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Amoe v Leyland Limited [2012] FJHC 1024; HBC366.2007 (12 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 366 of 2007

BETWEEN:

FESAITU AMOE
[Plaintiff]

AND:

LEYLAND LIMITED
[Defendant]

Counsel: Mr. S. Singh for the Plaintiff.
MS. Naidu for the Defendant.

Date of Judgment: 12th April, 2012

JUDGMENT

1. On 13.08.2007, the plaintiff filed a writ against the defendant claiming special and general damages for injuries sustained in the course of his employment with the defendant company.
   
2. The defendant is a limited liability company engaged in the processing and distribution of meat products. The plaintiff was at all material times a worker at the defendant company.
   
3. On or about 19.08.2004, while the plaintiff was cleaning a mince machine at the factory, the machine got switched on and as a result the plaintiff lost part of his left arm. He alleges that his injuries were caused by reason of the defendant's negligence. The plaintiff now suffers 65% permanent disability as a result of the injury.
   
4. The following facts were agreed to by the parties at the pre-trial conference:
   
   1. The plaintiff was a factory worker by occupation and resides at Grantham Road, Raiwaqa. The plaintiff brings this claim for personal injuries received in the course of his employment with the defendant.
      
   2. The defendant is a limited liability company having its registered office at G.P.O. Box 325, Suva and engaged in processing and distributing meat products in Fiji.
      
   3. The plaintiff was at all material times a worker at the defendant's factory located at 5, Vuo Street, Lami.
      
   4. The plaintiff sustained injuries on 19.08.2004.
      
5. The parties are at variance on following issues:
   
   1. Whether the plaintiff sustained injuries on 19.08.2004 due to the defendant's negligence or whether the said injuries were caused solely due to his own negligence or contributed to by him?
      
   2. Whether, the plaintiff's injuries were caused due to breach of statutory duties on part of the defendant, its servants or agents?
      
   100. Whether either party is entitled to costs and if so on what basis?
        
6. In the trial, the plaintiff and another worker named Allen Peter gave evidence on behalf of the plaintiff.
   
7. According to the plaintiff's evidence, he started working in the defendant's company in 2004. The plaintiff stated that though he worked as a butcher he was not given a proper training. On the day of incident the plaintiff was washing the mince machine. Although it was not his duty to clean and wash the mince machine, he had to do that because his supervisor asked him to do so.
   
8. The plaintiff further stated that, he had washed the particular machine 5 times before the accident, but nobody taught him how to wash the machine.
   
9. The plaintiff went on to explain the incident and stated that he took off the cover of the machine, put his hand in and washed the shaft, while he was holding the switch of the machine with his other hand.
   
10. At the same time, another worker named Allan Pitter came with some meat and when the plaintiff asked him why did he bring meat since the machine was being washed he had told the plaintiff that the supervisor asked him to bring the meat.
    
11. Then the supervisor shouted at the plaintiff and plaintiff was shocked and pressed the switch while his hand was still inside.
    
12. The plaintiff pulled his hand out, but it was severely injured and bleeding. He was taken to a nearby health centre and later was transferred to the CWM Hospital. He was hospitalized for 2-3 months. The plaintiff stated that he was never instructed by his supervisor how to clean the machine safely.
    
13. The plaintiff further stated that he had a partner before the injury but after injury he could not find anyone, he did not make any attempt to find any employment because no company would recruit him since he cannot work with one hand and it was due to the fault of the defendant company that he had lost his hand.
    
14. In cross examination the plaintiff admitted that he was offered another job by the defendant company, but he refused to accept since he was embarrassed.
15. It is to be noted that the plaintiff was initially involved in packing sausages, but later he was involved in other works which includes manufacturing of sausages.
    
16. The next witness called by the plaintiff was Allan Peter. According to him, he was standing closer to the plaintiff while scaling meat. He heard a bang on the machine and saw that the plaintiff's hand was bleeding.
    
17. The witness also confirmed that no proper training as to how the machine should be operated was given to them by the defendant.
    
18. It is to be noted that in cross examination the witness explained the proper procedure that is to be followed when the machine is cleaned. He further stated that there was another switch apart from the click switch and it was the duty of the workers who engaged in cleaning the machine to switch it off.
    
19. Furthermore, he stated that it was the supervisor who instructed them to turn off the switch and it applies to everyone in the factory.
    
20. The above evidence proves that even if the plaintiff and his witness were not trained to operate the mince machine, they had been given sufficient instructions as to how it should be cleaned and also the necessary safety methods to be followed when it is cleaned.
    
21. The defendant called three witnesses, namely Ronald Sharma, Ferrati and Veitata.
    
22. According to Ronald Sharma, the photographs which were shown at the trial were taken by him. Referring to a set of instructions that had been given to the workers, he stated that the said set of instructions was photographed at the main gate some 3-4 feet away from the wall. Those instructions were on an A4 size paper and the date appears on it is 01.02.2010.
    
23. The 2nd witness is Ferrati who was the Manager Operation at the time of the accident. According to him, the plaintiff was attached to the packing unit and was not supposed to touch the machine. He further stated that workers were instructed to switch off the machine before it is washed.
    
24. The witness further stated that in 2004, John Martin was the Production Manager and it was the duty of the Production Manager to teach workers how to operate the machines.
    
25. Ferrati further stated that, he demonstrated the workers how to clean it, it is the operator who turns off switches not the supervisor, everyone is taught how to operate the machine and workers who don't know how to operate are never asked to operate.
    
26. Answering cross examination the witness stated that he is not aware of the fact that whether the plaintiff was given the training but it is a company procedure. He further stated that the plaintiff had completed just 4 months in the defendant company, when he met with the accident.
    
27. The final witness for the defendant is Sekove Veitata Silatolu who has been in the company for 25 years.
    
28. According to him, on the day of incident he was standing 2 meters away from the plaintiff and he saw the plaintiff washing the machine.
    
29. He also stated that when the machine was being washed, the plaintiff was holding the switch by one hand while other hand was inside the machine.
    
30. It is plain and obvious that the plaintiff though assigned to clean and wash the mince machine did not process adequate technical knowledge in the relevant field. It is further proved that the plaintiff has just completed 4 months in the service when this accident occurred.
    
31. The defendant company also failed to lead any evidence to prove that the plaintiff was given a proper training in cleaning the machine.
    
32. However, the plaintiff's evidence shows that even prior to the accident, on several instances he cleaned and washed the mince machine so that it was not a new thing to the plaintiff.
    
33. Further, according to the plaintiff's evidence he knew that there was a Master Switch but still he did not bother to make sure that it was turned off.
    
34. Further, he admitted that he was holding the switch since he was tired and exhausted.
    
35. As admitted by the plaintiff and also demonstrated by photographs, the switch of the mince machine was a lever type one. Evidence shows that the plaintiff was well aware of the switch; hence even if the Master Switch was on, still the machine wouldn't have started had not the plaintiff pulled the lever switch, which clearly shows the plaintiff's conduct also contributed to the accident to a certain extent.
    

Analysis

36. It is the duty of the employer to take all possible measures to ensure the safety of its workers while at work and also to provide a safe working environment for them.
    
37. Therefore, the issue of paramount importance is whether the defendant had taken into consideration the plaintiff's inexperience before asking him to clean the mince machine and provided the plaintiff with a reasonable safe place of work.
    
38. The defendant contended that the plaintiff was adequately instructed as to the manner in which the machines should be cleaned, but in my opinion merely giving basic instructions where a danger is known to exist is not always sufficient to exonerate the employer from the liability.
    
39. Although the evidence shows that the defendant provided instructions to the plaintiff and other workers to switch off the machines they were working on, there is no evidence to show that any steps were taken by the supervisors to see whether those instructions are actually being carried out.
    
40. It is clear that the company has without adequate instructions and a proper training employed the plaintiff to wash and operate machine although, the plaintiff was originally assigned to the packing section.
    
41. It must be observed that had a person given the required technical knowledge, instructed and supervised the plaintiff, dangers could have been avoided to a certain extent. The plaintiff was recruited to the packing section and was not supposed to work on machines. It is true that the plaintiff and other workers used to clean the machine from time to time when ordered to do so by their superior officer.
    
42. In examination in chief, Mr Fereti testified as follows:
    

Q. Can you please go step by step basis and explained on how it is to be cleaned?

A. First of all before you do any cleaning you off the main power switch and then taking out the knives and nuts. Then you turn the shaft anti clockwise. There is a hole in the front of the shaft and there is a hook.

Q. where is that hook?

A. The hook is always hanging on the machine.

Q. What do you do with that hook?

A. The hook is to pull that shaft out.

43. The above evidence shows that the cleaning of the machine also required some technical knowledge, in particular the dismantling of the parts as shown in the photographs. More importantly, the defence witness Fereti, when giving evidence by referring to the photographs, explained the procedure that has to be followed when the machine is being washed, which further confirmed that it requires some technical knowledge.
    
44. The defendant may have instructed the plaintiff as to the safety methods to be taken before cleaning the machine, but considering the fact that he was initially attached to the packing section, and also the brief period that he was employed with the defendant prior to the accident, it cannot be sensibly inferred that the plaintiff, would have acquired sufficient technical knowledge on the particular field within a short period.
    
45. More importantly, the plaintiff had joined the defendant company on 1st April 2004, and the accident occurred on 19th August 2004 i.e. barely 4 months after he started work at the defendant company. It is proved that the plaintiff was initially attached to the packing section, and was not subjected to any formal training with regard to the operation and maintenance of the machines, in particular mince machines.
    
46. In cross examination Fereti testified as follows:
    

Q. My question is that if you were not the Operation Manager at the time Fesaitu joined then you are not in a position to know whether Fesaitu was given any training or not?

A. Yes.

Q. You seem to place a lot of emphasis that when you were the Production Manager, you would not let any newcomers to touch the machines for 3 months?

A. Yes.

Q. Fesaitu only joined in 2004?

A. Yes.

Q. He suffered this injury barely 4 months after he joined?

A. Yes.

Q. If you were in charge you would not let him to touch any of the machines for the first 3 months.

A. Yes.

47. The above evidence further confirmed the fact that the plaintiff had little or no opportunity to undergo proper training before the accident. Therefore, in my opinion, the defendant company having asked the plaintiff who did not have enough experience and proper training or technical knowledge to clean the mince machine has failed to exercise duty of care expected from an employer.
    
48. Furthermore, the set of instructions marked as exhibit 1 has the date 01.02.2010 on it; hence, it is clear that, at the time of the accident the particular set of instructions could not have been there. Further, the efficiency and the diligence of a worker depend on so many factors like his work experience in the particular field, seniority and the level of education. Therefore, an employer cannot reasonably expect from an inexperienced worker to perform certain duties which requires some special knowledge in the same way that would be done by an experienced worker.
    
49. Therefore, it is apparent that despite the instructions given by the defendant, the inexperience of the plaintiff in the relevant field would also have contributed significantly to the accident. Had the plaintiff been an experienced and trained person in the relevant field, he would not have held the lever switch of the machine while cleaning it and also he would not have put his hand into the machine.
    
50. The above facts lead to an inevitable conclusion that had the plaintiff been given proper training as to how to remove the parts of the mince machine when it is required to clean and had he also been supervised by a responsible person, this accident could have been averted.
    
51. Duty of an employer to give necessary safety instructions was discussed in detail in General Cleaning Contractors Ltd. v.Christmas [1953] A.C 189 by Lord Oaksey as follows:
    

'in my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workman. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that there work people are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.'

52. In the circumstances it is plain and obvious that the duty of care expected from an employer had not been exercised by the defendant company, hence, it is my considered view that the defendant is liable for not exercising due care to prevent the accident which resulted the plaintiff's injury.
    
53. Now I shall analyze the evidence to ascertain whether there had been any negligence on the part of the plaintiff; and if so to what degree that it would have contributed to the injuries suffered by the plaintiff.
    
54. In Nance v. British Colombia Electric Ry. Co. Ltd [1951] AC 601 at 611 it is stated:
    

'..when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.'

55. Froom and Others v. Butcher [1975] EWCA Civ 6; (1975) 3 AER 520-:
    

"Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might hurt himself.......

56. In the instant case, it is proved that the plaintiff, although was not trained properly to handle machines, was instructed to turn off the switch when cleaning the machine to avoid danger. Therefore, the plaintiff is of course bound to exercise reasonable care for his own safety.
    
57. Further, the evidence shows that, the plaintiff had cleaned the machine several times prior to the accident. More importantly, the plaintiff's own witness admitted that they were instructed to turn off the switch when the machine is washed. Furthermore, it is proved that the plaintiff was well aware of the Master Switch and the function of the lever switch.
    
58. It was the plaintiff who pulled the lever switch while his hand was in which resulted the running of the machine and injured his hand, which in my view could have been avoided had the plaintiff also acted diligently. There was no reason for the plaintiff to hold the switch when he was cleaning the machine.
    
59. The plaintiff's evidence shows that he was well aware of the function of the lever type switch which he was holding while cleaning the machine. Knowing very well that it would get started if the lever switch is pulled, the plaintiff continued to hold the switch while cleaning it, which shows that the plaintiff had paid little or no attention to his safety.
    
60. The above evidence demonstrates that there had been negligence to a significant extent on the part of the plaintiff, which contributed to the accident. Upon considering the evidence tendered by both parties, I conclude that there was contributory negligence on the part of the plaintiff to the extent of 50%.
    

Assessment of damages

61. Let me now consider the quantum of damages the plaintiff is entitled for the injuries suffered due to the accident.
    
62. The heads under which the damages claimed are:
    
    1. Special damages.
    2. General damages.
    100. Interest from the cause of action;
    4. Post judgment interest.
    5. Costs.
       
63. Special damages are those damages which are not presumed and must be claimed and proved specially.
    
64. In British Transport Commission v. Gourley [1955] UKHL 4; [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.'

65. It is incumbent on the claimant to call evidence supporting their claims. In the present case although the plaintiff has asked special damages in his statement of claim, he has not filed a schedule of special damages nor did he produce enough evidence to substantiate special damages. Hence, I conclude that special damages were not proved by the plaintiff, and I disallow the claim for special damages in this action.
    
66. Assessing damages for non pecuniary loss is fraught with difficulties. This issue was discussed by Earl of Halsbury LC in The Mediana (1970) AC 113 at 116 & 117 as follows:
    

"You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person had undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given".

67. The following passage from the judgment of Lord Denning M.R in Lim Poh Choo v. Camden And Islington Area Health Authority [1979] 1 Q.B.196 at 215 must be borne in mind while assessing damages in an action of this nature.
    

"In considering damages in personal injury cases, it is often said "The defendants are wrongdoers. So make them pay up in full. They do not deserve any consideration." That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall anyone of us. I stress this so as to remove the misappropriation-so often repeated-that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is, in all the circumstances, a fair compensation-fair both to her and to the defendants. The defendants are not wrong doers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B. over a century ago;

"Scarcely any sum could compensate a labouring man for the loss of a limb, yet you don't in such a case give him enough to maintain him for life.... you are not to consider the value of his existence as if you were bargaining with an annuity office....I therefore advise you to take a reasonable view of the case and give what you consider a fair compensation": see Armsworth v.South-Eastern Railway Co(1847) 11 Jurist 758, 760, quoted in Rowley v. London and North Western Railway Co. [1852] EngR 1037; (1873) L.R. 8 Ex. 221, 230.

68. In light of the above legal principles, I will now consider the assessment of the appropriate damages and in doing so; I have considered both evidence and submissions made by counsel.
    

Injuries to the plaintiff

69. It is undisputed that the plaintiff has lost part of his arm due to the accident occurred on 19.08.2004 and suffered 65% of permanent disability. According to the medical report dated 02.03.2006, the plaintiff was admitted to the CWM hospital on 19.08.2004 and was discharged on 06.09.2004. There is another medical report produced by the defendant and according to medical opinion expressed in that report, the plaintiff can seek an alternative employment. Neither the plaintiff nor the defendant challenged the contents of each other's medical reports.
    
70. Considering the manner in which the accident occurred and the injuries suffered by the plaintiff, no doubt that he would have experienced excruciating pain at the time of the accident and for a considerable period until his wounds were completely healed. No doubt that these injuries certainly would have affect his quality of life and interfere with his enjoyment of life.
    

Loss of amenities of life

71. In deciding the loss of amenities, court has to consider the degree of incapacity, the plaintiff's age, loss of enjoyment of hobbies, damage to the plaintiff's marriage prospects and loss of any facets of life. Also, court has to consider the length of time that deprived the plaintiff of these amenities and whether they are permanent.
    
72. 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 he experienced in his 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. Although the plaintiff has failed to produce evidence with regard to his day to day activities, it is apparent that his normal activities in life are greatly circumscribed due to the injury.
    
73. 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.'

74. This was further enunciated by Birkett L J in Manley v Rugby Portland Cement Co. Ltd[1951] C.A.No 286 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....'

75. 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.
    
76. 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.
    
77. In Tacirua Transport v. Chand ( FCA Reps 95/67) an award of $ 20000.00 was awarded for considerably lighter injuries.
    
78. Being guided by the above authorities, and upon consideration of the foregoing facts, in particular, the fact that the plaintiff has to live with a permanent disability, and in the circumstances of this case, I award the sum of $ 60000.00 (sixty thousand dollars) for pain and suffering and loss of amenities of life. Since I have found 50% contributory negligence on the part of the plaintiff, 50%, is to be deducted from the award for general damages and interest thereon.
    

Loss of income

79. The purpose of granting compensation is to restore the plaintiff to the same position as he or she would have been, if the tort was not committed.
    
80. Due to the degree of the plaintiff's disability, the chances are very remote for him to find an employment in future. In cross examination, the plaintiff admitted that he was offered an alternative employment by the defendant, but whether the plaintiff was offered the same salary or a salary less than what he was paid at the time of the accident was not disclosed by the defendant. In any event, it is plain and obvious that the plaintiff's injury has adversely affected his earning capacity.
    
81. In this case the plaintiff was in his early thirties when he met with the accident and he would have probably worked until 55 years of age. In his evidence he stated that he was being paid $ 85.00 per week and that evidence remains unchallenged. However, having considered the presence of contributory negligence on the part of the plaintiff, I conclude a multiplier of 12 is appropriate.
    

Interest

82. The plaintiff has pleaded interest; he is therefore, entitled to it.

Section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act provides:

3. In any proceedings tried in the High Court for the recovery of any debt or damages the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment...

83. I would award interest on general damages that is on pain and sufferings and loss of amenities at the rate of 4% per annum on 60000.00 from 19.08.2004 (date of accident) to 19.04.2012 (date of judgment) which calculated accordingly comes to $ 18400.00. (50% of is to be deducted from the award for general damages and interest thereon)
    
84. Post judgment interest under the statute is 4% and I order that as well until the date of payment.
    
85. In summary therefore I award:
    
    1. Pain and sufferings and loss of amenities: $ 30000.00.
    2. Loss of income: $ 85 per week x 52 weeks x 12= $ 53040.00
    3. FNPF contribution at the rate of 8%= $ 4243.00
    4. Interest on general damages: $ 9200.00.
    5. Cost is summarily assessed in the sum of $ 1000.00.
       

Pradeep Hettiarachchi

JUDGE

At Suva

12th April, 2012