Allen v Gold Coast Company Ltd
| Jurisdiction | Bermuda |
| Judgment Date | 16 November 2015 |
| Neutral Citation | [2015] SC Bda 79 Civ |
| Date | 16 November 2015 |
| Docket Number | CIVIL JURISDICTION 2014: No 215 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 79 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2014: No 215
Mr Samuel Riihiluoma, Cox Hallett Wilkinson, for the Plaintiff
Mr Bruce Swan, Apex Law Group Ltd, for the Defendant
(In Court)
This is a claim for damages for personal injury. The Plaintiff worked as a chef at Q's Bar and Grill, Warwick (‘the premises’), where she was employed by the Defendant. The premises are rented by the Defendant from one of its directors, Mrs Brenda Augustus. On 14 th November 2012 the Plaintiff had just arrived at the premises by taxi, where she was due to start work at 12 pm. She gave evidence that that was about the time at which she arrived. But Mrs Augustus, who was in the kitchen at the time and saw her arrive, said in evidence that she arrived at 12.10 pm.
It was pouring with rain when the Plaintiff arrived and the ground was wet. Mrs Augustus said that the Plaintiff was running, presumably because of the rain and possibly also because, on Mrs Augustus' account, she was late for work. The Plaintiff accepted that she was moving faster than she would on a sunny day but did not accept that she was running or that she was late. Her shoes were Crocs, which she said were worn by most chefs while at work as they absorb water.
The Plaintiff entered the grounds of the premises and made her way towards the kitchen door which opened off the patio. In order to get there she had to go down a ramp. The ramp was out of Mrs Augustus' sight. It was covered in slip resistant tiles. However, it was the unchallenged evidence of Dustin Archibald, a structural engineer who gave expert evidence on behalf of the Plaintiff, that the ramp was in breach of the version of the Bermuda Building Code 1996 (‘the Code’), which was the version in force at the time. First, because it was too steep. It had a slope of one unit vertical in 5.5 units horizontal or 18.1 per cent whereas the maximum slope permitted under the Code was one unit vertical in 12 units horizontal or 8 per cent (Code 1016.3). Secondly, because there were no handrails (Code 1010.9).
The ramp was built by the Defendant. Gordon Ness, who is the Building Control Officer for the Department of Planning (‘the Department’), gave evidence that the Department had given formal approval for construction work to be carried out at the premises including specific approval for the ramp. However the approval was based on the architect's plan which showed a ramp which complied with the Code. Mr Ness said that he had recently visited the site and that the ramp that had been built departed substantially from the ramp in the plan and was not in compliance with the Code. He stated that there was no mention of the ramp in the inspection history for the premises, which he said signified that it had not been inspected. Nonetheless, upon completion of the building works the Department had issued a certificate permitting the use of the premises as a restaurant. Mr Ness said that he would have to carry out an investigation as to how and why that had happened.
The Plaintiff gave evidence that a rubber doormat had been placed on the ramp. She said that it was placed in the middle of the ramp and that it covered the ramp's length. Presumably someone had put it there with the intention of making the ramp less slippery. She said that previously she had seen it in place outside the kitchen door. Mrs Augustus gave evidence that the mat was usually placed at the bottom of the ramp, although she said that there was another similar mat on the premises. She said that it was the responsibility of the porter to see that it was in place. She was not able to say from her own observations where the mat, which she described as an outside non-slip mat, was located that day. She produced as an exhibit a mat which she said was the mat in question, although the Plaintiff disputed this. Nothing turns on whether it was the same mat or merely a similar one.
The Plaintiff said in evidence that when she stood on the mat it slipped from under her and that she fell. That she slipped and fell is not in dispute. When she fell she broke her arm. As a result of her cries, Mrs Augustus and the taxi driver came to her aid. Mrs Augustus called for an ambulance and the Plaintiff was taken to hospital.
The Plaintiff claims that her injury was caused by the negligence and/or breach of contract, or alternatively breach of statutory duty, of the Defendant. In the further alternative, the Plaintiff alleges that the Defendant is liable to pay the Plaintiff compensation under the Workers' Compensation Act 1965 (‘the 1965 Act’).
The Defendant denies that it acted negligently or in breach of statutory duty. It alleges that the Plaintiff's injuries were caused or contributed to by her own negligence. The Defendant also denies that it is liable to compensate the Plaintiff under the 1965 Act.
Under the tort of negligence, an employer owes a duty to his employees to take reasonable care for their safety during the course of their employment. This includes the provision of a safe place of work with a safe means of access. The duty is personal and non-delegable. See Russell v Stephenson [2001] Bda LR 59 SC at 12 – 13 per Meerabux J and the authorities there cited. What is reasonable depends upon the foreseeability of harm, the magnitude of risk of harm; the gravity of the harm; the cost and practicability of preventing it; and the justifications for running the risk. See Hatton v Sutherland [2002] ICR 613 EWCAper Hale LJ (as she then was), giving the judgment of the Court, at para 32, approving the summary given by Swannick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 Assizes at 1783 D – E.
This duty forms an implied term of the contract of employment, although it may be limited by agreement, or, in unusual circumstances, by implication. Nonetheless, an action brought by an employee against an employer for damages suffered by the former in the course of her employment is by convention usually brought in the tort of negligence rather than contract. See Fagundo v Island Cleaning Services [2009] Bda LR 53 SCper Kawaley J (as he then was) at paras 24 – 25. The learned Judge who also stated at para 25 that personal injury claims against employers are therefore a special exception to the general rule that where parties have entered into a contractual relationship, the law of contract rather than the law of tort governs all rights and obligations between them. 1
A tortious breach of duty by the employer will be actionable by the employee if the employee can show: (i) that the breach has caused or materially contributed to her injury — see Williams v Bermuda Hospitals Board [2014] Bda LR 22 CA2 at paras 37 – 42 per Ward JA and at para 48 per Kawaley J, and the authorities cited in both these passages; and (ii) that this kind of harm to this particular employee was a reasonably foreseeable result of the breach – see Hatton v Sutherland at para 23.
When deciding whether an employer has satisfied its duty of care to an employee, the Court is likely to have regard to the employer's statutory obligations relating to health and safety at work. Breach of these obligations may give rise to a separate cause of action for the tort of breach of statutory duty.
The Occupational Safety and Health Regulations 2009 (‘the Regulations’) impose a number of duties on employers. See Regulation 5(1). A breach of these duties will be actionable except in so far as the Regulations provide otherwise. See sections 22(2) and 22(5) of the Occupational Safety and Health Act 1982 and Robinson v Minister of Education [2011] Bda LR 18 SCper Kawaley J at para 8.
Regulation 5(1) provides that every employer must ensure that their place of employment or premises of which they have control meets the requirements of the Regulations. Thus the employer is under an absolute duty to comply with the Regulations and not merely a duty to take reasonable steps to do so.
Regulation 31 provides that the design, construction, inspection and renovation of a building, or any part of a building, that is a place of employment shall meet the requirements of the Code.
Regulation 2 provides that ‘ building’ includes any structure or erection of whatever kind or nature, whether temporary or permanent, and any part thereof.
Regulation 32(1) provides that passageways, stairways, walkways, entrances and ramps at a place of employment shall be kept free of obstructions that may endanger the health or safety of employees.
Regulation 32(3) provides that travelled surfaces in a place of employment shall be slip resistant and kept free of splinters, holes, loose boards, loose tiles and similar defects.
The Law Reform (Liability in Tort) Act 1951 provides at section 3(1) that where any person suffers damage as the result partly of his own fault and partly of the fault of another, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the amount of damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for that damage. Section 3(1) contains a couple of qualifications to this principle, but they are not material to the present case.
A finding of contributory negligence may arise in relation to both the tort of negligence and the tort of breach of statutory duty. Indeed the Court made such a finding in Russell v Stephenson. See pages 1 (causes of action); 23 (statement of principle) and 28 (finding).
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