Dwayne Comma v Oldendorff Carriers

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Madam Justice Carol Gobin
• Judgment Date: 31 March 2023
• Neutral Citation: TT 2023 HC 94
• Docket Number: Claim No. CV2019-00249

Between

Dwayne Comma

Claimant

and

Oldendorff Carriers

Trinidad and Tobago Limited

Defendant

Before

The Honourable Madam Justice Carol Gobin

Claim No. CV2019-00249

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr Farai Hove Masaisai instructed by Mrs Jennifer Farrah-Tull Attorneys at law for the Claimant

Mr Keston McQuilkin instructed by Mr Ramnarine Mungroo Attorneys at law for the Defendant

DECISION

1 This is a claim for damages by an employee against his employer for breach of the duty of care to provide a safe system of work.

2 The Claimant Mr Dwayne Comma (hereinafter referred to as the “Claimant”) was employed permanently since 2012 as a Payload Operator with Oldendorff Carrier Trinidad and Tobago (hereinafter referred to as “the Defendant”). His work week schedule was two days from 6am to 6pm, the morning shift, then two consecutive days from 6pm to 6am, the evening shift, with the next two days off. The practice was not to have a payload operator work more than three hours at a time. After that period he would be relieved for two days.

3 The Claimant's case is that on the 17 February, 2018 he reported for work for his 6:00 am to 6:00 pm shift on the Pontoon Marcus. The Claimant made visual inspections of the Payloader L18#3–1 (hereinafter referred to as the “Payloader”) for external damages and leaks. After coming to the conclusion that the Payloader seemed to be in good condition he proceeded to enter the machine, fastened his seatbelt and began to operate building cargo heaps for the crane. About twenty (20) minutes after he had been operating the Payloader, he began experiencing discomfort in his back. He drove the Payloader to a safe area within the hatch where he tried adjusting the seat to a comfortable position. When he pulled the lever located on the left side of the seat, it did not move to the reclining position.

4 The Claimant informed his banksman at the time, Mr Leron Jacob, as well as his supervisor that the seat was very uncomfortable because he could not adjust it, but he was instructed to continue operating the Payloader from 6:40 am to 10:00 am and then again from 1:00 pm to 3:00 pm. After his shift, the Claimant made a note in the Payloader log book about the seat and he made a verbal report to a Mr Aswal Khan Supervisor, and the Senior Mechanic on duty.

5 He subsequently reported for work on the 25 of February 2018 for his 6:00 am to 6:00 pm shift. He did his inspections of the Payloader and proceeded to the cargo hold and began operating. He experienced the same discomfort and burning pain in his back from the seat not being unable to adjust to the recline position. He made a note again in the logbook and made a verbal report to his supervisor, Jamil Redhead. Even as he was heading to the car park at the end of the shift he continued to feel pain in his back and neck. He continued experiencing discomfort for the next two days, which were his off days.

6 On the 28 February, when he reported for work for the 6:00 am to 6:00pm shift at Poontoon Marcus, he was not assigned Payloader duties but was required to assist his banksman Mr Daniel Byer to remove the seats of the Payloader for air condition inspection. This involved some physical pulling. He described it as a strenuous task. In the course of removing the seats for air condition inspection, it was discovered by the Claimant and Mr Byer that the Payloader seat was still dysfunctional after visual inspection even after the two reports that had been made on the 17 and 25 of February, 2018. A report was made once again to Mr Aswald Khan. At the end of the shift as he was changing his work coveralls he began to experience a continuous sharp pain on the side of his back in the area of his scapula. Around 5:30 pm that day the Claimant continued to experience the continuous sharp pain on the left side of his back in the area of his scapula. It became so severe, it resulting in him having to go home. The pain increased to such an extent that he believed he required medical attention and he was taken to Westshore Medical Emergency for assessment. It was determined that he suffered from severe muscle spasm to the neck and spine resulting in his chest and the area surrounding his heart having several abnormalities.

7 On the 16 day of April, 2018, the Claimant visited Dr Rasheed Adams to review his M.R.I reports. He was informed that he had a neck sprain with cervical disc C45 disc changes, disc narrowing and mild protrusion and low back sprain with disc bulges from L23-L5S1 with narrow foramina and would therefore require physiotherapy. The Claimant was referred to the Port-of Spain General Hospital to make arrangements for physiotherapy.

8 The Claimant claims that the injuries he sustained were as a direct cause of the Defendant's negligence and/or breach of duty of care in that they failed to provide a safe work environment; a safe system of work; failed to ensure that the Payloader L18 #3–1 was safe for operation by employees; failed to rectify the faulty lever on the seat of Payloader L18#3–1 after being made aware by the Claimant thereby exposing the claimant to a risk of damage or injury of which they knew or ought to have known and failing to have any risk assessment done.

9 At the trial the Claimant gave evidence along with co-workers Messrs Darnell Byer, Mathis Andrews, and expert Dr Rasheed Adams was called to prove his personal injuries. The particulars of injuries were identified as:

– Severe Muscles Spasm to the neck and spine;

– Abnormalities surrounding the chest and heart;

– Neck sprain with cervical disc C45 disc changes;

– Disc narrowing and mild protrusion and low back sprain with disc bulges from L23-L5S1 with narrow foramina that would require physiotherapy;

– Paravertebral muscle spasm secondary to aggravating pre-existing spinal condition;

– Diminished neck and low back mobility;

– Neck and low back sprain on spondylosis;

– Continuation of prescribed treatment;

Defendant's case

10 It is the Defendant's case that the inspection conducted on the Payloader by the Claimant on 17 February, 2018 was conducted in accordance with the Company's daily inspection procedure of the Payloader. This inspection included an inspection of the seat area and was required to be conducted before the Claimant or any other Payloader Operator assumed control/operation of the vessel.

11 They claimed that they had no record of the Claimant identifying any issues with the seat after his inspection on the first day. The Defendant did admit that their records reflect that on the 17 February 2018 the Claimant at approximately 11:00 hrs informed the Defendant's Operation Supervisor Jamil Redhead that his back was hurting and that he thought it was caused by a defective seat in the Payloader. They deny however ever receiving an oral report from the Claimant that the Payloader Seat was not reclining or allegedly caused injury to the Claimant.

12 The Defendant contended that their records reflected that the report to the Defendant's Operation Supervisor Jamil Redhead by the Claimant was made on 17 February 2018. They further claimed that there was no report in the logbook on 25 February 2018 that the Payloader Seat was not reclining or allegedly caused injury to the Claimant. The Defendants claim that from its records Mr Aswal Khan the Defendant's Payroll Supervisor who was on duty between 16 to 23 February 2018 never received an oral report from the Claimant.

13 The Defendants claim that it did all that was reasonably practicable to ensure that the Claimant had a safe place of work/and or a safe system of work and that the negligence which the Claimant claimed was wholly caused and/or contributed by the Claimant. They claimed that they:

• a. Conducted daily inspections of the Payloader;

• b. Designed and implemented a Maintenance Plan for the Payloader that provided for maintenance to be conducted either every shift, after each Operation, daily, monthly and yearly;

• c. Employed a permanent basis crew whose responsibility required them to respond to any safety violations and/or issues with the Payloader;

• d. That the crew remained at all times fully equipped to respond to any safety violations and/or issues with the Payloader;

• e. Trained the Payloader Operations in or around May, 2016 which included undertaking all pre-start, running checks and shut down procedures;

• f. Designed and implemented a safe system of work that;

  • i. Required the Claimant to work no more than four (4) hour intervals;

  • ii. Did not require the Claimant to remain seated in the Payloader and/or to operate the Payloader for any continuous periods or for the entirety of his shift;

• g. Designed and implemented the Payloader Operations Responsibilities which applied in conjunction with the Operation and Maintenance Manual and required the Claimant to follow at all times. That the Payloader Operations Responsibilities provides as follows:

• e) Adjust the seat so that there is full pedal travel while the operator's back is against the back of the seat. Failing to have a full seat position will prevent the engine to start.”

14 The Defendant relied on the evidence led from Messrs. Francis Bridgewater, Aswal Khan, Shawn Barrow as well as Dr Kerry Benjamin.

15 The Defendant accepted that there was a duty of care to provide a safe place of work/and or a system of work. The issues I had to decide were whether the reclining function of the Payloader seat was defective and whether the defect caused the Claimant's back injuries, neck strain, lower back strain, muscular spasm and loss of lordosis.

16 Before I indicate my findings on these issues I must address the issue of the adequacy of the pleadings as to causation. This was a matter which was raised by me in the course of the management of the case as well as at the trial. Since that time I have more closely considered the pleading...