Juanita Harry v St. Vincent Brewery Limited et al

EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE CLAIM NO. SVGHCV2021/0063 BETWEEN

[1]JUANITA HARRY and [1] ST. VINCENT BREWERY LIMITED

[2]KERLITA FESSAL (Trading as JASMINE and THYME) Claimant Defendants Before: Her Ladyship the Hon. Justice Gertel Thom (Ag.) 2024: May 22, June 12, July 31. JUDGEMENT [1] THOM J (Ag): This claim for general and special damages arose from an incident at the 1st respondent’s (St. Vincent Brewery Ltd.) canteen where the claimant Ms. Harry was employed by the second defendant (Ms. Fessal). Background [2] St. Vincent Brewery Ltd. operates a brewery at Campden Park. Some of its employees work in a shift system being the morning shift 7:00am-3:00pm and the evening shift from 3pm-11pm.

[3]On May 14, 2018, Ms. Fessal entered into a contract with St. Vincent Brewery to operate the canteen. There is no dispute as it relates to the contract which was admitted into evidence. The canteen was operated to meet the needs of the shift workers.

[4]The terms of the Agreement required St Vincent Brewery to provide the following: ” (a) Kitchen facilities with adequate storage cupboards. (b) One (1) commercial six-burner stove and together with (2) 100-lb gas cylinders. (c) One refrigerator and one “walk in” cold room. (d) Adequate amount of table and chairs. (e) All renovations and/or alterations must be approved by the Company.”

[5]Ms. Fessal was required to comply with the Brewery Safety guidelines including: (a) “Provide the Company with a list of all employees who will be working on the premises of the company. In addition, the Company will require copies of theirlDstobe placed on file. The Operator must notify the company in advance of any addition of new workers or whenever employees cease to work with the Operator. (b) Police Record of All employees must be submitted to be placed on file. (c) As a precondition, all employees of the Operator must undergo safety orientation training and examination. The employee must pass the examination with a score of 75% or greater. Both the examination and training will be administered by the Safety and Management of St. Vincent Brewery Ltd. (d) The successful operator and team are required to take part in the safety activities of the company by ensuring that all employees operate in a safe manner. Each employee is required to report at least one (1) unsafe condition and one (1) unsafe behaviour weekly. A logbook shall be provided for regarding of such activities and will be reviewed daily by the safety technician, Safety Engineer or safety and Logistics Supervisor. The Company will endeavour to resolve all unsafe conditions documented in the shortest period. (e) The Brewery has a daily safety meeting at 8am in the canteen. It is required that at least one (1) member of the Canteen Operator’s team attends the safety meeting daily. (D The attendance should be rotated between staff members. It is expected that the employee takes part in the safety related activities and raise any safety issues in the meeting. (g) All employees must attend annual training. (h) A Safety Plan will be developed together with the Operator. This entails the general safety requirements of the tasks in the Canteen”.

Claimant’s Case

[6]Ms. Harry’s case as outlined in her statement of claim is that on 20th June 2018 at about 2pm she was at the Brewery Canteen. Herself and the other employees were waiting for the propane gas to be replaced by an employee of the Brewery. After the gas cylinder was replaced, she proceeded to light the pilot of the large oven. In doing so there was an explosion, and she was injured. She outlined her injuries as follows: ” (a) Pain and shock (b) Drowsiness (c) Burns to her face, which completely removed her eyelids and lashes (d) Burns to her left hand especially her fingers and wrist (e) Continuous swelling of the left hand (D Cramps to the left hand that sometimes causes her to drop whatever she is holding.”

[7]Ms. Harry was taken to the hospital where she was treated and discharged the same evening and wasgranted fifteen (15) days sick leave.

[8]Ms. Harry alleged in paragraph 4 of her Statement of Claim that her injuries were because of the negligence of the 1st and 2nd Defendants and or their agents which caused the accident. She outlined the particulars of negligence in paragraph 5 as follows: “The 1st Defendant who owns the facility and the 2nd Defendant who managed and operated the facility were negligent in that they: (i) Failed to exercise due care and attention in the servicing and upkeep of the oven. (ii) Alternatively, they failed to ensure that the oven was in good and efficient working condition.”

[9]Ms. Harry claimed general damages for pain and suffering, loss of amenities and future medical care.

[10]In relation to special damages, she claimed $110.00 for medication; $60.00 for Medical Consultation and $75.00 for a medical report, a total of $246.00.

Defence

[11]The Brewery denied Ms. Harry’s claim and asserted that the Brewery provided safety training for Ms. Harry and the other employees. Ms. Harry excelled at the safety examination with a score of 95%. Further Ms. Harry was provided with specific training on the step-by-step procedure for the correct use and operation of the commercial stove and the appropriate response in the event of an incidenUaccident in the kitchen.

[12]The Brewery contended further that Ms. Harry was aware that she was required to wait five (5) mins before lighting the pilot. She failed to ensure that the knob was turned off before proceeding to light the pilot.

[13]Ms. Fessal in her defence contended that the oven was in good working condition at the time of the incident. It was only a few months old. It did not require repairs after the incident.

Elements

[14]This being a claim in negligence the onus was on Ms. Harry to prove that the Brewery and or Ms. Fessal were negligent.

[15]The requirements to establish the tort of negligence are very well settled. They are as follows: (a) The existence of a duty of care to the claimant. (b) Breach of the duty of care by the defendant. (c) There is a causal connection between the defendant’s conduct and the damage suffered by the claimant. (d) The damage to the claimant is not so unforeseeable as to be remote.

Claimant’s Evidence

[16]In seeking to prove her claim, Ms. Harry filed a witness statement on the 13th ofApril2024, and she testified at the trial. Ms. Young filed a witness statement in support of Ms. Harry’s case on the 18th of May 2024. However, Ms. Young did not attend Court to testify at the trial.

[17]In her witness statement Ms. Harry states that she commenced working at the Brewery canteen operated by Ms. Fessal on the 16th day of May 2018. When she reported for work on the 20th June 2018, two of her co-workers, Ms. Susan Baynes and Ms. Rochelle Samuel were already at work and they informed her that they were waiting for the propane gas to be replaced.

[18]Ms. Harry outlined how the incident occurred in paragraphs 5 and 6 as follows: “5. After the gas was installed, I recall Junior informing us that it was okay to light the stove, that he was finished. We intended to use two stoves to cook the meal. I proceeded to light the first oven. I used a piece of tissue since we did not have a lighter available to us that week. I lit the first oven and after lighting the oven I moved on to lighting the second oven. 6. The second oven is the bigger oven. To light the oven I opened the panel, push the ignition out of the panel and knelt downin order to reach the pilot. As soon as I was about to reach the pilot. As soon as I was about to reach the pilot with the tissue, the oven made a sound and fire burst towards me. I was in shock and pain. I immediately jumped up and away from the stove. My face was burnt and I recall just repeatedly saying “my face my face is burnt and my hands, my hands hurt.” I had called on Susan Baynes who was heading towards the freezer, but my other co-worker Rochelle Samuel ran to my aid. I asked Rochelle to get my phone from my bag and to call Mr. Porter who was the Manager of the Brewery at the time. I spoke with Mr. Porter and told him that I got burned from the stove. Mr. Porter, Mr. Theodore Browne, the Chief Surveyor of Health and Safety at production, all workers of the St. Vincent Brewery Limited came to give me assistance. 7…… 8. It was not the first time I was lighting the oven in the way I lit it. That is the manner that I was thought to light it. I only went ahead to light the oven because I was told by Junior that it was okay to go ahead and light the stove. I understood that I must wait for all clear from the person installing the cooking gas before I attempt to use the stove. I waited and got that all clear.”

[19]Ms. Harry acknowledged that she received safety training and that she excelled at the examination and she applied the training to the best of her ability.

[20]In her oral testimony she amplified the evidence in her witness statement pursuant to CPR 29.9 (a) by explaining what occurred on the day of the incident. Ms. Harry testified that there were two stoves in the kitchen. To light the stove she knelt, open the panel and held down the ignition button with her right hand and light the tissue which she used to light the oven. Ms. Harry explained that they would normally use a pilot to light the oven but at that time the pilot was not working and so she and the other employees were using a piece of tissue to light the oven. To light the oven she held the ignition button for two seconds to make sure the pilot remained lit. She then released the ignition button, turned on the gas and closed the panel. She then proceeded to light the second oven which is the larger oven. The ovens are the same model. While she held the lighted tissue in her hand, she was going to press the ignition button and the oven exploded.

[21]During cross-examination by Ms. Commissiong, Ms. Harry testified that she and the other employees were using a piece of tissue to light the oven because Ms. Fessal had promised to provide a pilot but had not done so.

[22]Under cross-examination by Mr. Marks, Ms. Harry testified that they were preparing meals when the gas finished. She was not using the stove when the gas finished. Susan told her that the gas was finished. She assumed that the knob of the oven was turned off. When she resumed duty there was no other explosion of the oven. She subsequently testified that she did not agree that she did not check to see if the knob was on.She did check to see if the knob was on.

Evidence Of Defendants

[23]Susan Baynes and Radley Braithwaite testified on behalf of the Brewery.

[24]Ms. Baynes testified that she was employed as a kitchen assistant at the canteen. She attended the safety training which involved the step-by-step procedure for the correct use and operation of the commercial oven. She outlined the procedure as follows: “(a) Locate and turn on the main gas on the outside of the kitchen. (b) Locate gas lever and pilot on the inside of the kitchen, turn on gas lever and wait five (5) minutes before attempting to light pilot. (c) Ensure oven knob is turned off then locate the igniter (a red button) and press. (d) Continue holding the igniter and open the oven panel to light the pilot. Continue to hold the igniter for thirty (30) seconds after the pilot is lit. (e) Close the oven panel. (D Turn on the oven knob

[25]On the day of the incident while herself and another worker, Ms. Rochelle Samuel was cooking the gas finished and she requested an employee to change it.

[26]In keeping with the training Ms. Harry waited five (5) mins before she lit the store. However instead of lighting the pilot first, Ms. Harry turned the oven knob and there was an explosion, and this resulted in Ms. Harry being burnt. She telephoned Ms. Fessal who came to the canteen. An investigation was carried out and they continued to prepare the meals. There was no further incident with the oven during her period of employment.

[27]Under cross-examination by Mr. Jomo Thomas, Ms. Samuel testified that food was cooking when the gas finished. When Ms. Harry was lighting the oven, she was at the sink preparing meat when she heard the explosion.

[28]Mr. Radley Brathwaite was the safety engineer at the time of the incident. He conducted the safety training for the employees of Ms. Fessal including Ms. Harry. He testified that the Brewery had renovated the kitchen and bought new stoves shortly before the incident. Mr. Brathwaite was overseas when the incident occurred.

Evidence of The Second Defendant

[29]Ms. Fessal testified and called Ms. Rochelle Samuel a former employee.

[30]Ms. Fessal testified that she was not present at the canteen when the incident occurred. Ms. Harry returned to work at the expiration of the sick leave and continued to work until December 2018. Under cross-examination by Mr. Marks she testified that there was no similar incident before or after the incident.

[31]Ms. Samuel in her witness statement stated that on the day of the incident she was employed at the canteen with Ms. Harry and Ms. Baynes. They were preparing lunch when the gas finished. After the gas was replaced, Ms. Harry bent down to light the oven and she heard a “poof’ and she saw that Ms. Harry had received burns on her face and forearm. Ms. Harry was taken to the hospital.

[32]Under cross-examination by Mr. Thomas, Ms. Samuel could not recall the incident. She explained that she had worked at the canteen for a short period. The same year she went off to college. Finding Of Facts (33] Having reviewed the evidence of all of the witnesses, I find that all of the employees of the canteen including Ms. Harry were trained in the correct procedure to light the oven. The correct procedure is the procedure outlined by Ms. Baynes in her witness statement and which was not disputed by Ms. Harry. (34] On the day of the incident Ms. Samuel and Ms. Baynes were preparing the meals when the propane gas finished. Ms. Harry had not yet reported for duty. When Ms. Harry reported for duty she was informed that the gas was finished. The gas was replaced by an employee of the Brewery. (35] The canteen was newly renovated and equipped with two new stoves. The incident occurred just over one month after the canteen resumed operation after the renovation.

[36]Ms. Susan Baynes while present in the kitchen when the incident occurred was not able to see exactly what happened, because as she testified, she was at the sink preparing meat. Her back was towards the stove. I do not find her testimony in relation to how the incident occurred to be reliable. (37] Mr. Rodley Brathwaite was out of the jurisdiction and therefore did not witness the incident. (38] Ms. Fessal was also not present at the canteen when the incident occurred. (39] I find Ms. Rochelle Samuel was an unreliable witness. Despite the valiant effort of Mr. Marks to calm the witness, who is a young lady, the witness seemed overwhelmed by the proceedings. When cross-examined by Mr. Thomas she could not recall any aspect of the incident.

[40]Ms. Harry in outlining the manner in which the incident occurred and in describing how she attempted to light the oven where the explosion occurred both in her witness statement and in her amplification at the trial made no mention she had checked the knob of the oven to ensure that it was turned off.

[41]I believe her answer under cross-examination that she assumed that the knob was turned off. She was not present when the gas was finished. She assumed that those who were using the stove when the gas finished had turned the oven knob off. (42] I do not believe her subsequent testimony when she stated that she did not agree that she did notensure that the knob of the oven was turned off. This was a critical step in the safety procedure, if she had done so she would had stated so in her witness statement or her amplification and she would not have said under cross examination that she assumed it was turned off. This was an error on her partto not ensure that the oven knob was turned off.The explosion in the oven occurred when she opened the panel with the tissue being lit. Issues (43] The issues are as follows: (1) Whether the defendants breached their common law duty of care to the claimant to provide a safe system of work. (2) If the defendants breached their duty of care, did such breach result in Ms. Harry’s injuries, loss and damage. (3) Whether Ms. Harry’s acts or omissions contributed to her injuries.

Issue 1

Duty of Care

[44]An employer has both a common law duty and a statutory duty to provide a safe place of work and a safe system of work for its’ employees. Thestatutory provision is section 10 of the Compensation for Injuries Act, Cap 83. This is a very old Act. It was enacted in 1844. The relevant provision is Section 4. It reads as follows: “…where personal injury is caused to a workman by reason of any defect in the condition of works, machinery or plant connected with or used in the business of the employer, or the negligence of a person in the service of the employer, who has superintendence entrusted to him, or by any act or omission of any person in the service of the employer, “the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman nor in the service of the employer nor engaged in his work.”

[45]This provision was considered by the Court of Appeal in a case emanating from this jurisdiction O’Carnie Sharpe v Gibson Construction Limited Civil Appeal No.18 of 2001. Byron CJ in delivering the judgment of the Court stated “The Act does not alter or replace the common law duties of an employer to provide a safe place and system of work for an employee. It ensures rather, that an employer cannot raise a plea of volenti in his defence when an employee makes a claim against him.”

[46]The appellant Mr. Sharpe was a man employed by the Respondent. He sustained injury to his eye in the course of his employment while engaged in plastering work. In considering the respondents’ duty to prove a safe system of work, Sir Dennis Byron CJ stated “This case fell to be determined based on the common law rules governing the duties of an employer to an employee.”

[47]The duty at common law is well settled. An employer has a duty to provide a safe place of work and a safe system of work. This case concerns the second limb of the duty. In Stokes v GKN (Bolts and Nuts) Ltd., Swanwick J described the duty as follows: “From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer. Taking positive thought for the safety of his workers in the light of what he knows or ought to know, where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad, but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does, and he must balance against the probable effectiveness of the precautions that can be taken to meet it and the expense and in convenience they include. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

[48]A similar statement was made by Denning in Clifford v Charles H. Challen & Son Ltd [1951] 1KB495 AT 497: “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. 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.” Submissions

[49]Mr. Thomas submitted that based on the evidence of Ms. Harry, she followed the safety protocol of the Brewery in lighting the oven. Learned Counsel stressed that Ms. Harry had demonstrated her knowledge of the procedure of lighting the oven. She had excelled in the safety examination. He contended that it was highly improbable that Ms. Harry would not have followed the procedure. Further the defendants’ witness did not witness what occurred when Ms. Harry was lighting the oven.

[50]Ms. Commissiong acknowledged that the Brewery had a common law duty to ensure a safe system of work. She contended that the Brewery did not breach its duty in that the Brewery: (a) Provided a safety orientation training program and examination and employees were required to obtain a score of 75% or greater to pass the examination. (b) Required employees to take part in safety activities conducted by the Brewery to ensure that all employees operated in a safe manner. (c) Conducted daily safety meeting where employees attended on a rotational basis. (d) Ensure employees’ participation in development of safety planning. (e) Reviewed safety performance of the operation of the canteen at least four times per year.

[51]The Brewery took all reasonable steps to ensure there was a safe system of work at the canteen. Learned Counsel contended further that Ms. Harry had failed to prove her case on a balance of probabilities. Ms. Harry did not adduce any evidence to show that the Brewery had breached its duty of care. The Brewery did all it could do to ensure a safe system of work.

[52]Mr. Marks for Ms. Fessal submitted there was no evidence of breach of the duty of care by Ms. Fessal. There was no evidence that the oven had malfunctioned. The oven was a new oven. The oven was inspected after the incident and without any need for any repairs the oven continued to function without any incident. Ms. Harry returned to work two weeks later and the oven remained in use without incident. Ms. Harry failed to prove what was the proper system of work and in what respect it was not observed by Ms. Fessal. Merely proving the circumstances of the incident would not be enough.

Analysis

[53]I am persuaded by the submissions of the defendants. Ms. Harry’s pleaded case was that the defendants were negligent in that they failed to exercise due care and attention in the servicing and upkeep of the oven and failed to ensure that the oven was in good working condition.

[54]I agree with the defendant’s submission that there was no evidence of failure in servicing or upkeep of the oven. The undisputed evidence is that the oven was a new oven. It was in use for approximately one month. The oven was in use the very day until the gas finished. Indeed, the evidence shows that the very night an investigation was conducted and no repairs were required. The employees continued to prepare the meals and there was no further incident that evening. Ms. Harry returned to work after two weeks and they continued to use the oven without any incident.

[55]It is also not disputed that the Ms. Harry and all of the other employees had orientation safety training and Ms. Harry excelled at the examinations. The defendants had a detailed safety operation programme in which all employees including those working in the canteen were required to adhere by. There was no evidence showing any flaw in the safety system of the defendants. In my view the defendants did all that a reasonable employer was expected to do for the safety of the employees while performing their tasks of preparing meals. This was a commercial oven. There was a risk that if it was not operated using the correct procedure an incident as happened in this case could occur. The defendants put in place a safety procedure and trained employees to operate the oven in a safe manner. It was only a few weeks after Ms. Harry had excelled at the training that the accident occurred. Notably, as stated earlier, in Ms. Harry’s witness statement and in her amplification of her witness statement she made no mention of taking a critical step in the safety procedure to light the oven. She did not state that she ensured the knob of the oven was turned off before she tried to light the pilot. Under cross examination shetestified that she assumed it was off. It was only when pressed by Mr. Marks that she realized her error and disagreed that she did not ensure the knob of the oven was off before she attempted to light the oven. This incident occurred just over a month after Ms. Harry had received safety training on how to light the oven. If Ms harry had ensured the oven knob was turned off she would not have testified that she assumed it was off. I believe she assumed it was off. She was not present when the gas was finished while the other employees were cooking. In view of the evidence, I find that Ms. Harry has failed to prove on a balance of probabilities that the defendants were in breach of the duty of care to provide a safe system of work.I am satisfied that the defendants did all that was reasonably required to provide a safe system of work for Ms. Harry and all of the other employees at the canteen.

[56]I pause here to refer to the evidence of Ms. Harry about her using a tissue to light the oven. In my view nothing turns on this evidence. It was not her pleaded case that the absence of a pilot to light the oven and use of the tissue in any way caused the explosion which resulted in her injuries. Indeed Mr. Thomas made no reference to it in his closing submission. In my view he was correct to do so.

Res lpsa Loquitur

[57]Mr. Thomas in his submissions also contended that there was no evidence of what caused the explosion. Ms. Harry testified that she followed the procedure to light the stove and the defendants’ witnesses did not testify of any error made by the claimant. He contends therefore that the Court should apply the doctrine of Res lpsa Loquitor and find that the defendants were negligent.

[58]Lord Griffiths in Ng Chun Pui and Ng Wong King Administrator of the Estate of Ng Wai Yea and Attorneys of Choi Yuen Fun and Ng Wan Hoi and Others v Lee Chuen Tot (also spelt as Lee Tsuen Tot) and Another in considering the doctrine of Res lpsa Loquitor, adopted the following passage in the judgement of Lord Pearson in Henderson v Henry E. Jenkins & Sons and Evans [1970] A.C. 282 at 301: “In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendant. That is the issue throughout the trial, and in giving judgment at the end of the trial, the judge must decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the action fails. The burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a primafacie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless, the defendants by their evidence provide some answer which is adequate to displace the primafacie inference . In this situation there is said to be an evidential burden of proof resting on the defendants. I have some doubts whether it is strictly correct to use the expression “burden of proof’, with this meaning, as there is a risk of it being confused with the burden of proof, but it is a familiar and convenient usage.”

[59]Lord Pearson also referred to the judgment of Megaw LJ in Lloyde v West Midlands Gas Board [1971] 1W.L.R. 749 at p.755 where Megaw LJ expressed the view that the doctrine is “no more than a commonsense approach…to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of some one for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety.”

[60]Megaw L.J further stated that “at the relevant time”, must be taken to mean at the close of the claimant’s case.”

[61]The evidence as it stands at the close of Ms. Harry’s case was that she did notobservein full the safety procedure in lighting the oven. She had failed to demonstrate that she had taken a critical step in the process before attending to light the pilot. Based on her evidence she had not ensured that the knob of the oven was turned off before she attempted to light the pilot. In view of her evidence Ms. Harry could not rely on the “doctrine” of Res lpsa Loquitor. It was not applicable.

[62]In view of the above finding that Ms. Harry had failed to prove on a balance of probabilities that the defendantshad breached their duty of care to her, her claim in negligence fails. There is therefore no need to discuss the remaining issues.

Conclusion

[63]For the reasons stated above, the claim is dismissed with costs to each of the defendants in accordance with CPR 65.5 in the sum of $7,500.

[64]It is Ordered: 1. The claim is dismissed. 2. Ms. Harry shall pay costs to each defendant in the sum of $7,500.

Gertel Thom

High Court Judge (Ag.)

By The Court

Registrar