IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 176 of 2004

BETWEEN:

WAISAKE RAWAITALE
Plaintiff

AND:

TROPIC FOREST JOINT VENTURE CO. LTD
Defendant

Counsel: Mr. D. Singh for the Plaintiff.
Mr. M. U. Sahu khan for the Defendant.

Date of Judgment: 20th May, 2011.

JUDGMENT

[1] By writ of summons, the plaintiff Waisake Rawaitale commenced this action against the defendant. The plaintiff who is now aged 61 claimed damages for personal injuries he sustained while working as a logger and chainsaw operator at Nayavu forest Wainibuka.

Background facts:

[2] On or about 25.07.2001, while the plaintiff was tying a steel cable around a piece of log at Naya forest, his right hand was crushed between the steel cable and the log as the bulldozer driver employed by the defendant company operated the winch without any warning.

[3] As a result of the accident the plaintiff suffered serious personal injuries to his right hand.

[4] The plaintiff alleges that he was employed by the defendant company, and the injuries he sustained also during the course of his employment since the defendant was in breach of duty of care.

[5] In the statement of defence, the defendant admits that the plaintiff's right hand was injured during the operation of the winch of the bulldozer. It is stated that the defendant took all necessary precautions and followed the accepted practice of the industry. Further, it is stated that the plaintiff's injuries were caused due to the negligence or contributory negligence of the plaintiff.

[6] Therefore, the defendant prays that the plaintiff's statement of claim be dismissed with costs.

[7] At the Pre-Trial Conference following facts were agreed to by both parties:

1.	The plaintiff is a logger and a chainsaw operator.'

2.	The defendant is a limited liability company. 

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

1.	Whether the plaintiff was employed by the defendant company at the time of the accident

2.	Whether the injuries were caused to the plaintiff due to the negligence of the driver of the bulldozer.

3.	Whether the injuries were caused due to the negligence or contributory negligence of the plaintiff.

4.	If the court concludes that the defendant was liable what would be the quantum of damages.

[9] The plaintiff's evidence can be summarised as follows:

 The alleged accident happened on 25th July 2001 at the interior of Nauru forest where he was working for the defendant. The plaintiff possessed a licence to operate the chainsaw. The plaintiff was tying a cable around a tree trunk which was on the ground. He put the cable around the tree trunk and pulled the cable to tighten it. One Eseroma was assisting him. According to the plaintiff, they used to signal the driver of the bulldozer to pull it after it was tightened.

 The plaintiff further stated that, on the day of incident, the driver of the bulldozer pulled the cable before he was given the signal to do so. Because of that the plaintiff could not pull his right hand since it was struck between the cable and the tree trunk. The plaintiff's partner Eseroma ran to the driver and asked him to stop the vehicle and slacken the cable. 

 According to the plaintiff the bulldozer driver was 15-20 meters away from the plaintiff. The plaintiff was on a lower part of the site, whereas the driver was on a higher part of the ground.

 When the driver was informed by Eseroma, the cable was slackened and Eseroma helped the plaintiff to pull his hand out. Thereafter, Eseroma carried the plaintiff to the Bulldozer and was taken to a house which was about 9 km away from the site. When they reached that house there was a truck in which the plaintiff was taken to the Health Centre at Nayavu. From there, the plaintiff was transferred to the CWM hospital.

 At the CWM hospital, the plaintiff underwent a surgery and was also given 2 pints of blood. The plaintiff was in the hospital from 25.07.2001 until 17.08.2001.

 The plaintiff's disability assessment was done by Dr. A.Ledua the Orthopaedic surgeon of CWM hospital. According to Dr Ledua's report, the plaintiff has sustained 25% of permanent incapacity as a result of the injuries he suffered while at work.

[10] The defendant's contention is that the plaintiff was not employed by the defendant and also the plaintiff's injuries attributed to his contributory negligence. In cross examination, it was suggested to the plaintiff that the defendant was not the employer. The plaintiff denied this and stated that he was paid by the defendant.

[11] The plaintiff was not consistent in his answers as to the time period in which he worked under the defendant and also failed to state exactly the period in which the defendant carried out logging in the Nayau forest.

[12] This accident happened in 2001, i.e. almost ten years ago. Therefore, it is obvious that the plaintiff's memory could have faded with the passage of time. Having observed the demeanour of the plaintiff and having heard his testimony, I am not left with the opinion that he was being deliberately untruthful. More importantly, there is no reason to doubt that the plaintiff suffered an accident arising out of and in the course of his employment.

[13] The second witness for the plaintiff is Manoa Roco under whose license the defendant was logging in the forest at the time of the accident. He firmly stated that the plaintiff was employed not by him but by the defendant. 

[14] In cross examination, it was suggested to the witness that out of the money that was paid to him for the logging license, he used to pay for the workers but he denied it. This witness also could not state exactly the period in which the defendant was engaged in logging but his testimony clearly established that the plaintiff was employed by the defendant.

[15] The defendant called two witnesses, namely Bechu Ali and John Mohammed. Bechu Ali is the Logging Supervisor of the defendant company. He stated that all the logging crews were engaged by the licensee Manoa Roco. According to him, the driver of the Bulldozer was Ram Bridge. He further stated that on certain occasions the driver of the Bulldozer could not see the site and therefore somebody had to signal the driver to operate the bulldozer. 

[16] Furthermore, he stated that he briefed the workers on the procedure to be followed, the plaintiff's duty was to put the cable ring around the trunks of fallen trees and Eseroma used to signal the bulldozer driver. The witness further stated that on the day of incident, the Bulldozer driver pulled the cable as Eseroma signalled him to do so.

[17] However, when he was being cross examined it was disclosed that the plaintiff and the said Eseroma were in 5 meters away from each other and the witness was some 20 meters away from the plaintiff at the time of the accident. Further, he stated that the bulldozer was operating some 20 meters away from where he was.

[18] Furthermore, the witness stated that Eseroma signalled twice and the driver started pulling the cable and then the plaintiff injured his hand. It could be noted that the witness made an unsuccessful attempt to put the blame on Eseroma.

[19] However, I am not prepared to accept him as a reliable witness. When considering the location he stayed and the distance between the plaintiff and the place from where the bulldozer operated and also the geographical nature of the site, it is improbable, if not, impossible for the witness to see, the plaintiff putting cable around the trunk of the tree, signals being given by Eseroma to the driver, and the driver operating the cable simultaneously. Further, when he was questioned as to whether he stopped the bulldozer driver from tightening the cable when the plaintiff's hand was crushed, the witness answered in the negative, which evinces that the witness had not seen the incident. If he had been in a position to see the driver of the bulldozer as well as the plaintiff he could have easily asked or signalled the driver to stop the bulldozer or slacken the cable. 

[20] It is apparent that there was no proper and effective communication system between the bulldozer operator and the plaintiff. The logging supervisor Ali in his evidence admitted that the plaintiff and the bulldozer operator could not see each other on certain occasions. Therefore, it was incumbent on the defendant company to provide every possible safety measures to avoid any injury to their workers and also to provide them a safe working environment.

[21] Considering the nature of the work, place, and the type of machinery that were used, the defendant company should have taken sufficient steps to ensure the safety of the workers who were working under the supervision and the control of the company. Therefore, it is evident that the defendant company has not taken sufficient steps to ensure the safety of the workers at the site.

[22] None of the witnesses testified by the defence were able to demonstrate the negligence or contributory negligence on the part of the plaintiff. In the circumstance of this case, the defendant being the employer had a duty to ensure the safety of the plaintiff in the course of his employment. There was a breach of that duty; hence, the defendant is liable to the plaintiff in damages for injuries suffered by him.

[23] The defence witness Ali admitted that the plaintiff was working in a noisy environment and it was very difficult for the bulldozer driver to hear what others say. This clearly shows that the bulldozer driver was negligent in the manner in which he operated the bulldozer resulting the plaintiff's hand crushed between the cable and the trunk of the tree. The driver should have been keeping a proper look out and he should not have pulled the cable unless he was so sure that the tying of the cable was completed. 

[24] Further, the supervisor Ali also neglected his duty. Was he not required to supervise the work as well as the safety of the workers under him? What did he supervise? He was not supposed to stay away from the site. He being a supervisor should have been close to the site instead of staying some 20 meters away from the site.

[25] The fact that such a basic requirement was neglected renders it quite impossible for me to place any weight on Ali's evidence that he had fully supervised the plaintiff and the driver on how to operate the machine.

[26] The second witness for the defence is one John Mohammed who is a company director of the defendant company. He stated that the plaintiff was not employed by the defendant company. However, he admitted that Ram Bridge, the driver of the bulldozer was employed by the defendant company. Further, it has been proved that the bulldozer driver was employed by the defendant company.

[27] The employers duty to provide safe working environment to its workers was succinctly stated by Lord Denning in Smith v. Austin Lifts Ltd [1959] 1 W.L.R. 100 at 117, as follows:

......'I think rightly, that employees who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care to devise a safe system of work, and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course, on the circumstances.' 

[28] It can be deduced from the evidence of the supervisor that the bulldozer driver could not see the plaintiff from the place where the bulldozer operated. Likewise, the plaintiff's assistant Eseroma also could not properly see the driver of the Bulldozer. That is why Eseroma had to run to the driver to ask him to stop the pulling of the cable when the plaintiff's hand was struck between the cable and the trunk of the tree. This clearly warrants the requirement of adequate and effective communication system between the driver and the person who signalled the driver. However, the evidence of this case clearly established that there was no proper communication system prevailed at the site. Furthermore, it is apparent that the supervisor was not in a position to see the way that the plaintiff and his assistant worked and how they signalled to the driver to pull the cable.

[29] The document C1 in the agreed bundle of document shows that the Jan Bulldozing Co. Ltd is the employer of the plaintiff. The Rubber Stamp of the company and the signature on behalf of the company can be seen on the said document. On the front page of the same document, Tropic Forest Joint Venture, the defendant is mentioned as the employer.

[30] However, since the defendant's witness admits that it was the defendant who provided all the machineries, court has to accept that the Bulldozer was operated on the instruction of the defendant company. Further, the bulldozer driver was also employed by the defendant. 

[31] It was not disputed that the plaintiff was injured as a result of the operation of the Bulldozer. Furthermore, there is no evidence to show that the plaintiff's negligence had attributed to the accident.

[32] In any event, it is proved that the plaintiff got injured due to the negligence of the driver who operated the bulldozer. Even if the plaintiff has failed to establish that he was employed by the defendant company, it is still proved on the balance of probabilities that the plaintiff's injuries were caused due to the breach of statutory duties on the part of the defendant company and its servants or agents. 

[33] It is proved that the plaintiff was injured during the course of his employment, and it is further proved that, the bulldozer was used by the defendant company. Furthermore, the plaintiff was injured when the bulldozer pulled the cable while the plaintiff was still tying the cable around the trunk of the tree.

[34] The main defence taken up by the defendant is that it did not employ the plaintiff. It is pertinent to note that the plaintiff in his evidence stated that his salary was paid by the defendant. The plaintiff could not tender any salary slips to show that the plaintiff was being paid by the defendant. But the oral evidence led before this court, in my view is sufficient to establish that there existed an employer employee relationship between the defendant and the plaintiff. Therefore, the defendant had a duty to take a reasonable care of the safety of his workman in all the circumstances of the case

[35] The witness for the defendant admits that the machineries were provided by the defendant. The second witness for the defendant admits that Rambridge, the bulldozer operator was also employed by the defendant, which means that the plaintiff was injured by the bulldozer, operated by the defendant's driver. Therefore, irrespective of whether or not the plaintiff was employed by the defendant, the defendant cannot escape from the liability of causing injuries to the plaintiff. 

[36] Although the defendant alleges that the injuries suffered by the plaintiff were caused due to the negligence or contributory negligence of the plaintiff, the evidence before me does not permit me to come into such a conclusion. More importantly, the evidence given by the defendant's witnesses, when considered does not indicate any negligence or contributory negligence on the part of the plaintiff. 

[37] Assessing all of the evidence, I conclude that the plaintiff has proved his case against the defendant on the balance of probability, and therefore, is entitled to have damages for injuries he sustained during his employment.

The medical condition of the plaintiff: 

[38] Clearly on the evidence before the Court, the plaintiff has suffered a very severe injury to his right hand which is dominant, is considerably disabled as a result of that injury and is unable to engage in any gainful employment. He cannot do any work like writing, gardening by using his right hand. Also his finger movements are restricted. Further, the plaintiff's degree of disability is not challenged by the defendant and also there is no dispute with respect to the medical evidence by the defendant. 

General Damages:

[39] General damages are those damages which the law will presume to be a direct, natural or probable consequence of the breach of contract or of duty of care in tort.

[40] The plaintiff's claim for general damages is for pain and suffering from the injuries that he has sustained, loss of amenities of life, loss of future earnings and other material benefits.
[41] To assess damages under this head one has to take into account the Medical Report herein. 

[42] According to the medical report the plaintiff's right hand was crushed and resulted in an open fracture of his index, middle, ring and little finger metacarpal.

[43] His wounds have healed but fractures dorsally angulated and MCP & IP joint of the right hand are quite stiff. He is unable to make a fist.

Pain and sufferings:

[44] In this case the plaintiff did go through some pain and suffering as can be seen from the medical reports and his own evidence and therefore, is entitled to damages under this head.
 
[45] As stated in Kemp & Kemp (Vol.1) at page 2007 2-010;

'The Court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages.'

[46] Considering the way the accident happened and the locality where it took place one can imagine the pain and suffering the victim must have gone through and is still suffering as a result of the injuries received by him. The plaintiff still suffers discomfort since the movements of his right hand are restricted to a great extent. The plaintiff said that he could not do a job because of the injury to his right hand which is dominant. Further, he cannot write, and do any work with it. 

Loss of amenities of life:

[47] The plaintiff is entitled to have loss of amenities of life, which includes his complain about how his day to day life is affected and the discomfort in his right hand. Damages under this head should compensate the plaintiff for his loss of enjoyment resulting from the accident, namely, when he can no longer do the things he was accustomed to doing. In the present case, the plaintiff's sporting and gardening activities are greatly circumscribed.

[48] In Kemp & Kemp, The Quantum of Damages (Vol.1) at page 1009-1-008 the loss of amenities is explained as follows;

'There is a head of damage which is sometimes called the loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed and will never again go upon his walking excursions-things of that kind-loss of amenities.' 

[49] This was further enunciated by Birkett L J in Manley v Rugby Portland Cement Co. Ltd[1951] C.A.No286 as follows;

'This head embraces everything which reduces the plaintiff's enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the loss of amenity. What matters is the fact of deprivation of an amenity or amenities, not whether the injured person is aware of such deprivation....'

[50] In making awards which are fair and reasonable the Court falls back on previous amounts so that the figures arrived at are in proportion to amounts in other cases of those who have suffered injuries of comparable severity.

[60] In A.G v. Praveen Sharma (FCA Reps 94/351) a young man of 19 who lost the lower part of his right leg as a result of negligence following a sport injury was awarded approximately $ 52000.00 in general damages. 

[61] In Tacirua Transport v. Chand ( FCA Reps 95/67) an award of $ 20000.00 was awarded for considerably lighter injuries.

[62] Being guided by these awards and having considered the injuries suffered by the plaintiff in this case, I am of the view that an amount of $40000.00 to be appropriate for the general damages, for pain and suffering and for loss of amenities.

Interest:

[63] The general damages award for pain and suffering will bear interest at the rate of 6% from the date of accident until today.

[64] In this matter the cause of action arose in July 2001. I therefore award interest from that date to the date of this judgment i.e. a period of approximately 9 years and 10 months at the rate of 6% pa. This computes to $ 40000.00 x 6% x 9 years and 10 months =$ 63600.00.

Special damages:

[65] Special damages are those damages which are not presumed and must be claimed and proved specially. 

[66] In British Transport Commission v. Gourley [1956] AC 185 Lord Goddard stated:

'Special damage has to be specially pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation.'

[67] The bare statements are not sufficient when a person is claiming special damages. The court should not be called on to assume that the plaintiff suffered such a loss, and also cannot assess a figure in the absence of satisfactory proof of special damages. It is incumbent on the claimant to call evidence supporting their claims. They cannot simply rely on what is stated in the written submission and expect to be awarded those sums. 

[68] In the present case the plaintiff has not produced adequate evidence to substantiate special damages instead the solicitor for the plaintiff has filed a schedule of special damages which in my view is not evidence. No receipts or evidence has been tendered to show that the hospital charges and expenses for medicine amounted to $ 177.00. Neither in evidence in chief nor in cross- examination had the plaintiff stated about the expenses accrued for medical and transport. Hence, I conclude that medical expenses and transport expenses were not proved by the plaintiff. Therefore, I am unable to assess what it would be and I disallow the claim for special damages in this action.

Loss of earnings:

[69] Awards are made for loss of earnings in personal injury claims of this nature. 

[70] It is evident that the plaintiff did not return to his previous employment as he stated that he did not work at all after the accident.

[71] The plaintiff has failed to prove that there was a FNPF contribution by the defendant but has proved that he was earning $ 120.00 per week at the time of the accident.

[72] In awarding damages for loss of earning capacity, Court has to take into account the plaintiff's age and his disability. The plaintiff was born on 29.07.1950 and the accident happened on 25.07.2001. At the time of the accident he was 51 years old. I calculate the loss of future earnings assuming he would have retired at 55 years. Therefore, multiplier of 4 years is appropriate with a multiplicand of $, 6240.00 per annum making a total reasonable sum under this head for 24960.00

[73] Cost is summarily assessed in the sum of $ 1500.00. 

Orders:

[74] The orders are therefore, as follows.

1.	General damages for pain and suffering, loss of amenities of life and interest thereon; of $ 63600.00

2.	Loss of prospective earnings $ 24960.00

3.	The defendant shall pay the plaintiff's costs of $ 1500.00.

[75] There will therefore be judgment for the plaintiff against the defendants in the sum of $ 90060.00.

Pradeep Hettiarachchi
JUDGE

20.5.2011