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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
Civil Jurisdiction
Civil Action No. 39 of 2011
Rajendra Mani Naidu
Plaintiff
v
Fiji Forest Industries Limited
Defendant
Appearances: Mr A.Sen for the plaintiff
Mr A.Ram with Mr K. Ratule and Miss N.Singh for the defendant
Date of hearing: 16th and 17 thMay,2013
JUDGMENT
2.1 The statement of claim states that it was an implied term of the plaintiffs' contract of employment that the defendant would take "all reasonable care to provide and maintain a safe system of work and effective supervision and . not expose the plaintiff to a risk of damage or injury of which they knew or ought to have known.".
2.2 The plaintiff pleads the following particulars of negligence:
- Failure to provide assistance on that machine to prevent the injury..
- Failing to provide or maintain a safe and proper system of working, or to instruct their workmen including the plaintiff to follow that system.
- Failure to provide adequate supervision or at all.
- Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged in his said work.
- Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known.
- Failing to provide or maintain any or any safe or proper system of work.
- Requiring the plaintiff to engage in dangerous activity alone without due regard to his safety.
- Instructing plaintiff to work on the machine when it was not safe to do so.
2.3 The plaintiff relies on the doctrine of res ipsa loquitur or that the sanding machine, was operated only by the plaintiff, when it is to be operated by two people.
2.4 The plaintiff claims general damages, special damages in a sum of $1,740.00, loss of FNPF, interest and costs. Alternatively, for compensation under the Workmen's Compensation Act,(cap 94).
3.1 The defendant, in its statement of defence states that its factory was regularly inspected by the Factories Inspectors. The Inspectors had not reported any defects or non compliance.
3.2 The defendant's timber sanding machine:
- was safe and the Plaintiff has been instructed as to its use;
- the Plaintiff already had experience on the machine and had been instructed on (its) proper use..;
- the Plaintiff and the Supervising Operator were holding opposite sides of the board and no injury would have occurred had the Plaintiff followed proper procedure;
- the Plaintiff's right hand instead of holding the side of the board was holding the end of the board, contrary to the normal operating procedure;
- upon the board being ejected on entry into the machine, the Plaintiff's hand was pushed against the stack of boards piled for sanding;
- the .injury to the Plaintiff's fingers would not have occurred had the Plaintiff held the side of the board..;
- the operator on the other side holding the same board was not injured, when the board was ejected as he was holding the side of the board.
3.3 The defendant denies that the plaintiff is disabled.
3.4 The defendant denies the allegations of negligence and states that the injuries sustained by the plaintiff resulted solely from the negligence of the plaintiff, in failing to follow instructions given by the supervisor and "not releasing his right hand grip from the board when the board was ejected" and "failing to exercise care and being reckless about his own safety". Alternatively, the defendant pleads that the plaintiff substantially contributed to his injury. The particulars of negligence pleaded read as follows:
- The Plaintiff failed to take heed of the guidance and instructions provided to him on a regular basis before commencing work at the sanding machine;
- That the Plaintiff failed to follow instructions given by the supervisor;
- The Plaintiff failed to exercise adequate precaution for his own safety while engaged in his said work;
- The Plaintiff was not exposed to any risk of injury or damaged known to the Defendant;
- The Plaintiff failed to follow the established guidelines when working at the sanding machine;
- The Plaintiff was never required to engage in any dangerous activity on his own but his duty was to work with the Operator:
- The Plaintiff was never required to clean the sanding machine as stated in subparagraph (viii) and the injury did not result from such work;
- Negligently and recklessly holding the end of the board with his right hand when he was standing at the side of the board and should have held the side of the board;
- Not releasing his right hand grip from the board when the board was ejected;
- Failing to exercise care and being reckless about his own safety;
- Not following guidelines and knowledge gained from working on the sanding machine;
The plaintiff, in his reply to defence, denies the allegations of negligence. The plaintiff puts the defendants on notice to provide reasons as to why the machine on the day in question had functioned in that particular manner. Boards put into the machine must flow in only one direction and not eject. The admission by the defendant that the board ejected is sufficient proof of negligence.
5.1 PW1
The plaintiff testified that when he commenced working with the defendant in October,2009, he was asked to cut plyboard, by pressing down the board into a cutting machine. Previously, he had worked as a mechanic at Combined Motors for 18 years.
On 11th November,2009, he reported to work at 4.30 p.m. for the night shift. Kisun, his supervisor asked him to work with Ponsami Narayan on a different machine: a "sanding" machine. The plaintiff said that no training was provided to him. Kisun checked the machine. It was faulty. Kisun asked the plaintiff to call the fitter. The fitter spent an hour on the machine. He opened the machine and fixed sandpapers. He did not start the machine.
The plaintiff and Ponsami Narayan,the operator placed a board on the machine. Ponsami Narayan then, started the machine. He asked the plaintiff to push a board into the machine. The size of a board was 8 ft x 4 ft and 16 mm in thickness. It was heavy, 50 kg in weight. There was a stack of 50 boards behind. He was wearing protective hand gloves. The gloves were intact. It went about 6 inches inside the machine and flew back at a speed, instead of going in further. His right hand struck the boards stacked at the back and got crushed. The plaintiff said that he was not instructed as to how to push the board, nor warned that the board could revert back.
The plaintiff's right hand was badly injured. His bones were damaged. He was in great pain. The accident happened at 6.15 p.m. Half an hour later, the other workers wrapped a dustcoat on his hand and put medication. Later, he was taken to the Labasa hospital. The hospital is 15 km from Malau. An x-ray of his hand was taken. The Doctor wrapped the dustcoat again. He was warded and given medication. His hand was red and had an offensive odour. He was unable to bathe or change his clothes for three days. On the fifth day, he was operated. His small finger on his right hand was amputated. The third and ring fingers on the same hand, were straightened. That was his dominant hand. His wife and relatives helped him to bathe and dress at the hospital.
After his discharge from the hospital, the plaintiff said he required nursing care for six months, in respect of which he claims $30 per week. He still requires care.He is unable to move his fingers. This affected him psychologically. The plaintiff testified as to the inconveniences he encounters. He takes 20 minutes to shower .He is no longer able to work as a mechanic, play sports nor plant vegetables. Hitherto, he earned $ 250 each week planting vegetables. He keeps his hand upright due to the pain.
No member the of staff of the defendant company visited him in hospital. After he was discharged, he made several visits to the hospital .This cost him $5 each way. He claims $ 1350 for transportation and $ 390 for medications.
The defendant paid his wages upto 2011. After the case was filed, labour officers asked him to accept $ 5000.
In cross-examination, it was put to the plaintiff that he had his right hand down, when giving evidence and demonstrated distances with that hand. The plaintiff was questioned as to how he knew the machine was defective, before it was switched on. His response was that the operator Ponsami Narayan had asked him to call the fitter to repair the machine. The fitter checked the sandpaper. Ponsami Narayan, who was on the other side of the board, did not get injured, as he had gone to put the switch on, when the board kicked back.
It transpired that the plaintiff was employed as a casual labourer by the defendant. He was not a qualified mechanic. It was suggested that he had been an assistant at Combined Motors.
Mr Ram, counsel for the defendant produced six photographs depicting (a) the rectangular boards stacked directly opposite the machine,(b) two persons lifting a board from the stack,(c) the incorrect way of holding the board with one hand on its width, and (d) the correct way of holding the board with both hands lengthwise, when it is fed to the machine.
The plaintiff denied he was instructed by Ponsami Narayan, to hold the board on the length side, and that despite these instructions, he moved his hand to the width end of the board. It was also put to him that the throwing back of the board was not a defect of the machine. He said it was his first day on the machine. Ponsami Narayan asked him to push the board from the other end. He was not told that the machine could kick back, if the board is not held on its length side. He was wearing gloves and eye-glasses, but not a mouth-guard.
He last consulted Dr Jaoji Vulibeci, on 17th August,2011. Thereafter, he goes to the out-patient dept, when he experienced pain. It was put to him that Dr Taloga had said he did not complain of pain. He satisfied the pinch test. The witness said that he has a problem with movement of three of his fingers. Another was amputated. He was cross examined as to whether he could attend to matters with his left hand, since with the passage of time, people adapt themselves. The plaintiff said that he could not plant vegetables. He was unable to find employment, as only hard labour and driving jobs were available.
The plaintiff's wife worked at the Labasa hospital. She walked to work. It was suggested to the plaintiff that he had also walked to the hospital from his home. The plaintiff said that at night, he took a taxi to the hospital. It was also suggested that he does not require a helper.
In re-examination, the plaintiff said that every month, he goes to hospital for a check up by taxi. In rainy weather, the road to the hospital is not accessible by foot from his house. He worked 45 hours a week each day, until he met with the accident. Ponsami Narayan had not told him that he was holding the board incorrectly. He told him to push the board. Ponsami Narayan could see how he was holding the board, before he went to put the switch on. The plaintiff said he complied with all safety requirements. On that night shift, no board was sanded before the accident.
The plaintiff actively looked for work. The defendant company did not provide him with light work, after the injury. He agreed that there was no guarantee that he would have work in the month after the accident, since he was on a casual basis. The defendant did not state in writing or otherwise that the plaintiff caused the accident by holding the board incorrectly.
The plaintiff said he experiences pain all the time. The Doctor did not give hime any exercises to grip.
5.2 PW 2
Vijaykumar, in his testimony said that he had worked for the defendant for 30 years, with 10 years on the sanding machine. Mr Sen, counsel for the plaintiff showed him the photographs produced in the cross-examination of the plaintiff. He confirmed that the photographs depict the operation of the sanding machine.
This witness said that he was not provided with any training as to how the board was to be held and pushed into the machine. There was no procedure laid down, in this regard. Two persons had to push the board into the machine. He was not told that the board should not be held at its end nor that it can eject back. His supervisor did not tell him that the board can eject back. In his 10 years on the sanding machine, the machine had ejected a board on one occasion, injuring his arm. He said that the fitter services the machine.
In cross-examination, he said that no formal training was provided to him. Training was on the job. He agreed that it was safer to hold the board on the sides rather than at the end of the machine.
Vijaykumar, in re-examination said that on the occasion he got hurt, he was standing on the length side of the board . The board got stuck in the machine and turned outside. He reiterated that no one told him how to hold the board. He was only told to push the board.
5.3 PW 3
Dr Jaoji Vulibeci, consultant surgeon at Labasa hospital testified that the plaintiff has 23 % permanent impairment. There was no mention in his report of the impairment of the plaintiff's index finger in his report of 17August,2011.He concurred with the assessment of Dr Taloga of 3 December,2012,that the plaintiff had a permanent impairment rating of 29%.
The plaintiff endured great pain in hospital. He will find it difficult to engage in manual work such as washing clothes, gardening and mechanical work. He experiences continuous pain, due to arthritis. This comes with age and due to the fracture in the joints. He will have to live with his fingers in that position. It will get worse with age. The plaintiff had "ankylosis"- complete absence of joint motion. His physical impairment will increase. The plaintiff cannot engage in manual work such as digging with a fork or as a mechanic. He could wash his clothes with effort.
In cross-examination, Dr Vulibeci denied that the hospital was negligent in waiting for three days after the injury, to perform surgery. It was necessary to ascertain if his fingers were viable.
Finally, Dr Vulibeci said he could not answer the question whether the plaintiff could train his left hand to carry out the functions of his dominant right hand.
5.4 DW1
Dr Taloga, orthopaedic surgeon was called by the defence. He produced the medical report of the plaintiff. Surgery was carried out on the plaintiff, on his fourth day in hospital. He said that the plaintiff's little figure was severely lacerated and amputated. The index, third and ring finger had flexion deformities. The plaintiff could not move his index finger. The thumb was normal.
Dr Taloga, in his report said the plaintiff was partially disabled with a percentage of 29%. When it was put to him that Dr Jaoji Vulibeci had, two years earlier, reported that the plaintiff had 23 % disability, he said that the index finger was excluded in that assessment.
The initial procedure for an open fracture, is to put a patient on antibiotics and pain killers. The plaintiff was thus taken for surgery on the fourth day, after he was hospitalised.
The plaintiff can play soccer. He could do gardening. He does not need a helper for dressing, having a shower or housework. There was partial, not total loss of the right hand. The plaintiff was partially disabled. He did not complain of pain.
In cross-examination, Dr Taloga said that in assessing a person's disability, no difference is made whether its the dominant or other hand. He said there was no scientific basis to keep the arm up, except at an acute stage. Dr Taloga said that he did not ask the plaintiff to do a grip test. The joints were not involved in the injury, so the plaintiff would not get arthritis. The plaintiff would not be able to engage in chopping firewood, planting rice, cutting sugar cane and mechanical work.
In re-examination, Dr Taloga said that said that when he examined the plaintiff at the Suva Private hospital, he was not holding his arm up.
5.5 DW2
Tabua Kaukimoce, Human Resources Officer of the defendant company testified. He said that when employees are recruited, an induction is given as to their terms and conditions of employment. No formal training is provided. He produced the statutory notices issued by the defendant under the Workman Compensation Act and the OHS form sent to the Ministry of Labour. The plaintiff was continuously paid two-thirds of his wages based on sick-sheets, up to the year 2012.
There have been three instances when the sanding machine had ejected. It is not possible to foretell when the plywood board would eject. The plaintiff got hurt, as he held the board in the wrong way. The persons feeding a board to the machine must stand on the side of the board not behind the board, as his hand could get injured against the stack of boards.
It transpired in the cross-examination of DW2 that Ponsami Narayan, in his statement, had not stated that the plaintiff was holding the board incorrectly nor was the plaintiff so informed. There was no sign to say the manner in which the machine operates. Mr Sen referred to the letter sent by the "Personnel Officer" of the defendant company to the Ministry of Labour with the OHS form; this witness concluded that the operator had told the plaintiff "to push as he went to put the switch". The accident occurred at 6 pm. The night supervisor was present. He made a report. The report does not state that a warning was given to the plaintiff. In re-examination, he said the machines were serviced periodically.
5.6 DW3
Ponsami Narayan said that he had worked for the defendant for 20 years, with 15 years on the sanding machine. He said that if there was dust or dirt in the machine, it would reject the board. It is not possible to tell when the machine would throw back a board. Until the machine is switched on, it cannot be ascertained whether it is in good working condition.
This witness demonstrated from the photographs produced the correct way of holding the board. The plaintiff had commenced work on the sanding machine, when the accident occurred. Before switching on the machine, he told the plaintiff to hold the board on its side and leave it as it goes inside. When he picked up the first board with the plaintiff from the stack, the plaintiff was holding it on the side. The plaintiff's finger was crushed, since he was incorrectly holding the board, on its side. Ponsami Narayan said he was holding the board with one hand and putting the switch with the other, while gauging the board.
The machine was not defective. The machine has to be switched on, for the board to go in. The witness said he did not tell the plaintiff to push the board. For long periods, the machine had not ejected.
In cross-examination, he said he did not see how the plaintiff was holding the board, when they placed it on the machine, albeit they were opposite each other and 4 feet apart. They just lifted the board and slide it in the roller. The plaintiff had not moved from the middle to the far end of the board. He proceeded to gauge the board, so he did not see what the plaintiff was doing.
It emerged that in his report to the night supervisor, DW3 had only said that the plaintiff was injured.
In re-examination, the witness was asked whether his supervisor or anyone else asked him in detail, how the plaintiff got injured. His answer was in the negative. Finally, he said the machine could throw back within a month or once in two years.
6.1 The plaintiff alleges that he suffered injuries while working on the "sanding machine", due to the negligence on the part of the defendant. The particulars of negligence are detailed in the statement of claim. I think it necessary to mention only the pleas that the defendant failed to provide(a) a safe and proper system of working, or to instruct their workmen including the plaintiff to follow that system,(b)adequate supervision or precautions for the safety of the plaintiff and, (c)exposed the plaintiff to a risk of damage or injury of which they knew or ought to have known.
6.2 The scene opened at 4.30 p.m, when the night shift commenced. The dramatis personae were the operator,DW3 and the plaintiff. The fitter spent an hour on the machine attaching sandpaper. The machine in question sanded(polished) plywood board. It was powered by electricity. The rectangular plywood boards to be polished were stacked directly opposite the machine. DW3 and the plaintiff conveyed the first board from the stack to the machine. DW3 then turned to gauge the thickness of the board. Ordinarily, the machine would have gripped the board and taken it in. But on this occasion, the board having gone six inches in, instead of going in further, flew backwards and most unfortunately crushed the plaintiff's right hand against the stack of unpolished boards. In the aftermath, the plaintiff's index, third and ring fingers were injured. His little finger was amputated.
6.3 It is common ground that the plaintiff befell the accident on his first day on the sanding machine and when he fed in the first board to the machine.
6.4 The statement of defence contends that the plaintiff hand got injured, since his right hand was holding the end of the board instead of the side, contrary to " established guidelines". The defendant pleads contributory negligence against the plaintiff.
6.5 The plaintiff totally denies that he was instructed by DW3, as to how to hold the board. He states that DW3 told him to push the board into the machine. He was not warned that it could fly back.
6.6 I turn to consider the evidence of DW3 on this point. In evidence in chief, he stated:
Q. Did you tell him (the plaintiff) the procedure of operating machine
A. Yes
Q What did you tell him
A. To hold plywood on sides and leave it as it goes inside.
Q. What happened..
A. I switched on machine after explaining to him. Both placed board in machine. As it was going in I was gauging the machine with 1(one) hand and (the) other (was) holding(the) plyboard. As soon as (the)plyboard went inside, it threw back.
Q. Where were you looking..
At pressure of machine.
When you picked up board with Rajen(the plaintiff) how did you pick up..
Q. How was Rajen Naidu (the plaintiff) holding the board..
A Before switching on machine, I had explained to him
I only saw his hand on side .
...................
Q. How often does ejecting happen
A. All of a sudden because it is a machine
Q. (For) long periods it does not happen
A. Yes.
In cross-examination, the following questions and answers were asked and given by him:
Q. How was plaintiff holding when he lifted plywood..
A. I did not see
Q. You are 4 ft apart and you do not see how plaintiff was holding it
A We just lift and slide in roller
Q. Were you opposite or diagonally
A. Opposite directly each other.
..........
Q Plaintiff moved from the middle and went to the back
A. No. When (the Board) ejected he was holding at the back I saw
....
Q You went to gauge and did not look at him..
A. As soon as plywood goes in, I have to gauge. I have told
him everything
Q. You were gauging and plywood had to go to machine,
and you told him to push
A. I did not see what he was doing
6.7 DW3, in evidence in chief said that the plaintiff, in the first instance, was holding the board on the sides, as instructed. In cross-examination, he said that he did not see how the plaintiff was holding the board, as he and the plaintiff just lifted the board and slide it on the roller. When he was pertinently asked by Mr Sen, if the plaintiff had moved away from the length side of the board, to its end,(width side) his answer was "No". I find this evidence on the key point in issue of a tenuous character.
6.8 At this stage, I turn to the contemporaneous documents issued by the defendant, two days after the accident. In the notice given under the Workmen's Compensation Act, the defendant's answer to the question as to "exactly what the workman was doing at the time of the accident/death" was that the ".plywood when pushed back into the sander machine was thrown back and crushed the workman's fingers against the edge of the unsanded load" (emphasis added). In their letter to the Ministry of Labour attaching the Occupational Health and Safety(OHS) notification form, it is stated that:
Rajendra Mani Naidu was assisting the Sander Operator at the sanding machine. When they pushed in the first plywood sheet, the machine threw back the plywood sheet. The momentum of the plywood sheet crushed the workman's last three fingers of the right hand against the unsanded load. (emphasis added)
6.9 These documents state that the plywood board was pushed in. The evidence of DW3 was to the contrary. He said that he told the plaintiff to hold the plywood on sides and leave it as it goes inside. The contradictions I have highlighted in DW3's evidence, has led me to the conclusion that his evidence was unreliable. I do not accept that he instructed the plaintiff on how to hold the board. I would accept the plaintiff's evidence. His version accords with the contemporaneous documents issued by the defendant.
6.10 None of the above documents attribute fault to the plaintiff. It also emerged that DW3 had not, in his report to the night supervisor, stated that the plaintiff had held the board incorrectly nor was the plaintiff so informed. I conclude that the defence comes as something of an afterthought.
6.11 Under the Factories Act, an employer is required to provide sufficient training or adequate supervision to a novice. Section 10 provides that:
no employed person shall be permitted to work at any machine unless he has been sufficiently trained to work that class of machine or unless he works under the adequate supervision of a person who has a thorough knowledge of the working of the machine.(emphasis added)
6.12 DW2, the Human Resources Officer said that upon recruitment, no training was provided to employees. No supervision was admittedly provided to the plaintiff by the defendant, albeit he was feeding in the first board. DW3 said he could not see what the plaintiff was doing, as he was gauging the board.
6.13 The law on the topic is stated in Clerk & Lindsell on Torts, ( 19th Ed), paragraph 13-14 as follows:
Supervision When there is a duty to provide a safe system of work, the employer does not discharge the whole duty merely by providing it, but must take reasonable steps to see that it is carried out. This involves instruction of the workman in the system as well as some measure of supervision. (footnotes omitted, emphasis added)
6.14 In Kerry v Carter,[1969]1 WLR1372, the Court of Appeal held that the defendant should have inquired into the experience of the claimant, an apprentice, in working circular saws and supervised him more closely. Edmund Davies L.J. at page 1376 stated:
..the circumstances are very rare where an employer can for the first time put an employee to work on such a machine without more that is to say, without ascertaining by proper means that he is well-qualified to work it, or without instructions, or without any supervision and yet for that employer to be free of all blame in the event of an accident occurring..(emphasis added)
6.15 The statement of defence also pleads that the plaintiff was not exposed to any risk or damage known to the defendant. Mr Ram contends that the ejection of a board is something unexpected and cannot be foretold. He also argued that contrary to the plaintiff's assertion, the machine was not defective. It would appear that the plaintiff, unskilled as he was on what was to him a newfangled machine, perceived that the fitter repaired the machine when he attached sandpaper.
6.16 But that is besides the point. The board had on more than one occasion come in contact with the person who fed in the board. It was not outside the experience of the defendant.PW 2 testified that his arm was hurt on one such occasion.DW2 stated that there had been three instances, when this happened. DW3 said that this could occur when there is dust, dirt or veneer in the machine. I read three questions and answers of his evidence in chief, in this regard:
Q. When does it happen
A. Would not know until place board in
Q. Can you tell when it will throw back
A. No
Q. If you clean machine 100% guarantee that it will not
throw
In cross-examination, when he was asked why the machine throws back, he said it sometimes happens, if something wrong in gazing". He concluded that the machine could throw back within a month or once in two years. It transpired in the re-examination of DW2 that the machine was serviced periodically, not regularly.
6.17 In my view, it is clear that the danger was foreseeable and avoidable. At the very least, the plaintiff could have been forewarned.
6.18 I find that the defendant was negligent. Moreover, section 36 of the Factories Act requires that every dangerous part of any machinery to be "effectively guarded at all times when that part is moving and at all times when the part might be likely to endanger.. any employed person".(emphasis added). This provision has been breached by the defendant.
6.19 Mr Sen has referred to several decided cases on this point. In General Cleaning Contractors Ltd v Christmas, (1953) AC 180 a window cleaner while standing upon a 6 ¼ inch window sill, following his employer's usual practice, fell, when the bottom sash unexpectedly closed. The system of work adopted made the worker's safety entirely dependent on the sash not moving. It was held that the employers had negligently failed in their obligation to devise a reasonably safe system of work providing for an obvious danger.
6.20 Glyn-Jones J in Crookal v Vickers Armstrong Ltd, (1955) 2 All ER 12 at page 16 said:
Once the employer knows, or ought to know, that his workplace are exposed to a material risk.. and that risk can be markedly diminished, if not eliminated he must take all reasonable steps, by clearly warning the men...
6.21 The plaintiff relies on the doctrine of res ipsa loquitur. The sanding machine was designed to take in a board, not eject it. The defendant has not disproved its negligence.
6.22 I hold there was a breach of duty by the defendant to (a) provide a safe and proper system of working and to instruct the plaintiff to follow that system, and (b) supervise or take precautions for the safety of the plaintiff. The plaintiff was exposed to a risk of damage or injury of which the defendant knew. I find that the acts of negligence on the part of the defendant are established. I conclude that the defendant is liable for the accident and its consequences.
6.23 I do not find any evidence to support the defendant's contention that the plaintiff had contributed to his injury. The plaintiff was not aware that he was being exposed to a situation which could be dangerous. As Denning L J said Jones v Livox Quarries[1952] EWCA Civ 2; , (1952) 2 QB 608 at pg 615:
A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless." (emphasis added)
6.24 In concluding this part of my judgment, I would refer to the case of Sheik Mohammed Amin v Courts(Fiji) Limited,(Civil Action No.39 of 2008), as cited in the closing submissions of the plaintiff. In that case, it was held that the defendants had failed to give adequate instructions to the plaintiff concerning not only the proper and safe method of doing the task, but also the consequences of not following the prescribed method. Calanchini J (as he then was) concluded that the defendant's allegation of contributory negligence "reinforces the Second Defendant's breach of its duty to take reasonable care to supervise and train the Plaintiff."
6.25 Damages
It remains then, to consider the question of damages. The plaintiff has lost the little finger of his right hand and sustained impairment of his index, third and ring finger of the same hand. He was assessed by Dr Taloga with a permanent impairment percentage of 29% and a hand impairment of 53 %. In determining damages for pain and suffering, it is necessary to consider general level of comparable awards.
Mr Sen, in his closing submissions, has cited several authorities to support the plaintiff's claim for $ 90,000. In Sheik Mohammed Amin v Courts Fiji Limited,(supra) the court awarded general damages in a sum of $ 85,000 where the plaintiff was assessed with 18% whole person impairment. He suffered back injury and could walk only with crutches. In Eta Naqeletia v Kumar, (2012) FJHC 29 the plaintiff was awarded $ 70,000 as damages for pain and suffering and loss of amenities of life. She lost 3 top teeth and 1 bottom tooth. She sustained an open fracture of her right arm, which was crooked and had conspicuous scarring. Her chin was injured. In Loraine Dre v Ministry of Health and AG, (HBC 20 of 2007) the plaintiff lost her right arm below the elbow. She was granted $70,000 as general damages. Finally, in Nasese Bus Co. Ltd v Chand, (ABU 40 of 2011), the damages were increased on appeal from $ 65,000 to $ 90,000.The victim sustained severe injuries to her right thigh and left ankle. There was scarring and progressive arthritis was apparent.
I agree with Mr Ram that the injuries in the cases cited are not comparable to the case before me. Mr Ram relies on Nisha v Eastern Apparels Company Ltd, [2001] FJHC 221 and Singh v Domalco Ltd, [2000] FJHC 197.Both cases were decided more than a decade ago and the injuries were not as acute, as in the present case. In the first case, the court awarded a sum of $ 15,000 as damages, where the little finger of the left hand was amputated. In Singh v Domalco Ltd, the plaintiff's ring and little fingers of his left hand were amputated. There was a 30% permanent incapacity and he was awarded $25,000. Mr Ram also cites the more recent award of a sum of $ 38,000 to a 47 year old carpenter for pain and suffering and loss of amenities, where two fingers of his dominant hand were amputated- Chand v Master Builders Joinery Ltd, (Civil Action 52 of 2009).
Returning to the present case, there is no doubt that the plaintiff has been severely incapacitated with the loss of the use of all but his thumb of his dominant hand. Apart from this serious permanent disability to an unskilled labourer, there is some unsightliness with his little finger amputated. He experienced great pain when he was injured. The plaintiffs' claim that he continues to experience pain is inconsistent with medical evidence. Dr Taloga said that he had not complained of pain, when he examined him two years and four months after the accident.
In the light of the principles applicable to assessing damages, I assess the general damages for pain and suffering and loss of amenities of life in the circumstances of this case at $ 60,000.00 (sixty thousand dollars).
6.26 Future earnings
The next claim is the loss of future earnings. The plaintiff said he looked for employment. The defendant did not offer him light work employment. I am satisfied that the plaintiff has lost his pre-accident earning capacity to work as a mechanic or as a labourer.
Mr Sen, in his closing submissions, has suggested a multiplier of 14 years, since the plaintiff was 41 years at the time he had the accident. Mr Ram disagrees. He relies on the case of Prasad v Kumar, (2008) FJHC 368 where a multiplier of 4 was adopted, in the case of a 44 year old casual labourer. In my view, that multiplier is disproportionately low and unacceptable. A plaintiff is entitled to claim damages for his normal expectation of his working life, subject to a cutback for the changes and chances of life.
In AG v Suruj Narayan,(ABU 0057 of 2008) Calanchini JA( as he then was) cited the following passage from the decision of the House of Lords in Wells v Wells, [1998] UKHL 27; [1999] 1 AC 345 at paragraph 66:
A plaintiff who has been deprived of earning capacity, whether in whole or in part, has lost the chance of exploiting that capacity to the full. .... In most instances, the chance of so exploiting the capacity is high and this is reflected in the approach taken by the courts, which is usually to assume that it would have been exploited to the full, at least to the normal retirement age. That one hundred per cent probability is then discounted by the chances of its not being exploited due to the normal contingencies of life.
Wati J in Eta Naqeletia v Kumar,(supra) used a multiplier of 8 for a 46 year old fish vendor. The multiplier method was not considered appropriate in Chand v Master Builders Joinery Ltd,(supra)as the plaintiff in that case had not altogether lost his capacity to work.
The plaintiff has been paid his salary up to 2012. That takes him to his 44th year. I would apply a multiplier of 8. His weekly salary was $ 118.83. In my judgment, he is entitled to a sum of $ 49433.28 (8x 52 x 118.83), $ 49,450,(in round figures) as future earnings.
On the same basis, he is entitled to a sum of 4293.12 (8x 52 x 10.32), $ 4300 (in round figures) for loss of future FNPF.
I am not satisfied with the plaintiff's unsubstantiated claim for loss of earnings arising from sale of vegetables. I decline the claim.
6.27 Past earnings and past care
These items are not pleaded in the claim for special damages and hence disallowed. In Nasese Bus Co. Ltd v Chand, (supra) Calanchini AP said:
In a personal injuries claim special damages includes past loss of earnings whilst general damages includes anticipated loss of earnings. The date of trial is the end date for past loss and the start date for future loss of earnings.
6.28 Future care
The plaintiff stated he could no longer do the chores he did, prior to the accident. He submits that he requires future gratuitous care. The medical evidence falls short of establishing care. According to Dr Taloga, he can engage in showering, bathing and dressing in totality. He can play soccer. I therefore disallow this claim.
6.29 Special damages
The plaintiff has claimed transport to hospital in a sum of $ 1350 and medication in a sum of $ 390. It transpired in the plaintiff's cross-examination that he lived in close proximity to the Labasa hospital, to which he could walk as his wife, who worked at that hospital did. His answer was that he went by taxi, when he was in pain or if it was raining. I would award him $337.50 (25 % of $ 1350).
The plaintiff has not produced any evidence of the medications he purchased. Mr Ram said that drugs were provided by the hospital. The plaintiff said he purchased Vicks and pain killers. I would award him $ 195 (50 % of the sum claimed).
6.30 Interest
The plaintiff has claimed interest. Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum. In the exercise of my discretion, I award interest at 6% per annum on the general damages awarded from date of service of writ(10th January,2012)to the date of trial and 3 % per annum on special damages of the sum of $ 532.50 from date of accident to date of hearing.
The total sum awarded to the plaintiff as damages is $119138.50 made up as follows:
| General damages | 60000.00 |
| Interest on general damages | 4800.00 |
| Special damages | 532.50 |
| Interest on special damages | 56.00 |
| Loss of future earnings | 49450.00 |
| Loss of future FNPF | 4300.00 |
| Total | 119138.50 |
There will therefore be judgment for the plaintiff against the defendant in the sum of $ 119138.50 together with a sum of $ 5000 payable by the defendant to the plaintiff as costs summarily assessed.
18th February, 2014
A.L.B.Brito-Mutunayagam
Judge
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