A welder who has been in a wheelchair since a nasty fall at a construction site yesterday won a lawsuit against his former bosses.

Keith Simmons, 46, who fell off a third floor, overbalanced and fell down an open elevator shaft, now stands to receive a damages settlement of more than $250,000.

Puisne Judge the Hon. Mrs. Justice Wade ruled there was "no question'' former Marriott's Castle Harbour Resort contractors Swan Brothers and Forth-Ryco were negligent.

Simmons and lawyer Mr. David Kessaram are seeking more than a quarter million dollars in damages from the two firms whom the judge ruled must share the cost of damages once they are assessed.

But it appears welding and steel erector specialists Swan Bros. will have to pay most if not all of it because Forth-Ryco has gone out of business.

Mr. Kessaram is expecting $200,000 for pain and suffering endured by his client, who is now divorced and will never walk again.

Other damages, loss of earnings, medical care, having to make his home wheelchair accessible etcetera, will bring the settlement "well in excess'' of $250,000, he said.

The lawyer is hoping to reach an out-of-court settlement with the two firms as it did with Marriott International Services which hired the contractors in 1985 to develop the Tucker's Town hotel. Marriott gave an undisclosed cash settlement.

Mrs. Justice Wade in a 15-page judgment handed down yesterday found Swan Bros.

negligent of its responsibility for the safety of Simmons during his course of employment.

And she said there was no question Forth-Ryco had primary responsibility to cover the elevator shaft and/or install guard rails and toe boards.

Simmons had been working at the Marriott hotel site in September 1985 when the accident occurred as he was tidying up the job site on the third floor.

While stepping back to pick up his tape measure, he fell off a piece of loose steel decking and dropped nine feet to the floor below, where he landed on his feet, but he then lost his balance and fell through the open elevator shaft.

Simmons sued for negligence, claiming Swan Bros. failed to provide a safe work place and system, nor adequate training or supervision and that his boss failed to complain or inform Forth-Ryco of the absence of guard rails or a cover for the elevator shaft.

The two defendants contended Simmons' injuries were caused by his own negligence. He failed to take care, appreciate the danger of his work, and failed to keep a proper lookout for the presence of the loose piece of steel decking which he fell off, lawyer Mr. Arthur Hodgson argued. It had been "inappropriately'' placed by Simmons too close to the edge of the other decking. General contractors Forth-Ryco were unrepresented.

Negligence caused job site accident -- judge Mrs. Justice Wade noted Swan Bros. manager Mr. Vonosdelle Swan had said Simmons came to them "highly skilled'' and did not appear "careless''.

She said Marriott inspector Mr. William Laing had testified that in hindsight he felt the uncovered first-floor lift shaft was a danger.

The defendants' argument, she said, was simply that it was not "customary'' at the time of the accident for elevator shafts to be covered.

Mrs. Justice Wade found that a cover would have prevented the accident from occurring and it was negligent and made no sense for the employer not to have done so.

She found no evidence Simmons was "skylarking or disobeying'' his employers' order or regulations.

"Nothing the plaintiff did caused or contributed to his injuries and damages,'' she said.