Jersey Unreported Judgments

Personal injuries - damages - decision

[2020]JRC226

Royal Court

(Samedi)

26 October 2020

Before     :

Sir Michael Birt, Commissioner, and Jurats Ronge and Pitman

 

Advocate R. Tremoceiro for the Plaintiff.

Advocate D. A. Corbel for the Defendant.

judgment

the COMMISSIONER:

1.        This is a claim by the plaintiff for damages for personal injury suffered as a result of an accident at work.  He alleges that the accident occurred as a result of his employer's breach of statutory and common law duties.  The Master ordered a split trial and accordingly we are only concerned with the issue of liability.

Background

2.        By the end of the hearing, the issues in dispute fell within a fairly narrow compass.  Accordingly, we begin by setting out the factual background of matters which do not appear to be in dispute. 

3.        The plaintiff was aged 42 at the date of the accident, which occurred on 13^th June, 2018.  He was born in Madeira and lived and worked there until September 2017.  His wife was friends with the wife of Mr Jose Reinaldo de Jesus and the plaintiff and Mr de Jesus were also friends.  Mr de Jesus arranged for the plaintiff to come to Jersey in September 2017 to work as a cleaner for a Mr Jorge Baptista.  Mr Baptista had a business cleaning offices and houses.

4.        The plaintiff worked for Mr Baptista for some 7 months until 26^th April, 2018.  During that period he learned how to work as a window cleaner.  He then moved to work for the defendant.  This is a cleaning company owned by Mr Horacio da Silva ("Mr da Silva").  Mr de Jesus had worked for the defendant since May 2017 and it was he who recommended the plaintiff to Mr da Silva as a potential employee.  The plaintiff's work for the defendant was essentially the same as he had undertaken with Mr Baptista.  He did window cleaning in both offices and residences, cleaned the interior of flats and houses and the outside of houses including guttering.  During his employment with the defendant, he invariably worked as a team of two with Mr de Jesus, but on occasions, when a job was too big for two people, Mr da Silva would join them.

5.        The evidence before us suggested that there are three main methods of cleaning windows.  For windows on the ground floor, the cleaner will either stand on the ground or use a step ladder if necessary to reach the top of the window. 

6.        For first floor windows, the use of a ladder, which can be extended up to 11 metres, is the most common method.  This involves one person standing at the foot of the ladder in order to hold it secure (referred to as 'footing' the ladder) and the other person ascends the ladder with the cleaning equipment and cleans the windows from the ladder.  In the case of windows above the first floor and sometimes also for the first floor, cleaning is undertaken from the ground by using a pole with a hose attached to it.  The pole can reach up to windows beyond the first floor.

7.        The choice of which method to use for windows above the ground floor was taken by Mr da Silva and he would simply instruct the plaintiff and Mr de Jesus as to whether the pole or the ladder were to be used for first floor windows at a particular address.

8.        The equipment needed to clean windows is as follows:-

(i)        A smop, which is a spongy roller with a short handle used to wet and wash the windows.

(ii)       A metal squeegee blade, also with a short handle and with a rubber surface to wipe the windows; blades come in two sizes, the larger being approximately 35 centimetres wide ("the blade and "the small blade" respectively);

(iii)      Two cloths, one damp and one dry. 

9.        The procedure for cleaning windows is that the smop is immersed in a bucket of soapy water on the ground, and the window is then made wet and washed with the smop.  The window is then dried off with the blade, the window frames are wiped clean with the damp cloth and, if necessary, the drying of the window is finished off with the dry cloth after the use of the blade. 

10.      At the time of the accident, the plaintiff and Mr de Jesus were using a ladder to clean a first floor window.  What is at issue is the method used to transport the above items of equipment up the ladder to the first floor and then down again. 

11.      There is no dispute that the defendant supplied a belt, which is worn around the waist of the person going up and down the ladder.  The belt has two pouches attached to it.  These are made of soft material covered with plastic.  They are attached to the belt via slots at the top of the pouch and can therefore be moved along the belt.  The pouches are worn towards the back of the person climbing the ladder, one on the right side and one on the left side.  According to the defendant, assuming the cleaner is right handed, the dry cloth would be carried in the left pouch and the damp cloth, the blade (or both blades if the smaller blade was also in use) and the smop would be carried in the right pouch, thereby leaving both hands free to hold the ladder as the cleaner climbs up and then down the ladder. 

12.      There is a further piece of equipment known as a holster.  This is a plastic holder for tools which is again secured to the belt but rests against the leg of the cleaner and into which the smop and the blade can be securely placed, leaving the pouches simply for the dry cloth and the wet cloth (and the small blade if in use).

13.      On the day of the accident, the plaintiff and Mr de Jesus were working at a property in St Ouen and were using the ladder to clean the first floor windows.  On this occasion Mr de Jesus was footing the ladder and the plaintiff was the person going up the ladder to clean the windows.  The plaintiff was not wearing a holster and he asserts that his practice was not to place the smop and the blade in the pouches for reasons which we shall come to.  He therefore climbed up and down the ladder holding the smop and the blade in his left hand.  He could use his closed left hand to touch the side of the ladder as a guide and additional support, but could not hold the ladder in that hand in the same way as he could if the hand were empty rather than holding the smop and the blade. 

14.      After cleaning the first window to be cleaned at the premises, the plaintiff started descending the ladder, again holding the blade and the smop in his left hand.  However, after descending two or three rungs of the ladder, his foot slipped.  Because he could only hold on to the ladder with his right hand, he was not able to prevent himself from falling.  He fell to the ground and suffered injuries, including fractures of his left wrist, one of his vertebrae and his right tibia / ankle.

Duties of the defendant as employer

15.      Article 3 of the Health and Safety at Work (Jersey) Law 1989 ("the 1989 Law") provides (so far as relevant) as follows:-

"3.      General duties of employers to their employees

(1)       It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employer's employees. 

(2)       Without prejudice to the generality of an employer's duty under paragraph (1), the matters to which that extends include in particular:-

(aa) the identification and assessment of risks to health and safety to which the employer's employees are exposed at work;

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;...

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of the employer's employees....

(3) It shall be the duty of every employer employing 5 or more    employees:-

(a) to prepare and, as often as may be appropriate, revise a written statement of

(i) the employer's general policy with respect to the health and safety of the employer's employees,

(ii) the organisation of responsibilities with respect to that policy,

(iii) the arrangements in force and measures taken by the employer to implement that policy;

(b) without prejudice to the generality of sub-paragraph (a)(iii) to prepare and, as often as may be appropriate, revise a written statement of:-

           (i) the significant risks identified by the employer under paragraph (2)(aa) and the employer's assessment of them,

           (ii) any arrangements in force and any measures taken by the employer to eliminate or reduce the significant risks to health and safety identified; and

(c) to bring the statements and any revisions of them to the notice of the employer's employees.

(4)       The statements required by paragraph (3) and any revisions of them shall be prepared in a language, or if necessary in more than one language, in which they will be understood by each of the employer's employees."

16.      The common law duties of an employer are similar to those imposed by the 1989 Law.  Thus an employer is under a duty to provide safe equipment, a safe system of work and to provide adequate training and supervision in connection with such a system of work.

17.      Applying those duties to the present case, it seems to us that the following matters arise for decision:-

(i)        If only the belt with pouches (not including the holster) were available for carrying the tools (i.e. the smop, blades and cloths) up and down the ladder to and from first floor windows, did the defendant provide safe equipment?  If not, did the defendant in fact make holsters available?

(ii)       If the provision of the belt and pouches amounted to the provision of safe equipment, was adequate training given so as to ensure a safe system of work, by instructing that the tools were to be placed in the pouches, not carried in a hand, so that both hands would be free to hold on to the ladder when ascending or descending?

(iii)      If adequate training to this effect was given, did the defendant provide adequate supervision and monitoring so as to ensure, so far as reasonably practicable, that such safe system of work (i.e. placing the tools in the pouches and using both hands to ascend and descend the ladder) was in fact implemented?

(iv)      If there was a breach of any of its duties by the defendant, did the plaintiff's conduct in holding the smop and blade in one hand when ascending and descending the ladder, so that both hands could not hold on to the ladder, constitute contributory negligence?

The evidence

18.      We next summarise the evidence which we consider material to the issues which we have to resolve.

(i) The plaintiff

19.      The plaintiff made two witness statements dated 30^th August, 2018, and 26^th April, 2019, respectively, which were admitted as his evidence.  He also gave oral evidence in chief and was cross-examined. 

20.      In his statements, he explained that his work for the defendant was essentially the same as he had been doing for Mr Baptista.  The difference was that Mr Baptista supplied a holster as well as the belt and pouches.  When working for Mr Baptista, the plaintiff would therefore put the blade and the smop in the holster when going up and down the ladder.  He said that this was an advantage, as it meant that one could use both hands to go up and down the ladder. The defendant, on the other hand, only supplied the belt and pouches. 

21.      The plaintiff said that, although it was just about possible to put the smop and the blade in one of the pouches, they were not designed to hold them.  Although the small blade would fit comfortably into the pouch, the smop and the blade were broader than the width of the pouch and accordingly could only be inserted at an angle so that part of each stuck out, as the pouch was neither wide nor deep enough to hold the blade or the smop in any other way.  In his opinion, there was a risk that they would fall out of the pouch and either be damaged or hit the person footing the ladder as they fell.  There was also a risk of any cloth in the pouch becoming tangled with the blade and / or smop.  A further reason for not putting the smop into the pouches was that, as it had just been put in soapy water, it would make the cloths wet.  It was important to keep wet items separate from the dry ones.

22.      It was not therefore his practice when working for the defendant, to put the smop and the blade in the pouches.  He would hold the smop and the blade in his left hand as he went up and down the ladder, and indeed that was what he was doing on the day of the accident.

23.      He said that Mr de Jesus and Mr da Silva saw him going up and down the ladder carrying the smop and the blade in his hand and neither of them said anything.  On the contrary, Mr de Jesus routinely did the same and was seen to do so by Mr da Silva.  The plaintiff said he had also seen Mr da Silva ascend and descend the ladder with the smop and blade in his hand.

24.      As to training, he said that he had not had any formal training, such as courses or instructions from third parties, on the use of ladders or any other aspect of his work, but Mr da Silva did provide instructions and commented on particular situations which might be particularly risky, for example as to the position of the ladder. 

25.      His oral evidence was broadly consistent with his witness statements.  He denied that he had been told by Mr da Silva of the existence of the health and safety documents in the van, nor had he ever seen any such documents in the van.  He could not read English.  He also denied that there was a holster available in the van if he had wanted to use it.  He said that, during the course of the six weeks that he had worked for the defendant, Mr da Silva had come to the sites where he and Mr de Jesus were working some 20-30 times, although he had not been counting.  Sometimes Mr da Silva would come more than once a day, other days not at all.  He came to train sometimes but on other occasions he simply came to help on bigger jobs. 

26.      He said that if Mr da Silva saw him doing something wrong, Mr da Silva would tell him to change what he was doing.  Mr da Silva instructed him that the ladder must always be footed and also taught him about the safe positioning of the ladder.  However, Mr da Silva did not say anything about always placing the tools in the pouches or keeping his hands free as he climbed and descended the ladder.

27.      The plaintiff maintained that it was not safe to put the smop and the blade in a pouch because of the risk of their falling out.  There was a further risk that pulling a cloth out might cause one or more of the smop or blade to fall out and hit someone.  However, he accepted that he was not aware of this having occurred.  He repeated that, while working for the defendant, he invariably carried the tools up the ladder in his hand and Mr da Silva had never remonstrated with him about this when visiting the site.  All of the training and instructions which Mr da Silva gave him were given orally and in Portuguese.  He denied, as stated by Mr da Silva, there had been an occasion when he was not wearing a belt and had to be told to go back to the van to put on the belt.  He said that as a result of working for Mr Baptista, he knew how to clean windows and how to use ladders and the relevant equipment.  Mr da Silva would sometimes use the ladder when he came to the site and he repeated that Mr da Silva would climb the ladder with the tools in his hand.  There were only two belts and Mr da Silva did not have one, so he (Mr da Silva) went up holding the tools in his hand.  He and Mr de Jesus did both tasks, i.e. sometimes he would foot the ladder and sometimes he would ascend the ladder to do the cleaning with Mr de Jesus doing the other task.  He never asked Mr da Silva about holsters nor did he tell Mr da Silva that he would prefer to use one.

(ii) Mr de Jesus

28.      The Court was provided with three statements from Mr de Jesus.  His first statement is dated 10^th September, 2018, and was given to the plaintiff's advocates; the second is dated 3^rd April, 2019, and was given to the defendant's advocates; and the third is dated 21^st September, 2020, which he gave to the plaintiff's advocates a few days before the hearing.  Mr de Jesus was also called by the plaintiff to give oral evidence.

29.      He confirmed that he arranged for the plaintiff to come to Jersey and work for Mr Baptista and that he also suggested the plaintiff's name to Mr da Silva, leading to the plaintiff's employment with the defendant.  Mr de Jesus himself was employed by the defendant from May 2017 until February 2020.  It was his first job with a cleaning company.

30.      His first statement was comparatively brief and essentially dealt with the accident.  He confirmed that he was footing the ladder but had not seen how the plaintiff had fallen because the sun was in his eyes if he looked up, so he was not looking up at the time. 

31.      The key evidence from his second statement was as follows:-

(i)        He confirmed that he was aware of the company's health and safety policy and knew the documents containing it to be kept in the vans.  He had seen them there in a kind of folder and believed the documents were always in the van.

(ii)       In relation to training, he said that Mr da Silva regularly came along on jobs and always showed employees what to do by demonstration.  He confirmed that Mr da Silva always had 'maximum security' on showing his employees how to use the equipment.  He further confirmed that when the plaintiff began his employment with the company, Mr da Silva came along on numerous jobs with Mr de Jesus and the plaintiff and was providing demonstrations as to how to carry out the jobs and how to use the equipment.

(iii)      In relation to the equipment, he said this at paragraph 9:-

"I have been asked about the belts that we use when cleaning windows from ladders.  I always use the belts, which I would describe as having pockets in them for us to keep the equipment we use, so that our hands are free when going up and down the ladder.  I have been asked what goes in the belts and I can confirm that the pockets in the belts hold all of the equipment that we use, including tools and cloths.  I have never had a problem with the belts and can always fit the equipment I need to use in them."

(iv)      He said that he did not really want to answer the question of whether the plaintiff had ever been rude about Mr da Silva.  He said that he did not recall an incident when Mr da Silva had noticed that the plaintiff was about to go up a ladder without wearing the belt and told the plaintiff to go back to the van to get the belt.  He was not saying that it had never happened but he did not recall it.

32.      His third statement, made after he had left the defendant's employment, was very different in certain material respects.

(i)        As to the health and safety policy, he said that he recalled there were papers in the van but he did not know what they were and Mr da Silva had never told him what the documents were or recommended that he read them.  He did not know in what language they were written.

(ii)       As to training, he said that Mr da Silva occasionally gave them oral instructions, for example as to not placing the ladder on wet wood or on slippery surfaces and to put the ladder up on even surfaces, but he had never received specific instructions from Mr da Silva about the need for one of the team to foot the ladder while the other was cleaning the windows.

(iii)      Dealing with the equipment, he said he would normally carry a wet cloth in the right pouch and a dry cloth in the left pouch.  Although it was possible to put the blade and the smop in the pouches, this was not ideal as they were not secure.  As a result, he sometimes carried the blade and the smop in his hand as he went up the ladder to clean windows.  He said that this was witnessed by Mr da Silva, who never recommended at any point that he should not use that method of work and did not tell him or, so far as he was aware, anyone else off for doing so.

(iv)      He said that no holsters were available at the time of the accident or at any time whilst the plaintiff was working for the company.  The holsters were only placed in the van after the accident.  They were new and had not been in use within the company prior to the accident.

33.      In his oral evidence, he confirmed that he and the plaintiff were friends, that they lived in the same building, and that their wives were close friends.  He denied however that they had ever spoken about the case between April 2019 and September 2020, i.e. the dates of his second and third statements.  Somewhat confusingly, he said that all of his statements were true.  Given some of the key differences, this could not be correct. 

34.      His oral evidence was broadly in accordance with the third statement.  We would summarise the key aspects of his oral evidence as follows:-

(i)        He said that Mr da Silva 'had care' for his employees. 

(ii)       He agreed that Mr da Silva came to where he and the plaintiff were working some 20-30 times in the 6 weeks that the plaintiff was employed by the defendant and would tell them how to do things.  He told them how to use the ladder safely, for example, in relation to slippery surfaces.

(iii)      He said that it was only since the accident that Mr da Silva had instructed him to keep his hands free when climbing the ladder and not to carry any tools in one hand.  He had not been instructed about this before the accident. 

(iv)      Although he had said in his third statement that Mr da Silva had on occasion seen him or the plaintiff carrying tools in one hand when climbing the ladder without saying anything, he asserted for the first time in oral evidence that he had also sometimes seen Mr da Silva himself do the same thing. 

(v)       He conceded that the assertion in paragraph 9 of his third statement that "I never received specific instructions from [Mr da Silva] for one of the team to hold the ladder while the other was standing on it cleaning windows" was not correct.  Mr da Silva did instruct him about the importance of footing the ladder.

(iii) Mr da Silva

35.      Mr da Silva is the owner of the defendant.  He formed the company in 1994.  It employs some twenty-eight people, some part-time and others full-time.  Although he is the owner, Mr da Silva carries out cleaning work himself and regularly attends jobs with his employees.  The company carries out a general range of cleaning services including window cleaning.

36.      Mr da Silva provided a witness statement dated 2^nd December 2019 and also gave oral evidence.  We would summarise the key aspects of his evidence as follows.

37.      In his witness statement he confirmed that he employed the plaintiff on the recommendation of Mr de Jesus and paired the plaintiff with Mr de Jesus as he knew they were friends.  He said that until this claim, there had never been any instances of work related injury and the company had a perfect health and safety record.  He said that he takes the health and safety of his employees very seriously.  There is a comprehensive health and safety policy in place and method statements for all work types.  Copies of the Risk Assessment and the Method Statement are kept in each of the company's vans and employees are advised of this.  The documents are in English but he personally carries out 'on the job' training with each new employee for several working days, over a period of several weeks.  The training involves not only practical demonstrations of safe and effective cleaning methods, including working up ladders, but also descriptions and explanations of the importance of safe working techniques and practices and warning of potential hazards and dangers.  He provided this training to the plaintiff, as he did with all other new employees.  In particular, as part of the training, he emphasised the importance of ensuring that hands are free at all times when ascending or descending a ladder.

38.      As to equipment, as well as the belt with pouches, each van had a holster which could be added to the belt.  So far as he was concerned it was a matter of choice for the employee whether to use the holster or the pouches to transport the tools up and down the ladder.  There was no difficulty in fitting the blade and the smop into a pouch, and in all his years of working in the industry, he had never known any of the tools to fall out or become dislodged from a pouch.  He said that his own preference was to use the belt with pouches rather than the holster, but he was content to respect the personal preferences of his employees in that regard and both items of equipment were made available for use at their discretion.  The belt with pouches was an industry standard piece of equipment.  He said there was one occasion when, on visiting a site, he saw the plaintiff about to climb a ladder whilst holding a blade in his hand.  The plaintiff had placed the cloths in his own pockets and appeared not to have taken out the belt with pouches from the van.  Mr da Silva said that, as soon as he noticed this, he instructed the plaintiff not to use a ladder whilst holding equipment in his hand and to go back to the van and get the belt in order to use that to hold equipment.  He says that, immediately following his intervention, the plaintiff made offensive remarks about him in Portuguese, which Mr da Silva overheard.

39.      His oral evidence was for the most part consistent with his written statement.  He emphasised that he had been working in the business for some twenty-eight years and had never had a problem with items falling out of a pouch.  He gave us a demonstration of putting the items in the pouches and taking them out again and it was clear that this was a process which was very familiar to him and which he was able to undertake with consummate ease.  He said that he carries his own set of equipment, including belt and pouches, in his van and would visit various sites, sometimes for training purposes and sometimes to assist with work. 

40.      As to the health and safety documents, he agreed that all his employees were Portuguese, that some spoke little English and that the health and safety documents in the vans were in English.  However, he said that he went through the health and safety policies and explained things orally in Portuguese to new employees, including the plaintiff.

41.      He said that holsters were available in the vans and, contrary to what he had said in his witness statement, he instructed his employees to use a holster when washing windows at first floor level using a ladder.  He did not leave it to their choice. 

42.      He denied going up the ladder himself in the presence of the plaintiff and Mr de Jesus carrying the tools in his hand rather than in the pouch.  He said he had to set an example to them and use the ladder correctly.  He said that, when he did attend, it was rare for him to go up the ladder; it was mostly the plaintiff and Mr de Jesus who would do that.  He would normally work on the ground floor. 

(iv) Expert witnesses

43.      As it transpired, there was little difference between the experts on the matters relevant to the determination of this case.  We can therefore be brief.  The plaintiff's expert was Mrs Lee McGurty.  She prepared a report dated 13^th February 2020, a joint statement with Mr David Shorrock, the expert engaged by the defendant, and gave oral evidence.  Mr Shorrock prepared a report dated 5^th December 2019, signed the joint statement, and also gave oral evidence.

44.      As to equipment, Mr Shorrock was of the opinion that tools may be held more securely in a holster than in a pouch, whilst Mrs McGurty was of the view that they would be held more securely in a holster.  However, both considered that the risk of tools falling from a pouch was low and that use of the belt and pouches is a perfectly acceptable and safe method for transporting the relevant tools up and down a ladder, so as to ensure that both hands could be free as the employee climbed up and down the ladder. 

45.      As to the health and safety documents, both experts agreed that there were gaps in the documents but these were not causative of the accident.  The documents did contain the key recommendation in this case.  Thus point 7 under the heading 'Work at height' in the Risk Assessment said:-

"Always use the tools bag provided by the employer, regardless of which height you are working at.  This ensures that you follow the three point safety recommendations that you always have either 1 hand and 2 feet on the ladder, or 2 hands and 1 foot."

This accorded with the guidance offered by the Health and Safety Executive in England and Wales under the heading "Safe use of ladders and step ladders" which, whilst not technically binding in Jersey, contained advice and on page 3 had two bullet points:-

"*        Avoid holding items when climbing (consider using a tool belt)

*         Maintain three points of contact when climbing...."

46.      Given that it was common ground that the plaintiff was not taken through the Risk Assessment and Method Statement itself, which was written in English, the key issue was whether the above message had been adequately communicated orally to the plaintiff as part of his training.

Analysis of witness evidence

47.      We start with Mr de Jesus.  We have come to the conclusion that we can place no weight on his evidence save where it is uncontentious.  He is a friend of the plaintiff, their wives are close friends and they live in the same building.  At the time of his first and second statements, he was employed by the defendant, but by the time of the third statement, he had left the defendant's employment.

48.      His second and third statements are completely opposed in certain respects despite his oral evidence that all his statements were true.  Thus, in the second statement, as described above, he says that he always used the belt with pouches, so that his hands were free when going up and down the ladder, and there was no problem in fitting in all the equipment which he needed.  His third statement is completely different.  He now says that there was a problem in putting all the tools into the pouch because they were not secure and that, as a result, he sometimes carried the smop and the blade in his hand as he went up the ladder.  He further stated for the first time that this was witnessed by Mr da Silva without adverse comment.  In his oral evidence, he went even further and said for the first time - bearing in mind that his third statement was made as recently as 21^st September 2020 - that not only had Mr da Silva said nothing when he saw Mr de Jesus climbing the ladder with tools in his hand but that he, Mr da Silva, had done the same thing.

49.      As we say, given his conflicting accounts, his conflicting loyalties and the inconsistencies in his evidence, we do not consider that we can place any reliance on his evidence save where it is not in dispute.

50.      That means that we are left only with the evidence of the plaintiff on the one hand and Mr da Silva on the other.  It was not easy to assess their evidence.  The plaintiff gave his evidence entirely through an interpreter and Mr da Silva gave key parts of his evidence through an interpreter.  We had some reservations about the evidence of both.

51.      Thus, although the plaintiff was broadly consistent in what he said, we felt that he was inclined to embellish if he thought it would assist his case.  For example, he asserted that there were only two belts and that Mr da Silva did not have one when he came to assist, with the result that he (Mr da Silva) would climb the ladder with tools in his hand.  We conclude that this was said by the plaintiff to try and buttress his evidence that Mr da Silva climbed a ladder on occasions with tools in his hand, but we do not accept that Mr da Silva did not carry a belt with pouches in his van.  We accept that, as he told us, he travels round to various sites where his employees are working and sometimes assists them in cleaning.  He said that he has his own belt with pouches in the van which he can use when he needs to assist others and we have no doubt that that is true.  It would be astonishing if this experienced window cleaner did not have his own belt with pouches and other necessary equipment so that he could work as necessary on any site he visited. 

52.      However, we also have concerns about Mr da Silva's evidence.  Thus, despite a very clear allegation from the first letter sent by Advocate Tremoceiro back in August 2018 and in the plaintiff's first and second statements that no holsters were supplied or made available by the defendant, Mr da Silva only responded to this allegation when the question was specifically raised by Advocate Tremoceiro in his email of 2^nd May 2019.  When a response was forthcoming, it was absolutely clear in the reply email of 3^rd May, the Answer at para 11(d) and Mr da Silva's statement (at paras 24 and 25) that it was his case that it was entirely a matter of choice for his employees as to whether they used the holsters (which he said were available in the van) or the pouches.  Yet, in his oral evidence, for the first time, he said that it was not a matter of choice; on the contrary he had instructed his employees to use the holster.  We felt that this was an effort on his part to, as he saw it, improve his position as an employer who would provide the best possible equipment.

53.      Against a background where, because we cannot place any weight on the evidence of Mr de Jesus, we are essentially left with the word of the plaintiff against the word of Mr da Silva, we turn to express our conclusions.

Discussion

(i) Provision of safe equipment

54.      We proceed on the assumption that the only equipment provided by the defendant for carrying the tools up and down the ladder was the belt with pouches and that a holster was not available. 

55.      We have no difficulty in concluding that the belt with pouches constituted safe equipment for the purposes of carrying the smop, blade and cloths up and down a ladder for the purposes of cleaning a first floor window.  Both experts were agreed that this was so.  As the plaintiff's expert, Mrs McGurty, put it in answer to a specific question, she would not have been concerned if she saw a window cleaner using pouches only i.e. no holster.

56.      The plaintiff expressed concern that the tools might fall out of a pouch because they stuck out and did not wholly fit within the pouch.  That was why he carried the tools in his hand; he thought it was safer.  However, he had to accept that he was not aware of this having happened.  Similarly, his concern that putting the smop in the pouch might wet the cloths does not find support in any of the evidence and, in any event, would not result in the pouches amounting to unsafe equipment. 

57.      During his closing submission, Advocate Tremoceiro very realistically conceded that, if the Court accepted the evidence of the experts on this point, the allegation of breach of duty by failing to provide safe equipment would fall away.  We do accept the expert evidence and accordingly find that there was no breach by the defendant of its duty by to provide safe equipment for cleaning first floor windows.  In the circumstances, it is not necessary for us to determine whether or not a holster was in fact available in the van.

(ii) and (iii) Training and implementation of a safe system of work

58.      We find that a safe system of work for cleaning first floor windows with the use of a ladder requires that the employee in question should climb and descend the ladder with his hands free, so that he can grip the ladder with both hands.  It is not a safe system of work for the employee to climb or descend a ladder holding the smop and blade in one hand so that, as the plaintiff said, that hand can be a form of guide but cannot provide any real support.  We find that the plaintiff would probably not have fallen in this case had both hands been free as, when his foot slipped, he would in all probability have been able to recover the position because both hands would have been gripping the ladder.  Because only one hand was gripping the ladder, he was unable to recover and therefore fell to the ground. 

59.      Our finding that a safe system requires both hands to be free is consistent with the content of the Risk Assessment prepared by the defendant, and with the guidance issued by the HSE in England and Wales; it is also common sense.

60.      It follows that it was the duty of the defendant as employer to provide training to the effect that such a system must be used and to provide adequate monitoring and supervision in order to ensure, so far as practicable, that such a safe system was in fact implemented and followed.

61.      As to whether adequate training and implementation was provided, having discounted the evidence of Mr de Jesus, we are to a substantial extent left with a choice between the evidence of the plaintiff and the evidence of Mr da Silva.  In this respect, as already mentioned, we have some reservations about the evidence of each of them, but we remind ourselves that, just because a person has lied or embellished his evidence in one respect, that does not mean that all of his evidence is untrue, although clearly it is something to be taken into account.  A person may lie about a particular aspect but be telling the truth about other aspects.  We accordingly have to decide who, on the balance of probabilities, is to be believed on the key matters which we have to decide.

62.      As to training, we prefer the evidence of Mr da Silva and find that he did instruct the plaintiff orally in Portuguese about the importance of keeping his hands free when ascending and descending a ladder and the corresponding need to place the tools in the pouches.  We noted that, in his oral evidence, Mr de Jesus volunteered that Mr da Silva 'had care for all his workers'.  Given that in his oral evidence generally, Mr de Jesus was clearly seeking to assist the plaintiff as far as possible, we find that we can place reliance on this observation of his. It also accords with our impression of Mr da Silva when he gave evidence and with the fact that his company has apparently never before suffered any injury at work.  We conclude that Mr da Silva is an employer who takes his health and safety responsibilities seriously and that he would seek to provide training even to those, like the plaintiff, who had previous experience of window cleaning. The plaintiff (and Mr de Jesus for what it is worth) accepts that Mr da Silva gave instructions about how to place a ladder safely and the need always to have it footed.  It is hard to see why Mr da Silva would be meticulous about giving training and instruction about these aspects but ignore altogether the equally important aspect of keeping hands free when using a ladder.  We conclude that he sought to explain orally in Portuguese the key messages set out in the Method Statement and Risk Assessment, and that this would have included the section of the Risk Assessment dealing with putting tools in the pouches provided by the employer set out in paragraph 45 above and the need to keep both hands free when ascending and descending a ladder.

63.      We conclude therefore that the defendant did not breach its duty by failing to provide adequate training and instruction. 

64.      We also accept the evidence of Mr da Silva that he did not climb ladders in the presence of the plaintiff holding tools in his hand, and we reject the plaintiff's evidence to the contrary.  First, we find it to be inherently unlikely.  It would be contrary to the guidance in the Risk Assessment.  Would Mr da Silva, who is proud of his lack of previous work accidents, really ignore the guidance himself and send a message to his employees that keeping hands free on a ladder really did not matter?  We think not.

65.      Secondly, the demonstration which Mr da Silva gave in Court showed that he was totally familiar with the process of inserting and extracting the various tools from a pouch and could do so with consummate ease.  That was hardly surprising given his ownership of a cleaning business for such a lengthy period.  Given the ease which with he could use the pouch and the tools, there seems little reason for him to choose not to use the pouches on any occasion, let alone in the presence of his employees. 

66.      Thirdly, even in Mr de Jesus' third statement, which was clearly intended to be helpful to the plaintiff, whilst asserting that he (Mr de Jesus) had climbed ladders holding the tools in his hand, he made no mention of having seen Mr da Silva do the same.  This only came out for the first time in his oral evidence.  Far from supporting the plaintiff's evidence, we consider that his failure to mention it in his supposedly helpful third statement casts doubt on the truth of the plaintiff's evidence in this respect.

67.      However, we find that Mr da Silva did witness the plaintiff using the ladder with the tools in his hand rather than in the pouch and did not take steps to put an end to this practice.  It is clear from the plaintiff's evidence that he invariably carried the tools in his hand because he was of the opinion that it was safer and that there was also a risk of his cloths getting wet if the smop was put in the pouch.  Given that it is common ground that Mr da Silva visited the site where the plaintiff and Mr de Jesus were working on a very regular basis during the 6 weeks the plaintiff was employed (some 20-30 times according to the plaintiff), we find it impossible to believe that Mr da Silva did not observe the plaintiff using the ladder whilst holding the tools in his hand on a regular basis.  Mr da Silva mentioned one occasion when he says he reprimanded the plaintiff because the plaintiff was not even wearing the belt, but we find it hard to accept that the plaintiff would not be wearing a belt even if he was not using it to put the smop and the blade in the pouches.  We can only speculate as to why Mr da Silva acted in this way.  But he no doubt considered the plaintiff to be an experienced window cleaner who could be expected to take care of himself, and our impression of the plaintiff was that he is a strong character and Mr da Silva may have opted for a peaceful life rather than provoke a confrontation with someone who clearly believed that climbing the ladder with tools in his hand was the best way of working.

68.      We find that Mr da Silva saw the plaintiff carrying the tools in his hand on visits to the site, but for whatever reason, took no adequate steps to bring that practice to an end.  We find therefore that the defendant was in breach of its duty to maintain a safe system of work by taking reasonably practical steps to ensure its implementation.

69.      In summary therefore, we find the defendant not to be in breach of its duty to provide adequate training, but we find it to be in breach of its duty to maintain a safe system of work by adequate monitoring and supervision so as to ensure, so far as reasonably practicable, that such system of work was implemented in practice.

70.      Before leaving this aspect, we should address one argument raised by Advocate Tremoceiro.  As set out at paragraph 15 above, Article 3(4) of the 1989 Law provides that the health and safety documents referred to in Article 3(3) must be prepared in a language, or if necessary, more than one language, in which they will be understood by each of the employer's employees.  Mr da Silva confirmed that all of the employees of the defendant are Portuguese and many of them do not speak or read English.  It follows that the defendant was in breach of Article 3(4) by not preparing Portuguese versions of the Risk Assessment and Method Statement.  If it has not already been done, Portuguese versions should be prepared forthwith and the defendant could at the same time revise the documents as necessary to take account of some of the gaps identified by the experts in this case.

71.      However, a breach of the statutory duties imposed under the 1989 Law is only relevant to a claim if it is causative of the accident.  That is not the case here.  The issue is whether the relevant matters in the Risk Assessment and Method Statement - in particular the need to keep hands free when climbing a ladder - were brought to the plaintiff's attention.  If those matters were communicated orally in Portuguese to the plaintiff, the failure to have a Portuguese translation of the written document will have played no part in the accident.  We have held that Mr da Silva did orally communicate these matters to the plaintiff and it follows that the breach of Article 3(4) was irrelevant to the accident.

(iv) Contributory negligence

72.      Having found that the defendant was in breach of its duty to provide adequate monitoring and supervision so as to ensure, so far as practicable, the implementation of a safe system of work, we must consider the plea of contributory negligence raised by the defendant. 

73.      A convenient summary of the law in relation to contributory negligence is to be found in the judgment of the Royal Court (Commissioner Clyde-Smith) in Morley v Reed [2012] JRC 127A where the court said this at paragraphs 37-42:-

"37. Turning to contributory negligence, Article 4(1) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960 provides as follows:-

"Where any person suffers damage as the result partly of the person's 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."

38. Fault is defined by Article 4(9) to mean any:-

"...wrongful act (faute), negligence (négligence) lack of skill (impéritie), breach of statutory duty or other act or omission which gives rise to liability in damages or would, apart from this Article, give rise to the defence of contributory negligence."

39. These provisions enable the Court to reduce the damages in proportion to the degree of responsibility for the accident; and the Court may take into account not only the share of each party in causing the accident, but also the degree of blameworthiness (see Louis-v-Troy and others (1970) JJ 1371 at 1404).

40. In Hacquoil-v-Troy & Sons and Harbours and Airport Committee (1970) JJ 1305, the Court referred (at 1333-1334) to Halsbury's Laws of England (Third Edition) to define the test to be applied:-

"...the test to be applied is whether the defendant's negligence was nevertheless a direct and effective cause of the misfortune. The existence of contributory negligence does not depend on any duty owed by the injured party sued and all that is necessary to establish a plea of contributory negligence is to prove that the injured party did not in his own interest take reasonable care of himself and contributed by this want of care to his own injury.

The standard of care depends upon foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself."

41. In Jones-v-Livox Quarries (1952) 2 QB 608 it was established that contributory negligence does not require a plaintiff to reasonably foresee the particular risk to which he succumbs but only that a plaintiff should foresee the general risk.

42. The Court of Appeal in Jersey Post-v-Chartier [2007] JLR 187 at 196 held that:-

"It is obviously logically impossible for the court making the deduction to do so with mathematical precision. In truth, it is really a matter of impression, the court looking at the conduct of the claimant and of the other person or persons and doing the best it can to be fair. The phrase "just and equitable" is suggestive of a discretion and, as in the case of the exercise of a discretion vested in a lower court, an appellate court should be slow to interfere."

74.      In our judgment, there must be a finding of contributory negligence.  This was not a case of momentary inattention.  As he said in his evidence, the plaintiff deliberately followed the course of not using the pouches.  Instead, his practice was to climb and descend the ladder with the smop and blade in his hand, and he had been following this course of action all the time that he was employed by the defendant.  He did so because of his opinion that it was safer than using the pouches.  On our finding, he was thereby in breach of the instruction and training which he had been given. 

75.      Furthermore, it is in our judgment a matter of common sense that climbing and descending a ladder whilst holding tools, so as to be unable to grip the ladder, will greatly increase the risk of falling should the person's foot slip on the ladder.  Indeed the plaintiff appears to have been aware of the importance of keeping his hands free because he said that one of the advantages of the holster was that it meant one could use both hands to go up and down the ladder.  In our judgment, he failed to take reasonable care of himself and contributed to the accident by this want of care.

76.      As against that, we have found that the defendant was aware that the plaintiff was ignoring the training and behaving in this manner but did not take adequate steps to ensure, so far as reasonably practicable, that the plaintiff followed a safe system of work.

77.      Balancing these matters, we find that the plaintiff's responsibility for the accident should be assessed at 40%.

Summary of conclusions

78.      In summary we find as follows:-

(i)        The defendant was not in breach of its duty to provide adequate training.

(ii)       The defendant was in breach of its duty to implement a safe system of work and is therefore liable to the plaintiff.

(iii)      The plaintiff was contributorily negligent to the extent of 40%.

Authorities

Health and Safety at Work (Jersey) Law 1989.

Morley v Reed [2012] JRC 127A.