IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA
Civil Action No 257of 2008

BETWEEN:

MITIELI BALEINASAU TUQIRI
of Lot 46, Kinoya Sub Division, Nasinu.
PLAINTIFF

AND:

SOLANDER (PACIFIC) LIMITED
a limited liability company registered at Muaiwalu Complex, Walu Bay, Suva.
DEFENDANT

Plaintiff : Mr. Knight.
Defendant : Mr. Prasad.
Hearing : 18th, 19th, 23rd & 25th October 2012
Written Submissions : 10th December 2012

JUDGMENT

1.	This is a claim filed by the Plaintiff against the Defendant for damages suffered by him as a result of an incident occurred on 05.09.2007 at the Mua-i-Walu Jetty in Suva.

2.	The amended Statement of Claim dated 31.03.2009 further states that the Plaintiff was injured as a result of a pulley block which was broke and struck on Plaintiff's left hand during the fishing line transfer carried out at the Jetty by an employee of the Defendant's fishing vessel.

3.	Plaintiff states due to the injury sustained by him, a deformity of the third finger of his left hand, partial loss of sense in the first three fingers of the left hand, inability of flexibility in his thumb and overall weakness of grip were resulted.

4.	Plaintiff's disability of the left hand was assessed at 12% by a doctor of CWM and now claiming the damages against the Defendant's negligence. The Defendant denies the claim stating that the Plaintiff was a trespasser, having full knowledge of the risk he voluntarily exposed himself to the risk and that there was contributory negligence by the Plaintiff.

Plaintiff's Evidence

5.	Four witnesses were testified during the Plaintiff's case.

6.	At the commencement Dr Josese Vuki gave evidence on Plaintiff's medical findings. He obtained his first degree of Medicine and Surgery in the year 2000 and thereafter followed a Diploma in Child Health Care. Currently he is reading for his Postgraduate course in Emergency and Accidents. Since year 2000 he works as a medical officer at the Colonial War Memorial hospital in Suva.

7.	He stated that he attended to the plaintiff on 05.09.2007 and prepared a medical report on 13.12.2011. The same was marked as P-1 during his evidence. During the examination in chief he explained the injuries sustained by the Plaintiff. He confirmed that there was a laceration and factures on the fingers of Plaintiff's left hand. He further added that there was a nerve damage of the fingers. He assessed the permanent disability of the left hand at 12%.

8.	During cross examination Dr. Vuki said that he is not a qualified orthopaedic surgeon. He has followed the Fijian guidelines to assess the disability of the Plaintiff. When he was questioned about the American guidelines, he admitted that there are lot of differences between the two. The learned counsel for the Defendant produced a medical report of the Plaintiff prepared by Dr. Taloma and according to his assessment the disability was only 9%. Dr. Vuki did not contradict the findings of Dr Taloma. However he emphasised his own report which was based on his own findings.

9.	Dr. Vuki further stated that the Plaintiff's left hand was forceful and had been the dominant hand. He agreed that the Plaintiff did not lose 88% of the control in the left hand. Subsequently during cross examination he agreed that the Plaintiff can engage in light labour. 

10.	The Defendant marked another medical report [D-1] of the Plaintiff which was prepared by Dr. Waqanibete on 01.02.2010. He was the previous consultant surgeon of CWM. As per D-1 the plaintiff sustained an open fracture in his right hand in 1996 and urinary rupture of bladder which were serious conditions. The learned counsel questioned whether he knew theses prior injuries before the assessment of the Plaintiff and whether those have contributed to his condition. Dr. Vuki answered negatively and further he expressed his reluctance to express an opinion on Dr. Waqanibete's findings. 

11.	The Plaintiff then called Mr. Tevita Sugu who was at the gate of Mua-i-Walu Jetty on the day of the incident. The Plaintiff was known to him and he has allowed his admission to the jetty on the Fiji Ports Cooperation Limited [FPCL] identity card. However this witnessed did not see the incident which was occurred later at the Jetty resulting injuries to the Plaintiff. 

12.	In cross examination the witness confirmed that the Plaintiff showed his FPCL ID card. But he did not recall which company the Plaintiff was attached to. He further stated that the Jetty is a dangerous area but there was no notice to that effect at the entrance. 

13.	The third witness of the Plaintiff was Mr. Isireli Cirnavosabula. He was employed by the defendant and had been worked on the fishing vessel Sloander Kariqa on the day of the incident. The Plaintiff has helped the witness to clean Solander Kariqa's fish load in the morning. There was an operation to transfer the main fishing line between Solander Kariqa and MV Seaka. The fishing line was a Nylon line and the transfer was from the spool to another spool in order to repair the pulley. The line runs from one vessel to another and back again. It is considered as one of the dangerous operations of a fishing vessel.

14.	Mr. Isireli stated that he was asked by the Chief engineer and the second Mate of the vessel to tie the pulley to the boat with a nylon rope. This was not the proper way of doing it and it should have been tied using a circle made out of metal. After the attach he stated that the fishing line started moving. However an unusual thing happened as the pulley broke and flew away to hit on the Plaintiff. He stated that two persons including the Plaintiff injured from the incident and later they were admitted to the hospital. This witness marked and identified the positions of each vessel and the Plaintiff in the rough sketch that was marked later as D-2. 

15.	The witness stated that he asked the services of the Plaintiff in the morning as the crew members were late to assist him. He agreed that the Plaintiff was not worked under Solander. He was unaware whether the Plaintiff got paid for the work he performed. It is important to note that this witness stated that there had been a 'drinking session' at the vessel during the day. However he confirmed that the Plaintiff was with him during the day and none of them involved in drinking.

16.	This witness further stated that there were no warnings given during or before the line transfer for the Plaintiff to move away. He was beside the person who did the transfer. When the witness questioned in re examination whether he saw the Plaintiff having three nips of Rum, he stated that he was busy with work to witness it.

17.	The Plaintiff was called to the stand as the final witness of his case. He stated that he worked under the Ports Authority sine year 2000 as a stevedore. He was terminated in 2002 and thereafter did casual labour for the companies at the wharf. In 2007 he worked as a casual labourer for Freight Services Ltd on their call.

18.	On 05.09.2007[the day of the incident] Plaintiff was told that there is no work for him from Freight Services Ltd. Then he had gone to the Mua-i-Walu Jetty looking for some work. He was allowed in by the security officer Tevita on the FPCL ID card which was marked as P-2. He was called by Isireli in MV Solander Kariqa in order to clean their boat after unloading the catch. At around 14.00 hours he was told to wait outside at the wharf. He said that he witnesses the fishing line operation which was went on with the two boats. He said that he has never seen such an operation prior to this and also no notification or cautioning was there at the place. He remained at the jetty with the fish he received for cleaning the boat.

19.	 Then the incident occurred and he sustained injuries from the broken pulley block. He was rushed to the hospital where he stayed two weeks as an inpatient for treatments. He described the injuries and after effects of them which had impact on his living. He said he was rejected from many places where he went searching employment. He stated that he cannot grip anything from his left hand and now living with the support of his wife. He hasn't earned anything since the injury.

20.	Plaintiff further stated he was offered 3 nips of Rum before the incident by the crew of Solender Kariqa. He said he accepted this. Further the Plaintiff added he used to earn $ 400 to $500 a week from unloading fish and selling the fish by-catches, shark bites and cut-offs of fish he got from the boats. Plaintiff told the Court that now he is claiming damages as he cannot engage even in light labour like painting or weeding. 

21.	During cross examination he confirmed on the medical findings of the report which was marked as D-2. But he added that the injury number 2[the open fracture in 1996] was also on the left hand and not the right. It was occurred in the knight's wharf when his hand was crushed by a 20 feet container. He said that the injury left impact on his ability to work.

22.	Plaintiff stated that it was the first time for him to witness a 'Line transfer'. He called it as a repair and his opinion was that it should have done according to the rules and prior approval of the Ports Authority. He claimed that on the day of the incident he was told by the chief mate of Solander Kariqa to help clean the fish load.

23.	The learned counsel for the Defendant then examined on the authorisation of Plaintiff's ID card to enter in to Mua-i-walu jetty as it appears to have given for Kings and Lautoka wharfs. When the witness was shown Exhibit- D3 [Blank application form for FPCL ID card] he agreed that there is a box which requires the wharfs you need to enter in. He stated that he filled requesting all wharfs. Therefore he did not agree that he was only authorised to enter Kings and Lautoka wharfs though it states on the ID. He further stated that the security at the gate given him permission on that day to enter. He agreed that on the day of the incident he didn't have any business of his employer Freight Services limited.

24.	At this time the court observed that the Plaintiff was writing with his right hand. When it was inquired the Plaintiff stated that he is a left hander. But did not answer the question as to why he then wrote from right hand.

25.	The Plaintiff stated that at 9.45 am he went out from the boat after having 3 nips of Rum. He has seen Isireli going to tie the pulley. It had appeared to him as a dangerous operation. But he preferred to stand at the edge of the wharf for 45 minutes. However he stated that no one cautioned him about this and repeatedly said that he thought it as a safe place.

26.	The Plaintiff was then questioned on his earnings. He stated that his daily pay from the company was $30. However he said that he takes $400- $500 daily by selling damaged fish he gets from the boats. He stated that he doesn't want to do light labour as it is not enough for his living. That ended the cross examination. The learned counsel of the Plaintiff clarified during re-examination that there were two other men standing 10 feet away from the place of the incident.

Defendant's Case

27.	 Mr. David Lucas the retired Managing Director of the Defendant testified first. He was the Managing Director at the time of the incident. He stated about the formal procedures at the wharf. He only came to know about this case when the Plaintiff served summons to him on 10.08.2008. Till then he only knew about the other injured person. He then had carried out an investigation and found that it was not due to Defendant's failure to adhere occupational health and safety regulations. Mr. Lucas explained the procedure and the related issues of a line transfer in depth during his evidence.

28.	During cross examination he stated that during 2007 the crew were not allowed to take fish from the vessel and it has to be taken to their factory for a process to be followed. He further said that the regulations of the Defendant was clear for not to employ any casual workers to clean and offload fish in the vessels. The memorandums to this effect marked as D-7. He added that he is unaware on the Plaintiff's work on 4th and 5th September 2007.

29.	Mr. Lucas stated that the line transfer was usually done at jetties. Fiji Ports Authority had never requested the repairs to be done away from Mua-i-Walu jetty. 

30.	He further added that there was a procedure in place where accidents are reported to the Safety Committee and from there to the Labour Department. He said that the same procedure was followed in this incident but only for the other injured person. And the Plaintiff did not report this injury to his office at anytime. He further said that the Plaintiff was neither a crew member nor an employee of the Defendant.

31.	 Mr. Vaisake Vueti Personal officer of Fiji Ports Authority called next by the Defendant. His evidence explained the issuing of identity cards to the persons who wish to enter in to the ports area. He said that the area is secured due to the types of operations carried out inside. And these restrictions were notified at the entrance.

32.	When he was shown the ID card of the Plaintiff, he stated that the ID only allows him to enter in to Kings and Lautoka wharfs only. He added that if the security had allowed him in then the security was acting outside his authority.

33.	In cross examination the witness stated that he did not personally see the notice at the gate on the date in question. He said that he is not sure whether the casual labourers were allowed in during the time without ID cards. He said that the Chinese fishing boats that have causal labourers from outside always provide a list of persons to the main gate who are entitle to enter. However he concluded that the Plaintiff shouldn't have allowed in that day by the security.

34.	Mr. Lino Ratuvou testified as the final witness of the Defendant. He was a seaman who started his career with the Defendant in 2004. He described his job as a seaman of the fishing boats and the training had on the areas such as occupational health and safety.

35.	He said that he was on duty on the 5.11.2007 and was operating the machine that was transferring the main fishing line of the Defendant boat. He has the experience in this operation for 3 years and agreed that it was a hazardous activity.

36.	First he has tied the block from Solander Kariqa to MV Seaka which was assisted by PW3 and another. He said that he tied the block from a thick Japanese rope for four times and started the operation around 10 am. During halfway he has seen the Plaintiff standing at the jetty. This was around 10.30 am. He was having a glass of Rum and 10 minutes later plaintiff moved further closer to the operation. Then the witness has shouted at Plaintiff to move away and he will get injured. But the Plaintiff replied 'you just do your job I cannot be injured'. Thereafter he has cautioned him thrice which he didn't adhere. Witness stated that he was distracted by the conduct of the Plaintiff and at the same time the main line jammed. This was happened within a half a minute from his last warning. 

37.	Mr. Lino Ratuvou further stated that the Plaintiff never worked for their boat on or prior to the date of incident. And he hasn't seen him with fish bags in hand. He added that the evidence was voluntary and there was no compensation offered nor under any duress to give evidence.

38.	During cross examination he stated that he has sufficient experience in line transferring and he has never done it in the sea. He stated that PW-3's position was incorrect and he did not tie the pulley block as he had only 3 months experience. He said that he didn't stop the operation to move the Plaintiff out. He added if the Plaintiff had listened he would not have been injured. When he was questioned the surrounding noise at the time of the operation he said that there was no noise and it is wrong that Isireli didn't hear the warning. With that the Defendant closed their case.

Analysis

39.	The Plaintiff states that in Common law there is a duty of care on someone carrying out a dangerous operation to ensure that the operation is conducted in such a way to avoid as far as reasonably possible, that an accident will not occur which could cause injury to someone in the vicinity of the operation. 

40.	Firstly this court has to decide whether there was any lacking of reasonable care which constitute an act of negligence by the Defendant or by his servants and whether the Plaintiff is entitle to claim damages against the Defendant.

41.	 Many distinguished judges of the Common law jurisdiction have attempted to task of summarising the ingredients of the modern tort. Lord Wright once said that in strict analysis "negligence means more than heedless or careless conduct, whether in commission or omission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty is owing". [Lochgelly Iorn ans Steel Co v. M'Mullan 1934 AC 1 at 25]. Whatever form of words is adopted the essential components are recognised as 'duty', 'breach' and 'resulting damage'.

42.	In Caparo industries PLC v Dickman [1990] 2AC 605, Lord Bridge emphasised the inability of any single general principle to provide a practical test that could be applied to every situation to determine whether a duty of care was owed and, if so what was the scope. He continued,

"what emerges is that in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other". 

43.	 The Defendant argues that the Plaintiff has no right to claim damages as he has been a trespasser on the jetty. He further submits the case of Hillen and Pettigrew v ICI(Alkali) Limited [1936] AC 65 which is a decision of the House of Lords. The court held that stevedores, who were lawfully on a barge for the purpose of discharging it, nevertheless become trespassers when they went on to an inadequately supported hatch cover to unload some of the cargo, since they knew that they ought not to use the covered hatch for this purpose. The court held that the appellants had no cause of action. 

44.	 In the present case the Plaintiff admitted that exhibit P-2[his ID] doesn't carry the port name 'Mua-i-walu and he confirmed during cross examination that the application form which they have to submit to apply for the ID carries the name of Mua-i-walu. Further the defence second witness Mr. Vaisake Vueti confirmed that the Plaintiff cannot enter the jetty with his ID card. The Plaintiff's position is clear that he entered in as a ID holder and not as a casual labourer of a Chinese fishing boat. Therefore it is clear that the Plaintiff on the day of the incident entered in to the jetty without lawful authority, thus he can be included in the ambit of 'Trespasser'. However the security Mr. Tevita Sugu who was at the gate had allowed the Plaintiff in on the day of the incident. Also later it was submitted that Mr. Isireli Cirnavosabula has asked the Plaintiff to help him with the cleaning of the boat. However Mr. Lucas stated that the instructions for their crew members were specific and the assistance for fish unloading or related matters by outsiders was prohibited.

45.	It is clear that the security guard and Mr. Isireli Cirnavosabula acted outside their powers. Lord Atkin in Hillen and Pettigrew states "I am far from satisfied that any one so invited the plaintiffs; I think the engineer's part was confined to a friendly suggestion that they should all do something irregular together. But whether there was an invitation by the crew or any member of the crew, I am quite satisfied that it was wholly without the authority of the owners, and quite outside the ostensible scope of the authority of the crew. The owner of a barge does not clothe the crew with apparent authority to use it or any part of it for purposes which are known to be extraordinary and dangerous. The crew could not within the scope of their employment convert it in to a dancing hall or drinking booth". 

46.	Therefore in the present case even the Plaintiff was invited to the jetty by the above stated persons the Defendant will not vicariously liable for the acts of their servants who have clearly acted outside the scope. On the other hand a duty of reasonable care only extends even to an invitee who is acting with due care.

47.	The Plaintiff himself has admitted that he had three nips of Rum before the incident. Further the defence witness who performed the line transfer stated that 10 minutes before the incident he saw the Plaintiff with a glass of Rum in hand. This position of the defence witness was not challenged by the Plaintiff. The Plaintiff in his evidence stated that when the line transfer was in operation, he preferred to stand at the edge of the jetty for 45 minutes. The reasonable understanding of a prudent person is standing near the edge of the jetty is dangerous. Hence it is unnecessary to explain the degree that the Plaintiff exposed himself for the danger. Lord Atkin further emphasised on a similar position in the above case. He held that "in my opinion this duty to an invitee only extends so long as and so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purpose for which he has been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use".

48.	 In 1972 in Herrington v British Railway Board [1972] AC 877 the House of Lords held even a trespasser should be treated with ordinary humanity. This was not a new development on the law relating to duty of care. Even Lord Atkin emphasised during the above discussed case, that the Defendant might owe a moral duty even to a trespasser to warn him about the danger.

49.	In the present case there is no evidence to say that the Defendant performed a prohibited operation at the wharf. Also the court notes that the person who actually did the line transfer had enough experience on the job and it was established at the trial. Further Mr. Lino Ratuvou stated that he gave three warnings to the plaintiff to get off from the edge of the jetty before and during the transfer. But the Plaintiff preferred to stay in the place and further replied to the witness 'you just do your job I cannot be injured'.

50.	However the Plaintiff and his witness Isirili stated that there were no warnings given. It was not established whether the Plaintiff was in proper state of mind to hear what Mr. Ratuvou said after having three nips of Rum. Further I must note that the demeanour of Mr. Isirili was not very convincing. It appears that he was terminated by the Defendant. Further he said that the Plaintiff did not drink on the day in question, this was not true and it was confirmed during the trial. Due to the infirmities the court is reluctant to accept his evidence. On the other hand the evidence of Mr. Ratuvou was not impeached during cross examination. Therefore the court notes him as a credible witness and relies on his evidence.

51.	It was apparent that the Plaintiff has the choice and freedom to move out from the danger after the warning of Mr. Ratuvou. But he did not move out of the danger. A person who makes an agreement, whether expressly or by implication, to run the risk of harm negligently infected by another cannot recover in respect of damage suffered in consequence. This rule has traditionally been expressed by the maxim volenti non fit injuria. The law states that the defence must be pleaded specifically, raises issues whether the Plaintiff agreed to the breach of a duty of care, owed him by the defendant; and the Plaintiff consented to waive his right of action against the defendant in respect of that breach. If the answer to each is in the affirmative then the wrongfulness of the Defendant's conduct is excused and the Plaintiff is precluded from recovering damages. 
 
52.	The view of the court is that at the first place the facts proved do not disclose any cause of action against the Defendant since the Plaintiff falls within the ambit of 'Trespasser'. Secondly the court rules that even the Plaintiff was a trespasser the Defendant has reasonably fulfilled his moral duty towards the Plaintiff by giving three warnings to him, but the Plaintiff opted to remain in the danger.

53.	Therefore the action by the Plaintiff fails and it is dismissed accordingly.

54.	Parties should bear their own costs.

Yohan Liyanage
Resident Magistrate

06th February 2013