Irene Burrows v Island Hotel Company Ltd D/b/a Atlantis Paradise Island, bahamas
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 13 May 2020 |
| Date | 13 May 2020 |
| Docket Number | 2019/CLE/GEN/00215 |
| Court | Supreme Court (Bahamas) |
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
The Hon. Madam Justice G. Diane Stewart
2019/CLE/GEN/00215
Mr. Edward Turner for the Plaintiff
Mrs. Lakeisha Hanna and Mrs. Viola Major for the Defendants
Civil — Employment — Frustration of Contract — Negligence — Wrongful Dismissal — Slip and Fall — Severance — Contributory Negligence — Safe system of work — Frustration of Employment Contract — Duty to Accommodate without incurring economic hardship — Deed of Release — Duress — Burden of Proof — Plaintiff to pay half Defendant's Costs
Held: The Plaintiffs action against the Defendant for Negligence and Wrongful Dismissal is dismissed due to the Plaintiffs execution of a Deed of Release signed on the 3Qth January, 2017 when the Defendant severed ties with the Plaintiff. The Plaintiffs contract of employment with the Defendant was not frustrated by the Plaintiff prior to the termination. The Defendant did attempt to accommodate the Plaintiff by seeking to find another position for her, however no such position was available. The Defendant's attempt does not satisfy the test for accommodation established in Island Hotel Company Limited v Cheryl Carey-Brown. The Defendant did not coerce the Plaintiff into signing the Deed of Release in order to receive her final cheque as she was given an opportunity to leave the meeting to make a phone call to discuss the same before signing the release and was also given the option to apply for a Review Board Hearing. The Defendant is awarded three quarters of its costs to be taxed if notagreed.
By a Specially Endorsed Writ filed 28th February, 2018 Ms. Irene Burrows (“the Plaintiff) commenced an action against Island Hotel Company Limited (“The Defendant / Hotel”) for negligence and wrongful dismissal and severance pay, damages, interest and costs.
The Plaintiff, was employed by the ( the “Hotel.”) as a Stewarding Manager and was at work on 30th March 2016 when she slipped, fell and sustained injuries to her right shoulder and knee after falling on a flight of stairs in the Hotel. She claimed that the area where she fell was a dark blind area and was wet and the Hotel neglected to erect signage to warn of the stairway.
As a result of the fall and the injuries sustained, she underwent surgery on her right shoulder in October 2016 and subsequently on her right knee which left her only able to perform sedentary employment tasks and unable to perform her duties as a Stewarding Manager. The Plaintiff claimed that the Defendant was unwilling to offer the Plaintiff a sedentary type of employment.
On 30th January, 2017 the Plaintiff was terminated by the Defendant, which she claims was wrongful. Since her termination, she was unable to obtain employment suitable to her medical condition which has caused her continuing economic hardship.
The Plaintiff further claimed that the severance paid to her after her dismissal of, $12,637.75, reflected compensation for line staff rather than a manager's pay and seeks the balance of $20,724.57 she says is owed to her.
The Plaintiff in her closing submissions sought the following awards comprising both general, special damages and interest:
1. Remainder of Termination Pay $11,053.15
2. Special Damages. $20,430.00
3. Pain, suffering and loss of amenities $150,000,00
4. Past Loss of Earnings $32,922.00
5. (a) Future Loss of Earnings $77,832.38
(b) Continued loss of earnings $359,174.40
(c) Loss of Congenial Employment $10,000.00
6. Smith v Manchester Award $179,613.21
$646,463
Interest $38,787.83
Total $685, 251.67
By its Defence filed 6 th April, 2018, the Hotel denied that the termination was wrongful and claimed that the Plaintiffs employment contract was frustrated by her inability to perform her required duties and that the Plaintiff was not entitled to the severance and compensation claimed.
It also denied that the stairway had any moisture, that there was no visibility nor that it required signage. It further denied that the Plaintiffs alleged accident and injuries were occasioned by any negligence or breach of duty of care on the part of the Hotel.
The Hotel put the Plaintiff to proof of any injuries and damages claimed but claimed that in any event no permanent alternative employment was available which met the Plaintiffs sedentary work requirements.
The Hotel alternatively claimed that the Plaintiff was contributorily negligent as she failed to take any or any reasonable care for her own safety, properly secure her footing and take reasonable care in the circumstances to avoid any injury to herself.
Finally the Hotel claimed that the Plaintiff discharged and renounced any right of action against the Hotel in exchange for the severance received pursuant to signing a written release on 30 th January, 2017.
On 17 th June, 2019 the parties filed an Agreed Statement of Facts and Issues. The Agreed Facts are:
The Agreed Issues are:
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12.1 The Plaintiff is a former employee of the Defendant.
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12.2 The Plaintiff alleges that, on the 30 th March, 2016, while on duty, she fell on a stairway.
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12.3 The Plaintiffs employment with the Defendant was terminated.
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12.4 The Plaintiff signed a document entitled “Release”, which purports to release and discharge the Defendant from any and all claims, demands, actions or suits arising out of or in connection with the termination of the Plaintiffs employment.
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12.5 Whether or not the Defendant owed the Plaintiff a common duty of care and, if so, what was the standard of the common duty of care owed.
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12.6 Whether or not the Defendant was in breach of the common duty of care, whether that breach caused damage to the Plaintiff.
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12.7 If the Defendant was in breach of the common duty of care, whether that breach caused damage to the Plaintiff.
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12.8 If the breach caused damage to the Plaintiff, what was the damage caused.
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12.9 Whether or not the Plaintiff is entitled to an award of Special Damages and, if so, in what amount.
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12.10 Whether or not the Plaintiff is entitled to an award of General Damages and, if so, in what amount.
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12.11 Whether or not the Release signed by the Plaintiff releases the Defendant from liability for the Plaintiffs claim for wrongful dismissal and, if not, whether or not the Plaintiff was wrongly dismissed by the Defendant.
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12.12 Whether or not the Plaintiff is entitled to receive severance pay and or damages from wrongful dismissal by the Defendant.
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12.13 Whether the Plaintiff is entitled to recover interest on any such damages awarded by the Court and, if so, in what amount.
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12.14 Whether the Plaintiff is entitled to recover costs in connection with this action and, if so, in what amount.
Accordingly, the issues for the Court to determine would be:
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13.1 Whether the employment contract was frustrated by the Plainitff?
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13.2 Whether the Plaintiff is estopped from bringing the claim against the Hotel as a result of signing the release upon termination;
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13.3 If not whether the Plaintiffs slip and fall was as a result of the Hotel's negligence;
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13.4 If the Hotel breached its duty of care of the Plaintiff, what damages are owing to the Plaintiff;
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13.5 Whether the Plaintiff was wrongfully dismissed by the Hotel and if so what is owed to the Plaintiff;
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13.6 Whether the severance paid to the Plaintiff by the Hotel was in
accordance with the Plaintiffs salary scale.
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13.7 If the Plaintiff is successful in proving any of the above, what relief she would be entitled to?
0n the first day of trial, Counsel for the Plaintiff, Mr. Edward Turner (“ Mr. Turner”) made an ex-temporae application to visit the locus in quo as he felt there were facts that could only be appreciated upon visiting the locus. Counsel for the Defendant, Mrs. Viola Major (“ Mrs. Major”) initially objected but later agreed and a visit to the locus in quo was conducted on 26 th June, 2019.
The Plaintiff as Stewarding Manager attested that her job was to ensure that a number of kitchens were set up and broken down each day, as well as to assist in transporting the necessary items to these kitchens. On the 30 th March, 2016, while at work at The Hotel she slipped and fell on a dark stairway near her office, sustaining severe injuries to her right shoulder and both her knees (“the accident”) which caused her to be unable to perform her duties. She blamed the accident on an accumulation of water being on the stairs, which she said occurred on a regular basis causing previous accidents that were reported but nothing had been done about it. She further stated that there were no warning signs in the area.
The Plaintiff stated that she was terminated by the Hotel, causing her to incur additional expenses. She further stated that the amount given for her termination was not what was lawfully due to her as she was a manager and should have received more. The Plaintiff claimed that it was the Hotel's negligence that caused her injuries and that she was forced to execute a release under duress as she was told by Mr. Marlon Bethel in the presence of Mr. Rendol Rolle that she would not receive any money if she did not sign the release.
As a result of her termination, her salary deductions to Bank of The Bahamas (“ BOB”) stopped and caused BOB to foreclose on her home. The Plaintiff additionally stated that she had been unable obtain other employment because her legs were weak and she was not able to stand for long periods of time resulting in her having to sell lunch from home to earn a living..
As Stewarding Manager, the Plaintiff was responsible for six kitchens and it was usual for her to attend each restaurant during her shift. She also had to ensure that the loading dock was...
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