Simmons v Swan Brothers Ltd and Forth-Ryco Ltd and Marriott International Services Ltd 1986 Civil Jur. No. 123
| Jurisdiction | Bermuda |
| Judgment Date | 12 January 1995 |
| Docket Number | Civil Jurisdiction 1986 No. 123 |
| Date | 12 January 1995 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Wade, J
Civil Jurisdiction 1986 No. 123
and
Mr. David Kessaram for the Plaintiff
Mr. Arthur Hodgson for the 1st Defendants
No Appearance by 2nd Defendants
Mr. John Barritt for the 3rd Defendants
Trustees of the Seventh Day Adventist Church 1985 Civil Appeal No. 4
Morris v West Hartlepool Steam Navigation Co. Ltd.UNK [1956] 1 All ER 385
General Cleaning Contractors Ltd. v ChristmasELR [1953] AC 180
Gallager v Balfore, Beattic & Co. Ltd.SC [1951] SC 712
Wilson & Clyde Coal Co. Ltd. v EnglishELR [1938] AC 57
Smith v Vange ScaffoldingWLR [1970] 1 WLR 733
Olsen v Lorry and Gravesend Aviation LtdUNK [1936] 3 All ER 241
Merrington v Ironbridge Metal WorksUNK [1952] 2 All ER 1101
Bowater v Rowley Regis CorporationUNK [1944] 1 All ER 465
Occupiers and Highway Authorities Liability Act 1978
Negligence — Duty of care — Personal injury — Fall into open elevator shaft while working on construction site — Duty to provide and maintain safe premises
Wade, J.
On September 3rd, 1985, at about 4:00 p.m., the Plaintiff, Mr. Keith Simmons, a welder, then 26 years, whilst on the third floor at the Marriott's Castle Harbour site, fell off the steel decking 9 feet to the floor below, landed on his feet, overbalanced and fell some 16 feet down an open elevator shaft under construction, and suffered severe injuries which has given rise to this action.
In his re-re-amended Statement of Claim, the Plaintiff alleged that his ‘injuries, shock, loss and damage’ were caused by the negligence at common law and/or under the Occupiers and Highway Authorities Liability Act, 1978 (hereinafter referred to as ‘the Act of 1978’), and/or breach of statutory duties of the first through third defendants.
The Plaintiff abandoned the claim for breach of statutory duties against all three defendants.
As regards the claim against the third defendant s, the Plaintiff and the third defendants concluded an agreement before the commencement of the hearing, and in accordance with that agreement on the 15th day of October, 1993, the Plaintiff filed a Notice of Discontinuance of the claim against them.
The Plaintiffs particulars of negligence against the first defendants alleges inter alia that they failed to provide a safe place of work, system of work, adequate training or supervision for the Plaintiff. Further, that they failed to complain or advise or otherwise inform the second defendants of the absence of the said guard-rails, and/or covering over the elevator shaft.
As regards the second defendants, the Plaintiffs particulars of negligence allege inter alia that they failed to provide guard-rails or boards around the opening of the elevator shaft, or a covering over the elevator shaft.
Both the first and second defendants relied on the same defence. Each pleaded that the Plaintiffs fall and consequential injuries were caused or contributed to by the Plaintiffs own negligence.
In their statement of defence, the defendants denied that the accident was caused by their negligence. The same particulars of negligence were pleaded by both defendants and included the following:- that the Plaintiff failed to have regard for or exercise care for his own safety; failed to comply with the request that he should not engage in further work that day; failed to appreciate the dangers inherent in the work that he was engaged in; and failed to keep any or any sufficient lookout for the presence of the loose piece of steel decking—inappropriately placed by him too close to the edge of the decking already installed in place—on which he walked resulting in his fall,
Alternatively, the first and second defendants contended that the Plaintiff, with full knowledge and understanding of the danger arising from the nature of the work he was to do, and the location thereof, voluntarily accepted the risk of injury.
The first defendants further contended that if there was a duty that any of the defendants should have guard-rails and or toe boards, and or coverings around the open elevator shaft, that that duty fell exclusively upon the general contractors, the second defendants.
On the other hand, the second defendants contended that the duty of ensuring the safety of the Plaintiff whilst he was carrying out his duties in the employment of the first defendants, were entirely the responsibility of the first defendants.
It is undisputed that all three defendants were body corporate, organised and existing pursuant to the laws of statute, and carrying on its own particular business. The first defendants were and are welding specialists and steel erectors; the second defendants were and are general contractors; and the third defendants were involved with the construction of a hotel to be known as the Marriott Castle Harbour Hotel at the third defendant's site in Tucker's Town, Hamilton Parish.
In February 1985 the Plaintiff started working as a welder for the first defendant, Swan Brothers Limited, a firm of welders and steel erectors. The first defendants were engaged by the second defendants, Forth Ryco Limited to carry out the welding work in connection with the installation of steel decking. The second defendants were the general contractors and they had a contract with the third defendants, Marriott International Services Limited, to construct a hotel at the site in Tucker's Town.
The Plaintiff testified on his own behalf and called one expert witness Mr. Howard R. Montaigne.
The first defendants called Mr. Vonosdelle Swan, Managing Director, Mr. Berkely Robinson an employee of the first defendants and the Plaintiffs co-worker, as he then was, and Mr. William Laing an expert witness.
Photographs taken shortly after the accident and a plan of the site are in evidence.
The circumstances of the accident are largely undisputed. Having heard the evidence which was fully canvassed at the trial, I shall briefly state my findings of fact.
On the morning of September 3rd, 1985, the Plaintiff commenced working at about 7:30 a.m. He was working on the second floor. Between 11:30 and 12:00 noon the Plaintiff stepped on a piece of board with a nail in it and sustained a scratch to his foot. He felt it was best to attend at the hospital with a view to receiving a tetanus shot, but as there was no one else in authority at the site, he continued working. Sometime after the lunch break, Mr. Vonosdelle Swan, (Mr. Swan) the managing director of the first defendants, came on the site. The Plaintiff told Mr. Swan about the accident and informed him that he had to go to the hospital to have his foot checked. Mr. Swan then asked the Plaintiff, who had intended to ride his bike to the hospital, to travel with his brother Mr. Dudley Swan, in the company's truck so that he could assist Dudley Swan with carrying out a few errands.
The Plaintiff travelled with Mr. Dudley Swan in the company's truck to the hospital. There, a nurse in the Emergency Department, ascertained from the Plaintiffs tetanus card that he did not need any treatment. He was in and out of the hospital in about 5 minutes. Thereafter, the Plaintiff accompanied Mr. Dudley Swan in the company's truck and assisted him in carrying out a number of errands. The Plaintiff got back to the Marriott site at about 3:55 p.m.
The first defendants say that Mr. Simmons ought not to have been on the job. I find as a fact that the Plaintiff was properly on the job. When the Plaintiff returned to the site, he met Mr. Swan leaving the premises, They had a talk, during which the Plaintiff told Mr. Swan what had transpired at the hospital. I accept that Mr. Swan asked the Plaintiff to return to the job site to see if the floor the men were working on was finished, and if not, to ascertain if it could be finished that day.
Once he returned to the site, the Plaintiff asked the workmen who were present if they wanted to work overtime. Messrs. Carlton Zuill, Berkely Robinson and Donald Augustus agreed to work. The other men left the site. It is clear that the Plaintiff had the authority to request the men to work overtime. Indeed, Mr. Robinson's evidence confirms this.
The Plaintiff, Messrs. Zuill, Robinson and Augustus, all went up to the second floor. The work area was untidy—decking was laying on the floor, and tools were scattered about. The Plaintiff and Mr. Zuill began to tidy up the area and to put the decking in its proper place. Once most of the decking was in place, I believe the Plaintiff when he said, ‘I put a short sheet of decking that was to go behind the elevator shaft, measured it and cut it off to lit around the column. Then I went to step backwards to pick up my tape measure. I stepped on a piece of loose decking, it slid, I lost my balance and I fell to the first floor level underneath and landed on my feet. I slipped off the floor and fell through the opening of the elevator shaft to the ground below.,’ The Plaintiffs next recollection was when he woke up in the Emergency Department of the Ring Edward Memorial Hospital. Since then, the Plaintiff has not had the use of his legs and he has been confined to a...
To continue reading
Request your trial