Forde v Grenada Steel Works Ltd
| Jurisdiction | Grenada |
| Judge | Belle, J. |
| Judgment Date | 07 April 2004 |
| Neutral Citation | GD 2004 HC 12 |
| Docket Number | GDAHCV 0629 of 2001 |
| Court | High Court (Grenada) |
| Date | 07 April 2004 |
High Court
Belle, J.
GDAHCV 0629 of 2001
Mrs. Celia Edwards for the claimant.
Mr. Alban John for the defendant.
Damages - Personal injury — Leg injury — Liability for negligence — Vicarious liability — Contributory negligence — Quantum.
The claimant in this case claims that he is now disabled as a result of an accident which took place on 31s' May 2001 at the premises of the defendant Grenada Steel Works Limited on Dusty Highway in the parish of Saint George in Grenada. He claims damages against the defendant for negligence caused by the servant or agent of the defendant The case raises the issues, (1) liability for negligence, (2) vicarious liability and (3) contributory negligence I will deal with the issues in that order. But first I should set out the facts and subject those facts to some analysis.
The claimant says that on the 31st May 2001 he drove a truck registration number TM606 to the defendants premises to collect and transport roofing sheets also described as steel and galvanized sheets, manufactured by the defendant company for a homeowner who had hired his services. He said that he was directed by the defendant's servants to drive the truck into the defendant's warehouse where the roofing material was to be loaded by forklift operated by the defendant's operator. This evidence was corroborated by all of the other witnesses in the case.
Based on instructions received the claimant parked his truck next to the forklift laden with the galvanized sheets. The forklift was on the right side of the truck. He next mounted the tray of the truck and awaited the loading of the roofing material. What the claimant said he did next is important. The claimant said he mounted the tray of the truck to assist in tying the material after it had been loaded. The defendants forklift operator then got out of the forklift and tied the galvanized sheets to the rear of the truck, he gave the other end of the rope to the truck's conductor to hold and then returned to the forklift which Leslie Lewis and Winston Alexander agree was about 4 feet away from the truck. Alexander next positioned the forklift to load the material by driving forward and placing the material resting partly on the cab and partly on the forklifts fork. He then reversed the forklift tilting the fork to complete the loading process, and it was at this point that the galvanized slipped breaking the rope he had given to the conductor to hold and trapping the claimant at the back of the tray, hanging from the tray badly injured.
The claimant says that the forklift driver gave him no warning that he was about to load the material and instead lowered the boom which controls the operations of the forklift and the roofing material slipped off the forklift blade. The defendant's employees agree that no warning was given. The Claimant says this all happened in a “split second' and as he saw the material slipping he ran to the back of the truck bed to try to get off the truck but he got stuck at the back of the truck by the materials. But the defence witness Danny Smith contradicts this “split second” account of the facts. Mr. Smith answered questions from counsel for the claimant and from the court in a forthright manner, and I believe his account of the accident I should say that it comes very close to the account given by Leslie Lewis. It seems to me that the forklift driver would have had to manoeuvre his forklift to a position where loading was possible and then position the fork itself with the galvanized sheets to rest them in the tray of the truck. This in my view could not have been done in a “split second”. I therefore accept that it was on noticing the galvanized slipping that the claimant tried to get away from the falling sheets and got caught at the back of the tray of the truck. But this did not happen in a “split second.”
The claimant says that he watched the forklift driver Alexander get out of the forklift and tie the rope at the back of the truck he then observed him give the other end of the rope to the conductor to hold and then he got back into the forklift He never said that he had any difficulty observing the forklift driver's movements. He gave evidence that the forklift's engine had been running from the time he entered the warehouse to collect the galvanized sheets. So where was the surprise that the sheets were loaded at the time they were? I therefore find that the slippage was surprising to the claimant but the actual process of loading was not, even though there was no warning.
Again the account of the facts which follow the actual slippage of the galvanized sheets is corroborated by the other witnesses in the case. The claimant said after being caught he was hanging upside down off the tray of the truck. A piece of steel, which had been loaded unto the truck earlier, caught him in the leg and ran up into his leg. The roofing material cut through the other side of his leg. He was later removed from that position bawling in pain,” and taken to the General Hospital.
The claimant blames the defendant's servant the forklift driver for the accident and the injuries he suffered because he says it was customary that if someone is loading materials, I assume while a person is standing or on the tray of the truck, the person doing the loading would sound a warning first. His testimony was that he has done this himself as a forklift operator for some 13 years with Jonas Browne & Hubbards.
The defence witnesses Alexander the forklift driver and the warehouse clerk Smith both deny Mr. Forde's claim about a warning and state that it is not normal to have to issue a warning because normally no-one would be on the tray. I believe that they are right. Their testimony was an admission that they were not accustomed to loading material while anyone was on the tray of the truck. They were caught unprepared for this kind of accident because the circumstances were unusual. But there is more.
Firstly some of the galvanized sheets were too long for the truck, secondly, because of the height of the sides of the fray the forklift driver had to tilt the fork, thirdly the rope broke. The forklift driver did not anticipate the danger, and neither did the warehouse clerk. These were the two servants of the defendant present at the scene. The forklift driver took charge of the scene as may have been expected in the warehouse where he worked. He took responsibility for the situation, which ensued.
Neither the defendant's forklift driver nor warehouse clerk perceived any danger in the process of loading the truck. But the claimant said this process was inherently dangerous, whether one is loading cement or sand and indeed loading galvanized sheets is more dangerous than loading cement or sand.
The claimant was asked what he would have done if he had been warned that the load was being placed on the truck. He said that he would have positioned himself in a safe place. But in circumstances where some of the galvanized sheets were too long for the tray, where on the tray could he find safety? Yet he said he was on the tray for the purpose of tying the galvanized sheets. I therefore find that this was not a situation in which the claimant was expecting a warning. He saw that the galvanized sheets were going to be loaded and remained on the tray even though he apprehended danger.
The claimant says that after the accident he attended the Accident and Emergency Department of the General Hospital and had to be given 110 stitches in his leg which was very painful. He could hardly walk and could not put any weight on his leg. He had to report to the hospital every day to have the bandages changed and was unable to drive his truck for 6 weeks. He says that even now “I still have some pain sometimes” and he has to sometimes walk with a stick and has a 4-inch scar on the right side of his leg where the steel went into his leg. He says he has not been the same since the accident He now describes himself as disabled and weak. He says he cannot sit or stand for any length of time and walks with a limp. This was not the case before the accident, when he never walked with a limp and was not in pain.
Furthermore the claimant says that he lost income as a result because he could not drive and truck driving was his only source of income. He said he worked for $70.00 per day for hire and he lost this income for 6 weeks. He also had to pay for medical expenses in the form of pain medicine and attending his private doctor for after care as the pain continued. He used antibiotics and Motrin. The pain he said continued to be severe for about 2 months then lessened. He did not produce any documentary evidence of this loss but the defendant did...
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