Ranjit Garments Ltd v Wati [2006] FJCA 20; ABU0035.2005S (24 March 2006)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0035 of 2005S
(High Court Civil Action No.HBC 484 of 2003S)

BETWEEN:

RANJIT GARMENTS LIMITED
Appellant

AND:

SILA WATI
Respondent

Coram: Ward, President
Stein, JA
Ford, JA

Hearing: Monday, 20 March 2006, Suva

Counsel: Mr H. Nagin for the Appellant
Mr D. Sharma and Mr N. Lajendra for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

[1] This is an appeal from a decision of Justice Jiten Singh wherein he entered judgment for the respondent/plaintiff in the sum of $72,041.15 arising out of injuries she sustained in a work accident on 18 December 2002.

Facts

[2] The respondent, a machinist, was carrying a bundle of garments in her arms when she collided with an oblong tub situated in a passage way. She fell to the concrete floor badly injuring her patella. She was taken to hospital where her shattered patella was removed. Her leg was put in plaster for 7 weeks and she has to walk with the aid of crutches. She has not returned to work.

[3] The tub was described as 2 feet long by 1 foot wide by 1 foot deep made of hard plastic. The walkway was between 90 cm and 1 metre wide with yellow painted strips at the edges. According to the appellant tubs were not supposed to be placed on the walkways because they could pose a hazard to those walking on them. This was part of the system of work adopted in the factory.

[4] The respondent bumped into a tub and fell to the ground. No one saw her fall, only the aftermath. His Lordship found that the tub protruded onto the walkway. He said that the failure to keep the walkway clear was a failure to comply with minimum standards for safety which was an indication of want of care. In other words there was an unsafe system of work.

[5] His Lordship said:

"The plaintiff had been asked to work fast. She was carrying I find a bundle of clothes in her arms held in front of her as she demonstrated. She walked on this narrow walkway between two rows of machines which were about three feet high. The plaintiff to my estimation would be about just over five feet tall so her visibility in front with clothes in her arms would be limited. Further she had only turned around a machine and then hit the tub.

The plaintiff would be quite entitled to assume that the walkway would be free of impediments. On the balance of probability I find that the plaintiff has shown that the defendant failed to keep the walkway clear which resulted in failure to provide a safe system of work. None of the defendant’s witnesses had actually seen what happened. They only arrived at the scene after the plaintiff had fallen. The plaintiff’s version of events is far more credible coming as it is from someone who experienced what had happened. Accordingly I find the defendant liable for the injuries to the plaintiff."

Grounds 1- 4 Liability

[6] The appellant submits that the judge was in error in finding the appellant to be negligent. It is submitted that there was no evidence adduced to say that the tub was on the walkway. This is incorrect. The respondent clearly said that she bumped into the tub which was in her way on the walkway. The tubs, she said, were normally kept underneath the tables. His Lordship accepted her evidence as credible as he was entitled to do. The appellant’s witness Manoj Kumar stated that if the passageway was not kept clear it could have created a hazard. Indeed, it was the appellant’s rule that tubs were not supposed to be placed in the walkway. The judge was critical of some of the appellant’s witnesses, for example, the witness Raven Prasad was found to be evasive. The findings on credibility should not be disturbed by this court. They were open to the judge to make.

[7] During the hearing the appellant suggested that the respondent did not bump into the tub. However, this was conceded by appellant’s counsel in his closing address as noted by the judge in his judgment.

[8] There was ample evidence that the tub protruded into the passageway and was in the way of the respondent as she was walking along it. On the evidence the trial judge was entitled to find that there was an unsafe system of work and a want of care on the part of the appellant.

[9] The appellant relies upon some digested cases. The first is Tressider v. Austral Stevedoring and Lighterage Co, Pty Ltd. [1968] NSWR 586. However, this concerns a static condition of the work place, which is not the situation here where someone placed the tub in the passageway which was to be kept clear.

[10] The second case is Thiessen v. Winnipeg School Division No. 1 (1996) 57 WWR 193, 62 DLR (2d/1(Can). This concerned an apple on a school room floor. But here we have a passageway demarcated for use as part of the system of work. The passageway was supposed to be kept clear of tubs.

[11] The last authority is Daniell (CE) v. Velekou [1955] NZLR 645 which is a case of casual negligence. The subject appeal is not casual negligence.

[12] These grounds of appeal must fail.

Grounds 4 – 6

[13] These grounds maintain that there was contributory negligence on the part of the respondent. While contributory negligence was pleaded it was clearly abandoned as an issue in the closing address of counsel. He said: "I am not asking for contributory negligence. It is all or nothing situation." Nothing could be clearer and the Judge was entitled to rely upon the abandonment of the plea by counsel. We will not permit it to be raised on the appeal.

[14] All of the remaining grounds of appeal have been abandoned.

[15] Accordingly, the appeal must be dismissed and the appellant is ordered to pay the respondent’s costs in the sum of $700.

Ward, President
Stein, JA
Ford, JA

Solicitors:
Messrs. Sherani and Company, Suva for the Appellant
Messrs. R. Patel and Company, Suva for the Respondent