REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2015-02920

BETWEEN

RANDY NANAN

Claimant

AND

TRINSULATE 2 CARIBBEAN LIMITED

First Defendant

ARCELORMITTAL POINT LISAS LIMITED

Second Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. A. Seaton instructed by Ms. R. Brown for the Claimant

Ms. V. Gopaul instructed by Mr. A. Misir for the Second Defendant

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Judgment

1. By Claim Form filed on the 27th August, 2015, the Claimant seeks damages for personal

injuries, consequential loss and expenses suffered by him as a result of negligence of the

Defendants which resulted ultimately in the amputation of one of his fingers.

2. The First Defendant settled with the Claimant and by way of Notice for Discontinuance

filed on the 5th January, 2017, the Claimant’s claim against the First Defendant was

discontinued. Accordingly, for all intents and purposes, the issues of liability and quantum

to be determined in this action, arise as between the Claimant and the Second Defendant

only. On the date of trial, the Second Defendant did not appear and was unrepresented.

This resulted in no evidence being tendered on behalf of the Second Defendant. The court

however afforded the Second Defendant the opportunity to file closing submissions.

The Claim

3. The Claimant was employed by the First Defendant as a Stir Station Operator. At the

material time, the Claimant was working at the Second Defendant’s premises. The

Claimant claims that whilst carrying out his duties on the compound of the Second

Defendant, he took instructions from the Second Defendant. The Claimant further claims

that he adhered to the health and safety procedures and policies of the Second Defendant,

who at all material times determined and/or set up and/or implemented the system of work

applicable to the performance of his duties.

4. On the 29th August, 2011, whilst at the compound of the Second Defendant, the Claimant

during the course of his employment severely injured the middle finger of his right hand.

The Claimant’s right hand is his dominant hand. According to the Claimant, the incident

occurred when in attempting to manually rotate and guide the hook of a machine to its

operating position, his middle finger got caught between the hook and a plate of the

machine. The Claimant avers that this incident was caused by the negligence of the Second

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Defendant, their servants and/or agents in failing to provide a safe place of work and/or a

safe system of work.

The Defence of the Second Defendant

5. The Second Defendant denies that the Claimant took instructions from it or that he was

subjected to its health and safety procedures. The Second Defendant claims that by written

agreement dated the 29th April, 2010 (“the said agreement”), it engaged the services of a

company named RHI-AG. According to the Second Defendant, by the said agreement,

RHI-AG and the First Defendant were independent contractor and independent sub-

contractor respectively. The Second Defendant therefore claims that the First Defendant

was solely responsible for; (i) employing skilled employees; (ii) providing its employees

with equipment and training (including safety training); (iii) instructing, supervising and

managing its employees in the performance of their duties; and (iv) paying the wages or

salaries of its employees.

6. The Second Defendant further denies that the Claimant’s alleged injuries were caused by

its negligence and/or breach of statutory duty. The Second Defendant contends that in

relation to the system of work, its role was limited to establishing the Standard Operating

Procedures (“SOP”) and the health and safety requirements for the tasks involved in the

performance of the said agreement. That the First Defendant was responsible for all other

aspects relating to the system of work which included ensuring that the Claimant followed

the SOP.

7. According to the Second Defendant, the task which the Claimant was allegedly performing

on the day in question involved the attachment of a chain to a hook and the removal of the

chain from the hook. The Second Defendant avers that this was an established task in its

steel operations which is incapable of being automated and therefore had to be performed

manually. The Second Defendant further avers that it created an SOP for the performance

of the said task which assessed and established precautions against the risks involved in

the performance of same. That among the precautions established, was the use of a lance

pipe (a metal pipe) which is passed through the chain and secured on either end of the

slotted racks at the end of the ladle. According to the Second Defendant, this step removes

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all tension from the chain, so that the hook could be safely removed. Additionally, the

Second Defendant claims that it is only upon the completion of the aforementioned task

and the safe removal of the hook that the Stir Station Operator is required to communicate

via the two way radio with the Crane Operator. Further, in event of any abnormality,

problem or potential danger, the Stir Station Operator is required to report same to the

supervisor on shift for the rectification of same.

8. The Second Defendant contends that the Claimant did not adhere to its SOP and as such,

the incident was caused wholly or was contributed to, by the negligence of the Claimant.

Issues

9. The general legal issues for determining liability in this case are as follows:

i. Whether the Second Defendant owed a duty of care to the Claimant and if so what

was the extent of that duty of care;

ii. Did the Second Defendant breach a duty of care and whether damage resulted;

iii. If so, whether there was contributory negligence on the part of the Claimant; and

iv. To what damages, if any, is the Claimant entitled.

Issues 1 & 2 – Duty, Breach & Causation

10. A finding of negligence requires proof of (1) a duty of care to the Claimant; (2) breach of

that duty and (3) damage to the Claimant attributable to the breach of the duty by the

defendant: Charlesworth & Percy on Negligence Thirteenth Edition, Chapter 1,

paragraph 1-19. There must be a causal connection between the Defendant’s conduct and

the damage. Further, the kind of damage suffered by the Claimant must not be so

unforeseeable as to be too remote: Clerk & Lindsell on Torts Nineteenth Edition. Chapter

8, paragraph 8- 04.

11. Justice Kokaram in quoting from Lord Wright in Aaron Jairam v Trincan Oil Ltd.

CV2010-04153 at paragraphs 101 &102 set out as follows;

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“The establishment of that duty of care calls for a close examination of the relationship

between persons to determine whether an obligation can be imposed for the benefit of the

other to take reasonable care in the circumstances. Lord Wright in Grant v Australian

Knitting Mills Limited [1936] AC 85 identified the need to define the precise relationship

from which the duty can be deduced:

“All that is necessary as a step to establish the tort of actionable negligence is to define

the precise relationship from which the duty to take care is deduced. It is however essential

in English Law that the duty should be established the mere fact that man is injured by

another’s act gives in itself no cause of action if the act is deliberate the party injured will

have no claim in law even though the injury is intentional so long as the other party is

merely exercising a legal right if the act involves a lack of due care against no case of

actionable negligence will arise unless the duty to be careful exists.”

In the well-known line of authority that examined the need to establish a legal framework

in defining that relationship from which the duty is to be deduced beginning with Donoghue

v Stevenson (supra), Anns v Merton London Borough Council [1978] AC 728, Yuen Kum

Yeu v Attorney General of Hong Kong [1988] AC 175 to Caparo Industries Plc v Dickman

[1990] 2 AC 605 the general theme has been to establish a framework of balancing

foreseeability, proximity and policy considerations.” (Emphasis mine)

The evidence

12. The Claimant called one witness in addition to his testimony, namely Anthony Jules. The

Claimant is thirty-four (34) years of age. In or about June 2010, while employed as a Stir

Station Operator by the First Defendant. However, he was required to work at the steel

plant of the Second Defendant. It was the evidence of the Claimant that the First Defendant

was a sub-contractor hired by the Second Defendant to operate its Stir Stations. RHI-AG

was the head contractor. The Claimant testified that while he worked at the Second

Defendant’s Stir Stations, he took instructions from the Second Defendant in relation to

the duties he was required to perform. Further, the Claimant reported to the employees of

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the Second Defendant and adhered to the health and safety procedures and policies of the

Second Defendant.

13. According to the Claimant, the Second Defendant was in the business of producing steel.

One of the practices undertaken at the Second Defendant’s compound is Tipping. Tipping

is the process used to pour out molten metal from a ladle (a large cup shaped, open top,

metal vessel). At the bottom of the ladle is a chain known as a dumping chain, which is

pulled by a crane in order to tip the ladle. The dumping chain is attached to the crane by

means of an auxiliary hook. This hook is not always attached to the dumping chain, it is

only attached when tipping is required.

14. It is part of the Claimant’s function to connect the auxiliary hook to the dumping chain

before and after tipping. The process of connecting the auxiliary hook to the dumping chain

required the Claimant to put his hands through a small 2.5 by 3 feet wide window in the

Stir Station. The window was small so as to minimize the Stir Station Operator’s exposure

to the tremendous heat emanating from the molten metal within the ladle. The Claimant

testified that due to the small size of the window, he usually could not see anything other

than what was directly in front of him through the window. Thus, the Claimant would have

to rely on the assistance of the Crane Operator to get a full picture of what was going on

outside the window. Communication with the crane operator was by means of a hand held

two-way radio, which was supplied by the Second Defendant.

15. On 29th August, 2011 the Claimant’s injury occurred while he was assisting in tipping slag

(waste residue left over after the smelting of steel and metal) from the ladle at stir station

two. The auxiliary hook needed to be detached from the dumping chain. The Claimant was

in the process of giving directions to the crane operator, Mr. Clinton Ashby, through the

two-way radio communication. As the radio was hand held, the Claimant held the radio in

one hand. On approaching the ladle from the window to attach the chain hook and install

the pipe on the slotted plates of the ladle with the other hand, a request for the crane

operator to come down with the auxiliary hook was acknowledged. However, the Claimant

noticed that the chain at the top sloth was coiled (which reduced the full extension of the

auxiliary hook) causing the said hook to face west rather than its operating north position.

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The Claimant testified that if the hook remained in this off position, it would have become

stuck in between the slotted plates, giving rise to heavy unwarranted spillage of the molten

metal when the auxiliary hook was lifted.

16. Consequently, the Claimant attempted to manually rotate and guide the hook to its

operating position. He testified that this was the normal and only process of rotating the

hook. Whilst the Claimant attempted to rotate the hook, the chain at the top sloth uncoiled

causing the hook to suddenly and forcefully turn back. Based on the proximity of the

Claimant’s right hand and the plate, his right middle finger got caught between the plate

and the hook and was severely injured.

17. According to the evidence of the Claimant, the SOP for tipping was not shown to him prior

to the date of the incident. The Claimant saw the SOP for the first time at his attorney’s

office after disclosure was made.

18. At the material time, Mr. Anthony Jules was employed with the First Defendant as a

Senior Safety Officer. Jules’ main responsibilities included inter alia, conducting health

and safety investigations and reporting same to management.

19. On 30th August, 2011, Jules started an investigation into the incident which gave rise to the

Claimant’s injuries. Having investigated the incident, Jules submitted an Interim Report

dated 30th August, 2011 to Mr. Ian Fernandes, the Manager of the First Defendant.

Thereafter, Jules continued his investigations into the incident by visiting the site where

the Claimant was injured and by meeting with a number of persons, namely, (i) Mr. Clinton

Ashby, the Crane Operator on duty at the time the Claimant was injured; (ii) Mr. Shane

Ralph, the Shift Supervisor for the First Defendant; and (iii) the Claimant, himself. Having

completed his investigation, Jules produced his final report (on the incident) dated the 6th

September, 2011 and submitted same to Fernandes.

20. Jules testified that from the information he received from the interviews he conducted,

there was no SOP. According to Jules, there was a risk of an employee being injured in the

absence of a SOP. From Jules’ conversations with the Claimant, Ralph and Ashby, he

gathered that the auxiliary hook becoming stuck in between the plates was quite normal.

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That even though this was a normal occurrence, Jules was not shown any SOP to cover the

situation.

21. According to the evidence of Jules, there was a two-way radio which was handheld rather

than hands free. Jules testified that this left the Stir Station Operator with the choice of

either having continuous communication with the crane operator or being able to use both

hands for his task, but not both at the same time.

22. Whilst on the site, Jules saw the little hole that the Claimant had to operate through. Jules

testified that all that could be seen through the hole was the melting pot, a chain and pulley.

That the Claimant could not have a broad view of what was happening outside of that

system. Jules further testified that he recommended that a “buddy system” be implemented

as he felt that operating through the little hole was unsafe due to the intense heat and weight

of the apparatus. Jules found that the process was one which the First or Second Defendant

ought to automate as there was a serious risk that if something went wrong, someone could

be seriously injured. In Jules’ opinion, the incident occurred because both Defendants

failed to put proper systems in place.

The Claimant’s Submissions

23. According to the Claimant, the Second Defendant owed him a duty of care because (a) the

type of harm he suffered was foreseeable, (b) there was a relationship of proximity between

the Second Defendant and him and (c) it is fair, just and reasonable that such a duty be

imposed on the Second Defendant.

24. The Claimant submitted that the Second Defendant owed him a duty to (i) produce a proper

SOP for the performance of his work functions, (ii) provide a system of communication

that would minimize the risk of injury to him and (iii) ensure that he had proper visibility

to adequately mitigate the risk he was exposed to whilst carrying out his work functions.

According to the Claimant, it was clear that the Second Defendant understood that there

was a foreseeable risk that someone carrying out his task could be injured. In the Second

Defendant’s SOP for Tipping Slag (See Tab 18 of the Trial Bundle of Agreed and Un-

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agreed Documents filed on the 4th January, 2017) under section 5.2, it states that there is

a risk of injury to limbs when engaging the auxiliary.

25. In support of his contention that the Second Defendant owed him a duty of care, the

Claimant relied on the cases of Donoghue v Stevenson [1932] AC 562, Caparo v Dickman

[1990] 2 AC 605 and Intercommercial Bank Limited v Charles B. Lawrence and

Associates CV2012-01258

26. In Donoghue supra, Mrs. Donoghue went to a cafe with a friend. The friend brought her a

bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that

the contents could not be seen. Mrs. Donoghue poured half of the contents of the bottle

over her ice cream and also drank some from the bottle. After eating part of the ice cream,

she then poured the remaining contents of the bottle over the ice cream and a decomposed

snail emerged from the bottle. Mrs. Donoghue suffered personal injury as a result. She

commenced a claim against the manufacturer of the ginger beer and was successful.

27. The Claimant submitted that in Donoghue, Lord Atkin in the House of Lords firmly

established that negligence is not limited to cases involving certain special types of

relationship between the parties. Instead, negligence arises in every case where there is an

objectively foreseeable risk of harm to a person or class of persons. At page 580, Lord

Atkin stated as follows;

"You must take reasonable care to avoid acts or omissions which you can reasonably

foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The

answer seems to be persons who are so closely and directly affected by my act that I ought

reasonably to have them in contemplation as being affected when I am directing my mind

to the acts or omissions which are called in question."

28. In Caparo supra, a new test had been introduced requiring the situation to be one in which

the court considers it fair, just and reasonable that the law should impose a duty of a given

scope upon the one party for the benefit of the other. In that case, accounts were

inaccurately prepared making a target company seem to be in a better financial position

than it was. Investors relied on those inaccurate accounts to purchase the company and thus

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suffered loss. The question was whether the accountant owed the investor any duty of care

in relation to the preparation of the accounts. The court answered this question in the

negative based on the ground that such a duty was not fair or reasonable. Lord Bridge at

pages 617 and 618 stated as follows;

“…in addition to foreseeability of damage, necessary ingredients in any situation giving

rise to a duty of care are that there should exist between the party owing the duty and the

party to whom it is owed a relationship characterised by the law as one of 'proximity' or

'neighbourhood' and that the situation should be one in which the court considers it fair,

just and reasonable that the court should impose a duty of a given scope upon the one

party for the benefit of the other.”

29. In Intercommercial Bank Limited supra, paragraph 25, Justice Jones stated as follows;

“...I agree with the reasoning of Lord Bridge of Harwich in the case of Caparo Plc v

Dickman [1990] 2 AC 605 when he acknowledges that in order to determine the scope of

the duty reference must be had to the kind of damage from which the professional must

take care to save the third-party harm. In other words what is required to be proved is

not only that there was a duty owed but that the duty was with respect to the type of loss

suffered. The first step therefore is to ascertain the purpose and circumstances under

which the information was given.”

30. The Claimant submitted that the Second Defendant breached its duties towards him and

that those breaches were directly linked to the injuries he sustained. According to the

Claimant, a person breaches his duty of care when he fails to do what the reasonable man

would do in similar circumstances. That the legal standard of care is objective; it is not that

of the defendant himself, but that which might be expected from a person of ordinary

prudence, or person of ordinary care and skill, engaged in the type of activity in which the

defendant was engaged. However, the Claimant submitted that in this case, where a

Defendant is seised of specialised knowledge and skill, the Defendant is responsible to

perform duties with the care and attention that a person in a similar industry will apply.

That the standard is therefore stricter.

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31. The Claimant relied on the case of Bolam v Friern Hospital Management Committee

(1957) 1 WLR 582, wherein Mc Nair J at page 586 stated as follows;

“But where you get a situation which involves the use of some special skill or competence,

then the test whether there has been negligence or not, is not the test of the man on the top

of a Clapham omnibus, because he has not got this special skill. The test is the standard of

the ordinary skilled man exercising and professing to have that special skill. A man need

not possess the highest expert skill at the risk of being found negligent. It is well established

law that it is sufficient if he exercises the ordinary skill of an ordinary competent man

exercising that particular art.”

32. In furtherance of his submission that the Second Defendant breached its duties towards

him, the Claimant submitted that the SOP created by the Second Defendant in relation to

the Stir Station Operator’s role in connecting and disconnecting the chain was woefully

inadequate. That the SOP left too much to the worker’s intuition and thereby exposed him

to serious risk. The Claimant accepted that not every single detail could have been provided

for in a SOP, however, he submitted that the SOP was deficient in that it did not detail how

the Claimant could have taken precaution to observe all due care and attention.

33. Further, the Claimant contended that the Second Defendant claimed in its Defence that the

worker was required to report abnormalities to the supervisor, but that the SOP did not

distinguish between normal and abnormal events. The Claimant submitted that in any event

the manual guiding of the hook was the normal and only process by which the problem he

encountered could have been fixed.

34. Moreover, the Claimant submitted that there was no evidence that the Second Defendant

supervised or monitored the implementation of this SOP. The Claimant argued that an SOP

must not simply be handed to workers. That there must be some type of feedback

mechanism to find out whether it was being implemented and to modify it if any changes

were required. The Claimant further submitted that perhaps if there was a feedback

mechanism, the Second Defendant might have known about the dumping chain becoming

stuck between the plates.

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35. According to the Claimant, the Second Defendant further breached its duties towards him

as the communications systems provided by it was ineffective and insufficient to mitigate

the risk of damage. The Claimant submitted that no guidelines were provided as to the use

of the two-way radio. That this in turn left it for the Claimant to prescribe for himself the

proper usage of the radio and ultimately lead to his injury.

36. It was the submission of the Claimant that the hand held two-way radio caused him to

choose between constant communication and the use of both of his hands. That the situation

was untenable and it more likely than not contributed to his injury. According to the

Claimant, the use of one hand to talk and the other to guide the hook was not prohibited by

the SOP, and there was no evidence that it was otherwise prohibited.

37. Further, the Claimant contended that the Second Defendant ought to have implemented a

buddy system to compensate for his impaired vision via the window. That the Second

Defendant breached its duty to take care of his safety by failing to provide such a system.

The Submissions of the Second Defendant

38. It is the contention of the Second Defendant that the Claimant is wholly responsible for the

incident which caused his injury. The Second Defendant submitted that on the Claimant’s

own evidence, communication with the crane operator was only necessary whilst the crane

was in motion. The Second Defendant further submitted that the Claimant had no use for

the handheld radio at the time of manually rotating and guiding the hook. That when the

ladle reached the window and it was time to attach the hook to the crane, the Claimant

ought to have had both hands free but instead, he continued to hold the radio in one hand

and was doing his job with the other.

39. It was the submission of the Second Defendant that this Court ought to take a common

sense and practical approach when determining whether the SOP should have specifically

advised the Claimant that the two-way radio during the hooking up process would be

unsafe and was therefore prohibited. The Second Defendant submitted that every person

engaged in any work-related activity is under an obligation to take precautions for his/her

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own safety. For this submission, the Second Defendant relied on the case of Nance v

British Columbia Electric Ry [1951] 2 All ER 448 at 450 &451, wherein Viscount Simon

stated as follows;

“…when contributory negligence is set up as a defence, its existence does not depend on

any duty owed by the injured party to the party sued and all that is necessary to establish

such a defence is to prove to the satisfaction of the jury that the injured party did not in his

own interest take reasonable care of himself and contributed, by this want of care, to his

own injury. For when contributory negligence is set up as a shield against the obligation

to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is

part author of his own injury, he cannot call on the other party to compensate him in full.

This view of the matter has recently been expounded, after full analysis of the legal

concepts involved and careful examination of the authorities, by the English Court of

Appeal in Davies v Swan Motor Co (Swansea) Ltd to which the Chief Justice referred. This,

however, is not to say that in all cases the plaintiff who is guilty of contributory negligence

owes to the defendant no duty to act carefully. Indeed, it would appear to their Lordships

that in cases relating to running-down accidents like the present such a duty exists…Such

a plea should be treated as setting up want of care by the plaintiff for his own safety,

whether in the circumstances of the accident the plaintiff owed a duty to the defendant or

not.”

40. The Second Defendant further submitted that the above common law duty has been

statutorily recognized in the Occupation Health and Safety Act, Chapter 88:08 (“OSHA

Act”). Section 10(a) of the OSHA Act provides as follows;

“(1) It shall be the duty of every employee while at work—

(a) to take reasonable care for the safety and health of himself and of other persons who

may be affected by his acts or omissions at work…”

41. According to the Second Defendant, it is undisputed that the task in question involved a

risk of injury to the Claimant’s limbs. That the risk was equally foreseeable by the Second

Defendant as it was to the Claimant. As such, it is the contention of the Second Defendant

that the Claimant cannot credibly assert that he had to be told via the SOP that he should

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not have been using the two-way radio while he was engaged in a task which carried a risk

of injury to his limbs. That this was an unsafe activity which any reasonable man ought to

know and ought to refrain from doing in an industrial environment with heavy machinery.

The Second Defendant further contended that to impose such a duty on them to inform the

Claimant that he should not have been engaging in the use of such an obvious unsafe

activity would be tantamount to reliving the Claimant of any personal responsibility for his

safety and/or exercising any commonsense. Consequently, the Second Defendant

submitted that insofar as the Claimant was engaged in the unsafe activity of multi-tasking

at the material time without any satisfactory explanation for same, he was doing so on his

own without regard for his own safety.

42. It is the contention of the Second Defendant that the Claimant failed to adduce any evidence

that there was something outside of the window which he could not see and which impacted

on his ability to perform his duties at the material time. The Second Defendant therefore

submitted that the absence of a buddy system did not contribute to the accident and was

irrelevant to this case.

43. The Second Defendant argued that it was apparent from the Claimant’s own evidence that

the coiling of the chain was an abnormal event since it could lead to unwarranted spillage

of molten metal. The Second Defendant submitted that the evidence of Jules was that the

Claimant’s attempt to rectify the coiled chain was the first of its kind which he, the

Claimant experienced on the job (See the last bullet point on page 2 of the final report of

Jules exhibited as “A.J. 2” to Jules’ witness statement). As such, the Second Defendant

submitted that there was no evidence that the coiling of the chain was a regular occurrence

or something which was known to the Second Defendant and which therefore, should have

been provided for in the SOP. That the auxiliary hook becoming stuck in between the plates

which was a regular event was different from the coiling of the chain which occurred in

the instant case. That Jules’ evidence in relation to the auxiliary hook becoming stuck

between the plates is of no assistance since the evidence of the event which led to the

incident did not show that the dumping chain becoming stuck between the plates.

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44. The Second Defendant submitted that the Claimant having recognized the existence of an

abnormal event assumed that the appropriate action to be taken was to manually rotate and

guide the hook. The Second Defendant further submitted that in the absence of any

evidence that this abnormal event occurred previously and was known or ought to have

been known by the Second Defendant, it cannot be held liable for negligence for failing to

provide for same in the SOP.

45. It was the submission of the Second Defendant that there was a feedback mechanism in

place. That the said agreement between the First and Second Defendant provided for

reporting between them on matters of health and safe. 7.1.5 of the said agreement provides

as follows;

“The Contractor shall expressly and forthwith inform the Company throughout the term of

this Agreement of any circumstance or requirement concerning safety, heath,

environment…”

46. Consequently, the Second Defendant contended that on matters of health and safety, it was

the responsibility of the First Defendant to advise the Second Defendant of any abnormal

events occurring during the performance of the Claimant’s duties.

47. Further, the Second Defendant contended that the Claimant did not produce any evidence

of the existence of any automated process which would have been reasonably available to

the Second Defendant at the material time. As such, the Second Defendant submitted that

in the absence of such evidence, no finding could be made against it.

Findings

48. In relation to the provision of the SOP, the only evidence as to whether same was provided

to the Claimant prior to the incident comes from the case of the Claimant. In that regard

the court accepts his evidence that the first time he would have seen the SOP was when

same was disclosed to his lawyer during the course of case management of the claim.

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49. It is settled law that in order to establish a duty of care three ingredients must exist, namely

1) the foreseeability of damage; 2) the existence of a relationship characterized by the law

as one of “proximity” or “neighbourhood” (between the party said to owe the duty and the

party to whom it is claimed to be owed) and 3) the situation should be one in which the

Court considers it fair, just and reasonable that the law should impose a duty of care: See

per Lord Bridge of Harwich in Caparo Industries plc v Dickman and Others [1990] 2

A.C 605, 617-618 cited by Mendonça, J.A. in Clyde Dindial v RBTT Bank Limited C.A.

244/2009.

50. On the facts of this case, the First Defendant was the employer of the Claimant, however

he was assigned to work at the Second Defendant’s steel plant. According to the evidence

of the Claimant, while working at the Second Defendant’s compound, he took instructions

from the Second Defendant, reported to the employees of the Second Defendant and

adhered to the health and safety procedures and policies of the Second Defendant. The

Claimant also worked together with the Second Defendant’s workers. The Court therefore

finds that a relationship existed characterized by law as one of “proximity” or

“neighbourhood” since the Claimant being much a part of the business of the Second

Defendant, fell under the control and supervision of the Second Defendant.

51. Consequently, the Court finds that the Second Defendant owed the Claimant a duty of care

to provide a safe working environment by providing 1) an adequate SOP for the

performance of his work functions and 2) a system of communication that would minimize

the risk of injury to him. This duty must extend to ensuring that hazards that are reasonably

foreseeable are treated with, in the effort to minimize or eliminate the risk due to hazard

exposure thereby providing a safe work environment for all workers under the employ of

the Second Defendant. Whether something is reasonably foreseeable must depend on the

individual circumstance of each case when taken in the context of the evidence. The

evidence shows quite clearly that the Claimant’s tasks involved hazards that posed the risk

of injury to limbs. The Defendant argued that on the Claimant’s evidence the coiling of the

chain was an abnormal event. There is no evidence that prior to this incident, the Claimant

made any complaints pertaining to the chain becoming coiled. Be that as it may, according

to the Second Defendant’s Defence, among the precautions established, was the use of a

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lance pipe (a metal pipe) to remove all tension from the chain in the event of the chain

becoming coiled. In the Court’s view, this was an acknowledgement by the Defendant that

the chain becoming coiled was a hazard that was reasonably foreseeable and the Court so

finds. It follows therefore that this precaution should have been incorporated as part of its

SOP to ensure that in the event of the chain becoming coiled, the Claimant would have

known what steps to take. As such, the Second Defendant by failing to include this

precaution in its SOP, which it stated has been established, breached its duty towards the

Claimant to provide a safe system of work, as he was unaware and uninformed of the

control measure put in place to manage this hazard, thereby mitigating the risk.

52. The Second Defendant further breached its duty towards the Claimant by failing to provide

a hands-free system of communication. The fact that the Claimant was in communication

with the Crane operator whilst the crane was not in motion is irrelevant. The SOP for

tipping slag neither stated when communication was required, nor prohibited such

communication. The important fact is that the Second Defendant being aware that 1) the

duties of the Claimant required the full use of his hands to efficiently carry out his tasks as

a Stir Station Operator and 2) the Claimant’s task involved the risk of injury to limb, was

under a duty to provide the Claimant with hands-free communication to effectively execute

his duties.

53. Moreover, the Court finds that the absence of a buddy system did not contribute to the

incident and was irrelevant to this case since the Claimant failed to adduce any evidence

that there was something outside of the window which he could not see and which impacted

on his ability to perform his duties at the material time.

54. Consequently, the Court finds that the Second Defendant breached its duty towards the

Claimant by;

i. Failing to provide a safe place of work and/or safe system of work for the Claimant;

ii. Failing to take any adequate precaution for the safety of the Claimant while he was

engaged in his employment at the Second Defendant’s premises;

iii. Failing to give and/or warn the Claimant to be alert as to the coiling of the chain;

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iv. Failing to warn the Claimant of the dangers of manually rotating and guiding the

hook or otherwise preventing the Claimant from so doing; and

v. Failing to provide adequate staffing so that the Claimant would not have had to

manually guide the hook by himself and without assistance.

Issue 3 - Contribution

55. Contributory negligence means some act or omission by the injured person which

constituted a fault, in that it was blameworthy failure to take reasonable care for his or her

own safety and which has materially contributed to the damage caused: See Munkman:

Employer’s Liability at Common Law, Fifteenth Edition, Chapter 6, paragraph 6.10.

56. Halsbury's Laws of England, Volume 78 (2010), paragraphs 76, 77, 78 & 80, provides

the following in relation to contributory negligence;

“76. In order to establish contributory negligence the defendant has to prove that the

claimant's negligence was a cause of the harm which he has suffered in consequence of the

defendant's negligence. The question is not who had the last opportunity of avoiding the

mischief but whose act caused the harm. The question must be dealt with broadly and upon

commonsense principles. Where a clear line can be drawn, the subsequent negligence is

the only one to be considered; however, there are cases in which the two acts come so

closely together, and the second act of negligence is so much mixed up with the state of

things brought about by the first act, that the person secondly negligent might invoke the

prior negligence as being part of the cause of the damage so as to make it a case of

apportionment. The test is whether in the ordinary plain common sense the claimant

contributed to the damage.

77. The existence of contributory negligence does not depend on any duty owed by the

claimant to the defendant and all that is necessary to establish a plea of contributory

negligence is for the defendant to prove that the claimant did not in his own interest take

reasonable care of himself and contributed by this want of care to his own injury.

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78. The standard of care in contributory negligence is what is reasonable in the

circumstances, and this usually corresponds to the standard of care in negligence. The

standard of care depends upon foreseeability. Just as actionable negligence requires the

foreseeability of harm to others, so contributory negligence requires the foreseeability of

harm to oneself. A person is guilty of contributory negligence if he ought reasonably to

have foreseen that, if he did not act as a reasonably prudent person, he might hurt himself

…As with negligence, the standard of care is objective in that the claimant is assumed to

be of normal intelligence and skill in the circumstances...If the negligence of the defendant

puts the claimant in a position of imminent personal danger then conduct by the claimant

which in fact operates to cause harm to him, but which is nevertheless reasonable in the

agony of the moment, does not amount to contributory negligence.

80. Knowledge by the claimant of an existing danger or of the defendant's negligence may

be an important element in determining whether or not he has been guilty of contributory

negligence. The question is not whether the claimant realised the danger but whether the

facts which he knew would have caused a reasonable person in his position to realise the

danger. It is a question of fact in each case whether the knowledge of the claimant in the

particular circumstances made it so unreasonable for him to do what he did as to

constitute contributory negligence… On the one hand, the claimant must act reasonably

with regard to the dangers which he knows, or ought to know, exist, and to any regulations

or other precautions imposed for the purpose of avoiding them. On the other hand, he is

entitled to rely on reasonable care and proper precautions being taken…”

57. The Second Defendant submitted that if the Court finds that the Claimant was only partially

responsible for the incident, he should be held 50 % liable for same.

58. The Claimant submitted that there was no evidence that he was reckless or that he in any

way caused or contributed to the injury he received. That even if the Court was persuaded

to make a finding of contributory negligence, the percentage should be small since it would

amount to a punishment against a zealous employee intent on advancing the Second

Defendant’s business.

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Findings

59. It ought to have been reasonably foreseeable to the Claimant that his attempt to turn the

hook may have resulted in harm to his person. This is particularly so since the Claimant

appears on the evidence to have been somewhat experienced at his task. In fact it would

have been his experience which would have given him the bravado to conclude that he

could have resolved the issue by taking the matter into his own hands. In the given

circumstance, the prudent thing to do would have been to stop, notify the crane operator of

the difficulty and remove himself from danger. In the court’s view therefore he would have

contributed to his own injury by his own negligence.

60. The percentage of his contribution must however be reckoned with regard to what would

have been foreseeable should he have stopped and removed himself from the danger. In

such a case it is more likely than not that he would have suffered no harm at all. His

contribution to his injury is therefore substantial in the court’s view. In the premises the

court finds that a contribution of forty percent (40%) is appropriate.

Issue 4 – Damages

The evidence

61. At the time of the incident, the Claimant was twenty-nine years of age and is currently

thirty-four years of age. According to the evidence of the Claimant, at the time of the injury,

his finger was bleeding profusely and he was in excruciating pain. The medical reports

disclose that the Claimant suffered a crush injury to his right middle finger resulting in the

loss of extensor tendon, the skin being sheared off and his bone ligament being exposed.

This was treated conservatively to achieve skin healing and cover of the exposed tendon

and bone. On the 26th March, 2012, the Claimant underwent surgery to repair the injury to

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his finger. Thereafter, the Claimant developed extreme stiffness at the metacarpo-

phalangeal, proximal interphalangeal and distal interphalangeal joints preventing

satisfactory return of function. On the 24th October, 2012, the Claimant was referred to the

department of plastic surgery. The Claimant testified that he was unable to perform any

type of work from the date of his injury until the 7th March, 2013, when it was medically

determined by Dr. Persad that he could do some type of work.

62. When no further improvement could be done on the Claimant’s finger, he underwent

surgery on the 5th May, 2014, to amputate same. After the amputation, the Claimant’s

wound healed and the range of motion and function of his hand improved. His permanent

partial disability was assessed at 12% as at the 8th July, 2015.

63. The Claimant testified that it took about six (6) months to adjust to not having his finger

and to be able to have some use of his hand. He was unable to do any type of work during

this period. The Claimant currently experiences a sharp, shocking pain on contact in the

palm, on the outside region of his right hand (along the areas where the amputated finger

would be connected), and going along towards the wrist.

64. According to the evidence of the Claimant, he was employed as a Welder prior to working

as a Stir Station Operator. As a result of his injury he can no longer be employed in the

welding trade since he is unable to hold the welding equipment and wear the necessary

protective gloves. The Claimant testified that since his injury, he has only been able to

source unreliable and odd jobs with the result being an unreliable source of income. The

Claimant is capable of doing light tasks and mainly supervisory work. The Claimant further

testified that since the injury he cannot lead the active lifestyle he enjoyed prior to same.

That the injury has prevented him from playing cricket which is his hobby and enjoying

quality time with his children.

General Damages

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65. The relevant principles for assessing general damages, in a personal injuries claim were set

by Wooding CJ in Cornilliac v. St. Louis (1966) 7 WIR 491. They are as follows;

i. the nature and extent of the injuries sustained;

ii. the nature and gravity of the resulting physical disability;

iii. the pain and suffering which had to be endured;

iv. the loss of amenities suffered; and v. the extent to which, consequentially,

pecuniary prospects have been materially affected.

Damages for Pain and Suffering, and Loss of Amenities

66. The Claimant submitted that an appropriate range for his injuries is between $50,000.00

and $75,000.00. That the sum of $75,000.00 is an appropriate award under this head of

damages. In arriving at this figure, the Claimant relied on the following authorities;

i. Rattan v Carlisle Tire and Rubber (Free Zone) Ltd H.C. 1029/2000 - In this case

the plaintiff was twenty-eight years and suffered a crushed left hand with the loss

of the distal two digits of all fingers of the left hand. The Plaintiff underwent four

operations and was in severe pain for a year. The Plaintiff also suffered with post-

traumatic stress disorder, which included insomnia, irritability, distressing

flashback, anxiety, forgetfulness and lack of concentration. The plaintiff was

declared medically unfit to work. In June, 2003 Master Sobion, awarded

$90,000.00 for general damages exclusive of pecuniary prospects. This award was

adjusted to December, 2010 to $159,156.00.

ii. Lovell, Carol v Tye Manufacturing Company Limited HCA 1293 of 1998 - In this

case the plaintiff was a female whose age was not disclosed. The injuries suffered

were an injured left hand and amputation of her left index, middle and ring fingers.

She underwent four operations and experienced a lot of pain. She was unable to

continue to perform her duties due to the noise level and she was diagnosed as

suffering with post-traumatic stress syndrome. Master Paray-Durity, awarded

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$90,000.00 for non-economic loss. The award was adjusted to December, 2010 to

$154,164.00.

iii. Narine, Devanand v Boodram, Errol trading as Price Right Furniture Factory

CV2008-00409 – In this case the Claimant’s fingers were caught in the blade of a

table top saw and were so severely damaged that it became necessary for him to

undergo emergency surgery and to have his left thumb, index finger, middle finger

and ring fingers completely removed. Justice Dean-Amorer awarded $115,000.00

in general damages.

67. The Second Defendant submitted that having regard to Devanand Narine supra, the sum

of $75,000 for the loss of one finger on the Claimant’s dominant hand which resulted in

12% permanent partial disability is too high. The Second Defendant further submitted that

a reasonable award for loss of one finger would range between $40,000 and $50,000. For

those figures, the Second Defendant relied on the case of Nickel Audhan v the Attorney

General CV2014-00388, wherein the Claimant was awarded $20,000 for the loss of the

distal end of a finger.

68. Moreover, the Second Defendant submitted that the court should reject the Claimant’s

evidence that his injury impacted on his ability to spend time with his children since he has

not established same.

69. In the Court’s view, the injuries sustained by the Claimant (as set out above) appear to be

sufficiently severe so as to bring it within the scope of an award on the higher end. Further,

the Court accepted the Claimant’s evidence that his injury affected his ability to play sports

and interact with his children since it can be reasonably inferred from nature of his injuries

that same would have affected his life in that manner, especially given the fact that his right

hand was his dominant hand. The court will therefore award the sum of $75,000.00 under

this head.

Loss of Future Earnings

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70. The Claimant submitted that his injury has handicapped him in the labour market but has

not rendered him completely unemployable. The Claimant claimed the sum of $50,000

under this head of damages and further claimed that same be paid as a lump sum. The

Claimant referred the Court to the following cases;

i. Narine v Errol Boodram supra wherein Dean-Amorer J guided by the learning in

Cole v Bulou and Another as well as Keith Morris v Point Lisa Steel Products

awarded $50,000.00 for loss of future earning power.

ii. Lovell v Tye Manufacturing Company Limited supra wherein Master Paray-

Durity made an award of $50,000 for loss of further earning. In arriving at that

figure, Master Paray-Durity had regard to Re: Joyce and Yeomans 1981 2 AER 21

wherein the head note stated that “In a case where in regard to damages for loss of

earning capacity, there were many imponderables and the assessment of damages

was necessarily a matter of guess work, it was inappropriate to apply a multiplier

and multiplicand and make a mathematical calculation and the correct approach

was to select a global figure which seemed to represent fair compensation.” Master

Paray-Durity further stated that this sum attracted no interest.

71. The Second Defendant accepted that an award of $50,000 under this head of damages is

consistent with the conventional sum normally awarded. As such, the Second Defendant

had no objection to the sum of $50,000 being used and the court will therefore award same.

72. The total award for general damages is therefore $125,000.00 ($75,000 + $50,000).

Special damages

73. Special damages must be specifically pleaded and proved as established in Grant v Motilal

Moonan Ltd (1988) 43 WIR 372 per Bernard CJ and reaffirmed in Rampersad v Willies

Ice Cream Ltd C.A. 20/2002. The burden is, therefore, on the Claimant to prove his losses.

Loss of past Earnings

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74. Before the incident, the Claimant was earning a gross salary of $7,200.00. The Second

Defendant submitted that the salary that should be used to calculate the Claimant’s loss of

past earning is his net salary which is $6694.64 (7,200 – 505.36 for PAYE). The Claimant

conceded this submission. As such, the Court re-calculated the figures the Claimant

claimed based on his agreement.

75. The re-calculated figures (based on $6,694.64) for the periods the Claimant claimed loss

of earnings are as follows;

i. $122,177.18 for the period of the 29th August, 2011 to the 7th March, 2013 at his

full salary on the ground that he was only declared fit for work on the 7th March,

2013 after his injury;

ii. $46,862.48 for the period of the 8th March, 2013 to the 5th May, 2014 at half of his

salary on the ground that he was earning some income during this period;

iii. $40,167.84 for the period of the 6th May, 2014 to the 6th November, 2014 at his full

salary on the ground that this was the recovery period following his surgery and

was therefore unable to work during this period;

iv. $90,377.64 for the period of the 7th November, 2014 to date at half pay on the

ground that he continues to suffer loss of earnings.

76. The Claimant submitted that his total loss of earnings should be discounted by 25% to take

into account the contingencies of life. As such, the sum reduced by 25% is $224,689.00

(($122,177.18+$46,862.48+$40,167.84+$90,377.64) - 25%).

77. The Second Defendant submitted that compensating the Claimant for loss of 50% of his

salary is excessive having regard to the fact that (a) the Claimant has not produced any

evidence of such substantial loss of earnings and (b) his permanent partial disability is 12%.

In those circumstances, the Second Defendant submitted that the loss which the Claimant

ought to be compensated for is 30% of his net salary, that is to say $2231.54.

78. However, the Second Defendant took note of the fact that the Claimant discounted the

figure he claimed for loss of past earnings by 25%. Consequently, the Second Defendant

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submitted that it will not object to the figures claimed by the Claimant for loss of earnings

for the said periods so that the award will be made accordingly.

Past expenses

79. The Claimant claimed $75.00 under this heading. The Second Defendant did not object to

this figure and the court will therefore award same.

80. The total award for special damages is therefore $224,764.00 ($224,689.00 + $75.00)

Interest

81. The Court of Appeal in the case of the Attorney General v Fitzroy Brown and others CA

251/2012 set out that the pre-judgment interest rate on general damages should be aligned

with the short term rate or the rate of return on short term investments of which there is

some evidence before the court. Further, the Court of Appeal in that case reduced the rate

of pre-judgment interest rate on general damages from 9% to 2.5%. There being no

evidence of the rate of return on short term investments before the Court, the Court will

award 2.5% interest on general damages. Further, the Court will also award 2.5% interest

on special damages.

Deduction of Settlement with the First Defendant

82. The Claimant disclosed that the sum he settled with the First Defendant was $212,417.00.

The Claimant disclosed this sum so that in all fairness, he would not be doubly

compensated by any award the Court is minded to make.

83. The Second Defendant submitted that it agrees with the Claimant that the sum of

$212,417.00 should be deducted from the final award granted by the Court, so that the

Claimant is not doubly compensated.

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Disposition

84. The court will therefore dispose of the claim as follows;

i. Judgment for the Claimant against the Second Defendant for negligence reduced

by a contribution of 40% on the part of the Claimant;

ii. The Second Defendant shall pay to the Claimant, general damages in the sum of

$125,000.00 (reduced by 40%) together with interest at the rate of 2.5% per annum

from the 4th September, 2015 to the date of judgment;

iii. The Second Defendant shall pay to the Claimant, special damages in the sum of

$224,764.00 (reduced by 40%) together with interest at the rate of 2.5% per annum

from the 29th August, 2011 to the date of judgment;

iv. It is recorded that the parties have agreed that the sum of $212,417.00 which has

been paid to the Claimant by the First Defendant is to be set off against the damages

awarded to the Claimant by this order; and

v. The Second Defendant shall pay to the Claimant 60% of the prescribed costs of the

claim.

Dated the 28th day of April, 2017

Ricky Rahim

Judge