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Civil Aviation Authority of Fiji v Labour Officer [1993] FJHC 38; Hba0004j.88s (19 April 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. 4 OF 1988

BETWEEN:

THE CIVIL AVIATION AUTHORITY OF FIJI
Appellant
(Original Respondent)

AND

THE LABOUR OFFICER
for and on behalf of Raj Kumari (wife),
Ram Kuar (daughter), Rajendra Prasad
and Satendra Prasad (sons) of the deceased,
Jai Kirpal aka Hajara f/n Ram Harakh
of Ravua, Luvuluvu, Rewa.
Respondent
(Original Appellant)

Mr. G.P. Shankar: For the Appellant
Mr. S. Chandra: For the Respondent

Dates of Hearing: 24th October, 23rd December 1991,
10th February, 12th March 1993
Date of Judgment: 19th April 1993

JUDGMENT

This is an appeal from the decision of the Resident Magistrate I.V. Helu Mocelutu delivered on 11th December 1987 in Workmen's Compensation Case No. 1 of 1987 in the Magistrate's Court at Nausori. A claim for workmen's compensation had been made on behalf of the Respondent for the widow and dependants of the late Mr. Jai Kirpal who had been employed as a labourer by the Appellant until his death at work on 31st October 1986.

Shortly after 10.00 a.m. on that day after he had been carting rubbish Mr. Kirpal was having his morning tea when he collapsed and died. The cause of his death was stated to be Hypertensive Cardiovascular Disease with:

(1) Left Ventricular Hypertrophy;

(2) Myocardial Infarct;

(3) Nephrosclerosis of Kidneys.

Prior to his death Mr. Kirpal had been employed by the Appellant for approximately twenty-five years and, according to the evidence given to the Learned Magistrate, his work for three hours each day involved the loading of rubbish in plastic bags about three feet high into 44 gallon drums together with paper, stones, mud, cartons and catering tins containing food left over from aircraft.

Evidence was given that, with one other employee, at least twelve bags had to be loaded into each 44 gallon drum after which they were taken by a trailer hauled by a tractor a distance of ten chains to a rubbish dump.

On the day of his death Mr. Kirpal and his colleague had packed and lifted about five drums and twelve plastic bags together with loose rubbish consisting of small rubbish tins. This was typical work for the deceased each day.

The weather on 31st October 1986 was stated to be very hot.

Evidence was given that when Mr. Kirpal returned for his morning tea he was in a good mood, and following his practice started mixing yaqona and then went to a shed where he sat down. Some little time later the deceased's brother, who had gone to the toilet, returned to find Mr. Kirpal dead in the shed. His body was then taken to the Colonial War Memorial Hospital.

On 17th September 1986 the deceased had been examined by Dr. Sakiusa Mainawalala in the Colonial War Memorial Hospital who diagnosed him as suffering from severe hypertension.

Dr. Sakiusa certified Mr. Kirpal as not fit for work for one week and when he returned to work was given his normal duties which were not light as the Appellant stated in evidence that no light duties were available for labourers.

A letter from the Appellant to the Director of Management Services on 31st March 1987 had stated that after an employee such as Mr. Kirpal was certified by a Medical Officer as being unfit for work he was sent home until he was declared fit for duty.

This letter was tendered in evidence as was a letter dated 24th October 1986 from Mr. Kirpal, requesting the Appellant that he be allowed to retire from his employment as a labourer with the Appellant because, as he said, "I am a sickly person now and unable to continue my work". He also stated in his letter that he had already passed the "voluntary retirement" age.

I do not propose to discuss in detail the evidence given before the Learned Magistrate because I have come to the clear conclusion in this case that the appeal must be up-held and an order be made for a re-hearing for reasons which I shall state shortly. It suffices to say that evidence was given to the Magistrate that the late Mr. Kirpal's work would facilitate a heart attack in a person pre-disposed to it but there was other evidence which appears to suggest that a person such as Mr. Kirpal who suffered from heart disease could die in the natural course of the disease.

The Learned Magistrate in her judgment stated that on the day he died there was evidence that the deceased did not have any help in his work although normally he had such help.

She also stated that because Mr. Kirpal was a sickly man this would have caused him emotional stress besides subjecting him to further physical stress in delaying his retirement. She stated that in her view this would have aggravated his physical condition prior to his death at the age of 59 years.

She also found that his death had followed quickly upon physical stresses he had undertaken while at work on 31st October 1986 and that she was obliged to take into account evidence of a doctor from the Pathology Department of the hospital which was conclusive that this was the cause of death.

Accordingly she made an award of $12,000.00 compensation in accordance with Section 12 of the Workmen's Compensation Act, Cap. 94.

Three grounds of appeal have been given by the Appellant which I may summarise as follows:

(1) The decision was wrong in law.

(2) The Learned Magistrate failed to properly and adequately evaluate the evidence before the court, and failed to properly consider the Appellant's defence which was apparently that the deceased's work in no way contributed to his death.

(3) The Learned Magistrate failed to consider the burden of proof and failed to hold that the Respondent had not discharged that burden.

I have added the qualification to ground two only because in the record before this Court I can find no reference to any Defence being filed in the lower Court.

The Appellant criticises, correctly in my judgment, important parts of the record of the Court below and it is for this reason principally that I up-hold the appeal. This criticism is directed substantially at the record of the medical evidence taken by the Learned Magistrate and it appears mainly on pages 13 to 18 of the record.

I find much of the evidence there recorded unintelligible; for example, at the bottom of page 13 the last three sentences read:

"Corb verb - collection - all blocked - by athombus.

Dr. I put these:

Is it correct cardiovascular including cardiac death -

may occur or backfire."

At the top of page 14 there is this question and answer:

"Either in the natural background of the disease or with association of stress of same?

Yes, Death.

Pre-existing background of pre-existing cardiovascular disease?

Yes."

Then immediately following these extracts there is a series of some eight questions put to Dr. Singh in-chief to which no answers are recorded and where there are answers given I regret I do not understand them.

On page 15 an objection is taken presumably by counsel for the Appellant but neither the objection nor a ruling if one were given are recorded.

Further instances of the failure to record answers or intelligible answers to questions put to witnesses appear in the following pages and I do not propose to enumerate them. It is enough to say that I fail to understand how the Learned Magistrate could have made sufficient sense of them, as recorded, to enable her to reach any decision either for the Respondent or the Appellant on the medical evidence.

Whilst I appreciate and sympathise with the problems faced by any tribunal in recording technical evidence, such as in this case, if the tribunal is not familiar with the terminology used, nevertheless it is the duty of it to ensure that its record of the evidence is as accurate as possible.

I have little doubt that in this case the speed at which answers were given, particularly by the medical witnesses, was much faster than the Learned Magistrate was able to record. In such a situation a Court must request any witness who is speaking too quickly to slow down his rate of delivery; otherwise, as clearly happened here, the evidence as recorded conveys precisely nothing either to the parties or to an Appellate Court or, as I suspect even to the Learned Magistrate herself unless she was relying on her recollection of the evidence when she wrote her judgment.

There are other criticisms of the Learned Magistrate's judgment which compel me to conclude that it should not be allowed to stand, for example in the passages from the judgment I have previously quoted, it must be said that there was no evidence to suggest that the deceased had suffered any emotional stress as a result of his work which contributed to his death.

Likewise there is no evidence that the Pathologist Dr. Singh stated his opinion that the deceased's death was the conclusive cause of his death.

Criticism was made by the Learned Magistrate of the evidence of Dr. Sharma, a highly qualified Medical Practitioner called on behalf of the Appellant. This was that his evidence was "defence-serving with little concern for the need to assist the court". There is no evidence whatsoever to warrant such criticism and there is nothing in the evidence of Dr. Sharma as recorded to lead me to believe that he was biased in favour of the Appellant as the Magistrate's comments seem to infer.

In view of what I have said I find it unnecessary to refer to the numerous and well-known authorities which have been cited to me by the parties to the appeal. I would however make one final comment which it seems to me is justified from the Court record. This is that at least from the record it would seem that the medical witnesses called on behalf of the Respondent were not "proofed" before they gave evidence. The question which the Court had to answer was whether, on the day of his death, the deceased suffered an injury by accident which caused or contributed to his death or, to put it another way, whether his death was the natural result of the direct influence of his employment upon his physical condition. Thus at page 18 of the record there is this question and answer:

"Q. This person died of a heart attack?

A. As a result of long standing high blood pressure. It could be a cause."

Obviously the answer "it could be a cause" is not sufficient to justify a finding that death was caused by the deceased's work. I strongly suspect from that question and answer that no proof of evidence was taken from Dr. Singh for, if it had been, it would surely have been realised by the Respondent's representative that such an answer was insufficient to establish the Respondent's case.

For these reasons I up-hold the appeal and in accordance with Order XXXVII Rule 18 of the Magistrate's Court Rules I direct that this claim be re-heard in this Court on a date which I shall now fix. There will be no further orders.

JOHN E. BYRNE
JUDGE

HBA0004J.88S