THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ANTIGUA AND BARBUDA

CLAIM NO: ANUCHCV2009/0135
BETWEEN:
MARTIN ROOPNARINE
Claimant
and

ANDREW MICHELIN

trading as Coco’s Hotel &Restaurant

Defendant
Appearances:
Mr. Jason Martin for the Claimant

Ms. Andrea Roberts and Ms. Safiya Roberts for the Defendant

2011: June 14
September 19
JUDGMENT
[1] MICHEL, J.: The Claimant, Martin Roopnarine, is and was at all material times an
employee of the Defendant, Andrew Michelin trading as Coco’s Hotel &
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Restaurant. The Claimant is employed as the maintenance man at the
Defendant’s hotel and has been so employed since May 2005.
[2] On 26th October 2007, the Claimant sustained personal injuries at the Defendant’s
hotel in the course of his employment with the Defendant. The injuries were
sustained while the Claimant was attempting to install electrical wiring or clip the
wiring he had installed along the awning of the roof of the bar of the hotel, having
been instructed by the Defendant to install electrical lighting around the roof of the
beach bar of the hotel.
[3] The Claimant opted to stand on a wooden chair, which he took from the bar area,
in order to obtain the necessary elevation to reach the awning of the roof of the bar
so as to install or clip the wiring. In the process of installing the wiring and/or
clipping the wiring already installed, the chair on which the Claimant was standing
either slipped under him or broke, causing him to fall onto some coastal rock just
beyond the bar area.
[4] As a result of falling onto the rocks, the Claimant sustained injuries and was taken
to the Holberton Hospital where he was detained for 14 days. According to a
medical report from the hospital, the Claimant was found on examination to be
conscious, oriented and stable; his left forearm was swollen and deformed in mid
forearm; his left knee was swollen from mid thigh to foreleg and was tender with
no movement, due to the pain. X-rays of the Claimant’s left forearm showed
incomplete fracture of the mid shaft of the left ulna and fracture of the left radius
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with diastasis of ulna and carpal bones, while x-ray of the left knee and foreleg
showed fracture of the left tibial plateau. The Claimant underwent surgeries of his
left forearm and of his left knee on 30th October 2007 and afull cast was applied to
his left forearm, while a knee brace was applied to his left knee. He remained on
sick leave for seven months, after which he returned to his employment with the
Defendant. During these seven months the Claimant continued to be paid his
salary and received his service charge entitlement as an employee of the
Defendant’s hotel.
[5] By Claim Form filed on 4th March 2009, the Claimant claimed damages for
personal injury caused to him by the negligence of the Defendant. In his
Statement of Claim filed on the same date, the Claimant particularized his
allegation of negligence against the Defendant, the injuries sustained thereby and
the claims arising therefrom, including special damages totaling $21,449.20,
general damages, interest and costs.
[6] By Defence filed on 26th June 2009, the Defendant joined issue with the Claimant,
denying his (the Defendant’s) ownership of the hotel and the allegation of
negligence on his part in causing the injuries to the Claimant and alleging that the
Claimant’s injuries were caused solely by or was contributed to by the negligence
of the Claimant. The Defendant also supplied in his Defence particulars of the
Claimant’s alleged negligence and put the Claimant to proof of his injuries, loss or
damage.
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[7] By Reply filed on 10th October 2009, the Claimant in turn joined issue with the
Defendant on his Defence.
[8] On 2nd
February 2010, a mediation referral order was made by the Master, but
mediation was not successful and on 16th September 2010 case management
directions were given by the Master. Both parties complied with all of the case
management directions, although the Defendant filed his Pre-Trial Memorandum
and Listing Questionnaire outside of the prescribed time.
[9] The trial of the matter was originally set for 28th February 2011, but took place on
14th June 2011.
[10] At the trial, the Claimant gave evidence on his own behalf and called two other
witnesses, Debra Harrigan, with whom he had been employed part time prior to
his injury, and his wife, Bhagmattie Roopnarine; while the Defendant gave
evidence on his own behalf and called one other witness, Tyrone Astaphan, who
was at the material time the Acting Manager of the hotel.
[11] The issues to be determined by the Court arising from the trial are:
1. Did the Claimant’s injuries result from the negligence of the Defendant and/or
agents or employees of the Defendant or was the Claimant the cause of his
own injuries?
2. If the Claimant was not the cause of his own injuries, did he negligently
contribute to his injuries and, if so, to what extent?
3. What damages, if any, is the Claimant entitled to from the Defendant?
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[12] In terms of the first issue to be determined, the evidence of the Claimant is that on
25th October 2007 he was instructed by the Defendant to install lights around the
beach bar of the hotel, running the wiring for the lights along the outside of the
awning of the beach bar so that the wires would not be visible, He was of the
opinion that the Defendant wanted the work done as soon as possible in order that
the beach bar could be used at night and so he undertook the work the following
morning, The task required the use of a ladder to reach the awning of the roof of
the bar. The hotel did have a ladder of the correct size to do the work but it had
been damaged about seven months before. The hotel had another ladder but it
was too long to do the job. He did not therefore have a ladder to do the work
assigned to him by the Defendant. The Claimant’s evidence was that, despite this,
because he had limited fornlal education, he was a non national, he had a young
family to provide for, and he felt powerless to object, he proceeded to use a chair
to gain the height necessary to run the wiring, because nothing else was available
or provided by his employer who expected the work to be done nonetheless. As
he was almost finished with the wiring, the chair that he was standing on slipped
from under him and he fell over the deck of the beach bar and onto the rocks
below. As a result, he sustained the injuries and underwent the surgeries as
stated in the medical report of the Holberton Hospital, to which he had been taken
by the Acting Manager of the hotel.
[13] Commenting on the evidence in the witness statement of the Defendant, the
Claimant testified that it is not correct that he had access to tools, materials and
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ladders wherever and whenever necessary. He testified that he did not have the
equipment, the proper ladder, the materials to build the scaffolding and the
assistance to help him. He then testified that he did have nails and hammers, but
he did not have materials to build scaffolding. Then he testified that in the course
of his employment at the hotel he was never instructed to build scaffolding. Then
that it was never part of his job to build scaffolding. Then that he is ajoiner and he
only builds things like cupboards, stools, furniture and so on but not construction
things like scaffolding and so on. Then that he did not have the knowledge to
build the scaffolding. He testified that, apart from the chair, there was nothing else
he could use to do the job and that at the time of the accident he was the only
person in the maintenance department. He testified that in the morning he asked
the gardener to assist him and the gardener, whose name he remembers as
Godfrey, told him that this is not “their” job.
[14] Under cross examination, the Claimant testified that he is ahandyman and ajoiner
and would build and fix tables, chairs and other furnishings at the hotel. He
testified though that he never built ascaffolding to climb on and it would be difficult
for him to build one. He testified that he does not know how to build scaffolding
and that he has never done that kind of work, even though he had the tools and
materials to do so, and that it is different from joinery, although he also testified
that acarpenter knows joinery and ajoiner knows carpentry.
[15] Under further cross examination, the Claimant testified that if he needed materials
he would go to the manager, Tyrone Astaphan, and tell him what he needs and
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that Mr. Astaphan would go and buy them. He testified also that he had a good
working relationship with the management of the hotel and that if he needed
materials he would say so and Mr. Astaphan would get them. He testified that he
would not be scared to tell “them” if he needed materials. He also testified that if
there were no materials to do one thing he would do other things and that, apart
from his regular tasks, he would decide when to do other tasks.
[16] Under still further cross examination, the Claimant testified that the work that he
had to do on the beach bar was urgent because the lights were needed to use the
beach bar in the night. He testified that the Defendant asked him to do the work
on the beach bar the day before his accident and he (the Claimant) said that in the
morning, when he finished with the pool, he will work on it. He testified that the
Defendant told him that he needed the work done as early as possible because
“they” wanted to use the beach bar in the night.
[17] Still under cross examination, the Claimant testified that when the task was
assigned to him he did not ask for a ladder. The task required him to use a ladder
but he chose to use a chair. The chair was the closest object to him and he used
it. The deck was wet and the chair slipped. He testified that, despite knowing that
the deck was wet, he still chose to use a chair. His testimony was that “they”
needed the work done urgently and he took his own risk to get it done; he did not
know that he would fall; but he was afraid that “they” would fire him because “they”
always say that if you can’t do the work “they” will get somebody else; “they” would
get rid of him and he has his family to mind. He testified that he knew that he was
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taking a risk and that he did not ask for a ladder. He testified that the danger was
not the deck but was because he opted to use achair to do the work. He testified
that he should have known better than to use achair to do the work but there was
nothing else to use. He agrees that how he chose to do the work was up to him.
[18] Under re examination, the Claimant testified that he did not ask for a ladder
because he had told Mr. Astaphan months before that the ladder was broken and
he could not use it and that he should get a new ladder. He also testified under re
examination that when he said under cross examination that he used the chair at
his own risk, what he meant was that he took his risk to do it because – and the
mysterious “they” is again called into service – “they” say already that if you don’t
want to do the job “they” will get somebody else to do it. He testified too that he
see already that “they” fire people for that and he does not want to be fired
because he has afamily to mind.
[19] The other two witnesses for the Claimant did not address the issue of liability.
[20] The next witness to address the issue of liability for the Claimant’s injuries was the
Defendant. He stated that the Claimant has always had discretion as to how he
carried out his tasks, using the available tools and materials stored at the hotel. In
about September 2007, he instructed the Claimant to install electrical lighting
around the bar area of the hotel, which lighting was subsequently installed by the
Claimant. At the time that the instruction was given to the Claimant he did not ask
for a ladder. On 26th October 2007, the Claimant decided to install clips to tidy the
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electrical lighting already hung along the awning of the roof around the bar area.
He (the Claimant) opted by his own choice and judgment to complete the task on
that day in an unsafe manner by using a wooden chair from the beach bar to carry
out the task. By putting too much weight on the chair the Claimant fell through the
chair, lost his balance, fell on the rocks below and injured himself. The Claimant
also did not take reasonable precautions to ensure that the task was carried out
safely by getting assistance from another employee. He usually asked for
assistance with tasks, if necessary, and fellow employees were always willing to
oblige. If the Claimant felt that there was some reason that he should not carry out
a specific task he would not hesitate to inform the manager or the person issuing
the instruction the reason why he would not be performing the task. It was
therefore the choice of the Claimant to use the chair recklessly to carry out this
task.
[21] The Defendant further stated that the Claimant’s injury was not as a result of a
directive issued by him and that the instruction had been issued to the Claimant
weeks before. The Claimant had the discretion as to when and how he was to
carry out the task. In fact, the Claimant usually asked for assistance and would
not carry out a task if he felt he could not do it by himself or at all. The Defendant
stated too that the Claimant was an experienced employee of the hotel who had
access to and use of the tools, ladders and materials to build scaffolding when
necessary. The Claimant was not forced therefore to use a chair to perform the
task but opted to carry out the task in the manner that he did of his own volition.
He said too that the Claimant would also have been aware of the danger of
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performing such a task using a chair and of the rocks below. The Defendant
asserts that the Claimant’s accident was caused not by negligence on his (the
Defendant’s) part but by the choice of the Claimant in carrying out the task in the
manner in which he did. It was the poor judgment of the Claimant in opting to use
a chair when other tools and materials to build scaffolding were available to him
and other staff available to assist him.
[22] The evidence contained in the witness statement of the Acting Manager of the
Defendant’s hotel, Mr. Tyrone Astaphan, was materially identical to the evidence
contained in the witness statement of the Defendant as to how the Claimant
sustained his injuries and the cause of the Claimant’s injuries and asserting that
the Claimant had ladders available to him and also had tools and materials to build
scaffolding if necessary.
[23] In commenting on the evidence of the Claimant, Mr. Astaphan testified that if the
Claimant has difficulties in carrying out any task he would call him (Mr. Astaphan)
to assist or the Claimant would ask him to send someone to assist. He also
denied some of the Claimant’s evidence, including the alleged damage to the short
ladder, and denied any knowledge of the Claimant almost falling from that ladder
while trying to repair afan in aguest room.
[24] Under cross examination, Mr. Astaphan emphasized that the Claimant would not
do the job if it was not safe and that if the Claimant did not have the required
ladder he would not be pressed to do the work without the appropriate tools. He
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testified that he would have expected the Claimant to use a ladder rather than a
chair to do the job and that if an appropriate ladder was not available he would not
expect the Claimant to do the job. He testified that if he was told that the ladder
was damaged he would have gotten it fixed or gotten another one. He also denied
most of the evidence of the Claimant relative to the ladder, the alleged damage to
it and the efforts to get it replaced.
[25] At the conclusion of the trial, both parties were directed to file written closing
submissions by 3.00 pm on 5th
July 2011, with the Defendant filing his within the
stipulated time and the Claimant filing his just outside of the stipulated time.
[26] After reviewing the evidence, the Court was left uncertain as to which version of
events to accept as to the cause of the Claimant’s fall on 26th October 2007 and
the resulting injuries to the Claimant, whether that is, to accept the Claimant’s
version, which version was unsupported by any other witness, or whether to
accept the version advanced by the Defendant and his witness.
[27] The Court’s sympathies are entirely with the Claimant, whom the Court accepts is
a hard working man who was trying his best to do his job as he saw fit and who
was very conscious of his vulnerabilities arising from his non national status, his
lack of education and training and the need to maintain his job to support his wife
and children. But his eagerness to do his job and impress his employer might
have caused him to take unwarranted risks and to suffer injury thereby. It is very
difficult to believe that the only way that the Claimant could run the wiring along
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the awning of the roof of the beach bar or clip the wiring already installed
(whichever of these tasks he was carrying out on 26lh October 2007) was by taking
a chair from the bar area and going all on his own, with no other staff member
even present, to carry out the task, and without ever asking the Manager, with
whom he had a good working relationship, to cause the ladder to be repaired or
replaced (if necessary) before he undertook the task or to assist him or cause
another staff member to assist him by holding the chair while he used it to gain
elevation. This was what the Claimant chose to do, with his misplaced confidence
that he could do so without falling and hurting himself. If, as the Claimant stated,
the floor was wet and this caused the chair to slip under him, he knew – according
to his own testimony – that the floor was wet and he should also have known that
the chair on which he stood could therefore slip under him. The Claimant therefore
knowingly took the risk that he might fall and hurt himself, when he had other
options available to him in carrying out the task given to him.
[28] Having regard to the totality of the evidence in this case, including the concession
by the Claimant under cross examination that the danger was not the deck on
which he was working but the fact that he chose to use a chair to stand on to do
the work, and the concession too that he could decide when and how to undertake
atask assigned to him, and having regard even to the fact that it was the Claimant
who had the responsibility as the hotel’s maintenance man to build and repair the
wooden furniture, such as the chair from which he fell, and having regard also to
the location of the burden of proof of negligence, inasmuch as one might
sympathise with the Claimant because of his injuries and the loss and damage
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arising therefrom, one cannot but find that he has not proved negligence on the
part of the Defendant or his agents or employees in causing him to fall and injure
himself on 26th October 2007 and that, in fact, the more probable cause of his fall
and the resulting injuries was his own negligence in carrying out the task assigned
to him in an unsafe manner.
[29] The answer to the first question posed earlier in this judgment is therefore that the
Claimant’s injuries did not result from the negligence of the Defendant and/or the
agents or employees of the Defendant, but the Claimant was the cause of his own
injuries. It is accordingly unnecessary to address the second and third questions
posed.
[30] In the circumstances, the case against the Defendant is dismissed.
[31] Whereas costs would normally follow the event. the Court does have the power
under Rule 64.6 of the Civil Procedure Rules 2000 to order a successful party to
pay all or part of the costs of the unsuccessful party or to make no order as to
costs. Taking all of the circumstances into consideration, including the conduct of
the parties both before and during the proceedings. the manner in which the
Claimant has pursued the case. and the fact that it was reasonable in the
circumstances for the Claimant to pursue the claim and allow the Court to
determine the issue of liability, the Court declines to order the Claimant to pay the
Defendant’s costs and instead makes no order as to costs.
13 [32] In concluding this judgment, I think it is necessary to state, and not just
perfunctorily, that I thank both Counsel for the assistance rendered to the Court by
the quality of their research and their overall conduct of the case. Without
diminishing the excellent work of Ms. Roberts, however, I do want to specially
thank and commend Mr. Martin, who so thoroughly researched and presented the
case for the Claimant as to make it difficult for the Court to do what in the end it
had to by dismissing the Claimant’s case.
[331 The following authorities were referred to by Counsel in their written closing
submissions and considered by the Court in arriving at its judgment:
By Counsel for the Claimant ­
1. Wilsons & Clyde Co. Ltd. v English; 1
2. Smith v Baker;2
3. Winter v Cardiff Rural District Council;3
4. Naismith v London Film Productions Ltd;4
5. Speed v Thomas Swift & Co. Ltd;5
6. James v Wellington City;6
7. Machray v Stewarts and Lloyds Ltd;7
8. Charles Milne v British Railways Board;8
9. General Cleaning Contracts Ltd. v Christmas;9
10. Grant v Motilal Moonan Ltd;1o
1 [1938] AC 57
2 [1891] AC 325
3[1950] 1 ALLER819
4 [1939] 1 ALL ER 794
5 [1943] KB 557
6 (1972) NZLR 978
7 [1964]3 ALL ER 716
8(1994) Outer House Cases 1
9 [1953] AC 180
10 (1988) 43 WIR 372
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.. I.

,

1. Gunness v Lalberharry;11
   12. Laura Marrocco v The Attorney General of Antigua and Barbuda;12
   13. Kendol Fredericks v Carlton Cunningham;13
   14. Randy James v Leroy Lewis et al;14
   15. Sherma Mathurin v Rain Forest Sky Rides Ltd;15
   16. Smith v Manchester Corpration;16
   17. Alphonso v Deodat Ramnath;17
   18. Jefford v Gee.
   18
   By Counsel for the Defendant ­
   1. Quinn v Burch Bros. (Builders) Ltd;19
   2. Chalesworth &Percy on Negligence.2o
   11 Unreported
   12 ANUHCV 1997/0240
   13 SVG High Court Claim No. 475 of 2002
   14 ANUHCV 2007/0403
   15 SLUHCV 2008/0551
   16 (1974)17 KIR 1
   11 (1997) 56 WIR 183
   18 [1970] 2 08 130
   19 [1966] 2 08 370
   20 Volume Number 6 of The Common Law Library
   15