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Fiji Sugar Corporation Ltd v Labour Officer [1995] FJHC 39; Hba0010j.94b (17 February 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO:0010 OF 1994

Between:

THE FIJI SUGAR CORPORATION LIMITED
Appellant

- a n d -

THE LABOUR OFFICER, for and on behalf
of BIBI HAZRA (wife) Najira Bibi
(daughter), Abdul Wahid Iqbal (son) and
Sabira Bi (daughter) of the deceased
ABDUL KADIR (s/o Abdul Kutti) of
Taginikula, Macuata.
Respondent

Mr. V.P. Ram for the Appellant
Mr. J. Udit for the Respondent

JUDGMENT

The Appellant/Original Respondent appeals against the judgment of the learned Magistrate given on 18 May 1994 in the Magistrate's Court, Labasa whereby he found for the Respondent/Original Applicant on the issue of liability and on the question of compensation to be paid with costs to be taxed if not agreed.

GROUNDS OF APPEAL

The Grounds of Appeal are as follows:-

"(a) That the Learned Magistrate erred in fact and in law in holding that ABDUL KADIR died as a result of personal injury by accident arising out of and in the course of his employment with the Respondent in terms of Section 5(1) of the Workmen's Compensation Act, Cap. 94.

(b) That the Learned Magistrate failed to have any proper regard to the evidence concerning the pre-existing heart condition of the deceased and that the deceased's employment with the Appellant/Respondent would not have caused contributed or accelerated the deceased's death.

(c) That the Learned Magistrate failed to have proper regard to the evidence adduced with respect to the deceased's employment with the Appellant / Respondent and that the said employment and/or work the deceased was engaged in could not have caused, contributed or accelerated the deceased's death.

(d) That the Learned Magistrate erred in finding that the death of the deceased was work related.

(e) That the decision of the Learned Magistrate was against the weight of the evidence and/or is unsupported by the weight of evidence.

(f) That the Learned Magistrate misapplied the requirements of the onus of proof applicable in Workmen's Compensation cases in civil actions".

THE FACTS AND FINDINGS

Briefly, the facts surrounding the case and some of the findings of the learned Magistrate are as follows as stated by him in his Judgment (page 13 et seq. of record):-

"The deceased ABDUL KADIR had been an employee of the Fiji Sugar Corporation since 1954 and had served the Corporation for about 34 years when he died on the 6th of April 1988. He had joined the corporation as a labourer and worked as such for 22 years and had been promoted to the position of headman/supervisor in 1978. He was in charge of six labourers in the maintenance of tramline group at Wainikoro sector. On 7/11/85 the deceased had been first admitted to hospital for chest pain and had been since on medication for his heart condition until he died. On 15/5/86 he had been readmitted to hospital and diagnosed with hypothyroidism. On 27/01/88 he had been again admitted to hospital for hypertension. On 20/03/88 the deceased suffered another heart attack and was readmitted to hospital where he was kept until his discharge on 26/03/88.

On 6/04/88 he was admitted to hospital again but died before he could be given any medical treatment .......................

The death certificate in respect of ABDUL KADIR states the cause of death as myocardial infarction ...........................

He used to work on the tramline and worked from 7.00a.m. up to 4.30p.m. After coming home from work he used to do work at home when he was fit but after falling ill he had confined himself to the FSC work. They had a small farm of cane and rice .............................

On the day of his death he had got up at 6.00a.m. and complained of a pain at the back and was brought to hospital. He was given an injection and was brought back home around 2.00p.m. He was alright for a short while and had his meal. As he had severe chest pain he was brought to hospital around 4.00p.m. For one hour there was no doctor available. Then a doctor came and took his name age and address. While this was being done the deceased had fallen forward. She screamed and on the doctor's advice gave him the tablet. The deceased was laid down but he got up and struggled. She was pushed out of the room. Later she was told that he had expired .........

Dr. Deo Narayan the Chief Medical Officer at the C.W.M. and Acting Consultant had attended to the deceased ABDUL KADIR. It was on the evening of 6/4/88. The patient was already dead and the cause of death was myocardial infarction. No post mortem examination had been performed as the cause of death was obvious. When the patients are well known to doctors post mortem are not performed .....................

In the circumstances I hold that the work ABDUL KADIR had been engaged at the time of his death and contributed to and accelerated his death.

The deceased seems to have been sick leave resting at home at the time of his death. But that fact does not break the nexus between his work and his death. For a workman's death to occur in the course of his employment, a workman does not have to die in harness literally. The death may occur while he is at work, or at home after he has returned home from work, or during the weekend or even when he was on leave. Hence ABDUL KADIR was on medical leave resting at home when his death occurred ...................."

Both counsel made comprehensive written submissions which I found very useful. I have given careful consideration to their arguments and will traverse the grounds in the manner hereafter appearing.

In considering this appeal, I have borne in mind the function of an appellate court on an appeal from the findings of the lower court. In the well-known and often quoted case of BENMAX v AUSTIN MOTOR CO. LTD (1955) AC 370 it was pointed out by the House of Lords that in appeals such as this it is necessary to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as has sometimes been said, between the perception and evaluation of facts. On this aspect LORD REID at p.376 said:-

"in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from the task, though it ought, of course, to give weight to his opinion".

I have also borne in mind the following words of LORD HALSBURY, L.C. in RIEKMANN v THIERRY (1896) 14 RPC 105 at p.116 which was cited in BENMAX (supra) at p.370:-

"The hearing upon appeal is a rehearing and I do not think there is any presumption that the judgment in the court below is right".

And later in the same speech he said (ibid):-

"Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellant tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the court from which the appeal proceeds, and that it is not within their competence to say that they would have given a different judgment if they had been the judge of first instance, but that because he has pronounced a different judgment they will adhere to his decision".

Therefore in the case before me in accordance with established principle the Court will not interfere with findings of primary fact which depend on the credit of witnesses, but as stated above, to use the words of MILES C.J., "as to inferences drawn from primary facts, in general, an appellate court is in as good a position as the tribunal to decide what inferences are to be drawn from the findings of the tribunal from which the appeal is brought, and "once having reached its own conclusion, will not shrink from giving effect to it" (RADOVANOVIC v WHITE CONSTRUCTIONS (ACT) PTY LTD 106 FLR 405 at p.406.

I shall consider the grounds of appeal in one single ground and therein deal with the following points raised in them in the manner hereafter appearing:-

(a) that the three essential elements as required by s5(1) of the Act have not been satisfied.

(b) the effect of a pre-existing heart condition and its effect on the deceased has not been taken into account.

(c) that the death was unrelated to his employment.

(d) whether the death resulted as a result of deceased's "pre-existing heart condition" or the employment had been a contributing factor had not been considered.

It is not disputed according to his death certificate that he died of `acute myocardial infarction'.

CLAIM UNDER s.5(1) OF WORKMEN'S COMPENSATION ACT

The Respondent had claimed compensation under s.5(1) of the Act which provides inter alia as follows:-

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act ..........."

The onus was on the widow (the Respondent) to prove the following three essential elements of her claim:-

(i) "that the workman suffered personal injury, i.e. physiological injury or change, by accident;

(ii) that the injury arose out of the employment;

(iii) that the injury occurred in the course of employment". (CARPENTERS (FIJI) LTD v LABOUR OFFICER FOR KATARINA ESITA 36/84 FCA - cyclostyled judgment p.3)

The claimants "have to prove their case; that is to say, they must show with reasonable clearness that the accident actually did come from the employment" (HAWKINS v POWELL'S TILLERY STEAM COAL CO. [1911] UKLawRpKQB 38; (1911) 1 K.B. 988 at p.995 per FLETCHER MOULTON L.J.)

The drawing of inferences from a given set of facts particularly in pre-heart condition cases is difficult. In any case one has to rightly direct oneself on the law and draw inferences from the facts; and " ...... so long as there is evidence upon which the arbitrator, as a reasonable man, can come to a finding, it is not competent for the appellate court to substitute their own view of the weight of the evidence and the balance of probabilities for the view of the arbitrator" (DAVIES v ARMSTRONG - WHITWORTH (1933) 26 B.W.C.C. 299) (THE WORKMEN'S COMPENSATION ACTS 32nd Ed. 1939 p.119).

CONSIDERATION OF THE ISSUES

Evidence for the Respondent was given by HARBANS NARAYAN (PW1) labour officer, HAZRA BIBI (PW2) widow, MAN DEO (PW3) labourer, KIRPAL (PW4) labourer, DR.PURUSHOTTAM LAL SHRESTA (PW5) medical officer and DR.DEO NARAYAN (PW6) physician.

For the Appellant evidence was given by SAIYAD HUSSEIN (DW1) tramline foreman and DR.ISOA BAKANI (DW2) cardiologist.

Bearing in mind the elements that have to be proved, the determination of the issue therefore depended upon sufficiency of evidence.

I shall now deal with each of the said three essential elements separately.

WAS IT PERSONAL INJURY BY ACCIDENT (FIRST ELEMENT)

The circumstances and the events which led to death has been outlined hereabove suffice it to say that death occurred at his home when he was on sick leave.

It is clear from the authorities that in the circumstances of this case and on the facts it is a case of personal injury by accident. I discuss hereunder what constitutes "personal injury by accident".

I refer to THE WORKMEN'S COMPENSATION ACTS 1925 TO 1938 by WILLIS 32 ED (hereafter referred to as "WILLIS") on the first element, namely "personal injury by accident" where at p.8 "accident" is defined thus:

"The word "accident" does not necessarily involve the idea of something fortuitous and unexpected as formerly held (HENSEY v WHITE (1900) 1 Q.B.481 ............ It includes injury caused by over-exertion in the ordinary course of employment (Fenton v. Thorley[1903] UKLawRpAC 48; , [1903] A.C. 443; 5 W.C.C.34 Digest 266, 2264). The word "accident", is used in the Act "in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed (per LORD MACNAGHTEN, ibid., at p.448); or as denoting or including "any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence" (per LORD SHAND, ibid., at p.451); or "any unintended and unexpected occurrence which produces hurt or loss" (per LORD LINDLEY, ibid., at p.453).

It is further stated (ibid):

"Applying the above description of accident to the case where a man suffering from serious aneurism ruptured it by an ordinary exertion (Clover v. Hughes[1910] UKLawRpAC 7; , [1910] A. C. 242; 3 B. W. C. 275; 34 Digest 273, 2316, it was said that the event was unexpected in the sense that a sensible man would not have expected it from the nature of the work being done, and that it was not correct to ask whether a medical man knowing the condition of the workman would have expected it".

What is "personal injury by accident" has also been clearly stated by LORD ATKIN in FIFE COAL CO., LTD v YOUNG (1942) AER H.L. 85 at 91 thus:

" ..... it is necessary to emphasize the distinction between "accident" and "injury", which in some cases tend to be confused. ...... It is now established, however, that apart from external accident, there may be what no doubt others as well as myself have called internal accident. (underlining mine for emphasis) ...........

A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity".

The above passage includes death or incapacity arising "at once or after a lapse of time". Here it was after a lapse of time.

Also on "personal injury by accident" the following extract from the judgment of LORD MACNAGHTEN in CLOVER, CLAYTON & CO. LIMITED v HUGHES [1910] UKLawRpAC 7; (1910) AC 242 at 247-8 is apt:-

"There the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that "injury by accident" meant nothing more that "accidental injury" or "accident", as the word is popularly used".

In both CLOVER (supra) and FENTON (PAUPER) V J THORLEY & CO. LIMITED [1903] UKLawRpAC 48; (1903) A.C. 443 the House of Lords held that the workman had suffered personal injury by accident. In the former case the workman was suffering from serious aneurism whilst employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. In the latter the workman, employed to turn the wheel of a machine, by an act of over-exertion ruptured himself.

Finally, under this first element I find that ASHTON-LEWIS J in FIJI INDUSTRIES LIMITED and ATECA DRETIREWA (Civ.App. 15/92) who after reviewing the cases summed up the situation under this head very well as follows:-

"From these cases it would appear that "injury by accident" in equivalent Workmens Compensation Legislation has been held to have occurred where the injury itself was unexpected or not designed by the worker rather than relating to the event which caused the injury being unexpected or not designed. Thus it would appear that the law has developed to the point where there is now no requirement that the event causing the injury is unexpected or not designed, it being sufficient that the injury itself (i.e. the heart attack) is unexpected or not designed by the worker."

In view of the above I reject the Appellant's arguments on this first element and accept those of the Respondent.

Applying the above principles to the present case there was an accident in the popular sense of the word and I agree with learned Magistrate's finding in this regard.

I therefore find that the first element has been satisfied.

SECOND AND THIRD ELEMENTS

I shall now deal with the second and third elements namely, (ii) Did the injury arise out of the employment? and (ii) Did it arise in the course of the employment? The determination of these issues involve mainly issues of fact and in part they are questions of law. Since the two questions posed before me overlap each other that to treat them separately would be repetitive so therefore I would deal with (iii) above first showing when course of employment began and ended and then with (ii) dealing mainly with the work the deceased was employed to do.

IN THE COURSE OF EMPLOYMENT (THIRD ELEMENT)

Under this head I will not reiterate the facts which are as outlined hereabove by the learned Magistrate in his judgment but will summarise the important chronology of events up to death thus: the deceased's last day at work was 20 March 1988; he had a chest pain on 20 March 1988 and was admitted to hospital and diagnosed as suffering from heart attack; he was discharged from hospital on 26 March 1988 and since then he was on medical leave; on 6 April 1988 he had another attack and was taken to hospital immediately but before treatment could be given he died at about 4.00p.m..

The question that arises is whether on the facts of this case it can be said that the deceased died in the "course of employment".

The test of what is "in the course of employment" is stated thus in WILLIS supra at p.22:

"A workman is acting in the course of lhis employment when he is engaged 'in doing something he was employed to do'. Or what is, in other and I think better words, ... when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based in a duty to the employer arising out of the contract of employment, but it is to be borne mind that the word 'employment', as here used covers and includes things belonging to or arising out of it" (St. Helen's Colliery Co. v. Hewitson, [1924] A.C. 59, 71; 16 B. W. C. C. 230, 238, per Lord ATKINSON; 34 Digest 280, 2364).

"The man is not in the course of his employment unless the facts are such that it is in the course of his employment, and in performance of a duty under his contract of service, that he is found in the place where the accident occurs. If there is only a right and there is no obligation binding on the man in the matter of his employment there is no liability" (ibid., p.95, per Lord WRENBURY);

"I think an accident befalls a man 'in the course of' his employment, if it occurs while he is doing what a man so employed may reasonably do within a time when he is employed, and at a place where he may reasonably be during that time" (Moore v. Manchester Liners. [1910] UKLawRpAC 39; [1910] A.C. 498; 3 B W. C. C. 527; 34 Digest 309, 2547, per Lord LOREBURN, L. C.)".

The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are: (a) the accident must have occurred during the employment of the workman and (b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do" (HELEN'S COLLIERY supra p.91, 92).

In this case the above conditions have been met. The deceased definitely comes within the meaning of "course of employment" on the facts of this case. Although he had a long history of heart disease and other sicknesses, it was while he was at work that he became sick with chest pain which continued after he returned home. Although he could not return to work after his last day at work and before his death, it cannot be said that he did not feel sick at work.

I find no merit whatsoever in Appellant's argument in this regard particularly when he said in his submission to the effect that because the deceased was away from work for 17 days it did not satisfy the definition of "in course of employment".

I therefore find as did the learned Magistrate that the third element had been proved.

INJURY ARISING OUT OF EMPLOYMENT (SECOND ELEMENT)

Now I shall deal with element (ii) above namely, whether the "injury arose out of employment".

The term has been defined in WILLIS supra at p. 44 thus:

"Arising out of the employment' obviously means arising out of the work which the man is employed to do and which is incident to it - in other words out of his service". (Davidson v. M'Robb, [1918] A.C. 304 at p.314; 10 B. W. C. C. 673, at p.684; 34 Digest 376, 2339).

The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply".

I have already stated what the nature of the deceased's work was and the circumstances leading to his death.

It is in the light of the deceased's medical condition that this aspect of the matter could be better understood and dealt with and I therefore propose to set out the medical evidence in this regard as hereunder.

The Respondent's witness DR.SHRESTA (PW5) testified that he did not treat the deceased and he was only reporting on what DR.NARAYAN (PW6) the Physician stated, namely, that the cause of death was 'myocardial infarction'.

The PW6 (Dr. Deo Narayan) an experienced physician and consultant had seen the deceased when he was already dead; a post-mortem examination was carried out because the cause of death was "obvious". In his Report (exhibit 6) the PW6 stated that in his opinion "the nature of his work and the disease collectively could have accelerated his death".

Dr. Isoa Bakani (DW2) a heart specialist was called on behalf of the Appellant. He testified, inter alia, that the deceased suffered from "coronary artery disease" since 1985. Of particular relevance to this case is when the doctor said that in his opinion the "cause of death has been largely brought about by his heart disease and if there is any contribution by the stress of his work it would be normal. It may not be significant". In cross-examination he said that the nature of the work the deceased was doing which he knew "would have some unusual contribution to his death".

The above in brief is an account of his medical condition from the doctors and their opinions. The test to be applied in order to determine whether an accident arises out of the employment has been stated by LORD SUMNER in L. & Y. R. v HIGHLEY (1917) A.C 352, 372 thus:

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury".

Further, on the factors to be looked at to determine whether the accident arose out of employment, I refer to the case of to PARTRIDGE JONES and JOHN PATON LIMITED JAMES (1933 A. C. 501) which states:

"An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease also, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it".

The facts in PARTRIDGE (supra) were slightly different from the present case. There the deceased a ripper was suffering from disease of the coronary arteries, and his state was such that although he might die at any time without any act of physical exertion, any such exertion was dangerous and likely to lead to heart failure. He stopped work for a short time and sat down. Within ten minutes of stopping work he died. The House of Lords affirmed the award of damages.

In the present case, although he could have died at any time, he left work on 20 March 1988 (which was his last day at work) with chest pain which he developed while working. As stated earlier, he was treated for this complaint which persisted from which he died after being rushed to hospital. It is abundantly clear from the evidence that "work contributed" to the accident.

In the case of FIJI ELECTRICITY AUTHORITY and LABOUR OFFICER (for and on behalf) of Kesaia Naikolola Civ. App. NO. 5 of 1993 of 24.08.94 SCOTT J. was faced with a similar situation in which he found that although the death occurred after about 4 days the chest pain commenced on 4 April at work and continued until he died at home on 8 April after medical attention and hence it was work related. His Lordship stated that the "difficulty is not the principle but the evidence required to bring the matter within their scope" and with this view I concur.

The situation in CLOVER, CLAYTON v HUGHES was also different from this case. There a workman who was suffering from a serious aneurism was employed on tightening a nut by a spanner when he fell down dead. The county court judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal and the House of Lords held that it was a case of personal injury by accident arising out of and in the course employment. There is a distinction between this case and CLOVER CLAYTON as is evident from the facts outlined already.

The principles applicable in situations such as the present have been clearly stated by LORD LOREBURN in CLOVER, CLAYTON (supra) at p.246. It will be seen from the extracts which I quote from the judgment of LORD LOREBURN that the deceased did fit into the category of persons in whose case liability can be attached to his employed for this death. The relevant passages at p.246 are as follows:-

"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade".

He goes on to state that:

"Nor do I think we should attach any importance to the fact that this man's health was as described ...... An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health".

Further at p.247 he continues:

"In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?" The answer to that question has been found in this case in the clearest terms, and, if any possible comment could be made upon the conclusions of the learned county court judge, my feeling would be that they had not been sufficiently emphatic as to the association of the employment and the disease which resulted in death".

In the same case at p.249 LORD MACNAGHTEN gave judgment to the same effect said:

"The real question, as it seems to me, is this: Did it (the death) arise out of his employment? On this point the evidence before the county court judge was undoubtedly conflicting. But he has held that it did, and I think there was sufficient evidence to support that finding ..... 'The death', the learned judge says, 'was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal'.

Mr. Udit referred the Court to a number of cases in which the Courts had to consider lapse of hours, weeks and even months from the time of knocking off work to time of death. In some cases it was held that death occurred at work. But is should be borne in mind that each case must be considered on its own facts. I refer to the following extract from the judgment in BA INDUSTRIES LIMITED and LABOUR OFFICER, BA (Civil Appeal 37/83 Fiji Court of Appeal) where the deceased died of a heart attack at home although there was "no positive evidence of existing heart disease". The Court stated what had to be proved and on whom the burden lay of proving:

"No burden lay on the respondent to prove that the deceased was suffering from a heart disease prior to his death. Evidence that the manual work he was engaged in would not, as a rule, trigger a heart-attack in a normally healthy man would only provide basis for inference. The burden on the respondent was to show that the heart attack occurred during the course of his employment and that the work he was doing was a contributing factor". (underlining mine for emphasis)

The cases that were referred to by counsel were mainly those of workers dying at work. In the Court of Appeal case of WHITTLE v EBBW VALE STEEL IRON v COAL CO. LTD (1936) 2 AER the workman with heart disease was found dead at work. There was evidence in that case that the employment contributed to the death of the workman. In WHITTLE (supra) the House of Lords case of BARNABAS v BERSHAM COLLIERY CO. (1990) 4 B. W. C. 119, 34 Digest 325, 2656) was distinguished. There a collier died of apoplexy during working hours in a mine. It was held that the evidence as to cause of death was equally consistent with an accident and no accident and the onus of proving that it was due to accident rested on the applicants who had not discharged that onus.

Further in WHITTLE (supra) SLESSER L.J. in discussing the case of FALMOUTH DOCKS v ENGINEERING CO. LTD v TRELOAR (1933) A.C. 48) H. L. and PARTRIDGE (supra) pointed out that in both those cases there was a finding that the worker might have died at any time, but what is more important is that there was evidence that the work he was doing was of a laborious nature and that it accelerated or produced the workman's death. One died ten minutes and the other 25 minutes after he last worked.

There is also the Fiji case of THE LABOUR OFFICER on behalf LUISA LEGALEVU and THE PORTS AUTHORITY OF FIJI (Civ. App. No.6 of 1983 F.C.A.) where the court in a "pre-heart condition" said that there has to be evidence of injury "occurring in the course of employment". It said:

"There does not seem to be any serious divergence of views as to the principle to be applied in such cases. It is not necessary for the evidence in case of a person with a long history of heart disease to show that a specific injury had resulted from a specific act during the course of employment. But, as was said in Oates v. Earl Fitz William's Collieries co. (1939 2 All E.R. 498):-

"It was essential that there should be evidence of a physiological injury or change occurring in the course of a man's employment by reason of the work on which he was engaged at or about the time to his death".

The principle was also stated by Goddard J. in Whittle v. Ebbw Vale etc. Co. (1936 2 All E.R. 1221 at 1235) in following words:-

"The principle which I extract from the case of Partridge Jones v James (1933 A.C. 501) seems to me to be this: the House of Lords have decided that where a man in a diseased condition dies and it is found that the disease and the work together contribute to his death, then his death results from accidents within the meaning of that Act".

In the case before me the Respondent has discharged the burden that lay upon him; there was overwhelming evidence that the work that the deceased did on the last day at work was a contributing factor; and I find the following passage from the judgment of CLAUSON L.J. in OATES v EARL FITZWILLIAM COLLIERIES CO (1939) 2 AER 498 at 502 apt:

"In our judgment, a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence - moreover, this is nonetheless true though there may be no evidence of any strain or similar cause than that arising out of the man's ordinary work". (underlining mine for emphasis).

On lapse of time in WHITTLE (supra) SLESSER L.J. at p.1223 said "But there can be no general principle that a man must die immediately he has received the strain; it is a question of fact to be decided on the evidence and the medical evidence". The following statement from the editorial note to OATES (supra) is also worthy of note:

"The Court of Appeal have reiterated that the proof of extra exertion or strain is not essential for recovery of compensation but there must be evidence of physiological injury or change due to the work upon which the workman was engaged at or about the moment of his death". (underlining mine for emphasis).

There is no dispute that the deceased was suffering from ischaemic heart disease. Therefore, the question here is whether the work contributed to his death. Applying the principles enunciated above including the dicta in the various cases and bearing in mind the facts and the medical evidence the accident did arise out of employment.

I find, as did the learned Magistrate, that there was strong evidence, on a balance of probabilities that the nature of work the deceased did cause a physiological change and accelerated the accident.

To conclude, on reviewing the evidence of the trial I am satisfied that the learned Magistrate was entitled to accept the evidence. It is not a case for me to interfere with his findings in regard to material particulars unless the learned Magistrate was "plainly wrong" in his conclusion bearing in mind the following passage from the dicta of LORD SHAW in CLARKE v EDINBURGH TRAMWAYS CORPORATION [1919] UKHL 303; (1919) S.C (H.L) 35:

".... In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment".

In the outcome for the above reasons the appeal is dismissed with costs here and in the court below (already ordered by the learned Magistrate) which is to be taxed unless agreed. Consequently the learned Magistrate's order for compensation in the sum of $12,000.00 payable by the Appellant to the Respondent stands.

On the question of interest on the said $12,000.00 which the Respondent claims, I consider that he is entitled to it. The Appellant has not said anything in this regard in its written submissions. The payment of interest falls into two categories, namely (i) 'pre judgment interest' which is the period between when the cause of action arose and the date of judgment and (ii) 'post judgment interest' which is from date of judgment until payment.

On (i) above, in line with decided cases, I award interest on the said $12,000.00 at the rate of 13.5% from 5 April 1993 (date of application) to 18 May 1994 (date of judgment) (MAGANLAL BROTHERS LIMITED v L.B. NARAYAN & COMPANY Civ. App. 31/84 FCA, JAI PRAKASH NARAYAN v SAVITA CHANDRA Civ. App. 37/85). On (ii) above, since it was a Magistrate's Court judgment, the post judgment interest is allowed at the rate of five per cent from 18 May 1994 until payment for Or.32 r.8 of Magistrates' Courts Rules Vol.II Cap 14 provides that "where a judgment or order is for a sum of money, interest at five per cent annum shall be payable thereon, unless the court otherwise orders". The interest computation is to be done by the learned counsel for the Respondent and incorporated in this order at the time of sealing.

D PATHIK
JUDGE

At Suva
17 February 1995.

HBA0010J.94B