BARBADOS


[Unreported]


 


IN THE SUPREME COURT OF JUDICATURE


 


HIGH COURT


 


CIVIL DIVISION


 


No. 735 of 2006


 


BETWEEN


 


 


                                                CLIVE MORRIS                  PLAINTIFF


 


                                                               AND


 


                                    FRANCIS FURNITURE LTD.      DEFENDANT


 


 


Before the Hon. Madam Justice Kaye Goodridge, Judge of the High Court.


 


2007: Dec 12 and 13


2010: November 5


 


Mr. Philip McWatt in association with Mr. Silbert Cadogan for the Plaintiff.


Ms. Valentina Blackman in association with Ms. Nesha Raja for the Defendant.


 


 


DECISION


Introduction


 


[1]        This is an action brought by the Plaintiff in which he claims damages from the Defendant for personal injuries sustained while working at the Defendant’s premises.


            The Pleadings


[2]        In his Statement of Claim the Plaintiff alleges that on 11 January 2006 whilst in the course of his employment, he was operating a router machine which has dangerous parts when his fingers came into contact with the dangerous parts and he was injured.


[3]        His complaint is that the accident was caused by the breach of statutory duty of the Defendant under the Factories Act Cap. 347 (the Act) in failing to fence the dangerous parts of the machine.  It is also alleged that the Defendant was negligent in that it failed to:-


            (1)        provide a safe system of work, and,


 


            (2)        implement protective measures and exposed the Plaintiff to a foreseeable                                             risk of injury.


           


[4]        The Defendant denies that any injury, loss or damage was caused as a result of any breach of statutory duty or negligence on its part.  The Defendant states that the specified risks were reduced by the installation of guards on the router machine and the implementation of a system requiring users of the machine to use safety apparatus.


[5]        The Defendant further states that the Plaintiff caused and contributed to the accident in that he failed and/or refused and/or neglected to:-


            (a)        make proper use of the safety apparatus  provided to him;


 


            (b)        heed and to obey the several written and   posted signs on the defendant’s premises;


 


            (c)        heed and to obey the defendant’s oral  instructions and warning as to the dangers


                        of him operating the router machine without


                        the use of safety apparatus; and,


 


            (d)       failed to take appropriate care for his own  safety.


 


[6]        The Defendant claims that the Plaintiff had full knowledge of the risk of injury, loss and damage to himself by his own actions or conduct and voluntarily and impliedly consented to run such risk.  It relies on the defence volenti non fit injuria.  The Defendant also relies on section 7(2) of the Act.        


            The Plaintiff’s Case


[7]        The Plaintiff gave evidence and called two witnesses in support of his case.  He testified that he was employed by the Defendant as a joiner where his duties were to make furniture.  He used circular saws, routers and other types of equipment.  He was given special instructions on how to use this equipment.  He recalled seeing notices, safety rules for the use of routers and other documents in various parts of the factory and he was able to comply with the safety rules in all respects.


[8]        The Plaintiff identified his signature on his employment contract and the date of 6 January 2006 which he said he had written on the document.  The Plaintiff said that he made a mistake in writing that date and that he had received the document on his return to work after the accident.


[9]        The Plaintiff stated that on 11 January 2006 he was routing a panel for a wardrobe horizontally with his bare hands because there was no safety jig available for routing a panel lengthwise.  There were safety jigs for routing panels crosswise.  As he was routing the panel, the router’s blade picked the panel and moved the panel across the blade.  His fingers came into contact with the blade and he was injured.  The Plaintiff was taken to the Queen Elizabeth Hospital where he was treated and detained.  He was discharged after four days.


[10]      The Plaintiff also testified that he returned to the hospital for further treatment and was referred to physiotherapy because he could not move his fingers.


[11]      The Plaintiff was unable to wash, cook, clean or carry out any household duties for about 3 to 4 weeks and was assisted by his roommate during that time.  He returned to work about a month after the accident.


[12]      The Plaintiff is right handed and the injury has affected the way he writes.  He has problems gripping tools and retrieving small objects from the floor.  He considers that he is now less competitive in the job market.


[13]      Under cross-examination, the Plaintiff stated that he had been a joiner for 14 years prior to joining the Defendant.  He stated that he became full time in January 2006, and then he retracted this evidence.  After being shown the employment contract which he had signed and dated 6 January 2006, his response was that he had been given the document after he was injured.  The Plaintiff gave a similar response when presented with the safety rules for operating routers which also carried the same date.


[14]      The Plaintiff was questioned about the notices on the bulletin board warning employees not to use to their naked hands and requiring them to use the safety clamps (jigs).  He replied that he never paid close attention or much attention to the notices at the time because no one ever gave him a copy of anything or even took him through them until after the accident.  Further, he stated that on some occasions “the machine, because of the velocity, would cut you and you would not even realise”.


[15]      In further questioning, the Plaintiff admitted that he was aware of the rule about wearing safety equipment before the accident and he complied with that rule.  He maintained that there was no jig prepared to rout a panel lengthwise but admitted that he never raised this matter with management of the Defendant.  He denied being warned on several occasions to use the jig.  He said that he was not warned either before or after the accident not to use his bare hands.


[16]      The Plaintiff admitted that on his release from the hospital he returned to his work place but stated that his reason for so doing was to tell   Mr. Rose what to do and how to complete the job.  He denied that management told him to go home and rest his hand.


[17]      The Plaintiff then said that when he returned to work on 12 February, 2006 he was given NIS forms to fill out and a copy of the rules and regulations.


[18]      The Plaintiff did not recall that on 15 February, 2006 he was spoken to by Mr. Francis and warned not to use his bare hands, but he did recall having a safety jig in his hand at some point on the day of the accident.  He disagreed with the suggestion that when the wood is held lengthwise it is possible to rout halfway down using the jig and then rout the other half.


[19]      When questioned further, the Plaintiff contended that the router machine was equipped with only one guard or guide on one side of the router and that it was the same thickness as the wood he was routing.  There was no guard on the other side and that is why he had to use his bare hands.  The Plaintiff denied that it was his personal preference to use his bare hands when routing panels.


            Medical Evidence


[20]      Mr. Randolph Carrington, F.R.C.S Consultant Orthopaedic Surgeon testified that the Plaintiff was seen at the Queen Elizabeth Hospital on 11 January 2006.  Examination revealed that the distal tips of the Plaintiff’s middle and ring fingers were amputated.  The Plaintiff underwent surgery and remained in hospital until he was discharged on 14 January 2006.  He returned for further treatment on 20 January 2006 when his wounds were noted to have healed well and the sutures in the wound were removed.


[21]      Mr. Carrington testified that the Plaintiff’s fingers would have been painful immediately after surgery and any hyper sensitivity would have presented itself later.  The Plaintiff had a further appointment but he defaulted.


[22]      Under cross-examination, Mr. Carrington said that when the sutures were removed the superficial wounds had healed but the deeper wounds would take about 3 to 6 months.  The Plaintiff would have had functionality and he would be able to do his job since the digits involved were not the dominant ones.


[23]      Mr. Carrington was re-examined by Mr. McWatt about sensitivity of the Plaintiff’s fingers and he stated that if the nerves do not heal properly there would be sensitivity but he was not able to assess this.


            Evidence of Mr. Rose


[24]      The Plaintiff’s roommate, friend and work colleague, Mr. Rose testified that at the time of the accident the router had only one guard/guide.  He was at work when the Plaintiff was injured.  He assisted the Plaintiff with his chores for about 4 weeks because he could not use his hand.  He further testified that the workers were not told about any rules until after the Plaintiff’s accident.  He did not recall seeing the notice instructing the workers not to use their bare hands when using the router. 


[25]      Under cross-examination, Mr. Rose said that he knew the Plaintiff for about 20 years and that he got the position with the Defendant with the Plaintiff’s help.  He said that he finished the Plaintiff’s work on the day of the accident, that he used the jig on the short side but not on the long side.  Mr. Rose insisted that he had to use his bare hands to finish the job because there was no jig for the long side.  He agreed that he never informed management about the absence of safety jigs.


            The Defendant’s Case


            Mr. Dennis Francis, Owner of the Defendant


[26]      Mr. Dennis Francis testified that he is the owner of the Defendant which is located at Dash Valley in the parish of Saint George.  The Defendant makes wardrobes, kitchen cabinets and general furniture.  The Defendant has been in operation for the past 30 years.


[27]      Mr. Francis testified that he has had a router at the factory for about 28 years and he used the router until he retired.  He always had the necessary jigs.  Mr. Francis then demonstrated the use of the jig on a panel both horizontal and lengthwise for the benefit of the Court.  He stated that he had to warn the Plaintiff on numerous occasions about using his bare hands and that on some occasions when he spoke to the Plaintiff, the Plaintiff would use the jig in his presence but as soon as he went away the Plaintiff would use his bare hands.


[28]      Under cross-examination, Mr. Francis said that the router in question had been purchased two years ago, it did not come with pre-installed guards and guards were installed on the router table as it would have been dangerous to use the router without guards.  He stated that the guards would be changed from time to time by either the workers or management.  He accepted that management was responsible for the upkeep of the table and ought to know when a guard was missing.  He was unable to state the date on which the guards were last changed but maintained that they were changed when necessary.


[29]      Mr. Francis agreed that strong action should have been taken against the Plaintiff for failing to obey the rules but they could not dismiss the Plaintiff because there was no one else to do the work.  The Plaintiff was kept on because “he was a first class worker”.


            Ms. Ayodele Francis


[30]      Ms. Ayodele Francis, a Director of the Defendant, testified that the Plaintiff was interviewed on 16 October 2005 and at a later date she gave him a set of rules and notices which the Plaintiff signed for.


[31]      The witness testified that notices were placed in front of all electrical tools and that she would take around each employee and show him where each of the notices was located in the factory.  She did this with the Plaintiff.


[32}     Ms. Francis said that there are several safety jigs for all the furniture manufactured by the Defendant and these are located near to the router table.


[33]      According to this witness, the Plaintiff began working part-time from October until December when he became a full time employee.  From time to time she would see the Plaintiff using the jigs and on one occasion she saw the Plaintiff use the jig lengthwise on a panel.       Ms. Francis testified that the router table always had guards on both sides.


[34]      Ms. Francis said that she was at work on the day that the Plaintiff sustained his injury.  Mr. Rose used a jig and finished the Plaintiff’s work without sustaining any injury.  Ms. Francis stated that after being discharged from the hospital, the Plaintiff attempted to resume work but she informed him that his fingers needed time to heal and refused to let him work.  The Plaintiff returned to work on 12 February, 2006. 


[35]      The witness recounted two occasions when she observed the Plaintiff routing panels without the use of the safety jig and had to insist that he used the jig.


[36]      Under cross-examination, the witness said that the router table had been in the workshop for over 5 years.  She said that the guards were replaced if they were faulty or chipped but was unable to give the date when the guards were last changed.  Ms. Francis admitted that she did not have any written record of when the guards were changed.


[37]      Ms. Francis further stated that no stronger action was taken against the Plaintiff because the company only had 3 or 4 skilled workers at the time doing that type of work.


            Evidence of Mr. Anthony Rocheford, Inspector


[38]      Mr. Anthony Rocheford, an Occupational Safety and Health Inspector visited the Defendant’s premises, examined the router in question and prepared a report which was admitted into evidence without objection. Mr. Rocheford testified that he observed the making of a panel and saw the jig being used at all times during this process.  He found that the jig was adequate for what was being done but made a recommendation to make it even safer.  Mr. Rocheford also found the guards on either side of the table to be adequate.  


[39]      Under cross-examination, Mr. Rocheford testified that, based on the demonstration given, it was unlikely that someone’s hand could come into contact with the router blade because of the design of the router table and the guards.  However, if the guards were not present or if the guards were lower in height, there was the risk of significant injury occurring.


[40]      Mr. Rocheford said that he questioned why stronger disciplinary action was not taken against Mr. Morris for breaching the rules as reported by the Defendant.  In his opinion, the explanation given by the Defendant was inadequate and he viewed the lack of disciplinary action as a failure of the Defendant’s management system.


            The Issues


[41]      The following issues arise for the determination of the Court:


(1)        Was there a breach of statutory duty by the  Defendant? 


 


(2)        Was the Defendant negligent in that it failed  to provide a safe system of work for its                                     employees?


 


(3)        Is there contributory negligence on the part of the Plaintiff?


 


(4)        Is the defence of volenti non fit injuria sustainable?


           


            Issue No. 1 – Breach of Statutory Duty


[42]      It is accepted by the parties that the Defendant operated a factory within the meaning of the Act.  Section 7 of the Act places on the Defendant certain obligations in relation to dangerous parts of machinery on its premises.  This section provides:-


“(1)      Every dangerous part of machinery on premises to    which this Act applies must be securely fenced            unless such machinery is in such position or is so       constructed as to be safe to every person employed        or working on the premises as it would be if   securely fenced.    


 


(2)        Where the dangerous part of any machinery, by  reason of the nature of an operation, cannot be   securely fenced by means of a fixed guard, the requirements of subsection (1) shall be deemed to have been complied with if a device is provided         that automatically prevents the operator from  coming into contact with that part of the  machinery while it is in motion or use”.


 


            The Plaintiff’s Submissions


[43]      In his written submissions, counsel for the Plaintiff submitted that this provision has been held by the Courts to be one of strict liability.  In other words the duty of the employer or factory owner under the Act is absolute and non-delegable.  Mr. McWatt then cited the case of John Summers and Sons Ltd v. Frost [1955] 1 All ER 870.


[44]      In Summers, the respondent, a maintenance fitter who was employed in a steel works, suffered injury to his thumb when it came into contact with a revolving grinding machine.  He had brought an action for damages for breach of statutory duty under section 14(1) of the Factories Act 1937 or alternatively for negligence.  The trial judge found that there was no breach of statutory duty on the part of the appellants but that the real cause of the accident was the respondent’s own negligence and gave judgment for the appellants.


[45]      On appeal the House of Lords held:


(1)        as the grinding wheel was a dangerous part of  machinery within section 14(1) of the Act, there was an absolute obligation under that subsection  that the grinding wheel should be securely fenced;


 


(2)        a dangerous part of machinery is securely fenced only if the presence of the fence makes it no longer dangerous in the sense that there is no longer a reasonably foreseeable risk of injury to the   workman using the machine, even though he is careless or inattentive;


 


(3)        on the facts the grinding wheel was not so fenced,   and accordingly, the appellants were in breach of  statutory duty to the respondent, notwithstanding that the consequence of securely fencing the machine in accordance with the statutory  ligation would be to render it commercially    unusable.


 


[46]      Viscount Simmons emphasized that this duty is absolute by reference to the proviso when he said:


“the proviso to section 14(1) affords a strong indication that the substantive part of it imposes an absolute obligation; for, unless its effect is absolutely to prevent the operator from coming into contact with a dangerous part of the machine, there would be little meaning in the provision of an alternative which has just that effect”.


 


[47]      Mr. McWatt continued that any use of the alternative contained in sub-section (2) must similarly achieve the same goal as sub-section (1) namely avoidance of contact by the operator with the dangerous part of the machine regardless of how inattentive or indolent the said operator may be.  Counsel also referred to the case of Sutherland v. Executors of James Mills Ltd. [1938]1 All ER 283.


[48]      Counsel then submitted that the Defendant in the present case could not have said to have discharged its statutory duties by merely providing jigs (which may or may not have been appropriate) in addition to having placed guides along both sides of the router, which allegation is denied, since these measures would not of themselves have achieved the desired effect of preventing the operator from coming into contact with the machine.


[49]      Turning his attention to the section 7(2) defence, Mr. McWatt submitted that the only evidence to support this defence came not from any of the Directors of the Defendant but from the Defendant’s expert Mr. Rocheford where at page 9 of his report he states that “the machine cannot have a fixed guard attached”.  Counsel contended that this did not satisfy the full requirements of the Section and that while the witness was accepted as an expert on safety, his expertise on routers was never established and this evidence should have been led from Mr. Francis as a Director of the Defendant.


            The Defendant’s Submissions


[50]      In dealing with the issue of compliance with the Act, counsel for the Defendant in her written submissions referred to certain parts of Mr. Rocheford’s report where he made the following comments-:


“the machine cannot have a fixed guard attached; however the fixed guides on the table act as a guard and protect the operator from coming into contact with the non-cutting blades of the router once the machine is being operated”.


 


Further at page 11 Mr. Rocheford stated:


 


“the fact that the router blade is recessed between the two guides and access to it can only be gained by the one cutting blade which would be covered by the wood being routed and the safety guides are provided for use when routing the operator’s hand should not come into contact with the router table.  It would be safe to say that Francis Furniture Inc. have fulfilled their legal requirement as far as was reasonably practicable, based on the information provided to me”.


 


And finally at page 12 Mr. Rocheford stated:


 


“having examined the machine and observed its operation, I have concluded that the machine is safe by design and can be operated without risk once the operating instructions are followed”.


[51]      Ms. Blackman contended that the router table used by the Plaintiff at the time of the accident had guides/guards installed thereon which when used together with the safety jigs would have prevented the loss and/or damage which the Plaintiff sustained on 11 January 2006.  Therefore there was no breach of statutory duty by the Defendant.


            Discussion of Issue No. 1


[52]      The evidence discloses that the router machine is attached to a work table from underneath and there are two wooden guards/guides on either side of the worktable.  The blade of the machine protrudes through an opening on the worktable between the two guards.  When operated the blade of the machine spins and in the process thins or planes panels of wood.


[53]      It is clear from the above that the router is a dangerous part of machinery which falls within section 7 of the Act and therefore the Defendant was under a statutory obligation to securely fence the router so that it was safe for use by its employees.  Alternatively, if the router could not be securely fenced because of the nature of the operation, the Defendant was required to provide a device which would prevent the operator from coming into contact with the dangerous part of the machinery while it was in use.


[54]      It is the Plaintiff’s contention that at the time of the accident the router machine had only one guard on one side of the router and consequently it was necessary for him to use his bare hands when routing the panel lengthwise.  And, while he admitted that safety jigs were available, he claimed that none of the jigs could span the panel lengthwise and this caused him to use his bare hands.


[55]      On the other hand, the Defendant asserts that the router table always had guards on either side and that there were safety jigs, which if used by employees, prevented contact with the router blade.  It was the Plaintiff’s failure to comply with the safety rules and to use the safety equipment provided which caused him to suffer injury.


[56]      Having heard the evidence of the Plaintiff and his witness and the Defendant and its witnesses, I am of the view and I hold that at the time of the accident the router table had two guards installed and the Defendant had provided safety jigs to be used by the Plaintiff so as to prevent his hands from coming into contact with the router blades.


[57]      Even if the safety jigs could not span the panel lengthwise, the jigs could be used with safety.  This is revealed in the report of              Mr. Rocheford, Factory Inspector, who examined the router which caused the injury and found that jigs were present and that there were guards on either side of the table which were adequate.  The provision of safety jigs and guards made the router safe for use in the opinion of the Factory Inspector.


[58]      Having regard to the foregoing, the Court finds that there was no breach of statutory duty on the part of the Defendant.


            Issue No. 2 - Was the Defendant negligent in that it failed to provide a safe system of work?                           


[59]      The Plaintiff also grounded his action in negligence.  Counsel for the Plaintiff submitted that at common law there is implied into every contract of employment terms that seek to protect the health and safety of all employees.  He referred to the case of Wilson & Clyde Coal Co. Ltd. v. English [1938] A.C. 57 where Lord Wright described the employer’s obligation as three-fold-the provision of competent staff, adequate material and a proper system of work and effective supervision. 


[60]      It was counsel’s further submission that an employer must organize a safe system of working for his employees and must ensure that the system is adhered to.  Counsel pointed out that the duty to provide a safe system of work is by no means limited to the mere provision of safety apparatus and or the issuing of safety instructions.


[61]      Counsel cited the case of Nolan v. Dental Manufacturing Co. Ltd. [1958] 2 All E.R 449 where the Court found that the claim of breach of statutory duty had failed but the Defendants were in breach of their common law duty not to expose the Plaintiff to unnecessary risk.  The Court held that there was an obligation on the Defendants not only to provide goggles but also to give strict orders that they were to be used and to supervise workmen to a reasonable extent to see that the orders were obeyed, and the Defendant had done none of these things.


[62]      However, counsel for the Defendant submitted that the Defendant had discharged its duty of care by providing adequate safety equipment, the placing of guards on the router table, the posting of pertinent safety rules and guidelines on the wall of the factory and notifying the Plaintiff of the existence of the said safety rules and guidelines.


[63]      Counsel also contended that the Plaintiff’s claim should be denied because the router table had guards installed thereon, which when properly used together with the safety jigs could have prevented the loss and/or damage which the Plaintiff sustained on 11 January 2006.  


            Discussion of Issue No. 2


[64]      There is no issue in relation to the provision of competent staff since the Plaintiff has not alleged that the Defendant’s staff was in anyway incompetent.  The evidence has also established that the Defendant provided adequate material by the provision of safety jigs.  However, the Defendant had a duty not only to provide a proper system of work for the Plaintiff and its other employees but to ensure that all employees complied with the safety rules.  What the Court must consider is whether there was a breach of this duty and if so, did that breach result in the Plaintiff’s injury?  This involves a consideration of whether or not the Defendant provided effective supervision of its system of work and of its employees.


[65]      The evidence before the Court is that the Plaintiff was given a copy of the company’s safety rules and procedures before the accident.  The Plaintiff said that he received these documents after the accident but I do not accept his evidence on this point.  When shown the documents bearing the date 6 January 2006, the Plaintiff’s explanation for this was that he made a mistake.  This seems unlikely having regard to the fact that the Plaintiff had visited his attorney-at-law immediately upon his release from the hospital.  It seems improbable that the Plaintiff, on his return to work, would have accepted copies of safety rules which he says he did not receive previously and then place an incorrect date on the said documents.


[66]      Further, Ms. Francis gave evidence, which was unchallenged, that she took the Plaintiff around the factory (as she did with other employees) and pointed out the safety notices posted on the walls of the factory.  One such notice exhibit CMI stated:


“All persons who have to use the router to route any pieces of wood must not under any circumstances use their naked hands to do any such work.  All persons using the router must use the safety clamps provided by the company.  These clamps are to protect persons’ hands from being cut, maimed or amputated”.


 


[67]      The Defendant also gave the Plaintiff its safety rules for operating routers which required employees, according to Rule 8, to “Always use the correct safety apparatus, jigs and clamps when operating the router”.  The complaint of the Plaintiff is that, while safety jigs were provided, there was no jig for routing a panel lengthwise. However, the Plaintiff never drew this deficiency to the attention of the Defendant.     


[68]      Rule 2 of the safety rules required employees to immediately report any defects in the (router) machine to management and not to use the machine until it is fixed.  The Plaintiff claimed that there was only one guard but gave no evidence of having informed the Defendant of the guard which was absent from the router table.


[69]      I have considered the evidence of the Defendant’s witnesses and I have come to the opinion and I hold that neither the Plaintiff nor his witness was truthful with the Court on these critical issues.  The Court observed that the Plaintiff was very evasive under cross-examination.  I accept the evidence of the Defendant’s witnesses on these points and hold that the Defendant did provide a safe system of work for its employees.


[70]      But this is not the end of the matter.  While the evidence shows that the Defendant did provide a safe system of work, did the Defendant ensure that there was strict compliance by the Plaintiff with those rules?


[71]      The Plaintiff did not recall ever being warned by any officer of the Defendant about using his bare hands when routing panels.  However, the Defendant’s officers gave evidence to the contrary.  When questioned about the failure to take strong action against the Plaintiff for his continued disobedience of the rules, Mr. Francis said that the Plaintiff was a first class worker and they could not dismiss him because there was a shortage of skilled joiners.  The net effect of this testimony is that the Defendant chose to ignore the Plaintiff’s failure to comply with its safety rules.


 


[72]      In this case the Defendant had a common law duty to ensure that their safety procedures were followed by the Plaintiff – per Paull J at page 454 in Nolan’s case.  Warning the Plaintiff was clearly an appropriate initial measure but the Defendant should have taken stronger action against the Plaintiff, since it was aware of the fact that the Plaintiff was not adhering to its safety rules. 


[73]      The Defendant did not ensure compliance with its own rules.  This failure to ensure that the Plaintiff used the safety devices is a breach of the Defendant’s duty of care to its employees.  The duty is not only to provide devices but to ensure their use.  It is clear that the Defendant was well aware of the Plaintiff’s negligence but chose to ignore it because he was a good worker.  I therefore find the Defendant to have been negligent because of this breach and accordingly liable in damages for the Plaintiff’s injuries occasioned by the breach.


            Issue No. 3 – Is there Contributory Negligence on the part of the Plaintiff?


[74]      Counsel for the Plaintiff submitted that if the Court is of the view that this case warrants a finding of contributory negligence it should bear in mind the following factors.  Firstly, according to the Defendant’s own evidence it was aware that the Plaintiff had in the past not used the safety jigs when routing panels and had warned him of the same on occasions prior to the accident.  Secondly, given the non-enforcement of the safety rules and the fact that there were others who used their bare hands as well, it would seem as though the Defendant condoned such conduct.


 [75]     The Defendant contended that the Plaintiff failed to have regard for his own safety in that he failed to use the safety equipment provided by the Defendant and the Court should find that the Plaintiff’s injury was in part due to his negligence.  The Defendant cited the case of General Contractors v. Christmas [1958] 2 All E.R. 1110 but submitted that it should be distinguished from the facts in the present case.  The Defendant submitted that the Court should find that the Plaintiff was 90% liable for the injury which he suffered.


            Discussion of Issue No. 3


[76]      Section 3 of the Contributory Negligence Act Cap. 195 provides for the apportionment of liablilty in a case of contributory negligence.  As Lord Denning LJ said in Jones v. Livox Quarries Ltd. [1952] 2 O.B. 608 at 615:


“Just as actionable negligence requires the foreseeability of harm to others so contributory negligence requires foreseeability of harm to oneself.  A person is guilty of contributory negligence if he ought to have reasonably foreseen that, if he did not act as a reasonable prudent man, he might hurt himself, and in his reckonings he must take into account the possibility of others being careless”.


 


[77]      The Court is satisfied that the Plaintiff contributed to his injuries in that, although he was provided with the necessary safety equipment and copies of the safety rules, the Plaintiff failed to comply with those rules or to use the safety jig but instead chose to use his bare hands.


            The Plaintiff was an experienced joiner having had some 14 years experience prior to joining the Defendant.  He should have exercised greater care for his own safety. 


[78]      In Morris v. Seanem Fixtures Ltd. 1976 11 Barb L.R. 104 the Plaintiff was injured whilst trying to remove wood shavings which created an obstruction in an electric planning machine which was in motion.  Her hand was caught in the machine’s rotating blades.  The Court found that her use of the machine was unauthorized and that the accident would not have occurred but for her unauthorized use of the machine.  Husbands J found that she had contributed to her own misfortune and apportioned the responsibility 2/3 to the Plaintiff and 1/3 to the Defendant.  In this case I do not think that the Plaintiff’s responsibility is that great.  I assess his responsibility at 40%.


            Issue No. 4 – Is the Defence of Volenti Non Fit Injuria sustainable?


[79]      The principle of Volenti Non Fit Injuria has been defined at paragraph 3-77 in the text (Clerk & Lindsell on Tort 19th Edition) as:-


“a voluntary agreement by the claimant to absolve the defendant from the legal consequences of an unreasonable risk of harm created by the defendant; where the claimant has full knowledge of both the nature and extent of the risk”.


 


[80]      Counsel for the Plaintiff submitted that this plea cannot succeed as it cannot be inferred from the Plaintiff’s conduct that he impliedly consented to running the risk of injury to himself.  But the Defendant has alleged that the Plaintiff was fully aware of the risk of using his bare hands to rout the panel and consented to run this risk.    


            Discussion


[81]      The defence of volenti requires not only an awareness on the part of the Plaintiff of the dangers involved in the activity he is undertaking but also a willingness to run the risk of injury without compensation.  The burden of proof is on the Defendant and it has led no evidence to discharge this burden nor does the state of the evidence support the drawing of an inference that the Plaintiff consented to run the risk of injury.  In the circumstances the Court holds that this defence cannot succeed.


            The Assessment of Damages


            General Damages


[82]      The medical evidence discloses that the injury which the Plaintiff suffered resulted in the amputation of the tips of the 3rd and 4th digits of the Plaintiff’s right hand.  The Plaintiff was able to carry out his normal duties on his return to work.  The Plaintiff still uses a router at his present work place.


[83]      The Plaintiff testified that the injury has affected the way he writes and he has problems gripping tools and retrieving small objects from the floor.  He considers that he is now less competitive in the job market.  However, the Plaintiff did not return for further assessment by the doctor.


[84]      In support of his claim for general damages, the Plaintiff relied on the case of Scratchley v. Cooper-Avon Tyres Ltd. Kemp & Kemp G9012 where the Court awarded the claimant £6,750 (which when converted to BDS$ would be $27,741.77).  In that case the Claimant suffered a traumatic amputation of the tip of the middle finger and partial avulsion of the nail of the index finger of his right dominant hand when it was caught between two pan trucks whilst he was at work.  He also suffered fractures to both distal phalanges.  He was absent from work for 12 weeks after sustaining the injuries.  The Claimant underwent three operations to repair the damage fingers, the last operation taking place three years after the accident.  The grip in his hand was significantly and permanently reduced.


[85]      The Defendant sought to distinguish Scratchley’s case on the ground that the Plaintiff only had one operation which was carried out within a day of his admittance to hospital whereas Mr. Scratchley had two further operations with the attendant pain and suffering and recuperative periods.  Counsel also pointed out that the Plaintiff was able to resume work on 12 February 2006.


[86]      The Defendant submitted that an award of $5, 000 was appropriate under this head and relied on the following authorities:


            W (a Minor) v. Gloucestershire CC (1999) Kemp v. Kemp G9-027 award of £3,500;


            Collings v. Cheshire CC (1996) Kemp v. Kemp G9-044 award of £1,750;


            Fraser v. Doncaster MBC (1998) Kemp v. Kemp G9-039 award of £2,500 and Mastin v. Rotherham HA (1999) Kemp v. Kemp G9-


            037 award of £2,750.  According to the Defendant the award would then have to be discounted by 90%.


[87]      Having considered the evidence and given due consideration to the authorities cited I consider that an award of $22,000 for general damages would be appropriate.


[88]      It was the submission of Mr. Mcwatt that an award should be made for loss of earning capacity (Smith v. Manchester award).  Counsel submitted that, given the medical evidence which described the Plaintiff’s disability as minimal, one year’s net earnings should suffice and the sum $16,800 ought to compensate the Plaintiff for his loss under this head. 


[89]      Mr. Carrington testified that because of the nature of the Plaintiff’s work, his disability may be minimal but he was unable to quantify the degree of disablement because the Plaintiff was not seen again.  Having regard to the evidence, I consider that an award of $5,000 should be made. 


[90]      The Plaintiff has submitted that he should be given an award for domestic assistance in the amount of $1,120 because he was unable to carry out his household chores for a period of 4 weeks after the accident and assistance was provided by his roommate.  Counsel for the Defendant submitted that the award should not exceed $530.00.  In the circumstances I am of the opinion that an award of $40 a day for 4 weeks, a total of $1120 would be reasonable compensation under this head.


[91]      As to Special Damages, the Plaintiff expended the sum of $90 and this sum is awarded.


            Disposal


 [92]     Judgment is entered for the Plaintiff as follows:


            General Damages                              $22,000.00


            Domestic Assistance                         $  1,120.00


            Loss of Earning Capacity                 $  5,000.00


            Special Damages                              $       90.00


            The awards must be discounted by 40% to take account of the Plaintiff’s contribution to his injuries, so that the damages awarded as general damages, domestic assistance and loss of earning capacity when discounted would be $16,872.


[93]      Interest on the Special Damages will be at the rate of 6% from 21 April 2006 until payment.  Interest on the General Damages shall be at the rate of 6% from today until payment.


            The Plaintiff will have his costs certified for one Attorney-at-Law to be taxed or agreed.


 


 


                                                                        KAYE GOODRIDGE


                                                          Judge of the High Court