13 the Court any reason for his absence, the evidence of the Claimant remained unchallenged and should be accepted by the Court. Further, they submitted that the Court is entitled to draw the adverse inference that the evidence of Mr. Rambharath would not have helped the First Defendant's case and would have supported the Claimant's contention that on the day of the incident, Mr. Rambharath issued an express instruction to the Claimant to work at a lower level in order to hoist the scaffolding from the ground to the employees who were working at the higher level. 49. In Wisniewski v. Central Manchester Health Authority 6, Brooks LJ stated that: "1. In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. 2. If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. 3. There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference; in other words, there must be a case to answer on that issue. 4. If the reason for the witness' absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified." 50. This test was applied in our jurisdiction by Justice Tiwary-Reddy in Marysia Perreira v. British American Insurance Company (Trinidad) Ltd 7 where she held that since the Defendant might reasonably have been expected to call two key witnesses in order to adduce oral and documentary evidence but failed to do so, she was entitled to draw adverse inferences against the Defendant. 51. In Ian Sieunarine v Doc s Engineering Works (1992) Limited 8 delivered by Rajnauth-Lee J (as she then was) stated as follows: 6 (1998) 7 PIQR 323 at HCA No. S-781 of No of 2000 Page 13 of 60

14 Having considered the evidence as a whole, the various submissions advanced on behalf of the parties, having carried out the balancing exercise suggested by the authors of Phipson as to the weight of the written statement of the plaintiff, and having examined the evidence of the witness Ragoonath, the Court is satisfied that a prima facie case of negligence has been sufficiently made out. In the absence of the witnesses Dipnarine and Simmons, the Court is entitled to infer that the defendant has chosen to withhold evidence which would either have supported the plaintiff s case or at the very least would not have displaced the prima facie case. Accordingly, the Court finds that the prima facie case has become a strong case in the absence of any evidence to dispute the matters established by the evidence of the plaintiff and his witnesses. 52. Adverse inferences were also drawn by Rahim J. in Surujbally Samaroo v Kishore Ramsaroop and Ann-Marie Ramsaroop 9. After examination of the authorities, Rahim J outlined the test to be considered as follows: Thus the Court must be satisfied first that a prima facie case had been made out on a material issue or that there is a case to answer on that issue. It is then for the Court to consider whether the proposed witness may have been expected to give material evidence on that issue. If the answer is yes, the Court must then have regard to the reason for the witness absence and can then draw adverse inferences due to the absence of evidence. 53. In my opinion, on the pleadings, it was critically important for evidence to be led on both sides as to the specific instructions given to the Claimant by Mr. Rambharath. The Claimant gave evidence that he was instructed by Mr. Rambharath to work at a lower level in order to assist the other workers by hoisting the material from the ground up to the job site from the lower beam. Therefore, the First Defendant had a case to answer. Since neither Mr. Durham nor Mr. Singh were able to give any evidence about the instructions given to the Claimant by Mr. Rambharath, it was reasonable to expect that Mr. Rambharath would be called by the 9 Claim No. CV / H.C.A. No. S-1295 of 2005 at paragraph 58 Page 14 of 60

15 First Defendant to say what instructions he gave to the Claimant and to subject himself to cross-examination so that the Court could properly evaluate the evidence in support of the competing versions. As expected, the First Defendant filed a witness statement in the name of Mr. Rambharath but he failed to appear at the trial. Most importantly, the First Defendant's Attorneys did not provide the court with any or any reasonable explanation for his failure to attend. 54. In the circumstances, I am prepared to draw the adverse inference that Mr. Rambharath's evidence would not have supported the First Defendant's Defence and I am also prepared to accept the Claimant's evidence that he was instructed by Mr. Rambharath to perform his duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers who were erecting the scaffolding at the higher level. V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from the place where the Claimant was required to perform his duties? 55. In his witness statement, the Claimant stated that Damion Doolcharan continued to climb to a higher level while he remained on a pipe at a lower level in order to assist the other workers in hoisting up the materials from the ground: "I remember stepping on to the pipe and observing that there was nowhere for me to 'tie off' in my immediate vicinity. However, I observed that there was a life-line located approximately 7 ft away along the pipe...the pipe which I was required to walk along was unpainted and was approximately 10 inches to 12 inches wide. There were other bigger pipes which I observed overhead and below the pipe was the ground. There was no cat-walk to walk along, no hand-rails to provide a secure hold and no safety netting around the pipe to protect me if I fell. I was already wearing my harness and started to walk along the pipe with the intention of hooking my harness to the lifeline further down the pipe. I took about four steps in the direction of the lifeline along the pipe when I slipped." 56. Once again, the witnesses for the First Defendant did not give any evidence to contradict the Claimant. Desmond Durham did not look up to see what Tarran, Riaz or Ian were doing and so he could not describe what existed at the level from which the Claimant fell. Tarran Singh Page 15 of 60

16 gave evidence that at the higher level where he was working there was a catwalk about two feet wide withrailings on both sides as well as a lifeline overhead. The catwalk was made of steel and had a metal grating and the railings were about 3 feet in height and had a middle bar. However, he was the first rigger to ascend the stairs and, under cross-examination, he admitted that although he was in charge of the persons pulling up material, namely Riaz and Ian, he did not look back for or see the Claimant. He went straight to the top and he thought the Claimant knew what he had to do. He also admitted that he did not know where the Claimant was or how he fell. 57. In the circumstances, I am prepared to accept the Claimant's evidence that at the lower level where he was instructed by Mr. Rambharath to perform the task of hoisting materials from the ground, there was no catwalk or railings. I also accept the Claimant's evidence that there was nowhere for him to tie off in the immediate vicinity and that the nearest lifeline was 7 feet away. 58. Accordingly, I find that at the lower level where the Claimant was instructed to perform his duties, there was unsuitable and/or insufficient and/or unsafe access thereto and egress therefrom. VI. Did Mr. Rambharath require the Claimant to walk across a hazardous and/or slippery pipe for several feet without his harness being attached in order to perform his duties? 59. Under cross-examination, the Claimant denied that he was in breach of proper procedure and he did not agree that he was the sole cause of his fall. However, he admitted that the workers were told by Mr. Rambharath at the tool-box meeting to maintain 100% tie off at all times. This was confirmed by both Mr. Durham and Mr. Singh who explained that this meant that at least one of the two safety straps must be hooked on to an anchorage point at all times. 60. I have already found that Mr. Rambharath instructed the Claimant to work at the lower level and that at that level there was no catwalk or railings or overhead lifeline in the immediate vicinity. 61. In light of these findings, therefore, I also find that Mr. Rambharath required the Claimant to walk across a hazardous and/or slippery pipe for several feet without his harness being attached in order to perform his duties. Page 16 of 60

17 VII. Did the First Defendant provide to the Claimant adequate health and safety training and/or orientation in accordance with accepted industrial standards before commencing work? 62. In his witness statement, the Claimant said he started work with the First Defendant in or about January He did not receive any formal training in respect of safety procedure but gained experience on the job. He also said that he did not recall attending any safety orientation from the First Defendant nor did he sign any document to say that he had completed a safety orientation. He also did not recall receiving a safety pass. Further, he said that at other jobs he had observed the presence of safety officers who were specifically assigned the responsibility of ensuring that workers on the job site were safe and performed their duties in a safe manner. However, on the day of the accident, he observed no such procedures in place and he did not observe any safety officers. 63. Under cross-examination, however, the Claimant admitted that by the date of this accident in October 2005, he was knowledgeable about building scaffolding and that he had spent about 700 hours doing such work at customers' premises. He also knew that he had to wear his harness to maintain 100% tie off when working over 6 feet. On that date, there was a "tool box" meeting in which all the employees were reminded about maintaining 100% tie off at all times. To that extent, therefore, the Claimant contradicted his evidence-in-chief. Further, he did not specify what other job sites he had worked at where safety passes were issued after undergoing a safety orientation or where safety officers were assigned the responsibility of ensuring the safety of the employees and compliance with instructions. In the absence of such evidence, therefore, I am not satisfied that the Claimant has supported his allegation that there was an acceptable industry standard with which the First Defendant had failed to comply. 64. In the absence of such evidence, I am of the view that the Claimant had been provided with adequate safety training and orientation prior to the date of this accident to enable him to perform his duties. Page 17 of 60

18 VIII. Did the First Defendant fail to provide the Claimant with suitable protective equipment (including but not limited to non-slip footwear, footwear with special grips or non-slip covers for his shoes) to protect him from slipping? 65. This issue requires me to determine whether the First Defendant failed to provide the Claimant with suitable protective equipment (including but not limited to non-slip footwear, footwear with special grips or non-slip covers for his shoes) to protect him from slipping. 66. The Claimant gave evidence that on the day of the accident he was wearing his helmet, goggles, gloves, steel-tipped boots and safety harness with two lanyards. However, in describing how he fell, he did not suggest that the cause of his fall was the unsuitability of the protective equipment that he was wearing. In particular, he did not say that his footwear in any manner caused him to fall. The pipe onto which he stepped was unpainted and approximately 10 to 12 inches wide. As I understand his evidence, the cause of his fall was the location of a life-line overhead some 7 feet away from where he was standing and his attempt to step onto the narrow pipe without being tied off. He made about 4 steps in the direction of the lifeline when he slipped and fell. 67. In my opinion, the Claimant was wearing suitable safety equipment when he fell. Unfortunately, in his attempt to reach the overhead life-line, he slipped on the pipe and fell because he was not tied off. In my opinion, therefore, the Claimant has not proved that the First Defendant failed to provide him with suitable protective equipment to protect him from falling. IX. Did the First Defendant fail to implement suitable/sufficient protection measures to prevent the Claimant from injuring himself from falling, including the provision of railings and/or safety nets? 68. I have already found that the Claimant had been instructed by Mr. Rambharath to perform his duties of hoisting material at a lower level than 50 feet and that at that level there was no catwalk or railings or overhead lifeline in the immediate vicinity. It is also not in dispute that there was no safety net in use at the site. 69. Section 21(2) of the Factories Ordinance imposes upon an employer an obligation, where any person is to work to at a place from which he will be liable to fall a distance of more than 10 feet, to provide means, so far as is necessary and practicable, by fencing or otherwise for Page 18 of 60

19 ensuring his safety. It is clear that the Claimant was instructed to work at a height well over 10 feet and there was no fencing in place at that level. The only safety measure in place was that the workers were wearing harnesses which they were expected to fasten onto an overhead life-line in order to maintain 100% tie-off at all times. In the event that a worker slipped while performing his duties, he would be suspended in mid-air and not fall to the ground. However, at the level where the Claimant was instructed to work, the lifeline was located some 7 feet away from where the Claimant was standing after he came off the stairway. 70. In my opinion, the means provided to the Claimant were insufficient to ensure his safety since in order to reach the life-line, he was required to step onto the narrow pipe without having anything to hold onto while executing this manoeuvre. In so doing, he was exposed to the risk of slipping while walking along the narrow pipe and of falling to the ground before he had succeeded in fastening his harness to the lifeline. It should also be borne in mind that the First Defendant's system of work did not provide for the placement of a safety net below the area where the workers were performing their job of erecting the scaffolding and the First Defendant did not adduce any evidence to show why safety nets were not suitable or reasonable. 71. In the circumstances, I find that the First Defendant failed to implement suitable or sufficient protection measures to prevent the Claimant from injuring himself from falling. X. Did the First Defendant fail to carry out a suitable risks assessment? 72. The First Defendant s witness, Mr. Tarran Singh gave the following evidence with regard to the assessment of the risks in respect of the scaffolding job at the Second Defendant s premises: "The foreman and I went up on first day. We decided together how it was to be done. We had to locate position that was safe for guys to sit down or stand up to take material on top. Groundsman would be on ground and would send up material. We had to decide where persons had to be to get material to pass to us. Riaz and Ian were to be rope men... We had toolbox meeting on Friday. On Friday we were told to follow what foreman said to do. At mtg, I was told we had to go to top... Shane and I went up and determined what had to be done. Durham was supposed to be on ground...we don t Page 19 of 60

20 walk on any pipe. We put planks to walk on. We don t put up netting to secure that person cannot fall off. At that time we did not use netting. When we were constructing scaffolding, there was nothing below to catch person. The only thing to protect them was lanyard and harness. If something happens at some point, you would go down." 73. Further, Mr. Archie gave evidence in general terms of the First Defendant s health and safety policies to minimize injuries. He also annexed a Report signed by the Marketing Manager, Mr. Devan Sookraj but apart from the reference to the tool box meeting, there is no reference therein to a risk assessment conducted by the First Defendant. 74. In my opinion, although Mr. Singh refers to a visit by the foreman, Mr. Rambharath and himself on the day prior to the incident to evaluate and determine how the job was to be performed and what duties would be assigned to the workers, his evidence does not refer specifically to an assessment of the risks to which the workers would be exposed in discharging their functions. 75. Accordingly, in the light of my earlier finding that the First Defendant failed to implement suitable/sufficient protection measures to prevent the Claimant from injuring himself from falling, I am of the opinion that the First Defendant failed to carry out a suitable risks assessment in relation to the execution of this scaffolding job on 8 th October XI. Were the passageways and gangways which the Claimant was required to use of unsound construction and/or not properly maintained? 76. The Claimant did not give any evidence to prove that the passageways and gangways which he was required to use were of unsound construction and/or not properly maintained. In any event, I have already found that the Claimant was instructed to work at a lower level where there was no catwalk or railings in place. 77. Accordingly, I decline to make any finding that the passageways and gangways which the Claimant was required to use were of unsound construction or improperly maintained. Page 20 of 60

21 XII. Was there an absence of fencing or other means to ensure the Claimant's safety? 78. The undisputed evidence is that at the level of the job site there was a gangway 2 feet wide with 3 feet railings on either side. However, the evidence is also clear that at the lower level from which the Claimant fell, there were no such railings. 79. In the circumstances, I find that there was an absence of fencing or other means to ensure the Claimant's safety at the level where he was required to perform his duties. XIII. Did the First Defendant fail to provide adequate supervision? 80. In considering this issue, I am of the view that I need to consider and determine whether the First Defendant failed in its common law duty to provide to the Claimant proper and/or adequate supervision and/or assistance and/or supervision and/or as stipulated in the Second Defendant's Safety Handbook during the performance of his duties? 81. The Claimant did not give any evidence of safety requirements/ procedures or any stipulations as to supervision contained in the Second Defendant's Safety Handbook dated 2 nd April Accordingly, I find that the Claimant has not proved that the First Defendant failed to acquaint/and/or orient him with the requirements/ procedures or stipulations as to supervision set out therein. 82. However, when I consider the evidence of the Claimant, Mr. Durham and Mr. Singh and, in the absence of any evidence from Mr. Rambharath, I am of the opinion that the First Defendant did not provide proper and/or adequate supervision of the Claimant. Mr. Durham was instructed to cordon off the area with tape but he did not have any supervisory responsibility towards the Claimant. However, both Mr. Rambharath, as the foreman, and Mr. Singh, as the most senior rigger, should have ensured that there was proper supervision of the employees. This is especially so because the Claimant had been instructed to carry the task of hoisting the material from the ground at a lower level where there was no railing or fencing and no overhead lifeline in the immediate vicinity and, most importantly, no safety net in place below the workers. Mr. Singh gave evidence that he proceeded up the stairs but he assumed that the Claimant was doing what he was instructed to do and so he never looked back. Mr. Rambharath did not attend to give evidence as to the measures he took to ensure that the Claimant could safely carry out his instructions at the lower level. I am of the opinion Page 21 of 60

22 that if proper supervision had been exercised, the risk or danger of the Claimant stepping onto a pipe without his lanyard attached may have been observed and instructions could have been given to him to avert the risk of him slipping on the pipe and falling to the ground. 83. Accordingly, I find that the First Defendant failed to provide to the Claimant proper and/or adequate supervision to ensure that he did not expose himself to the risk of slipping and falling. Conclusion 84. In the light of my earlier findings of fact on this issue, I find that although the First Defendant held a safety orientation meeting before the commencement of scaffolding construction on 8 th October 2005 at which the First Defendant's employees, including the Claimant, were instructed to maintain 100% tie off at all times, the Claimant was instructed to perform his duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers who were erecting the scaffolding at the higher level. At that level, there was no railing or fencing or lifeline in the immediate vicinity onto which the Claimant could fasten his harness. In order to reach the overhead lifeline which was some 7 feet away, the Claimant was required to walk across a narrow pipe for several feet without anything to hold onto. As a consequence, the Claimant was exposed to the risk of slipping and falling to the ground before he had succeeded in fastening his harness to the lifeline since there was no safety net in place below him to avoid such an eventuality. In my opinion, therefore, the First Defendant was in breach of its statutory obligations under Section 21 of the Factories Ordinance by failing to provide and maintain a safe means of access to the place where the Claimant was required to work and by failing to provide fencing or other means to ensure the safety of the Claimant. Further, the First Defendant was negligent in failing to provide and operate a safe system of work which would have prevented the Claimant from slipping and falling and injuring himself. Page 22 of 60

23 Contributory negligence 85. The First Defendant pleaded and sought to argue that the Claimant's negligence contributed to his fall and his injuries. 86. As earlier stated, the burden lies upon the First Defendant to prove firstly that the Claimant failed to take such care of himself as an ordinary man would take for his own safety and secondly, that his failure to take care was a contributory cause of his slip and fall. It is not for the Claimant to disprove that he was contributorily negligent. 87. In my opinion, the First Defendant failed to discharge this burden since its witnesses were unable to give any evidence as to the cause of the fall. Neither Mr. Durham nor Mr. Singh saw where the Claimant was or how he fell. Further, the First Defendant failed to call Mr. Devan Sookraj to give evidence with respect to the investigation into the incident which he conducted and the Report which he prepared. Instead, his Report was annexed to the witness statement of Mr. Archie and it does not support the allegation that the Claimant failed to use reasonable care for his safety and that he caused or contributed to his slip and fall. 88. Therefore, the First Defendant failed to prove that the Claimant was contributorily negligent. Accordingly, I find that the Claimant's fall and consequential injuries were not caused or contributed to by his negligence and I find that the First Defendant is wholly liable in damages to the Claimant for breach of statutory duty under the Factories Ordinance and in negligence. Damages Special damages 89. Annexed to the Claimant s Re-Re-Amended Statement of Case is a schedule of Special Damages with claims under the following heads; Professional Services, Travelling, Medication, Nursing Care, Equipment, Medical Reports and Loss of Earnings, each of which will be examined individually. Professional Services 90. The Claimant has claimed for three visits to Doctors totalling $ He provided receipts that were stamped and signed by the Doctors for each visit. Two of the receipts were from Dr. Krishna Maharaj, dated 12 th July 2006 and 17 th January 2007 for professional services Page 23 of 60