IN THE HIGH COURT OF JUSTICE BETWEEN AND TRINSULATE 2 CARIBBEAN LIMITED ARCELORMITTAL POINT LISAS LIMITED

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN RANDY NANAN Claimant AND TRINSULATE 2 CARIBBEAN LIMITED ARCELORMITTAL POINT LISAS LIMITED First Defendant Second Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Mr. A. Seaton instructed by Ms. R. Brown for the Claimant Ms. V. Gopaul instructed by Mr. A. Misir for the Second Defendant

2 Judgment 1. By Claim Form filed on the 27 th August, 2015, the Claimant seeks damages for personal injuries, consequential loss and expenses suffered by him as a result of negligence of the Defendants which resulted ultimately in the amputation of one of his fingers. 2. The First Defendant settled with the Claimant and by way of Notice for Discontinuance filed on the 5 th January, 2017, the Claimant s claim against the First Defendant was discontinued. 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 Second Defendant only. On the date of trial, the Second Defendant did not appear and was unrepresented. This resulted in no evidence being tendered on behalf of the Second Defendant. The court however afforded the Second Defendant the opportunity to file closing submissions. The Claim 3. The Claimant was employed by the First Defendant as a Stir Station Operator. At the material time, the Claimant was working at the Second Defendant s premises. The Claimant claims that whilst carrying out his duties on the compound of the Second Defendant, he took instructions from the Second Defendant. The Claimant further claims that he adhered to the health and safety procedures and policies of the Second Defendant, who at all material times determined and/or set up and/or implemented the system of work applicable to the performance of his duties. 4. On the 29 th August, 2011, whilst at the compound of the Second Defendant, the Claimant during the course of his employment severely injured the middle finger of his right hand. The Claimant s right hand is his dominant hand. According to the Claimant, the incident occurred when in attempting to manually rotate and guide the hook of a machine to its operating position, his middle finger got caught between the hook and a plate of the machine. The Claimant avers that this incident was caused by the negligence of the Second 2

3 Defendant, their servants and/or agents in failing to provide a safe place of work and/or a safe system of work. The Defence of the Second Defendant 5. The Second Defendant denies that the Claimant took instructions from it or that he was subjected to its health and safety procedures. The Second Defendant claims that by written agreement dated the 29 th April, 2010 ( the said agreement ), it engaged the services of a company named RHI-AG. According to the Second Defendant, by the said agreement, RHI-AG and the First Defendant were independent contractor and independent subcontractor respectively. The Second Defendant therefore claims that the First Defendant was solely responsible for; (i) employing skilled employees; (ii) providing its employees with equipment and training (including safety training); (iii) instructing, supervising and managing its employees in the performance of their duties; and (iv) paying the wages or salaries of its employees. 6. The Second Defendant further denies that the Claimant s alleged injuries were caused by its negligence and/or breach of statutory duty. The Second Defendant contends that in relation to the system of work, its role was limited to establishing the Standard Operating Procedures ( SOP ) and the health and safety requirements for the tasks involved in the performance of the said agreement. That the First Defendant was responsible for all other aspects relating to the system of work which included ensuring that the Claimant followed the SOP. 7. According to the Second Defendant, the task which the Claimant was allegedly performing on the day in question involved the attachment of a chain to a hook and the removal of the chain from the hook. The Second Defendant avers that this was an established task in its steel operations which is incapable of being automated and therefore had to be performed manually. The Second Defendant further avers that it created an SOP for the performance of the said task which assessed and established precautions against the risks involved in the performance of same. That among the precautions established, was the use of a lance pipe (a metal pipe) which is passed through the chain and secured on either end of the slotted racks at the end of the ladle. According to the Second Defendant, this step removes 3

4 all tension from the chain, so that the hook could be safely removed. Additionally, the Second Defendant claims that it is only upon the completion of the aforementioned task and the safe removal of the hook that the Stir Station Operator is required to communicate via the two way radio with the Crane Operator. Further, in event of any abnormality, problem or potential danger, the Stir Station Operator is required to report same to the supervisor on shift for the rectification of same. 8. The Second Defendant contends that the Claimant did not adhere to its SOP and as such, the incident was caused wholly or was contributed to, by the negligence of the Claimant. Issues 9. The general legal issues for determining liability in this case are as follows: i. Whether the Second Defendant owed a duty of care to the Claimant and if so what was the extent of that duty of care; ii. Did the Second Defendant breach a duty of care and whether damage resulted; iii. If so, whether there was contributory negligence on the part of the Claimant; and iv. To what damages, if any, is the Claimant entitled. Issues 1 & 2 Duty, Breach & Causation 10. A finding of negligence requires proof of (1) a duty of care to the Claimant; (2) breach of that duty and (3) damage to the Claimant attributable to the breach of the duty by the defendant: Charlesworth & Percy on Negligence Thirteenth Edition, Chapter 1, paragraph There must be a causal connection between the Defendant s conduct and the damage. Further, the kind of damage suffered by the Claimant must not be so unforeseeable as to be too remote: Clerk & Lindsell on Torts Nineteenth Edition. Chapter 8, paragraph Justice Kokaram in quoting from Lord Wright in Aaron Jairam v Trincan Oil Ltd. CV at paragraphs 101 &102 set out as follows; 4

5 The establishment of that duty of care calls for a close examination of the relationship between persons to determine whether an obligation can be imposed for the benefit of the other to take reasonable care in the circumstances. Lord Wright in Grant v Australian Knitting Mills Limited [1936] AC 85 identified the need to define the precise relationship from which the duty can be deduced: All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care is deduced. It is however essential in English Law that the duty should be established the mere fact that man is injured by another s act gives in itself no cause of action if the act is deliberate the party injured will have no claim in law even though the injury is intentional so long as the other party is merely exercising a legal right if the act involves a lack of due care against no case of actionable negligence will arise unless the duty to be careful exists. In the well-known line of authority that examined the need to establish a legal framework in defining that relationship from which the duty is to be deduced beginning with Donoghue v Stevenson (supra), Anns v Merton London Borough Council [1978] AC 728, Yuen Kum Yeu v Attorney General of Hong Kong [1988] AC 175 to Caparo Industries Plc v Dickman [1990] 2 AC 605 the general theme has been to establish a framework of balancing foreseeability, proximity and policy considerations. (Emphasis mine) The evidence 12. The Claimant called one witness in addition to his testimony, namely Anthony Jules. The Claimant is thirty-four (34) years of age. In or about June 2010, while employed as a Stir Station Operator by the First Defendant. However, he was required to work at the steel plant of the Second Defendant. It was the evidence of the Claimant that the First Defendant was a sub-contractor hired by the Second Defendant to operate its Stir Stations. RHI-AG was the head contractor. The Claimant testified that while he worked at the Second Defendant s Stir Stations, he took instructions from the Second Defendant in relation to the duties he was required to perform. Further, the Claimant reported to the employees of 5

6 the Second Defendant and adhered to the health and safety procedures and policies of the Second Defendant. 13. According to the Claimant, the Second Defendant was in the business of producing steel. One of the practices undertaken at the Second Defendant s compound is Tipping. Tipping is the process used to pour out molten metal from a ladle (a large cup shaped, open top, metal vessel). At the bottom of the ladle is a chain known as a dumping chain, which is pulled by a crane in order to tip the ladle. The dumping chain is attached to the crane by means of an auxiliary hook. This hook is not always attached to the dumping chain, it is only attached when tipping is required. 14. It is part of the Claimant s function to connect the auxiliary hook to the dumping chain before and after tipping. The process of connecting the auxiliary hook to the dumping chain required the Claimant to put his hands through a small 2.5 by 3 feet wide window in the Stir Station. The window was small so as to minimize the Stir Station Operator s exposure to the tremendous heat emanating from the molten metal within the ladle. The Claimant testified that due to the small size of the window, he usually could not see anything other than what was directly in front of him through the window. Thus, the Claimant would have to rely on the assistance of the Crane Operator to get a full picture of what was going on outside the window. Communication with the crane operator was by means of a hand held two-way radio, which was supplied by the Second Defendant. 15. On 29 th August, 2011 the Claimant s injury occurred while he was assisting in tipping slag (waste residue left over after the smelting of steel and metal) from the ladle at stir station two. The auxiliary hook needed to be detached from the dumping chain. The Claimant was in the process of giving directions to the crane operator, Mr. Clinton Ashby, through the two-way radio communication. As the radio was hand held, the Claimant held the radio in one hand. On approaching the ladle from the window to attach the chain hook and install the pipe on the slotted plates of the ladle with the other hand, a request for the crane operator to come down with the auxiliary hook was acknowledged. However, the Claimant noticed that the chain at the top sloth was coiled (which reduced the full extension of the auxiliary hook) causing the said hook to face west rather than its operating north position. 6

7 The Claimant testified that if the hook remained in this off position, it would have become stuck in between the slotted plates, giving rise to heavy unwarranted spillage of the molten metal when the auxiliary hook was lifted. 16. Consequently, the Claimant attempted to manually rotate and guide the hook to its operating position. He testified that this was the normal and only process of rotating the hook. Whilst the Claimant attempted to rotate the hook, the chain at the top sloth uncoiled causing the hook to suddenly and forcefully turn back. Based on the proximity of the Claimant s right hand and the plate, his right middle finger got caught between the plate and the hook and was severely injured. 17. According to the evidence of the Claimant, the SOP for tipping was not shown to him prior to the date of the incident. The Claimant saw the SOP for the first time at his attorney s office after disclosure was made. 18. At the material time, Mr. Anthony Jules was employed with the First Defendant as a Senior Safety Officer. Jules main responsibilities included inter alia, conducting health and safety investigations and reporting same to management. 19. On 30 th August, 2011, Jules started an investigation into the incident which gave rise to the Claimant s injuries. Having investigated the incident, Jules submitted an Interim Report dated 30 th August, 2011 to Mr. Ian Fernandes, the Manager of the First Defendant. Thereafter, Jules continued his investigations into the incident by visiting the site where the Claimant was injured and by meeting with a number of persons, namely, (i) Mr. Clinton Ashby, the Crane Operator on duty at the time the Claimant was injured; (ii) Mr. Shane Ralph, the Shift Supervisor for the First Defendant; and (iii) the Claimant, himself. Having completed his investigation, Jules produced his final report (on the incident) dated the 6 th September, 2011 and submitted same to Fernandes. 20. Jules testified that from the information he received from the interviews he conducted, there was no SOP. According to Jules, there was a risk of an employee being injured in the absence of a SOP. From Jules conversations with the Claimant, Ralph and Ashby, he gathered that the auxiliary hook becoming stuck in between the plates was quite normal. 7

8 That even though this was a normal occurrence, Jules was not shown any SOP to cover the situation. 21. According to the evidence of Jules, there was a two-way radio which was handheld rather than hands free. Jules testified that this left the Stir Station Operator with the choice of either having continuous communication with the crane operator or being able to use both hands for his task, but not both at the same time. 22. Whilst on the site, Jules saw the little hole that the Claimant had to operate through. Jules testified that all that could be seen through the hole was the melting pot, a chain and pulley. That the Claimant could not have a broad view of what was happening outside of that system. Jules further testified that he recommended that a buddy system be implemented as he felt that operating through the little hole was unsafe due to the intense heat and weight of the apparatus. Jules found that the process was one which the First or Second Defendant ought to automate as there was a serious risk that if something went wrong, someone could be seriously injured. In Jules opinion, the incident occurred because both Defendants failed to put proper systems in place. The Claimant s Submissions 23. According to the Claimant, the Second Defendant owed him a duty of care because (a) the type of harm he suffered was foreseeable, (b) there was a relationship of proximity between the Second Defendant and him and (c) it is fair, just and reasonable that such a duty be imposed on the Second Defendant. 24. The Claimant submitted that the Second Defendant owed him a duty to (i) produce a proper SOP for the performance of his work functions, (ii) provide a system of communication that would minimize the risk of injury to him and (iii) ensure that he had proper visibility to adequately mitigate the risk he was exposed to whilst carrying out his work functions. According to the Claimant, it was clear that the Second Defendant understood that there was a foreseeable risk that someone carrying out his task could be injured. In the Second Defendant s SOP for Tipping Slag (See Tab 18 of the Trial Bundle of Agreed and Un- 8

9 agreed Documents filed on the 4th January, 2017) under section 5.2, it states that there is a risk of injury to limbs when engaging the auxiliary. 25. In support of his contention that the Second Defendant owed him a duty of care, the Claimant relied on the cases of Donoghue v Stevenson [1932] AC 562, Caparo v Dickman [1990] 2 AC 605 and Intercommercial Bank Limited v Charles B. Lawrence and Associates CV In Donoghue supra, Mrs. Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs. Donoghue poured half of the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs. Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer and was successful. 27. The Claimant submitted that in Donoghue, Lord Atkin in the House of Lords firmly established that negligence is not limited to cases involving certain special types of relationship between the parties. Instead, negligence arises in every case where there is an objectively foreseeable risk of harm to a person or class of persons. At page 580, Lord Atkin stated as follows; "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question." 28. In Caparo supra, a new test had been introduced requiring the situation to be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. In that case, accounts were inaccurately prepared making a target company seem to be in a better financial position than it was. Investors relied on those inaccurate accounts to purchase the company and thus 9

10 suffered loss. The question was whether the accountant owed the investor any duty of care in relation to the preparation of the accounts. The court answered this question in the negative based on the ground that such a duty was not fair or reasonable. Lord Bridge at pages 617 and 618 stated as follows; in addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope upon the one party for the benefit of the other. 29. In Intercommercial Bank Limited supra, paragraph 25, Justice Jones stated as follows;...i agree with the reasoning of Lord Bridge of Harwich in the case of Caparo Plc v Dickman [1990] 2 AC 605 when he acknowledges that in order to determine the scope of the duty reference must be had to the kind of damage from which the professional must take care to save the third-party harm. In other words what is required to be proved is not only that there was a duty owed but that the duty was with respect to the type of loss suffered. The first step therefore is to ascertain the purpose and circumstances under which the information was given. 30. The Claimant submitted that the Second Defendant breached its duties towards him and that those breaches were directly linked to the injuries he sustained. According to the Claimant, a person breaches his duty of care when he fails to do what the reasonable man would do in similar circumstances. That the legal standard of care is objective; it is not that of the defendant himself, but that which might be expected from a person of ordinary prudence, or person of ordinary care and skill, engaged in the type of activity in which the defendant was engaged. However, the Claimant submitted that in this case, where a Defendant is seised of specialised knowledge and skill, the Defendant is responsible to perform duties with the care and attention that a person in a similar industry will apply. That the standard is therefore stricter. 10

11 31. The Claimant relied on the case of Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, wherein Mc Nair J at page 586 stated as follows; But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not, is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. 32. In furtherance of his submission that the Second Defendant breached its duties towards him, the Claimant submitted that the SOP created by the Second Defendant in relation to the Stir Station Operator s role in connecting and disconnecting the chain was woefully inadequate. That the SOP left too much to the worker s intuition and thereby exposed him to serious risk. The Claimant accepted that not every single detail could have been provided for in a SOP, however, he submitted that the SOP was deficient in that it did not detail how the Claimant could have taken precaution to observe all due care and attention. 33. Further, the Claimant contended that the Second Defendant claimed in its Defence that the worker was required to report abnormalities to the supervisor, but that the SOP did not distinguish between normal and abnormal events. The Claimant submitted that in any event the manual guiding of the hook was the normal and only process by which the problem he encountered could have been fixed. 34. Moreover, the Claimant submitted that there was no evidence that the Second Defendant supervised or monitored the implementation of this SOP. The Claimant argued that an SOP must not simply be handed to workers. That there must be some type of feedback mechanism to find out whether it was being implemented and to modify it if any changes were required. The Claimant further submitted that perhaps if there was a feedback mechanism, the Second Defendant might have known about the dumping chain becoming stuck between the plates. 11

12 35. According to the Claimant, the Second Defendant further breached its duties towards him as the communications systems provided by it was ineffective and insufficient to mitigate the risk of damage. The Claimant submitted that no guidelines were provided as to the use of the two-way radio. That this in turn left it for the Claimant to prescribe for himself the proper usage of the radio and ultimately lead to his injury. 36. It was the submission of the Claimant that the hand held two-way radio caused him to choose between constant communication and the use of both of his hands. That the situation was untenable and it more likely than not contributed to his injury. According to the Claimant, the use of one hand to talk and the other to guide the hook was not prohibited by the SOP, and there was no evidence that it was otherwise prohibited. 37. Further, the Claimant contended that the Second Defendant ought to have implemented a buddy system to compensate for his impaired vision via the window. That the Second Defendant breached its duty to take care of his safety by failing to provide such a system. The Submissions of the Second Defendant 38. It is the contention of the Second Defendant that the Claimant is wholly responsible for the incident which caused his injury. The Second Defendant submitted that on the Claimant s own evidence, communication with the crane operator was only necessary whilst the crane was in motion. The Second Defendant further submitted that the Claimant had no use for the handheld radio at the time of manually rotating and guiding the hook. That when the ladle reached the window and it was time to attach the hook to the crane, the Claimant ought to have had both hands free but instead, he continued to hold the radio in one hand and was doing his job with the other. 39. It was the submission of the Second Defendant that this Court ought to take a common sense and practical approach when determining whether the SOP should have specifically advised the Claimant that the two-way radio during the hooking up process would be unsafe and was therefore prohibited. The Second Defendant submitted that every person engaged in any work-related activity is under an obligation to take precautions for his/her 12

13 own safety. For this submission, the Second Defendant relied on the case of Nance v British Columbia Electric Ry [1951] 2 All ER 448 at 450 &451, wherein Viscount Simon stated as follows; when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish such a defence is to prove to the satisfaction of the jury 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. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full. This view of the matter has recently been expounded, after full analysis of the legal concepts involved and careful examination of the authorities, by the English Court of Appeal in Davies v Swan Motor Co (Swansea) Ltd to which the Chief Justice referred. This, however, is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. Indeed, it would appear to their Lordships that in cases relating to running-down accidents like the present such a duty exists Such a plea should be treated as setting up want of care by the plaintiff for his own safety, whether in the circumstances of the accident the plaintiff owed a duty to the defendant or not. 40. The Second Defendant further submitted that the above common law duty has been statutorily recognized in the Occupation Health and Safety Act, Chapter 88:08 ( OSHA Act ). Section 10(a) of the OSHA Act provides as follows; (1) It shall be the duty of every employee while at work (a) to take reasonable care for the safety and health of himself and of other persons who may be affected by his acts or omissions at work 41. According to the Second Defendant, it is undisputed that the task in question involved a risk of injury to the Claimant s limbs. That the risk was equally foreseeable by the Second Defendant as it was to the Claimant. As such, it is the contention of the Second Defendant that the Claimant cannot credibly assert that he had to be told via the SOP that he should 13

14 not have been using the two-way radio while he was engaged in a task which carried a risk of injury to his limbs. That this was an unsafe activity which any reasonable man ought to know and ought to refrain from doing in an industrial environment with heavy machinery. The Second Defendant further contended that to impose such a duty on them to inform the Claimant that he should not have been engaging in the use of such an obvious unsafe activity would be tantamount to reliving the Claimant of any personal responsibility for his safety and/or exercising any commonsense. Consequently, the Second Defendant submitted that insofar as the Claimant was engaged in the unsafe activity of multi-tasking at the material time without any satisfactory explanation for same, he was doing so on his own without regard for his own safety. 42. It is the contention of the Second Defendant that the Claimant failed to adduce any evidence that there was something outside of the window which he could not see and which impacted on his ability to perform his duties at the material time. The Second Defendant therefore submitted that the absence of a buddy system did not contribute to the accident and was irrelevant to this case. 43. The Second Defendant argued that it was apparent from the Claimant s own evidence that the coiling of the chain was an abnormal event since it could lead to unwarranted spillage of molten metal. The Second Defendant submitted that the evidence of Jules was that the Claimant s attempt to rectify the coiled chain was the first of its kind which he, the Claimant experienced on the job (See the last bullet point on page 2 of the final report of Jules exhibited as A.J. 2 to Jules witness statement). As such, the Second Defendant submitted that there was no evidence that the coiling of the chain was a regular occurrence or something which was known to the Second Defendant and which therefore, should have been provided for in the SOP. That the auxiliary hook becoming stuck in between the plates which was a regular event was different from the coiling of the chain which occurred in the instant case. That Jules evidence in relation to the auxiliary hook becoming stuck between the plates is of no assistance since the evidence of the event which led to the incident did not show that the dumping chain becoming stuck between the plates. 14

15 44. The Second Defendant submitted that the Claimant having recognized the existence of an abnormal event assumed that the appropriate action to be taken was to manually rotate and guide the hook. The Second Defendant further submitted that in the absence of any evidence that this abnormal event occurred previously and was known or ought to have been known by the Second Defendant, it cannot be held liable for negligence for failing to provide for same in the SOP. 45. It was the submission of the Second Defendant that there was a feedback mechanism in place. That the said agreement between the First and Second Defendant provided for reporting between them on matters of health and safe of the said agreement provides as follows; The Contractor shall expressly and forthwith inform the Company throughout the term of this Agreement of any circumstance or requirement concerning safety, heath, environment 46. Consequently, the Second Defendant contended that on matters of health and safety, it was the responsibility of the First Defendant to advise the Second Defendant of any abnormal events occurring during the performance of the Claimant s duties. 47. Further, the Second Defendant contended that the Claimant did not produce any evidence of the existence of any automated process which would have been reasonably available to the Second Defendant at the material time. As such, the Second Defendant submitted that in the absence of such evidence, no finding could be made against it. Findings 48. In relation to the provision of the SOP, the only evidence as to whether same was provided to the Claimant prior to the incident comes from the case of the Claimant. In that regard the court accepts his evidence that the first time he would have seen the SOP was when same was disclosed to his lawyer during the course of case management of the claim. 15

16 49. It is settled law that in order to establish a duty of care three ingredients must exist, namely 1) the foreseeability of damage; 2) the existence of a relationship characterized by the law as one of proximity or neighbourhood (between the party said to owe the duty and the party to whom it is claimed to be owed) and 3) the situation should be one in which the Court considers it fair, just and reasonable that the law should impose a duty of care: See per Lord Bridge of Harwich in Caparo Industries plc v Dickman and Others [1990] 2 A.C 605, cited by Mendonça, J.A. in Clyde Dindial v RBTT Bank Limited C.A. 244/ On the facts of this case, the First Defendant was the employer of the Claimant, however he was assigned to work at the Second Defendant s steel plant. According to the evidence of the Claimant, while working at the Second Defendant s compound, he took instructions from the Second Defendant, reported to the employees of the Second Defendant and adhered to the health and safety procedures and policies of the Second Defendant. The Claimant also worked together with the Second Defendant s workers. The Court therefore finds that a relationship existed characterized by law as one of proximity or neighbourhood since the Claimant being much a part of the business of the Second Defendant, fell under the control and supervision of the Second Defendant. 51. Consequently, the Court finds that the Second Defendant owed the Claimant a duty of care to provide a safe working environment by providing 1) an adequate SOP for the performance of his work functions and 2) a system of communication that would minimize the risk of injury to him. This duty must extend to ensuring that hazards that are reasonably foreseeable are treated with, in the effort to minimize or eliminate the risk due to hazard exposure thereby providing a safe work environment for all workers under the employ of the Second Defendant. Whether something is reasonably foreseeable must depend on the individual circumstance of each case when taken in the context of the evidence. The evidence shows quite clearly that the Claimant s tasks involved hazards that posed the risk of injury to limbs. The Defendant argued that on the Claimant s evidence the coiling of the chain was an abnormal event. There is no evidence that prior to this incident, the Claimant made any complaints pertaining to the chain becoming coiled. Be that as it may, according to the Second Defendant s Defence, among the precautions established, was the use of a 16

17 lance pipe (a metal pipe) to remove all tension from the chain in the event of the chain becoming coiled. In the Court s view, this was an acknowledgement by the Defendant that the chain becoming coiled was a hazard that was reasonably foreseeable and the Court so finds. It follows therefore that this precaution should have been incorporated as part of its SOP to ensure that in the event of the chain becoming coiled, the Claimant would have known what steps to take. As such, the Second Defendant by failing to include this precaution in its SOP, which it stated has been established, breached its duty towards the Claimant to provide a safe system of work, as he was unaware and uninformed of the control measure put in place to manage this hazard, thereby mitigating the risk. 52. The Second Defendant further breached its duty towards the Claimant by failing to provide a hands-free system of communication. The fact that the Claimant was in communication with the Crane operator whilst the crane was not in motion is irrelevant. The SOP for tipping slag neither stated when communication was required, nor prohibited such communication. The important fact is that the Second Defendant being aware that 1) the duties of the Claimant required the full use of his hands to efficiently carry out his tasks as a Stir Station Operator and 2) the Claimant s task involved the risk of injury to limb, was under a duty to provide the Claimant with hands-free communication to effectively execute his duties. 53. Moreover, the Court finds that the absence of a buddy system did not contribute to the incident and was irrelevant to this case since the Claimant failed to adduce any evidence that there was something outside of the window which he could not see and which impacted on his ability to perform his duties at the material time. 54. Consequently, the Court finds that the Second Defendant breached its duty towards the Claimant by; i. Failing to provide a safe place of work and/or safe system of work for the Claimant; ii. Failing to take any adequate precaution for the safety of the Claimant while he was engaged in his employment at the Second Defendant s premises; iii. Failing to give and/or warn the Claimant to be alert as to the coiling of the chain; 17

18 iv. Failing to warn the Claimant of the dangers of manually rotating and guiding the hook or otherwise preventing the Claimant from so doing; and v. Failing to provide adequate staffing so that the Claimant would not have had to manually guide the hook by himself and without assistance. Issue 3 - Contribution 55. Contributory negligence means some act or omission by the injured person which constituted a fault, in that it was blameworthy failure to take reasonable care for his or her own safety and which has materially contributed to the damage caused: See Munkman: Employer s Liability at Common Law, Fifteenth Edition, Chapter 6, paragraph Halsbury's Laws of England, Volume 78 (2010), paragraphs 76, 77, 78 & 80, provides the following in relation to contributory negligence; 76. In order to establish contributory negligence the defendant has to prove that the claimant's negligence was a cause of the harm which he has suffered in consequence of the defendant's negligence. The question is not who had the last opportunity of avoiding the mischief but whose act caused the harm. The question must be dealt with broadly and upon commonsense principles. Where a clear line can be drawn, the subsequent negligence is the only one to be considered; however, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the person secondly negligent might invoke the prior negligence as being part of the cause of the damage so as to make it a case of apportionment. The test is whether in the ordinary plain common sense the claimant contributed to the damage. 77. The existence of contributory negligence does not depend on any duty owed by the claimant to the defendant and all that is necessary to establish a plea of contributory negligence is for the defendant to prove that the claimant did not in his own interest take reasonable care of himself and contributed by this want of care to his own injury. 18

19 78. The standard of care in contributory negligence is what is reasonable in the circumstances, and this usually corresponds to the standard of care in negligence. The standard of care depends upon foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent person, he might hurt himself As with negligence, the standard of care is objective in that the claimant is assumed to be of normal intelligence and skill in the circumstances...if the negligence of the defendant puts the claimant in a position of imminent personal danger then conduct by the claimant which in fact operates to cause harm to him, but which is nevertheless reasonable in the agony of the moment, does not amount to contributory negligence. 80. Knowledge by the claimant of an existing danger or of the defendant's negligence may be an important element in determining whether or not he has been guilty of contributory negligence. The question is not whether the claimant realised the danger but whether the facts which he knew would have caused a reasonable person in his position to realise the danger. It is a question of fact in each case whether the knowledge of the claimant in the particular circumstances made it so unreasonable for him to do what he did as to constitute contributory negligence On the one hand, the claimant must act reasonably with regard to the dangers which he knows, or ought to know, exist, and to any regulations or other precautions imposed for the purpose of avoiding them. On the other hand, he is entitled to rely on reasonable care and proper precautions being taken 57. The Second Defendant submitted that if the Court finds that the Claimant was only partially responsible for the incident, he should be held 50 % liable for same. 58. The Claimant submitted that there was no evidence that he was reckless or that he in any way caused or contributed to the injury he received. That even if the Court was persuaded to make a finding of contributory negligence, the percentage should be small since it would amount to a punishment against a zealous employee intent on advancing the Second Defendant s business. 19

20 Findings 59. It ought to have been reasonably foreseeable to the Claimant that his attempt to turn the hook may have resulted in harm to his person. This is particularly so since the Claimant appears on the evidence to have been somewhat experienced at his task. In fact it would have been his experience which would have given him the bravado to conclude that he could have resolved the issue by taking the matter into his own hands. In the given circumstance, the prudent thing to do would have been to stop, notify the crane operator of the difficulty and remove himself from danger. In the court s view therefore he would have contributed to his own injury by his own negligence. 60. The percentage of his contribution must however be reckoned with regard to what would have been foreseeable should he have stopped and removed himself from the danger. In such a case it is more likely than not that he would have suffered no harm at all. His contribution to his injury is therefore substantial in the court s view. In the premises the court finds that a contribution of forty percent (40%) is appropriate. Issue 4 Damages The evidence 61. At the time of the incident, the Claimant was twenty-nine years of age and is currently thirty-four years of age. According to the evidence of the Claimant, at the time of the injury, his finger was bleeding profusely and he was in excruciating pain. The medical reports disclose that the Claimant suffered a crush injury to his right middle finger resulting in the loss of extensor tendon, the skin being sheared off and his bone ligament being exposed. This was treated conservatively to achieve skin healing and cover of the exposed tendon and bone. On the 26 th March, 2012, the Claimant underwent surgery to repair the injury to 20

21 his finger. Thereafter, the Claimant developed extreme stiffness at the metacarpophalangeal, proximal interphalangeal and distal interphalangeal joints preventing satisfactory return of function. On the 24 th October, 2012, the Claimant was referred to the department of plastic surgery. The Claimant testified that he was unable to perform any type of work from the date of his injury until the 7 th March, 2013, when it was medically determined by Dr. Persad that he could do some type of work. 62. When no further improvement could be done on the Claimant s finger, he underwent surgery on the 5 th May, 2014, to amputate same. After the amputation, the Claimant s wound healed and the range of motion and function of his hand improved. His permanent partial disability was assessed at 12% as at the 8 th July, The Claimant testified that it took about six (6) months to adjust to not having his finger and to be able to have some use of his hand. He was unable to do any type of work during this period. The Claimant currently experiences a sharp, shocking pain on contact in the palm, on the outside region of his right hand (along the areas where the amputated finger would be connected), and going along towards the wrist. 64. According to the evidence of the Claimant, he was employed as a Welder prior to working as a Stir Station Operator. As a result of his injury he can no longer be employed in the welding trade since he is unable to hold the welding equipment and wear the necessary protective gloves. The Claimant testified that since his injury, he has only been able to source unreliable and odd jobs with the result being an unreliable source of income. The Claimant is capable of doing light tasks and mainly supervisory work. The Claimant further testified that since the injury he cannot lead the active lifestyle he enjoyed prior to same. That the injury has prevented him from playing cricket which is his hobby and enjoying quality time with his children. General Damages 21

22 65. The relevant principles for assessing general damages, in a personal injuries claim were set by Wooding CJ in Cornilliac v. St. Louis (1966) 7 WIR 491. They are as follows; i. the nature and extent of the injuries sustained; ii. the nature and gravity of the resulting physical disability; iii. the pain and suffering which had to be endured; iv. the loss of amenities suffered; and v. the extent to which, consequentially, pecuniary prospects have been materially affected. Damages for Pain and Suffering, and Loss of Amenities 66. The Claimant submitted that an appropriate range for his injuries is between $50, and $75, That the sum of $75, is an appropriate award under this head of damages. In arriving at this figure, the Claimant relied on the following authorities; i. Rattan v Carlisle Tire and Rubber (Free Zone) Ltd H.C. 1029/ In this case the plaintiff was twenty-eight years and suffered a crushed left hand with the loss of the distal two digits of all fingers of the left hand. The Plaintiff underwent four operations and was in severe pain for a year. The Plaintiff also suffered with posttraumatic stress disorder, which included insomnia, irritability, distressing flashback, anxiety, forgetfulness and lack of concentration. The plaintiff was declared medically unfit to work. In June, 2003 Master Sobion, awarded $90, for general damages exclusive of pecuniary prospects. This award was adjusted to December, 2010 to $159, ii. Lovell, Carol v Tye Manufacturing Company Limited HCA 1293 of In this case the plaintiff was a female whose age was not disclosed. The injuries suffered were an injured left hand and amputation of her left index, middle and ring fingers. She underwent four operations and experienced a lot of pain. She was unable to continue to perform her duties due to the noise level and she was diagnosed as suffering with post-traumatic stress syndrome. Master Paray-Durity, awarded 22

23 iii. $90, for non-economic loss. The award was adjusted to December, 2010 to $154, Narine, Devanand v Boodram, Errol trading as Price Right Furniture Factory CV In this case 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 removed. Justice Dean-Amorer awarded $115, in general damages. 67. The Second Defendant submitted that having regard to Devanand Narine supra, the sum of $75,000 for the loss of one finger on the Claimant s dominant hand which resulted in 12% permanent partial disability is too high. The Second Defendant further submitted that a reasonable award for loss of one finger would range between $40,000 and $50,000. For those figures, the Second Defendant relied on the case of Nickel Audhan v the Attorney General CV , wherein the Claimant was awarded $20,000 for the loss of the distal end of a finger. 68. Moreover, the Second Defendant submitted that the court should reject the Claimant s evidence that his injury impacted on his ability to spend time with his children since he has not established same. 69. In the Court s view, the injuries sustained by the Claimant (as set out above) appear to be sufficiently severe so as to bring it within the scope of an award on the higher end. Further, the Court accepted the Claimant s evidence that his injury affected his ability to play sports and interact with his children since it can be reasonably inferred from nature of his injuries that same would have affected his life in that manner, especially given the fact that his right hand was his dominant hand. The court will therefore award the sum of $75, under this head. Loss of Future Earnings 23

24 70. The Claimant submitted that his injury has handicapped him in the labour market but has not rendered him completely unemployable. The Claimant claimed the sum of $50,000 under this head of damages and further claimed that same be paid as a lump sum. The Claimant referred the Court to the following cases; i. Narine v Errol Boodram supra wherein Dean-Amorer J guided by the learning in Cole v Bulou and Another as well as Keith Morris v Point Lisa Steel Products awarded $50, for loss of future earning power. ii. Lovell v Tye Manufacturing Company Limited supra wherein Master Paray- Durity made an award of $50,000 for loss of further earning. In arriving at that figure, Master Paray-Durity had regard to Re: Joyce and Yeomans AER 21 wherein the head note stated that In a case where in regard to damages for loss of earning capacity, there were many imponderables and the assessment of damages was necessarily a matter of guess work, it was inappropriate to apply a multiplier and multiplicand and make a mathematical calculation and the correct approach was to select a global figure which seemed to represent fair compensation. Master Paray-Durity further stated that this sum attracted no interest. 71. The Second Defendant accepted that an award of $50,000 under this head of damages is consistent with the conventional sum normally awarded. As such, the Second Defendant had no objection to the sum of $50,000 being used and the court will therefore award same. 72. The total award for general damages is therefore $125, ($75,000 + $50,000). Special damages 73. Special damages must be specifically pleaded and proved as established in Grant v Motilal Moonan Ltd (1988) 43 WIR 372 per Bernard CJ and reaffirmed in Rampersad v Willies Ice Cream Ltd C.A. 20/2002. The burden is, therefore, on the Claimant to prove his losses. Loss of past Earnings 24