IN THE HIGH COURT OF FIJI ISLANDS
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 009 of 2007

BETWEEN:

BALWANT SINGH f/n Chandar Singh
Plaintiff

AND:

THE MANAGER LABASA HOSPITAL
1ST Defendant

THE CEO, MINISTRY OF HEALTH
2ND Defendant

THE ATTORNEY GENERAL
3 rd Defendant

Counsel: Sarju Prasad ESQ the Plaintiff
 Office of the Attorney General for the Defendants.

Date of Judgment: 23rd February, 2011 

JUDGMENT

The plaintiff, Balwant Singh commenced this action by writ of summons against the defendants seeking damages. 

The 1st defendant is a pharmacy assistant. The 2nd and 3rd defendants are the manager of Labasa Hospital and the Permanent Secretary of Health respectively. The fourth defendant is the Attorney General of Fiji who is a nominal defendant.

The Plaintiff is a pharmacy assistant attached to the Labasa hospital. He claims damages for personnel injuries which he suffered while attending a staff meeting at Labasa Hospital.
According to the plaintiff's statement of claim he was attending a staff meeting at the Labasa Hospital on 14.01.2000. The 1st defendant together with some other pharmacists was also attending the meeting. When the meeting was in progress, a fire extinguisher which was placed on the floor suddenly went off and the gas blew on to the face of the plaintiff.
 The plaintiff alleged that the incident happened due to the 1st defendant's negligent handling of the fire extinguisher. The plaintiff further alleged that the 2nd defendant failed to keep proper facilities for the safe keeping of the fire extinguisher and thereby failed to consider the safety of the persons attending the meeting.

The defendants, in their statement of defence stated that the members who attended the said staff meeting, were arranging sittings. It was further stated that the fire extinguisher was on the floor and when the 1st defendant tried to pick and move the fire extinguisher in order to make seating arrangements, it accidently went off.

The defendants denied their negligence and also denied the particulars of injuries contained in the plaintiff's claim.

Therefore the defendants pray that the plaintiff's claim be dismissed.

At the Pre Trial Conference following facts were admitted by the plaintiff and the defendants.

1.	The plaintiff and the first defendant are Pharmacy Assistants and were employed as such at the Labasa Hospital.

2.	The second defendant is the officer in charge of the Labasa Hospital and responsible for the administration of the institution.

3.	The second Defendant is the Head of the Ministry of Health in the Republic of Fiji Islands.

4.	The 4th defendant is the legal representative of the Government of Fiji.

5.	On the 14 day of January, 2000 the plaintiff was attending a staff meeting at Labasa Hospital Pharmacy.

6.	While the meeting was in progress the 1st defendant came in contact with a fire extinguisher which went off releasing the gas (Carbon Dioxide) onto the face of the plaintiff who inhaled the said gas.

7.	The plaintiff was rushed to the Emergency care Room for treatment and was later admitted to the Men's Medical ward from 14.01.2000 to 17.01 2000.

In view of the above agreed facts, the court has to determine following issues.

1.	Whether the Fire extinguisher went off and the gas sprayed to the face of the plaintiff was a result of the 1st defendant's negligent act?

2.	Whether the illnesses of the plaintiff were a direct result of his exposure to the gas in the fire extinguisher?

3.	Whether the 2nd, 3rd and 4th defendants are vicariously liable?

The evidence in chief of the plaintiff can be summarised as follows:

On 14th January 2000, the plaintiff was attending a meeting of pharmacy interns at the pharmacy department storage in the Labasa Hospital. A table was placed in the middle and the staffs were sitting around the table. The plaintiff was sitting on a bench with another person and the 1st defendant was sitting right opposite the plaintiff, facing him.

A fire extinguisher was placed on the floor besides the first defendant's chair. The first defendant leaned and put his arm on the cylinder and the gas from the cylinder came to the plaintiff's face with full force. Further, the plaintiff stated that this happened due to negligence of the defendants and meeting shouldn't have held there. 

According to the plaintiff, the gas was shooting onto his face for about 10-20 seconds and thereafter he was taken to the Emergency treatment unit and given treatments. Subsequently, he was transferred to a men's ward and was there for three days before he was discharged.

The plaintiff claimed that as a result of the accident, he developed hypertension, shortness of breath, numbness of fingers, short sight and chest pain. He further stated that before this accident, he was a normal person but after this, he developed all these complications.

To establish the fact that his alleged medical condition is a direct result of the accident, the plaintiff mainly relied on the medical report dated 03.02.2005, prepared by Dr Suresh Nath.

However, a careful analysis of the report prepared by Dr Nath shows that it only gives the patient's medical complications and the degree of the permanent disability, but it does not establish any link between the accident and the medical complications stated therein. More importantly, Dr Nath has not stated that the alleged medical condition of the plaintiff was caused by the accident. Had Dr Nath concluded that there was a link between accident and the illnesses complained by the plaintiff, he could have clearly stated so in the report.

Answering the cross examination, the plaintiff admitted that on 15.08.2000 also he went to see a doctor with complains of headaches, dizziness and cramps. It was further revealed, that the plaintiff was admitted to the hospital on 13.11.2000 with a fractured finger and was discharged on 15.11.2000. The plaintiff was admitted to the hospital on 16.05.1986, also with a fractured radius.

Furthermore, the plaintiff admitted that he had an eye complication on 30.09.1985, 05.06.1989, 16.05.1996 and 15.07.1997. The plaintiff further admitted that on 16.05.1996 he went to the hospital complained of painful eyes and soreness. More importantly, the plaintiff admitted that he had eye complications even before the accident.

The above evidence very clearly evinces that the plaintiff has been suffering from eye complications since 1985. This was further confirmed by Dr. Mua who was called by the defence to give evidence. Therefore, it is apparent that the said incident have not attributed to the eye complications complained by the plaintiff. It is important to note that the plaintiff did not call any expert witnesses to prove his alleged medical conditions nor he called any lay witnesses to corroborate his evidence. 

The defendants called Dr Micaele Mua of Labasa Hospital who is an acting consultant physician. According to his evidence the plaintiff had visited him on several occasions with complains of numbness of fingers, arthritis of knee joints short of breath and hypertension.

Dr Mua has examined the patient in 2009 and prepared a report on 26.10.2009. The report was marked and tendered as D1.

 According to that report the plaintiff didn't have any physical injuries. Further the plaintiff was subjected to a basic neurological examination which involved reflexes and senses but nothing detected abnormal on the plaintiff.

When the medical folder of the plaintiff was shown to the witness and questioned, it was disclosed that the plaintiff has had a history of hypertension even before the said accident. Therefore, it cannot be inferred that the plaintiff developed hypertension as a result of the alleged accident. In addition to that, the plaintiff has eye complications since 1985. Dr Mua has liaised with an eye surgeon and it was further confirmed that the plaintiff had some pre existing conditions even before the accident.

In his evidence Dr Mua stated that he could not identify any clinical reason as to why the plaintiff should experience the said medical complications at present. 

When Dr Mua was asked whether there was any link between the alleged medical condition, complained by the plaintiff and the accident, Dr Mua answered in negative. 

Furthermore, Dr Mua had examined the plaintiff on 9.04.2010, but no abnormalities related to the plaintiff's complain were found or identified.

In the cross examination, Dr Mua was questioned by referring to the medical report dated 3.2.2005 where it has given the plaintiff 15% incapacity, but the witness very clearly stated that he cannot see any link between the accident and the plaintiff's medical condition given in the aforesaid report.

It could be noted that though the plaintiff claimed that he suffers from various medical complications as a result of the alleged incident, the evidence of Dr Mua clearly demonstrated that the present medical condition of the plaintiff has no connection whatsoever with the accident. Hence, it further weakened the credibility of the plaintiff's evidence.

The plaintiff did not call any expert medical witness to corroborate his case, whereas he mainly relied on the medical report prepared by Dr Nath, and also on the evidence of Dr Mua. However, neither the testimony of Dr Mua nor the medical report of Dr Nath added any significance to the plaintiff's case. 

In analysing the evidence of the plaintiff and Dr Mua, it could be noted that the plaintiff has had some of those alleged complications, even before the accident. Also, the plaintiff had suffered a fractured finger and a radius before 03.02.2005. The medical report on which the plaintiff relied, was prepared on 03.02.2005. 

In the light of the above evidence, it cannot be concluded that the present medical condition of the plaintiff is directly attributed to the alleged accident. Also there was no proof that the gas contained in the fire extinguisher caused the symptoms complained by the plaintiff. Without this linkage between the act complained of and the damage, the action would fail.

The defendants' second witness was one Vimleshni who also participated in the meeting on the day of incident. According to her, the 1st defendant was making some seating arrangements and due to the confined space of the room, some chairs were rearranged and, when the 1st defendant tried to drag his chair in order to accommodate others, the fire extinguisher suddenly went off and it sprayed on the face of the plaintiff for 1-2 seconds.

The witness further stated that even after that incident the plaintiff remained in the room and once the meeting was over he was advised by his colleagues to seek medical advice.

Accordingly, the plaintiff has walked across to the emergency treatment unit which was next to the meeting room.

In the cross examination, it was suggested to the witness, that after the incident the plaintiff was shocked and therefore the plaintiff was assisted by one Shauleen Nad to the Emergency unit but the witness said that she could not remember such. It was further suggested to the witness that the knob of the fire extinguisher was pressed for 15-20 seconds but the witness did not agree with that. Having observed the demeanour of the witness and the answers given by her in the cross examination, I see no reason to disbelieve her testimony

However, the plaintiff did not call said Shauleen or any other independent witness to corroborate the above position.

The 1st defendant's evidence was recorded at the USP Centre Labasa via satellite video conference.

In his evidence, the first defendant clearly stated that he was not meddling with the fire extinguisher but when he tried to move the fire extinguisher in order to make seating arrangements, it suddenly went off and sprayed on the plaintiff's face. The 1st defendant further stated that even after the accident the plaintiff remained there until the completion of the meeting. He further stated that after the meeting, the plaintiff was advised by their boss to go and breathe Oxygen at the emergency room which is just across the pharmacy.

Answering the cross examination, the 1st defendant stated that as he was not an expert and hence, he did not know what gases contained inside the cylinder other than Carbon Dioxide. 

Further, it was revealed that the 1st defendant had never used a fire extinguisher before the incident.

Although the 1st defendant was cross examined by the plaintiff's counsel it did not taint the credibility of 1st defendant's evidence.

When the 1st defendant's evidence and the evidence of Vimleshini are compared, it appears that it corroborates each other. According to both witnesses, the time duration on which the fire extinguisher sprayed on the face of the plaintiff was less than two seconds. Both of them stated that after the accident the plaintiff remained in the meeting. According to both witnesses, the plaintiff went to the emergency room only after the completion of the meeting.

It did not reveal at all that the 1st defendant was deliberately or negligently meddling with the fire extinguisher when it sprayed on the face of the plaintiff.

Apart from the plaintiff's evidence, no other witness was called to give evidence in support of the fact that the plaintiff was exposed to the gas for more than two seconds as alleged by the plaintiff.

This being a personal injury case, the burden is always on the plaintiff to establish that the injuries claimed were the direct result of the negligent act of the defendants. The plaintiff must show, on the balance of probabilities, not only that defendant was careless, but also that that carelessness caused, or helped to cause, the injury or damage for which he claims. In order to do so, the plaintiff must satisfy four requirements, namely;

1.	The existence of a duty of care;

2.	Breach of the duty of care by the defendant;

3.	A casual connection between the defendant's careless conduct and the damage; and,

4.	Damage to the plaintiff was reasonably foreseeable.

The defendant will be regarded as in breach of a duty of care if his conduct falls below the standard required by the law.

In Grant v. Australian Nitting Mills Ltd. [1936] A.C.85 at 83 Lord Wright commented on the existence of the duty of care and its effects on the action as follows;

"it is essential in English Law that the duty should be established; the mere fact that the man is injured by another's act gives in itself no cause of action: If the act is deliberate, the party injured will have no claim in law even though the injury is intentional so long as the other party is merely exercising a legal right; if the act involves a lack of due care, again no cause of actionable negligence will arise unless the duty to be careful exists."

The 1st defendant in his evidence stated that he had never handled a fire extinguisher before this incident. One important issue to be determined here is, whether the 1st defendant should have anticipated the accident when he was handling the fire extinguisher. The test to be applied here is the test of a reasonable prudent man. The legal standard is not that of the defendant but that of a person of ordinary prudence. It is necessary for the plaintiff to prove that the defendant knew or ought to have known, that the fire extinguisher would spray the gas when it is moved. 

The dictum of Alderson B, in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch 781 at 784;; discusses the issue of negligence clearly and concisely as follows;

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." In other words a person using ordinary care and skill a hypothetical person..."

Fire extinguishers installed in places like houses, offices and hospitals cannot be regarded as dangerous objects. Those are manufactured in such a way that when a fire breaks out it can be used by anyone in the vicinity without causing any harm to the people in the vicinity. 

Further, it has safety measures which would prevent any sudden burst. I do not think that any reasonable prudent man could reasonably have expected that, the fire extinguisher would go off when it was slightly moved. Therefore, when the 1st defendant moved the fire extinguisher in order to make seating arrangements in the room for the other participants, he was not expected to take any precautions against danger which he could not have reasonably anticipated and likewise, the 2nd defendant also could not reasonably foresee any accident when the fire extinguisher was placed in the room. 

The plaintiff submits that the second defendant was negligent in placing the fire extinguisher at the place where the meeting was held. I do not think that placing a fire extinguisher in a room is an act of negligence. It is indeed a precautionary step which would guarantee the safety of the people who are in the room. In any event, having a fire extinguisher in a room cannot be regarded as dangerous and therefore, neither the 1st defendant nor the 2nd defendant was required to take any extra precaution when the meeting was held in the room where the fire extinguisher was placed.

Therefore, in the instant case, although the 1st defendant and 2nd defendant were under a duty to take reasonable care for the plaintiff's safety, it was reasonable for both of them in the absence of any notice to the contrary, to assume that the fire extinguisher was safe. Hence, neither the 1st defendant nor the 2nd defendant can be held liable for breach of duty of care.

Following passage by Lord Campbell LC in Weems v. Mathieson( 1861) 4 Macq 215 at 222 would throw some light on this issue.

"Employers may be liable for the negligence of their delegates without being personally at fault. Their duty is not only to take care personally, but also to ensure that care is taken by whomsoever they delegate the duty to. The liability is not, however strict. It requires the fault on the part of some person, whether the employer personally or the delegate engaged to do the task in question. Accordingly, liability cannot arise if both the employer and the delegate take all reasonable care. Thus, where the accident is caused by an inherent secret defect in machinery, which could not have been discovered by the exercise of due skill and attention on the part of either the employer or the person engaged by him, this will negate any liability."

The following authorities would also give some important guidelines in respect of these issues.

Tilley v. Stevenson [1939]4 All ER 207 at 210 
"It is elementary law that a person cannot be expected to take precautions against dangers which he or she cannot reasonably expect to anticipate." Per Slesser L.J 

Jones v Dunkel (1959) 101 CLR 298 at 304;
"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inferences implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind..... The law does not authorise a more likely than another or the others.... The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."

The plaintiff has failed to prove that he suffered any injury or damage due to the accident. The plaintiff also failed to prove on balance of probability that his present medical condition is directly attributed to the accident.

Therefore, it does not deem necessary to proceed any further to consider the issue of vicarious liability.

It was disclosed in the evidence that the plaintiff was in hospital for only 3 days. The plaintiff continued to work as a Pharmacist in the Labasa Hospital and continued to receive his salary when he was at the hospital and also when he was on leave. 

Therefore, the plaintiff did not have a loss of earning for the period he stayed in the hospital or at home. Further, the plaintiff has not lost any future earnings as a result of the accident.

In the circumstance, the plaintiff is not entitled to the loss of past earning or future earnings.

Therefore, considering the above facts and specially, the fact that there is no reliable and substantial evidence to show that the present medical condition of the plaintiff was a direct consequence of the alleged accident I conclude, that the plaintiff has manifestly failed to prove his claim on the balance of probability. 

On the above premise, I dismiss the plaintiff's action. Cost is summarily assessed in the sum of $ 1000.00.

Pradeep Hettiarachchi
JUDGE

At Labasa
23rd February, 2011