Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Fiji Sugar Corporation Ltd v The Labour Officer [2005] FJHC 636; HBA0003.2004 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0003 OF 2004

BETWEEN:

THE FIJI SUGAR CORPORATION LTD
APPELLANT

AND:

THE LABOUR OFFICER
for and on behalf of the
dependents of the deceased
MURGAYSA son of GOVINDA
[deceased] of Rarawai, Ba
RESPONDENT

Mr T. Tuitoga for the Appellant
Mr F. Abu for the Respondent

Date of Hearing: 6 July 2005
Date of Judgment: 15 July 2005

JUDGMENT OF FINNIGAN J

This is an appeal against a decision of a Magistrate. The claim was brought under the Workmen’s Compensation Act. The workman concerned died of liver cancer. The learned Magistrate held that this was an injury which had arisen out of his employment. This is the first case in my experience where a link has been found established between liver cancer and the victim’s working conditions. I thus read the evidence and the decision with particular care.

I have read the authorities cited to me by both Counsel and dicta where only dicta were relied upon. There cannot be any dispute about the principles which I must apply in reconsidering the Magistrate’s decision. I do not think it necessary to recite them here, but I have certainly refreshed my memory from the materials supplied to me.

This is a case where there is no substantial question of the credibility or reliability of any witness and the point in dispute is the proper inference to be drawn from proved facts. This Court is generally in as good a position to evaluate the evidence as was the Magistrate and I ought not to shrink from that task though of course I must give weight to the Magistrate’s opinion. If I find there is no evidence to support a particular finding of fact which is crucial to an ultimate finding that this case fell within the words “injury by accident that arose out of the course of the employment” then I must find that the Magistrate made an error of law. Under the provisions of Section 22 of the Workmen’s Compensation Act and Order 37 Rule 18 of the Magistrates Court Rules I am entitled to treat this appeal as a fresh hearing of the evidence and assess it for my self.

The Submissions

Counsel for the Appellant submitted that the Magistrate’s findings were not supported by the evidence. Counsel for the Respondent submitted that the appeal is misconceived, ought to fail and has to fail. In his submission the evidence clearly established the necessary causal relationship between the employment of the deceased and his infection with Hepatitis B. In his submission the Respondent established facts from which the Court could draw that necessary inference and thus shifted the onus to the Appellant to establish that the personal injury by accident, which had been conceded at the hearing by the Appellant, did not arise out of and in the course of the employment of the deceased. Its failure to discharge that onus was in his submission fatal to the Appellant’s case.

The Evidence

The deceased died on 25 November 1996 of liver cancer. He also had Hepatitis B. The decision to bring this case was made after the Labour Officer sought a medical opinion about whether the death may have been work related. Doctor Viliame Taoi the Acting Consultant Surgeon at Lautoka where the death occurred gave his opinion [Exhibit A 2];

“Toilet cleaning is a high risk area in view of this disease as he could be infected from contaminated faeces of Hepatitis B carriers.

For this reason I would say the death could be work related if protective measures are not used by the subject during working hours”.

When called to give evidence Doctor Taoi retracted the first paragraph of that opinion and said he had been wrong. He said Hepatitis B is contracted primarily from contaminated body fluid. He went on to say;

“Cleaning toilets was a high risk job and if he was not given gloves or boots – if people who were infected and spit on the toilet and left contaminated blood and semen and if that got contacted with Murgesa’s mouth or wound then the chances are that he could contact Hepatitis B - protective equipments like rubber gloves and rubber gumboots reduces the chances of contracting Hepatitis B – but does not totally eliminate it

Hepatitis B is highly associated with liver cancer.

If somebody already contracted Hepatitis B the provisions of protective equipment later on is of no use”.

A little later he said the following:

“Known cause of Hepatitis B is having sex with infected person without condom and sharing drug needle or getting a tattoo with dirty tools. It can be passed by an infected woman to a child. Hepatitis B is a silent disease – somebody might have had it all his life without knowing it. It is possible that deceased had Hepatitis B prior to 1998 and it is possible that Hepatitis B was passed from his mother.

Re-Examination

I can’t say whether an existing Hepatitis B could be accelerated by coming to contact with new virus as I am not an expert. We can’t say how long has a person been suffering from Hepatitis B – all we can say is whether it is positive or not”.

That was the medical evidence. There was other relevant evidence not all of which I will set out here. A workmate of the deceased gave evidence that together they had been cleaning toilets at the Respondent’s workplace from 1988 until shortly before the deceased went into hospital and died. They had also sprayed pesticides on the grass around the bungalows. There were dust masks which they sometimes wore while spraying chemicals and they wore them while cleaning the toilets. While cleaning the toilets they wore cotton overalls which they wore for the whole day and when cleaning the toilets hand gloves and gumboots as well.

The Respondent conceded at the hearing that there had been “personal injury by accident”. The learned Magistrate held that this concession “means that the deceased became infected with Hepatitis B virus which in turn caused the cancer”. [At page 4 of his decision].

Thereafter [at page 6] he arrived at the conclusion

“.............that the deceased was exposed to the hazards and risks of becoming infected and carried out his work without being provided with recommended safety equipments and the accident [infection] arose out of his employment.”

He went on to hold that

“in view of my finding that accident arose out of his employment the third element that it arose in the course of his employment is not important as upon been infected the disease was triggered .......”

Decision

What the learned Magistrate described as not important was the third essential ingredient and he should have made a finding. However I think his decision, with respect, is flawed more fundamentally. What I find totally lacking is any evidence of a link between Hepatitis B and liver cancer. There is only one statement by Doctor Taoi that “Hepatitis B is highly associated with liver cancer”. What does this mean? Does liver cancer cause the symptoms of Hepatitis B? Does Hepatitis B cause cancer? Does either cause the other? The evidence shows no causal connection between them.

What may also be lacking is evidence that on the balance of probabilities linked the Hepatitis B with his employment. The evidence shows that there could have been other causes [including even toilets which were not at his workplace and at which he did not wear any protective clothing] and there was no evidence whatever to exclude or include any of those causes. He drank 3 basins of kava a day. This can be a saliva-sharing exercise. Putting toilets and kava aside, there was no evidence connecting the use of chemicals in the workplace with contracting Hepatitis B or liver cancer. There was no evidence of the likelihood of acceleration of an existing condition by the workplace conditions. That possibility was apparently not part of the case, but from those cited to me perhaps the dictum most fitting with appropriate changes, is that of the Court of Appeal in Labour Officer –v- Ports Authority of Fiji Civil Appeal No. 6 of 1983 Judgment 22 November 1983, Unreported, at Page 7;

“In the present case, to use the appellant’s own words, “the deceased was a candidate for a sudden death”. The onus was on [the Plaintiff in the Court below] to produce some evidence from which it could affirmatively be inferred that the work he did in the course of his employment furthered that candidacy”.

Despite the careful and principled way in which the learned Magistrate delivered his prompt decision I am unconvinced by the evidence of any connection between conditions in the workplace and the death of the deceased. In my opinion the learned Magistrate made a leap in logic towards a desired end and drew inferences not supported by the evidence. This was an error of law which made his conclusion untenable.

Therefore I determine this appeal by setting aside the decision of the learned Magistrate. I have re-heard the matter and accept the submission of Counsel for the Respondent that nothing is to be gained from sending the matter back for re-hearing. Judgment is given for the Appellant. I direct that the money held in the Magistrate’s Court be returned to the Appellant.

I fix costs on the appeal in favour of the Appellant and assess them summarily at $800.00.

D.D Finnigan
JUDGE

At Lautoka

15 July 2005