Kevin Burroughs Claimant v Ross University School of Veterinary Medicine, Ltd Defendant
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Carter J |
| Judgment Date | 30 June 2015 |
| Judgment citation (vLex) | [2015] ECSC J0630-3 |
| Docket Number | CLAIM NO. SKBHCV2014/0002 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 30 June 2015 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SKBHCV2014/0002
Ms. Natasha Grey of Chesley Hamilton and Co. for the claimant
Mr. Emile Ferdinand Q.C with Ms. Keisha Spence of Kelsick, Ferdinand and Wilkin for the defendant
Carter J.: This matter arises out of an incident that took place at the defendant's premises on the 13th July 2012. There is no dispute between the parties as to the how the incident unfolded. The defendant was at the material time a private medical school specializing in Veterinary Medicine at its compound at West Farm, St. Kitts. The claimant was on that date employed by the defendant as a Pasture Assistant/Large Animal Caretaker. Sometime during the morning of the 13th July, the claimant, in the course of his routine duties, was instructed to herd some thirteen (13) donkeys into the Donkey Surgery Holding Area. While the donkeys were in the holding area, the claimant began to remove individual halters from the faces of the donkeys.
Whilst the claimant was attending to the last of the thirteen (13) donkeys, one of the other donkeys all eating from a bucket of pellets, unexpectedly turned around and started to kick the other donkeys also eating from the bucket. The claimant was still in the process of taking the halter off the face of the last donkey, when the kicking donkey kicked the claimant twice on his right knee in the area of his kneecap. The claimant's knee became swollen and he was taken to the Joseph N. France Hospital for medical attention.
The claimant filed a fixed date claim form supported by a statement of claim on the 08 th January 2014, in which he stated that this incident was caused solely by the negligence of the defendant, their employees or agents. The claimant particularized injuries received as a result of the incident as follows:
"Particulars of Injury
(a) Pain and shock
(b) Swollen right knee
(c) Tear in the posterior horn of the medical meniscus
(d) Tear in the anterior horn of the lateral meniscus"
At trial the claimant also described that:
"Since the incident at work, I have been severely limited in my daily activities and I have to use a walking stick at times in order to assist me in getting around. As a result, I have been unable to go back to work to carry out my duties with the defendant. I am unable to perform manual labour and as a young man, I am used to being active and my injuries have limited my mobility and I am no longer able to play sports. I am burdened financially as my expenses far outweigh my income. Throughout all this time whilst I am home on Leave, I have experienced pain and discomfort; some days are better than others. At times, the pain is so much; it makes it difficult to sleep at night."
The claimant further detailed the particulars of the negligence of the defendant as follows:
" Particulars of Negligence
(a) Requiring the claimant to attend to donkeys
(b) Causing or permitting the donkeys to be attended to without being secured
(c) Failing to ensure that the claimant wore protective gear having regard to the nature of the work carried out
(d) Causing or permitting the claimant to attend to the donkeys when they knew or ought to have known that it was not safe to do so
(e) Exposing the claimant to a risk of damage or injury from unusual dangers of which they knew or ought to have known
(f) Failing to take any or any adequate measures to ensure that the place where the claimant was engaged upon his work for the defendant was safe
(g) Failing in all the circumstances to provide a safe system of work
(h) The claimant will further contend that the fact that one of the donkeys kicked the claimant give rise to a presumption of negligence on the part of the Defendant."
The claimant's statement of claim disclosed that he sustained loss and damage as a result of the defendant's negligence and detailed special damages as well as further medical expenses. The claimant seeks the following from the defendant:
"(i) Damages.
(ii) Interest pursuant to Section 29 of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act, Cap. 3.11.
(iii) Costs
(iv) Any further or other relief the Court deems just and equitable."
Against this backdrop the issues which arise for the court's determination are as follows:
(1) Did the defendant owe the claimant a duty of care?
(2) What was the extent of the duty of care?
(3) Did the defendant breach the duty of care owed to the claimant?
(4) If the defendant did breach the duty of care owed to the claimant, is the defendant liable in negligence for the injuries and/or damage suffered by the claimant on the 13 th of July 2012?
(5) If the defendant did breach the duty of care owed to the claimant, what is the amount of the damages owed to the claimant by the defendant?
Both parties agree that at common law, an employer has a duty to take reasonable care for the safety of its employees. This duty includes, but is not limited to, a duty to use reasonable care to provide a safe place of work and a safe system of work, to take reasonable care for the safety of their workmen or women. 1
In Clifford v Charles H. Challen & Son Ltd [1951] 1 KB 495 at 497 Denning L.J stated:
'The question is whether the employers fulfilled their duty to the workman. The standard which the law requires is that they should take reasonable care for the safety of their workmen. In order to discharge that duty properly an employer must make allowances for the imperfections of human nature. When he asks his men to work with dangerous substances, he must provide proper appliances to safeguard them; he must set in force a proper system by which they use the appliances and take the necessary precautions; and he must do his best to see that they adhere to it. He must remember that men doing a routine task are often heedless of their own safety and may become slack about taking precautions. He must therefore, by his foreman, do his best to keep them up to the mark and not tolerate any slackness. He cannot throw all the blame on them if he has not shown a good example himself.' 2
The claimant was an employee of the defendant and the defendant did owe him a duty of care as above.
Both parties also agree that the duty owed by an employer is not an absolute one and that the duty may be executed by the exercise of due care and skill. Any breach of the common law duty may amount to negligence on the part of the employer if there was "something that the employer should have done that he failed to do and thereby made himself liable to the employee for the loss and damage the employee had suffered".3
The claimant pointed to a number of areas in which he asserts that the defendant breached the duty of care owed to him. The particulars are set out in full at paragraph 5 above. The claimant cites a number of areas in which he states that this Court is entitled to find evidence of the breach of the duty of care owed to him by the defendant, the result of these being that the defendant failed to provide the claimant with a safe place or system of work.
Some of the aspects of the claim for negligence relied upon by the claimant are somewhat intertwined and this is reflected in the manner in which the written submissions were presented to the court. There are clearly two (2) main limbs of the claim, the first of which the court will refer to as the need for the issue of protective gear/clothing, and the other, the danger posed by the donkey as a big animal. However the court will deal with each aspect pleaded.
The claimant's submission on this most relevant point was that the defendant's duty to provide a safe system of work was to ensure that it reduced the risk of injury to employees from foreseeable harm. The claimant submitted that he was never provided with protective wear to guard against injuries whilst carrying out his duties and that on the day in question he was therefore not wearing any protective clothing, which would have cushioned the blow that the claimant received from the donkey. The claimant was thereby placed in a harmful and hazardous situation.
In written submissions to the court, Counsel for the claimant stated that this failure to provide the claimant with some form of protective gear, was sufficient for this Court to find that the defendant was negligent in not having provided a safe place or a safe system of work for the claimant. This failure to provide the relevant protective gear was sufficient evidence to illustrate that the defendant did not exercise the duty of care owed to the claimant to the relevant standard.
Counsel also suggested that the defendant was also negligent in failing to take reasonable care for the safety of the claimant by causing him to come within kicking range of the donkeys without protective gear which could and did in fact cause the claimant serious injury. The defendant is therefore in breach of the duty owed to the claimant.
The defendant refutes all the particulars of negligence advanced by the claimant. Specifically on this aspect of the claim, Counsel for the defendant submitted that there was no failure to ensure that the claimant wore protective gear having regard to the nature of the work carried out as alleged by the claimant. Counsel pointed to the fact that the only suggestion as to what "protective gear" was lacking, was a reference to cricketing pads, a suggestion that was first expressed in the oral testimony of the claimant...
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