The Trustees of the Seventh-Day Adventist Church v Wilson

• Jurisdiction: Bermuda
• Judgment Date: 15 December 1986
• Date: 15 December 1986
• Docket Number: Civil Appeal No. 4 of 1985
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

H.L. daCosta

Alastair Blair-Keer, P.

Kenneth C. Henry, J.A.

Civil Appeal No. 4 of 1985

Civil Appeal No. 4 of 1985

Civil Appeal No. 4.of 1985

The Trustees of the Seventh-Day Adventist Church (a body corporate incorporated by Act No. 132 of 1960)

Appellant

and

Leon Charles Wilson

Respondent

The Trustees of the Seventh-Day Adventist Church (a body corporate incorporated by Act No. 132 of 1960)

Appellant

and

Leon Charles Wilson

Respondent

The Trustees of the Seventh-Day Adventist Church (a body corporate incorporated by Act No. 132 of 1960)

Appellant

and

Leon Charles Wilson

Respondent

Mr. Pachai for the Appellant

Miss Harvey for the Respondent

Cavanagh v Ulster Weaving CoUNK [1959] 2 All ER 745

Paris v Stepney Borough CouncilELR [1951] AC 367

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

Stokes v Guest Kenn & Nettleford (Bolts and Nuts) LtdWLR [1968] 1 WLR 1776

Board of School Trustees, School District No. 62 (Sooke) BC v WhiteUNK (1962) 34 DLR 760

Thompson v Smiths ShiprepairersUNK [1984] 1 All ER 881

Bourhill v Young [1941] SLT 364

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

Law Reform (Liability in Tort) Act 1951, s. 1, s. 3

Contributory negligence — Claim for personal injuries — Plaintiff injured while doing volunteer construction work for defendant — Appeal by defendants against decision that they were 50% liable for accident — Whether plaintiff's improper use of tool was sole cause of accident — Whether defendants should have provided guard rails at building site — Employer's duty of care — Whether defendants maintained a safe system of work — Extent to which employer can rely on general practice in the industry

JUDGMENT

The appellant is a church incorporated by Act of the Legislature of Bermuda. The respondent is a member of that church. Almost a decade ago the appellant embarked upon what was described by their Pastor, Rev. Simmons, as the construction of their sanctuary. To be more precise it was on or about 17th August 1977 that ground was broken at Beacon Hill Road, Somerset, Sandys Parish for the erection of their church. It was a unique experiment because the church was not to be built by professionals employed as such but by the co-operative efforts of members of the church each contributing according to the skills and means he possessed. It must be apparent that in such an enterprise talents would vary. The members gave their services free. The only exception was Mr. James Pearman, a construction foreman; he was paid to supervise and co-ordinate the efforts of the brethren.

Committees were established for particular purposes. Mr. Leon Wilson, the respondent, was a member of the Gourmet Committee, his skill as a baker thereby receiving appropriate recognition. Unhappily for Mr. Wilson his work was not confined to the activities of that committee. Having some considerable experience as a carpenter and cabinet maker he allowed himself to be persuaded into engaging in some construction activity.

On Sunday 19th November 1978 he prepared lunch for his co-workers. It was his intention to go to a soccer game after serving lunch. He was, however, persuaded by Mr. Pearman, the building supervisor, to undertake some work on a cantilever deck. The work was, as Mr. Wilson said, more important than watching a football game. It was while he was carrying out this work that he fell and suffered severe injuries, which ultimately gave rise to the action, which came before Ward J. On the 23rd May 1985 the learned judge gave judgment, apportioning liability equally between the respondent (plaintiff) and the apellant (defendant). Judgment was accordingly entered for the respondent.

From this judgment the appellant has appealed, asking that the judgment below be set aside as to the finding of liability on the appellant or alternatively that the court assess the proper apportionment of blame or responsibility, if any, that each party bears for the accident sustained by the respondent.

The building of the church required a cantilever deck to be constructed over the side entrance. The cantilever deck was 15 feet long, 4 feet wide and 11 feet high. In the words of the learned judge:

‘The elevation plans provided for two 4 inch concrete slab door shelters. There were no specifications on the plans but the supervisor had designed two cantilever decks or ledges over the door openings on the ground floor level at the side of the building.’

The critical problems in this case arise from what exactly transpired after Mr. Pearman told Mr. Wilson that he would like to have No. 1 deck tied off in order that concrete could be poured. It appears that the purpose of tying the rods into place was to prevent any movement of the rods within the framework. There is a sharp conflict on the evidence as to what exactly Mr. Wilson did when he was on the platform of No. 1 deck. The conflict is doubtless accentuated by the fact that the participants were speaking of events that happened over six years before the date of trial. In such circumstances it is not surprising that recollections should differ.

According to the evidence of Mr. Rayner, who was second in command on the job, when Mr. Wilson mounted the platform of No. 1 deck, it was strong and in proper place with the reinforced rods crisscrossed horizontally in the framework. Exhibit 1 shows a rough sketch of the placement of the rods in the mat. The mat that was being formed to take concrete comprised 5/8″ rods, 6’ wire mesh and 3/8’ rods for tying in. The rods were just below the top surface where the concrete would have been poured.

According to Mr. Wilson he intended to place a double bend into a piece of 3/8’ rod which in turn would then be tied into place within the mat. In order to accomplish this he needed the proper tool. After enquiries he eventually obtained what has been described as a Teco conduit bender from Mr. Rayner. Although not a sophisticated tool it must apparently be used in a particular manner. It is at this point that the first sharp conflict in the evidence arises: was Mr. Wilson using the bender in the correct fashion?

According to Mr. Rayner who saw Mr. Wilson using the bender on No. 1 deck he was ‘yanking on it’ whereas the bender ‘is designed to bend metal tubing by pressing down in a steady pressure’. Mr. Wilson for his part denied that he was using the bender in an improper manner. On this issue the learned judge preferred the evidence of Mr. Rayner; hence his conclusion:

‘While thus engaged in using the bender in that unorthodox fashion, the threaded pipe which formed the handle of the tool broke within the connector. The...