McPhee v Commonwealth Bank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Allen, P.
• Judgment Date: 25 September 2013
• Neutral Citation: BS 2013 CA 123
• Docket Number: SCCivApp 171 of 2012
• Court: Court of Appeal (Bahamas)
• Date: 25 September 2013

Court of Appeal

Allen, P.; Blackman, J.A.; John, J.A.

SCCivApp 171 of 2012

McPhee

and

Commonwealth Bank (Bahamas) Limited

Appearances:

Mr. Wayne Munroe with Ms. Chernenka Rolle for the appellant

Mr. Raynard Rigby with Ms. Candice Ferguson for the respondent

Civil practice and procedure - Appeal — Negligence — Personal injury — Whether the judge erred in law in finding the respondent's negligence was not the cause of the appellants injuries — Whether the judge erred by failing to consider contributory negligence — Causation — Respondent and appellant equally liable — Appeal allowed.

Allen, P.

1 This is an appeal against the decision of the learned Chief Justice dismissing the appellant's action with costs on the ground that the accident was caused by the appellant's actions and not as a result of the respondent's negligence.

2 The facts of the case are simple. On the 20th November 2009 the appellant, an employee of the respondent at the time of the incident, entered the elevator at her place of work. Upon entering, the appellant heard a fellow employee call out to hold the elevator. As her hands were full, the appellant swung her leg back and forth to prevent the elevator doors from closing. The appellant stated in her witness statement that on the third swing her shoe heel caught in a portion of the mat that was torn, she in turn fell on the ground hitting the back of her head. The appellant asserted before the Chief Justice that the accident was caused by the negligence of the respondent.

3 The Chief Justice, at paragraphs 15, 22–24 and 26 — 27of his judgment, determined that even though the respondent was in breach of its duty of care to the appellant by permitting the worn mat in the elevator to remain, the respondent's negligence did not cause the accident and subsequent damage. The relevant paragraphs of his judgment state:

• “15. In my judgment, the defendant was in breach of its duty of care to the plaintiff and other employees of the defendant by permitting the worn mat in the elevator to remain there for so long. The defendant had ordered a replacement since May 2009 and it had arrived in Nassau since June 2009. No reasonable explanation has been given for the defendant's failure to replace the mat shortly after it arrived. The only explanation was that the defendant's energies were focused on other things that had greater priority for the defendant. The continued presence of the worn mat was a hazard and made premises unsafe. The defendant was in breach of its duty of care.

• 22. The accident was caused by the plaintiff recklessly swinging her legs between the doors to keep them open whilst holding items in both hands.

• 23. I accept that ‘but for’ the tear on the mat the accident may not have happened. But I also accept that even if the tear on the mat existed, but for her swinging her legs between the doors, the accident would not have happened. The plaintiff argues that such a finding would be improper as it ignores the evidence of Garnell Kemp that she tripped and fell on the mat notwithstanding that she was not swinging her legs nor was she holding items in both hands. Whilst Ms Kemp appears to have been credible, I am not prepared to give much weight to her evidence as we simply do not know all of the circumstances surrounding that incident and there is no written record of it being reported to the defendant.

• 24. The plaintiff said that she was aware that the mat was worn and had a tear in it. The tear she said occurred in “early 2009” and had been there ever since then. She said that she complained about it before. The plaintiff could easily have kept the door open either by resting one of the items, thus making one hand free to press the “open” button on the elevator; or using one of her fingers on the hand holding the water bottle to press the “open” button. That is what a reasonable person would do. She could also have used her hands to keep the door open or even place her body between the doors. They were less reckless means of holding the door open. It was in my judgment completely unreasonable for the plaintiff to have kept both of her hands occupied and swing her legs to keep the door open. The plaintiff's actions were unreasonable or to use the language in Norris v. W. Moss & Sons Ltd [1954] 1 W.L.R. 346 “fantastically wrong.”

• 26. In my judgment, as a matter of common sense, the accident occurred not because the mat was worn or torn but because of the manner in which the plaintiff decided to use to keep the elevator door open for her co-worker.

• 27. The plaintiff in my judgment took an unreasonable risk in the manner in which she chose to keep the elevator door open and cannot hold the defendant liable for the consequence of that risk.”

4 It is the appellant's position that the Chief Justice erred in law in finding that the tear in the elevator mat was not the cause of the appellant's injuries. The appellant further posited that the Chief Justice erred when he failed to consider the issue of contributory negligence. In support of their arguments the appellant placed before the court the House of Lords' decision in McGhee v. National Coal Board [1972] 3 All ER 1008, Stapley v. Gypsum Mines Ltd [1953] AC 663, Dawrant v. Nutt ...