Ornal Gilbert v Nassau Flight Services
| Jurisdiction | Bahamas |
| Judge | Charles Snr. J |
| Judgment Date | 14 March 2022 |
| Year | 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2019/CLE/gen/01444 |
The Honourable Madam Senior Justice Indra H. Charles
2019/CLE/gen/01444
IN THE SUPREME COURT
Negligence — Health and Safety at Work Act, Ch. 321C of 2002 ss 5 and 6 — Whether the Defendant (who was not employer of Plaintiff) owed him duty of care — Whether the Defendant as owner of equipment bore the duty of ensuring that it was safe — Occupier's liability — Damage from “unusual danger” — Res ipsa loquitur — Defendant filing bare defence — Parties bound by pleadings
Damages — Personal injuries — Measure of damages — Assessment of damages — Special damages — Must be pleaded, particularized and proven — Family nursing care — Loss of overtime pay — Loss of earnings from business — General damages — Pain, suffering and loss of amenities — Smith v Manchester award — Judicial College Guidelines — Not to slavishly followed
The Plaintiff is employed by Jet Aviation, the ground handler at the airport. The Defendant leased Airstairs to Jet Aviation. The Plaintiff commenced this action against the Defendant for negligence and breach of statutory duty under the Health and Safety at Work Act for personal injuries after an accident where the Plaintiff fell through the platform of an Airstair provided by the Defendant. The Plaintiff alleged that the fall was caused by the Defendant's negligence in providing a defective Airstair.
In its Defence, the Defendant denied liability and put the Plaintiff to strict proof of his assertions. It did not, however, assert its own version of events or deny the existence of a duty of care (at common law or under the Health and Safety at Work Act), that the duty was breached or that the breach of duty caused the accident.
The Plaintiff made a preliminary objection with respect to the Defendant's Defence: that it was a bare Defence, thereby disentitling it from advancing certain arguments.
HELD: finding that the Plaintiff's injury was caused by the Defendant's negligence; the Plaintiff is entitled to damages in the total sum of $128,411.58 with costs to be taxed if not agreed
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1. Parties are bound by their pleadings and a party cannot generally seek to advance a case that is not expressly raised in his pleadings. Pleadings are still required to mark out the parameters of the case that is being advanced by each party so as not to take the other by surprise. They are still vital to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader and the court is obligated to look at the witness statements to see what the issues between the parties are, The Defence must: (a) indicate(i) which parts of the claim the defendant admits; (ii) which parts it denies; (iii) which parts it doubts to be true (and why); (iv) which parts it neither admits nor denies, because it does not know whether they are true, but which it wishes the claimant to prove; (b) give the defendant's version of the facts in so far as they differ from those stated in the claim – Bahamas Ferries Limited v Charlene Rahming SCCivApp & CAIS No. 122 of 2018; Glendon Rolle v Scotiabank 2017/CLE/gen/01294; Ralph Gooding v Elizabeth Ellis and National Workers 2020/CLE/gen/00272 and SPI North Ltd v Swiss Post International (UK) Ltd and another [2019] EWCA Civ 7 applied.
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2. Section 5 of the Health and Safety at Work Act imposes a duty on every employer in conducting his business to take reasonable steps to ensure the safety of persons who, although not in his employ, are affected thereby. Under section 6, the Defendant had a duty to take reasonable steps to ensure that the Airstair that it was supplying to Jet Aviation was designed and constructed so that its use would be safe. The Defendant also had a duty to carry out or arrange for testing of equipment as the supplier of Airstairs and other equipment.
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3. The owner of premises has a duty to use reasonable care to prevent damage to the Plaintiff from unusual danger – Cox v Chan (c.o.b. East Street South Supermarket) [1991] BHS J. No. 110; Rahming v Bahamas Ferries Limited [2018] 1 BHS J. No. 55 applied.
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4. As the owner and lessor of the Airstair, it was the Defendant, and not Jet Aviation who bore the responsibility of ensuring that the Airstair was safe for use.
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5. Special damages must be specifically pleaded, particularized and proved: Ilkiw v Samuels and others [1963] 2 All ER 879 applied; Chandler v Kaiser et al [2007] 4 BHS J. No. 22 distinguished.
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6. Even where the caretaker has not foregone wages, the Plaintiff is entitled to recover for nursing care where the caretaker bears many more duties as a result of the Plaintiff's disability - Mills v British Rail Engineering Ltd. [1992] PIQR Q130 applied.
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7. The possible loss of earning capacity was not a “notional” loss but a real risk - Smith v Manchester City Council (or Manchester Corporation) (1974) 17 KIR 1 applied. In assessing damages for this loss, the multiplier/multiplicand is unhelpful. Moeliker v A Reyrolle & Co. Ltd. [1977] All ER 9 applied.
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8. When calculating damages under the various heads of damages, regard must be had to the effect that each separate award for each separate head of injury may have on the size of the global sum: See Brown v Woodall [1995] PIQR Q36.
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9. In assessing damages for pain, suffering and loss of amenities, the approach of Bahamian Courts is to have regard to but not to slavishly apply the Judicial College Guidelines - Scott v The Attorney General and Another [2017] UKPC 15; Angelina Turnquest v Stephen Rahming [2022] 1 BHS J. No. 8 applied.
Ms. Vanessa Carlino with Ms. Ilsha McPhee for the Plaintiff
Mr. Joseph D'Arceuil with Mr. Kenyatta Gibson for the Defendant
By Generally Indorsed Writ of Summons filed on 10 October 2019 and Statement of Claim filed on 28 February 2020, the Plaintiff (“Mr. Gilbert”) claims against the Defendant (“NFS”) damages for personal injuries caused by the negligence and/or breach of statutory duty which resulted in an injury from an accident which occurred on 6 November 2018. On that date, as he was conducting his work of making an Aistair belonging to NFS available for an aircraft, he fell through the top platform which was damaged (unbeknown to him).
In his Statement of Claim, Mr. Gilbert alleged, among other things, that NFS acted negligently and/or in breach of the Health and Safety at Work Act, Ch. 321C of 2002 (“the Act”) by, among other things, failing to efficiently maintain the Airstair, failing to ensure that it was suitable for use and failing to warn him of its dangerous conditions or otherwise preventing him from using it.
In its Defence filed on 18 March 2020, NFS merely denied Mr. Gilbert's allegations and put him to strict proof.
Mr. Gilbert was, at the material time, employed by Jet Aviation as a Line Service Technician and Supervisor.
NFS were the ground handlers at the Sir Lynden Pindling International Airport with the responsibility of providing aircraft ramps and stairways for alighting aircrafts. NFS leased to Jet Aviation an Airstair so that it could carry out its function as ground handlers.
On 6 November 2018, the Airstair was moved to the back door of an aircraft. In his normal course of duties, Mr. Gilbert climbed the steps of NFS's Airstair and fell through the top platform which was damaged, defective, unfixed and/or loose.
Mr. Gilbert suffered a torn Right Rotator Cuff as a result of the fall.
A preliminary issue arose with respect to the assertions that NFS is permitted to raise (or the assertions of Mr. Gilbert that it is entitled to oppose) based on NFS's bare Defence.
At the beginning of the trial, Learned Counsel Mr. D'Arceuil, who appeared with Mr. Gibson for NFS, asserted that one of the issues that arise is whether NFS owed a duty of care under the Act. While Mr. Gilbert pleaded that NFS breached its duty under the Act, NFS did not deny the existence of the duty in its Defence, In fact, there was no mention of the statutory duty at all as its Defence consisted of bare denials without any explanation.
The Court brought to Mr. D'Arceuil's attention that NFS did not plead the opposition to the existence of a duty of care under the Act. Mr. D'Arceuil, at the trial, asked to amend the Defence.
In his Statement of Claim, Mr. Gilbert alleged that NFS acted negligently and/or in breach of its statutory duty under the Act by, among other things: (i) failing to ensure that the Airstair was in good condition; (ii) failing adequately or at all to examine, inspect, repair or maintain the Airstair which was loose, insecure, defective and dangerous; (iii) failing to warn Mr. Gilbert of the dangerous condition of the Airstair; (iv) causing or permitting the Airstair to come to be or remain loose, insecure, defective and dangerous; (v) exposing Mr. Gilbert to a danger or a trap or the foreseeable risk of injury and (vi) failing to maintain in an efficient state, in efficient working order and in good repair the Airstair.
The Defence of NFS consisted of bare denials. In order to have a better appreciation for the preliminary issue, it is helpful to reproduce NFS's Defence in full.
“1. As regards Paragraphs 1, 2 and 3 of the Plaintiff's Statement of Claim, the Defendant is unable to admit or deny such allegations made out in the said Paragraphs and puts the Plaintiff to strict proof thereof.
2. As regards Paragraph 4 of the Plaintiff's Statement of Claim, the Defendant is unable to admit or deny that the Plaintiff on the 6 th November, 2018 was acting in the course of his employment during a routine inspection of the Airstair owned, rented, leased or loaned by the Defendant to Executive Flight Support...
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