Ebanks v Solomon

• Jurisdiction: Cayman Islands
• Judge: (Patterson, Ag. J.)
• Judgment Date: 28 May 1997
• Court: Grand Court (Cayman Islands)
• Date: 28 May 1997

Grand Court

(Patterson, Ag. J.)

EBANKS

and

SOLOMON, CHIEF FIRE OFFICER and ATTORNEY GENERAL

J. Walton for the plaintiff;

Ms. L. Agard, Crown Counsel, for the second and third defendants.

The first defendant did not appear and was not represented.

Cases cited:

(1) Aldred v. Naconco, [1987] I.R.L.R. 292, dicta of Donaldson, M.R. applied.

(2) Bain v. Fife Coal Co., [1935] S.C. 681, dicta of Lord Aitchison applied.

(3) Fanton v. Denville, [1932] 2 K.B. 309.

(4) Harrison v. Michelin Tyre Co. Ltd., [1985] 1 All E.R. 918; [1985] I.C.R. 696, not followed.

(5) Wilsons & Clyde Coal Co. v. English, [1938] A.C. 57; [1937] 3 All E.R. 628.

Employment-safety-safe system of work-employer”s obligation satisfied if provides competent supervisor and adequate tools for job-not liable for injury to employee deliberately and unforeseeably attacked by co-worker whilst under supervision

Tort-vicarious liability-course of employment-employer not vicariously liable to injured employee for assault by co-worker acting outside course of employment-attack with machete whilst cutting hedge with it not merely unauthorized method of performing duties

The plaintiff brought an action for damages for assault against the first defendant and against the second and third defendants for negligence.

The plaintiff and first defendant were employed as firemen by the Fire Brigade. The second defendant was the Chief Fire Officer ultimately responsible for training and disciplining them, and the third defendant, the Government, represented by the Attorney General, employed them all. While the two men were on duty trimming the station hedge, supervised by the sub-officer in charge of their shift, an argument broke out between them which ended in the first defendant wounding the plaintiff on the right hand with his machete.

Judgment was entered against the first defendant in default of defence. The plaintiff alleged that the second and third defendants, as his employers, were guilty of a breach of their non-delegable duty to take reasonable care for his safety, and vicariously liable for the wrongful act of the first defendant, their employee.

The plaintiff submitted that (a) the second and third defendants owed him a duty as their employee to provide and maintain a reasonably safe system of work, including competent staff, adequate equipment and proper supervision; (b) the sub-officer supervising the firemen should not have given the first defendant a machete with which to perform his work when he was aware of the first defendant”s emotional state due to the argument which was going on with the plaintiff, and ought to have intervened earlier in the quarrel before the first defendant resorted to violence; and (c) the second and/or third defendants were vicariously liable for the first defendant”s actions, since those actions occurred whilst he was carrying out his duties, although they were not authorized by the second and third defendants.

The second and third defendants submitted in reply that (a) whilst the Government owed the plaintiff and others in its employ a duty to provide

a safe system and place of work, it had not breached that duty and was not liable for the plaintiff”s injuries; (b) the supervising sub-officer, who had given the first defendant the standard equipment for the task in question, had had no warning of his increasing agitation which resulted in the commission of the offence-indeed it had initially appeared to him that the two men were joking with each other-but did intervene once they actually began to threaten each other; and (c) neither of them was vicariously liable for the first defendant”s assault on the plaintiff, since it was not committed in the course of his employment, being neither an unauthorized mode of performing his duties nor a wrongful act authorized by them.

Held, giving judgment for the second and third defendants:

(1) The defendants were not in breach of their duty to provide a safe system of work, since they had employed a competent supervisor and provided equipment which was habitually used for trimming hedges. Moreover, it was clear that the assault was unforeseeable and occurred at the end of a trivial argument, that the first defendant was not in an incensed state when the machete was given to him, and that the quarrel had not interfered with their performance of the task. Once the argument escalated into threats the supervisor had intervened but was unable to prevent the attack (page 242, lines 7–17; page 243, lines 12–29; page 243, line 34 – page 244, line 34).

(2) Nor was either defendant vicariously liable for the acts of the first defendant since he was not acting in the course of his employment. The assault on the plaintiff was neither an authorized act nor an unauthorized method of carrying out the task in hand, but rather was so far from being a part of, or incidental to, the first defendant”s job as to constitute a frolic of his own, for which neither the second nor the third defendant could not be responsible. Accordingly, they were not liable for the plaintiff”s injuries (page 246, line 20 – page 247, line 5).

PATTERSON, Ag. J.: The plaintiff and the first defendant were
firemen employed by the second defendant or, alternatively, the third
defendant at the Frank Sound Fire Station, Grand Cayman. On the
afternoon of September 2nd, 1994, the first defendant used a machete to
5	inflict a severe wound to the right hand of the plaintiff while they were
engaged in trimming the hedge on the perimeter of the fire station
compound. The plaintiff filed this action against the three defendants
claiming primary liability against all three for the tort committed by the
first defendant and vicarious liability against the second and/or third
10	defendants.
The relevant pleadings are contained in paras. 1-4 of the statement of
claim and they are as follows:
‘(1) At all material times the plaintiff and the first defendant were
employed by the second defendant or alternatively the third
15	defendant as firemen at the Frank Sound Fire Station, Grand
Cayman.
(2) On September 2nd, 1994 during the evening shift at approxi
mately 5.15 p.m. whilst the plaintiff and the first defendant were
working in the environs of the Frank Sound Fire Station, the first
20	defendant wrongfully wounded the plaintiff by striking him on the
hand with a machete.
(2.1) At all material times the first defendant in acting as aforesaid
was acting in purported performance of his functions as a fireman
under the direction and control of the second defendant, his servants
25	or agents.
(3) The plaintiff avers that the said wounding was intentionally
inflicted by the first defendant. Further, the incident and injury were
caused or contributed to by the negligence of the second defendant,
his servants or agents and/or breach of statutory duty, alternatively
30	by the negligence and/or breach of statutory duty of servants or agents of
Her Majesty”s Government.
(3.1) The first defendant was convicted in the Grand Court on
March 18th, 1996 of the offence of grievous bodily harm in relation
to the aforesaid incident and injury. The said conviction is relevant
35	to the issues herein and the plaintiff intends to rely upon the same at
trial for the purpose of establishing vicarious liability on the part of
the second and/or third defendant for the loss and damage suffered
by the plaintiff.
(4) By reason of the matters aforesaid the plaintiff sustained
40	severe personal injuries and has suffered loss and damage.’
The reliefs or remedies sought against the defendants jointly and
severally were stated as: (a) damages; (b) aggravated damages against the
first defendant; (c) interest pursuant to statute; and (d) costs.
The first defendant did not give notice of his intention to defend and,
45	on the plaintiff”s application, judgment was entered against him on

October 26th, 1995 with damages to be assessed. It is plain that the claim
against the first defendant is to recover damages for the deliberate assault
and battery on the plaintiff: there is no allegation of negligence on the
part of the first defendant. The assessment of damages in that regard is
5	not before the court at this time.
It is only the question of the liability of the second and/or third
defendants that falls to be resolved by the court at this time. Counsel for
the plaintiff submitted that there were three issues of liability to be
resolved. First, there was the issue of the primary liability in negligence
10	which arises from the personal non-delegable duty of an employer to take
reasonable care for the safety of his employee. Secondly, there was the
issue of vicarious liability of an employer to a third person for wrongful
acts of his employee done in the course of his employment. The third
issue was whether the second defendant was in breach of the statutory
15	duty imposed by s.5(b) of the Fire Brigade Law. However, counsel for the
plaintiff conceded in closing that the claim could not succeed under this
head since the pleadings did not specify the elements of the statutory
duty. Nothing more need be said on this issue.
The second and third defendants, in their defence, denied the primary
20	liability in negligence that the plaintiff averred, and they also denied that
they were vicariously liable for the conduct of the first defendant. They
contended that the first

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