Supreme Court
Action No. 356 of 1981
1st December, 1982.
Moe, C.J.

Mr. Dean Lindo S. C., for the Plaintiff
Mr. E. L. Flowers, for the Defendant

Personal injury - Plaintiff volunteering to assist Defendants to execute some work at the invitation of the Defendants - Whether Plaintiff was an employee of the Defendants - Whether the Defendants owed the Plaintiff a duty of care - Whether there was contributory negligence on the part of the Plaintiff - Damages - Special and General Damages and Damages for Loss of Prosecutive Earnings - Applicable principles to be considered by the court in arriving at a quantum.

J U D G M E N T

The Plaintiff claims damages for injuries and loss she suffered. She claims that she was employed by the Defendants and in the course of the said employment while operating a mixer, the injuries and loss were occasioned by the negligence or breach of duty of the Defendants. There is no dispute that the Plaintiff suffered injuries while operating a mixer, but the Defendants deny that the Plaintiff was employed by them and say that the Plaintiff operated the mixer on her own doing; they further deny any negligence on their part and say that the injuries and loss were caused or contributed to by the Plaintiff.

I wish to deal first with a point raised by the Defendants at the end of the case during addresses by the Counsel, which is that there is no evidence that the first named Defendant, Saldivar's Bakery, is a person in law and the evidence is that the second named Defendant is only manager of Saldivar's Bakery. I think it is sufficient to state that the record shows that the Writ was issued and served in accordance with Order LII of the Supreme Court Rules. Appearance was entered separately on behalf of the Defendants and there is evidence that Saldivar's Bakery is a firm.

The first real issue for determination is whether the Plaintiff was employed by the Defendants. The evidence is that at the date of the incident the Plaintiff was living with the second Defendant in a common law union. He was and is the manager of the business Saldivar's Bakery. The Plaintiff said that because the second Defendant's father who usually mixes a special dough for the bakery had gone to Merida, the second Defendant asked her to make this special dough for him. She admitted in cross-examination she is not employed by the Defendants, that her name does not appear in the Defendant's book which contains employees' names, she doesn't run the Defendant's business and what she did, she did as a wife. The Defendant also said the Plaintiff was not an employee of the bakery. Despite earlier statements that no one ever asked the Plaintiff to mix the dough, he did finally admit that they asked her if she was going to mix the dough and she offered to do it. I find that the Plaintiff was not in the employment of the Defendants when she operated the mixer to mix the dough, but that she voluntarily assisted in that work.

The question which I then turned to was whether in the circumstances, the Defendants owed the Plaintiff a duty of care. It must be observed ,firstly, that while it is found that the Plaintiff voluntarily assisted in the work, she was invited by the Defendants to work. I hold therefore that she was more than a mere volunteer. She voluntarily assisted at the invitation or acquiescence of the Defendants for the purposes of their business. In Halsbury Laws of England Vol. 28 par. 4 it is stated --- a master is bound to take reasonable care for the safety of his servant and a similar duty, even though not founded strictly on contract, is owed to any person in a comparable position such as --- one who gives his services gratuitously. The statement appears to be based on the judgment given in Holdman v. Hamlyn [1943] K. B. 664. There is no clear statement of principle but as James L. J said in Holmes v. North Eastern Railway Company 1 Q. B. D 252, "It would be a shocking state of the law if a person in the position of the Plaintiff was not owed a duty of care." I hold that in these circumstances the Defendants owed the Plaintiff a duty of care.

I then turned to the question whether there was a breach of the duty owed to the Plaintiff. The evidence which I accepted and acted upon was that the Plaintiff knew a little about operating the mixer. She had been given instructions previously by the second Defendant's father how to operate it and she operated it about twice before the date of the incident. To the mixer there is a bowl of about 3 feet in width into which falls a paddle at a point about midway of the width of the bowl. That paddle is attached to an arm of the machine by a bolt. On the day in question the bolt used to secure the paddle projected about 2 inches beyond the point of attachment. When the Plaintiff went to operate the mixer she was four months pregnant, and was wearing an esclava on her right hand. During the operations she left the mixer and went to a different part of the premises. The second Defendant scolded her about doing this. She became nervous. She continued mixing the dough in the process of which some of the flour got on the paddle. She put her right hand to brush off the flour from the paddle. At this time the machine was going at a slow speed. The bolt projecting from the paddle hooked her esclava, and the paddle took her arm and broke it up to about 3 inches below the elbow. The machine started to chew the rest of her arm and she pulled it away. There is evidence that in the course of the operation the Plaintiff went to perform, flour gets on to the paddle and a person not experienced wouldn't know that it would fall off by itself. I add that it is quite likely that an inexperienced person being about 1-1/2 feet away from the paddle might try to get the flour off the paddle and more so if the machine is working slowly. There is no evidence that the Defendants ever warned the Plaintiff not to try to get flour off the paddle or that the Defendants took any precautions to ensure that an operator of the mixer did not come in contact with the paddle.

In my view, the Defendants ought reasonably to have anticipated or foreseen that there was danger in using the mixer in the manner it was operated at the time whether by a careful and experienced operator and more so by an inexperienced or careless operator. I ,accordingly, hold that the Defendants failed in their duty to the Plaintiff to take the precautions which they ought to have taken. It occurred to me that the duty to take certain precautions might be stipulated for by the Factories Regulations, but there was no arguments or submission thereon. I decline to express a firm opinion on the matter and am content to decide on the basis of the general principles above mentioned in accordance with which I find that the Defendants were guilty of negligence.

I now consider whether the Plaintiff was guilty of contributory negligence. I took into account ,firstly, as I indicated earlier that the act of the Plaintiff in trying to brush the flour off the paddle just 1 ½ feet away was just what one could reasonably expect an operator would do (a natural reaction). Secondly, the inexperience of the Plaintiff who had operated the mixer about 2 to 3 times previously. Further, that the paddle at the moment was moving slowly. In addition, there was evidence that the second Defendant, had a little while before the accident, scolded the Plaintiff about some aspect of the operation and she had become nervous. Also, that it is not every risky thing which a worker does in operating machinery that makes the worker contributorily negligent. The following excerpt from the Plaintiff's evidence was relevant. It was suggested to the Plaintiff that she should have pushed a stop button (i.e. to stop the machine) before putting her hand to brush the flour. She answered. "The machine was going at a slow speed". I don't really agree. She went on, "I can't say yes or no whether I took a chance. I did it because the machine was going at a slow speed." There seemed to me to be more preoccupation with getting the job done (i.e. the dough mixed) at the cost of some inattention to her own safety. In all these circumstances, I am unable to conclude that the Plaintiff's act is one which makes her guilty of contributory negligence. I find the injuries she sustained were caused through the negligence of the Defendants.

It remains to be determined what damages are to be awarded. I consider first the special damages claimed. I allow for loss of a dress $25.00, balance on cost of an artificial limb $1,670, and cost of a return trip to U.S.A $608; cost of telephone bills, gas and electricity and water while staying in U.S.A. $449.34 ($224.67 U.S.) as shown by a composite bill tendered in evidence and which related to various items charged separately. The Court was not satisfied as to a claim for taxi trips and board and lodging. With regard to taxi trips, the Defendant gave evidence that he used to leave money with the Plaintiff and I took the view that payment for use of taxi would have been paid out of that allowance. The claim for board and lodging was lastly contested. Again there was no evidence other than the Plaintiff's word and when I considered that in support of the claim that she was charged for telephone, electricity, etc., she presented a bill from the home owner, I found it inconsistent that the home owner didn't present a bill for board and lodging if she had also charged for it. I also disallowed under this head, claim for loss of earnings from date of accident up to date of issue of Writ. The claim simply isn't proved. She wasn't earning at the time and thus no earnings are lost which have crystallized. The total I allow for special damages is $2,752.34.

In assessment of general damages, I bore in mind (a) the injuries sustained, (b) the pain and suffering which had to be endured, (c) the physical disability to be borne hereafter, (d) the loss of amenities of which she has been deprived, and (e) loss of pecuniary prospects. The Plaintiff at the time of sustaining the injury was 19 years old. Her right forearm was mangled and an amputation was done above the elbow joint. She remained in hospital first for some weeks. She could not take drugs or pain killers because she was pregnant. Subsequently, she underwent two skin graft operations involving taking skin from her thigh and remaining in hospital some two months. The doctor's evidence is that she suffered a permanent total loss of hand and forearm. She has been fitted with an artificial limb which needs adjustment from time to time to allow use of the limb and avoid abrasion, swelling and pain to the stump. She has to go abroad for such attention. Her social life and capacity to do household work have been limited. She cannot play tennis now nor dance ballet both which she used to do. I considered awards of general damages for loss of an arm remembering that they are referable to their own facts. In a Supreme Court Action 984 of 1970 (T) Mohammed v. Clifford, Plaintiff aged 26, male, had his right arm severed just below the elbow and remainder surgically amputated above the elbow. Award of $15,000 general damages with no specific sum for pecuniary loss of earnings in 1972. In Prince Henry v. Simeon Brown, male, aged 20, left handed had right arm torn off. 100% permanent disability of right upper arm. For pain and suffering $20,000 (in 1981). Again in 1981, in Jamaica in Geraldine Jackson v. Derrick Dhu and S. S. Caribbean Ltd. female, aged 24, suffered amputation of the right index, middle, ring and little fingers all to the level of the proximal phalanx. There was cosmetic disability and 60% permanent disability in use of the right hand. She was right handed. For pain, suffering and loss of amenities she was awarded $22,000.00. A look at some comparable awards in the U.K. between 1972-1974 indicate that awards ranged between £ 8,000 - £ 10,000. I considered whether the Plaintiff should have an award for prospective expenses, but the evidence in this regard was scant and there was little on which I could base calculations. I ,however, took into account the evidence such as it is that her capacity to do housework is limited and that she is required to visit the U.S.A. to get attention for her artificial limb as confirmed by the doctor. With no precise figure on which to calculate a separate award, I made some provision in this regard in the figure for damages falling under heads (a) to (d). I considered fair compensation for pain, suffering and loss of amenities would be $27,000.00.

Now, to the question of loss of pecuniary prospects. The Plaintiff was not earning at the time of the injury. The evidence is she was a secretary earning $198.00 biweekly or about $5,148 per annum before she entered into a common-law union with the second Defendant. While living with him she stopped exercising her earning capacity as has been the case with the females in many marriages. There was no direct evidence to establish that if she did not sustain the injury she would have resumed exercising it. She may very well have had no intention to resume her career being a married woman (whether after recognized ceremony or in common law union.) Diplock L. J. laid down in Browning v. War Office [1963] 1 Q. B. 750 that "a Plaintiff is not entitled to damage for loss of capacity to earn money unless it is established that he would, but for his injuries, have exercised that capacity in order to earn money". But in this case, I took into account the union was only six months old and she was only 19. That today many married women (whether after recognized ceremony or in common law union) go out to work. There was, therefore, the distinct possibility that although the Plaintiff had at the time stopped her work, with changed circumstances she might have wished to resume her career. I think it would be proper to compensate her for her loss of earning capacity.

I assumed that the Plaintiff would have had a working life as a secretary up to age 60 or 41 more years and I used her earning of $5,148 per annum as the basis of calculation. The multiplier of 41, I scaled down for all the imponderables including the possibility that for some period (which could have been very long) the Plaintiff as a married woman may not have pursued her career, and the possibility that she may learn to use the artificial limb sufficiently to pursue some gainful employment, allowing for the uncertainty of the incidence of income tax, and to take into account that a lump sum payment is being made. I used a multiplier of 7 and arrive at a figure of $36,036. I look at the overall figure of $65,788 and think it fair compensation in all the circumstances. Judgment for the Plaintiff in the sum of $65,788 and she is to have her costs.

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