REPUBLIC OF TRINIDAD AND TOBAGO

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO NO. S 1305 of 2003 IN THE HIGH COURT OF JUSTICE BETWEEN MICKY RANSOME Plaintiff AND DAMUS LIMITED Defendant Before: Mr. David Alexander (Former Ag. Judge) Appearances: Mr. Winston Seenath for the Plaintiff; Mr. Garnet Mugalsingh for the Defendant; REASONS 1. In this action, the Plaintiff Micky Ransome claims against the Defendant Damus Limited damages for personal injuries and consequential loss suffered by him as a result of the negligence of the Defendant s servant and / or agent in the driving and / or operating a mechanical crane owned by the Defendant at Titan Methanol Site on Road No. 2 between Reformer and Piperjack No. 1, Point Lisas, on the 11 th August, The Defendant denies that its servant / or agent was negligent and / or that the Plaintiff was injured as alleged. Further, the Defendant alleges that if the Plaintiff was so injured which is denied, such injury was caused and / or contributed to by the Plaintiff s own negligence. 1

2 3. The issues to be determined are therefore:- (a) Whether or not the Plaintiff was injured as alleged; (b) If so, whether or not such injuries were caused by the negligence of the Defendant s servant or agent; (c) Whether or not the said injuries were caused and / or contributed to by the negligence of the Plaintiff. 4. The Plaintiff alone testified at the trial, the Defendant having called no witnesses. 5. In his evidence-in-chief contained in his witness statement, the Plaintiff states that in November, 1988, he was employed as a Fabricator by S & S Metal Trading and General Contractors Limited at the Titan Methanol Project at Point Lisas. In March, 1999, he was promoted to the position of Foreman / Fabricator, as such, he supervised the work of approximately 20 men who worked under him. He himself took instructions from Mr. Stefan Maurer, a Superintendent of Voest Alpine MCE and Mr. Addison Suite. 6. At approximately 2:30pm on the 11 th August, 1999, the Plaintiff was under Pipe Rack 3 supervising workers where a platform was being installed. At that time, he was wearing safety clothing, namely: (a) A pair of jeans; (b) A khaki jacket above his shirt; (c) A safety helmet (hard hat); 2

3 (d) A pair of safety glasses with low-cut rim; (e) A pair of safety steel tipped boots; (f) A pair of safety gloves. 7. In the immediate area where he was working, there were several operations being carried out simultaneously which caused very loud noises and / or deafeningly loud noises. These operations which were being performed with different machinery / equipment and / or tools were described by the Plaintiff as: (i) the fabrication of steel ladders; (ii) machinery was in operation using welding plants which were very noisy; (iii) there were air compressors in use which were very noisy; (iv) workmen were pounding iron which was very noisy; (v) loud noises were created by grinding machines and sanders; (vi) noise was created by the operation of the crane; (vii) noisy electrical saws were in use; (ix) noisy magnetic drills were in use; (x) 6 impact guns which made loud noises were in use; (xi) workers were shouting loudly to one another regarding the work to be done; (xii) the Plaintiff was supervising approximately 12 workers who were working with different tools; 3

4 (xiii) there were between 40 to 50 workers employed by different contractors at the site working with different tools; (xiv) there were several cement trucks pouring concrete. 8. The Defendant s crane height from its base to its boom is approximately 175 feet while the crane boom extension is approximately 150 feet. Whilst under pipe rack 3, the Plaintiff was struck by a piece of flying metal object which caused injury to his right eye, nose-bridge and surrounding areas. When he was struck, the Plaintiff was approximately feet from the radius of the Defendant s crane and approximately 200 feet from the crane itself. 9. The Plaintiff s evidence is that he sustained the said injuries as a result of the negligence of the Defendant s crane operator who in the process of lifting a pipe-spool, allowed it to slip out of the rack. As a result, the jib hit the installed flare line, causing the boom to buckle and the counter-weights fell off the crane causing the boom to break and fall to the ground. In the process, a piece of metal from the cane either broke off and / or flew off and struck the Plaintiff on the right side of his nose-bridge. 10. The Defendant called no witnesses to contradict the Plaintiff s evidence, however, counsel for the Defendant attempted to discredit the Plaintiff in cross-examination without success. Counsel for the Defendant referred the Plaintiff to pg. 50 of the Accident / Incident Investigation Report ( the report ) which appears at pgs of the Plaintiff s unagreed bundle of documents. Before examining counsel s questions and the Plaintiff s answers on the report, I think it useful to reproduce most of what is contained on page 50 of the report. It begins with the heading Description of Incident and states: 4

5 A crane and some plant material were damaged while lifting a pipe spool. The pipe spool is comprised of 36 pipe at 12, 408 mm long and one 36 elbow, both with 0.5 wall thickness. Before the actual lift was done, the rigging foreman conducted a dummy run. The dummy run consisted of lifting the actual load a few inches off the ground and testing the operation of the cable lifting device. The dummy run was completed successfully. The initial lift was with the crane cable. The boom was locked with the brake on. The load was lifted and swung near the final place in the pipe rack. Part of the load was resting on the pipe rack above the flare line. The next step was to connect some chain falls to the spool for final adjustments. In order to use the chain falls, the foreman requested an additional lift using the crane boom. The operator released the brake on the crane boom and engaged the clutch for lifting the boom. The boom started to fall slowly rather than go up. The operator added more power. The boom continued to fall. The horn alarm was sounded. The pipe spool slipped out of the rack. The crane boom continued to fall even after the load was removed. The jib hit the installed flare line. After the jib hit the flare line, the boom buckled and the crane tipped towards the load. When the crane recoiled back into position, the counter weights fell off the crane. The boom broke and fell to the ground sliding back toward the crane. The operator exited the cab just before part of the lifting cable termination block located above fell on the crane and damaged the cab. 5

6 Causative agent most directly related to the incident. An error was made calculating the allowable load during the rigging phase. Additional data requested. At the time of the failure, the weight of the pipe spool attached to the hook was 9, 135 pounds. The radius of the boom was 156 feet. The length of the main boom is 200 feet and the length of the jib is 30 feet. At the time of the lift, Damus did not have a jib load chart on site. We used the main boom chart to determine the tipping load capability of the crane with a jib. 11. The report s findings indicate that on the afternoon in question the crane was operated in error and corroborates the Plaintiff s testimony. There was no evidence adduced to the contrary. Counsel for the Defendant concentrated his cross-examination as regards the report on the horn alarm. The questions and answers were as follows:- Q. Is it true the horn alarm was sounded? A. The document says so. Q. There is a horn alarm? A. Yes. Q. There is a crane horn? A. Yes. Q. The horn alarm is louder? 6

7 A. The crane horn is like a truck horn and the horn alarm is like a wailing siren. Q. (Counsel refers to paragraph 3 page 3 of the Plaintiff s witness statement.) Did you see this happen? A. No. Q. You said that even if the horn sounded you would not have been able to hear it in any case? A. True. 12. In its amended defence, the Defendant alleges at paragraph 5 that its servants and / or agents are completely unaware of any injury suffered by the Plaintiff and that its investigations and that conducted by its insurance company did not reveal any injury suffered by the Plaintiff nor did the Defendant receive notice of any such injury until service of the writ of summons filed herein. Then at paragraph 8 of the defence, the Defendant alleges contributory negligence by the Plaintiff, the particulars whereof are: (a) The Plaintiff went through a safety orientation programme prior to being employed on the construction site and failed to heed the crane s horn alarm; (b) Failing to take steps for his safety between the time the horn alarm went off and the time when the crane boom fell to the ground; (c) Failing to take steps for his own personal safety; (d) Failing to deep within his workplace provided for him by his employers; (e) Entering and / or remaining upon an area he was warned not to enter and / or remain upon. 7

8 13. The Plaintiff s evidence both in chief and in cross-examination neutralized the defence of contributory negligence since there was no evidence to support the defendant s allegations of contributory negligence. As to the defendant s allegation in its defence of being unaware of the Plaintiff s injury, that was neither put nor suggested to the Plaintiff in cross-examination. Here again, the Defendant has failed. In fact, counsel for the Defendant specifically asked the Plaintiff in cross-examination whether a Dr. Adam had assessed his permanent partial disability at 25% for his said injuries. The Plaintiff s response was yes. The Plaintiff was asked further whether his workmen s compensation was assessed on 25% partial disability. His response was if you have the document I will believe it. This line of questioning in my view suggests that the Defendant must have been aware of and did accept that the Plaintiff was injured as alleged, since workmen s compensation only arises upon the injury of a workman by accident during the course of his employment: Section 4(1) Workmen s Compensation Act Chap. 88: In his written submissions, counsel for the defendant submitted that, the following are matters of undeniable fact:- (a) The Plaintiff attended a safety orientation programme where he received training as to what he should do when he hears a horn alarm sound and to wear his protective glasses. (b) The Plaintiff s location was as instructed by Mr. Stephan Maurer of Voest Alpine MCE, a position dangerously close to the Defendant s crane. (c) The horn alarm sounded. (d) The Plaintiff took no evasive action. (e) The Plaintiff was not wearing his safety glasses. 8

9 (f) The Plaintiff was not supervising workers at the time he received the injury as alleged. Counsel s conclusions that the above are matters of undeniable fact is the basis for his contention that the plea of volenti non fit injuria is applicable to this case and is a full defence to the Plaintiff s claim. Counsel submitted that the Plaintiff having deliberately failed to wear his safety glasses and taken evasive action when the horn alarm sounded (although so trained at the Safety Orientation Programme) which would have avoided the risk of injury to him amounted to 100% contributory negligence or volens. 15. I disagree with counsel for the Defendant. In the first place, there is no evidence that the Plaintiff s location was dangerously close to the Defendant s crane. Secondly, even if the horn alarm was sounded, the Plaintiff s evidence which I accept, was that because of the loud noises at the time, he did not hear it. In those circumstances, his failure to take evasive action is excusable. Thirdly, there is no evidence that the Plaintiff was not wearing his safety glasses and fifthly, there is no evidence that he was not supervising workers at the time he received the alleged injuries. 16. In support of the plea of volenti non fit injuria, counsel for the Defendant cited several authorities. These authorities in my view do not assist the Defendant, since they all deal with accidents which the Plaintiff himself caused. In this action, this is not the case. In Norris v William Moss and Sons Ltd.[1984], A11 E R 324, Somervell L.J at 326 E concluded that the claim failed on the point of causation. On the learned judge s findings of fact it seemed plain that the sole cause of the accident was the method which the Plaintiff adopted in carrying out the work. In Hayden v Mersey Docks and Harbour Borard [1956] 2 Lloyd s List Law Reports 497, The Court held the Plaintiff negligent 9

10 because it should have been obvious that what he was doing was a dangerous act. The judge thought the Plaintiff should have known himself that it was not a proper place where he should work and thought allegations of negligence on the part of the Plaintiff were made out. Parkinson v Lyle Shipping Company Ltd [1964] 2 Lloyd s List Law Reports 79 is in the same vein. Hinchcliffe J at pg. 83 observed that merely because the Plaintiff has had an accident at work he is not entitled to recover damages from his employers; he can only recover damages if he can show that the accident was caused in whole or in part by the negligence of the Defendants. Imperial Chemical Industries, Ltd v Shatwell[1964] 2 A11.E.R. 999 was the last authority cited by counsel for the Defendat on this point, wherein the House of Lords allowed an appeal having found the defence of volenti non fit injuria applicable to the case. 17. The above authorities emphasize that liablility in negligence is directly linked to causation. This point was well appreciated by counsel for the Plaintiff. In his submissions he stated that the effective cause of the injury was the negligence of the Defendant, while causation is crucial in a plea of contributory negligence. The evidence in this case is clear, the cause of the accident and resultant injury to the Plaintiff was the negligence of those responsible for operating the Defendant s crane. The Defendant did not have a jib load chart on site and an error was made calculating the allowable load during the rigging phase. I do not think that there is any merit in the argument of counsel for the Defendant that causation is not an issue in this action and foreseeability is what is being disputed. The operator of the Defendant s crane owed a duty of care to all persons at the work site, and it was reasonably foreseeable that a breach of that duty could result in injury to those persons. 10

11 18. I find that the Plaintiff was injured as alleged, that his injuries were caused by the Defendant s servant or agent and that there was no contributory negligence on the part of the Plaintiff. In the circumstances, I give judgment for the Plaintiff. Damages are to be assessed by a master in chambers on a date to be fixed. Costas are to be paid by the Defendant to the Plaintiff certified fit for advocate attorney to be taxed in default of agreement. February 18, 2010 DAVID ALEXANDER Former Judge (Ag.) 11