Fagundo v Island Cleaning Services
| Jurisdiction | Bermuda |
| Judge | Kawaley, J. |
| Judgment Date | 30 October 2009 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 54 of 2003 |
| Date | 30 October 2009 |
Supreme Court
Kawaley, J.
54 of 2003
Mr. Jai Pachai and Ms. Margaret Burgess-Howie, Wakefield Quin, for the plaintiff.
Mr. Timothy Marshall and Mr. Kevin Taylor, Marshall Diel & Myers, for the defendant.
Damages - Personal injury — Plaintiff slipped and fell during the course of his employment — Employers' liability — Whether failure to provide safety boots was a breach of a duty of care — Wrist injury — Plaintiff suffered 60% disability in his only good hand — Quantum.
The plaintiff is a Portuguese national born on January 3, 1943 who returned to Bermuda to re-join his Bermudian family from the Azores in or about 1998. He obtained employment with the defendant as a full-time cleaner in 1999. He claims damages for personal injuries allegedly sustained on September 2, 2000 while he was engaged in the course of his employment. He contends the relevant accident was caused by the negligence of his employer.
The plaintiff's Specially Indorsed Writ of Summons issued on February 7, 2003 initially asserted a claim for breach of the employer's common law duties of care and a claim for breach of statutory duty. The latter claim was sensibly abandoned at trial. The Defence was filed on or about March 7, 2003, and the Reply on October 20, 2003. Directions were ordered on May 6, 2004 by Consent for the trial of the action. However, on December 4, 2007, with the plaintiff now represented by his current attorneys, a Re-amended Specially Indorsed Writ was issued. A Re-amended Defence was filed on December 17, 2007.
With the defendant now represented by its current attorneys, further pre-trial directions were given on January 22, 2009. Expert evidence was limited to one medical witness and one expert as to cleaning methods per party, witness statements were ordered (pursuant to the new rules introduced in 2006 in this regard) and the matter was ordered to be set down for trial after May 1, 2009.
In the event, no expert evidence was adduced as to cleaning methods and only one medical witness was called by the plaintiff. It was not disputed that the plaintiff was before his employment nearly 100% disabled as regards to his right hand, and is now post-accident 60% permanently disabled in his left hand as well, his left wrist having been fused on or about February 23, 2006.
The principal disputes at trial centred on whether (a) the defendant owed a contractual and/or tortious duty of care to have regard to the need for safety footwear, (b) whether the defendant was in breach of any such duty, (c) whether any breach of duty by the defendant caused the accident, (d) whether the plaintiff contributed to his loss, and/or (e) whether the plaintiff had taken adequate steps to mitigate his loss by seeking alternative employment after his injury.
The Statement of Claim makes the following crucial averments which were set out in the plaintiff's first pleading:
“4. It was an implied term of the plaintiff's contract of employment that the defendant would by its servants or agents, take all reasonable care to provide and/or maintain a reasonably safe system of work and effective supervision of the same.
5. On or about 2nd September 2000 when the plaintiff was employed as aforesaid at M Soares and Sons Limited, the plaintiff slipped on the said wax stripper and fell to the ground. As a result the plaintiff has sustained injury loss and damage as hereafter appears.
6. The said accident was caused by the negligence and breach of duty of the defendant, its servants or agents.”
The pleading at first blush seems to blur the distinction between a claim in contract and in tort by alleging an implied contractual duty of care in paragraph 3 and simply referring to negligence-and not negligent breach of contract-in paragraph 5. However, having regard to the law and practice in relation to personal injury claims, the pleadings may be read as averring that it was a term of the contract of employment that the employer would exercise reasonable care for the employee's safety according to the principles delineated in the law of tort. After abandoning the plea that the defendant was negligent by failing to provide appropriate training, supervision and/or machinery, the Statement of Claim as amended set out the following four particulars of negligence, only the first of which was new:
“(ii) caused permitted or required the plaintiff to carry out his duties of stripping wax without providing a safe system of work by
(a failing to show a greater duty of care to the plaintiff knowing that he had a near 100% pre existing disability in his right hand thereby putting his left hand at greater risk of injury;
(b) unreasonably insisting that the plaintiff provide his own protective clothing and footwear knowing that said footware [sic] was not available on the Island and was as a matter of good practice provided by the plaintiff's previous employer;
(c) failing to provide sufficient number of employees to ensure the work was done safely;
(iii) caused permitted or required the plaintiff to carry out his duties of stripping wax without providing any safe and/or protective clothing or footwear to be worn while using such wax stripper when they well knew or ought to have known of the dangers of using such wax stripper when not wearing such safe and/or protective clothing or footwear;
(iv) operated a system of work whereby the defendant knew or ought to have known that the Plaints would have to walk on area of floor to which the wax stripper had been applied;
(iv) failed to heed and/or act upon prior warnings given to the defendant by the plaintiff that the system of work was unsafe.”
Three crucial averments were set out in the original Defence:
“(3) The defendant denies that it was negligent either as particularized in paragraph 6 of the Claim or at all save that it admits that it did not provide the plaintiff with either protective clothing or appropriate footwear, both being matters that the plaintiff understood and agreed were his personal responsibility.
………
(6) The proper method to remove all the wax from a floor and then to re-wax it requires the following successive steps:
(a) Application of a diluted solution of the stripper liberally on the floor using a mop and a bucket…
(8) The defendant states that if the plaintiff fell, it was while applying the stripper, being step a) of paragraph 6 above, and that such was caused or contributed to by his own negligence.”
The defendant relied on four particulars of negligence, the third of which was added by way of amendment:
“a) He failed to follow the correct method of applying, scrubbing, and removing the stripper.
b) He failed to follow the directions given by BETCO Corporation for the use of the stripper.
c) He failed to keep from walking on that part of the floor where the stripper had already been applied by him.
d) He failed to exercise care when walking on the floor well knowing that it was slippery.”
The defendant deleted the following averment from its original particulars of negligence: “He failed to wear appropriate shoes or boots for the task.”
The plaintiff was employed under two standard written contracts which specified his basic hours of work as 40 hours per week, his pay as $I2 per hour for regular work and overtime, his holiday entitlement as 10 days plus public holidays and also prescribed the statutory deductions from his gross pay. The first contract was a two year contract commencing April 23, 1999, and the second was a one year contract commencing April 23, 2001. The first contract described his position as a supervisor whilst the second described his position as a “full-time cleaner”.
There was no express written contractual requirement for the plaintiff to purchase his own footwear for use at work. However, I accept Mr. Thompson's evidence as the ultimate beneficial owner and manager of the defendant that the practice of the company was that staff selected and purchased their own footwear. The plaintiff accepts that he understood and accepted this position in general terms. I find that there was a contractual agreement that it was the plaintiffs obligation to select and purchase his own work shoes.
Although under cross-examination Mr. Thomson was obliged to justify why the defendant did not consider it necessary to purchase protective footwear for use by employees such as the plaintiff when stripping floors, in paragraph 19 of his Witness Statement he deposed as follows: — “…I can say without hesitation that had Mr. Fagundo or any other employee requested a pair of stripping shoes they would have been provided. He certainly never told me he wanted the shoes or had any concern about the shoes he chose to wore.”
This assertion was confirmed by the defendant's former Operations Manager, John Ferreira, but neither witness appeared to suggest that it was a term of the plaintiffs contract that if he wished protective footwear he had to request his employer to purchase it for him. How the plaintiff would have been aware of any such peculiar contractual term is unclear as the defendant's case is that he never made any such request. Nor did the defendant suggest that it was an overtly established practice for employees to request the company to purchase safety footwear for them, a practice of which the plaintiff must be deemed to have been aware. The defendant's pleaded case is not that protective footwear was not provided because he did not request it but that this was a matter which “the plaintiff understood and agreed [was] his personal responsibility” (Amended...
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