Supreme Court
Action No. 210 of 1979
6th August, 1981
Moe, J.

Mr. Michael C. Young for the Plaintiff
Mr. Derek Courtenay S.C. for the Defendant

Negligence - Duty of care owed by employer towards
employee - Employee involved in serious accident during
course of employment which made employee a
paraplegic - Assessment of damages - Applicable
principles.

J U D G M E N T

The plaintiff in this matter was employed by the second defendant as a labourer at a Water Treatment Plant under construction at Mile 17 on the Northern Highway. The second defendant, a construction company, was engaged under a contract between it and the first defendant, for the provision of services relating to the said construction which the first defendant, itself an engineering and construction contractor, was engaged in carrying out.

2. The plaintiff alleged that on the 6th of July, 1979 at the said plant, while in the course of his employment assisting his fellow employees and employees of the first defendant in raising a steel bridge for a water tank, the boom of a crane, driven by the servant or agent of the defendants, suddenly fell and hit him, in consequence whereof he sustained severe injuries and suffered loss and damage. The defendants admitted these matters.

3. The plaintiff claims that the injuries and loss and damage were occasioned by the negligence and/or breach of duty of the defendants, their servants or agents, and/or the breach of the contract of employment on the part of the second defendant, its servants or agents.

4. The defendants denied liability and pleaded that the matters concerned were the result of an inevitable accident and arose notwithstanding the exercise of all reasonable care by the defendants, their servants and agents.

5. There was a defendants' admission as indicated above which included in particular that the boom of the crane suddenly fell and hit the plaintiff. In addition, the evidence coming from both plaintiff and defendant witnesses, was that the gantry cable, which holds up the boom, had burst thus causing the boom to fall. I so held.

6. Lewin Moguel, a mechanical engineer, then employed by the second defendant, gave evidence that he had inspected the cables of the crane some days before the incident; that is after it had done a job of driving piles on the same site. He noticed defects in the cables; they were worn and frayed in certain areas. He told the project engineer, Mr. Bill Holland what he had observed. He however gave us his opinion that at that time the cables were not dangerous. Alex Flowers, an equipment operator then employed by the first defendant, said that in his view the crane concerned was a little below par. On the day of the incident he noticed that all the cables on the crane were in bad shape. The cables were dry and fraying in some areas. His observation was from a distance where the boom was at approximately a 300 angle from the ground. He pointed out the defects to the operator of the crane.

7. The project manger employed by the first defendant, Mr. Bill Holland gave evidence that the crane was hired from one Larry Cain of Frontier Developments Corporation. According to Mr. Cain, the crane was bought second hand by his company and they owned it for about 12 years at July, 1979. A new boom cable was placed on the crane in May, 1979 and when the crane was hired to the first defendant it had worked some fifty-three hours. Lennox Gibson, the crane operator, also said that the boom cable concerned was on the crane from about May, 1979. On the day before the incident, the boom was extended by some 57 feet. Mr. Holland denied being told about the condition of the cables by Mr. Moguel and Mr. Gibson denied being spoken to by Alex Flowers about the cables. Again Mr. Bernier, a technical mechanic employed by the second defendant, while stating that he did not observe the cables on the crane, said that his general impression of the equipment on the crane was that it was relatively old.

8. Lastly Mr. Michael Belle, a consultant mechanical engineer gave his view that the cable as exhibited in Court frayed by normal wear and tear. The amount of fraying would have reduced the capacity by 10 -15%. He further gave opinion that the cable had worked for a couple of hundred hours. He stated that the cable broke on account of one of two reasons; either because of a pinch or because of a kink. In his opinion, because of areas of the cable which appear to be flattened down, the cable broke because of a pinch. This occurs where a cable lays over itself and prevents its movement.

9. I found that the boom cable was in fraying and deteriorating condition. I also accepted the evidence of Michael Belle that the boom cable broke because it was pinched and so held.

10. According to the evidence of Mr. Belle, the consultant mechanical engineer which I accepted, the boom cable is most likely to become pinched when the cable is coiled back in after extension out to its limit. Pinching may occur within a drum which is in the cab of the crane or at the sheaves which are above the cab and at the end of the boom, but there is a greater risk of pinching at the sheaves. As Mr. Belle pointed out, during the exercise of recoiling, in order to see that the cable does not pinch, it is customary to use two persons although it is better to have three. Of the two, one operates the controls and he keeps an eye on the sheave over the top of the cab. The second person should be at the end of the boom, which could be anywhere like 30 feet from the cab, checking at that end. There was no evidence as to the place where the cable broke nor as to where the pinching occurred.

11. Both Mr. Holland and Mr. Gibson testified to the extending of the boom on the day before the accident but while Mr. Holland recalls seeing the operator Mr. Gibson on the boom during the exercise, Mr. Gibson is clear that he stayed by the cab. He said that his assistant one Noel Cannell was inside the cab. He worked the lever and checked that the cable ran properly through the sheaves. This meant that the sheaves he was checking were those by the cab. He also said that when the wire was coiled in, his assistant Noel Cannell was there watching the wire coil in. It was his opinion however that the cable can't be pinched when wire is being coiled back in because there is a sheaf at the top of the cab which guides wire when it is being coiled in. He also said it is difficult for him to say if there would be pinching if there was a hitch in the sheaf since he had never seen where the sheaf is hitched causing the cable to pinch.

12. I found that during the exercise of uncoiling and recoiling the cable for the purpose of extending the boom two persons were used, both of whom stayed in the vicinity of the cab. Mr. Cannell watching the drum and Mr. Gibson working the levers and watching the sheaves by the cab. I therefore held that what ought to have been done by the operator to detect pinching was not done, that is, that a person should have been at the end of the boom checking the sheaves at that end. Further, I held that in all probability if the operator had followed the procedure he ought to have followed, the pinching would have been detected. This omission amounted to a failure to take the precaution that was reasonable in the circumstances. A duty to take that care was owed by the operator to anyone who would be involved in the use of the crane for the lifting exercise. I accordingly held that the operator was negligent. Because of this negligence an undetected pinching of the cable resulted in its breaking. His employer at the time, the first defendant, is vicariously liable for his negligence.

13. The plaintiff was in such a position during the operation for lifting the bridge that when the boom fell, it struck him. Mr. Bernier, who was looking after the safety of the persons helping in the exercise, said that when the bridge was attached to the crane, he and other persons including the plaintiff were on both sides of the bridge waiting to see if rebalancing was necessary when the test lift of the load was made. The plaintiff was beside him and about 12 feet from the line of the boom. When the cable broke, he Bernier, heard a noise, looked up at the boom, saw its reaction of lifting and then coming down as usually happens if a cable breaks, and he ran. He did not see what Eric Flowers did. The operator, Mr. Gibson, said that when he got the signal to lift the bridge, he saw the plaintiff standing near the tank, about 10' - 15' from the boom. He engaged the lever, suddenly heard a noise and saw the boom coming down. It hit the tank in which the bridge was to be placed. He saw the plaintiff run from where he was to the right. The boom slid out to the right for about 15 - 20 feet. It hit the plaintiff while he was running. It landed about 15' - 20' from where the plaintiff was originally standing.

14. Now Mr. Moguel said that it is important that whenever a crane is being operated, no person should be allowed to be within the range within which the boom can circulate. It is also important that whenever there is need for persons to be around to do anything concerning the weights to be lifted, there should be no movement of the boom while anyone is moving in the area. Mr. Holland said that for the riggers, those persons who sling the load and assist in rebalancing, the safety rules are that they should not stand in the vicinity of the load in case of mishap, never under the boom or the object lifted. They could stand maybe five to ten feet away. When a test lift is being done, it is a safe procedure for the riggers to remove themselves. Mr. Bernier stated that at this particular exercise, he acted according to normal procedures. According to him it is normal to stay close to the load in case there is need to realign it but not underneath the boom. As far as he recalls he and others were clear of the boom. Lastly Mr. Belle, looking at the position of the plaintiff at the time as shown on a plan by the crane operator Mr. Gibson, that is near the tank, stated that in his opinion that spot was not a safe place to stand. Further, if he was in charge of the operation, he would have told him to go somewhere else.

15. I acted upon the evidence of Mr. Belle and held that the plaintiff was not in a safe place when the boom fell. I am fortified in this view by the fact that when the boom was falling, Mr. Bernier ran - I took this to mean that it would not have been safe to be in the position he was in, when the boom touched ground. The plaintiff was close to Mr. Bernier and he also ran - I concluded for the same reason. To my mind, the plaintiff was in that place at the time on account of the cavalier manner in which the operation was carried out. According to the crane operator, no precautions were taken to see that the men, assisting on the ground, were clear. This evidently was because the lifting of the steel bridge of 4 tons in weight was not regarded as a particularly difficult operation. He said that if the weight was 30 tons everybody would have taken the precaution to have everyone clear of the load and the boom. Mr. Bernier, who was looking after the safety of the people assisting, can't recall giving any instruction to them to get clear. Both the crane operator and Mr. Bernier left the impression that they regarded it as alright for the riggers which included the plaintiff to be standing as they were at the time. On the other hand the evidence of Mr. Belle is that the most vital time in a lifting exercise is when the crane assumes the load. Once it assumes, it is not dangerous. The inference then is, that when the crane is about to assume the load, riggers ought to be clear. I concluded that in the circumstances the care which ought to have been taken for the safety of the riggers, which include the plaintiff, was not taken. The employers of the plaintiff, the second defendant, failed in their duty to take reasonable care for the safety of the plaintiff. I accordingly found that the second defendant was guilty of negligence.

16. The defendant are jointly and severally liable to the plaintiff for their negligence. As a result of this accident on the 6th July, 1979 the plaintiff suffered grave injuries. When admitted to the Belize City Hospital on that day there was an obvious deformity in the spine at the back and he was totally lacking in sensation and power throughout both lower limbs and in the peritonial area at the back. X-rays confirmed a fracture of the first lumbar vertebrae and a forward displacement of the spine above that. The doctor's opinion was that the plaintiff needed an emergency operation for the fracture of the spine but since facilities for this kind of operation were not available in Belize, the plaintiff was referred to a hospital abroad, i.e. the Jackson Memorial Hospital in Miami, Florida. He was operated on and the bones put back in place and held in position by the insertion of long metal rods. The plaintiff remains totally lacking in motor power and sensation in both lower limbs and is able to propel himself for short distances with the aid of two crutches and two leg braces. His bladder and bowel functions are impaired. Because of the impairment of his bladder function, he is likely to encounter problems with his urinary tract causing demise at an early age. For the remainder of his life, the plaintiff will remain paraplegic with the impairment of his bowel and bladder functions. For him, sexual intercourse will not be possible. His urinary system will need to be constantly viewed. When last seen by the surgeon in Belize on 24th March, 1981, the plaintiff was very depressed and badly adjusted physically to his situation.

17. The plaintiff has the use of the upper part of his body and is capable of tasks involving only the upper limbs provided the lower part of the body is stationed securely. He can learn to do this and through rehabilitation learn to live to the maximum capacity with his body such as it now is.

18. He used to play basketball and performed in both school and public competitions. He also played a little football. He can enjoy these pursuits no longer.

19. The plaintiff must receive proper compensation in all the circumstances for his injuries and loss.

20. I turn now to the question of damages and consider first the special damage claimed. The plaintiff satisfied the court that the amounts claimed were reasonably and properly incurred and flowed from the defendant's negligence. They total $20,345 U.S. or $41,076.04 Bze. and I allow them.

21. In the assessment of general damages, I kept in mind the several considerations outlined in Cornilliac v. St. Louis 7 W.I.R. 491. Firstly as to pain, suffering and loss of amenities I considered awards of general damages in cases of paraplegia, remembering the words of Lord Morris in Singh v. Toong Fong Omnibus Co. Ltd. (1964) 3 A.E.R. at p. 927 "to the extent to which regard should be had to the range of awards in other cases which are comparable, the cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist."

22. My attention was not drawn to any comparable local cases but I looked at the awards made in two cases adjudicated in Trinidad and Tobago, (i) Aziz Ahamad Ltd. V. Raghunar Raghubar 12 W.I.R. 352 and (ii) DeSouza v. Trinidad Transport (No.1) 18 W.I.R. 138 affirmed at 25 W.I.R. 511 wherein some English awards were also looked at. While the awards in neighbouring territories at the time of those cases appear to be in the range of $30,000 - $40,000, the English awards are in the range of £ 25,000.

23. I made allowance for the fact that it is now 10 years since the award in the latest case referred to. I am not aware of an award in this region in a case of paraplegia since then so I looked also at the following English awards: -

24. In seeking assistance from a comparison of awards, I kept in mind the differences in the material facts of respective cases. I also took into account that there is still an accepted difference in the level of awards in the U.K. and this region.

25. Guided by the considerations outlined above, I consider that fair compensation for pain, suffering and loss of amenities would be $50,000.00.

26. I consider now the matter of the loss of pecuniary prospects. On July 6th, 1979, the plaintiff, then 18 years of age, was employed as a labourer at a wage of $1.250 per hour. On the basis of 8 hours per day and 300 work days per year this would be $3,000 per annum. He had passed three subjects at '0' level and intended to go to the Technical College to do engineering course in order to become a building engineer. He would have required two more passes at '0' level and qualification at tertiary level before becoming a building engineer but there was no reason to suggest that he would not have become thus qualified. The evidence is that a building engineer earns $250.00 per week or $13,000 per annum. There is evidence however that a person in the plaintiff's condition once psychologically rehabilitated, would be able to study as much as he could before and be employed as a Draftsman. The earnings of a draftsman is about $130.00 per week or $6,760.00 per annum. I held that the plaintiff as a result of his injury, has been deprived of the opportunity to earn eventually wages of $13,000.00 per annum whereas on a balance of probabilities he still may be able to earn up to $6,760.00 per annum. Having regard to his prospects and his level of earnings at the date of the accident I held that the plaintiff was entitled to take into account in the assessment of damage under this head the loss of opportunity to earn substantially higher wages.

27. I assumed that the plaintiff would have had working life up to age 60 or 41 more years and in calculating this damage I used his earnings of $3,000.00 per annum as the basis of my calculations. The multiplier of 41 I scaled down for all the imponderables including the possibility that for some period the plaintiff may have been engaged in study without earning anything and to take into account the fact that a lump-sum payment is being made and to allow for the uncertainty of the incidence of income tax. It was readjusted having regard to what were the plaintiff's prospects in relation to his level of earnings at the date of the accident. I used a multiplier of 18 and arrived at a figure of $54,000.

28. I considered further the question whether the plaintiff should have an award of future medical care and attention. The evidence of the surgeon was that the plaintiff will require further operation to remove rods presently inserted at the spine and to remove the lumps of calcium which have developed in front of both hip joints and which if not removed would impede movement of the hips. It appears that he will also have to go to a hospital outside of Belize for this purpose. His urinary system will need to be constantly reviewed and he will have to go through a period of rehabilitation. I was given no precise figures on which to have calculations for this purpose but I think provision ought to be made in this regard. Doing the best I can I would award the sum of $7,500.00 under this head.

29. As counselled by Lord Denning M.R. in Fletcher v. Autocar and Transporters Ltd. (1968) 2 Q.B. 322, in order to determine whether the plaintiff gets fair compensation in all the circumstances. I look at the overall figure which come to $152,576. I think it a fair figure in all the circumstances.

30. Judgment for the Plaintiff in the sum of $152,576.04. He is to have his costs, taxed or agreed.

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