IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 350 of 2010

BETWEEN

Karam Chand of Kasavu, Nausori, Fiji, Electrician.

PLAINTIFF

Chandar Bhan of Lot 7, Kings Road, Nasinu, Fiji,
Businessman.

1ST DEFENDANT

AND

Bhan Autoparts Limited a duly incorporated company 
Having its principal place of business at 
Lot 7, Kings Road, Nasinu, Fiji.

2ND DEFENDANT

Counsel			   :	Mr. D. Singh for Plaintiff
				Mr. R. Naidu for Defendants 

Date of Hearing		    :	15th June, 2016

Written Submissions  :	29th June, 2016 & 13th July, 2016

Date of Judgment	   :	02nd August, 2016

JUDGMENT

[1]   The plaintiff filed this action against the defendants claiming special damages, General damages for pain and suffering, loss of earnings and loss of amenities of life on the ground that he sustained injuries while being on duty under the employment of the defendants.
[2]   The position of the defendants is that the plaintiff was not an employee and the day he was injured was not a working day. 
[3]   At the pre-trial conference the following facts have been admitted by the parties;
(1) The plaintiff works as an electrician.
(2) The 1st defendant is a businessman.
(3) The 2nd defendant is a duly incorporated company having its principal place of business at Lot 1, Verata, Kings Road, Nausori.
(4) The plaintiff did some work for the defendant.
(5) The 2nd defendant was under a duty to take reasonable care for the safety of the plaintiff whilst the plaintiff was lawfully engaged in his work.
(6) The plaintiff fell from a height of about 12 feet and got injured in the 2nd defendant’s premises at Lot 7, Kings Road, Nasinu, Suva.
[4]   The agreed issues to be determined at the trial are as follows;
(1) Whether the plaintiff was injured at work on 20th January, 2008 or 12th February, 2008?
(2) Whether the plaintiff’s injury was caused or contributed by his own negligence and if so, the percentage of contributory negligence attributed to him?
(3)  Whether the defendant(s) were negligent in breaching any duty of care owed to the plaintiff under common law and/or statutory law as pleaded in the statement of claim?
(4)  Did the 1st and/or 2nd defendant employ the plaintiff to work under a contract of service?
(5) Was the plaintiff an employee of the 1st and/or defendant or was he an independent contractor?
(6)  Did the 1st and/or 2nd defendant have any control over the plaintiff’s work and the way he performed his work?
(7)  Was the plaintiff injured in the course of his employment? 
(8) Was the plaintiff lawfully on the 2nd defendant’s premises on the day he sustained the injury or was he on the premises without the permission, authority and knowledge of the 1st and/or 2nd defendant? 
[5]   It is the evidence of the plaintiff he was an employee of the 2nd defendant for about a year before the accident occurred, as an electrician. He stated that although he worked as an electrician for about seven years he did not have license to practice as an electrician. He also testified that he was paid $50 per day by the 1st defendant. 
[6]   Since the plaintiff came to court on the basis that he sustained injuries during the course of his employment under the defendants and the defendants have denied this position, the burden rests fairly and squarely on the plaintiff to prove that he was an employee of the defendants. It is his evidence that he never contributed to the Fiji National Provident Fund. There is no contract of employment between the parties. He himself has decided on the working hours and not the 1st defendant. In cross-examination the plaintiff was shown document “D1” of which the plaintiff barely denied having any knowledge. The first defendant testified that the document “D1” is the contract signed by the plaintiff wherein he has agreed to complete the wiring work for $5000 (labour charges) out of which the plaintiff had been paid $1500 and the balance $3500 had been agreed to pay at the rate of $50 per day. In cross-examination when this document was shown to the witness by the learned counsel for the plaintiff and questioned him the 1st defendant identified the signature of the plaintiff on the document. Witness Jai Ram who was called to testify for the defendants in cross examination said that Mr. Chandar Bhan directed as to what the plaintiff and him to do at the site. The learned counsel relied much on this statement of the witness to establish that the plaintiff was an employee of the defendants which in my view is grossly insufficient. It is the plaintiff’s own evidence that he did not worked for the defendants continuously but only he had work and he worked in few other houses. The plaintiff also said in evidence that he paid for his own workers out of the money he received and that he decided when to work for the defendants.
[7]  On a careful consideration of the totality of evidence adduced by both parties on the question whether the plaintiff was an employee of the defendants at the time of the accident the court is of the view that the plaintiff has failed to establish that he was an employee of the defendants. His own evidence shows that he had not continuously worked for the defendants but only when he had work. In the circumstances the court holds that the plaintiff was not an employee of the defendants but an independent contractor.
[8]   The next matter the court has to consider is whether the plaintiff sustained injuries while at work.  
[9]   The plaintiff’s evidence is that he sustained injuries on the 20th January, 2008. According to the medical certificate marked “P1” the plaintiff had been admitted to the hospital on 12th February, 2008 and he had been discharged on 19th February, 2008. There is an issue raised as to the date on which the plaintiff sustained injuries. The medical certificate marked “P2” is dated 21st January, 2008 and the next date of review has been given as 28th January, 2008. The plaintiff’s evidence is that he sustained injuries on 20th January, 2008 and when he was taken to the hospital he was asked to go home. He had been admitted to the hospital only on 12th February, 2008 after nearly a month. On a careful consideration of both these certificates it appears that the plaintiff has in fact gone to the hospital on the 21st January, 2008 but the hospital has performed the surgery only in February. It is clear from this evidence that the plaintiff has sustained injuries on 20th January 2008.  
[10]  In explaining how the accident took place the plaintiff said that while he was working on the ceiling he kept his foot on some unsecured noggins which gave away and he fell off the ceiling. According to him the height of the ceiling was about twelve feet and sustained a fracture in the right ankle which was operated on by the doctors and inserted screws. 
[11]  The defendant while denying that the plaintiff worked on 20th January, 2008 stated that they used to work only six days for a week and Sunday was a holiday. He also said that there was no necessity for the plaintiff to do wiring in that room because he had more important work to do. It is common ground that 20th January, 2008 was a Sunday. The defendant testified further that he was not aware what the plaintiff was doing on the ceiling. According to the 1st defendant on the same day morning at 3.00 o’ clock the plaintiff had called him and asked for money and at that time the plaintiff was drunk. The 1st defendant had asked one Jai, a worker, to inquire about what the plaintiff was doing on the ceiling he found two rolls of wire on the ceiling. 
[12]   Jai Ram is an employee of the 1st defendant who assisted the plaintiff in his work. It is his evidence that they used to work from Monday to Saturday and Sunday was the day off.
[13]   The burden is fairly and squarely on the plaintiff to prove that he sustained injuries while working for the defendants. There are two different positions taken by the parties in their respective testimonies at the trial. The court has to consider whose position is more probable than the other. The evidence available on record suggests that on the day the plaintiff sustained injuries was not a working day and no acceptable explanation has been offered by the plaintiff as to what he was doing on the ceiling on a Sunday alone. The uncontradicted evidence of the witness for the defendants that he assisted the plaintiff in his work suggests that the plaintiff was not working alone and on the day of the incident in the course of which he sustained injuries he had been there on the ceiling alone. In the circumstances the only reasonable conclusion the court can arrive at is that at the time the plaintiff sustained injuries he was not working for the defendants. 
[14]  For these reasons the plaintiff is not entitled to claim compensation for the injuries caused to him from the defendants and therefore, the court makes the following orders.
[15]   Since the plaintiff has failed to establish that he was an employee of the defendants or he sustained injuries while working for the defendants the issue of quantum of damages does not arise for consideration.  
	ORDERS.
1.	The action of the plaintiff is dismissed.
2.	The plaintiff shall pay the defendants $1000 as costs (summarily assessed). 

Lyone Seneviratne,
JUDGE.
02nd August, 2016.