Gah-Yin Wong v LICS Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | Phillip, J |
| Judgment Date | 06 December 2021 |
| Judgment citation (vLex) | [2021] ECSC J1206-1 |
| Docket Number | CLAIM NO.: ANUHCV2015/0073 |
| Court | High Court (Antigua) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO.: ANUHCV2015/0073
Mr Cosbert Cumberbatch and Mr Anthony Greere for the Claimant
Ms E. Ann Henry QC and with her Ms Mandi Thomas for the Defendant
This is a claim for personal injuries sustained by Mr Gah-Yin Wong (“the claimant”) while in the course of his employment with the company LICS Limited (“the defendant”) located on All Saints Road, St. John's, Antigua. The claimant claim is in tort for negligence by the defendant's as the claimant's employers and or breach of its statutory duty towards the claimant under the Antigua and Barbuda Labour Code 1 (“the Labour Code”). The defendant denies that it was negligent or in breach of its statutory duties regarding the circumstances in which the claimant sustained the injuries and contends that the accident was wholly caused or contributed to by the claimant's negligence.
The claimant gave evidence supporting his claim and called three other witnesses: his mother, Ms Kim Wong and two medical doctors, Dr Steve Christopher Richards and Dr Ian Walwyn. The claimant was employed by the defendant from March 2008 to 2 nd May 2014 when the defendant terminated his employment was without compensation for injuries he sustained on 28 th October 2013, when there was an explosion at the defendant's oxygen filling Plant.
The claimant avers the defendant's operation involved dealing in liquid and gaseous oxygen, liquid and gaseous carbon dioxide, argon and refrigeration gases, acetylene and Helium, nitrous oxide, gaseous and gaseous granular chlorine and nitrogen. He was engaged in bottling and transporting them to various points throughout the State of Antigua and Barbuda. He alleges that an explosion occurred in his face when he removed a cylinder cap to refill it with oxygen, burning his face, hand, chest and eyes and temporarily blinding him. His face was completely discoloured; there was temporary unconsciousness.
The claimant, who was 27 years old, was rushed to Mount St. John's Medical Centre, where he remained for about two weeks in the Intensive Care Unit (ICU) and then on the general ward for a further two weeks. The claimant avers that he had to attend several specialist doctors in Antigua and Barbuda and overseas because of his injuries. When the claimant returned to work after the incident, he was again assigned to fill carbon dioxide tanks; he was on sick leave on several occasions and was later terminated (without compensation for his injuries) as unfit for further employment. This situation gave rise to the present claim.
The claimant contends the defendant's breach of statutory duty and negligence caused the explosion. The defendant failed to conduct its operation following standard safety precautions and, in particular, the Labour Code. The claimant pleaded a list of twelve alleged particulars of negligence and four alleged breaches of statutory obligations under the Labour Code. He also particularised his injuries and listed his medical and other expenses.
In defence of the claim, the defendant called three witnesses: Mr Roger Lewis, the general manager of the defendant for over twenty years, Mr Rohit Dukhiram, the assistant supervisor at the defendant for the past twenty years and before that was engaged in gas manufacturing for ten years in Guyana as a supervisor, and Mr Peter Williams, the defendant Plant Supervisor, employed with the defendant since April 1986. The defendant also intended to call Mr Arden Barnett, a court-appointed expert who was unavoidably absent, to testify at the trial. Still, the parties agreed that his attendance might be excused and relied on his report without the need to call him.
The defendant contends that it was not in breach of its common law duty of care to the claimant, neither was it in breach of any of the statutory duties alleged in the amended statement of claim or at all. It provided the claimant will all appropriate protective gears recommended for use when carrying out the functions for which it employed the claimant. The claimant's duties and functions did not expose him to any particular risk of injury to the eyes, and he was trained in all operational and safety procedures.
Further, the defendant contends that the explosion did not happen in the manner described by the claimant in his statement of case, that is, while he was “removing a cylinder cap to refill it with oxygen”. The defendant contends that the explosion happened after the claimant had started the refilling process and not otherwise. In fact, the explosion occurred because of the presence in the cylinder at the start of the refilling process of combustible material that ignited by the heat generated by the process. Any injury, loss, or damages the claimant may have suffered by the explosion was wholly caused, or in the alternative and which is not admitted, substantially contributed to by the claimant's negligence. Thus the defendant is not liable to the claimant in damages.
The following are the issues arising for determination, as I see them:
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(1) Whether the defendant was negligent and breached its common law duty of care as the claimant's employer.
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(2) Whether the defendant as the employer was in breach of any statutory duties imposed by Labour Code, as alleged by the claimant.
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(3) Whether the claimant caused or contributed to the explosion that injured him and the percentage of his contribution.
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(4) Whether in the circumstances the claimant is entitled to any damages and how much.
As the claimant's employer, there is no contest that the defendant owed him a personal duty of care recognised at common law. What is an issue is whether the defendant breached this duty. The employer's common-law duty to an employee is to take reasonable care for his employee's safety by providing a competent workforce, adequate plant and equipment, a safe system of working including effective supervision, and a safe place of work. The test for an employer's common law liability as now applied in our courts is stated in the well-known case, Stokes v Guest Keen and Nettleford (Bolt and Nuts) Ltd. 2 by Swanwick, J. thus:
“… the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
The claimant's amended statement of claim alleges as his particulars of negligence that the defendant:
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(1) Failed to provide protective gear to cover the claimant's face, eyes, hands, and upper body while carrying out dangerous tasks.
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(2) Failed to provide the claimant with such information instructions and training as was adequate and appropriate to enable the claimant to know the risk that personal protective equipment would have prevented, especially the risk of blindness and serious injury resulting from the explosion.
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(3) Failed to set up and implement a safe system of work for the claimant.
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(4) Failed to provide the claimant with a safe place of work.
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(5) Failed to give the claimant adequate instruction on how to pattern his work.
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(6) Failed to give the claimant adequate training.
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(7) Failed to give the claimant supervision.
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(8) Failed to provide the claimant with safe plant and equipment.
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(9) Failed to provide the claimant with safe fellow workers.
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(10) Failed in all the circumstances to take reasonable care for the safety of the claimant.
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(11) Exposed the claimant to an unnecessary risk of injury by not providing a safe working environment.
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(12) Failed to take proper or sufficient measures for the general safety and wellbeing of the claimant or to provide a safe system of work.
The claimant's evidence on this issue contained in his witness summary and by way of amplification and comments is that he was trained on the job to be a Plant operator trainee. His duties involved filling various types of cylinders with different gases. He worked on my own for the past two (2) years as an oxygen Plant operator. When the explosion occurred, he was not wearing any protective equipment as he was never supplied with any by the defendant, nor was he instructed to wear any. He received the full blast of the explosion in my chest, face and hands. During my seven years working at the defendant, he was not aware of any inspection of the various cylinders or any training and safety programs designed to protect the employees in the event of explosions.
The claimant did confirm that all workers who came to work at the Plant received relevant portions of the defendant's operating instructions manual. The other parts of the manual were in the Plant building in an accessible place. He commented, however, that it only refers to exerts of the...
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