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    Home » Judgments » Court Of Appeal Judgments » Grenada Breweries Ltd v Godwin Griffith

    1
    GRENADA
    IN THE COURT OF APPEAL
    CIVIL APPEAL NO. 2 OF 2002
    BETWEEN:
    GRENADA BREWERIES LIMITED
    Appellant
    and
    GODWIN GRIFFITH
    Respondent
    Before:
    His Lordship, The Hon. Sir Dennis Byron Chief Justice
    His Lordship, The Hon. Mr. Albert Redhead Justice of Appeal
    His Lordship, the Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
    Appearances:
    Mr. James Bristol for the Appellant

    Dr. Francis Alexis for the Respondent

    2002: July 1;

    2003: January 28.

    JUDGMENT
    [1] REDHEAD, J.A.: The respondent, Godwin Griffith, was employed by the
    appellant company as a machine operator.
    [2] On 21st December, 1992 at about 3.00 a.m. whilst the respondent was at work on
    the night shift masked persons, whose identities were unknown, broke into the
    factory brandishing what appeared to be a gun violently attacked and overpowered
    him. He was knocked unconscious. He was bound, gagged and tied up. Several
    injuries were inflicted on him.2
    [3] The respondent was left so gagged and tied up until 7.00 a.m. when he was
    discovered by the day shift machine operator who came to relieve him.
    [4] At the time of the incident the respondent was employed by the appellant company
    for thirty years.
    [5] On 31st January, 1995 the respondent was compulsorily retired by the appellant
    company on medical grounds.
    [6] On 2nd December, 1997 the respondent filed a writ in the High Court against the
    appellant claiming damages for personal injuries which he allegedly suffered,
    caused by the negligence of the appellant.
    [7] In his Statement of Claim the respondent alleged that the appellant well knew that
    requiring him to perform his duties as machine operator on the night/morning shift
    exposed him to special risks of personal injury wrought by persons intruding on its
    breweries, given previous incidents. Such previous incidents included unidentified
    unauthorised persons intruding into the breweries at night and disappearances of
    incorporal property from inside the enclosed storage premises of the brewery
    premises, all of which had been reported to the appellant. In his Particulars of
    Negligence the respondent alleged:
    [i] Negligently failing to take reasonable care for the safety of the
    [respondent] an employee of the defendant [appellant] by failing to provide
    sufficient numbers of security personnel as required by the special risks of
    personal injury known to the defendant [appellant] to be facing the
    [respondent] on the night/morning shift.
    [ii] Negligently failing to provide sufficient numbers of suitably efficient
    security personnel as required by the said special risks of personal injury 3
    known to the appellant to be facing the respondent on the said
    night/morning shift.
    [iii] Negligently failing to provide adequately trained security personnel as
    required by the said personal risks.
    [8] The respondent pleaded in the alternative that the security personnel contracted
    by the appellant to provide security services while the respondent performed the
    said night/morning shift were negligent in discharging their duties to protect him
    and for such negligence the appellant is liable, they being the servants or agents
    of the appellant.
    [9] The learned trial Judge in giving judgment for the respondent held that:
    “From a review of the evidence and agreed facts . . . that from 1989 to
    1992 there was a spate of criminal activities – cutting of fencing wire,
    breaking and stealing at the Company’s factory and that the Company had
    knowledge of those happenings, and although it changed its security
    services it still only maintained a single guard on duty at any given shift
    including the night shifts which was insufficient for what was taking place
    at nights.”
    He further held:
    “. . . that the injuries sustained by the Plaintiff (respondent) did not arise
    from any ordinary risk associated with the service which was being
    rendered by him at the workplace but from the activities of criminals of
    which the Company knew or ought to have foreseen.”
    [10] The learned trial Judge then concluded that the Company was in breach of its duty
    to the respondent by not doing more to safeguard him and that breach of duty
    caused the injuries which the respondent suffered.
    [11] The learned trial Judge entered judgment for the respondent with damages to be
    assessed.
    [12] The appellant is dissatisfied with this decision and has appealed to this Court.4
    [13] Three grounds of appeal were argued on behalf of the appellant:
    [i] The learned trial Judge erred in taking into account evidence of a spate of
    criminal activities from 1989 through 1992 when the Plaintiff by his
    pleadings and in particular, the Further and Better Particulars filed in the
    suit on the 30th day of April, 1990 and by which the Plaintiff is bound,
    limited himself to reports of activities in the months of October and
    November, 1991.
    [ii] The learned trial Judge erred in law in holding that the defendant was in
    breach of its duty of care to the Plaintiff.
    [iii] The learned trial Judge erred in law in holding that the defendant’s
    security services were negligent when there was no evidence to support
    this finding.
    [14] Under paragraph 4 the respondent in his Statement of Claim pleaded:
    “The Defendant well knew that requiring the Plaintiff to perform his duties
    as machine operator on the night/morning shift was exposing him to
    special risks of personal injury wrought by persons intruding on its
    breweries, given previous incidents. Such previous incidents included
    unidentified unauthorised people intruding into the breweries at night and
    the disappearance of incorporal property from inside the enclosed storage
    premises of the brewery premises, all reported to the defendant.”
    [15] Solicitors for the appellant requested under paragraph 4 further and better
    particulars as follows:
    [i] The date on which the incidents were reported.
    [ii] By whom were the incidents reported.
    [iii] To whom were the incidents reported.
    [iv] Whether the reports were oral or in writing.
    [v] The nature of the reports.5
    [16] The reply furnished by Solicitor for the respondent:
    [i] The dates on which the incidents were reported were October/November
    1991.
    [ii] The incidents were reported by Mr. Patrick Felix.
    [iii] The incidents were reported to Mr. Allan Chu Fook, Head Brewer at the
    time and Mr. Ishmel Pierre, Assistant Brewer at the time.
    [17] Learned Counsel for the appellant argued forcefully before this court that the
    Respondent having pleaded that the incidents took place in October/November
    1991, he was therefore not allowed to give evidence of incidents outside of that
    period. Mr. Bristol argued that such evidence is not admissible as one is bound by
    one’s pleadings.
    [18] Mr. Bristol contended that the learned trial judge was obviously influenced by that
    evidence and that this Court should come to a different conclusion.
    [19] I disagree entirely with Mr. Bristol’s contention. I hold that the evidence was
    relevant and that the learned trial judge had every right to consider that evidence.
    [20] The respondent in his Statement of Claim pleaded (paragraph 4) “previous
    incidents”. He was asked specifically the dates on which the incidents were
    reported. He was not asked dates when the incidents had occurred. It would be
    unfair, in my view, to restrict him to dates when the incidents were reported and
    exclude the admission of incidents occurring outside of the dates when incidents
    were reported. Ground 1 of the appeal is without merit and is therefore dismissed.
    [21] Learned Counsel for the appellant argued strenuously under ground 2 that in 1992
    it could not have been in the contemplation of the appellant that anyone would
    break into the factory and criminally assault the Respondent. Mr. Bristol
    contended that what was being reported was a series of thefts of the appellant’s 6
    products from its premises. As a result it was that which was in the contemplation
    of the appellant’s mind.
    [22] The appellant took measures for correcting that situation by the hiring security
    guards. Learned Counsel, Mr. Bristol, argued that in 1992 and prior to that there
    was never any report of any attack on anyone inside of the building. The risk
    therefore of anyone sustaining injury inside of the building from an attack did not
    exist before December 1992 and therefore the appellant could not guard against
    such risk according to Mr. Bristol’s argument.
    [23] Mr. Bristol referred to the following:
    Williams v Grimshaw and Others 1967 Q.B. 610.
    “The plaintiff, a woman aged 56, employed since 1962 by a cricket and
    sports club as a part-time stewardess in the evenings in the clubhouse,
    was responsible for bar and other takings which she took home nightly
    and returned the next day, until at the end of the week, the accumulated
    takings were checked by the treasurer . . . The practice was for her
    husband, a member, to help her lock up and they would walk home
    together, in his absence another member would accompany her to a
    well lit main road less than 200 yards from the club entrance which was a
    lonely part of a side road that was, at her regular departure time about
    midnight, ill lit, the club being opposite a disused factory, a derelict air raid
    shelter and waste ground. Since 1962 the club had been broken into on
    given occasions of which three were in the autumn and early winter of
    1963. In April 1964 as she was leaving with some ₤60 in takings in the
    company of her husband, an attempted robbery of them resulted in her
    suffering injuries.
    In her action for damages against representative members of the club on
    an implied term of her contract of employment and in negligence for failure
    to take reasonable care for her safety and to safeguard her against risk of
    injury by criminals,
    Held, dismissing the action, that the employers were under a duty not to
    expose the plaintiff to unnecessary risks including risk of injury by
    criminals; but that, considered from the point of view of a reasonable
    employer in April 1964 the precaution taken was reasonable in the
    circumstances, and the employers had not failed in their duty to use
    reasonable care for the safety of the plaintiff.”7
    [24] In Charlton v The Forrest Printing Ink Co. Ltd. [1980] 1 RLR 331. The plaintiff,
    Charlton, suffered serious eye injuries when he was attacked by robbers whilst he
    was collecting money from the bank to pay the company’s wages.
    [25] Mr. Charlton was one of five senior members of staff who were responsible for
    collecting the wage money from the bank. The managing director emphasised the
    need for those concerned to take precautions, such as varying the route, using
    different methods of transport, and sending different people, but in the course of
    time, what happened was that the wages were usually collected by Mr. Charlton
    and one other, using the same method.
    [26] Mr. Charlton claimed damages from his employers, alleging that they had failed in
    their duty to take reasonable care for his safety. The company was held to be
    liable in damages. Whilst accepting that Mr. Charlton had been given proper
    instruction in ways of reducing the risk, and holding that, as a general principle, it
    was not necessary for companies to employ security firms to handle the relatively
    small amount of money involved here, the court concluded that in the special
    circumstances of the case, the employers’ failure to employ security specialists to
    collect the money from the bank amounted to a failure in the duty of care they
    owed to Mr. Charlton. This failure was the cause of his injuries and they were
    liable to him in damages.
    [27] On appeal to the Court of Appeal it was held:
    “The High Court had erred in holding that the appellant company was
    liable in damages to the employee in respect of eye injuries he received
    when he was attacked by robbers when engaged in collecting the
    company’s wages from the bank. The High Court’s decision that the
    employers have failed in the duty of care they owed to the employee by
    not employing an outside firm of security specialists to collect the wages
    was inconsistent with their earlier findings that an employer’s duty to take
    reasonable care for the safety of employees does not inevitably require
    the use of security firms and that the employee in the present case had
    been given proper instruction in ways of reducing the risk of injury to
    himself when collecting wages.8
    In determining whether there has been negligence, the general principle is
    that a person must be regarded as negligent if he does not take steps to
    eliminate a risk which he knows or ought to know is a real risk and not a
    mere possibility which would never influence the mind of a reasonable
    man.”
    [28] Mr. Bristol placed a great deal of reliance on the above and argued that the
    appellant could not be negligent, because the risk of the respondent being
    attacked and injured in the factory by criminals was unknown to the appellant and
    therefore could not take steps to eliminate it.
    [29] In Houghton v Hackney Borough Council [1961]Q.B. at 615. The plaintiff, Harry
    John Houghton, was employed by the defendant council as a rent collector. The
    practice of the council, which owned a large number of houses and flats within its
    area, was to collect the rents at various collecting points conveniently placed in
    relation to the houses are flats whose tenants were paying rents. Most of the
    collecting points were in rooms which had been specially built for the purpose, with
    barriers or grille behind which the rent collectors sat while collecting the rent.
    [30] The rent collectors, such as the plaintiff, carried at any rate towards the end of
    their collection, a considerable quantity of cash which make them the subject of
    robbery and indeed robbery with violence.
    [31] The plaintiff’s union wrote to the borough treasurer in September 1959
    complaining of the collection point at the Beecholme Estate which was not
    specially built for the purpose of collecting rent. The union asked that some grille
    should be provided.
    [32] The borough treasurer took the view that he could not provide a grille.
    [33] The borough treasurer did, however, take other precautions.9
    [34] He had an interview with the Superintendent of Police at which he suggested to
    him that the police should keep an eye upon the rent collection points; that if there
    were policemen on their beats they should endeavour to pass there from time to
    time on their beats and be around particularly towards the end of the rent
    collecting period, when the amount would be largest.
    [35] The next precaution that the borough treasurer took in relation to the Beecholme
    Estate collecting point was to arrange that during the period in which the rent was
    being collected the porter, a uniformed man no longer young, should be about.
    [36] The third precaution which the borough treasurer took was to arrange that a car
    with a chauffeur should call to collect the rent collectors to take them to the bank,
    and that the chauffeur should endeavour to be there rather early so he would be
    there at the time when the quantity of cash in the collector’s possession would be
    the greatest.
    [37] On the morning of 24th August 1968 at about 11.00 a.m. the porter was called
    away to do another job which took him about two or three minutes. While he was
    away a car with four men in it drew up outside of the door of the tenants’
    workshop. Three men ran out of the car and ran into the workshop. The plaintiff
    was struck over the head, his money was snatched, and the three men made their
    getaway.
    [38] The plaintiff suffered injuries, not very serious, in the way of bruising and
    laceration to the head.
    [39] It exacerbated the bronchitis and asthma to which he was already prone. He
    claimed damages from his employers, the Hackney Borough Council, on the
    ground that they failed to take proper precautions to preserve him from injury.10
    [40] At page 618 Diplock, J. said:
    “I do not doubt . . . that it is an employer’s duty to take reasonable care to
    see that his employees are not exposed to unnecessary risks, even if it be
    a risk of injury by criminals. Therefore, what I am concerned with in the
    present case is not the precautions which the council might reasonably
    take to prevent their money being stolen by thieves but what precautions
    they might reasonably take to protect their employees from injury,”
    [41] At page 619 the learned trial Judge opined:
    “In this particular case steps had been taken to ensure that the porter was
    around about during practically the whole of the time the rents were being
    collected and only away for a short period which could not be forecast in
    advance. That would seem to me to be a greater deterrent than any
    barrier in a quiet place without someone else about. Furthermore, it
    seems to me that the fact the porter would not be permanently in the office
    but might be outside – Indeed, he would be outside most of the time –
    would be a greater deterrent than having him permanently in the office,
    because a thief would not know in advance whether he would be outside
    available to give the alarm or inside available to be coshed. It also seems
    to me, so far as protection of the employee is concerned, that to have a
    man likely to be outside is a greater deterrent than to have a telephone or
    an alarm bell in the place, and if it is not a greater deterrent it is a greater
    protection to the man inside because if the thief knows that that man may
    be able to ring the alarm bell there is a greater temptation to commit
    violence upon him, which is the fact with which I am concerned.
    I therefore come to the conclusion that although it might have been an
    additional deterrent to have the rent collected in a room with a barrier or
    grille, I must take into account the practical difficulties in this particular
    case of taking that precautionary measure and in my view the precautions
    taken, although unfortunately they did not prevent the plaintiff sustaining
    injury, do comply in all the circumstances with that standard of reasonable
    care which is required from his employers. The defendants are
    accordingly entitled to judgment.”
    [42] The duty of the employer as stated by Lord Maugham in Wilsons & Clyde Coal
    Co. v English 1937 3 AER 628 at 644:
    “I think the whole course of authority consistently recognised a duty which
    rests with the employer, and which is personal to the employer to take
    reasonable care for the safety of his workmen whether the employer be an
    individual, a firm, a company, and whether or not the employer takes any
    share in the conduct of the operations.”11
    [43] I am of the opinion that having regard to the authorities that the Court should
    undertake an analysis of what was done by the employer, if in fact anything was
    done, that having regard to all the circumstances the measure taken by the
    employer was reasonable and the employer had used reasonable care for the
    safety of his employee then he would not be liable.
    [44] In the case at bar the evidence is to the effect that there were many breakings in
    the premises of the appellant. Goods were stolen from the appellant’s premises.
    As a result the appellant hired security guards to protect its goods. No thought of
    or concern for the respondent was given. In effect this was the submission of
    learned Counsel for the appellant as he reasoned that the respondent was safely
    esconsed inside of the building. There was never any report of any criminal attack
    prior to that incident and therefore it was not in the contemplation of the appellant’s
    mind then that the respondent would be attacked and injured by criminals.
    [45] In my judgment it ought to have been in the contemplation of the appellant’s mind
    that those same thieves who broke into its premises to steal may have come upon
    the respondent and in an attempt to make good their escape and avoid detection
    would do physical injury to him.
    [46] It ought to have been in the contemplation of the appellant’s mind also that the
    very thieves who break into the compound to steal may not confine themselves to
    activities outside but may also break into the building and come into contact with
    the respondent and do injury to him. To borrow from the words of Diplock, J. in
    Houghton (supra) p. 618. What I am concerned with in the present case is not
    the precautions which the appellant might reasonably take to prevent their goods
    being stolen by thieves, but what precautions they might reasonably take to
    protect its employee from injury.
    [47] It is patently obvious that the employer took no reasonable precautions to protect
    the respondent from injury. 12
    [48] The appellant argued that the learned trial Judge erred in law in holding that the
    defendant’s security services were negligent. The evidence or agreed facts are
    that the respondent was attacked, bound with wire and left tied up from about 3.00
    a.m. until he was discovered at about 7.00 a.m. by the morning shift worker. In
    that regard I agree with the learned trial Judge that although the company
    “changed its security services it still only maintained a single guard on duty at any
    given shift including the night shifts which was insufficient for what was taking
    place at nights”. I appreciate why this was so having regard to the argument of
    learned Counsel for the appellant that it was not in the contemplation of the
    employer that the appellant would suffer bodily injury I disagree with this
    argument. I therefore conclude that the precaution taken by the respondent was
    not reasonable in the circumstances and that resulted in the injuries of the
    respondent.
    [49] It was as a result of that evidence the learned trial judge concluded that the
    security guard was negligent.
    [50] Mr. Bristol, learned Counsel for the appellant argued that the respondent had to
    establish by evidence that the security guard was negligent. I am of the view that
    once the respondent established a prima facie case of negligence then that
    burden shifts on the security guard to show that he was not negligent. In any
    event in this case it does not matter whether or not the security guard was
    negligent as the issue here is whether the appellant took due care in providing a
    reasonably safe system of work. That duty is not delegable.
    [51] As Lord Thankerton opined in Wilson & Clyde Coal Co. v English (supra) at
    page 632:
    “My Lords, it seems to me that the fallacy in the appellant company’s
    argument lies in the view that the master being under a duty to take due
    care in the provision of a reasonable safe system of working, is absolved
    from that duty by the appointment of a competent person to perform the
    duty. In my opinion, the master cannot “delegate” his duty in this sense, 13
    though he may appoint someone as his agent in the discharge of the duty
    for whom he will remain responsible under the maxim respondent
    superior.”
    [52] Having regard to the foregoing the appeal is dismissed. The judgment and order
    of the learned trial Judge are affirmed.
    [53] Costs of $7500 to the respondent in this Court and the Court below agreed.
    Albert Redhead
    Justice of Appeal
    I concur Sir Dennis Byron
    Chief Justice
    I concur Ephraim Georges
    Justice of Appeal [Ag.]

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