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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0127 OF 2003L
BETWEEN:
KUMARAN
f/n Ram Sami
Plaintiff
AND:
SATENDRA PRASAD CONSTRUCTION LIMITED
Defendant
Counsel: Mr. S. Krishna for the plaintiff
Mr. A.K. Narayan with Ms. P. Watkins for the defendant
Date of Hearing: 11 & 12 July 2005
Date of Judgment: 12 August 2005
JUDGMENT
The plaintiff by Writ of Summons dated 7 April 2003 claims damages from the defendant with respect to injuries sustained by him on the 5th December 2002 in the course of his employment with the defendant.
Background
The plaintiff was born on the 13th July 1941 and was 61 years of age at the date of the accident. He is at the date of trial 64 years of age. The plaintiff attended school to class 6 and then worked with his father as a carpenter. He has been a carpenter for the last 41 or 42 years and is at the date of trial unemployed. The plaintiff married in 1960 and has no dependent children.
After working for his father for a number of years, the plaintiff then sought and obtained employment with various construction companies including Fletcher Constructions, Downer Constructions and ultimately obtained employment with the defendant company.
The nature of the work being contract work, the plaintiff was from time to time briefly unemployed as projects concluded and then found employment with another company.
The Accident
On the 5th December 2002, the plaintiff was working for the defendant company on the Cane Growers Cooperative Building site. He and 3 others were working constructing a beam box at about 4.45 in the afternoon and the task was almost complete, the leading hand instructed the plaintiff to nail the box to the concrete walls. The plaintiff says he put one nail in and the second nail hit hard material.
He says he then requested goggles from the leading hand and the leading hand replied:
“What kind of carpenter are you?”
He then proceeded to put the third nail in and the nail shattered with part of the nail striking the plaintiff’s left eye. At the time the plaintiff and others were working 5 metres above the ground. The plaintiff was helped to the ground by his workmate Anand Kumar. When they arrived at ground level, the foreman brought a van and the plaintiff was taken to the Lautoka Hospital and the plaintiff was treated by Dr. Mark Rudel, a consultant ophthalmologist.
At that time his eye was still bleeding. The plaintiff says the ophthalmologist pulled something out of his eye and applied medicine and plaster to it and told him to come back the next day. The plaintiff says he was in extreme pain at the time and returned to the hospital the next morning. He says at that time he had headaches which were terrible in the morning, he then returned to the hospital on a regular basis as is evidenced by the Eye Clinic Card, Exhibit P-4. He was prescribed medication in the form of ““optomycin”” drops which he self administered when there was a pain his eye. As a result of the injury, he is no longer able to see out of his left eye.
As a result of the injury, the plaintiff said he suffers pain in bright lights and when it is hot and when it is raining, he has difficulty going to his religious ceremonies due to the music which he finds gives him a headache. Weddings and other functions where there are bright lights he finds he has to wear sunglasses even at night to avoid the annoyance and pain created by those bright lights.
The plaintiff says his general health is fine apart from his eye. He says he now wears glasses but he did not do so prior to the accident. He holds a prescription for a new pair of glasses which he has been unable to afford.
There is no dispute between the evidence given on behalf of the plaintiff and the defendant with respect to the accident. The only area of dispute is as to whether goggles were available at the workplace. The plaintiff’s evidence is that goggles were not available at the time the accident occurred. His evidence is supported by his workmate, Anand Kumar.
The leading hand however says that goggles were available at the workplace but acknowledges that the goggles were dirty and scratched and that though uncomfortable and difficult to see through. The project manager of the defendant company says that goggles were available at the site and that new goggles were purchased from time to time and whenever they were sought. I accept the evidence of the leading hand that any goggles that were available were dirty, scratched and of little use.
Medical Evidence
The medical reports obtained on behalf of the plaintiff and the defendant was tendered to the court by consent. The plaintiff’s treating doctor, Dr. Mark Rudel, reports that he examined the plaintiff on the 5th December 2002 and to orbital X-rays. He also confirms having reviewed the plaintiff from time to time.
Dr. Rudel says that on examination, the plaintiff’s left eye showed a conjunctival laceration and severe vitreous haemorrhage which resulted in blindness in the left eye due to retinal detachment. Dr. Rudel reports that the plaintiff’s visual acuity was 6/6 in the right eye.
The plaintiff was seen by Dr. Guy Hawley on behalf of the defendant, Dr. Hawley reports and confirms that the right eye had normal vision of 6/6 with corrective lenses (glasses) and that he is effectively blind in his left eye. He also reports that further surgery to his left eye would not be advisable.
Liability
It became apparent in the course of the hearing that the defendant company is in liquidation or has been wound up.
The plaintiff sought leave from the court to continue the proceedings pursuant to section 229 of the Companies Act. Leave was granted in accordance with the principles expressed in Post Office v Norwich Union Fire Insurance Society Limited [1967] 2 Q.B. 363 at 375 where Lord Denning M.R. said:
“No doubt leave would automatically be given.”
The plaintiff pleads his claim in the alternate pursuant to the Workmen’s Compensation Act and common law.
The defendant whilst denying liability also pleads that the plaintiff is liable for contributory negligence.
The defendant had a duty of care to the plaintiff to provide a safe place of work. This duty includes the provision of such safety equipment as is necessary.
There is a conflict in the evidence as to the availability of protective glasses. The plaintiff and his workmate, Anand Kumar, giving evidence that no glasses were available whereas the leading hand gives evidence on behalf of the defendant that safety glasses were available but they were dirty and /or scratched and uncomfortable to wear and that he himself did not wear them. The project manager for the defendant company gives evidence that glasses were available and additional glasses could have been sought and would have been provided.
There is also evidence on behalf of the defendant that instructions were issued to the plaintiff and others that safety equipment was to be worn at all times.
The plaintiff was an experienced carpenter with an excess of 40 years experience. In his evidence, he acknowledged that he had had extensive experience in the use of concrete nails, which have a propensity to break and/or shatter from time to time. He was aware of the danger.
Whilst the defendant owed the plaintiff duty of care and on the balance of probability, I am satisfied that he breached that duty of care in not providing safety equipment fit for use by the defendant and not encouraging the defendant to use that equipment.
Qualcast (Wolverhampton) Limited v Haynes [1959] 2 All E.R. 38 can be distinguished from the facts of the present case, in that, the safety equipment (safety goggles) provided being dirty and/or scratched did in fact not amount to the provision of proper protective wear.
Similarly, Winter v Cardiff v Rural District Council [1950] 1 All E.R. 819 can be distinguished upon the same basis.
As I have said the plaintiff was an experienced carpenter and aware of the risk in performing the task in the manner that he did without using protective goggles. The plaintiff must accept responsibility for his actions and I find that he has contributed to the loss and damage that he has sustained.
Counsel for the Defendant has referred the court to Yanuca Island Limited v Peter Elseworth – Civil Appeal No. ABU0085 of 2000S where the court has found contributory negligence as to 70%. The circumstances of that case were indeed completely different from the circumstances of the case here before the court.
Having found that there was no effective provision of safety goggles, it must therefore followed that the degree of contributory negligence on the part of the plaintiff is not high. In addition, the plaintiff and his workmate, Anand Kumar, both give evidence that request for the safety equipment were met by a response on behalf of the defendant company “you can leave the site”. The plaintiff was not left with a great deal of choice. Notwithstanding I find the plaintiff contributed as to 10% by performing the task knowing the risk without the use of the safety goggles.
Economic Loss
The plaintiff gives evidence that he has been unable to find employment due to him having sight in only one eye. He gives evidence that he is able to perform
the duties of a carpenter but employers are not willing to employ him with his disability. By perusal of the schedule to the Workmen’s Compensation Act it shows a significant burden on the employers (insurers) where the loss of the second eye would result in 100% disability. I accept that the plaintiff has significant difficulty in obtaining employment. He also says he is unable to establish himself as a carpenter and due to the cost involved and there is minimal maintenance work around which only becomes prevalent after cyclones.
The plaintiff at the time of the accident was working on average 6 days per week and earning on average a $112.86 per week (Exhibit P-7 and D-5). His employment was as he acknowledged punctuated by periods of unemployment when particular projects concluded and prior to him moving on to another project or another company.
Following the accident on the 5th December 2002, the plaintiff was unable to return to work until May 2003. At that time, he was cleared for light duties and he says he was informed by the company that the only light duties were on the work site and not in the office where he sought them out to be glare. Evidence given on behalf of the defendant by the project manager was that there were no light duties available and accordingly, I find that the plaintiff is entitled to be compensated from May 2003 when he was cleared to return to work for light duties and when his Workmen’s Compensation payment ceased.
The plaintiff was at the date of the accident 61 years of age. He gives evidence that it was his intention to work for an extensive period of time after that date. Evidence of the working life of carpenters and other people in the construction industry was also given by the leading hand on behalf of the defendant. I find him more likely than not that the plaintiff would have worked until about at the age of 65 years and accordingly, he is entitled to a total of 3 years economic loss.
Special Damages
There is a paucity of evidence with respect to medical expenses and travel expenses to and from the Lautoka Hospital for medical treatment. The only evidence with respect to medical expenses is the production of a bottle of “optomycin” which shows a purchase price of $22.00. Exhibit P-5 shows that the eye drops have a life of only 4 weeks after opening. Whilst there is no other evidence of the purchase of the drops, I accept that they would have been purchased on a reasonably regular basis and will not doubt be purchased in the future on that basis. Similarly, with respect to the medical treatment, Exhibit P-4 shows that the plaintiff attended Lautoka Hospital about 16 occasions. There is no evidence before the court of the cost of those trips however the plaintiff did give evidence that he travelled by carrier on each occasion from his home in Natabua. It would seem appropriate to allow something with respect to the past and future medical expenses.
General Damages
With respect to the appropriate general damages for the loss of sight of an eye, the court has been referred to Apimeleki Kava v Jiko Fisheries Limited [1998] 44 F.L.R. 257 where Byrne J. awarded damages of $50,000.00 for the loss of sight of the plaintiff’s eye and the cosmetic defect arising from the scar on his left eyebrow together with the unpleasant appearance of his eye. This award was made in 1998, some almost 7 years ago. In Jovesa Rokobutabutaki and Anor v Lusiana Rokodovu – Civil Appeal No. ABU 0088 of 1998, the Court of Appeal in a judgment delivered on the 11th February 2000 reduced an award of $200,000.00 to $150,000.00 with respect to a 26 year old woman who was permanently paralyzed from the breast down. This compared with the 29 year old fisherman who was awarded $50,000.00 by Byrne J. in 1998 for the loss of an eye.
In Fiji Sugar Corporation Limited and Anor v Subarmani – Civil Appeal No. 47 of 1993 in the judgment delivered on the 25th May 1994, the Court of Appeal confirmed an award of $37,500.00 by way of general damages for the loss of sight of an eye with respect to a 47 year old male.
Taking account of the age of the plaintiff and the lapses of almost 7 years, the judgment of Byrne J. in Apimeleki Kava v Jiko Fisheries Limited, I consider that an award of $50,000.00 by way of general damages to the plaintiff is appropriate.
Interest
The award of interest is governed by Jefford v Gee [1972] Q.B. 130 which has been adopted in this country in Attorney General v Charles Valentine – Civil Appeal No. ABU 0019 of 1998S. In summary, special damages attract interest from the date of accident to the date of trial at half the appropriate rate, future earnings do not attract interest. Pain and suffering and loss of amenities (general damages) attract interest to the appropriate rate from the date of service of the writ to the date of trial. As to an appropriate rate of interest, it is submitted on behalf of the plaintiff that the rate of 8% is appropriate. I consider that an appropriate in the circumstances is 6%.
Schedule of Damages
General Damages:
Past .. .. .. .. .. .. .. $30,000.00
Interest on past general damages @ 6% .. .. .. $ 4,798.00
from date of accident (5/12/2002 – 22/8/2005)
Future .. .. .. .. .. .. .. .. $20,000.00
Loss of earnings (May 2003 to July 2005 .. .. .. $12,640.00
at 112 weeks x $112.86)
Loss of earning capacity (52 weeks @ $112.86) .. .. $ 5,868.72
Special Damages (past and future) .. .. .. $ 400.00
................................................................................................
Total .. .. .. .. .. .. .. .. $73,706.72
Less contributory negligence at 10% .. .. .. $ 7,370.67
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TOTAL .. .. .. .. .. .. $66,336.05
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Orders of the Court
JOHN CONNORS
JUDGE
At Lautoka
12 August 2005
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