Kirk Reece v Apan Construction Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 31 March 2020 |
| Neutral Citation | TT 2020 HC 97 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | CV2018-00420 |
| Date | 31 March 2020 |
IN THE HIGH COURT OF JUSTICE
the Honourable Mr. Justice R. Rahim
CV2018-00420
Claimant: Mr. R. Simon
First Defendant: Mr. J. Junkere
Second Defendant: Mr. R. Ajodhia.
The claimant seeks damages against the defendants for personal injuries that he allegedly suffered during the course of his employment on February 8, 2017. He claimed in his pleaded case that while driving a truck registration TBX 2179 on the island of Carrera (at the second defendant's Island Facility, hereinafter called “the premises”), the brakes failed him upon descending a hill causing him to take evasive action to preserve his life by jumping out of the cab. In the process he sustained injury to his right leg and hip. The truck is owned and maintained by the first defendant. The case as pleaded also relies on the doctrine of res ipsa loquitur.
He therefore pleaded the following;
Particulars of Negligence:
1. The Defendants:
(i) Failed to take any or any adequate precautions for the safety of the Claimant while he was on duty carrying out the works of the First Named Defendant;
(ii) Exposed the Claimant to a risk of damage or injury which was known or ought to have been known by the Defendants;
(iii) Caused or permitted the Claimant to carry out his duties while in an unsafe environment and in the manner when it was known or ought to have been known that it was not safe or was likely to have caused injury to the Claimant;
(iv) Failed to provide, direct and supervise a safe system and manner of doing the work;
(v) Failed to provide direct and/or proper supervision and/or train the Claimant in the execution of a safe manner of work;
(vi) Failed to take any or any adequate or sufficient measures whether by way of examination, inspection, or otherwise to ascertain whether the environment was in a fit and safe state for use by the Claimant to carry out his duties;
(vii) Caused or permitted the Claimant to carry out his duties and to use the premises in the manner as the Claimant did when the Defendants knew or ought to have known it was unsafe and dangerous for him to do so;
(viii) The Claimant will rely on the Doctrine of res ipsa loquitur.
In addition to the claim in negligence, the claimant also sought relief for breach of contract against the first defendant but has not pleaded particulars thereof save and except that failure to provide a safe place and system of work is pleaded under the head of negligence. Neither did the submissions treat with the issue as a breach of contract issue. It appears that this aspect of the claim was therefore not pursued.
The first defendant acknowledged that it owed the claimant a general duty of care, but it disputes that it breached this duty. It did all that was reasonably expected of an employer and further averred that it was the claimant who breached the provisions the Operational Safety and Health Act Chap. 88:08 (“the Act”). The first defendant denied that it instructed the claimant to drive the truck which was alleged to have been malfunctioning on that particular date and avers that:
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i. The claimant ought not to have driven the truck if he was aware that it was not safe to drive the truck;
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ii. The claimant caused his own injury by accepting the risk of driving the truck, knowing or perceiving it to be unsafe;
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iii. The claimant was aware that the proper standard operating procedure was to have checked the truck prior to operating it, and to report any issues to his supervisor.
It is therefore the defence of the first defendant that the claimant was either wholly or partially to blame for the incident by way of his own negligence in that he;
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i. Failed to assess whether the vehicle was in safe operating condition by completing an equipment check, including a pre-tip inspection of the air brakes;
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ii. Failed to contact the immediate supervisor to promptly report the vehicle as deemed unsafe and the perceived imminent danger in driving the vehicle;
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iii. Failed to perform personal protective equipment assessment to identify and select personal protective equipment needed to protect against any risks identified on the job site, including impact velocities from collisions;
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iv. Failed to ensure there was sufficient air in the braking system before proceeding to drive the vehicle downhill;
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v. Failed to apply trained knowledge of safe work practices and to proceed with reasonable caution when descending so as to have or keep proper control of the vehicle to avoid the accident; and
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vi. Caused loss and/or damage to the first defendant's equipment and to property at the job site.
The second defendant denied that it owed a duty of care to the claimant since it was not the claimant's employer, and averred that it was unaware of the existence of any alleged malfunction with the first defendant's truck at the material time. Further, it is its case that it cannot be found liable for a breach of the claimant's contract of employment or in negligence as the second defendant was the occupier of the premises on which the incident occurred and not the employer of the claimant.
It is not in dispute that on February 8, 2017, the claimant jumped from the truck owned by the first defendant and sustained injuries all while on premises owned by the second defendant. The general legal issues for determining liability in this case therefore are as follows:
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i. Whether the first or second defendant owed a duty of care to the claimant and if so the extent of the duty of care;
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ii. Whether the first or second defendant breached their duty of care with resultant damage;
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iii. Whether there was contributory negligence on the part of the claimant;
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iv. To what damages, if any, is the claimant entitled.
The claimant gave evidence for himself and called one witness, Shaphan Hamilton.
The claimant was employed by the first defendant as a multi-skilled operator/driver and his duties included operating a Renault Hiab heavy duty truck, TBX 2179 (“the truck”) owned by the first defendant. The first defendant was contracted by the second defendant to perform services on the premises owned by it.
On February 6, 2017, the claimant was informed by one Sheldon Hamilton, his co-worker at that time, that the truck he usually operated was malfunctioning. It was reported to the supervisor, one Bevon Granderson that the braking system was faulty and the clutch was getting stiff.
On February 8, 2017, Granderson reported to the claimant that the truck was in good working condition but there was an electrical/soluroid problem. Granderson further instructed the claimant to carry out his duties. Later that day, the second defendant's General Manager, Mr. Ampson instructed him to transport a large air compressor downhill. Whilst operating the truck, the braking system failed and the clutch ceased causing the claimant to lose control of the vehicle. At that point he jumped from the truck suffering injuries to his right leg and hip. The truck then crashed into a wall.
The claimant's right leg was twisted in an awkward position and he experienced severe pain whilst lying on the ground for approximately thirty minutes. He was then taken to the Port of Spain General Hospital and was medically examined. On February 10, 2017, underwent surgery to his right leg and steel was inserted. Thereafter, the claimant attended the Outpatient Orthopaedic Clinic at the hospital for treatments and submitted sick leave for two hundred and thirty eight days to the first defendant. That leave came to an end on October 16, 2017. He continued to experience pain and discomfort in his right leg and thigh and was unable to stand or walk properly. Further, cold conditions caused additional discomfort to his leg. To avoid addition to the pain killers prescribed, the claimant stopped taking them.
Reece testified that he has a five-class licence. On the morning of the incident, he confirmed that he was aware that there were problems with the truck. On the said morning, Reece tested the truck for mechanical problems, but could not recall if he filled out a checklist to submit to the first defendant. He also admitted that despite mechanical malfunctions, he drove the truck.
He testified that it was his decision to bleed out the brakes of the truck and once the brakes were bled out, it would function for the time being. Thereafter, he drove the truck downhill in gear one and attempted brakes but it seized. The clutch also seized up.
He accepted that during his defensive driving course, he was not trained that the appropriate course in those circumstances was to jump from a moving vehicle whilst going downhill. He admitted there were no problems with the steering mechanism of the truck, as at one point he steered it. He also testified that during the ordeal, he was unaware that his co-workers were on the truck.
He did not know whether the truck crashed into a wall when it stopped as he jumped from the truck before it crashed. He accepted that after the fact, the smaller forklift was at the bottom of the hill and the truck came to a stop when it crashed into the forklift. He therefore admitted that he was incorrect when he testified that the truck crashed into a wall. Reece went on the explain that the truck was descending in gear one and shifted to neutral.
He maintained that the truck was descending quickly and that he feared for his life, although his co-workers were not seriously injured. He also disagreed that he drove the truck in a careless manner.
Reece...
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