By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

BAHAMAS Ferries Limited has been absolved of a Supreme Court order to pay a woman $10,000 in damages because she slipped and fell on a rain-soaked deck of one of its vessels six years ago.

The Court of Appeal set aside the previous court order for Bahamas Ferries to pay Charlene Rahming for the injuries she suffered when she slipped and fell while boarding the Seawind in August 2013.

And though expressing "much reluctance" in reversing the decision, the appellate court said Ms Rahming must now pay all legal costs associated with both the appeal process and the trial in the Supreme Court.

According to the ruling, on or about August 9, 2013, Ms Rahming was due to travel from Fresh Creek, Andros to Potter's Cay Dock in New Providence.

It had started raining when she attempted to board the Seawind and the deck had become wet and slippery. The evidence was that she waited for about 30 minutes before the Seawind's crew members invited her to start boarding.

While alighting from the ramp to the boat's deck, Ms Rahming slipped and fell, injuring her right leg in the process. According to the ruling, Ms Rahming fell "even with the assistance of a crew member".

Ms Rahming consequently sued Bahamas Ferries for negligence, asserting the accident was caused by its breach of the duty of care it owed her as a passenger.

To be more specific, she asserted the company failed to warn her the boat was wet; failed to place any warning signs on deck; failed to place a mat on the deck; failed to instruct its employees, servants or agents to dry the deck; and failed to instal any adequate safety mechanisms in the event the deck would get wet.

At the time, the trial judge found Bahamas Ferries was in fact in breach of its duty of care. The judge said while it appeared "unreasonable and unrealistic" to have expected the Seawind's crew to place warning signs and mats on deck and "mop constantly during a downpour of heavy rain", the company could have "delayed the boarding of passengers until the rain had subsided and to mop the deck thereafter to ensure safety to all passengers".

The trial judge also said the fact other passengers boarded the boat without falling was "neither here or there". Instead, the judge said Seawind was apparently "in a haste to depart on time" since its crew was "inviting members to accelerate their pace" of boarding.

As a result, the trial judge attributed "full negligence" to Bahamas Ferries, stressing that "as boat owners, they ought to exercise reasonable care to prevent injuries to passengers".

Bahamas Ferries appealed the decision on 19 grounds.

The appellate judges said in their judgement, the trial judge was correct to find Bahamas Ferries was under a "duty at common law to take reasonable care to prevent injuries" to Ms Rahming.

However, the appellate judges said the "real difficulty" in the trial judge's decision is her finding of negligence was not one that was pleaded by Ms Rahming.

Thus, the appellate judges said the trial judge rejected Ms Rahming's claims of negligence, and instead "founded liability" on a ground that was not pleaded in her statement of claim.

And that, the appellate judges said, was "not proper and manifestly unfair" to Bahamas Ferries.

"There was no assertion that it was negligent in failing to delay boarding because of the rain," the appellate judges said. "If that had been the case (Bahamas Ferries) may have been able to lead evidence explaining why it did not delay further the boarding process or stop (Ms Rahming) from attempting to board.

Concerning Ms Rahming's evidence at trial that it was raining when she got to the boat and had waited for some 30 minutes before being invited to board, the appellate judges said: "On that evidence (Bahamas Ferries) had in fact delayed the (Ms Rahming's) boarding for a period of time.

"There was no evidential basis for the finding that (Ms Rahming's) boarding at that time was unreasonable or that the appellant was negligent in not delaying the boarding further.

"The mere fact that a passenger is permitted to board a vessel whilst it is raining is not by itself evidence of negligence," the appellate judges added. "There could of course have been reasons why the boarding was not delayed further. But given that there was not that plea of negligence, (Bahamas Ferries) could not be faulted for failing to lead that evidence at the trial."

Thus, the appellate judges unanimously allowed Bahamas Ferries appeal "because the manner in which the court found that the accident occurred was inconsistent with the pleaded case".