The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Bahama Rock head welder has been found ‘40 per cent liable’ for a workplace accident in which he suffered a broken neck, the Court of Appeal also finding the company failed to “properly supervise” its employees.

Although the Grand Bahama-based quarry mining giant’s appeal of the initial Supreme Court verdict partly succeeded, the appellate court still found it had breached both its common law duty and the Health and Safety at Work Act.

This, according to Appeal Justice Neville Adderley’s verdict, was because Bahama Rock did not properly oversee the safety system that required the air hose - the ultimate cause of the accident - to be properly placed back in its receptacle.

However, the verdict - with which all three justices agreed - overturned the initial ruling by Justice Estelle Gray-Evans on the grounds that former head welder Leonard Bain had admitted he was “well aware” of the need to remove the air hose before starting welding.

As a result, the Court of Appeal found he “contributed negligently” to his own accident and was ‘40 per cent liable’. Bahama Rock, which the Supreme Court had found “wholly liable in negligence”, had pressed the Court of Appeal to find Mr Bain ‘75 per cent liable’, but this was rejected.

Setting out the background to the dispute, Justice Adderley’s verdict said Mr Bain was “called to assist two mechanics, also employees of [Bahama Rock], who were unsuccessful in using an air gun at the end of an air hose to remove nuts from a tyre frame, and requested” his assistance “to cut off the bolts with a blow torch which operated at the end of a welding hose”.

This was not unusual, and part of Mr Bain’s job. “The company’s policy and his personal practice was to remove the air hose and put it back into a receptacle in the wall when welding in the area, so as to avoid the sparks falling on the air hose and burning it,” the Court of Appeal verdict found.

“The practice was also to have someone designated as a ‘fire watch’ to keep a lookout to ensure that during the welding process, fire was not caused by flying sparks.”

The ruling noted that Mr Bain saw the air hose was lying on the ground, and not in its receptacle, as he went to cut the bolts.

This was because the two mechanics had yet to complete their work, and Mr Bain did not “request his co-workers who were using it to do so”. One person was appointed ‘fire watch’.

“While cutting the bolts with the torch he [Mr Bain] heard a ‘pop’ sound, and thinking that the nut might fly off because of the heat and injure him, he jumped back out of the possible path,” the ruling said.

“When he did that, involuntarily it appears, he stepped on - and tripped over - the air hose and fell down backwards, as a result of which he sustained injuries including a fracture of the neck, of the femur and fracture of the left hip, which required a total left hip replacement.”

Mr Bain initiated a common law action, accusing Bahama Rock of negligence. He claimed the company failed to provide a safe system of work; failed to provide adequate supervision; and failed to ensure there were no obstacles in his path.

Bahama Rock, though, claimed he failed to take care of his own safety, not looking where he was going, assess his surroundings or taking note of the air hose.

The company’s attorney, Robert Adams of Graham, Thompson & Co, argued that the Supreme Court used the wrong test in arriving at its decision - focusing on whether Bahama Rock ‘kept the premises safe’ as opposed to “taking all reasonable steps in the circumstances” to do so.

While agreeing with Mr Adams, on the grounds that Mr Bain entered Bahama Rock’s premises under his employment contract, the Court of Appeal said the lower court still applied “the correct test to the facts”.

Acknowledging that it was “reasonable” for the mechanics to have removed the air hose before Mr Bain started working, the Court of Appeal said it was “open” to the judge to conclude that “the system was an unsafe one”.

“The admission by the employees that the failure to remove the air hose in these circumstances had become the usual practice could reasonably be taken as evidence that although a safe system of work (removing the air hose) was devised, [Mr Bain] was guilty of negligence in not seeing to its proper operation,” the Court of Appeal found.

“In these circumstances, that practice - on a balance of probability - developed due to a lack of proper supervision, which is a breach of the employer’s duty both at common law and under the Act.”

However, the Court of Appeal agreed with Mr Adams that Mr Bain “did not have due regard for his own safety”.

It added: “He gave evidence that he was well aware of the practice of removing the air hose before using the torch. Yet he failed to do so before proceeding with his work.”

Given that the accident would not have occurred had he done so, the Court of Appeal found Mr Bain “liable to some degree for the accident and ensuing injury”, especially as he was asked to help by the mechanics.