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FACULTY OF LAW
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.
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
3. Does the claimant have a claim for damages although the incident happened during
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
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
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
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
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
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
Finally, it was a question if the defendant’s actions where the sole cause of his
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
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
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
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
‘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
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
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