Michelle S. Burke v Kirk Freeport Plaza Ltd
| Jurisdiction | Cayman Islands |
| Judge | Justice Marlene I. Carter |
| Judgment Date | 20 November 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: 172 of 2015 |
Hon. Justice Marlene I. Carter Actg.
CAUSE NO: 172 of 2015
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Employer/Employee — Injury at work — Application to strike Plaintiffs claim-Summary judgment .
Mr. Colm Flanagan of Nelson & Co., Attorneys for the Plaintiff
Ms. Alice Carver of Priestleys, Attorneys for the Defendant
The Defendant filed a Summons on 7 th August 2018, seeking, inter alia, orders that the Plaintiff's claim be struck out on the grounds that the Plaintiff has no reasonable prospect of succeeding at trial; or alternatively that the Defendant be granted summary judgment against the Plaintiff in respect of the claim, or such parts thereof as the Court deems fit, and if or where summary judgment is awarded for part of the claim only, that the Plaintiff furnish security for the Defendant's costs.
The Plaintiff filed a Cross Summons on 23 rd August 2018, seeking summary judgment on the issue of liability against the Defendant on the whole of the claim.
The Plaintiff was employed as a Store Manager at the Defendant's retail jewellery store. In 2011 a display was installed at the store to showcase TAG Heuer watches (hereinafter referred to as the “Tag Heuer Corner”).
On 1st May 2014, as the store was being closed down for the day, a duty which involved removing all valuable merchandise from the store to the vault, the Plaintiff went to remove watches from the Tag Heuer Corner when a panel of wood fell and struck the Plaintiff on the head. The Plaintiff attended at Hospital and was discharged the same day.
The Plaintiff claims that the impact caused her immediate pain, injury, shock and distress as a result of the Defendant's negligence and/or breach of duty and/or breach of contract of employment.
The Plaintiff set out a number of particulars of negligence all of which I will not enumerate here relating to the Defendant's failure to provide a safe system of work, and failure to ensure the safety of the Plaintiff during the course of her performing her duties.
Of particular relevance to the Plaintiff's application are those particulars relating to the Tag Heuer Corner, wherein the Plaintiff pleaded that the Defendant:
“(h) Failed to adequately or at all in time or at all examine, inspect, repair or maintain the plank/shelf;
(i) Permitted or suffered the Tag Heur display area to be or to remain in use despite the dangerous condition of the plank/shelf;
(j) Failed to devise, institute, operate or ensure the institution or i operation of any or an adequate system of routine preventative examination and maintenance of the plank/shelf and/or Tag Heur display area;
(k) Failed to warn the Plaintiff of the dangers of working in the above circumstances or otherwise prevent her from so doing;
(l) Failed to provide any or adequate measure to prevent the plank/shelf from becoming unsecured and thereby presenting a risk of falling and causing injury to persons below'
(m) Failed to take suitable and sufficient steps to prevent the fall of the plank/shelf;”
The Plaintiff's claim also detailed the particulars of injuries and conditions that she claims arose from the accident at the Tag Heuer Corner and the Plaintiff claimed general and special damages as a result thereof.
The Defendant's application for summary judgment was against the three aspects of the Plaintiff's claim arising out of negligence, breach of contractual duty and breach of statutory duty.
The Plaintiff's application for summary judgment was premised upon the admission by the Defendant that installers of the Tag Hauer Corner were negligent in the installation of the Panel.
The issues for determination are:
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(i) Does the Plaintiff's claim fail to disclose a reasonable cause of action in respect of any of the heads of claim set out in the statement of claim?
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(ii) Is this a plain and obvious case entitling the Defendant's application to succeed?
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(iii) Is the Defendant entitled to summary judgment?
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(iv) If either or both of the Defendant's applications for summary judgment or striking out fails, is the Plaintiff entitled to summary judgment or any other relief?
The principles applicable on an application to strike a claim are found in Order 18 of the Grand Court Rules (“GCR”). Order 18 Rule 19 r 1 states:
“The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that —
“(a) it discloses no reasonable cause of action or defence, as the case may be; ….
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”
No evidence shall be admissible on an application under subparagraph (1)(a). 1
The Defendant referred the court to the case of TCB Creditor Recoveries Ltd v Arthur Anderson LLP 2 in which McIntosh J. (Ag.) dealt with the matters that the court should consider on an application to strike.
“The rule in striking out applications is that the court must assume that the facts pleaded in the statement of [claim] are true. This means that the Defendant pleads the facts on which he wants to rely and the court simply looks at the pleadings. Order 18, r. 19(1)(a) is expressly designed to deal with a case which has no reasonable chance of succeeding. No evidence is admissible and the court is required to consider the pleaded case and come to a determination as to whether or not the case is sustainable. If it is sustainable, it goes forward. If it is plainly and obviously unsustainable, it is to be struck out.” 3
On the instant application it is correct to say that the pleaded cases for negligence, breach of contract and breach of Section 58 of the Labour Law all rely on the same facts and are pleaded in similar terms. The Plaintiff's position is that the Defendant failed to take reasonable care to ensure, as far as reasonable practicable, the health, safety and welfare of the Plaintiff.
The Defendant contends that the Plaintiff must prove that the risk of injury complained of was foreseeable. Counsel for the Defendant submits that there is no pleading that there was any visible or obvious defect with the Tag Heuer Corner so as to put the Plaintiff or the Defendant on notice of foreseeable risk to the Plaintiff. Further that the Plaintiff has not pointed to the positive duty on the Defendant to examine, inspect or in any other manner maintain the Panel or the Tag Heuer Corner. The Defendant asserts that “while there is a bare assertion of such a duty, …there is no basis provided for it in the factual scenario pleaded in the statement of claim. As such there is no duty identified that the
Further the Defendant contends that the fault for the failure of the Panel was not the Defendant's. Instead the Defendant points to the installers of the Tag Heuer Corner. The amended defence states at paragraph 8:
“8, (i) TAG Heuer is a company which make and design watches.
(ii) Dobas is a reputable interior design and architecture firm based in Switzerland.
(iii) Dobas designed the TAG Heuer Corner at the instruction of TAG Heuer.
(iv) Dobas provided the materials to install the TAG Heuer Corner and supplied two persons to carry out the installation which was completed in early 2010.
(v) The Defendant did not instruct Dobas in the design, installation or supply of the TAG Heuer Corner, the Defendant only facilitated the installation at the direction of TAG Heuer.
(vi) The Defendant is not liable for any defect in the design or installation of the TAG Heuer Corner or the materials used for the installation of the TAG Heuer Corner.
(vii) Dobas failed to properly install the Subject Panel in that the two installers failed to insert “biscuits” or dowel into the joints of the Subject Panel to securely hold the Subject Panel in place and failed to use a sufficient amount of glue.
(viii) Up to and including 1 May 2014 the Defendant was not made aware, and had no reasonable cause to be aware, of any defect with the Subject Panel or the TAG Heuer Corner.”
The Plaintiff's argument is that the breach of duty lies in the failure of the Defendant to examine, inspect, repair or maintain the plank/shelf, that there was a non-delegable duty to maintain the Tag Heuer display. The Plaintiff also relies on the doctrine of res ipsa loquitur in their pleadings.
Further, in the Plaintiff's Reply to the Amended Defence the Plaintiff asserts:
“5. (c) 8 (iv) – (vi) are denied. It is averred that:
(i) The individuals who installed the Tag Heuer display area (“the Installation”) were employed by the Defendant and were issued work permits in the name of the Defendant on or around 20 April 2010. Furthermore, that they were assisted by a local electrician in and about the Installation.
(ii) Under the terms of the Corner Agreement, the Defendant was responsible for half the costs of the Tag Heuer display area, including those relating to the Installation and the individuals employed for that purpose.
(iii) The individuals referred to at (i) above, as employees of the Defendant which carried out the Installation, were carrying out activities which were integral to the Defendant's obligation to provide a safe place of work and as employees of the Defendant, the said individuals were acting or should have been acting under their supervision, and/or control, and/or instruction of the Defendant.
(iv) It is noted that it is not alleged that anyone from Tag Heur was...
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