Dwight Mayers of Arnos Vale Claimant v Carl Williams of Arnos Vale Shell Antilles and Guianas Ltd Defendants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Blenman, J,Dwight Mayers,Kacey Maloney,Dr Arvin Salian,Bertram Walker,Chester John |
| Judgment Date | 20 April 2004 |
| Judgment citation (vLex) | [2004] ECSC J0420-2 |
| Court | High Court (Saint Vincent) |
| Docket Number | CLAIM NO. 29 OF 2002 |
| Date | 20 April 2004 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CIVIL
CLAIM NO. 29 OF 2002
Mr. Dwight Mayers claims damages against Shell Antilles and Guianas Limited (Shell), for injuries he sustained to his fingers while putting fuel in the M V Rita on 22nd February 2004.
Shell employed Mr. Carl Williams to deliver its fuel by truck to ships. Mr. Williams in turn employed Mr. Mayers to work on the truck as a driver's mate, in the delivery of the fuel to ships. Mr. Mayers' fingers were crushed when he M V Rita he was refueling
He bought these proceedings alleging that he was injured when the MV Rita collided with the MV Barracuda while he was working for Shell and that it breachedits common law and statutory duty of care to him. He claims that both Mr. Williams and Shell Antilles were negligent in failing to provide a safe system of work for him, and effective supervision. He was hospitalized and incurred expenses, as a result of his injuries. Shell financed some of his medical bills. He seeks special damages in the sum of $23, 100, together with general damages from Shell. He contends that Shell personally employed him during his lunch hour and since it was during this period he was injured, it was responsible for providing a reasonably safe system of work and effective supervision which it failed to do.
In its defence, Shell Antilles denied that Mr. Mayers was its employee. It asserts that Mr. Carl Williams, an independent contractor, was responsible for providing instructions to his employees, and Mayers was one of his employees. In its pleadings, Shell stated that it does not have an agreement with Mr. Mayers and denies that he was injured while refueling the M V Rita as alleged. Shell contends that he was solely responsible for the injuries that he sustained, and alternatively that he is guilty of contributory negligence. By way of written agreement titledContract For Services, Shell employed Mr. Carl Williams to provide various services to it including the cleaning of depots weekly gardening, and importantly, to provide a driver's mate on a daily basis from 7:30 a.m. — 4:30 p.m. Monday to Friday. Work outside of those hours was to be paid for separately. Shell paid Mr. Williams $2,685 per month and the latter in turn contracted Dwight Mayers as a full time driver's mate, and paid him his salary from the monies obtained from Shell. Mr. Mayers was paid lunch allowance by Shell when he worked through his lunch period. Shell argues it is not liable for the injury he has suffered. In any event, it has given its contractor booklets on the safety measures that should be followed in order to prevent injuries to persons whom the contractors employed and it provides ongoing training programmes and invites its contractors and employees to attend in order to improve their safety awareness, Mr. Carl Williams and Mr. Mayers have participated in various training programmes hosted by Shell.
The issues that arise for determination are as follows:
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(a) Whether Mr. Dwight Mayers was the servant or agent of Shell?
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(b) If so, whether Shell was in breach of its common law and/or statutory duty to Dwight Mayers and is liable to compensate him for the injuries he has suffered?
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(c) Whether Dwight Mayers through his negligence contributed to the injuries he sustained?
Both parties filed witness statements and led oral evidence in the matter. It is necessary that I deal at length with the evidence in this matter.
Mr. Mayers is a young man who was originally employed as a gardener, and later as a driver's mate on a truck owned by Shell to deliver fuel. Mr. Chester John, the driver of the truck was a permanent employee of Shell and was responsible for giving him instructions in relation to where, when and how to perform his job. He was provided by Shell with its uniform to wear. On the 22nd February 2004 MV Rita was berthed alongside the MV Barracuda. During the lunch period, himself and Mr. Chester John were sent by Shell in a truck driven by Mr. Chester John, to the wharf to deliver fuel to the MV Rita. While at the wharf, Mr. John sent him to put the nozzle of the fuel pump into the MV Rita's tank, in order for them to deliver the fuel. He was holding the nuzzle of the pump with his right hand while holding on to the rail of the boat, when due to the movement of the water, the two boats rubbed against each other, crushing his fingers and injuring others. While he was refueling the MV Rita, Mr. John was sitting in the truck talking to a friend and the windows of the truck were turned up. Mr. Chester John was not supervising him. When he worked during his lunch period he was paid $22.00 by Shell. Since he commenced working for Shell through his employment with Mr. Williams, he has taken instructions from Shell's employees, including its drivers and supervisors, such as Mr. Bertram Walker, and Mr. Huggins.
He was vigorously cross-examined by Learned Counsel Mr. Stanley John, and
was adamant that the fuel tank on the boat was next to the side of the boat. The boats were about 3 feet apart with the MV Barracuda being the bigger of the two. He left the wharf to get on the MV Rita so as to put fuel in the boat and did not observe that the boats were moving due to the waves. There was no string on the nozzle to keep it in the tank he had to hold it down. He had no doubt that he did not signal to Mr. John with both hands, since he sustained injuries just after he commenced pumping the fuel. It was his responsibility to put the hose into the tank under the instructions of the driver (Chester John). He admitted that his salary was $500 EC per month, and Mr. Carl Williams paid him his salary. He received no instructions from Mr. Williams as to how he should perform his duties and was since that Shell retained him to work doing the lunch hour and specifically paid him.
Mr. Kacey Maloney, a seaman who was employed on the MV Rita, gave evidence in support of Mr. Dwight Mayers. He witnessed when Mr. Mayers was fueling the boat, and holding the nozzle down into the fuel tank, while holding on to the rail. The MV Rita was berthed alongside the MV Barracuda. He testified that Mr. Mayers' hand was crushed as a result of the boats moving and coming into contact with each other. He was adamant that at that time when Mr. Mayers was fueling the MV Rita, Chester John was sitting in the truck.
In cross-examination, he stated that as a seaman he would not hold onto the rail of boats because he knew they could collide, since they moved with the waves. However, Mr. Mayers was a layman and may not know that. He knew Mr. Mayers as diesel man, and saw him previously fueling the MV Rita, Mayers usually puts the nozzle in the tank and held the nozzle down until the boat was loaded. He was clear that one person would stay by the truck to check the meter while the otheroperated the pump. On the day in question, he was about 8–10 feet away from Mayers while he was putting the fuel in the MV Rita. He saw him holding the rail, but he did not see when the boat collided with his hand, even though he was clear from his experience, the boats usually move all of the time, while they are berthed, and sometimes the MV Barracuda would go a little on the wharf as a consequence of the movement of the waves.
Dr. Arvin Salian is a Consultant Orthopedic Surgeon, employed at the Kingstown General Hospital. On the 22nd February 2000, he examined Mr. Dwight Mayers, who had sustained injuries to the fingers of his right hand, as a result of an accident. He operated on his fingers, two of which were totally crushed, and had to be amputated. He has kindly provided a medical report, which indicated that Mr. Mayers' index and middle fingers were fractured, and gave detail in relation to the amputation.
Mr. Bertram Walker, the Operation Supervisor of Shell was its the main witness. He stated that Mr. Williams was employed by Shell, under a Contract For Services, which was produced in evidence. According to the contract, Mr. Williams was responsible for the provision of a full time driver's mate, and an additional mate, depending on the nature of the delivery Shell had to make. Mr. Mayers was not employed by Shell, but instead by Mr. Williams the latter who was solely responsible for his assignment. Under the heading "Responsibility for Personnel" Clause 4 of the contract between Williams and Shell provides "that the contractor shall be responsible for all persons employed by him hereinafter called "employees" and shall ensure that employees engaged in carrying out the works or services shall comply with all statutory provisions, as well as all Company Safety Rules & Regulations. In so far as may be necessary, to ensure compliance with Statutory Provisions and with the requirements of the company in respect of the nature or quality of work,the Company shall be entitled to give such instructions to any employee as may be necessary in the absence of the contractor."
In cross-examination, he admitted to being responsible for safety matters at Shell. Over the years Shell had conducted several safety training programmes and has safety manuals. Mr. Dwight Mayers attended some training programmes hosted by Shell; however he was not sure that he attended safety-training programmes. He stated that if a worker arrived at his place of work and found the condition of work unsafe, he is required to call the depot and make a report, the depot in turn is obliged to advise him of the report. The conditions under which Mayers worked on that day were safe. The mate's duty was not to hold the nozzle down since the nozzle remained...
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