Burke v Kirk Freeport Plaza Ltd

• Jurisdiction: Cayman Islands
• Judge: (Carter, Ag. J.)
• Judgment Date: 20 November 2019
• Court: Grand Court (Cayman Islands)
• Date: 20 November 2019

BURKE

and

KIRK FREEPORT PLAZA LIMITED

(Carter, Ag. J.)

Grand Court, Civil Division (Cayman Islands)

Employment — safety — safe workplace

Held: (1) The present case was not one where it was clear and obvious that there was no cause of action disclosed on the pleadings. Nor was the claim frivolous and vexatious or an abuse of process. The defendant’s application to strike out the plaintiff’s claim or any part of it would be dismissed. Similarly, the defendant’s application for summary judgment would be dismissed. The present case was not an action that had no real prospect of success.

(2) The plaintiff would be granted summary judgment on liability for her claim. There were limits to an employer’s duty of care. The law did not require an employer to ensure in all circumstances the safety ofemployees. An employer would be deemed to have discharged their duty of care if they did what a reasonable and prudent employer would have done in the circumstances. An employer could not reasonably be expected to provide a place of work guaranteed to exclude any potential hazard no matter how remote or unforeseen. The installers of the display, who had work permits, were employees of the defendant (Cole v. Smith, 2010 (1) CILR 136, considered; Viasystems (Tyneside) Ltd. v. Thermal Transfer (Northern) Ltd., [2005] EWCA Civ 1151, distinguished). The defendant would be liable to the plaintiff for the negligence of the installers. Even if this finding were incorrect, the defendant’s arguments as to the reasonableness of imputing a duty on the defendant for what it argued was not a reasonably foreseeable fault with the panel did not defeat the principle of the non-delegable nature of the duty to the plaintiff (Woodland v. Essex C.C., [2013] UKSC 66, followed). The defendant did not have any or any reasonable prospect of success in defending the plaintiff’s claim.

The plaintiff had been employed by the defendant. She was injured at work when a panel of wood fell from a...