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Raiwaqa Buses Ltd v Labour Officer [2011] FJHC 174; HBA23.2008 (18 March 2011)

IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

HBA NO: 23/2008

BETWEEN:

RAIWAQA BUSES LIMITED
P.O. Box 5167, Raiwaqa
Appellant

AND:

THE LABOUR OFFICER for and on behalf of
the dependants of the deceased Workman
Uday Raj of Jittu Estate, Raiwaqa, Suva
Respondent

Counsel : Ms R.Naidu for the Appellant
Ms Serulagilagi for the Respondent

Date of hearing: 18th February,2011
Date of Judgment :18th March, 2011
Judgment of: JUSTICE A.L.B.BRITO-MUTUNAYAGAM

JUDGMENT OF THE COURT

1. This Appeal is filed from a Judgment of the Magistrates Court, which awarded compensation in favor of the Respondent in a sum of $24,000.00 with costs of $850.00 on 25th September 2008.
   

The Appellants have appealed from the said decision on the following 6 Grounds;

1. The Learned Trial Magistrate erred in law and fact by holding that that the deceased was stressed that day at work which has contributed and/or accelerated to his death. The deceased was a heavy smoker and an alcoholic which would have no doubt contributed and/or accelerated to his death.
   
2. The Learned Trial Magistrate erred in law in holding that the deceased died of strenuous work while driving the bus with the Applicant Company when the deceased joined the Applicant Company only for seven months which could not have contributed to heart attack within this period of time.
   
3. The Learned Trial Magistrate failed to take into consideration the deceased's history of employment and the nature of work he was engaged in, his social activity and the style of living.
   
4. The Learned Trial Magistrate erred in law and in fact in not taking into account that the deceased was not an active person at the age of 45
   
5. The Learned Trial Magistrate erred in law and/or misdirected himself in law and in fact in concluding that the Appellant was entitled to pay the sum of $24,000.00 together with costs of $850.00 when the Court has failed to take into account that the deceased was separated from his wife, his children were not claimants and the deceased was not the only one to look after this mother.
   
6. The Learned Trial Magistrate erred in law and in fact by awarding the full portion of the award under the Workmen's Compensation Act when there was no clear evidence about the dependents of the deceased, especially his two children.
   
2. The Facts
   

The workman(Uday Raj) had been employed as a casual bus driver by Raiwaqa Buses Limited. On 27thJanuary, 2003, the Raiwaqa bus he was driving, had broken down. As a result, he had to walk to a bus garage and take another bus for his passengers. When he had continued his route, he had developed a chest pain and collapsed in the bus. He was taken to Colonial War Memorial Hospital by a passenger and pronounced dead on arrival.

The Labour Office claimed compensation in the Magistrates' Court, for and on behalf of the dependants of the deceased workman under Section 5(1) of the Workman's Compensation Act[Cap.94] .

3. The Law and the Issues
   

Section 5(1) of the Workmen's Compensation Act provides that an employer shall be liable to pay compensation where "personal injury by accident arising out of and in the course of the employment" was caused to a workman.

The three requirements of Section 5(1) of the Workmen's Compensation Act are dealt with hereunder.

1. Personal injury by accident
   

The circumstances which resulted in the death of the workman(as outlined above), was uncontested. The Appellant's position however, was that that personal injury by accident did not arise out of and in the course of the employment. The contention of the Appellant was that the workman was a heavy smoker and an alcoholic, and these factors contributed and/or accelerated his death.

Evidence was given by the mother of the deceased, Consultant Pathologist, Colonial War Memorial Hospital and a bus driver of the Appellant Company in the Magistrates' Court .

The evidence of Dr Samberkar, Consultant Pathologist was that the stressful nature of driving heavy vehicles and smoking contributed and accelerated the death of the workman. He stated further the deceased did not have any other medical problems, and "if not for strenuous work, he may have survived".

The witness from the Appellant Company testified that the workman had extra stress on the date of his death.

The term "personal injury by accident" has been defined by Lord Atkin in Fife Coal Co. Ltd v Young (1940)2 All .E.R 85 at page 91 as follows:

"It is necessary to emphasize the distinction between "accident" and "injury" ..It is now established, however, that apart from external accident, there may be what no doubt others as well as myself have called internal accident...A man suffers from ruptur, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity. "

"Personal injury" in the Workmen's Compensation Act embraces all adverse physical or mental consequences of an "accident".

It has been held under equivalent Workmen's Compensation Legislation and followed by the Courts in Fiji, that a personal injury by accident is constituted, if employment is one of the contributing causes to the accident, which would not otherwise have happened.

Lord Loreburn in Clover, Clayton & Co. Ltd v Hughes (1908-10) All E.R. 220 at page 222, stated:

"It seems to be enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have occurred."(emphasis mine)

In Oates v Earl Fitzwilliam's Collieries Co. (1939) 2 All E.R. 498, it was held injury by accident arises upon a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about the time of his death. At page 502,it was stated:

".and that is so .. if the work which he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence. Moreover, this is none the less true through there may be no evidence of any strain or similar cause other than that arising out of the workman's ordinary work." (emphasis mine)

In BA Industries Limited and Labour Officer, BA (Civil Appeal 37/83 Fiji Court Appeal) cited in Fiji Sugar Corporation Ltd v Labour Officer [1995] FJHC 38,and referred to by Counsel for the Appellant, it was held:

"The burden on the respondent was to show that the heart attack occurred during the course of his employment and that the work he was doing was a contributing factor". (emphasis mine)

The Respondent in this case, had discharged the burden that lay upon him. The medical evidence established that physiological injury contributed in a material degree to the cause of death of the workman. It was therefore, a case of personal injury by accident as found by the Learned Magistrate.

ii. Arising out of employment

The second requirement for the purposes of the Act under consideration, is that it is necessary that personal injury by accident arises out of employment.

The expression "arising out of employment" has been defined as follows:

"Arising out of the employment obviously means arising out of the work which the man is employed to do and which is incident to it-in other words out of his service" per Lord Finlay in Davidson v M'Robb [1918]AC 304 at page.314

In Clover, Clayton & Co. Ltd v Hughes (supra) at page 223,it was stated:

"An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health...".

The Learned Magistrate held, that "it certainly was strenuous stress which was a contributing factor to the heart attack .I find it arose out of employment". This finding of fact is supported by the medical evidence and the witness of the Appellant Company.

3. In the course of employment
   

Lord Atkinson in St. Helen's Colliery Co. V. Hewitson, [1924] A.C. 59 stated:

"A workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do'. Or what is, in other and I think better words, in effect the same thing-namely, when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but is to be borne mind that the word 'employment' as here used covers and includes things belonging to or arising out of it".

The deceased was engaged in the work he was employed to do when the heart affliction befell him. The Magistrate's finding that death arose in the course of employment is therefore, correct.

4. Grounds 1, 2 and 3 of this Appeal
   

The matters urged as Grounds 1, 2 and 3 of this Appeal are briefly as follows:

(a) the Learned Magistrate's finding that stress at work that day contributed and/or accelerated to his death is erroneous .The deceased was a heavy smoker and an alcoholic which would have no doubt contributed and/or accelerated to his death.

(b) a period of seven months employment with the Applicant Company could not have contributed to a heart attack .

(c) the deceased's history of employment, the nature of work he was engaged in, his social activity and the style of living were the not taken into account by the Learned Magistrate.

The matters urged in (a),(b) and (c) above transpired in the testimony of the Consultant Pathologist, who concluded that it was the employment that had a physiological effect on the workman, and contributed and accelerated his death.

In my view, the Learned Magistrate has correctly evaluated the evidence and applied the law as enunciated in the cases referred to in his Judgment.

The contentions of the Appellant in Ground 1,2, and 3 of the Appeal are therefore without merit.

Ground 4 of the Appeal is irrelevant, and was not dealt with Counsel for the Appellant in the Written Submissions nor at the hearing.

The Appellant has reproduced in its written submissions, excerpts of the cross-examination of the Pathologist, which it contends has not been properly recorded by the Learned Magistrate. A reading of, the question and answer immediately preceding and that in between the limited excerpts reproduced, conveys clearly the matters that transpired. I find it to be factually correct that questions in the cross examination of two other witnesses have not been recorded, as submitted by Counsel for the Appellant. However, since the answers transcribed sufficiently imply the questions posed, there has been no miscarriage of justice.

5. Grounds 5 and 6 of Appeal
   

The Appellant submitted as Grounds 5 and 6 that the Learned Magistrate had erred in law and in fact in concluding that the Applicant was entitled to pay the full portion of the award together with costs of $850.00

5.1 It was submitted on behalf of the Appellant,that there was no evidence by the mother of the deceased that she was wholly dependent on the deceased.

The evidence of the mother was that the deceased supported her and his two children, and that her other son provided financial support to her for a short period when the deceased got injured.

The term "dependants" is defined in the Workmen's Compensation Act to mean:

"those members of the family of a workman who were wholly or in part dependent upon his earnings at the time of his death, .. and, where the workman, being the parent .. leaves such child so dependent upon his earnings, .. leaves a parent or grandparent so dependent upon his earnings...

"member of the family" means when used in relation to any person, the wife, husband, father, mother, .. son, daughter, ... of such person;".

5.2 It was also submitted that the two children were 25 and 21 years of age, and therefore not dependent on the deceased.

In order to be eligible for compensation,a member of the family has to be dependent on the deceased. The evidence that the two children were supported by the deceased was uncontroverted.

In Hodgson v Owners of the West Stanley Colliery [1910] UKLawRpAC 4; [1910] A.C. 229 it was stated:

"The question of dependency under the Act is one of fact to be determined by the evidence in each case. The question here is by who was the applicant in fact maintained.... The compensation provided by the Act is for the loss of a breadwinner."

At page 233, it was stated:

" If a workman is killed in an accident, all who are dependent upon him (within the prescribed limits of kinship) may claim compensation from the employer.... The employer is protected by a statutory limit of liability in regard to each of the deaths. It is for the arbitrator or county court judge to ascertain, purely as a question of fact, who are dependent and to what extent, and what they are to receive, and how the compensation is to be distributed among the dependents, if there be more than one, in accordance with the directions of the Act."

Section 6 provides that where death results from the injury-

(a) if the workman leaves any dependants wholly dependent on his earnings, the amount of compensation shall be a sum equal to two hundred and eight weeks earnings. Provided that in any case the compensation shall not be less than nine thousand or more than twenty-four thousand dollars,"

I hold the Learned Magistrate was correct in making the award of $24,000.

6. For the reasons given above, I dismiss the appeal with costs summarily assessed in the sum of $1000. The Judgment of the Learned Magistrate stands.
   

A.L.B.Brito-Mutunayagam
Judge

18 March, 2011