Scott v Freeport Aggregates Ltd
| Jurisdiction | Bahamas |
| Judge | Evans, J. |
| Judgment Date | 20 February 2013 |
| Court | Supreme Court (Bahamas) |
| Docket Number | CLE/gen/FP 178 of 2007 |
| Date | 20 February 2013 |
Supreme Court
Gray-Evans, J.
CLE/gen/FP 178 of 2007
Mr Craig F. Butler along with Mrs Erica Darr for the plaintiff
Mr Ryan O. Brown for the defendant
Tort - Negligence — Employer's liability — Personal injury — Whether the employer was liable for the personal injuries, loss and damages sustained by its employee — Whether the claimant caused or contributed to his own injuries — Whether the doctrine of Res Ipsa Loquitur should apply — Termination of employment — Dismissal — Whether the claimant has proven his claim for wrongful dismissal — Both claims dismissed.
This action was commenced by the plaintiff, Elwood Scott, by a generally indorsed writ of summons on 21 August 2007, claiming damages for personal injuries which he alleges he sustained on 28 June 2006 as a result of the negligence of the defendant, Freeport Aggregates Limited, in failing to keep in good repair its cement truck of which the plaintiff was employed as a driver. The plaintiff also claimed interest and costs.
The plaintiff filed his statement of claim on 28 November 2007 in which he pleaded at paragraph 4 thereof as follows:
“On Wednesday, 28 June 2006, sometime about 12:15 p.m. in the course of his employment the plaintiff was driving a concrete truck owned and operated by the defendants, in the course of their business, north on a road off Grand Bahama Highway towards the defendant's business operations and plant, in the City of Freeport when after driving over a bump in the road, the steering wheel locked and the plaintiff lost control of the truck which turned over causing him injuries.”
By consent of the parties, the plaintiff was granted leave to amend his statement of claim which was filed on 7 February 2012. At paragraph 3 thereof, the plaintiff pleaded as follows:
“In the course of his employment whilst executing his duties on the morning of the 28th June, 2006, the plaintiff was driving the defendant's vehicle north along the unnamed road adjoining the defendant's premises, when the vehicle's wheel locked after the plaintiff drove over a bump in the road which then caused the plaintiff to lose control and the vehicle to flip over thereby causing him injuries.”
At paragraph 6 of his amended statement of claim the plaintiff states:
“The plaintiff will contend that the aforesaid pain, injury, loss and damage were caused or contributed to by the negligence and/or breach of statutory duty of the defendant their employees or agents acting in the course of their employment.”
The plaintiff provided the following particulars of negligence and/or breach of statutory duty on the part the defendant:
-
(a) Failing to exercise required care and to take account of the safety of drivers;
-
(b) Failed to provide or maintain a safe place of work for the plaintiff;
-
(c) Failing to provide or maintain for the plaintiff a safe system of work;
-
(d) Failing to provide the plaintiff with relevant information on the risks to his health and safety and the preventative and/or protective measures identified by the above mentioned risk assessment.
-
(e) Failing to provide adequate and sufficient maintenance of the defendant's concrete truck, which was being driven by the plaintiff;
-
(f) Causing, permitting, requiring or suffering the truck to be adequately serviced;
-
(g) Assigning the plaintiff to drive a truck which was mechanically faulty and dangerous to drive;
-
(h) Failing to discharge the common duty of care to see that the plaintiff was safe in using the truck;
-
(i) Failing to take any or any adequate care for the safety of the plaintiff;
-
(j) Exposing the plaintiff to a danger or a foreseeable risk of injury;
-
(k) Caused, permitted, required or suffered the plaintiff to be exposed to conditions in which the defendant knew or ought to have known could have been potentially dangerous;
-
(I) Continued to employ the plaintiff in work which constantly exposed her [sic] to the risk aforesaid;
-
(m) Caused or permitted the plaintiff to work as aforesaid when they knew or ought to have known that it was unsafe to do so;
-
(n) Failing to undertake a suitable and sufficient assessment of the risks of such work and/or failed to give effect to such arrangements as would have been appropriate to prevent the injury or otherwise protect the plaintiff; and
-
(o) Failure to take the steps particularized hereinafter as constituting breach of their statutory duty.
The defendant, their employees and/or agents acting in the course of their employment were in breach of their statutory duty in that:
-
(a) Upon arrival at the scene of the accident the defendant failed to take the necessary steps to ensure the safety of the plaintiff;
-
(b) They knew or ought to have known that the truck was mechanically faulty and a possible danger to the plaintiff.
-
(c) They knew or ought to have known that the truck needed to be adequately repaired;
-
(d) They knew or ought to have known that not to protect the plaintiff against or to prevent the plaintiff from operating the mechanically faulty truck would have given rise to a foreseeable risk of danger to the plaintiff;
-
(e) They failed to comply with the provisions of the Health and Safety at Work Act, 2002 in that they failed to take all practical measures to protect the plaintiff against foreseeable injury while at work;
-
(f) They failed to comply with s.4 of the said Act 2002 by ensuring that the truck was safe and mechanically sound and without risk of injury to the plaintiff while executing his duties; and
-
(g) Furthermore, the plaintiff also contends that he was unfairly and wrongfully dismissed by the defendant.
In its amended defence filed 21 February 2012, the defendant denied or did not admit the plaintiff's allegations of negligence, breach of statutory duty, causation, loss, injury and/or damage and put the plaintiff to strict proof thereof. Additionally, the defendant asserted that any loss or damage which the plaintiff may prove was wholly caused or contributed to by the plaintiff's negligence, alleged particulars of which are as follows:
-
(a) Failing to stop, slow down or otherwise manage or control the concrete truck so as to avoid the accident
-
(b) Driving at an excessive speed
-
(c) Failing to adhere to the speed limit
-
(d) Failing to keep any or any proper look-out or to have any or any sufficient regard for traffic that was or might reasonably be expected to be on the said road.
The parties agreed that the trial before me would be on the issue of liability alone and if I found for the plaintiff, then the matter would be referred to the Registrar for the assessment of damages, unless, of course, the parties agreed otherwise.
Giving evidence at the trial were the plaintiff and his witness, Mr Ewart Baillou, along with Mr Jesse Lee, the defendant's Maintenance Supervisor. Each of the witnesses filed a witness statement, which he adopted as his evidence-in-chief and each was cross examined.
The plaintiff's evidence is that on the date of the accident he was employed by the defendant as a concrete truck driver and as such he was responsible for carrying large loads of concrete to various job sites in Grand Bahama. That during such employment, he was assigned three different trucks - CT-19, CT-10 and CT-6 - from amongst the defendant's fleet of trucks. However, at the time of the accident he was driving CT-10.
According to the plaintiff, his daily routine was to arrive at work at 8 a.m., inspect his assigned truck by ensuring that it had sufficient fuel and oil; that the routers were greased; that the tires had air and that the truck was weighed. He said he would then wait in line until it was his turn to collect the concrete, after which he would go to the “slum” so that another employee could add water to the concrete and the truck would be weighed again. Thereafter, the plaintiff said he would collect his delivery assignment slips from the office and leave to make his deliveries, between three and four of them on a daily basis. Under cross examination, the plaintiff admitted that because of the aforesaid procedure, he had an opportunity to drive the truck, albeit for short distances, on at least two occasions before leaving the defendant's premises to make his deliveries.
The plaintiff's evidence is that about six to seven months prior to the accident, CT-10 was having persistent problems. He said that the wheel was constantly shimmying, the brakes were leaking air and were not holding; that often “the brakes would pull to the left”. He said that he reported the problems to his supervisor, Larry Idol, on a weekly basis and Larry would tell him to take the truck to the mechanic shop for them to look at. The plaintiff said that even after it was taken into the shop to be repaired, CT-10 would be returned to him with the same problems and he would have to take it back into the shop again.
According to the plaintiff, a week before the accident, he was again having problems with CT-10: the wheel was shimmying, the air was leaking and the brakes were not holding and whenever he pressed brakes the truck would “pull to the left”. He said he again reported the problem to Larry Idol and asked him to test drive the truck, which Mr Idol did. He said that after test driving the truck, Mr Idol took it into the mechanic shop. The plaintiff said that Jesse Lee was the new mechanic at the time. He said he was assigned another truck, CT-6, to use while CT-10 was being repaired and “the following day”, while leaving from a job in Bahamia South, CT-6 began losing air pressure and the brakes were not holding. He said that the truck “ran up” onto the sidewalk and knocked down two palm trees. The plaintiff said he reported the incident to Larry, who, along with Jesse, came to the scene...
To continue reading
Request your trial