UNIVERSITY OF THE WEST INDIES, MONA

FACULTY OF LAW

LAW 1230 – LEGAL METHODS RESEARCH AND WRITING

Assignment No. 3 – Case Brief

Student Identification Number: 620120226

Tutor’s Name: Matthew Royal

Tutorial Day and Time: Wednesday 3-5pm

Honor Code Declaration

This paper is my own work in accordance with the University’s rules and policies related to
academic integrity, and the Honour Code imposed and explained by the Course Director and
available on the Course Website on OurVLE, which I acknowledge that I have read carefully.

Student ID Number: ____620120226__________________

Date: ___________March 11,2019___________

 Case Brief

Title and citation

Green v. Captains Bakery [2014] JMSC Civ 1031

Facts

The plaintiff had been grabbing dough which had been falling to the ground in the factory

however during this process the dough wrapped around his hand and dragged unto the rollers

of the machine where he sustained serious injury and deformity to his left hand. The

contention here is that he had training on June 2, 2003 to use the dough break machine to

which he sustained injuries to his right arm. He underwent medical treatment and physical

therapy at the defendant’s expense and returned to work on September 29,2003 and later

while still having physical therapy and assigned lighter work duties he sustained new injuries.

The incident took place while he was only assigned to work the divider machine and due to

his unauthorized use of the machine he sustained the current serious injuries.

1
Green v. Captains Bakery JM 2014 SC 59
 Issues

1. Whether or not the relevant dough break machine was required to be fenced, pursuant

to the relevant provisions of the factories act and regulations?

2. Whether or not the defendant is vicariously liable to the claimant?

3. Does the claimant have a claim for damages although the incident happened during

his unauthorized interaction with the machine?

4. Is it a question of negligence on both parties based on the facts given or was the

defendants actions the sole cause of his injuries and consequential loss or at the very

least a contributory factor?

 Decision

Yes. The dough break machine is to considered as a ‘dangerous machinery’ and therefore

ought to be securely fenced. The Jamaican supreme court relied on the Jamaica Factories

Regulation and the Factories Act but it was the ruling in high court Trinidadian case of

Anthony Skeete v Electroplaters Ltd2, that cemented this definition. Due to the fact that the

regulation had said dangerous machinery ought to be securely fenced, the court had to

determine the parameters of dangerous machinery and the definition was found in said case,

thus the duty to have it fenced could be imposed upon the defendant.

The defendant would be vicariously liable has the court realized that his breach

resulted in the defendant’s harm and even though the defence raised many points, that one,

the machine was not dangerous and if it were to be fenced it would no longer be functional

whereby the court ruled against that submission has seen above. Two, the machine can only

be dangerous to someone who is authorized to use it and thus since the claimant was doing

something which he ought not to have been doing there would be no duty to him by the

defendant to securely fence the dough break machine. This submission was also rejected by

the court that relied on the ruling in Mitchell v North British Rubber Co.3

Yes. The court ultimately decided that both parties had been negligent where the

claimant had a duty to ensure safety of the operators and general users of said machine has

imposed in the statute- dangerous machinery. Even though the defence raised various

questions to remove their liability it was finally concluded by the court that they were in part

to blame because if not for them fencing the machine the defendant would not have been

incurred the injuries he suffered on October 7, 2003 while the claimants concomitant

negligent were substantial causes of the claimant’s injuries and loss because the reasonably

2
Anthony Skeete v Electroplaters Ltd (1976) 27 WIR 266(High Court, Trinidad and Tobago)
3
Mitchell v North British Rubber Co. (1945) JC 69
person should have been able to see such dangers, coupled with the fact that he suffered

injuries by the same machine prior to this and the defendant had paid for medical treatment

and the claimant given sick leave. The claimant then returned to work while undergoing

physical therapy and assigned lighter work. The court concluded that both the defendants

breach of statutory duty and the claimant’s contributory negligence where substantial causes

of the claimant’s injuries and loss.

 Holding

Based on the facts given and points presented by both parties the court has concluded that

the defendant has breached its statutory duty to the claimant and thereby caused the claimant

to suffer injury and loss, for which he is entitled to recover damages. However, the claimant

would also receive a lesser claim for damages due to his contributory negligence.

The principle that was first used to establish the defendant’s liability in failing to secure the

dangerous machinery was found in the regulation 3 (1) of Jamaica’s factories regulations4

stipulates that- ‘Every dangerous part of any machinery shall be securely fenced unless it is

in such a position or of such construction as to be as safe to every worker as it would be if

securely fenced’ and it was a question for the court if this machinery was required by law to

have been securely fenced which was found in the high court case of Skeet v Electroplaters

Ltd, a part of machinery is ‘dangerous,’ if it is reasonably foreseeable cause of injury to

anyone acting in a way in which a human being might be reasonably expected to act, in

circumstances which might be reasonably expected to occur. These two principles acted has

the driving force to cement the fact that the machinery was dangerous and ought to have been

fenced.

The courts came to the decision that the defence would naturally be vicariously liable

based on the principles established in the first stage of the case. They had a duty to securely

fence said dangerous machinery. Whether or not said fencing would ultimately affect the use

of the machine isn’t a question here because it ought to have been fenced based upon the

regulations in the factories act. However later we will see that the claimant is partially to

blame for the injuries in suffered due to his contributory negligence.

4
“Factories regulations” (Government of Jamaica September 1,1961) https://moj.gov.jm/regulations/factories-
regulation> accessed March 10, 2019
 Another question was whether the defence owed a duty to the claimant because the

incident took place during his unauthorized use of the machine. The court went back and

forth between if it was a deliberate and thoughtful action or reflex action, to which they

agreed was the former of those two scenarios that occurred with respect to the claimant’s

injuries. The judgement in Mitchell v North British Rubber Co.- ‘In the ordinary course of

human affairs, danger may reasonably be anticipated from its use unfenced, not only to the

prudent, alert and skilled operator intent upon his task, but also to the careless or inattentive

worker whose inadvertent or indolent conduct may expose him to risk of injury, or death from

the unguarded part. This principle clearly breaks down the fact that anyone could be harmed,

either an attentive or reckless worker, by the unfenced machine has the statute clearly

outlined by law requires it to be fenced to prevent unnecessary harm.

Finally, it was a question if the defendant’s actions where the sole cause of his

injuries or to a lesser extent contributory in nature. The Law Reform (Contributory

Negligence) Act5 of Jamaica,1951, has put it beyond peradventure that contributory

negligence is a partial defence to a claim for damages for breach of statutory duty. Section

3(1) of the statute, provides that: ‘Where any person suffers damage as the result partly of his

own fault and partly of the fault of any other person or persons, a claim in respect of that

damage shall not be defeated by reason of the fault of the person suffering the damage, but

the damages recoverable in respect thereof shall be reduced to such extent as the court thinks

just and equitable, having regard to the claimant’s share in the responsibility for the

damage.’

Importantly, the word ‘fault’ has been defined in that statute as meaning ‘negligence, breach

of statutory duty of (sic) other act or omission which gives rise to a liability in tort or would,

5
“Law Reform (Contributory Negligence) Act” (The Law Reform Act, Contributory Negligence December 28
,1951) <moj.gov.jm/sites/default/files/laws/The Law Reform (Contributory Negligence) Act.pdf> accessed
March 10,2019
apart from this Act, give rise to a defence of contributory negligence.’ Thus, the court is both

aware of the fact that the defendant failed to ensure his statutory duty but also the part the

claimant played due to his negligence, in causing said harm and the court shall determine the

equitable remedy the claimant receives based upon this fact.

 Reasoning

Firstly, it was up to the court to decide if said machinery was required by law to be

fenced. This principle established the defendant’s liability in failing to secure the dangerous

machinery which was found in the regulation 3 (1) of Jamaica’s factories regulations6

stipulates that- ‘Every dangerous part of any machinery shall be securely fenced unless it is

in such a position or of such construction as to be as safe to every worker as it would be if

securely fenced’ The first issue has been solved the court found the machine to be dangerous

based on the force at which it grips the dough. It does not matter if its functional with fencing

or not which was another point the defence raised which was also rejected by the court. The

court found that the nature of the machine coupled with the fact that it had previously injured

the claimant the factory had a duty to get the machine securely fenced.

In furtherance, once the basic principle had been established by way of the act ,the

court arrived at the decision that the machine at the factory in this particular case was a

dangerous machinery based on the rule established in Anthony Skeete v Electroplaters

Ltd7, a part of a machinery is dangerous, if it is reasonably foreseeable cause of injury to

anyone acting in a way in which a human being might be reasonably expected to act, in

circumstances which might be reasonably expected to occur. In the Jamaican case of Walker

v Clarke8, the Court of Appeal upheld a resident magistrate conclusion that a dough break

machine is to considered, for the purposes of Jamaica’s Factories regulations, as being

‘dangerous machinery’ and therefore, ought to be securely fenced. The fact that this dough

break machine was left unsecured could result in harm at any point and as a result the

claimant was the unlucky party. Therefore, the dough break machine is to be fenced because

6
“Factories regulations” (Government of Jamaica September 1,1961) https://moj.gov.jm/regulations/factories-
regulation> accessed March 10, 2019
7
Anthony Skeete v Electroplaters Ltd (1976) 27 WIR 266(High Court, Trinidad and Tobago)
8
Walker v Clarke (1959) 1 WIR 143
the factories act stipulates that any dangerous machinery should be securely fenced and based

on the definition in the case above the defendant failed to ensure that the claimant would not

be at risk of said dough break machinery which ought to have been fenced.

The defendant’s vicarious liability is very important because these acts9 and/or

regulations are put in place to protect the workers. Due to the defendant’s lack of fencing it

would render him liable has it was a duty fixed by law that was expressly stated in said act

the job he should carry out. By virtue of his failure to discharge said duty, the claimant was

harmed in the process. In essence the defendant breached his statutory duty of ensuring

workings safety be securely fencing the machine which resulted in the claimant’s injuries but

later we will that contributory negligence also played a factor in the harm.

The court was presented with the question of the claimants unauthorized use of the

machine was it a thoughtful or reflex action. The case of Mitchell v North British Rubber

Co.10 was cited with approval- ‘In the ordinary course of human affairs, danger may

reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled

operator intent upon his task, but also to the careless or inattentive worker whose inadvertent

or indolent conduct may expose him to risk of injury, or death from the unguarded part.’

The court thus rejected this submission by the defendants as it was a way to remove liability

from themselves and the duty they owed to the claimant since the claimant was doing

something he ought to not have been doing. However, the defendant had failed to ensure that

said dangerous machinery was securely fenced either the entire dough break machine or the

rollers of the machine. In conclusion the submission brought forth by the defence was not

correct in law because even in the walker case the court of appeal accepted the protection

afforded by regulation 3(1) of the factories regulations, that is so afforded to the most

9
“Factories regulations” (Government of Jamaica September 1,1961) https://moj.gov.jm/regulations/factories-
regulation> accessed March 10, 2019
10
Mitchell v North British Rubber Co. (1945) JC 69
prudent of workers, assigned to the operation of machinery but to even careless and indolent

workers, in respect of whom it could be reasonably foreseeable that said worker may incur

harm.

Another issue to be resolved by the court was whether the defendant’s actions were the

sole cause of his injury or the very least contributory. In these circumstances, the court had

no hesitation whatsoever, in concluding that the defendant breached its statutory duty to the

claimant and he’s entitled to recover damages. The defendant raised this defence and it was

not contested by the claimant thus the court held it to be proven. However, according to the

Law Reform (Contributory Negligence) Act Section 3(1)11- ‘Where any person suffers

damage as the result partly of his own fault and partly of the fault of any other person or

persons, a claim in respect of that damage shall not be defeated by reason of the fault of the

person suffering the damage, but the damages recoverable in respect thereof shall be

reduced to such extent as the court thinks just and equitable, having regard to the claimant’s

share in the responsibility for the damage.’ The question for the court to answer was but for

the defendant’s actions would the claimant have been hurt. Even though the defence was

vicariously liable that does not negate from the fact that the claimant acted negligently

because he ought to have exercised some caution around the machine especially due to the

fact that he had previously been injured by it. This ‘fault’ has referred to in the statue is taken

to mean negligence and the court interprets it has both parties acted negligently but his fault

shouldn’t affect his claim for damages because but for the defendant’s actions he wouldn’t

have been injured. Thus, the court concludes that both the defendants breach of statutory duty

and the claimant’s concomitant negligence, were substantial causes of the claimant’s injuries

and loss.

11
“Law Reform (Contributory Negligence) Act” (The Law Reform Act, Contributory Negligence December 28
,1951) <moj.gov.jm/sites/default/files/laws/The Law Reform (Contributory Negligence) Act.pdf> accessed
March 10,2019
 Policy

The common issues that arises in this case surrounds the Jamaican Factories

Regulations, 1961.This regulation stipulates that “every dangerous part of any machinery

shall be securely fenced unless it is in such a position or of such construction as to be as safe

to every worker as it would be if securely fenced.’ This act was put in place to facilitate both

the employee and employer because a middle ground needed to be established. A factory

needs heavy machinery to function efficiently and effectively to produce goods. In this case

its dough to make the pastries that the bakery supplies to its customers. However, these

machines will sometimes need human assistance and thus the act was put in place to also

ensure the workers safety. In this case only the factory owner’s benefits where placed as

important while the workers were left behind in unsecure positions and this is where the act

would come into play because if the machinery was secure the workers integrity in terms of

his authorized or unauthorized use would not have been brought into question because it

would have been clear that he was negligent, if the owner had taken various precautions to

ensure that the workers safety. Parliament wanted to protect the rights of both the employee

and employer within a working environment-factory. It provides the duty that should be

followed firstly by the factory owner and in furtherance a defence if injuries were to occur,

that the only way it would need not be required to be fenced if it’s in such a position has to

not cause harm but most important is the duty to protect those that work in the environment.

If not followed the legal principle of vicarious liability would arise which was the case

somewhat as per the facts. Furthermore, this act shows that one cannot be the sole bearer of a

negligent act, it has to have been the breach of duty on the factory that resulted in harm to the

worker/s. This embodies the fact that the but for principle would come into play here that the

rule maker was trying establish but for the defendant securely fencing the machine the harm

would not have occurred.

 In conclusion, one set of rule makers recognize that these machines are important and

on the other hand another set recognizes that it is dangerous. So, the rule arises has a medium

to find a balance between these two conflicting ideas. Its main aim is to keep the dangerous

machinery as they are useful but to securely fence them because they are dangerous which is

establishing somewhat of a compromise. In some instances, the rule maker prefers a side,

instead of balancing both interests. In which case the rule may be articulated to that specific

side and seek to enforce a rule in favour of that side. Luckily in this case that wasn’t the issue

both parties would be able to seek equitable remedies.