Ruthlyn Thomas v Jumby Bay Resort Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | Kelsick, J |
| Judgment Date | 28 April 2020 |
| Judgment citation (vLex) | [2020] ECSC J0428-2 |
| Docket Number | CLAIM NO. ANUHCV2015/0594 |
| Court | High Court (Antigua) |
| Date | 28 April 2020 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV2015/0594
Mr. Dane Hamilton Jr and Ms. Judith Dublin, Counsel for the Claimant
Mr. Justin L. Simon QC and Mrs. Nelleen Rogers-Murdoch, Counsel for the Defendant
Kelsick, J [Ag.]: The Defendant is the owner and operator of a hotel property on Jumby Bay Island known as “Jumby Bay Resort”. There are three restaurants on the property, one of which is known as “The Veranda” (“Restaurant”). On 29 th January 2014, the Claimant was an employee of the Defendant, working as a waitress at the Restaurant.
Whilst at work on that date, the Claimant went to the bathroom. In her statement of claim, the Claimant avers that as she “was standing in one of the stalls situated in the said restroom, she slipped upon water or some other wet, moist or slippery substance upon the floor, lost her balance and fell” as a result of which she suffered injuries.
The Claimant asserts that the Defendant was negligent and gave the following particulars:
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(i) failure to give the Claimant any or any adequate or effective warning of the presence of water or some other wet, moist or slippery substance upon the floor;
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(ii) permitting the Claimant to use the bathroom facilities when they knew or ought to have known that it was unsafe and dangerous for her to do so;
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(iii) failure to direct the Claimant to make use of an alternative restroom facility;
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(iv) failure to keep the Claimant away from the area by putting a barrier at the entrance to the area or by some other means;
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(v) failure to give the Claimant any or any adequate warning that the floor was wet and unsafe 1;
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(vi) causing or permitting the floor to become or to remain a danger and a trap to persons lawfully using the same;
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(vii) failure to institute or enforce any adequate system for the inspection and cleaning of the floor;
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(viii) failure in all the circumstances to take reasonable care for the Claimant's safety.
In her Witness Statement, the Claimant stated, in relation to the circumstances leading to her fall:
“5. On Sunday 29 th June, 2014 while dressing after using the bathroom, I slipped on some water on the floor of the stall of the bathroom. Both of my legs went in opposite directions and I hit the right side of my head on the wall and my left hip also. I called out to Virginia and Alex, my coworkers, for help but they didn't hear me. Then I blacked out.
6. I remember Mario, another co-worker, shaking me and I regained consciousness. He then tried to lift me up but his attempt failed. He said I was too heavy. He placed me back in the same position and went for help. I blacked out again.
7. I remember one of the security officers touching my leg and shaking me as I regained consciousness. I opened my eyes. He told me to hold
his hand to help pull myself up. I could not so he lifted me and held me around the waist and helped me to the ambulance…”
It was common ground that at the time of the accident the Claimant was significantly overweight. Whether she can be characterised as then being obese it is not necessary for me to decide.
Some further information was elicited in cross-examination of Ms. Thomas by Mr. Simon QC:
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(i) When she entered the cubicle, the Claimant said she was not looking for water because it was supposed to have been cleaned every morning. She also did not look for water when she sat on the toilet.
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(ii) The Claimant pulled down her trousers and underwear and used the toilet;
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(iii) After she was finished, she stood up and after she was finished pulling up her underwear and trousers she slipped on the water and fell. At no time did she remove her shoes.
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(iv) After she fell, she felt a wet area on her trousers in the area of her right buttocks.
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(v) The Claimant was asked on what basis she said that she slipped on water. She said she decided that there had to be something on the floor that made her fall and then she felt water on her right buttocks.
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(vi) It is therefore clear that the Claimant inferred that there was water on the floor because of the dampness on her trousers. She gave no evidence that she at any time observed water on the floor of the toilet.
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(vii) It was put to Ms. Thomas that in the process of falling her right hand entered the toilet bowl causing water to splash and this water was the source of the dampness on her trousers. She responded that she did not remember her hand going into the toilet bowl and that the incident occurred a long time ago and she did not recall every detail.
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(viii) It was put to her that when other persons entered the cubicle after she fell, no one saw water on the floor but did see some water on her clothing. The Claimant disagreed.
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(ix) It was put to the Claimant that she fell as a result of losing her balance and not because of slipping on water, to which she disagreed.
This was the entirety of the Claimant's evidence on the issue of liability.
The Defendant's evidence on liability follows.
Mr. Jimmy Abraham, an employee of the Defendant at the time of the incident (and of the trial as well) said in his Witness Statement that:
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(i) At the time of the incident he was the manager of the Restaurant;
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(ii) The Defendant has, and had then, guidelines and policies for workplace safety, a copy of which was exhibited;
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(iii) Employees are informed of all safety rules for their departments and are expected to follow them. It is an established policy that staff members are to immediately report any accident or unsafe condition;
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(iv) On the day of the incident, he arrived at work at around 10am and saw a staff member alerting another. On making inquiries he was informed that the Claimant had fallen in the staff bathroom at which point he went to the scene to assess the situation;
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(v) He entered the bathroom and noticed the Claimant sitting on the floor of the cubicle with her back slumped against the wall, with her left arm on the toilet bowl and her head on the toilet paper roll. He demonstrated how he met the Claimant and a photograph was taken of that demonstration which was put into evidence;
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(vi) He asked the Claimant what had happened and she said that after using the bathroom she slipped and fell, her hand went into the toilet bowl and she hit her head on the toilet paper roll. He asked the Claimant to explain how she fell and she said that she believed the floor was wet and she slipped.
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(vii) He saw no water or other substance anywhere on the bathroom floor or on the Claimant's clothing except what had splashed out of the toilet bowl.
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(viii) The tiles in the staff bathroom are not slippery. They are 12-inch tiles with sections which provides some friction which are tiles normally found in the bathrooms at the Resort. A photograph of the tiles was also put into evidence.
It is implicit in Mr. Abraham's evidence that he thought he found the Claimant in the same position in which she was when she fell. However, in the Claimant's evidence, as indicated in paragraph [4] above, Mario had tried to lift her up. Her evidence was that Mario placed her back “in the same position”, which I find to mean the same position in which he had found her. There was no evidence from the Claimant that she moved from this position before being lifted up by the security guard.
I therefore find that the position that Mr. Abraham observed the Claimant in was substantially the same position she was in when she fell.
Mr. Abraham, and all the Defendants' witnesses, were asked why Mario did not come to give evidence. None could answer.
Mr. Abraham was asked when the bathroom was last cleaned before the Claimant fell and he said he did not know.
Finally, Mr. Abraham was referred to the report which he prepared for his employer about the incident and he agreed that he did not mention in that report that the water he saw on the Claimant came from the toilet. Mr. Abraham said that he came to that conclusion after he wrote the report as it was the only logical conclusion. This is an inference not evidence.
The first issue to be determined is whether there was water on the floor on which the Claimant slipped. The burden of proving this, and all other averments necessary to establish the cause of action, is of course on the Claimant
It will be recalled that the Claimant did not at any time see any water on the floor. She indicated she was not looking for water. Her evidence was that she inferred that water was there from the fact that she fell and felt water on her trousers in the region of her left buttocks. Inferences are to be made by the court and not a witness or party.
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