Davis v Carnival's Crystal Palace Hotel Corporation Ltd
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 23 August 1994 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 1665 of 1991 |
| Date | 23 August 1994 |
Supreme Court
Sawyer, J.
No. 1665 of 1991
Mrs. Cheryl E. Bazard for the plaintiff
Mr. K. Neville Adderley for the defendant
Tort - Vicarious Liability — Plaintiff was hit by a blade of a forklift while working at his desk in a security position for the defendant — Plaintiff suffered from “progressive cervical myelopathy with quadrispasticity and quadriparesis” and had improved “significantly in his quadriparesis” prior to his employment — Ruling that the defendants were primarily liable for the injury to the plaintiff because they failed to provide him with a stable desk with sound legs — Plaintiffs were vicariously liable because there was no evidence that the employee had been forbidden by the defendant from driving the forklift.
Damages - Personal injury — Assessment — Airfares — Cab fares —Overseas telephone calls — Nursing services Medical expenses — Pharmaceuticals — Accommodation — Physiotherapist — Plaintiff was awarded special damages of $21,755.25 — General damages assessed at $5000.00 — Remainder of one—half industrial injury and disablement benefit of $6,509.49 was deducted.
The plaintiff is a former police officer who was medically boarded out of the Royal Bahamas Police Force in 1983 because he was suffering from “progressive cervical myelopathy with quadrispasticity and quadriparesis” which apparently were sequelae to an accident he had had while serving as a police officer. That diagnosis had been made by Dr. Barth A. Green of the Department of Neurological Surgery of the University of Miami School of Medicine (“Dr. Green”) in Florida, United States of America following surgery in 1981 in which a “two level anterior decompression on fusion for myelopathy and reptured disc” was carried out on the plaintiff. He had undergone pysiotherapy after his first surgery.
By 1986, Dr. Green who had reported that the plaintiff had done “extremely well post-operatively” in 1987 “with some residual myelopathy” diagnosed him as having “clonus, Babinski's and Hoffman's” and as obviously having “progress-quadriparesis”. Following that diagnosis the plaintiff underwent further surgery for treatment of an intramedullary cyst without cord expansion extending from C1 through the C6 level”.
In July 1987, Dr. Green reported that the plaintiff had improved “significantly in his quadriparesis” and was able to take a few steps and to stand.
Sometime between 1987 and 1989, Dr. Green apparently felt that the plaintiff was fit for work, if work suitable to his physical disability as well as his previous training as a police officer could be found so he wrote to the then president of the defendant Company, Mr. Richard Cook. The plaintiff was subsequently employed by the defendant to work in a security position at the warehouse of Carnival's Crystal Palace Hotel (“the hotel”). His duties included writing invoices for goods which had been requested or requisitioned by various departments of the hotel.
It was while he was working in that capacity in the warehouse on 30th March, 1990 that the incident out of which this action arises, occurred.
While, on the pleadings there is no dispute that there was an incident on that date in which the blade of a fork-lift hit the plaintiff's desk, there is dispute as to whether as a result of that incident the desk then pinned the plaintiff against the partition.
The plaintiff and Mr. Quentin Mark de Brossi Bastian (Bastian”) whose desks were side by side in the warehouse, both testified that Mr. Don Davis (“D. Davis”) while riding on a forklift apparently lost control of it so that its blade with about 3 loaded pallets hit the plaintiff's desk causing it to cannonade into the plaintiff forcing him back against the partition. They both said that the desk was moved “off of” the plaintiff by Bastian and D. Davis after the latter apparently realised how serious the matter was.
In cross-examination both the plaintiff and Bastian admitted signing written reports on the incident which were made on 6th April 1990, i.e., within a week of the incident. Certain passages in those written reports were inconsistent with the plaintiff's and Bastian's evidence in the witness-box.
In the witness-box the plaintiff denied telling the writer of the report that there had been two similar incidents previously in which another employee, Mr. Nelson Newbold (“Newbold”) was involved. He further stated on oath that there had only been one prior incident in which Newbold had damaged his walker.
The plaintiff also denied that he had told Dr. Green that there had been three such incidents (including, the incident of 30th March, 1990) although in his report dated 29 May, 1990, Dr. Green had written as follows:–
“I saw Sammie today in my office. It is my opinion that he suffered a contusion to his spinal cord after having a forklift hit his desk three different times. He is much weaker and barely able to walk. I have made several recommendations that I consider to be medically necessary. One, he return to Miami for a two hours a day, five days a week for four weeks, an aggressive outpatient physiotherapy program with Robin Smith, RPT. Additionally, I am ordering a plain cervical spine series, AP and lateral with flexion and extension views and a cervical spine MRI with CINE”. During this time he can stay at the Days Inn at a reasonable rate which is easily accessible to this therapy and my office.
“I estimate the cost of this stay to be $7000.00 plus daily food allowance.”
(Emphasis added)
There is no mention of any additional similar incidents in the letter of Dr. Walkine of May 28 1990. That letter reads:–
“To Whom it May Concern:
Re: Samuel Davis
“Please be advised that the above named patient received a whiplash injury on March 30th, 1990, when the chair in which he was sitting was overturned by the action of a forklift, being backed into his desk on the job.
“I am referring him for your further assessment and treatment.”
Mr. Adderley submitted that those matters indicated the plaintiff was a credible witness. If the plaintiff was not telling the truth then one wonders why he would deliberately deny something which it was clearly against his interest to deny.
In relation to Bastian — the part of his previous written statement which Mr. Adderley pointed out as being inconsistent with his sworn evidence was as follows:–
“On Friday 30th March 1990, while serving in my capacity as a security officer at the Crystal Palace warehouse, at approximately 11:34a.m. I observed an incident where Mr. Samuel Davis was push against the wall when the forklift operated by Don Davis at the time ran into his desk. At first Don Davis and another employee Nelson Newbold began to laugh, (sic) but I realising the seriousness of the situation went to assist Mr. Samuel Davis and then Don Davis assisted me in pulling the desk off of Mr. Davis. I then asked Mr. Davis if he was okay and his reply was yes. I made a note of the incident in the diary. Then I called Mr. Seymour, warehouse manager, out front and Mr. Samuel Davis reported to him what had happened and he taught (sic) like it was such a big joke also. Then he said he would look into the matter but to my knowledge the person was not even cautioned about what he had done to Mr. Davis.”
In the witness-box Bastian denied that he had asked the plaintiff if he was all right shortly after the incident and the plaintiff had replied “Yes”. He agreed with Mr. Adderley, however, that his memory of the events of 30th March 1990, would have been clearer on 6th April, 1990 than it was when he gave evidence more than four years later.
Mr. Adderley also cross-examined Bastian as to why he was no longer employed by the defendant no doubt in an attempt to show that Bastian was not a disinterested witness. Bastian, quite frankly in my view, said that he had left the defendant's employ in August of 1990 because he “wasn't quite happy with the conditions he had to work under.”
I am satisfied that both the plaintiff and Bastian were telling the truth from the witness-box and that the inconsistencies between their sworn evidence and their previous written statements is explainable by reference to the lapse of time between the time when the incident occurred and when they were called upon to give evidence.
I find support for that view because even D. Davis and Mr. Franklyn “Cutter” Rolle (“Rolle”) another employee of the defendant who was at work in the warehouse that day, also said that the blade of the forklift hit the plaintiff's desk causing it to move. However both D. Davis and Rolle as well as Newbold, said that the desk did not touch the plaintiff. As indicated to Mr. Adderley in the course of his address, I found both D. Davis and Rolle generally incredible not so much because of the conflicts in their evidence but because they contradicted themselves even while in the witness-box and because their demeanour was not what I would have expected of completely truthful witnesses. Indeed I got the distinct impression that Newbold was hostile to the plaintiff and that D. Davis and Rolle were friends and did not want D. Davis to be found liable for any injury which the plaintiff may have suffered as a result of the incident of 30th March 1990.
While I found D. Davis and Rolle not to be generally credible witnesses, there were parts of their evidence which I did find credible because it was against D. Davis' interest and well as against the interest of the defendant (on whose behalf they had been called as witnesses) and also because those portions of their evidence which I accepted were consistent with the evidence of other witnesses whom I considered credible.
D. Davis and Rolle said that the pallets were empty which D. Davis was about to pick up with the forklift...
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