The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Worker safety was “a moving goal post” at a restaurant in Paradise Island’s Marina Village, the Court of Appeal’s president has ruled.

Justice Anita Allen found that a then-Kerzner International subsidiary that operated the Bimini Road restaurant failed to maintain “a properly working” system for staff safety, which caused a waitress to injure her back and other limbs during a fall.

The judgment on a July 20, 2006, accident was released late last month, just before the Government this week unveiled measures to crackdown on unsafe workplaces by giving the Health and Safety at Work Act greater enforcement teeth via increased employer fines.

The Court of Appeal verdict, which overturned an earlier Supreme Court judgment, recorded how Patrice McKenzie slipped after a mat she stepped on “bungled under her feet” when she walked towards Bimini Road’s kitchen to pay a customer’s cheque.

She filed a common law action, alleging that the Island Hotel Company, the Kerzner International subsidiary that operated Bimini Road, had “failed to ensure and maintain the safety” of the area where herself and other staff frequently walked.

This was denied by the Island Hotel Company, which argued that it had “taken all reasonable steps to keep the kitchen floor safe”.

Justice Allen, referring to witness testimony before the Supreme Court, noted that the then-Bimini Road manager, Ricardo Williams, admitted that the restaurant’s floor “became wet and slippery on a daily basis”.

“Even the mats placed there to help with the wet and slippery floor often became wet, and were themselves slippery due to the smooth tiled floor,” Justice Allen said.

“Significantly, Mr Williams stated that on several occasions he brought the problem to the attention of the department head, and that he also knew of employees, other than the appellant [Ms McKenzie], who slipped and fell in the same kitchen preparation area of the restaurant.”

A former Bimini Road busboy, Navar Neely, said dishwasher water frequently splashed on the floor, and that he had been forced to seek medical attention after suffering a similar fall previously.

Justice Allen said witnesses testified cardboard was sometimes placed under the mats in Bimini Road to assist with the absorption of water and grease.

Chef Lunn, Bimini Road’s witness, admitted that the mats were used to deal with the water, which was “a constant problem in the restaurant’s kitchen”.

And, on the night Ms McKenzie fell, he conceded “it was impossible to keep the floor dry”.

The Island Hotel Company argued that it employed stewards, or runners, to keep the floor dry, but the “frequency and volume” of water and other substances often made this impossible.

“Notably, Chef Lunn testified that the response of the stewards was not always consistent, and admitted there was no specific response time mandated by the second respondent to address a spill, except if VIPs were involved,” Justice Allen said.

“He further testified that if there was a spill in the kitchen area and a spill in the dining area, the latter was to be given preference by the stewards.”

While the Island Hotel Company’s assistant director of stewarding testified that there was a system in place to keep the floor dry and clean, Justice Allen said she could not confirm whether it was functioning properly on the night Ms McKenzie fell.

“In our view her evidence, and that of Chef Lunn, as to the steps taken to safeguard the kitchen staff clearly revealed the inadequacy of the system for that purpose,” Justice Allen found.

“On the totality of the evidence it was clear to us that safety in the kitchen of the restaurant was a moving goal post, in that mats were placed to assist with absorption of water and grease, which was always on the floor.

“When this did not solve the problem the respondent [the Island Hotel Company] resorted to placing cardboard under the mats which also, evidently, did not solve the problem.”

Justice Allen said an employer’s duty went beyond implementing a safety system, extending to ensuring it was working properly.

“It requires vigilance on the part of the employer to ensure that he does what is reasonably required for the safety of his employees,” she added.

“On the night the appellant fell, the evidence clearly showed that the system was not in fact being followed, which is clearly the fault of the employer.

“We do not wish to be seen as faulting the second respondent [the Island Hotel Company] for its use of the mats. However, in the case of this restaurant the provision of rubber mats on a smoothly tiled surface on which water, grease and other substances frequently build up is simply insufficient.

“It is a scenario ripe for accidents of the kind which happened in this case, and is a scenario which was reasonably foreseeable and one which the second respondent had a duty to prevent.”