Gilbert v BH RIU Hotels Ltd (Trading as RIU Paradise Island)
| Jurisdiction | Bahamas |
| Judge | Fraser, J. |
| Judgment Date | 20 May 2016 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2014/CLE/gen/00347 |
| Date | 20 May 2016 |
Supreme Court
Fraser, J.
2014/CLE/gen/00347
Wayne Munroe, Q.C., with Donovan Gibson for the plaintiff.
Gia Soles-Hunt for the defendant.
Negligence - Damages for personal injuries — Whether the defendant is liable for personal injuries caused to the plaintiff — Whether the defendant breached duty of care towards plaintiff — Slip and fall accident on defendant's premises — Whether there was a safety policy relating to safety of the stairwell for staff — Whether there were signs and personnel assigned around the pool — Occupiers liability — Test to be applied in determining whether occupier owed a duty of care — Bahamas Building Code.
By an amended Writ of Summons filed herein on the 20th February 2015, the plaintiff is seeking inter alia damages in negligence and or breach of contract and statutory duty as a result of personal injuries sustained by the plaintiff during a slip and fall during her employ at the defendant's premises. The plaintiff claims that the defendants, it servants or agents were negligent in:
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(a) failing to provide suitable and sufficiently safe access to the plaintiff's place of work or access to facilities on the premises of the defendant and or to make and keep the same safe for the plaintiff,
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(b) failing to warn the plaintiff of the dangers presented by sand and water spigot spillage on stairwell landing by the pool and or to warn the plaintiff of its failure to maintain the same,
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(c) causing or permitting the said premises to be or become or to remain dangerous and a safety hazard to persons,
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(d) failing to institute or enforce any or any adequate system of inspection and maintenance of the said premises,
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(e) failing in all the circumstances to take reasonable care for the safety of the plaintiff,
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(f) exposing the plaintiff to unnecessary risk of injury and,
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(g) failing to provide the plaintiff with a safe system of work,
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(h) the defendants its servants were also in breach of The Bahamas Building Code which was enacted pursuant to section 17 of the Buildings Regulation Act, Ch. 200 Statute laws of The Bahamas.
By its filed pleadings the defendant denies any acts of negligence whether statutory or by common law and state that the plaintiff injuries were caused or contributed by her own negligence as she failed to have regard for her own safety in not using the hand rails installed in the stairwell and she failed to have regard for her own safety in not observing the bright yellow “caution” sign placed in the stairwell and failing to heed the warning thereon.
On Wednesday 1st May, 2013, the plaintiff while employed with the defendant was coordinating a wedding ceremony which was scheduled to take place on the beach at BH RIU Hotel, Paradise Island. Some of her duties included decorating for the wedding arch and preparation for the reception dinner which followed immediately thereafter. As a result of this, the plaintiff was expected to traverse back and forth between the beach and hotel in order to coordinate the event.
Sometime around 6:00pm at the end of the wedding ceremony on the day in question, the plaintiff while walking up the stairwell located at the pool and beach area of the hotel, slipped and fell injuring her right wrist.
Is the defendant liable for the personal injury caused to the plaintiff on Wednesday the 1st May, 2013?
By the plaintiff's evidence, the cause of the slip and fall was as a direct result of the following:
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(i) defendant's stairwell having round edges with no non-skid protection,
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(ii) the stairwell was wet and filled with sand due to the water spigot located at the bottom of the stairwell, and
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(iii) the stairwell lacked side hand rails to the eastern and western walls.
The plaintiff stated that the stair well was crowed and she was not able to hold onto the handrail due to the number of guest using the stairwell. She also stated that it was customary for the spigot at the bottom of the stairs to run until it was turned off.
After falling she said she was assisted by a security guard present at the scene whom she later discovered was terminated and had died. She said she was placed in a wheel chair by a pool and beach attendant then transported to Doctors hospital. There she was attended to and x-rays showed her right wrist was fractured. Her hand was placed in a cast for a period of 6 weeks and she had to undergo therapy which she claims is still ongoing.
The plaintiff further claims in her witness statement that on May 2nd the following day, she returned to the hotel and gave a statement to the HR Manager. Ms. Daphne Miller who would have completed the necessary National Insurance Form on her behalf as she was unable to write due to the injury to her right hand. Ms. Miller confirmed this in her witness statement.
The plaintiff stated that there were no written safety policy relating to the safety of the stairwell for staff and there was no security posted at the top or bottom of the stairwell. It does appear that there were measures put in place after this incident.
The defendant case is that there was a safety policy and there were signs and personnel assigned around the pool at the stairwell at all times.
Mr. Amos Ferguson, a licensed architect was deemed an expert witness and called on behalf of the plaintiff. His expert opinion was that as far as practicable risers on stairs should be different shades of colour as to be distinguishable. During his evidence he stated that on his site inspection he noted the sand deposits on the staircase. Albeit the defendant provided evidence that the stairway is usually swept, it must be accepted that the mere fact that the stairway is located on the sand bank of the beach, means sand build up will frequently occur.
The defendant called a number of witnesses to show that the hotel had safety policies in effect as it related to the stairwell going down to the beach. The first was the Manager Mr Santiago Oritiz. This witness could however only speak to the position as off 2015 when he became the manager. Presently, he stated that there is a security on the beach and one in the pool area who would caution guests about the stairwell. He stated that there were no handrails and the hotel was aware of the infraction but they had a policy to warn guest to be careful when traversing the stairwell.
The Human Resource Manager Ms. Daphne Miller another witness for the defendant stated that there were caution signs throughout the hotel and at the bottom of the stairs to warn persons who used the stairs. She stated that there were also non-skid tiles on the stairs and there was a declaration of conformity on file to that effect.
The Human Resource Manager also stated that there was a policy regarding the cleaning of the stairwell. This was done every hour. Caution cones were to be placed around the pool and near the stairwell. However, the cones which were shown on the photos shown to the Court did not clearly show any caution warnings. Nor was there any signs warning guests to please hold on to the hand rail which was installed in the middle of the stairwell in the absence of rails on the left and right side of the stairwell.
The Human Resource Manager admitted that there was now a recommendation to install hand rails which would be acted upon based on the recommendation of the technical expert.
Mr. Kirk Bullard, a structural engineer employed with the Ministry of Works deemed an expert witness by the court was called by the defendant. On cross examination the witness was unable to say if the original plans for the hotel had rails or whether the width of the staircase was narrower on the approved plans. He however said that the plans would not have been approved without rails and his recommendation was that rails be installed for safety to avoid any misstep.
His report also found that there were variances in two places which made the stairwell non compliant with the Building Code. One variance at the top and one near the bottom. He admitted that the difference in variances could affect how a person ascends and descends stairs as there would not be consistency. His opinion was however that a difference in variance of two steps was not a problem in this case. On re-examination in his opinion the Building Controls Office would not reject the plans because of the variances.
The expert would have state that on his site inspection he would have seen security and pool attendants directing persons. This however does not assist the defendant's case as this would appear to be after the fact.
Travis Sands, the...
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