Butler v Swann
| Jurisdiction | Bahamas |
| Judge | Adderley, J.A. |
| Judgment Date | 30 April 2014 |
| Neutral Citation | BS 2014 CA 75 |
| Docket Number | SCCivApp & CAIS No. 61 of 2013 |
| Court | Court of Appeal (Bahamas) |
| Date | 30 April 2014 |
Court of Appeal
Blackman, J.A.; Conteh, J.A.; Adderley, J.A.
SCCivApp & CAIS No. 61 of 2013
Mrs. Constance McDonald, counsel for the appellant.
Mr. Rawle Maynard, counsel for the respondent.
Negligence - Appeal — Fatal accident — Common law negligence — Breach of statutory duty — Duty to provide safe system of work — Burden of proof on the plaintiff — Whether the employer is liable for negligence — at common law or breach of statutory duty — Burden of proof shifts to employer — Test of reasonable foreseeability — Res ipsa loquitur — Damages — Multiplicand — General damages — Special damages — Quantum — Appeal dismissed — Health and Safety at Work Act.
In early 2003, the deceased was killed while working in the appellant's employ. The respondent, the mother and dependant of the deceased, sued the appellant; alleging, amongst other things, that the appellant did not provide a safe system of work in accordance with the requirements of the Health and Safety at Work Act, Chapter 431C. The appellant denied the allegations.
The learned trial judge found that although the respondent had not proven that the appellant was liable in common law negligence, she did prove that the appellant was in breach of his statutory duty under the Act to provide a safe system of work, and that it was that failure which caused the accident and the consequential death.
appeal dismissed, decision of trial judge affirmed, costs of the appeal to the respondent to be taxed if not agreed
Contrary to the contention of the respondent, there is no strict liability for breach of statutory duty under Bahamian law. The onus of proof is on the plaintiff whether his claim is for negligence at common law or for breach of statutory duty unless the statute switches the same.
Accordingly, to succeed in an action for breach of statutory duty the employee must succeed at both stages of a two stage process. At the first stage the employee must prove on a balance of probability that there was a breach of statutory duty which caused reasonably foreseeable injury or damage. Only if a breach of statutory duty is proven does the matter proceed to the second stage. At the second stage the burden shifts to the employer. The employer must plead and prove on a balance of probability that notwithstanding his breach of statutory duty he had done all that was reasonably practicable to keep the employee safe in the circumstances. If on a balance of probability he satisfies that burden he is not liable under the Bahamian Act.
On the facts of this case the respondent proved on a balance of probability that the respondent was in breach of his statutory duty to maintain a safe system of work. The appellant, however, failed to plead in his defence that he had done all that was reasonably practicable to keep the respondent safe.
We are unable to conclude that no reasonable tribunal properly considering the law and applying it to the facts of this case could not find that the appellant was in breach of his statutory duty under Section 4 (2)(a). On the facts of this case it was open to the learned trial judge to conclude, as she did, that even if a system of work had been devised it was not maintained.
The appellant was at the material time the owner and occupier of the work place situated in Freeport, Grand Bahama Island. Shortly before quitting time at about 4:45 p.m. on 13 January 2003 one of his employees, the son of the respondent,' was killed in an accident whereby his skull was crushed by a block-making machine.
The respondent sued by writ of summons dated 18 January 2006 as a dependent on the ground that the death of her son was caused by the negligence and for the breach of statutory duty of the appellant under the Health and Safety at Work Act, Chapter 431C of the Statute Laws of The Bahamas (“the Bahamian Act”). She claimed under the Fatal Accidents Act, Chapter 71 of the Statute Laws of The Bahamas for damages, including funeral expenses, for herself as the dependent of her deceased son, damages for bereavement, interest and costs.
Other than the deceased, only the appellant and the other worker Mr. Ishmael Baillou were on the site at the time. No one actually witnessed the accident. The respondent no longer carries on the business.
It is common ground that the respondent owed his employee a duty of care at common law. Although the appellant gave evidence that the deceased had finished work for the day the judge did not believe him. She preferred the explanation of a former short term employee that employees had to enter the machine to clean it at the end of each day. She preferred the view that the deceased was probably waiting around for the appellant to finish the last batch of blocks before proceeding to clean the machine.
The trial judge found in her judgment rendered 30 January 2013 that the respondent had not proved common law negligence. She stated at paragraph 61 of her judgment:
“61…1 agree with counsel for the defendant that the plaintiff did not prove any of the allegations of common law negligence.”
Yet, inexplicably, the learned trial judge made the following statement at paragraph 86:
“86. …In my judgment, there can be no other explanation for the deceased's injury and resulting death except negligence on the part of the defendant as employer and operator of the machine at common law and under the Health and Safety at Work Act.”
It is difficult to reconcile paragraphs 61 and 86. It appears that the learned judge is saying that the respondent did not prove negligence at common law but the maxim res ipsa loquitur applies because, according to her, there could be no other explanation for the accident but that someone was liable for negligence, and that someone had to be the appellant. She stated at paragraph 77 and 78 “…
“77….Nevertheless, in my judgment, however, the door to the machine came to be opened and the deceased's head came to be crushed inside the machine, must have been as a result of negligence. “
“78. in my judgment, there must have been negligence on somebody's part….”
This is entirely contradictory because res ipsa loquitur is part of the evidential rule by which a plaintiff can prove negligence at common law, and the statement that the plaintiff has not proved negligence at common law necessarily rules out proof by reliance on the evidential rule of res ipsa loquitur. (see the judgment of this Court Miller v. Premier Importers [2008] 4 B.H.S. J No 61 at [13] relying on Carroll and Others v. Fear and others [1998] E.W.C.S. Civ. 40, the passage from Scott v. London and Saint Katherine Docks [1865] 3 H & C 596 at 601 which has become the locus classicus on the doctrine, and Megaw, L.J. in Lloyde v. West Midlands Gas Board [1971] 1 W.L.R. 749 at p 755)
The learned trial judge did, however, find that the respondent was in breach of his statutory duty under the Bahamian Act by failing to provide a safe system of work, and that it was that failure which caused the accident and the consequential death. Her findings in that regard are found at paragraphs 87 and 88 set out below:
87. …Regardless of how the door became open, in my judgment, a safe system of work should have prevented that from happening.”
88. In the circumstances, I find that the defendant did not provide a safe system of work and in that regard, I find that the defendant was in breach of his statutory duty under the Health and Safety at Work Act, and as a result of which the deceased met his demise”
The appellant appeals this decision. Mrs. McDonald argued that having found that the appellant was not negligent at common law, it was not open to the learned judge to find, as she did, that res ipsa loquitur applied because the application of the principle presumes common law negligence on the part of the appellant absent any explanation. As to the breach of statutory duty she drew attention to the evidence of a safe system of work that had been implemented by the appellant and opined that on the evidence no reasonable judge having correctly considered the law could conclude, as the learned judge did, that the appellant had not provided a safe system of work at the workplace. Alternatively, even if the learned judge so concluded, the death was not reasonably foreseeable due to that failure.
Under Section 10 of the Court of Appeal Act this Court has jurisdiction to hear appeals from a judgment or order of the trial judge. This jurisdiction is triggered by an appeal or cross appeal from that order or judgment. In this case there was no appeal or cross appeal from the judgment of the learned Judge that the respondent did not prove negligence at common law. The Court therefore has no jurisdiction to disturb that judgment. That leaves for consideration the claim of breach of statutory duty. The issues left for consideration by this Court are:
(1) whether, as determined by the learned trial judge, the appellant was in breach of his statutory duty to provide a safe system of work
(2) whether that breach caused the accident, and
(3) if so, whether the injury and death were reasonably foreseeable
There were 17 grounds of appeal. We take the liberty of summarizing them as follows: the plaintiff had no locus standi to sue, the facts of this case was not a res ipsa loquitur situation, and so the judge wrongly applied that principle to the facts of this case; the judge was wrong to find that the appellant was in breach of statutory duty under the Act, the judge was wrong to find that the death of the deceased was evidence of negligence by the appellant, and even if the appellant was in breach of his statutory duty the death was not reasonably foreseeable.
The respondent pleaded Section 4 of the Bahamian Act. In paragraph (a) of the PARTICULARS in the statement of claim she made the general...
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