Quin J
Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 1 of 50 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 HOLDEN AT GEORGE TOWN 2 Cause No: 101/2007 3 4 5 BETWEEN: 6 EDDIE TRIMMINGHAM 7 8 PLAINTIFF 9 10 AND: 11 PHOENIX CONSTRUCTION LTD. 12 13 DEFENDANT 14 15 16 Appearances: Mr. Kyle Broadhurst and Mrs. 17 Terrence Caudeiron of Broadhurst 18 Barristers for the Plaintiff 19 20 Mr. Shaun McCann and Mr. Gary 21 Hendrikse of Campbells for the 22 Defendant 23 24 25 Before: The Hon. Mr. Justice Charles Quin 26 Heard: 2nd, 3rd and 4th August 2010 27 Defendant’s written submissions filed: 17th August 2010 28 Plaintiff’s written submissions filed: 3rd and the 13th September 2010 29 30 RULING 31 32 33
On the 25th August 2006 the Plaintiff was employed by the Defendant and 34 directed by a servant or agent of the Defendant to attach a steel fixture to a 35 steel beam with the use of a Hilti nail gun. The Plaintiff was working with a 36 co-worker, Mr. Anthony Morrant (“Mr. Morrant”) who was using the gun 37 when a nail discharged from the Hilti gun and flew into the Plaintiff’s left 38 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 2 of 50 eye and, as a result, the Plaintiff suffered serious personal injury, pain and 1 suffering, and was taken to the George Town Hospital, Grand Cayman. 2 3 Pleadings 4 5
On the 8th March 2007 the Plaintiff issued his Writ of Summons and 6 Statement of Claim. The Plaintiff claimed damages for injuries, loss and 7 damage by reason of the breach of statutory duty owed by the Defendant to 8 the Plaintiff, pursuant to s.62(b) of the Labour Law (2001 Revision), and by 9 reason of the negligence of the Defendant, its servants and agents. 10 11
The Plaintiff pleaded that s.62(b) of the Labour Law applied, and that the 12 Defendant was in breach of its statutory duty, by not ensuring that suitable 13 safety glasses or protective screens were provided to protect the eyes of the 14 Plaintiff who was employed in a process involving a special risk of injury to 15 the eyes in accordance with, or as required by, the provisions of s.62(b) of 16 the Labour Law. 17 18
Further, or in the alternative, the Plaintiff pleaded that the said injuries, loss 19 and damage were caused by the negligence of the Defendant, its servants or 20 agents, the particulars of which are set out at paragraph 7 of the said 21 Statement of Claim: 22 23 “7. … 24 a) Failing to take any or any adequate precautions for the 25 safety of the Plaintiff while he was engaged in this work. 26 b) Exposing the Plaintiff to a risk of damage or injury of 27 which they knew or ought to have known. 28 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 3 of 50 c) Failing to provide the Plaintiff with adequate or suitable 1 appliances and in particular with any or any suitable 2 goggles/safety glasses or protective screens to enable 3 him to carry out the work in safety or to protect the eyes 4 of the Plaintiff while he was carrying out the work. 5 d) Directing and requiring the Plaintiff to carry out the 6 work without providing him with any suitable 7 goggles/safety glasses or protective screens to protect 8 his eyes when they knew or ought to have known that it 9 was unsafe and dangerous for him to carry out the work 10 without suitable goggles/safety glasses or protective 11 screens. 12 e) Directing and requiring the Plaintiff to attach a steel 13 fixture to a steel beam by use of a nail gun when the 14 Defendants knew or ought to have known that that [sic] 15 it was unsafe and dangerous for him to carry out this 16 work in this manner. 17 f) Failing to provide or maintain a safe or proper system of 18 work. 19 g) Failing in all the above circumstances to take 20 reasonable care for the safety of the Plaintiff.” 21 22
On the 3rd April 2007 the Defendant filed its Defence denying the Plaintiff’s 23 claims and also alleging that the Plaintiff was in breach of statutory duty and 24 further, that the accident was caused solely, or contributed to by the 25 negligence of the Plaintiff. 26 27
In its Defence the Defendant pleaded that its foreman, Mr. Jesse Trinier 28 (“Mr. Trinier”), instructed the Plaintiff to either obtain hardened steel nails 29 from the hardware supplier prior to commencing the work to affix the steel 30 track, or alternatively to use TEC screws. 31 32
The Defendant averred that the Plaintiff had been given prior training in 33 health and safety, especially on the importance of personal safety equipment, 34 such as safety glasses. The Defendant averred that the Plaintiff was aware of 35 the Defendant’s written safety policy when it is stated that the employee was 36 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 4 of 50 to cease work immediately in any circumstance where a danger exists, until 1 such time as the necessary safety precautions could be implemented. 2 3
The Defendant pleaded that the Plaintiff obtained the Hilti gun from the tool 4 box without prior consent from Mr. Trinier. 5 6
In addition to denying the Plaintiff’s claim the Defendant also pleaded that 7 the Plaintiff’s injuries, loss and damage were caused solely, or were 8 contributed to, by the Plaintiff’s own breach of s.64(1) and s.64(3) of the 9 Labour Law (2001 Revision) 10 11
The Defendant also pleaded in its Defence that the accident was caused 12 solely or contributed to by the negligence of the Plaintiff, and also pleaded 13 that the particulars of the Plaintiff’s negligence were that the Plaintiff: 14 15 “1. Failed to take any adequate precautions, or at all, for his own safety 16 by not wearing safety glasses provided by the Defendant; 17
Failed to follow the instructions from Mr. Trinier, in that he did not 18 use either the TEC screws or obtain and use the hardened Hilti 19 nails; 20
Failed to use the correct equipment, in that mild steel Hilti nails 21 were used in the Hilti gun, which was contrary to Mr. Trinier’s 22 instructions; 23
Failed to comply with the Defendant’s safety policy; 24
Failed to follow the Defendant’s health and safety information and 25 written instructions pertaining to the use of equipment and/or safety 26 equipment; 27
Exposed himself to the risk of injury; 28
In all the circumstances fail[ed] to take any care for his own 29 personal safety and welfare whilst in the employ of the Defendant, 30 particularly when carrying out Mr. Trinier’s instructions on Friday 31 the 25th August 2006.” 32 33 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 5 of 50
On the 6th September 2007 the Plaintiff filed his Reply. In his Reply the 1 Plaintiff denied that he had been given prior training in health and safety, 2 especially in relation to the importance of personal safety equipment such as 3 safety glasses. 4 5
The Plaintiff denied that he was aware of the Defendant’s written safety 6 policy. 7 8
The Plaintiff denied that he had not followed the instructions of the foreman, 9 Mr. Trinier – averring that he had informed the foreman that the driver for 10 the screws that had been provided could not be located, and that he had 11 obtained the nails from Mr. Richard Graham (“Mr. Graham”) from whom the 12 foreman had directed him to obtain them. 13 14
The Plaintiff denied that he had obtained the Hilti gun without the foreman’s 15 permission. 16 17
The Plaintiff admitted that he had allowed his co-worker, Mr. Morrant, to use 18 the safety glasses which he had retrieved from his vehicle. Further, the 19 Plaintiff admitted that he was not wearing any safety glasses at the time of 20 the accident. 21 22 Evidence 23 24
The Plaintiff stated in his witness statement dated the 26th March 2008 that 25 the Defendant’s foreman, Mr. Trinier, gave the Plaintiff and his co-worker, 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 6 of 50 Mr. Morrant, instructions to frame the overhead steel beam and then cover it 1 with sheetrock. Mr. Trinier told the Plaintiff and Mr. Morrant that they could 2 use either screws or a Hilti gun and nails to attach the track to the steel beam, 3 and then to that they would attach the sheetrock. 4 5
The Plaintiff and Mr. Morrant decided to use ¾ inch screws. The Plaintiff 6 made an initial search for ¾ inch screws and when he could not find any he 7 went to Mr. Trinier in his office – which the Plaintiff stated is located in, and 8 forms a part of, the storage container. 9 10
Mr. Trinier told the Plaintiff that he had no ¾ inch screws, but took the 11 Plaintiff to the storage area of the container, where they began looking 12 through some boxes in search of the screws. Mr. Trinier gave the Plaintiff 13 some 6 inch screws. The Plaintiff said that they would be too long and Mr. 14 Trinier insisted that the Plaintiff should try them. 15 16
The Plaintiff went back to Mr. Morrant, who expressed surprise about the use 17 of the 6 inch screws. The Plaintiff then looked for the driver tip and could not 18 find one. 19 20
The Plaintiff averred in his evidence that he went back to Mr. Trinier and 21 told him that he could not get the correct driver tip for the screws. Mr. Trinier 22 then told the Plaintiff to use the Hilti gun. The Plaintiff asked Mr. Trinier if 23 he had any 3/8th inch nails. Mr. Trinier told the Plaintiff to go and ask Mr. 24 Graham for some ½ inch or ¾ inch nails because he thought that the 3/8th 25 inch nails were finished. 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 7 of 50
The Plaintiff went to ask Mr. Graham for the nails and Mr. Graham provided 1 him with ½ inch nails. 2 3
The Plaintiff’s evidence is that after collecting nails he returned to the 4 storage container and found the Hilti gun case. The Plaintiff’s evidence is 5 that he opened the case to make sure that everything was inside, and then 6 noticed that there were no safety glasses, only the Hilti gun and some powder 7 shells. Consequently, according to the Plaintiff, he began looking around the 8 storage container for safety glasses, but was unable to find any. 9 10
The Plaintiff’s evidence was that he went back to Mr. Trinier who was in his 11 office and told him that he could not find any safety glasses – either in the 12 Hilti gun case or in the storage area of the container. The Plaintiff’s evidence 13 is that Mr. Trinier told him to go and look around and said words to the 14 effect, “There must be a pair somewhere in there.” The Plaintiff said he 15 looked a second time in the storage area of the container but still could not 16 find any. 17 18
The Plaintiff then recalled that he had a pair of safety glasses in the trunk of 19 his car and, accordingly, he went and retrieved them. He recalled that Mr. 20 Morrant had given him these glasses approximately two months earlier. 21 22
The Plaintiff went back upstairs to where he and Mr. Morrant were working. 23 He recalls Mr. Morrant picking up the Hilti gun case and opening it. The 24 Plaintiff’s evidence is that Mr. Morrant opened the Hilti gun case and Mr. 25 Morrant also stated that there were no safety glasses inside. The Plaintiff said 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 8 of 50 that he knew that, and that is why he brought the pair of safety glasses from 1 the car. 2 3
The Plaintiff’s evidence is that Mr. Morrant then went away and whilst he 4 was away the Plaintiff started to measure and cut the tracks for fitting to the 5 steel beam. 6 7
When Mr. Morrant returned to the Plaintiff, Mr. Morrant picked up the safety 8 glasses and put them on. Mr. Morrant then attached the first piece of track 9 that the Plaintiff had cut. Mr. Morrant was having difficulty attaching the 10 second piece of track and therefore the Plaintiff climbed on to the scaffolding 11 to hold one end of the track in an effort to keep it in place. Next, Mr. Morrant 12 attempted to fire the Hilti gun again and the nail shot past the Plaintiff’s right 13 eye and hit his left eye. The Plaintiff immediately felt severe pain and came 14 down off the scaffolding. Mr. Morrant drove the Plaintiff to the hospital 15 where he received treatment. 16 17 Cross Examination of Plaintiff 18 19
In cross examination from Defendant’s counsel the Plaintiff denied ever 20 being issued with any glasses by the Defendant. In addition, the Plaintiff said 21 that on that site he had not been issued with any safety glasses. He only went 22 for the glasses in his car because he remembered that Mr. Morrant had given 23 them to him some weeks earlier. The Plaintiff’s position is that it was for the 24 foreman to ensure that a worker had safety glasses whenever there was a job 25 to be done, such as the one he was doing with Mr. Morrant. 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 9 of 50
The Plaintiff’s evidence is that Mr. Bill McRae (“Mr. McRae”) who was the 1 foreman on the last Phoenix job site, always insisted on providing safety 2 equipment, but equally, he always insisted that the safety equipment, such as 3 safety glasses, were returned to the foreman when a worker left the site or 4 completed a job. The Plaintiff said that Mr. McRae would ensure that “we 5 have the right safety tools to work with and that was something Mr. McRae 6 always stressed.” 7 8
By comparison, the Plaintiff said that when he went back to Mr. Trinier for 9 safety glasses, he got the impression that Mr. Trinier was annoyed. 10 11
The Plaintiff denied ever seeing any safety glasses in Mr. Trinier’s office. 12 13
The Plaintiff accepted that he knew that the task he was undertaking was 14 dangerous, but he said that he allowed Mr. Morrant to use his safety glasses 15 because he was the operator of the Hilti gun. The Plaintiff said he and Mr. 16 Morrant worked as a team and as Mr. Morrant was the operator he allowed 17 Mr. Morrant to wear the safety glasses. 18 19
Asked why he did not simply down tools and tell Mr. Trinier that he would 20 not undertake the task, the Plaintiff said he did not consider that to be an 21 option and, in fact, the Plaintiff said that he felt that to take that course would 22 have been disastrous, because he would be opposing a directive, and a 23 directive that came from Mr. Trinier himself. The Plaintiff said he viewed 24 that option as “a sure case of being fired” – not just because of the act, but 25 because of who and how Mr. Trinier was. The Plaintiff said that, against that 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 10 of 50 background, he decided that he would “just look away when Mr. Morrant 1 fired the gun.” Regrettably, this did not prevent the accident from occurring. 2 3
The Plaintiff candidly admitted that he was aware of the risk of not wearing 4 safety glasses, even though he was only assisting the operator, and stated that 5 his method was simply to turn his face away – which, he felt, was the only 6 option at that time. 7 8
The Court noted that the Defendant’s counsel actually complimented the 9 Plaintiff on his honesty in this regard. 10 11
However, in cross examination the Plaintiff maintained his position that 12 every foreman issues the worker with safety glasses whenever there is a job 13 like the one he and Mr. Morrant were assigned and doing at the time of the 14 accident. The Plaintiff went on to state that whenever a worker went on a 15 site, “it was the duty of the foreman on the site [to give the safety glasses], 16 depending upon the job, if the job entails that you do the work we do, then 17 the foreman gives you a pair of goggles.” 18 19 Meeting on the 15th March 2006 20 21
The Plaintiff was asked by the Defendant’s counsel about what he described 22 as a “safety briefing” held on the 15th March 2006. The Plaintiff had no 23 recollection of that meeting, and despite vigorous cross examination said he 24 was not aware of it nor did he attend. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 11 of 50 Safety Policy 1 2
The Plaintiff was shown a copy of the Defendant’s safety policy document 3 and said that he had never been given any safety document. 4 5
The Plaintiff said: 6 7 8 9 “When you go on a site the foreman has all the goggles, all the overalls, 10 whatever tool you need, and when you leave that site you leave 11 everything there and you go to another site, there is another foreman, 12 and it’s the same type of job, would issue the items we needed.” 13 14
The Plaintiff had no recollection of being supplied with safety glasses and 15 said he was more or less casually given a pair by Mr. Morrant. 16 17 Steve Urkel Glasses 18 19
The Defendant relied on one portion of the witness statement of Mr. McRae, 20 dated the 27th March 2007 when Mr. McRae said he gave safety glasses to 21 both the Plaintiff and Mr. Morrant. Mr. McRae recalled the Plaintiff being 22 reluctant to wear the safety glasses as they were not “stylish…and I told him 23 he had to wear them.” 24 25
The Plaintiff was cross examined at length on this point and he said, “This 26 was merely a joke.” The Plaintiff stated that when Mr. McRae gave him the 27 pair, he, the Plaintiff, was joking with Mr. McRae, and said that it looked like 28 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 12 of 50 the pair that Urkel (on the television sitcom Family Matters) used to wear – 1 in other words, really ugly glasses. The Plaintiff described Mr. McRae as an 2 easygoing foreman who enjoyed a joke. He said Mr. McRae loved working 3 with them. He said though Mr. McRae was easygoing, he was firm about 4 getting the job done. The Plaintiff said that the glasses were ugly even 5 though it was meant as a joke, but he was wearing them whilst jack 6 hammering and needed the safety goggles. The Plaintiff stated to defence 7 counsel: 8 9 “I think if Bill McRae was here he would have seen it differently because 10 he knows I am very serious about safety and that, in particular, wearing 11 goggles, especially using that Hilti gun, you know I would always go that 12 extra mile in ensuring safety.” 13 14
The Plaintiff said: 15 16 “The joke was the goggles in itself. It was what you call nerdy and I did 17 make a comment on it referring to Steve Urkel, the comedian on this 18 comedy show, and you know I told him I would have preferred a brand 19 name. I never did use the word stylish. It was meant as a joke, it was 20 purely a joke and I was actually surprised to read that Bill did put that in 21 here because it was a joke.” 22 23
The Plaintiff was asked what happened to these safety glasses. He said they 24 were left at the job site because “Bill McRae was very adamant in stating to 25 us continuously that the job in itself was…” and the Plaintiff forgot the term 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 13 of 50 Mr. McRae used but it was more or less that whatever was purchased on the 1 job site stays on the job site. 2 3 Walk-off-the-Job Option 4 5
The Plaintiff was vigorously cross examined as to why he did not refuse to 6 assist Mr. Morrant until he received an additional pair of safety glasses. The 7 Plaintiff told the Court that this would have been disastrous, meaning, he 8 might have lost his job. In other words, the Plaintiff said that he would be 9 opposing Mr. Trinier’s directive and therefore he never considered not 10 assisting Mr. Morrant an option, even though he had no safety glasses to 11 wear. The Plaintiff said: 12 13 “I just look[ed] at it as a sure case of being fired, not just because I 14 refused a directive but also because of who Mr. Trinier was and how he 15 is.” 16 17 Five pairs of safety glasses 18 19
The Plaintiff was cross examined about the existence of five pairs of safety 20 glasses. He said, “I have no idea.” He said that he did search in the storage 21 container. He did approach Mr. Trinier and ask him for safety glasses. And 22 the Plaintiff said that if there were some, either on the desk or on the top of 23 the computer, he would have seen them or Mr. Trinier would have provided 24 them. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 14 of 50 Safety policy document 1 2
The Plaintiff was shown a safety policy document and he said that he had 3 never seen it. It was put to him that he did receive a copy prior to the date of 4 the accident and the Plaintiff said, “Sir, if I had, I would have it in my 5 possession.” The Plaintiff said he would have remembered it not because he 6 had been given it, but he would have studied it and tried to understand it 7 properly. The Plaintiff said that he had no recollection of receiving the safety 8 document or any safety document. 9 10
It was put to the Plaintiff that the safety policy documents were distributed at 11 the meeting of the 15th March 2006, conducted by Mr. Shane Howell (“Mr. 12 Howell”) and Mr. David Johnson (“Mr. Johnson”). The Plaintiff said he had 13 no recollection of receiving this document or any safety document. 14 15
The Plaintiff said that on the sites that he had worked goggles were almost 16 always in the case. 17 18 “If not then goggles would be there for us to use because we were like a 19 team that just goes around working for different foremen to whatever 20 site, and the safety equipment, such as goggles, stays [sic] on the site.” 21 22 The Plaintiff said he would have his own tools like “…hammers, shears and 23 things like that.” 24 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 15 of 50 Mr. Richard Graham 1 2
Mr. Graham provided a Witness Statement on the 20th April 2007. Mr. 3 Graham was employed to another construction company but was 4 subcontracted to the Defendant as a carpenter. Mr. Graham recalled working 5 on the Savannah worksite with the Plaintiff at the time of the accident. 6 7
Mr. Graham recalled running out of nails on a day prior to the incident and 8 asking Mr. Trinier if he had any. He recalls Mr. Trinier looking around the 9 container and not finding any. Mr. Trinier then asked Mr. Graham to pick up 10 some the following morning on his way to work. 11 12
Mr. Graham could not recall exactly which day of the week he picked up the 13 nails however, on the following morning Mr. Graham recalls going to the 14 A.L. Thompson store to purchase nails. He could not get 3/8th inch nails so 15 he called Mr. Trinier who told him to pick up ¾ inch and ½ inch nails. 16 17
Mr. Graham recalls Friday the 25th August 2006 and he recalled the Plaintiff 18 asking him to get him some nails to do a particular job. The Plaintiff told him 19 he needed Hilti gun nails and Mr. Graham gave the Plaintiff ½ inch nails. 20 Mr. Graham said these were the same hardened steel Hilti gun nails he had 21 bought from A.L. Thompson. 22 23
Mr. Graham said that he was never supplied with any safety glasses until 24 after the accident on the 25th August 2006 involving the Plaintiff. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 16 of 50
In cross examination Mr. Graham accepted that if you are using the Hilti gun 1 you should wear safety glasses and further, if you are assisting someone who 2 is using a Hilti gun you would wear safety glasses. 3 4 Anthony Morrant 5 6
Mr. Morrant provided a witness statement on the 7th February 2007 and then 7 a subsequent supplementary witness statement dated the 10th February 2007. 8 9
Mr. Morrant said that on Friday the 25th August 2006 he recalls after lunch, 10 at about 1:00 p.m., the foreman, Mr. Trinier, taking him and the Plaintiff 11 upstairs on the job they were doing, where he pointed out a steel beam. Mr. 12 Trinier asked Mr. Morrant and the Plaintiff to build a frame around the beam 13 Mr. Morrant recalls the Plaintiff and himself discussing this with Mr. Trinier, 14 as to whether they would use self-tapping screws and a driver, or a Hilti gun 15 and nails. Mr. Morrant recalls looking for the screws and not being able to 16 obtain ¾ inch screws. Mr. Morrant then recalls the Plaintiff going off and 17 returning with 6 inch screws. Mr. Morrant recalls not being able to find the 18 driver and therefore they were forced to use the Hilti gun. 19 20
Mr. Morrant recalls the Plaintiff returning with the Hilti gun and some nails, 21 and he recalls noticing that there was one pair of safety glasses. Mr. 22 Morrant’s evidence is that he looked in the Hilti gun box, but he did not see 23 any safety glasses. Mr. Morrant recalls asking the Plaintiff if there were any 24 other safety glasses downstairs, to which the Plaintiff replied that he had 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 17 of 50 searched the storage container but he found none. Mr. Morrant recalled the 1 Plaintiff saying that he had managed to get one from his car. 2 3
Mr. Morrant decided to go down to look for the pair of safety glasses. He 4 said he looked in the storage container but he could not find any. He said he 5 looked in the container because everything is kept there and it is the only 6 place where tools and other equipment are kept. 7 8
Upon being unable to find any safety glasses, Mr. Morrant went back 9 upstairs and noticed that the Plaintiff had begun cutting the tracks. 10 11
Mr. Morrant noticed that the pieces (cut by the Plaintiff) were small and he 12 felt that he could attach the beam without any assistance. With that in mind 13 Mr. Morrant took up the safety glasses, put them on and started to attach the 14 small track to the beam, using the Hilti gun and the nails. Mr. Morrant recalls 15 successfully fastening the first track to the beam. 16 17
However, the second track was 10 feet in length and Mr. Morrant felt that he 18 needed the Plaintiff’s help to secure this piece. Accordingly, the Plaintiff 19 “got up and held the other end.” Mr. Morrant said that he started to shoot the 20 nail into the track to attach it to the beam and the nail did not hold so the 21 track shifted. He said the Plaintiff was in the process of fixing his end when 22 he shot the Hilti gun again and then suddenly realised that the nail went into 23 the Plaintiff’s left eye. 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 18 of 50
Mr. Morrant said that this incident took place somewhere between 1:30 p.m. 1 and 2:00 p.m. on the 25th August 2006. Mr. Morrant recalls going down to 2 Mr. Trinier and Mr. Trinier saying that someone should take the Plaintiff to 3 the hospital. Mr. Morrant realised that the Plaintiff was in severe pain and 4 drove him to the hospital and to the Emergency A&E department for 5 treatment. 6 7
Mr. Morrant stated that neither he nor the Plaintiff were ever issued with 8 safety glasses. 9 10 Cross examination of Mr. Morrant 11 12
Mr. Morrant in cross examination said that he did not use the screws because 13 the screws were too long and they never had a driver for the screws. 14 Therefore, he recalls the Plaintiff going off to get the Hilti gun and the nails. 15 Mr. Morrant recalls seeing only one pair of glasses. Accordingly he looked in 16 the Hilti gun case but he did not see any safety glasses. 17 18
Mr. Morrant said that if two people are working as a team there would 19 normally be two pairs of safety glasses in use. Accordingly, Mr. Morrant 20 went to check the container. Asked why he had not asked Mr. Trinier, he 21 said, “Well normally everything would be in the container. The container is a 22 storage area, but we have everything – tools, safety gear, hard hats, stuff like 23 that, everything [in there].” 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 19 of 50
Mr. Morrant accepted that they were working as a team with the Hilti gun 1 and they should have had two pairs of safety glasses. 2 3
Mr. Morrant said that when they were working on the scaffolding he knew 4 that the Plaintiff had no glasses. Mr. Morrant also candidly admitted that he 5 did not give any warning when he fired the second shot to attach the track to 6 the beam. He said he did not look at what the Plaintiff was doing because his 7 attention was focused on shooting the gun. 8 9
Asked why he did not have two pairs of glasses Mr. Morrant said he had 10 gone down and searched for another pair, “but I didn’t find any.” 11 Furthermore, he said that neither the Plaintiff, nor he, had ever been issued 12 with glasses. Mr. Morrant explained and said, 13 14 “We never issue, meaning we never get any. Nobody gave me any 15 glasses, never in that company. Nobody else ever gave any glasses. We 16 get two from the office.” 17 18 He said, 19 “He got for himself. I would not say somebody give it to me. If I pick it up 20 myself I would not say it’s issued to me. If me pick it up myself I would 21 not say it’s issued.” 22 23 He said he received the glasses from “Mr. Haughton.” Mr. Morrant said, 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 20 of 50 “I would not say issue. I would say issue is if somebody would call you 1 and give you something. I would refer that as issue. But the fact that I go 2 pick them up I would not refer that as issue.” 3 4
It was put to Mr. Morrant under cross examination that neither he nor the 5 Plaintiff should have started the job to which Mr. Morrant said, 6 7 “Working with Mr. Trinier…Mr. Trinier is like guys you have to get this 8 job done, whatever the consequences, this job have (sic) to get done. 9 Time is money and money is time always be Mr. Trinier’s issue. He is the 10 foreman and we have to get the job done. Yes he is the foreman and we 11 always have to get his job done on time.” 12 13
The Defendant’s counsel said that Mr. Morrant and the Plaintiff should not 14 have started the job without two pairs of safety glasses. Mr Morrant 15 responded that he could not fully agree with that because there were no 16 glasses in the storage container and, “…the fact is we have assignment to do 17 the job. We have to get it done and as me said, Jesse is like guys we have to 18 get this job done.” 19 20 Mr. Morrant’s Meetings on the 6th and 9th February 2007 with Phoenix 21 Management 22 23
Mr. Morrant said that Mr. Michael Borden (“Mr. Borden” “Mike”), Mr. 24 Trinier, and the owner of Phoenix Construction, Mr. Steve Hawley (“Mr. 25 Hawley”), all met in Mr. Hawley’s office. Mr. Morrant said Mr. Hawley was 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 21 of 50 sitting at the computer with some prepared questions. Mr. Morrant’s 1 evidence is that Mr. Hawley would “type in the answers as I answered the 2 questions.” Mr. Hawley then printed off a sheet of paper with the questions 3 and answers and handed it to me to read and asked me to sign the document. 4 Mr. Morrant said that he is a slow reader and was given little time to read and 5 understand the document. However, Mr. Morrant said that he could see that 6 some of the answers were not as he had stated them. Mr. Morrant said he told 7 Mr. Hawley this and he noted that Mr. Hawley began to make changes at the 8 same time as he was repeating his answers to him. Mr. Hawley then printed a 9 second copy and gave it to Mr. Morrant, who then signed it, and that 10 statement was dated the 6th February 2007. 11 12
Later on when Mr. Morrant read and comprehended the statement he realised 13 that things had been recorded incorrectly and some things had not been 14 recorded at all or not fully. Mr. Morrant said he noticed that question 8 did 15 not reflect what he had said. He also noted other things in relation to answers 16 to questions 2, 3, and 7. Mr. Morrant’s evidence is that he felt that Mr. 17 Hawley had not written down his statement as he answered. Mr. Morrant also 18 said, “… it may be that he does not understand how I express myself.” 19 20
As a result of seeing these errors, Mr. Morrant went to “Paul” and asked him 21 to call Mr. Hawley. Mr. Morrant told Mr. Hawley that there were still 22 corrections to be made and he pointed out the answer to question 8 in 23 particular. Question 8 was whether there were additional safety glasses 24 available on the site. Mr. Morrant said he had answered “no” but Mr. Hawley 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 22 of 50 had recorded a “yes.” Mr. Morrant said he told “Paul” that he wanted to 1 make the corrections “now.” 2 3
Mr. Morrant noticed other errors on the statement and it was arranged that he 4 would go to see Mr. Hawley on the 9th February. A second meeting took 5 place on the 9th February and Mr. Morrant said he wanted to change his 6 answers to questions 2, 3, 7, 8, and 9. Although Mr. Morrant signed the 7 statement prepared for him by Mr. Hawley a second time he felt that he 8 wanted to clarify his answers, as he felt the answers were not fully recorded. 9 Mr. Morrant said he felt nervous and under some amount of pressure to sign 10 the document as everybody in the room was waiting for him to sign, and he 11 signed it without reading it carefully. 12 13
Mr. Morrant said the discussion with Mr. Trinier regarding the Hilti gun took 14 place the same day as the accident and not on the day prior to the accident. 15 16
In relation to question 7 Mr. Morrant said that Phoenix knew that he did not 17 have his safety glasses because he had reported, through a foreman called 18 Gonzales, that his safety glasses had been stolen, and Gonzales had reported 19 the loss to the project manager. Mr. Morrant said he had not lost his safety 20 glasses they were stolen. 21 22
Mr. Morrant said his answer to question 8 was not fully recorded. He said his 23 complete answer was, 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 23 of 50 “No, I do not know if there were additional safety glasses. I looked for safety 1 glasses in the container but I did not find any and I did not ask anyone for 2 safety glasses.” 3 4 Cross examination of Mr. Morrant 5 6
Mr. Morrant was adamant that the discussion over the Hilti gun was not the 7 day before as suggested in his answers. He said, 8 9 “I never really said this stuff that is here. Steve asked me the question, 10 him write and me tell him seh Steve, you can’t really write what me nuh 11 say. Because me nuh really talk like them. So each time him write it, I tell 12 him I nuh say that, him still write it. So me say, well, whatever…you 13 understand? Because him nuh really put what me seh.” 14 15
The Court intervened and asked the witness, Mr. Morrant, to give his 16 evidence more slowly and he stated, 17 18 “When him ask me the question, him write what him feel like write. Him 19 type it like how him want type it. So that’s why we end up with this and 20 all kind of confusion and these two papers.” 21 22
For example, with respect to question number 7, Defendant’s counsel asked 23 Mr. Morrant if the response written in his statement which stated, “Mr. 24 Morrant said he lost his safety glasses” was correct. In reply to counsel Mr. 25 Morrant said, 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 24 of 50 1 “I did not say I lost them. Steve write what he want write. I told him that 2 some children steal them from the job site, but him put seh I lost them.” 3 4
Mr. Morrant went on to say, 5 6 “Mr. Hawley say me have to sign it so me just sign it because it is the 7 same each time: Me try to explain in my own way and him put it in him 8 way. I would explain it in my way, him would put it in his way, so we 9 always end up with this result, with a mix up, because he is trying to put 10 things that I was not saying so it is a mix up. 11 The first time they take me from work and carry me into the office and 12 buck up all four of them. Them laugh and say, I ambush the guy who 13 carry me, seh I ambush, seh is like they have to force me to do something 14 me never really wanted to do, so them just carry me and make me buck 15 up on them.” 16 17
Asked whether he was given an opportunity to make corrections to his 18 statement Mr. Morrant said, “Not really.” 19 20
Mr. Morrant said that he asked for safety glasses some months prior to the 21 incident and he got two pairs from Mr. Houghton. He said that he did not 22 have to sign for anything and he said there was never any procedure for 23 signing for safety glasses. 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 25 of 50
Mr. Morrant was asked about a Mr. Watkis. He replied, “Who is Mr. 1 Watkis?” When it was put to him that he was the sweeping man he said, “Oh 2 Jerome.” 3 4 Defence case 5 Mr. Jesse Trinier 6 7
Mr. Trinier’s evidence in chief is contained in his witness statement dated the 8 18th of April 2007. 9 10
Mr. Trinier states that he was the foreman in charge of a team of 30 workers 11 from Phoenix, together with some ten subcontractors working on a project at 12 the Savannah Foster’s Supermarket in May 2006. 13 14
Mr. Trinier said that Mr. Jerome Watkis (“Mr. Watkis”) was vested with the 15 additional responsibility to assist any employee or subcontractor to obtain 16 any materials or safety equipment that may be required from his office or the 17 works trailer. He said that the back 2/3rd of the works trailer stored items and 18 equipment needed on the site, and the forward 1/3rd was his site office. 19 20
Mr. Trinier said there were approximately five pairs of safety glasses in his 21 office. 22 23
Mr. Trinier’s evidence is that on Thursday the 24th August 2006 he instructed 24 the Plaintiff to attach a steel track to a steel beam on the second floor of the 25 site and told him that it could be done with TEC screws, using a driver, or 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 26 of 50 using hardened steel Hilti nails with the use of a Hilti gun. He said he told the 1 Plaintiff that there were only mild steel Hilti nails on site and that these nails 2 would be unsafe for use on that job. Mr. Trinier said the Plaintiff was told to 3 take time the following morning to pick up hardened steel Hilti nails from 4 one of the local building supply houses, or he was to use the TEC screws. 5 6
Mr. Trinier said that on Friday the 25th August 2006 he was working on the 7 first floor of the job site whilst the Plaintiff was working with Mr. Watkis 8 and Mr. Morrant on the second floor. Mr. Trinier said that he was aware that 9 the Plaintiff and Mr. Morrant were working together on the scaffolding, with 10 one person holding the steel track at shoulder level and with the other person 11 at the other end of the steel track and attaching the track with either the driver 12 and TEC screws or Hilti gun and nails. 13 14
Mr. Trinier’s evidence in chief is that at approximately 2:00 p.m. on Friday 15 the 25th August 2006 the Plaintiff came down to him with an eye injury. He 16 said the Plaintiff was sent to hospital. Mr. Trinier’s evidence is that he recalls 17 making numerous calls to Mr. Morrant and to Mr. Brock Jaeck to check on 18 the Plaintiff’s progress. 19 20
Mr. Trinier’s evidence is that 15 minutes after the Plaintiff had been taken to 21 hospital Mr. Watkis brought the Hilti gun and nails to the works trailer and 22 Mr. Trinier had noticed that the Plaintiff had not followed his instructions to 23 use TEC screws or the hardened steel Hilti nails, but had used the mild steel 24 Hilti nails. Furthermore, Mr. Trinier said that at no stage had the Plaintiff 25 approached him for a pair of safety glasses. 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 27 of 50
Asked by his counsel, Mr. McCann, if he recalled where those five pairs of 1 safety glasses were kept, Mr. Trinier said, “It would have been on one of the 2 desks.” When Mr. McCann asked him if he had come across an operator of a 3 Hilti gun or a person assisting him, without protective glasses, would he have 4 done anything, Mr. Trinier said he would have ensured that they had safety 5 equipment. Mr. Trinier said, 6 7 “I would have obviously looked for safety glasses at that point. It’s 8 very clear that everybody should have that and everybody should do 9 their due diligence when using equipment that is hazardous.” 10 11 Cross examination of Mr. Trinier 12 13
Plaintiff’s counsel, Mr. Broadhurst, suggested to Mr. Trinier that there was 14 no need for Mr. Morrant or the Plaintiff to check with him before obtaining 15 the nail gun, to which Mr. Trinier replied, “No they should check with me and 16 we should have discussed the nails but they had not come to see me.” 17 18
Mr. Trinier said he had no recollection of instructing Mr. Graham to 19 purchase Hilti nails. He said he had no recollection of Mr. Graham calling 20 him and saying he was not able to get 3/8th inch nails and Mr. Trinier telling 21 him to get ¾ inch or ½ inch nails. Mr. Trinier had no recollection of telling 22 Mr. Graham to go and purchase the nails, and did not accept that Mr. Graham 23 was telling the truth. In fact, referring to Mr. Graham stating in his evidence 24 that Mr. Trinier had told him to purchase nails, Mr. Trinier said, “That is not 25 true.” 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 28 of 50
It is Mr. Trinier’s evidence that Mr. Morrant and the Plaintiff had used the 1 wrong nails for the Hilti gun. When asked by the Plaintiff’s counsel when did 2 he, Mr. Trinier, learn that the Plaintiff and Mr. Morrant could not find the 3 correct hardened steel nails, Mr. Trinier responded, “I didn’t because they 4 never came to me.” Mr. Trinier was then asked by the Plaintiff’s counsel 5 “Why then did you bring them the screws?” to which Mr. Trinier responded, 6 “Because if they could not find the nails they were to use the screws so the 7 job would get done.” 8 9
Mr. Broadhurst put it to Mr. Trinier that what actually occurred was that the 10 Plaintiff had come down looking for screws and that Mr. Trinier had given 11 him the screws. To this, Mr. Trinier replied, “No, that’s not what I put in my 12 statement.” 13 14
Mr. Trinier recalls bringing the screws to the Plaintiff but did not recall 15 having any conversation with the Plaintiff regarding a proper driver, and he 16 could not recall whether the Plaintiff came to his office to tell him that he 17 couldn’t find any safety glasses in the Hilti gun case. In fact, on further 18 questioning, Mr. Trinier said that that was not true. 19 20
On being questioned by the Plaintiff’s counsel as to whether he may have got 21 the wrong day when he instructed the Plaintiff and Mr. Morrant to start the 22 framing, Mr. Trinier accepted that it was possible, and he added, “It’s 23 possible that the incident wouldn’t have happened if they wore safety glasses 24 too.” 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 29 of 50
On the question of whether he had a conversation about the nails and screws, 1 generally, with the Plaintiff and Mr. Morrant, Mr. Trinier conceded, after 2 some cross examination by the Plaintiff’s counsel, that he had brought 3 medium-sized screws to the Plaintiff and Mr. Morrant and admitted that it 4 was understood that if the Plaintiff and Mr. Morrant could not find the 5 correct hardened steel nails for steel, then they were to use screws. 6 7
The Plaintiff’s counsel asked Mr. Trinier when was it that he learned hat the 8 Plaintiff and Mr. Morrant could not find the correct hardened steel nails and 9 in reply Mr. Trinier said, “Well I didn’t because they never came to me.” 10 11
Asked by counsel for the Plaintiff, “Well then, why did you bring them the 12 screws?” Mr. Trinier replied, “It was the second option.” 13 14
It was put to Mr. Trinier, “Well, you just told the Court a moment ago that 15 they were to find the nails and to do the job, so explain to me why you 16 brought them the screws?” Mr. Trinier replied, “Because if they couldn’t find 17 the nails they were to use the screws so the job could get done. Using the 18 screws is a harder method. It takes a little bit more time but it still completes 19 the job.” 20 21
The Plaintiff’s counsel then asked Mr. Trinier, “What actually occurred was 22 that Eddie came down looking for screws and you gave him screws, isn’t that 23 correct?” and Mr. Trinier’s response was, “No, that’s not what I put in my 24 statement.” 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 30 of 50
Mr. Trinier denied that the Plaintiff had come to him and told him that he 1 could not find the proper driver. Mr. Trinier said he did not recall the 2 Plaintiff coming into his office and saying he could not find any safety 3 glasses in the Hilti case. Mr. Trinier said it was “… not true when the 4 Plaintiff said that he had been looking for goggles, and that Mr. Trinier said 5 they were somewhere around.” 6 7
Mr. Trinier said he was not aware whether or not there were glasses in the 8 Hilti gun case, but he did accept that there were no glasses in the Hilti gun 9 case. 10 11
Mr. Trinier accepted that although safety was everyone’s duty, he was the 12 primary and principal person responsible for safety on the site, and he also 13 accepted that the safety glasses should be kept with the Hilti gun. 14 Furthermore, Mr. Trinier accepted that he never told either the Plaintiff or 15 Mr. Morrant that there were safety glasses in his office. Mr. Trinier could not 16 recall whether there were any safety glasses in the storage area, but he 17 recalled that there were roughly five sets in his office. 18 19
In answer to a question from the Court Mr. Trinier said he did not recall 20 whether the safety glasses were at the desk at which he was sitting or at one 21 of the desks beside that. He said he had several chairs and desks in there 22 because one minute he would be looking at drawings and the next minute he 23 would be on the computer and vise versa, so he was not sure where in the 24 office the approximately five safety glasses were. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 31 of 50
Mr. Trinier accepted that when workers come on the site it is his 1 responsibility to check to ensure they have the proper safety equipment. 2 When asked whether he did that in this case he said, “Not that I can recall.” 3 Mr. Trinier accepted that he did not ask the Plaintiff or Mr. Morrant if they 4 had safety glasses prior to using the Hilti gun, because he said he did not see 5 the two men at all. 6 7
Mr. Trinier said that his right-hand man, Mr. Watkis, was aware of all the 8 safety equipment “that we have and everybody knew that they should go to 9 him if they needed anything.” 10 11
Mr. Trinier was asked whether he ever went out to check on the Plaintiff and 12 Mr. Morrant when they were fixing the track, he replied that he had gone up 13 there at some point in the morning but he could not recall when. 14 15
Mr. Trinier accepted that it was his responsibility to ensure that the safety 16 equipment was available on the site. Mr. Trinier accepted that if he had seen 17 the men conducting this task and had seen that the Plaintiff was not wearing 18 safety goggles he would have stopped them. Mr. Trinier confirmed that he 19 had not worked with the Plaintiff before and he recalled that he may have 20 worked with Mr. Morrant. Mr. Trinier also accepted in cross examination 21 that it would have been a good idea for him to have checked with the 22 Plaintiff to ensure that he had proper safety equipment. 23 24
Mr. Trinier said that he never provided the Plaintiff with a pair of safety 25 glasses, nor was he asked for them. Mr. Trinier also accepted that the 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 32 of 50 Plaintiff would have had no way of knowing whether Mr. Trinier had safety 1 glasses on site. Mr. Trinier denied that the Plaintiff had come to him for 2 safety glasses. 3 4
Mr. Trinier was familiar with the Defendant’s safety policy document, but 5 accepted that he did not provide a copy of this document to the Plaintiff. Mr. 6 Trinier also accepted that the safety policy document was not posted 7 anywhere on the work site. 8 9
Mr. Trinier said he designed the documents at Phoenix and there were safety 10 orientations on a regular basis. In fact, Mr. Trinier initially said that Phoenix 11 had meetings on a quarterly basis and that these quarterly meetings would 12 deal with safety and other issues. 13 14
After further cross examination Mr. Trinier accepted that these meetings 15 were not always about safety and further, he finally accepted that there was 16 definitely more than one meeting in his 9 ½-year tenure. 17 18
Mr. Trinier accepted that under the heading General Responsibility in the 19 safety document the job site foreman was directly responsible for all safety 20 matters on the site. Mr. Trinier also accepted that the foreman was 21 responsible to ensure that all employees followed all safety policies and to 22 report any refusal by an employee to follow such safety policy. Mr. Trinier 23 also accepted that the foreman was to ensure that all employees were 24 properly instructed, to ensure that safety equipment, such as glasses, was to 25 be provided, and that the foreman was to supervise. 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 33 of 50
In response to cross examination Mr. Trinier accepted that he did not recall 1 telling the Plaintiff or Mr Morrant to wear safety glasses, nor did he recall 2 providing them with safety glasses, and, finally, he did not supervise them 3 performing the task he had assigned to them. Mr. Trinier’s evidence was that 4 he did not instruct the Plaintiff and Mr. Morrant to wear safety equipment 5 and safety glasses, nor did he provide them with safety glasses. 6 7
Mr. Trinier said use of a Hilti gun required high-strength, hardened nails, and 8 after cross examination Mr. Trinier accepted that although he had said in his 9 statement that, after the accident, he had looked at the gun and said there 10 were mild steel nails in the gun, he now said that he really couldn’t recall 11 what type of nails were in the gun. 12 13
When it was put to him that both the Plaintiff and Mr. Morrant were certain 14 that they had used the correct nails, the Plaintiff accepted that he could not 15 recall the type of nails that were in the Hilti gun. 16 17
Mr. Trinier in cross examination said that Mr. Watkis did more than sweep, 18 but he did accept that he was the go-fer man who would sweep and take out 19 garbage. 20 21
Mr. Trinier could not recall whether he ever told the Plaintiff or Mr. Morrant 22 that one of Mr. Watkis’ responsibilities was distributing safety equipment. 23 24 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 34 of 50
Mr. Trinier said that he did not know whether the Plaintiff had ever received 1 any prior training in health and safety, nor did he know whether the Plaintiff 2 was ever provided with a copy of the Defendant’s safety policy document. 3 4 Mr. David Johnson 5 6
Mr. Johnson provided a witness statement on the 27th March 2007 and 7 confirmed that he was initially a project coordinator with the Defendant’s 8 company, but was promoted in January 2006 to Operations Manager. 9 10
He recalled that as Operations Manager he chaired a staff meeting on the 15th 11 March 2006. Mr. Johnson’s evidence is that the staff meeting was 12 compulsory for all staff to attend. At the meeting he briefed the staff on the 13 company’s health and safety policy and advised them of the safety policy 14 document. He said he went through the safety policy document with the staff. 15 16
In his evidence in chief Mr. Johnson said that his presentation dealt with the 17 proper use of tools, which was to be monitored by foremen to promote safety 18 and reduce wear and tear. Mr. Johnson also briefed the staff on safety and the 19 importance of safety, which included the wearing of safety equipment and 20 when safety equipment should be worn. 21 22
Mr. Johnson said that after the meeting he gave copies of the company’s 23 safety policy document to all of the foremen with instructions to give a copy 24 of the document to each and every staff member under their supervision. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 35 of 50
In response to counsel for the Defendant Mr. Johnson said he could not recall 1 if the Plaintiff had been present at that meeting. He recalled that the meeting 2 started at 4:00 p.m. and ended at 5:00 p.m. 3 4
In cross examination Mr. Johnson confirmed that, based on his observations 5 of the Plaintiff, he was a safety-conscious individual, and he was the type of 6 man to wear safety glasses if required. 7 8
Mr. Johnson accepted that it was possible that workers did not attend the 9 meeting. 10 11
Under cross examination Mr. Johnson said the main purpose of the meeting 12 was to introduce himself and to go through a number of different things 13 affecting the company. Mr. Johnson accepted that the agenda at the head of 14 the document was his agenda. 15 16
Mr. Johnson could not say whether Mr. Morrant was at the meeting. Mr. 17 Johnson accepted that there was no attendance note. 18 19
However, the safety document was at the meeting and he provided one to 20 each of the foremen, with instructions to provide it to the workers. 21 22
Mr. Johnson could not remember who the Plaintiff’s foreman was at the time 23 of the meeting and he was unsure whether the Plaintiff’s foreman was given 24 a copy of the safety document. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 36 of 50
Mr. Johnson said that, since the accident, the company had imposed a policy 1 that all workers had to sign a copy of the safety policy, and also that the 2 safety policy was being revised. 3 4
Mr. Johnson accepted that he heard about Mr. Morrant’s missing glasses, but 5 he could not say to whom the missing glasses had been officially reported. 6 7
Mr. Johnson accepted that it is good practice to keep a pair of safety glasses 8 in the Hilti gun case and further, that a foreman should take steps to make 9 himself sure of what safety equipment workers have and do not have. Mr. 10 Johnson also agreed that the foreman should ensure that the guys had safety 11 glasses, and further, that each person should have a pair of glasses, just as a 12 helmet or any other personal protective safety gear. 13 14
Mr. Johnson accepted that it was the foreman’s responsibility to ensure that 15 the safety equipment was stored and that the workers knew where to find it. 16 Mr. Johnson accepted that if a foreman failed to inform an employee of the 17 availability of safety glasses if asked, that foreman would be in breach of the 18 safety policy. 19 20 Ian Haughton 21 22
Mr. Haughton’s evidence in chief is given in his witness statement provided 23 on the 27th March 2007. Mr. Haughton said he had been a foreman for the 24 Defendant’s company for 3 ½ years. He recalled working in the Defendant’s 25 warehouse distributing materials and equipment in July and August 2006. 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 37 of 50 During that period he recalls giving two pairs of safety glasses to Mr. 1 Morrant, who was to give a pair to the Plaintiff. 2 3
In cross examination by the Plaintiff’s counsel, Mr. Haughton accepted that, 4 according to the Defendant’s safety policy, it is the foreman that is charged 5 with the duty to ensure that safety equipment is provided. And further, Mr. 6 Haughton accepted that if a foreman does not comply with the safety policy, 7 that foreman could lose his job. 8 9
Mr. Haughton’s evidence was that after the Plaintiff’s accident, the 10 Defendant issued a safety policy to all the workers and insisted that all the 11 workers had to sign it. 12 13
Mr. Haughton recalled the meeting on the 15th March 2006. Mr. Haughton’s 14 recollection was that one of the reasons of the meeting was to introduce Mr. 15 Johnson in his new role and the meeting was also about the company’s 16 productivity. Mr. Haughton said it was a general meeting and it also included 17 safety, future plans and several other things which he could quite remember. 18 Mr. Haughton said that no attendance list was kept. 19 20 Analysis of the Evidence 21 Plaintiff’s use of Incorrect Nails 22 23
The Defendant’s case, as pleaded in its Defence, is that the Plaintiff failed to 24 follow Mr. Trinier’s instructions to obtain hardened steel Hilti nails. Further, 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 38 of 50 in his written statement, Mr. Trinier alleged that the Plaintiff did not use the 1 correct nails. 2 3
It is clear from the evidence before the Court that the Plaintiff obtained the 4 nails from Mr. Graham and there was no independent evidence from any 5 source that the nails which Mr. Morrant and the Plaintiff used to perform the 6 subject task were the incorrect nails. 7 8
In fact, the Court noticed that Mr. Trinier changed his position on the 9 question of the incorrect nails and candidly admitted at the end of his cross 10 examination that he did not know what type of nails were in the gun, and 11 further, there was no basis for his first allegation regarding nails. 12 13
Accordingly, the Court finds that Mr. Morrant did not use any incorrect nails, 14 and no fault can be laid at the door of the either Mr. Morrant or the Plaintiff 15 for the use of the nails that were used by Mr. Morrant on the 25th August 16
17 18 The Plaintiff obtained the Hilti gun from the “toolbox” without prior consent of Mr. 19 Trinier 20 21
It is clear from all the evidence put before the Court that there was no basis 22 whatsoever for this pleading and that, not only did the Plaintiff have Mr. 23 Trinier’s consent but in fact he was instructed by Mr. Trinier to use the Hilti 24 gun in order to affix a steel track to a steel beam. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 39 of 50 Safety Glasses 1 2
The Plaintiff’s counsel submits that there is a statutory duty under s.62(b) of 3 the Labour Law to provide safety glasses, and further, under the common law 4 relating to duty of care to the Plaintiff, there is an overlapping duty to 5 provide safety equipment which, having been instructed to use the Hilti gun, 6 should have been provided. 7 8
There is no evidence before the Court that the Defendant ever issued either 9 the Plaintiff, or Mr. Morrant, with safety glasses. It is clear that Mr. Morrant 10 had obtained two pairs of glasses from a Mr. Haughton some time before 11 they went on the Countryside site. The evidence is that Mr. Morrant’s safety 12 glasses were stolen and he reported the loss. He was never supplied with an 13 additional set. 14 15
The Court has been told that the Plaintiff and Mr. Morrant had only been 16 working for possibly five days on the Foster’s supermarket site in Savannah. 17 They were not issued with safety glasses by the foreman, Mr. Trinier, nor by 18 any other servant or agent of the Defendant on the site. 19 20
There is unchallenged evidence that the Plaintiff searched the storage 21 container for a set of safety glasses. There is unchallenged evidence that Mr. 22 Morrant searched the storage container for safety glasses and neither the 23 Plaintiff nor Mr. Morrant was able to find any safety glasses. 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 40 of 50
There is a conflict of evidence as to whether the Plaintiff asked Mr. Trinier 1 for a pair of safety glasses. This Court preferred the evidence of the Plaintiff, 2 who I find to be honest, reliable and straightforward. Mr. Trinier’s evidence 3 regarding safety glasses was vague. He said there were approximately five 4 safety glasses. He said the safety glasses were somewhere inside his office 5 but he could not remember whether they were on a desk, and, if so, which 6 desk. 7 8
Having listened carefully to both the Plaintiff and Mr. Trinier, I accept the 9 Plaintiff’s evidence that he asked Mr. Trinier for a pair of safety glasses and 10 Mr. Trinier told him to go and find a pair. I further accept the Plaintiff’s 11 evidence that he took all reasonable steps to find a pair of safety glasses. 12 13
In addition, it is unchallenged that there were no safety glasses in the Hilti 14 gun case. The Court finds that the Defendant is in breach of its statutory duty 15 in failing to provide suitable protection for the eyes, in that, it should be 16 mandatory that the Defendant and its servants and agents to ensure that the 17 safety glasses are with the Hilti gun and in the Hilti gun case at all times. 18 19
Once the foreman, Mr. Trinier, instructed the Plaintiff and Mr. Morrant to 20 affix the steel track to a steel beam by means of a Hilti gun, it was incumbent 21 upon him to ensure that both the Plaintiff and Mr. Morrant had safety glasses 22 before undertaking the task. Mr. Trinier, had given the instructions. He, as 23 the foreman, has primary, overall responsibility to ensure that the 24 Defendant’s employees are properly equipped with safety equipment. He 25 failed to exercise his duty to the Plaintiff. In not ensuring that the Plaintiff 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 41 of 50 and Mr. Morrant were provided with glasses before undertaking the task, the 1 foreman had failed in his responsibility to properly supervise and ensure that 2 they were both provided with the necessary safety equipment for the task. 3 4
The evidence of the Defendant’s Operations Manager, Mr. Johnson, is that 5 safety glasses, as a matter of good practice, should be in the Hilti gun case. 6 Mr. Johnson also accepted that it was the foreman’s duty to ensure that the 7 Plaintiff and Mr. Morrant had safety glasses. 8 9
The Court finds that if the glasses had been in the Hilti gun case as they 10 should have been, Mr. Morrant would have used them when he was using the 11 Hilti gun, and the Plaintiff would have been in a position to use the other pair 12 when he assisted Mr. Morrant. As it was, because there were no glasses in 13 the Hilti gun case, the Plaintiff unselfishly allowed Mr. Morrant to use his 14 safety glasses, thereby leaving the Plaintiff at risk when they both followed 15 Mr. Trinier’s instructions to affix a steel track to a steel beam by means of 16 the Hilti gun. 17 18
Again I find that the Defendant is in breach of its statutory duty in failing to 19 provide suitable protection for the eyes in accordance with s.62(b) of the 20 Labour Law. Furthermore, the Defendant is negligent in failing to take 21 adequate precautions for the safety of the Plaintiff and for failing to provide a 22 safe system of work. 23 24 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 42 of 50 Health and Safety Training 1 2
The Defendant pleaded in its Defence that the Plaintiff attended a staff 3 meeting at the Defendant’s premises in Industrial Park on the 15th March 4 2006 when the Defendant’s written policy, including the use personal safety 5 equipment was distributed to all staff members present, including the 6 Plaintiff. 7 8
In his evidence in chief Mr. Johnson stated that he chaired the staff meeting. 9 He said the staff meeting was compulsory for all staff to attend, but he could 10 not recall if the Plaintiff was in attendance. He said that he briefed the staff 11 on the company’s health and safety policy and advised them of the safety 12 policy document. 13 14
In his evidence in chief he said that one of the main emphases at the meeting 15 was to present himself as the Operations Manager to the work crews. He 16 said, “people were aware of our safety policy and it gave me the opportunity 17 to distribute the safety policy again and answer any questions that anyone 18 might have at that time with regard to the safety policy.” 19 20
At one stage in his evidence Mr. Trinier stated that he and Phoenix had 21 quarterly meetings. By the end of his cross examination Mr. Trinier’s 22 position changed dramatically, when he was merely insisting that there was 23 more than one meeting during his nine years as a foreman with the Defendant 24 company. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 43 of 50
The only reliable evidence regarding any meetings associated with safety 1 policy is that one meeting did take place on the 15th March 2006. 2 3
The Court finds that for the Defendant to describe this as a health and safety 4 meeting, is, to some extent, stretching the truth. It is clear from the meeting 5 agenda that Mr. Howell chaired the meeting and the first and primary aim 6 was to introduce Mr. Johnson to the team, and to give an overview of Mr. 7 Johnson’s position. This included Field Management, Quality Control, 8 Projects and Scheduling, Safety Policy Awareness, the roles of three other 9 third parties, and, Future Profit Share expectations. On any view, safety 10 policy took only a fraction of that time, possibly amounting to a quarter or 11 perhaps a third of the time allotted. All the typed meeting agenda stated 12 regarding safety policy was to introduce to the employees that there would be 13 visits from government safety inspectors and the possible impact to the 14 Defendant from possible infringements. There is one line on the meeting 15 agenda regarding the importance of safety, both on site and in day-to-day 16 operations. 17 18
The Court finds that there is no note of who attended that meeting. There is 19 no evidence adduced by the Defence that either the Plaintiff or Mr. Morrant 20 attended the meeting. The Plaintiff and Mr. Morrant are both adamant that 21 they did not attend the meeting, nor were they told of the content of the 22 meeting. 23 24
This Court accepts the evidence of the Plaintiff and Mr. Morrant, in that, they 25 were not at the meeting on the 15th March 2006. There is no evidence to 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 44 of 50 suggest that the Defendant or its servants or agents made any attempt to 1 ensure the Plaintiff and Mr. Morrant attended the meeting. There is no 2 evidence that there was any attempt to have a separate meeting with the 3 Plaintiff and Mr. Morrant to discuss safety policy. There is no evidence that 4 either the Plaintiff or Mr. Morrant had ever received any safety training from 5 the Defendant or any of its servants or agents. 6 7
The Defendant produced in evidence a rather sparse, inadequate and undated 8 safety policy which had clearly been photocopied many times. 9 10
The safety policy document states that all employees are required to read and 11 be familiar with the company safety policy. It also states, “…you are 12 encouraged to maintain a copy and to review it from time to time.” However 13 when one examines the Defendant’s safety policy document it does not 14 provide any rules or regulations for the employees to follow. It does not 15 provide any guidelines of what is expected and required of the employees. It 16 boldly states that, “Should an employee refuse to follow a safety policy he 17 may at the discretion of the foreman be dismissed.” However, there are no 18 written rules, regulations, guidelines or any policies to which the employees 19 are supposed to adhere on any safety policy of the Defendant company. 20 21
Accordingly, on all the evidence before it, this Court finds that the Plaintiff 22 was not given any prior training in health and safety. Furthermore, this Court 23 finds that there is no evidence that the Plaintiff was given any instructions or 24 guidelines on personal safety equipment. 25 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 45 of 50
Indeed, I find on the evidence before the Court that the Plaintiff and Mr. 1 Morrant were entirely unaware of the Defendant’s written safety policy or of 2 any safety policy for the Defendant. 3 4
What the Defendant’s safety policy does state is that the, “job site foreman is 5 directly responsible for all safety matters on the site. He is to ensure that 6 each employee follows all safety policies and he is to report any refusal by 7 any employee to follow policies.” Furthermore it adds that, “The foreman is 8 additionally responsible to attempt to correct any potentially dangerous 9 situations created by site conditions, subcontractors, or any other persons on 10 site who are not directly in the employ of the company” and further, “the 11 foreman is to ensure that all employees wear protective clothing when 12 conditions warrant it. Protective clothing may include, buy (sic) [but] may 13 not be limited to; hats, hard hats, gloves, steel-toed shoes, long trousers, 14 safety glasses.” 15 16
Having heard all the evidence it is clear that Mr. Trinier did not comply with 17 the duties laid out by the Defendant for the jobsite foreman. He failed to 18 ensure that there were glasses in the Hilti gun case. When instructing the 19 Plaintiff and Mr. Morrant to affix the steel track to the steel beam, he did not 20 ensure that they both had safety glasses. Indeed, Mr. Trinier as foreman 21 instructed the Plaintiff and Mr. Morrant to attempt a potentially dangerous 22 task without ensuring that they had the necessary safety glasses to ensure 23 they were protected. 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 46 of 50
Mr. Trinier frankly conceded that he never told the Plaintiff or Mr. Morrant 1 that there were any safety glasses and that he never checked that they had the 2 proper safety equipment. Further, Mr. Trinier admitted that he never told the 3 Plaintiff or Mr. Morrant to wear safety glasses. 4 5
Again the Court finds that the Defendant, through its servant and agent, Mr. 6 Trinier, failed to provide suitable protection for the Plaintiff’s eye in 7 accordance with s.62(b) of the Labour Law. Further the Defendant, through 8 its servant and agent, Mr. Trinier, was negligent in failing to take adequate 9 precautions for the safety of the Plaintiff. 10 11 Contributory Negligence 12 13
The Defendant alleged in its Defence that the Plaintiff was in breach of 14 statutory duty in not following the safety policies set out on the 15th March 15 2006 and not being fully aware of the undated safety policy document. 16 17
Furthermore, the Defendant avers in its Defence that the Plaintiff was guilty 18 of contributory negligence in exposing himself to the risk of the injury. 19 20
I have dealt with the question of nails, safety glasses, as well as with the 21 inadequacy of the Defendant’s safety policy document, and the Defendant’s 22 failure to ensure that the Plaintiff received any health and safety training. 23 24
I now ask myself the question: Was there any element of contributory 25 negligence? 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 47 of 50 1
I find on the evidence before me that the Plaintiff did take a number of steps 2 to try and find some safety glasses before attempting to affix the steel track 3 to the steel beam with Mr. Morrant. He searched the container, which was 4 the usual place to find safety glasses. He was not issued any safety glasses. 5 He searched the Hilti gun case for safety glass. He asked the foreman, Mr. 6 Trinier, for safety glasses. Mr. Trinier’s response to the Plaintiff was that he, 7 the Plaintiff, was to go and find a pair. The Plaintiff then had a second look 8 for the safety glasses. Mr. Morrant had also searched for safety glasses and 9 eventually when neither the Plaintiff nor Mr. Morrant could find any safety 10 glasses on the site the Plaintiff allowed Mr. Morrant to use his safety glasses. 11 12
In addition, the Defendant’s Operations Manager, Mr. Johnson, accepted that 13 the Plaintiff was a “safety conscious” individual who was the type of man 14 who would wear goggles when required. 15 16
The contention the Defendant makes is that the Plaintiff should have been so 17 acutely aware of the dangerous nature of the task that he should not have 18 attempted to assist Mr. Morrant without safety glasses, and in fact, should 19 have even resorted to downing tools. 20 21
The Plaintiff’s response to this is that he had a genuine and real fear that this 22 would jeopardize his employment with the Defendant company and therefore 23 it was not something he was prepared to do. The Plaintiff’s evidence is that 24 downing tools was not an option for him. He had never done that before and 25 under the circumstances, with Mr. Trinier being a demanding foreman, he 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 48 of 50 just did not consider downing tools to be a viable option. In fact, the Plaintiff 1 professed to having a real fear that he would be fired if he had downed tools. 2 I find the Plaintiff’s expressed fear for his continued employment to be 3 sincere and real. 4 5
I find that the Plaintiff’s health and safety training was virtually non-existent. 6 The Defendant’s undated safety policy document was entirely inadequate and 7 provided the employees with no safety policies. The foreman failed to 8 exercise the necessary precautions to ensure that the Plaintiff was wearing 9 glasses. The Plaintiff took all reasonable steps to try and locate a pair of 10 safety glasses. There were no safety glasses in the storage container and no 11 safety glasses in the Hilti gun case. The Plaintiff was left with the one 12 precaution, which was to try and look away when Mr. Morrant fired the gun. 13 14
It is clear from the evidence of other third parties that the Plaintiff was a very 15 safety conscious individual and this Court finds that the Plaintiff took all 16 reasonable steps to try and ensure that he and Mr. Morrant were protected. 17 18
Accordingly I do not find that the accident was caused, or contributed to, by 19 the negligence of the Plaintiff. 20 21
In addition, for the aforesaid reasons, I find that the Plaintiff did not willfully 22 and did not, without reasonable cause, act to endanger himself, and therefore 23 was not in breach of s.64(1) and (3) of the Labour Law. 24 25 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 49 of 50
Having examined the evidence and the written submissions of both counsel, I 1 find that on the balance of probabilities the Defendant was in breach of its 2 statutory duty by not ensuring that suitable safety glasses were provided to 3 protect the eyes of the Plaintiff, who was employed in a process involving a 4 special risk of injury to the eyes, as required by the provisions of s.62(b) of 5 the Labour Law. 6 7
Having examined all the evidence and heard submissions from both counsel, 8 I find on the balance of probabilities that the Plaintiff has made out his case 9 that the said injuries, loss and damage were caused by the negligence of the 10 Defendant, its servants or agents, in: 11 12 i. Failing to take any adequate precautions for the safety of the 13 Plaintiff while he was engaged in his work; 14 ii. Exposing the Plaintiff to a risk of injury of which the Defendant 15 and its servants and agents knew or ought to have known; 16 iii. Failing to provide the Plaintiff with suitable safety glasses to 17 protect the eyes of the Plaintiff while he was carrying out his 18 work; 19 iv. Directing the Plaintiff to carry out the work without providing 20 him with any suitable safety glasses to protect his eyes when the 21 Defendant, its servants and agents knew or ought to have known 22 that it was unsafe and dangerous for him to carry out the work 23 without suitable safety glasses; 24 v. Directing the Plaintiff to attach a steel fixture to a steel beam by 25 use of a nail gun when the Defendant, its servants and agents 26 Ruling. Cause No. 101/2007. Eddie Trimmingham v. Phoenix Construction Ltd. Coram Quin J. Date: 11.11.2010 Page 50 of 50 knew or ought to have known that that it was unsafe and 1 dangerous for the Plaintiff to carry out this work in this manner; 2 vi. Failing to provide or maintain a safe or proper system of work. 3 4 5
Accordingly, this Court finds the Defendant liable for the Plaintiff’s personal 6 injury, loss and damage, by reason of the negligence and breach of statutory 7 duty of the Defendant and its servants and agents. 8 9
As costs follow the event, the Court orders that the Plaintiff’s costs are to be 10 paid by the Defendant and to be taxed if not agreed. 11 12 13 14 15 16 Dated this the 11th November 2010 17 18 19 20 Hon. Mr. Justice Charles Quin 21 Judge of the Grand Court 22