Arnold Hughes Claimant v Caribseas Ltd Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Remy J.,Jennifer A. Remy
• Judgment Date: 13 May 2013
• Judgment citation (vLex): [2013] ECSC J0513-2
• Date: 13 May 2013
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV 2010/0 777

[2013] ECSC J0513-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV 2010/0 777

Between

Arnold Hughes

Claimant

and

Caribseas Limited

Defendant

Remy J.

1 The Claimant, Arnold Hughes, is a truck driver. The Defendant, Caribseas Limited, is a company engaged in the business of providing shipping/agent services and stevedore contracting services. The Claimant's claim against the Defendant is for damages for negligence and breach of implied terms of the contract of employment.

2 The Claimant's case is that on the 29^th of October 2008, while in the employment of the Defendant, he drove the defendant' s truck at the Deep Water Harbour in St. John's, Antigua, moving shipping equipment owned by the Defendant. He climbed up onto the said truck to adjust his load for transport. He slipped and fell, and as a result of the said fall did extensive damage to his ankle. He had to travel on several occasions to have surgery and treatment on his ankle. He states that he is still disabled as a result of said injury. Further, that since the accident, he has been greatly incapacitated and has limited mobility. He is no longer able to enjoy the amenities of life that he had previously enjoyed prior to the accident. He states that, as an employee, he was owed a duty of care by the Defendant, and that this duty was breached by the Defendant. The Claimant claims General Damages, Special Damages in the sum of $149,818.70, interest and costs.

3 The Defendant company denies the Claimant's claim. In its Defence, the Defendant pleads, among other things that:— The Claimant is a self-employed individual offering his services as a truck driver for hire; that over the past four to five years the Defendant Company availed itself of the Claimant's services on a sub-contractual basis; that the Claimant was engaged by the Defendant Company as a truck driver wholly and solely and not as a stevedore, longshoreman, cargo stripper, packer, catcher or any other job related to the Defendant Company's business. The Defendant further pleads that, given that the Claimant was engaged by the Defendant as an independent sub-contractor the Defendant Company does not owe the duty of care to the Claimant as being alleged in or at all in the circumstances. It avers that it discharged all and any duties owed to the Claimant in relation to the independent contractual arrangements which existed between the parties during the subsistency of the arrangement. The Defendant pleads that any injuries suffered by the Claimant was as a result of his own negligence and not as a result of any negligence on the part of the Defendant Company whether directly or indirectly, vicariously or by way of contribution on the part of the Defendant Company.

4 The issues which fall for determination by the Court are as follows:-

• i). Whether the Claimant was an employee of the Defendant company or whether he was engaged as an independent contractor.

• ii). Whether the Defendant company was negligent.

• iii). Whether the Claimant sustained any injuries as a result of the negligence of the Defendant company.

• iv). Whether the Defendant company is liable to the Claimant for the injuries sustained.

ISSUE # (i) — WHETHER THE CLAIMANT WAS AN EMPLOYEE OF THE DEFENDANT COMPANY OR WHETHER HE WAS ENGAGED AS AN INDEPENDENT CONTRACTOR.

5 The Claimant's evidence is that, at the time of the accident, namely, the 29^th October 2008, he was employed by the Defendant company; in other words, his status was that of employee of the company. He states that a Mr. Tyrone Simon, the Operations Manager of the Defendant company, employed him to drive the truck belonging to the said company. In his Witness Statement, the Claimant stated that he had worked for the Defendant company from and since 1995. Under cross examination, he testified that Mr. Simon employed him as a truck driver one week before his accident, when Mr. Simon told him to leave his truck outside and drive the Defendant's truck. He further testified that, prior to that time, he was engaged by the Defendant company as an independent contractor.

6 The Defendant denies that the Claimant was its employee. It is the Defendant's contention that it engaged the Claimant as a sub-contractor to provide trucking/haulage services. Learned Counsel for the Defendant, Mr. Craig Christopher, has submitted that the relationship between the Defendant company and the Claimant is not an employment relationship as is being claimed but rather that of a sub-contractor arrangement as is confirmed by all the evidence before the Court. Learned Counsel contends that the Claimant "failed to adduce any evidence in support of his assertion that at the material time, i.e. at the time of the accident, that he was an employee of the Defendant company." He further contends that the Defendant Company would pay the Claimant at a rate of $550.00 per vessel operation (hauling full/empty containers at the Port) in respect of which none of the statutory deductions in relation to employee wages were applied as would be required by law in an employer/employee contract of employment. The Claimant received no letters of employment from the Defendant; no statutory employee deductions were ever taken out of his pay package; that the Defendant's payroll records show clearly that he was never an employee and was not covered by the risk insurance taken out by the Defendant company in respect of its employees. Mr. Christopher also contends that the Claimant was "classified by the Defendant company in its records as miscellaneous sundry payments and which category is comprised of payments to sub-contractors and incidental workers." Further, that the Claimant did not participate in the company Thrift Fund established for all the employees.

7 According to the learned writers of Law of Tort (page 1077, paragraph 20.46)1, "how the parties themselves understood and described the relationship is a relevant but not decisive consideration, as 'it is for the court to examine the realities of the relationship between the parties and ……whilst the label put on the relationship by the parties is a factor of importance to be considered, it cannot override the reality of the situation…" — per J W Kay, Q.C. in Johnson v Coventry Churchill [1992] 3 ALL ER 14 at 19. In that case, Kay found that the Claimant before him was an employee even though his contract with the defendant referred to him as a 'sub-contractor' and to his remuneration as a 'fee'.

8 Halsbury's Laws of England —(5^th Edition, Volume 39, page 21, paragraph 4) 2 states: —"There is no single test for determining whether a person is an employee. "The approach to the determination of whether a person is an employee (engaged under a contract of service) or an independent contractor (engaged under a contract for services) is to take into account "a wide range of factors," and to apply a "wide range of tests." In the case of Rudder v Dallaway (Divisional Court of Barbados), Sir William Douglas CJ, in delivering the judgment of the court, had this to say:-

"…A court should look at all the factors for and against finding a contract of employment, e.g. the power to select and dismiss, the direct payment of some form of remuneration, deduction of income tax on a 'pay-as-you-eam' basis and national insurance contributions, the organization of the work place, the supply of tools and materials and the economic realities of the business."

9 At paragraph 15, page 37, the learned writers of Halsbury state:-

"In general, a contract of employment need not be in any particular form. A contract of employment may thus be inferred from conduct which shows that such a contract was intended although never expressed, as where there has in fact been service of the kind usually performed employees. Accordingly, an employment tribunal should first examine all the relevant evidence, including what was said and done between the parties, to determine whether a contract of service may be implied, that is deduced, as a necessary inference from the conduct of the parties and the work done, before concluding that no contract of employment exists. The inference of a contract of employment may be rebutted by evidence that some other relationship was intended "

10 The Court accepts the evidence of the Claimant that, sometime in or around October 2008, he was told by Mr. Tyrone Simon to drive the Defendant's truck and leave his own truck outside. Was this directive sufficient to change the status of the Claimant from that of independent contractor to that of employee? As stated above, the label given to the relationship is not important; it is the reality of the relationship between the parties. InCalder v H. Kitson Vickers & Son (Engineers) Ltd [1988], 1CR 232, the plaintiff was viewed as self-employed even though the employer paid him "wages" for ten weeks following the accident. Each case turns on its own particular facts. The Claimant's evidence is that he has been working for the Defendant company as a truck driver from 1995; he describes the service that he offers in these words" I drive the truck hauling containers from point A to point B." He works in and around the port compound. He further gave evidence that, while working for the Defendant from 1995 to 2005, he used the truck belonging to Ewart Isaac. Under cross examination, he conceded that it was really Ewart Isaac who was providing the service for the Defendant company and not him. The Claimant states that he stopped working for Ewart Isaac in 2005 and began providing truck services for the Defendant company from 2005. He first began by using his uncle's truck and then bought his own truck. The Claimant agreed that between 2005 and 2008, he was not employed by the Defendant company; he was simply providing a service. According to the Claimant, his status changed in 2008 when Mr. Simon told him to leave...