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Ram v Singh [2005] FJHC 677; HBC0102.2001L (29 April 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0102 OF 2001L

BETWEEN:

DEO RAM
f/n Babu Ram
Plaintiff

AND:

KANTA SINGH
f/n Santu Singh trading as
KANTA’S CONSTRUCTION COMPANY
of Sigatoka
Defendant

Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendant: Mr. H.A. Shah

Date of Hearing: 6 April 2005
Date of Judgment: 29 April 2005

JUDGMENT

The Claim

The plaintiff, Deo Ram, brings this action as a consequence of injuries sustained by him in the course of his employment with the defendant on the 29^th March 2000.

The plaintiff pleads his cause of action in the alternate both at common law and pursuant to the Workmen’s Compensation Act (Cap. 94).

Background

The plaintiff was born on the 4^th January 1957 and at the date of the accident was 43 years of age and at the date of trial he was 48 years of age.

He was educated to second term in class 3 at the Loma Indian School and upon leaving school, he started working on his father’s farm. Following which, he spent 7 years working in a sawmill and 5 or 6 years at Valley Timber Mill. He then commenced work approximately 15 months prior to the accident with the defendant. He was employed as a labourer and at the time of accident, he was earning $66 to $70 per week being paid at the rate of $1.50 per hour working normally a 9 hour day, 5 or 6 days per week.

Following the death of his father, the property was divided to all the brothers and the plaintiff has a piece of land for a house and he plants vegetables.

On the 29^th March 2000 the plaintiff arrived at work at about 7.30am. He was working on a house being built by the defendant for the defendant’s son. He describes his task as being mixing cement and carrying bricks. He was directed by others as to what to do. He says that he was mixing the cement until about 1.00pm when had lunch from 1.00 to 1.30pm and that after lunch, the son of the defendant told him to go to the ceiling and pull wires for the electrician. He says that the ceiling was very dark and it was very hot. He had a small torch which has 3 batteries. He says he had never done this type of work before, not even for himself at his own home. He says he told the son of the defendant that he hadn’t this sort of work before and that he didn’t want to go in there. He said because it was really dark and very hot, he doesn’t know what he stepped on but knows

that he fell. He says he was about half way across the ceiling from the manhole and at the time he was wearing ordinary shoes, which is described as being like those he was wearing in court, which had a plain leather sole. He was not wearing safety shoes and none had been provided. He says he was not wearing a safety helmet and none had been provided. The floor on which he landed was cement. He also said he was not provided with any form of safety harness or other safety equipment to fulfill the task.

After he fell, the son of the defendant, took him to Sigatoka Hospital from where he was later transferred to the Lautoka Hospital where he was admitted and stayed for about 6 days. He says he didn’t return to work, to the defendant and was unable to do any work for 1 year and 6 months after the accident and on returning to work, he went to work on a pawpaw plantation where he was earning at the rate of a $1.50 per hour working 8 hours a day, 2 or 3 days a week. He could work 3 or 4 days if his leg was okay but that he experienced pain in his leg when it was cold and when it was hot, he would have a terrible headache.

The plaintiff says that he is currently taking tablets and he spent on average $3 to $5 per week. He says that he is married with 4 children. The oldest of which died in a car accident last year. He has a 20 year old son who was studying and doing mechanical work and a 19 year old daughter who stays at home and a 7 year old child who was still at school. He says his wife also stays at him.

Prior to the accident, he was working on a nearby farm, earning $10 a day and given food, at weekends. He has been unable to return to that employment since the accident.

The special damages incurred by the plaintiff are admitted by the defendant.

He says following the accident, he was paid his sick leave, which was about 3 months pay and that is all that he received.

The son of Kanta Singh in his evidence to the court acknowledges that he had taken the plaintiff to hospital and that to his house that was being built. He also acknowledges that he was present on site at the time the accident occurred but denies that he gave any instructions to the plaintiff.

The foreman for the defendant, Prem Singh, was working laying tiles on the ground floor of the property at the time the accident occurred. He says up until about 3.00pm the plaintiff was engaged mixing grout for the tiler, Mr. Ali. He says the plaintiff when he fell through the ceiling, fell about 2.4 metres and landed on a 1 metre high stack of tiles. He says he did not direct the plaintiff to go into the ceiling. He is still an employee of the defendant and was giving evidence before the court in the presence of the defendant. This also applied to Mr. Ali, the tiler, who is still engaged by the defendant. His evidence could only describe what the plaintiff was doing prior to the incident.

Mano Raj and his brother, Manik Raj gave evidence as to the current employment of the plaintiff with Sanko Agriculture Limited and confirmed that the plaintiff is earning $1.50 per hour and his employment ceased in about February of this year. Whilst he was working he was taking home $50 to $60 per week.

Medical Evidence

Dr. Taoi, the Chief Medical Officer at the Surgical Unit of Lautoka Hospital, gave evidence that the plaintiff was admitted to the Lautoka Hospital on the 4^th April 2000 for a head injuries sustained when he fell and that he was rendered unconscious on impact. He described the injuries that he sustained as a 5 cm laceration on his occiput and that he was discharging cerebral spinal fluid (CSF) from his right ear on admission. He remained hospitalized until the 9^th April. Whilst there was no radiological evidence, the doctor was of the opinion from the clinical features that the plaintiff suffered a fracture of the base of the skull. He was treated with pain relief and with antibiotics. The doctor described him as still suffering from post concussion headache, painful lower back, painful right hip and diminished sex drive. He said that on examination, the plaintiff has a limp on the right leg and some stiffness on the right hip joint. He then assessed his total incapacity as being 50%. This incapacity he broke down as:

(a) post concussion headache - 15%

(b) stiff right hip - 10%

(c) lower back - 5%

(d) diminished sex drive - 20%

On initial admission to the Lautoka Hospital, the plaintiff was seen by Dr. Manghat, consultant surgeon, who by report dated 16^th March 2001, (Exhibit P-3) said at the time of admission, the plaintiff showed clinical features of a fracture of skull base with fluid leaking from the right ear and that he had acute back pain as far back as 1991 described the restrictions due to his painful limp on his right leg and persistent headaches.

Liability

Counsel for the Defendant submits that the defendant at the time of the accident was on a “frolic of his own”. This is not pleaded in the statement of defence.

It is clear from the evidence of the plaintiff that he was directed to perform the work in the ceiling by the defendant with the actual instructions coming from a supervisor or the son of the defendant. The son of the defendant in his evidence described that he is also a 50% owner of Kanta’s Construction Company together with the defendant.

To direct or even to allow a labourer to enter the ceiling cavity whilst wearing ordinary leather sole shoes and without a safety helmet or any other safety equipment is not only a breach of the Health & Safety at Work Act 1996 but is negligence on the part of the defendant.

I accept the evidence of the plaintiff against the evidence given by the defendant’s son, the foreman and the tiler all of whom are associated with or in the employ of the defendant. He was present in court whilst they gave their evidence. I find for the plaintiff on the issue of liability.

Damages

The action occurred on the 29^th March 2000, some 5 years ago. Throughout the last 5 years, the plaintiff has clearly suffered from significant disabilities with respect to his headaches, his hip, his back and his diminished sex drive. The medical evidence is that these incapacities will continue.

Whilst the plaintiff has been able to resume work for a period of time, his earnings having been less than a work prior to the accident and he clearly has a loss of earning capacity in the future.

Counsel for the Plaintiff refers the court to Appal Swamy Naidu v Bechni & Anr. – Civil Appeal No. 43 of 1974 where at page 6 Henry JA in considering future economic loss said:

“The real question is whether his capacity to earn has been adversely affected, and, if so, what is reasonable compensation for such loss. There is no justification of limiting this head of damage to loss of his present employment resulting from his disability. “

It is clear that the plaintiff has indeed a claim for loss of earning capacity for the future.

Interest

In Attorney General of Fiji v Charles Valentine – Civil Appeal No. ABU0019 of 1998S the Fiji Court of Appeal considered at that time that the appropriate interest rate was between 5% and 7% for claims of this type.

In considering the principle of the applicability of interest in personal injury claims, it is necessary to consider Jefford v Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130 where the Court of Appeal analyzed the logic behind the assessment of interest and set various principles which the Court of Appeal repeated in Attorney General of Fiji v Charles Valentine.

Those principles are:

“1. Special damages. Interest should be awarded from the date of the accident to the date of trial at half the appropriate rate. (Usually special damages such as hospital expenses, loss of wages etc, accrue on a day by day basis. Rather than the court making a series of interest calculations from the time each was incurred, it can achieve a broadly appropriate assessment by taking a figure representing a mean or average for the period. Half the interest over that time may be accepted as a suitable compromise figure in most cases).

2. Loss of future earnings. No interests should be allowed. (This is because the plaintiff does not become entitled to this money until the award is made so has not been kept out of it to justify giving interest).
   
3. Pain and suffering and loss of amenities. Interest should be awarded at the appropriate rate from the date of service of the writ to the date of trial.”
   

In applying the principles expressed to the matter at hand, it would seem appropriate in the circumstances to adopt an interest rate of 6%, which would result an effective interest rate of 3% with respect to special damages.

Damages

Recent decisions of this court clearly support the plaintiff’s contention that where there are serious injuries that continue and in situation such as the present where there has been a 50% incapacity as a result of the injuries sustained by the plaintiff. The figure in the order of $50,000.00 by way of general damages is not inappropriate. Finnigan J. in Pranish Prakash Chand v Ganpati Pala & Anr. – Civil Action No. 112 of 2004L held this to be so in reliance of other priorities.

Scott J. in Dinesh Kumar v John Elder – HBC0560 of 1995S similarly found the plaintiff as to general damages in the sum of $45,000.00 after considering a series of prior authorities and for the total of damages.

General Damages

(i) Past .. .. .. .. .. .. .. $30,000.00

(ii) Interest from 30/4/01 to 29/3/05 @ 6% .. .. $ 7,200.00

(iii) Future .. .. .. .. .. .. $20,000.00

Loss of Earning Capacity .. .. .. .. .. $35,000.00

Special Damages .. .. .. .. .. $ 70.00

Interest @ 6% from 29/3/01 to 29/4/05 .. .. .. $ 17.00

.............................................................................................

TOTAL = $92,287.00

========================================================

Orders

1. Verdict and judgment for the plaintiff in the sum of Ninety Two Thousand, Two Hundred and Eighty Seven Dollars ($92,287.00).
   
2. The defendant to pay the plaintiff’s costs assessed in the sum of Three Thousand Dollars ($3,000.00).
   

JOHN CONNORS

JUDGE

At Lautoka

29 April 2005