Rhyna v Transport and Harbours Department
| Jurisdiction | Guyana |
| Judge | Massiah. C.,Fung-a Fatt, J.A.,Ganpatsingh, J. |
| Judgment Date | 26 November 1985 |
| Neutral Citation | GY 1985 CA 10 |
| Docket Number | No. 56 of 1982 |
| Court | Court of Appeal (Guyana) |
| Date | 26 November 1985 |
Court of Appeal
Massiah, C.; Fung-a-Fatt, J.A.; Ganpatsingh, J.A.
No. 56 of 1982
A. Chase, S.C. for the appellant.
Julian C. Nurse, S.C., Solicitor-General, with Mrs. D. Osman-Backer, for the respondents.
Tort - Employer's liability — Negligence — Seriousness of the injury that is risked — Appellant employed by the respondent as a watchman — Appellant had lost sight in his left eye as a result of previous accident — The appellant was instructed to catch a line from a vessel about to moor at the wharf, which was contrary to the established system for the mooring of vessels — No account taken of the appellant's disability — Rope struck appellant in his left eye and he was blinded — Respondent was in breach of its duty as employer to provide safe system of work and effective supervision — Paris v. Stepney Borough Council [1952] 2 ALL E.R. 789 applied — Liability in tort arises from the failure to take reasonable care in regard to the particular employee and all the circumstances relevant to that employee must be taken into consideration.
On 15th September, 1975, at the respondents' wharf at Leguan, there occurred an unfortunate accident. The appellant was employed there was a watchman and he alleged that on that day the Clerk-in-Charge of the wharf, one Isaac Clement, sent him to catch the mooring rope about to be thrown from the vessel M.V. Pomeroon which was then making ready to dock there. When the rope is grasped it would normally be fastened to the wharf itself in order to ensure that the vessel is securely moored before passengers begin to disembark.
The rope consists of two pieces, the circumference of one being greater than that of the other. One end of the thicker rope remains in the vessel where it is securely fastened. To the other end is attached the circumferentially smaller rope, the latter being called “the heaving line” in nautical circles. The heaving line is therefore the loose extremity of the entire rope, and it would be the heaving line that the person on the wharf would catch.
On the day in question there was no heaving line on the rope thrown from the M.V. Pomeroon. The thicker rope alone was thrown. It was the appellant's misfortune to be hit in the right eye by the rope when he attempted to catch it as it was thrown towards him. Despite specialist medical treatment he went blind in that eye about three years after the accident. This grievous loss was rendered more pathetic by the fact that the appellant was already blind in the left eye. After the accident he was completely blind. He remains so today.
I can think of no more pitiable situation, and it astonishes me considerably to discover that up to now it has not been seen fit to grant this unfortunate man even a pittance by way of ex gratia payment. It was said on behalf of the respondents that he deserved little sympathy because he took it upon himself to perform a duty that was not his since the fastening of the rope fell within the purview of the porter and not the watchman. For his part the appellant said Clement told him to perform the task. That portion of the evidence is uncontroverted and ought to be accepted. But if Clement did not send him to catch the line then the appellant showed resourcefulness. If he tried to fasten the line without being told to do so it is reasonable to think that the porter designated to fasten the line was of in place. The appellant saw what was happening and thought he ought to perform the task. I find it difficult to understand, therefore, how the appellant's thoughtful and helpful gesture, however it originated, could have gone unappreciated.
But those are questions of morality on which menus minds may differ. Let me get back to the factual mainstream of the case. For some time after the accident the respondents continued to employ the appellant who was still receiving medical attention. But his eyesight was deteriorating and it appears that by April, 1978, he had gone blind. In that month the respondents dismissed him. He had worked with them continuously for twenty-four-years. He was then fifty years old.
Blind and out of work and only fifty years old he must have grown exceedingly dispirited. In August, 1978, he sued the respondents. His claim was dichotomous, inasmuch as he founded it in tort, alleging negligence, and also asserted that the respondents were in breach of a statutory duty which they owed him. In the appellant's view the accident occurred as a result of one of those factors or a synthesis of both. His composite claim for damages encompassed loss of earnings, medical attention and medicines, and travelling expenses.
In their defence the respondents specifically denied that they were negligent or in breach of any statutory duty as alleged. Such injury as the appellant may have suffered, they asserted, was in no way due to any default on their part.
The trial began in April, 1980, and on 27th May, 1980, after several days of hearing, the learned trial judge reserved his decision. He was not to gave it until 29th September, 1982, nearly two and a half years later. This was unnecessarily long and requires adverse comment. It is scandalous. Judges on the whole are taking much too long to deliver their decisions even where the matters are quite simple. I do not know what is the cause of all this indecisiveness but it is a denial of justice, and cannot be too strongly deprecated. The citizen is entitled to better service from us. The instant matter was not particularly complex, yet it took the trial judge an unduly long time to determine it, and when he did, he appears to have given a short, oral decision based entirely on a well-known case. Why he could not have done the same thing two years earlier is beyond my comprehension.
On 5th November, 1982, the appellant gave notice of appeal against the decision. By the time the stage had been reached for the settling of the record the learned trial judge had unfortunately died, and it appears that he had not prepared a statement of reasons for his decision. At least, no such statement could be found. This memorandum normally forms a part of the record. Indeed, this is required by legislative ordination. I refer to Order 2, rule 10(2) of the Court of Appeal Rules, Cap. 3:01, which reads thus:
“If no written decision is given by the judge at the time of giving judgment such Judge shall communicate, his reasons for the judgment in writing to the Registrar and such reasons shall be included in the record.”
The importance of a judge's or magistrate's reasons for decision hardly requires explanation. This question was dealt with at length by Haynes, C. in Major Harry Hinds v. Chang Woon Tee and Jung Rin Kim (Criminal Appeals Nos 73 and 74 of 1978; decided on 12th April, 1979) in relation to a magistrate's reasons for decision. But the principles are equally applicable to a judge's reasons for decision. A proper appellate inquiry presupposes an opportunity for the study and appreciation of the judicial reasoning that obtained at first instance.
In this case we considered it unjust that the appellant should be debarred from prosecuting his appeal because of the absence of the trial judge's reasons for decision. The litigant cannot be blamed and suffer for the judge's default. And so, on a motion for directions as to the preparation of the record of appeal, this Court directed on 27th April, 1984, that the record be settled and prepared, the missing reasons notwithstanding. It sometimes happens that justice can be done by proceeding with an appeal despite the lack of documents normally required for its prosecution. This happened in R. v.Nowaz [1976] 3 All E.R.5 where an application for leave to appeal against conviction was heard and determined without the transcript of the proceedings and counsel's arguments in the court below. And In the matter of a Petition by Sedley Phoenix for admission to bail, Haynes, C. heard the application and decided the matter on 31st December, 1979, without a transcript of the notes of evidence although one of the grounds on which the application was based and bail granted was “that there is likelihood that the appeal, when heard, will be successful.”
In Latchman Outar v. The State (Criminal Appeal No. 27, of 1980) decided on 2nd July, 1982, this court (Crane, C., Gonsalves-Sabola and Massiah, JJ.A.) heard the appeal without a copy of the trial judge's notes of evidence. I was satisfied in Outar, and I still am, that justice was done despite the defect in the record.
So there is precedent for the course adapted in the instant matter. But as I sought to point out in Outar the pursuit of that course is not automatic; it all depends on the circumstances of the particular case. In the case under instant consideration the matter was simplified by the fact that the learned trial judges reached his conclusion by the application of a well-known legal doctrine that he conceived to be germane to the proceedings before him and fundamentally against the appellant's claim. Counsel for the appellant and for the respondents both agreed that that was the approach taken by the learned trial judge.
But they differed in their individual conception of one aspect of the judge's oral decision. Counsel for the appellant stated that the trial judge said that had it not been for the law, which was against the appellant, he would have found for him on the facts since the respondents were wholly to blame for the accident. Counsel who appeared for the respondents on the day when decision was given could not remember that statement emanating from the trial judge.
However, the learned trial judge arrived at his ultimate conclusion on the basis that the Transport and Harbours Department, the respondents in this matter, was a Government department and could not...
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