Chandler v National Flour Mills
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 08 April 2009 |
| Neutral Citation | TT 2009 HC 70 |
| Docket Number | H.C.A. 393 of 1998 |
| Court | High Court (Trinidad and Tobago) |
| Date | 08 April 2009 |
High Court
Rampersad, J.
H.C.A. 393 of 1998
Anthony Manwah for the plaintiff.
Christlyn Moore instructed by Jillian Sookram for the defendant.
Tort - Employer's liability — Breach of common law duty of care — Failure of dust masks — Damage to plaintiff's lungs — Plaintiff suffering injuries due to inhalation of dust — Finding that defendant was not taking adequate precautions to protect employees — Damages assessed and awarded to plaintiff.
The plaintiff alleges injury arising out off the inhalation of dust whilst he worked in the defendant's flour mill as a packer.
This action was commenced on 19th February 1998 by the plaintiff against the defendant. The indorsement of claim refers to a claim by the plaintiff against the defendant for damages for personal injury caused by the plaintiff's negligence and/or breach of duty in failing to provide a safe system of working and/or safe work premises and/or safe working equipment and/or adequate safety and protective equipment for the defendant.
The statement of claim, which was filed on 25th August 1998 described the defendant as flour millers carrying on their business at their flour mills. It went on to state that between 1985 and on or about February 1997, the plaintiff was employed by the defendant as a flour packer III at the said flour mill. The plaintiff claims that he was engaged in filling flour into bags, cleaning tank's storing flour and cleaning flour filters at the material time. He claims that in the course of carrying out the said work he was exposed to a considerable concentration of flour dust and to inhaling such dust and as a consequence of inhaling such flour dust he sustained severe injuries and has suffered loss and damage. Those injuries were particularised as follows:
Irritation of bronchial tubes
Dry cough
Breathlessness and teams on both sides of the chest
Deteriorating lung function — chronic bronchitis.
He claims at paragraph 4 that the said injuries and loss and damage were occasioned to him by reason of breaches on the part of the defendant in their statutory duties. The particulars of the breaches were set out at paragraphs 4(a) and (b) and were as follows:
“(a) In connection with the said processes carried on at the said factory, there was given off dust of such a character and to such an extent as to be likely to be injurious to the persons, including the plaintiff, employed there and/or flour dust in substantial quantities, but the defendants did not take any or any practical measures to protect the persons, including the plaintiff, employed in the said factory against inhalation of the said dust or to prevent its accumulating in the work rooms of the said factory.
(b) The defendants did not provide or maintain any exhaust appliances so as to prevent the said dust entering the air.”
At paragraph 5 of the statement of claim, the plaintiff claimed further, or in the alternative, that the said injuries and loss damage were caused by reason of the defendant's negligence and/or breach of duty. The particulars of this negligence and/or breach of duty are set out at paragraphs (a) to (f) of paragraph 5 of the statement of claim and are as follows:
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(a) Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged upon the said work.
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(b) Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.
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(c) Failing to provide any fans or suction plant or other suitable or adequate plant or appliances to enable the said work to be carried out safely.
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(d) Failing to take any or any practicable measures to protect the persons working in the said factory, including the plaintiff, against inhalation of the said dust or to prevent its accumulating in the work rooms in the said factory.
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(e) Causing or permitting the plaintiff to be exposed to substantial quantities of the said dust and to inhalation of the same when they knew or ought to have known that such exposure and inhalation will only likely to be injurious or offensive to him.
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(f) In the premises, failing to provide or maintain any or any proper or safe system of work, and/or work premises and/or equipment at the said factory
The plaintiff indicated that the particulars mentioned with the best that he could have given until after discovery and/or interrogatories. It is to be noted that there was no amendment to the statement of claim nor were there any evidence of any interrogatories.
At paragraph 1 of the defence the defendant admitted being flour millers carrying on their business at their flour mills. They stated that the plaintiff was only appointed a flour packer III on 1 January 1991 and that from around September 1986 until the 1st January 1991, he was employed as a casual worker to carry out, amongst other things the duties normally carried out by a flour packer III. He then became permanent until the 22 October 1997 when his employment was terminated. On the defence, the defendant denied that the plaintiff was exposed to a considerable concentration of flour dust and to inhaling such dust as a result of which he sustained injury loss and damage. The particulars set out in paragraph 4 and paragraph 5 of the statement of claim were denied and instead, the defendant alleged on its defence that it did take practical measures to protect its employees and referred to various manuals, plans, codes of practice and policies, etc at paragraph 6(a) of its defence upon which it intended to rely at the trial. The defendant in its defence also referred to having installed an aspiration system and a sweeper on the filling system of the 45 kg packer where the plaintiff was assigned in order to prevent flour dust from entering the area to work rooms in the said factory. As a result, the defendant denies any breach of statutory duty on its part. They also denied any negligence. They went on to claim at paragraph 10 that the plaintiff caused his injury loss and damage either wholly or in part by his own negligence and the particulars thereof were as follows:
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(a) Failing to wear Occupational Safety and Health Association (OSHA) approved masks provided by the defendant to the plaintiff for his use;
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(b) Failing and/or refusing regularly to heed and/or carry out the procedures and instructions set out in the manuals referred to in paragraph 6(a) of the defence;
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(c) Failing to take any or any adequate measures for his own protection safety and health to prevent the development of any such injuries as alleged in the statement of claim;
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(d) If, which is not admitted, the plaintiff suffered the injuries alleged in paragraph 3 of the statement of claim he failed to take care of his own safety in that he failed or failed regularly to use the OSHA approved masks which had been provided to him for his use while engaged in the course of his employment with the defendant;
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(e) Failing to take care of his own health in that prior to taking up employment in or about September 1986, the defendant smoked about 2-5 cigarettes per day. In particular, it is averred that subsequent to taking up employment with the defendant, the plaintiff continued to smoke several cigarettes per day,.
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(f) Failing to have sufficient regard for his own health and safety.”
No reply was ever served by the plaintiff.
Having regard to the pleadings, the court finds that the following issues arise for determination on the pleadings:
- Did the plaintiff suffer the injuries pleaded at paragraph 3 of his statement of claim? 9.2. Did the dust from the defendant's premises cause the damage to the plaintiff's lungs? 9.3. What were the statutory duties of the defendant? 9.4. Did the injury to the plaintiff arise as a result of a breach of the defendant's statutory duties as pleaded at paragraph 4 of the statement of claim? 9.5. Were the injuries loss and damage caused by the defendant's negligence and/or breach of duty as pleaded at paragraph 5 of the statement of claim? 9.6. Did the plaintiff contribute to his injuries loss and damage as pleaded at paragraph 10 of the defence?
THE PLAINTIFF:
- The plaintiff filed a witness statement in these proceedings on the 15th May 2007 which was used as his examination in chief in these proceedings. He insisted in his witness statement that he was employed as a flour packer III since 1985 and he gave his duties as filling flour into bags, cleaning tanks storing flour and cleaning flour filters. The areas where the flour was bagged had a small extractor fan but most of the times this was not working. The only time that he said that he used a mask was when he was cleaning the tanks. He said that the mask still allowed him to inhale flour dust. When cleaning the filters, there was always dust in this area. If there were extractor fans these did not remove this dust. He said he complained several times to the company about this dust but nothing was done. As a result, he said he was exposed to a considerable concentration of flour dust due to the absence of any exhaust appliances at the company to remove the said dust from the work areas. This evidence was in contradiction to the defendant's allegations at paragraph 6 [b] of the defence that an aspiration system and a sweeper on the filling system was installed. 10.2. Further, the plaintiff said that as a consequence of inhaling flour dust he sustained severe injuries and he said that his injuries consisted of dry cough, irritation of his bronchial tubes, breathlessness, pains on both sides of his chest and deteriorating lung function — chronic bronchitis. Clearly, the plaintiff is not in a position to say that he sustained severe injuries as a consequence of inhaling flour dust. That is a...
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