Island Cleaning Services v Fagundo

• Jurisdiction: Bermuda
• Judgment Date: 17 June 2010
• Date: 17 June 2010
• Docket Number: Civil Appeal 2009 No. 22
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before: Zacca, P; Ward, JA; Auld, JA

Civil Appeal 2009 No. 22

BETWEEN:

ISLAND CLEANING SERVICES

Appellant

v

ANTONIO MARQUES FAGUNDO

Respondent

Mr K Taylor for the Appellant

Mr J Pachai for the Respondent

The following cases were referred to in the judgment:

Tai Hing Cotton Mill Ltd v Liu Ching Hong Bank LtdELR [1986] AC 80

Henderson v Merrett Syndicates LtdELR [1995] 2 AC 145

Central Trust Co v Rafuse (1986) 31 DLR (4th) 481

General Cleaning Contractors Ltd v ChristmasELR [1953] AC 180

Paris v Stepney Borough CouncilELR [1951] 1 AC 367

Wilson & Clyde Coal Co Ltd v EnglishELR [1938] AC 57

Johnstone v Bloomsbury Health AuthorityELR [1992] QB 333

Davies v Swan Motor Co (Swansea) LtdELR [1949] 2 KB 291

Trustees of the Seventh Day Adventist Church v WilsonBDLR [1986] Bda LR 31

Abstract:

Personal injury - Slipping accident - Injury to hand - Liability - Contractual exclusion to duty of care - Contributory negligence

JUDGMENT of AULD, JA

Introduction

1. This appeal raises two issues of mixed law and fact arising out of an injury sustained by the Respondent, Antonio Mario Fagundo to his left hand in a slipping accident on 2nd September 2000 when stripping paint from the floor of premises in the course of his employment as a cleaner by the Appellant, Island Cleaning Services ("Island Cleaning"). They are whether the Judge, Kawaley J, correctly held that:

i. the employer was liable for Mr Fagundo's injury in contract or in tort in failing in its general common-law duty of care to provide him with a safe system of work; and

ii. Mr Fagundo's injury was not caused by any contributory negligence on his part.

2. There is little issue of primary fact over the nature of the accident and the circumstances giving rise to it. Mr Fagundo was aged 57 at the time, an experienced floor cleaner and paint stripper, but severely disabled in his left hand. He had been employed in those tasks by Island Cleaning for some sixteen months since April 1999, and, for some sixteen years before that, between 1974 and 1990, by another Bermudian company, Marshall's Maintenance Company Ltd.

3. Mr Fagundo's contract with Island Cleaning, which was mainly in writing, made no express provision for special footwear for his work, but, as found by the Judge and acknowledged by the Company, there was an express oral or implied term that he should select and provide his own footwear. This is how the Judge put in paragraph 12 of his judgment:

"[12] There was no express written contractual requirement for … [Mr Fagundo] to purchase his own footwear for use at work. However, I accept … [Island Cleaning's] evidence that the practice of the company was that staff

selected and purchased their own footwear. … [Mr Fagundo] accepts that he understood and accepted this position in general terms. I find that there was a contractual agreement that it was … [Mr Fagundo's obligation to select and purchase his own work shoes".

4. The issue on primary liability was whether Island Cleaning's undoubted common law obligation to provide a safe system of work, included an obligation to provide Mr Fagundo with, and instruct him to use, special safety shoes for his work when working on slippery surfaces, and, if so, whether it was contractually excluded by the express or implied contractual term that he should select and provide his own working footwear. Put another way, the issue was whether Mr Fagundo's contractual obligation was so clear and wide as to be inconsistent with and negate Island Cleaning's broad common law duty of care. The Judge heralded his finding of no such inconsistency in the following passage in paragraph 15 of his judgment:

"[15] …. [the parties had not] agreed more than that … [Mr Fagundo] was required to purchase his own working shoes and free (in the absence of specific directions from the employer) to choose what type of footwear to wear."

The Judge's...