Carter v Scott's Indus Ltd
| Jurisdiction | Cayman Islands |
| Judge | (Kellock, Ag. J.) |
| Judgment Date | 11 October 2001 |
| Court | Grand Court (Cayman Islands) |
| Date | 11 October 2001 |
(Kellock, Ag. J.)
H.G. Robinson for the plaintiff;
J.S. Tarboton and W.A. Sykes for the defendant.
(1) Anns v. Merton London Borough CouncilELR, [1978] A.C. 728; sub nom. Anns v. London Borough of Merton, [1977] 2 All E.R. 492, applied.
(2) British Rys. Bd. v. Herrington, [1972] A.C. 877; [1972] 1 All E.R. 749.
(3) Indermaur v. DamesELRUNKELRUNK (1866), L.R. 1 C.P. 274; 35 L.J.C.P. 184; on appeal (1867), L.R. 2 C.P. 311; 36 L.J.C.P. 181; sub nom. Indermann v. Dames, 31 J.P. 390.
(4) London Graving Dock Co. Ltd. v. Horton, [1951] A.C. 737; [1951] 2 All E.R. 1, dicta of Lord Porter applied.
(5) M”Alister (or Donoghue) v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1; 1932 S.C. (H.L.) 31, applied.
(6) Miraflores (Owners) v. George Livanos (Owners), The Miraflores, [1967] 1 A.C. 826; [1967] 1 All E.R. 672, dicta of Lord Pearce applied.
(7) Slater v. Clay Cross Co. Ltd., [1956] 2 Q.B. 264; [1956] 2 All E.R. 625, followed.
(8) Sole v. Hallt (W.J.) Ltd., [1973] Q.B. 574; [1973] 1 All E.R. 1032, followed.
Torts (Reform) Law (1996 Revision), s.8(1): The relevant terms of this sub-section are set out at para. 43.
Tort-occupiers” liability-duty to invitees-common law duty to prevent injury to invitee from unusual danger on premises-ordinary principles of negligence also apply if injury results from business occupier”s involving customer in operation of business, e.g. driving own vehicle on premises for servicing, rather than from condition of premises
Tort-negligence-duty of care-test requires relationship of such proximity that likelihood of damage to plaintiff through defendant”s carelessness reasonably foreseeable by defendant, and absence of circumstances negating or limiting liability-business liable for injury to customer negligently involved in operation of business
The plaintiff brought an action to recover damages for personal injury sustained on the defendant”s premises.
The plaintiff visited the defendant”s car-repair business to have his van”s exhaust system repaired. He alleged that he was instructed to drive the van on to a ramp and directed to position it over one of the inspection pits. On previous occasions he had taken both left- and right-hand drive vehicles to the defendant”s premises and each time had been directed on to a ramp over a pit with a concrete platform on the driver”s side, on to which he had stepped from the vehicle. On this occasion, the platform was on the passenger side of the vehicle, with only a 12 in. wide metal channel on the driver”s side on which the wheels rested, and when he climbed from the driver”s side, he fell into the pit, injuring his knee. The
employee who had directed him on to the ramp then walked from the pit. The plaintiff was lifted out and driven to hospital. The plaintiff claimed that he had been unable to see the platform or the metal channel whilst driving on to the ramp.
The defendant gave evidence that its policy was not to permit visitors to drive their vehicles on to the ramps, but to require them to obtain a work order from the office, where an available employee would be assigned to the vehicle. There were signs located near the pits to this effect. Its employee claimed that he had refused the plaintiff access to one of the pits which had already been allocated, that the plaintiff falsely claimed to have obtained a work order and, instead of waiting to be assigned a different pit as requested, began to drive his vehicle on to a ramp over a pit with a concrete platform on the driver”s side. The employee said he guided him on to the ramp before returning to another pit. The plaintiff got out of his van and whilst walking alongside it, bumped into the wing-mirror, lost his balance, and fell into the adjacent pit. The plaintiff denied this version of events.
The defendant admitted that it had in the past had to reprimand staff for permitting customers to drive their own vehicles on to the ramps and that the particular employee had been reprimanded and still faced further disciplinary action. It submitted that (a) the plaintiff had assumed the risk of driving on to ramp and therefore it was not liable for his injury on the basis of the doctrine of volenti non fit injuria, or (b) the plaintiff had been contributorily negligent to such an extent as to negate its own liability.
Held, making the following ruling:
(1) The court did not accept that the plaintiff had been unaware that his van was positioned on a concrete platform on one side and a metal channel on the driver”s side. From his own evidence and the video evidence produced by the defendant, re-enacting the manoeuvre performed by the plaintiff, it was clear that he could not have driven the van on to the ramp without noticing this, even if only with his peripheral vision whilst concentrating on the employee directing him. He had clearly not borne this fact in mind when he exited from the van by the driver”s door instead of the passenger door, with the consequence that he fell into the pit (paras. 8–11; para. 39).
(2) The court also rejected the version of events put forward by the defendant”s employee, which was illogical and inconsistent with the evidence of other witnesses. The employee was an unconvincing witness and had invented a story to conceal (a) the fact that he had placed the plaintiff in a hazardous situation, and (b) the defendant”s non-compliance with its own alleged policy of not permitting customers to drive on to the ramps. If such a policy existed, it had not been enforced on a day-to-day basis and certainly not on the day in question. Customers were obviously regularly invited to drive their own vehicles on to the ramps, and in those
circumstances the presence of signs prohibiting it would understandably have been ignored (paras. 15–19; paras. 22–25; para. 38).
(3) In the absence of occupier”s liability legislation in the Cayman Islands, the defendant had a common law duty to prevent injury to the plaintiff from unusual danger whilst on its premises. Since the plaintiff”s injury resulted not simply from the condition of the premises, but from the defendant”s involving him in the operation of its business, the result would be no different if the ordinary principles of liability in negligence were applied. The defendant stood in such a relationship of proximity to the plaintiff whilst he was on its premises that it should reasonably have contemplated that its carelessness or that of its employees might cause danger to him. Furthermore (leaving aside the issue of contributory negligence) there were no circumstances present which would negative or limit that liability (paras. 29–35).
(4) The defendant was not relieved of its liability to the plaintiff by the operation of the doctrine of volenti non fit injuria, since although the evidence indicated that the plaintiff was aware of the dangerous position in which he had been placed, it did not show that he agreed to accept the risk. Whilst he was undoubtedly contributorily negligent, that did not absolve the defendant. It had been foreseeable on the employee”s part that the plaintiff might not appreciate the need to exit by the passenger door when positioned over the particular pit used, and little effort would have been required to warn him of this. Having invited the plaintiff into this situation, the defendant”s employee took no steps to extricate him from it and simply left him there. The injury would probably not have occurred had the plaintiff been warned of the danger (para. 25; paras. 36–37; para. 40).
(5) The plaintiff was entitled to judgment against the defendant for the injury he had sustained, but his damages (which had yet to be quantified) would be reduced by one-half under s.8 of the Torts (Reform) Law (1996 Revision) due to contributory negligence. The plaintiff would be entitled to the whole of his costs in view of the fact that the defendant”s main witness had concocted a false story and the defendant had colluded in this (paras. 27–28; paras. 41–44).
1 KELLOCK, Ag. J.: The plaintiff, William Lorenzo Carter (‘Carter’), was injured at the defendant”s (‘Scott”s’) premises on October 8th, 1998 and as a result claims damages as against Scott”s for personal injuries including lost income and out-of-pocket expenses. On March 1st, 2001 Graham, J. ordered that there should ‘be a trial on the issue of liability and if liability is decided in favour of the plaintiff and there is no agreement between the parties as to the amount of compensation payable, the matter may be listed for assessment of damages.’ Accordingly, my task is to determine only the liability issues.
2 The circumstances are as follows: On October 8th, 1998 Carter drove his Ford Econoline van to Scott”s premises, which can be described as a muffler shop on North Sound Road, George Town, for the purpose of having the exhaust system repaired. From that point forward the plaintiff and the defendant”s versions of what happened are quite different.
3 In order to understand the evidence I was referred to a sketch entitled ‘Inspection site plan-Scott”s Industries Ltd. Premises.’ The sketch is a plan view of the inspection pits (so-called) which are approximately 5 ft. deep. I numbered these pits from 1 to 7. Vehicles are driven on to these pits so that a mechanic may work on the undercarriage and, more particularly, the muffler system of the vehicle above him. The mechanics enter the pits by three sets of stairs located between the pit and the ‘work area.’ In all cases except in the case of pit 6 a vehicle...
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