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Microsoft word - 694 of 2003 - kw v lw - levers j.doc

IN THE GRAND COURT OF THE CAYMAN ISLANDS BEFORE: The Honourable Madam Justice Levers Counsel of Plaintiff: Ms. Margeta Facey-Clarke of Facey-Clarke & Counsel for the Defendant: Mr. H. Delroy Murray of Associated In this case KW, the Plaintiff sues the Defendant LW in negligence. It is alleged that on 31 October 2000, the Plaintiff was employed by the Defendant to carry out an assigned job to clean a yard in East End. The Plaintiff was driven by the Supervisor, also employed to the Defendant to East End in one of the trucks owned and controlled by the Defendant. The Defendant admits to these facts. The Statement of Claim alleges that the Plaintiff was standing behind the truck when it remained in a parked position and whilst standing behind the parked truck, that he was engaged in a conversation with two other workers including the driver. It is alleged that the truck without warning reversed and ran over the Plaintiff and that his body went under the trolley which was attached to the back of the truck. The Plaintiff alleges that one the Plaintiff’s co-workers pulled the trolley off The particulars of negligence as stated in the Claim are: 1. That the Defendant, its servants, or agents failed to keep the vehicle in a proper working condition, in particular to ensure that the warning signals and reverse signals were in good 2. Causing the truck to be driven by an incompetent worker; and 3. Failed to employ skilled and competent person to operate the And by reason of the aforesaid matters of negligence, the Plaintiff sustained pain and injury and suffered loss. The particulars of injury were shock and severe pain, complete tear of the rotator cuff of the left shoulder and permanent scaring to the left shoulder. The Statement of Claim further alleges that the Plaintiff saw an orthopedic surgeon Dr. English. That he had had a previous accident to his left shoulder, but that the injury had healed successfully at the date of the accident. Dr. English wrote a detailed report which was before the The Statement of Claim further alleges that the Plaintiff was unable to do any form of work for 15 months and that he is severely limited in The issue before the Court at this stage is a question of liability alone the Plaintiff in the Statement of Claim relied on the doctrine of Res Ipsa Loquitor. However during the course of the trial learned counsel for the Plaintiff, Ms. Facey-Clarke withdrew that submission and said she was no longer relying on that doctrine. The Plaintiff alone gave evidence and in his sworn testimony said that he was not standing behind the truck but that in fact he was stooping behind the truck in a position in which the driver could not possibly see him. He says that the truck was not in a parked position but that the engine was running. He further says that he does not know whether the driver was in the truck or not, and that the truck in fact, did not run over his body, but ran over his legs causing him to fall on his shoulder. The Plaintiff called no witnesses to this accident at all. In contradiction of his Statement of Claim, the Plaintiff says that the driver was a competent driver, that he had subsequently driven with him very safely in the truck, and that in fact, he has travelled in that truck since then without any hesitation. In further contradiction of his Statement of Claim, he says that he had not had a previous accident to his left shoulder and that he continued working for the Defendant till December 2004. He admits that he got a work permit with another gardening firm to do exactly the same sort of work as was being done with the Defendant. In his witness statement, the Plaintiff contradicts his sworn evidence as to how the accident happened and which part of his body was crushed by the trolley if in fact it was crushed at all. What is disconcerting is the medical report that was submitted to Court. Bearing in mind that the Plaintiff stated in his sworn testimony that he had never had an accident to his shoulder prior to this, the medical report contradicts his evidence. Dr. English states that he saw the Defendant in July or August 2000, as he was having increased pains in his shoulder with noted weakness in his arms, which he thought was related to the previous injury. He was given anti-inflammatory drugs. At the time he had a clinical diagnosis of rotator cuff tendonitis, possible rotator cuff tear and he was injected in his shoulder with Depo-medrol and Xylocaine to see if he could reduce his symptoms and improve his functions. He was seen again a week later and an ultrasound of his shoulder showed that he had a rotator cuff partial tear. He was seen again in November 2000, when he had a sudden onset of increasing pains. At that time the defendant told the doctor that he was standing beside the truck at work and that he was pushed by the truck and fell forward. That immediately afterwards he could not lift or move his arm at all and he was having severe discomfort. There is no doubt that the Defendant was in pain and that he had an operation in the The summary of the doctor’s diagnose is instructive and I quote: “This man has improved following surgery. He had two injuries at work, which was related to accidents. The first was an accident where he fell off a truck and had a significant injury to his shoulder, probably fracturing the greater tuberosity of his shoulder with a partial tear of the rotator cuff. He never sought medical attention at that time and carried on working. The fracture went on to heal and he says that he was functioning at his normal level at that That he had another injury at the beginning of standing to side of a truck that backed up and turned, pushing him over so that he fell onto his left shoulder sustaining a more recent This is in direct contradiction to the Defendant’s sworn testimony in this Court, and the Statement of Claim that has been filed. The primary function of the Statement of Claim is to plead the essential facts established in the Plaintiff’s cause of action. Every pleading must contain the necessary particulars of any claim so that the other side may be informed of the case they will have to meet to ensure they are not taken by surprise at trial. It must also define the issues that need to be tried and to provide the trial judge with a precise statement of the contentions advanced by the parties. Learned Counsel for the Plaintiff having withdrawn the doctrine of Res Ispa Loquitor, the matter now for this Court to decide is how did
this accident happen and whether the master is liable because the “A master is not responsible for the wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be done even if it is either (1) a wrongful act authorised by the master or (2) a wrongful and authorized by the master. [See Salmond on There is no doubt that the driver was the Defendant’s servant. But the question for this court to answer is how did this accident happen? What part of the body was injured? And did it happen in fact as the Plaintiff states? This Court cannot be sure on the facts of the accident due to the contradictions in the Statement of Claim, the witness statement and the Plaintiff’s sworn testimony. I do not find the Plaintiff a credible witness. I find it difficult therefore to conclude that the accident took place as the Plaintiff stated. The accounts are so vastly different. The Plaintiff continued working and there is no evidence before me that he reported the accident formally. There is an allegation that he told the Defendant’s Managing Director but that allegation is denied. He gave varying accounts to the Court, and to the doctor. He further admits to continuing working for the Defendant till December 2004. And admits to now working as a Gardner for someone else from January 2005. I therefore cannot conclude that a prima facia case is been made out and dismiss the Plaintiff’s case with costs to the Defendant, to be agreed of taxed.

Source: http://www.judicial.ky/wp-content/uploads/Law%20Cases/Civil%20Law%20Cases/694%20OF%202003%20-%20KW%20v%20LW%20-%20Levers%20J.pdf

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