The Tribune

By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

A BAHAMIAN hotel worker who slipped near a swimming pool before undergoing major spinal surgery has lost his final appeal in London, with the Privy Council ruling that his employer was not negligent and that his dismissal claim was too poorly pleaded to succeed.

In a new judgment, the Board dismissed the appeal brought by Tyson Strachan against Albany Resort Operator Ltd, bringing to an end a legal fight that began more than a decade after a workplace accident at the Albany resort on New Providence.

The ruling closes the door on two claims. One alleged that Albany failed to provide a safe place of work after Mr Strachan slipped on wet tiles while on duty. The other argued that he was unfairly disengaged from his employment while on sick leave.

The judges accepted that Mr Strachan had been injured in the fall and rejected earlier findings that he had failed to prove any damage at all. They said his unchallenged evidence showed that he suffered at least significant soft-tissue injuries to his neck and back, requiring hospitalisation and physiotherapy.

But the Board was clear that injury alone was not enough.

On the evidence, they said, the presence of water near the pool area did not arise from any lack of care on the part of the resort. The tiles where Mr Strachan was found to have slipped were rough-textured sandstone, designed to reduce the risk of slipping when wet. There was no proof they were unsuitable, nor any evidence that Albany or another employee had negligently caused or ignored a hazard.

The only explanation offered at trial for the wet surface was rain earlier that morning. There was no evidence about how long the tiles had been wet, whether other staff had been in the area, or whether warning signs were reasonably required for outdoor poolside tiles designed to cope with water. Mr Strachan himself, whose job included checking for slipping hazards, said he had not noticed any water despite repeatedly crossing the same spot moments before he fell.

In those circumstances, the Board said, the trial judge was entitled to find that the accident was not the result of negligence. The Court of Appeal had been right to uphold that conclusion.

The appeal also failed on Mr Strachan’s claim that he had been unfairly disengaged from his employment after the accident.

The Board described that claim as wholly inadequate from the start. His pleadings did not explain whether he was alleging a breach of contract, a statutory unfair dismissal, or a claim for lost earnings. They did not identify what made the termination unfair or what remedy he sought.

By the time the case reached London, his lawyers clarified that the claim was a common-law breach of contract argument. They accepted that, absent special terms, an employer was entitled to terminate employment by giving notice or paying in lieu.

Albany had done just that. In a termination letter dated December 2 2013, the company said it was acting in compliance with the Employment Act and enclosed a cheque covering vacation pay, notice pay and severance, described as “FULL AND FINAL SETTLEMENT” of Mr Strachan’s employment.

His counsel argued that the termination was communicated months later and that the payments might not have covered the entire period or associated benefits such as medical insurance. But the Board said those points were never properly raised or supported by evidence at trial.

Mr Strachan did not calculate what additional sums he claimed, did not seek discovery to clarify them, and did not give evidence that the payments were inadequate. Even before the Privy Council, his lawyers could not say what notice entitlement he was owed.

The claim, the judges said, remained opaque and unparticularised throughout.

“It is elementary that a claim must be particularised and there must be evidence to support it,” the Board held, agreeing with both the trial judge and the Court of Appeal that the dismissal claim could not succeed.