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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC0327 OF 2003
BETWEEN:
MOSES ARCHANA JOHN
PLAINTIFF
AND:
TEBARA TRANSPORT LIMITED
DEFENDANT
Mr. M. Raza with Mr. A. Sen for Plaintiff
Mr. A.K. Narayan for Defendant
Date of Hearing: 3rd and 4th October 2005
Date of Submissions: 13th October 2005
Date of Judgment: 28th October 2005
JUDGMENT
The defendant is a bus company in Suva. The plaintiff was employed by the defendant as a mechanic. He was aged about 20 years at the time of accident on 19th March 2002. His left eye was struck by a piece of broken metal when he was trying to remove the centre bearing of a bus. He has lost all vision in that eye.
Immediately after the trial, counsels agreed that certain factual issues needed to be resolved by the court to decide liability.
The plaintiff told the court that he was instructed by Kirpa who was transport manager to first clean the garage. Later he was told by Kirpa to check what was wrong with bus CZ 171. The plaintiff said he went with the driver on a test drive and later reported to Kirpa that he suspected that the centre bearing was giving the problem. He said he was then told by Kirpa to change the centre bearing and he was told by Kirpa to punch the core by hammer and chisel.
Kirpa denied giving such instructions. He admitted being the transport manager at the time. He said he is not a mechanic and he did not work in the mechanical section. Dhani Ram (Anna) told the court it was he who had instructed the plaintiff to take out rubber cushion of drive shaft and take out the bearing. He said the plaintiff had done this type of work previously and he had not told the plaintiff to use chisel.
I believe that Kirpa was not a mechanic and had little knowledge of mechanical matters. His office may be close to the garage and he may have seen mechanics working but I am of the view that he would not have the knowledge how a centre bearing is taken out. It was Anna Kamta Prasad who was the foreman and it would be he who would give such instructions.
I find therefore it was Anna (Kamta Prasad) who instructed the plaintiff to take out the centre bearing.
Having concluded that it was Anna and not Kirpa who instructed the plaintiff, I conclude no one told the plaintiff to use the chisel.
The only evidence I have is from Anna DW4 that he would not use a chisel to remove centre bearing as it could chip. He also said that he did not tell the plaintiff to use a chisel. However he did not state that he told plaintiff not to use a chisel, that is expressly forbid him to use a chisel. There is no conclusive evidence on balance of probability that there were firm instructions given by the defendant to its mechanics not to use a chisel in taking out centre bearings. So each mechanic would be left to his own devices in what he considered in his own way was the most convenient way to take out the centre bearing.
The buses have to move according to timetable so the pressure on the mechanics to get them ready in time would be very real. In such circumstances safety may well be compromised by the employer and a blind eye turned towards unsafe practice.
The plaintiff’s evidence on this is that he was not wearing goggles on his eyes as the defendant did not supply goggles, safety boots, gloves and overalls. He further said the director Satendra Maharaj did not tell them that there is safety equipment in the garage as there were no safety equipment. DW2 Jinash Prasad confirmed that the plaintiff was not given any safety equipment.
The defendant’s version is that there was safety equipment hanging in the garage. One had to ask the storeman to get these items.
After the accident, even though a chisel was found at the scene, goggles were not found. The foreman at the garage DW4 Kamta Prasad in cross-examination said that after assigning the plaintiff the job he saw him again. The plaintiff was not wearing goggles. DW1 Satendra Maharaj was at pains to emphasise that he told his workers to wear goggles and safety equipment. The foreman I believe would be the person supervising the workers and he would know the company’s alleged concern with safety. However he did not tell the plaintiff to get goggles when he saw the plaintiff not wearing one. He knew the need for goggles. If goggles were readily available in the garage, the foreman would have told the plaintiff to go and get one.
I find that on this aspect the plaintiff and his witness are telling the truth and the company at the time of accident had no goggles and expected the workers to get their own.
The evidence by parties varies considerably so it is a matter of credibility. The plaintiff had worked for the defendant for one year five months prior to the accident. Before he joined the defendant he had worked for some limited hours after school with one Binesh who did not deal in buses or drive shafts. The plaintiff had seen centre bearing being taken out but did not know what was the procedure. He had seen one Pappu at the garage work on drive shafts but not very closely Pappu had told him to hit hard if it holds tight. He stated that this was the first time he had done this type of work.
DW1 Satendra Maharaj stated in his evidence in chief that removal of centre bearing was a fairly regular occurrence at his workshop. He tried to show that it was a common job. However in cross-examination he stated that he had forty buses at the time of accident and centre bearing on average lasts eight to nine months. It is therefore unlikely that centre bearings in his workshop would be removed three to four times a week. DW4 Kamta Prasad said the plaintiff had done this type of work once or twice before. He really seemed very uncertain about it. He had also changed employers.
As a foreman he must have allocated various work to various employees at various times so in the absence of any written record it would be virtually impossible for him to recall whether it was the first, the second or third time a person was doing a particular job. The person who actually suffered from the accident is more likely to remember this type of detail.
I find that the plaintiff was doing this work for the first time and was not properly supervised. Kamta Prasad being around and merely peeping from the side of the bus is not enough. The plaintiff had to be shown perhaps a few times how such work is done instead of being left to use whatever devices he considered necessary to do the work. I agree supervision does not mean standing and watching the plaintiff full time; it also does not mean abandoning him altogether especially if he is doing a particular job for the first time. The level of supervision required depends on the circumstances like the complexity of procedures involved and the experience of the worker. In this case I find the supervision inadequate.
Foreseeability:
The test of reasonable foreseeability is an essential factor in determining liability for the consequences for an act of negligence – Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (the Wagon Mound No. 1) – [1961] UKPC 1; (1961) AC 388 that is the defendant is liable for all the consequences which he could foresee as the result of his negligent act or omission.
The defendant submits that there was no foreseeable risk of injury to the plaintiff. It looked at a number of factors to do this. I have already considered plaintiff’s experience and lack of supervision.
The plaintiff was going to be under the bus. The work he was going to conduct would require contact between two hard metals with some force. He would need to look closely at where he was hitting. His eyes would be close to the area he was working. The eye would either be at same level or just below where the hammering would be done. There was always the possibility of dirt falling into the eyes. Injuries to an eye or eyes can have serious consequences because of the sensitive nature of the eyes.
I am of the view that by failing to provide goggles and adequate supervision, the plaintiff was exposed to risk of injury which the defendant ought to have foreseen. It is the failure of adequate supervision that led the otherwise obedient plaintiff to use a chisel with resulting consequences.
I therefore find the defendant negligent.
Volenti/Contributory Negligence:
The defendant submitted the plaintiff knew that to use the chisel was dangerous if one is not using goggles and that he voluntarily assumed risk. I have already found the defendant provided no goggles. The plaintiff could have refused to work but this would probably have resulted in loss of employment.
Fleming in The Law of Torts 7th edition at page 270 says that the doctrine of volenti has gone through reformulation because of changing strength of industry and social ideas. The learned writer states on the authority of Smith v. Baker – (1891) AC 325 that “voluntary assumption of risk cannot be imputed to a plaintiff merely because he encountered a known hazard and thereby consented to the risk of being hurt; in order to disqualify him from all redress, he must be shown to have consented to run that risk at his own expense so that he, and not the negligent defendant, should bear the loss in the event of an accident”.
More recently in Morris v. Murray – [1990] EWCA Civ 10; 1990 3 ALL ER 801 Fox L.J. stated “Volenti as a defence, has, perhaps been in retreat during this century, certainly in relation to master and servant cases. It might be said the merits could be adequately dealt with by the application of contributory negligence rules”.
In industry cases therefore knowledge of the risk cannot give rise to acceptance of it. By engaging in work with knowledge of the risks involved does not mean that an employee is waiving all claims to any injury suffered as a result.
Hence I reject the defence of volenti. However, the defendant is on more solid ground when it submits that the plaintiff is guilty of contributory negligence. The plaintiff in his own submission says “common sense tells us when a metal is hit with another metal at a force; there is likely chance of chipping”. The plaintiff too, I suppose, was blessed with this common sense. He should have realized that he was using a sharp instrument so the chances of chipping were greater especially if he hit with force. The foreman was there. He could have sought his assistance or alternatively be more careful in the amount of force he used. I apportion the plaintiff’s contribution to the accident at one-third.
Assessment of Damages:
The plaintiff has calculated his assessment of damages on the basis that he would never be able to work again, and calculated his damages on the basis of that. He submits that he is entitled to $198,606.50 total damages. The defendant on the other hand has submitted that if the plaintiff succeeds on liability he should be awarded $25,000.00 for general damages and $645.32 loss of wages.
The plaintiff claimed $15,245.00 special damages being:
(a) payment to Immigration Department .. .. .. $155.00
(b) payment to Dr Marla Clark .. .. .. .. $380.00
(c) payment to Dr Andrew Chang.. .. .. $4,710.00
(abandoned during trial)
(d) Air fares, meals & accommodation .. .. $10,000.00
In evidence in chief the plaintiff said the company agreed to pay his air fares and medical costs in Australia. It paid his airfares. He was in Australia till 1st September 2001. He was paid his two-thirds wages up to time he left for Australia. He lived with his aunt in Australia. He says he intends to give his aunt $5,000.00 to $6,000.00.
During cross-examination, the plaintiff’s counsel abandoned claim in respect of medical expenses. That left $10,000.00 for meals and accommodation. The plaintiff admitted that he told the company that staying in Australia was no problem.
I find that the defendant had agreed to pay for air fares and medical bills in Australia. I also find there were no offers to pay for plaintiff’s accommodation and meals while he was in Australia. In fact the defendant is to be commended for showing concern for its employee the plaintiff in arranging for his visa and paying for his medical bills in Australia on humanitarian grounds.
General Damages for pain and suffering:
I accept that the injury was a painful injury as plaintiff needed pain relieving tablets. Now he cannot see with the left eye. That entitles him to a 40% permanent disability for the purposes of Workmen’s Compensation Act.
A medical report prepared by Dr. Guy Hawley says on page 2 that the plaintiff will have “lost some three dimensional vision” and advises him against working at heights but says he can continue motor mechanic work and even driving non commercial vehicles with caution.
The plaintiff had stated in his evidence that he wanted to do mechanical job in future. He was offered employment by the defendant and he did not take it up after he returned from Australia. He has made little efforts to find employment elsewhere.
The medical evidence is clear. He can continue working as a motor mechanic which was his passion.
I note that the plaintiff is a young man with most of his life ahead of him. He appeared except for loss of his sight of one eye to be healthy. I also note that there is no prospect of sympathetic opthalmia in the right eye. Given the loss of sight in one eye, his prospect of marriage would have taken some dent considering the cultural ways of Indian community in Fiji who enquire into minute details before giving their daughters in marriage. There would also be some limitations to plaintiff probably bumping into people on his left on busy streets or in market place. He would be able to play soccer but may be not as well as before accident.
Counsel for the defendant referred me to Fiji Sugar Corporation & Abdul Samat v. Subramani & Another – FCA 47 of 1993 (Reported in 1995) where a 47-year old chef at a hotel had an award of $37,500.00 for total loss of sight of one eye and partial loss of other in respect of pain and suffering and loss of amenities of life, upheld. Ten years have now elapsed since that judgment.
In Apemeliki Kava v. Jiko Fisheries Ltd. – HBC0283 of 1996 Justice Byrne awarded $50,000.00 for loss of one eye. The plaintiff was 26 years old. There was also evidence of personality changes and feeling of fear in supermarkets and roads in that case.
I award the plaintiff a sum of $45,000.00 for pain and suffering and loss of amenities of life.
Loss of Wages/FNPF:
The plaintiff told the court and I believe him that he was paid two thirds of his wages from time of injury until he left for Australia. The exact date he went to Australia was not told. However I believe it is somewhere after 1st May 2002 because document 2 shows a sum of $950.00 being paid for air tickets to Sunflower Airlines on 1st May 2002. He returned to Fiji on 1st September 2002. His loss of wages up to 1st May 2002 (6 weeks) would therefore be $24.00 per week and from 1st May 2002 to say 30th September 2002 (20 weeks) $72.00 per week; that is 6 x $24.00 or $240.00 plus $1,440.00 for 20 weeks that is a total wage loss of $1,680.00. He returned to Fiji on 1st September 2002 but I allowed a month for him to find employment. He would also lose FNPF at 8% of employer’s contribution on this which is $134.00.
With the loss of an eye, the plaintiff’s ability to compete in the labour market against normal people would be to an extent handicapped. However I have to note that the defendant was quite willing to re-employ him. Hence for loss of earning capacity I award him $6,000.00.
Interest:
The plaintiff is entitled to interest. He has claimed interest. I award him interest at 6% per annum on pain and suffering since the filing of writ of summons and also on loss of wages.
The assessment of damages he is awarded is as follows:
(a) For pain and suffering .. .. .. .. $45,000.00
(b) Loss of wages .. .. .. .. 1,680.00
(c) Fiji National Provident Fund .. .. .. 134.40
(d) Prospective Loss .. .. .. 6,000.00
(e) Interest on (a) and (b) at 6% from 08/08/03.. .. 5,988.00
---------------------------------------------------------------------------------------
$58,802.40
====================================================
Since I held plaintiff to be partly at fault, I reduce the damages by one-third to $39,201.60. I also order costs which I summarily fix in the sum of $4,000.00.
Final Order:
I therefore enter judgment for the plaintiff against the defendant in the sum of $39,201.60 together with costs in the sum of $4,000.00.
[ Jiten Singh ]
JUDGE
At Suva
28th October 2005
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