Emperor Gold Mining Company Ltd v Lepolo [2011] FJCA 50; ABU0013.2009 (29 September 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CIVIL APPEAL NO.ABU0013 OF 2010
[High Court Civil Action No. HBC 009 of 2002]

BETWEEN:

EMPEROR GOLD MINING COMPANY LIMITED
[Now known as VATUKOULA GOLD MINES LIMITED]
Appellant

AND:

JOSAIA LEPOLO
Respondent

CORAM : Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Kankani Chitrasiri, Justice of Appeal
Hon. Justice Sriskandarajah, Justice of Appeal

COUNSEL : Mr. A. Sudhakar for the Appellant
Mr. A. Patel for the Respondent

Date of Hearing: Tuesday, 6 September 2011
Date of Judgment: Thursday, 29 September 2011

JUDGMENT

William Marshall, JA

1. I agree with the judgment, the reasons and the proposed orders of Kankani Chitrasiri, JA.
   

Kankani Chitrasiri, JA

2. This is an appeal filed against the judgment of His Lordship Justice Sosefo Inoke dated 9th April 2010. In that Judgment His Lordship awarded the sum of $100,000.00 as damages to the respondent for his pain and suffering and loss of his amenities of life that was caused by an accident whilst he was performing his duties under the appellant company. When awarding the said general damages, the learned Judge did not make any finding as to the special damages such as loss of wages and loss of future earnings. Having decided so, His Lordship had thought it fit to afford an opportunity for the parties either to make oral submissions or if necessary to have further written submissions and to make a decision thereafter on the quantum of damages in respect of the other heads of damages including that of the costs of the action.
   
3. Hence, the appeal before this Court is only against the decision on general damages amounting to the sum of $100,000.00 awarded for the pain and suffering and loss of amenities of life of the respondent.
   
4. It must be noted that Justice Inoke had to deliver a judgment in a case where the entirety of the evidence was led before another Judge of the High Court namely Madam Justice G. Phillips. Her commission as a Judge of the High Court came to an end after she reserved her Judgment in this matter. Justice Inoke, without the case being heard de novo, undertook to write the judgment adopting the evidence led before Phillips, J A having obtained the consent of both parties. The parties have not raised any objection to the said course of action even at the appeal stage.
   

Background

5. The appellant (original defendant) is a company engaged in business of mining. The respondent (original plaintiff) is an employee of the appellant at all material times.
   
6. The respondent suffered injuries when a heavy rock fell on his leg causing a fracture to his left tibia and fibula while he was working at the appellant's mine at Vatukoula on 10th June 2001. This led to his left leg being amputated below the knee.
   
7. As a result, the respondent filed this action in the High Court of Lautoka alleging that the injuries were caused due to the negligence of the appellant.
   
8. The case was heard before Madam Justice Gwen Phillips but due to her departure from the office as a Judge, Justice Inoke delivered the judgment even though he did not have the benefit of seeing the witnesses and assessing them of their credibility and demeanuor.
   
9. In the judgment delivered on the 9th April 2010, Inoke, JA had found that the accident was caused due to the negligence of the appellant. He did not find any negligence or contributory negligence on the part of the respondent.
   
10. Accordingly, Inoke JA made order that the Defendant shall pay the sum of $100,00.00 to the Plaintiff, as damages for pain and suffering and for loss of his amenities of life.
    

Grounds of Appeal

11. Being aggrieved by the aforesaid decision, the appellant filed this appeal having advanced the following grounds:
    

"1. The Learned Trial Judge erred in law and in fact in not properly and/or adequately evaluating the evidence of DW 1 (Eliki) that the respondent knew and was instructed by him to check for the loose rocks himself and that the respondent had been trained to make the area safe.

2. The Learned Trial Judge erred in law and in fact in failing to properly and/or adequately evaluate the admission of the respondent in his statement to the Board of Inquiry (Exh p9), and in cross examination, that he had been instructed to make the area safe and in his Board of Inquiry statement he was not totally convinced that the area was safe and after failing to remove bad ground after few attempts he sat down directly below the suspected fault to rest which admissions proved that the accident and injuries were caused and/or contributed by the respondent's negligence.
   
3. The Learned Trial Judge erred in law and in fact in holding the appellant liable without properly and/or adequately making a finding as to what caused the accident or considering the issue of causation after making, inter alia, the following findings of fact:
   
   • (i) that the only bar that was available was a 2.3m bar without any rubber on the end;
     
   • (ii) Naua only bolted one of the marked areas as there was only one rock bolt available.
     
4. The Learned Trial Judge erred in law and in fact in not giving due consideration to the fact that the trainee miner Rupeni who was with the respondent before the accident and who could have confirmed the respondent's evidence was not called by the respondent to give evidence and in not drawing the inference that he would not have helped the respondent's case.
   
5. The Learned Trial Judge erred in law and in fact, in not giving reasons as to why His Lordship did not give any or any adequate weight to the respondent's statement to the Board of Inquiry (Exh p9) that he was not totally convinced that it was safe when his Lordship found that the respondent did not know or should have known that his work area was not safe.
   
6. The Learned Trial Judge failed to evaluate all the evidence and his findings of negligence against the appellant and the finding of no negligence or contributory negligence on the part of the respondent was against the weight of the evidence.
   
7. The Learned Trial Judge erred in law and in fact when took into account irrelevant matters and failed to take into account relevant matters in finding that the appellant was negligent and that negligence of the appellant caused the accident and the respondent's injuries.
   
8. The Learned Trial Judge award the $100,000.00 in damages for pain and suffering is excessive and contrary of comparable cases in the jurisdiction."
   
12. The grounds of appeal 1, 2, 3, 6 and 7 mentioned above relate to the respondent's negligence or his contributory negligence that may have contributed for the injuries caused to him. Even in the submissions of the appellant, the grounds of appeal 1, 2, 6 and 7 have been incorporated into one ground. I will therefore consider the grounds of appeal in the following summarized manner:
    

"(i) Had the learned Judge considered all the evidence and material before him, he would have found that breach of the duties of the appellant was not the cause for the accident even if the appellant was in breach of his duties.

(ii) Whether the learned Judge erred in law by failing to consider the non-availability of the trainee miner Rupeni to give evidence being the only other person present at the time of the accident.

(iii) Whether the learned Judge had adduced reasons for not considering certain evidence which could have assisted the case for the appellant particularly the statement of the respondent made before the Board of Inquiry.

(iv) Whether the quantum of damages awarded by the Learned Judge should be a lesser amount had the learned Judge found negligence or contributory negligence on the part of the respondent."

Whether the Trial Judge properly considered the evidence

(Grounds of Appeal 1,2,3,6 and 7)

13. On behalf of the respondent three witnesses gave evidence. His first witness was Ian Fong who is the Principal Engineer Mines in the Mineral Resources Department; second witness was the doctor who attended the respondent after he received his injuries while the third, being the last witness, was the plaintiff himself.
    
14. Four witnesses gave evidence on the appellant's behalf. Its first witness namely, Eliki Lewacabala, was on duty as the mine captain on the day in question. He is the person who instructed the respondent to carry out the duties during which time the respondent received injuries. Second witness was Sakaraia Naua whose duty was assigned to the respondent by the said witness, Eliki. Third witness of the appellant was Saimoni Mara. He had visited the place of the incident only after the accident had occurred. Fourth witness, Akesh Sharma had been the Personnel Manager of the appellant company who testified to the matters such as the contract of service, emoluments, etc. of the respondent.
    
15. Consequent upon analyzing the evidence of the witnesses above, the learned trial Judge found that the appellant company owed a duty of care towards the respondent to prevent such an accident when the respondent was carrying out the orders of his superiors within the course of his employment. He also has decided that there had neither been negligence nor contributory negligence on the part of the respondent in this instance.
    
16. Therefore it is necessary to ascertain whether the learned High Court Judge, when coming to the decision above, has considered the evidence adduced by both the parties judicially. Importance of proper evaluation of evidence and the manner it should be done had been discussed in the following decisions.
    
17. Bowen, L.J in Thomas v. Quartermaine [1887] UKLawRpKQB 47; [1887] 18 QBD 685 said:
    

"The ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which are bound by law to exercise towards somebody."

Lord Porter in Potts or Riddell v. Reid [1943] AC 1 held:

"Negligence is the failure to use the requisite amount of care required by the law in the case where duty to use care exists."

18. Accordingly, it is really the absence of care of the appellant that has to be established first, when the respondent was directed to drill the face of the rock situated at the place where he was injured.
    
19. At the same time it is necessary to find out whether the respondent acted negligently or has he contributed to the injuries caused. It is also necessary to ascertain whether the respondent had agreed to run the risk of having him injured whilst attending to his work.
    
20. I will now examine the way in which Justice Inoke had examined the evidence having regard to the aspects of:
    
    1. duty of care owed by the appellant; and
    2. negligence or contributory negligence on the part of the respondent.
       
21. At the beginning of the trial both parties have agreed that the appellant owed a duty of care to take all reasonable precautions for the safety of the respondent. Whilst agreeing on this fact, the parties also had consensus to the effect that it is the duty of the team leader and the Mine Captain to ensure the safety of the workers.
    
22. Also, it is not in dispute of the appellant's duty, to follow the safety measures found in the regulations published under the Mining Act. Accordingly, the Mine Captain must visit the workplace once in every two days. Team leaders are obliged to visit once in every shift. Proper ventilation has to be provided. The miners are to be provided with facilities to reduce the heat, generated inside the mine. Proper tools are to be utilized and the correct directions are to be given to the miners.
    
23. More importantly the prime duty of the appellant company is to ensure the safety of the employees when they are at work in the mines especially when it comes to blasting of rocks inside a tunnel. The words, "Barring and scaling" are the words used in the mining industry to describe such safety measures.
    
24. The evidence relating to the safety measures taken in this instance could be seen by analyzing the evidence particularly of the plaintiff, the Mine Captain Eliki and of the witness Naua. Eliki in his evidence has clearly stated that he gave clear instructions to the respondent Josaia Lepolo to go and bar the area referred to as 1547 Flatmate.
    
25. Eliki also said that he went to 1547 Flatmate and saw the workers including the plaintiff were working there. Then he had instructed them to do barring and watering at the work-site. (vide page 273 of the record) Thereafter he had marked the face entry on the top of the rock. After showing the face, Eliki had marked five areas where the support by rock balts was necessary and then instructed Naua Sakeasi to insert the rock bolts. (page 275 of the record) Thereafter he had told the respondent to work at 1545 Strike Drive. Then the respondent wanted to wait till Naua complete the barring properly. Having instructed so, Eliki, the Mine Captain had left the site around 10.30 a.m.
    
26. According to the respondent, he was asked to attend to the work of Naua. When he came to the Strike Drive, he saw a machine called 'TORO' was in use. This machine is used to clear the work sites. The hogging operations by the Toro had been finished around 1 o'clock and the plaintiff along with a trainee miner was to commence the work at the Strike Drive.
    
27. The respondent in his evidence had also stated that he was forced to do the preparation work for blasting despite the work relating to scaling had not been completed. He said that there was only one 6 feet bar was available for barring. Accordingly, it is the position of the respondent that the workplace was not made a safe area though he was instructed to go ahead with drilling.
    
28. Considering all this evidence, the learned High Court Judge has preferred to accept the respondent's version and came to the conclusion that the appellant being the employer had not taken due care to make the place of work safe for the miner, Josaia Lepolo to attend to the work assigned to him.
    

Analysis

29. As explained before the plaintiff's first witness, Ian Fong said the employer should provide, rock bolts to side wall 2ft x 6ft long, wire mesh to hold up the entire area, straps to bolts to hold up the area, in order to ensure the place of work safe. The respondent did not deny the availability of those measures. Hence, it is clear that the appellant company has taken due care in providing the said basic requirements.
    
30. However, mere providing of the basic facilities would not be sufficient to take care of the employees when they are at work particularly when a person who does not have proper educational qualifications in the relevant field. Also, it is the duty of the employer to ensure that the proper instructions are given to the workmen through qualified personnel depending on the nature of the work and of the particular work-site. In this instance, the mine captain Eliki should have visited the work-site and given instructions showing the places marked to have the rock bolts before the drilling was to take place. He should have taken such steps to make the place of work safe. By the evidence of the appellant's witness Naua, It is clear that Eliki being the mines Captain has not taken such measures in this instance. (Vide page 309-310 of the original record).
    
31. In his evidence Naua has stated thus:
    

"Q: On 10 June 2001, the whole face was not marked, was it?

A: Only on top.

Q: If the mine captain does his job properly, he would mark the whole face?

A: Yes.

Q: And on the day in question, it was not done?

A: That's correct.

Q: Because part of the face was covered by mud and was not accessible?

A: Yes.

Q: And normally, before the face is marked, the whole of the drive, access to the face is all scaled down and barred down?

A: Yes.

Q: And it not normally to start drilling holes in the face till the whole area is scaled and barred down first?

A: Yes.

Q: And if that is not done, the miner should not work on the face?

A: Yes.

Q: He can say, it is dangerous, I am going away?

A: Yes.

Q: That is what the book says?

A: Yes.

Q: One supported?

A: Yes.

Q: Three not supported and accessible?

A: Yes.

Q: And one not accessible?

A: Yes.

Q: And you and Eliki started machining?

A: Yes.

Q: So even though the book says you should do all these things, it is not followed in Vatukoula?

A: Yes [agrees]. "

32. The aforesaid evidence show that the appellant, as the employer of the respondent had failed to make sure the safety of the workers who were working at the place where the accident took place.
    
33. Furthermore, it is undisputed that the mine captain Eliki had not visited the place of incident after he left the area 1547 around 10.30 a.m. (vide proceedings at pages 275-276 of the record). It is also in evidence that there had been only the plaintiff with another Miner namely, Rupeni working at the place of accident. This is established by the evidence of the respondent. He said: "I went to Strike Drive with my Training Miner. Mining Captain did not go with me nor the Team leader."
    
34. Accordingly it is clear that only the plaintiff and a trainee miner was assigned to engage on this important task. The work that was being assigned involved the risk of many dangers. Under such circumstances, it would have been the duty of the superiors who had the proper knowledge, to be present even without a request since proper guidance was required at this instance. Also, it must be noted that such dangers could have been avoided if the correct instructions, by a person having the required technical know-how, were given.
    
35. In the circumstances, it is clear that the duty of care expected of an employer had not been properly taken by the appellant company in this instance. Therefore it is correct to conclude that the appellant company had failed to take proper care to prevent the accident being occurred. Therefore it is my view that the learned High Court Judge had come to the correct decision when he decided that the appellant is responsible for not taking due care to prevent the accident which resulted the respondent being injured.
    
36. It is now necessary to decide the extent of negligence of the respondent, if any, that contributed to the occurrence of the accident. The learned High Court Judge was of the opinion that there had been no negligence on the part of the respondent and it was purely the fault on the part of the appellant to have the accident occurred.
    
37. I will now examine the evidence to ascertain whether there had been any negligence on the part of the respondent and if so to what extent it contributed to cause the injury on him.
    
38. Admittedly the respondent had been an employee of the appellant company since 29th May 1992 having a long period of service which counts nearly 10 years.
    
39. He was given training in the field of mining, in particular the safety measures that are to be observed whilst engaging in the activities of mining. He became an Assistant Miner after a short period of training and since the year 1998 was appointed a fully qualified machine miner. During the training, he was taught five key points of Scaling Down including the scaling of loose rocks, checking of equipments and ventilation, barring down and scrapping. In the event he is not satisfied with the availability of the said requirements, he was taught to seek advice from the superiors. This was related by him in his own testimony in these proceedings. [Vide proceedings at pp 232-234 of the original record].
    
40. Accordingly, with his long years of experience he should have taken all these measures to prevent the accident before he started drilling on the face of the rock. It is in evidence that there had been only one bolt installed even though there was a danger of getting the loosened rocks to fall. Therefore it should have been the duty of the respondent to have the bolts installed before he embarked on drilling. If the necessary bolts were not available, or the marks to fix the bolts were not visible, the respondent should have informed the superiors of such inadequacies.
    
41. The respondent in his evidence had stated that he did not see any marks for the installation of the bolts. To the contrary the mine captain, Eliki and the others who gave evidence on this point had categorically stated that there had been five marks to have the bolts fixed. Having considered the totality of the evidence and the probabilities of events, I would prefer to accept the evidence of the others than the evidence of the respondent with regard to the appearance of the marks to have the rock-bolts fixed.
    
42. The evidence of the respondent himself also indicates that he started drilling before scaling being attended to. In fact it is his evidence that he started to make the area safe only after Rupeni went to get help of another while he was drilling the face despite the fact that he was instructed by Eliki to scale down the area and to have the proper supports. [Vide proceedings at p 241 of original record].
43. Furthermore, it is evident that the respondent after becoming aware of the necessity to have another person for scaling, sat down right opposite the place where the loosened rocks were. [Vide proceedings at p 249]. As a trained miner without taking such a step, he should have gone to a place away from the dangerous area if he needed to rest. Even as a layman, one would take such a precautionary step.
    
44. The aforesaid actions of the respondent show that the accident could have being avoided at least to some extent if he acted in the proper manner. Therefore, it is my opinion that there had been contributory negligence on the part of the respondent when he met with the accident.
    
45. I will now consider the authorities in connection with the aspect of duty of care and the contributory negligence particularly when it comes to the liability of an employer. This issue had been discussed in detail in the High Court of Fiji in the case of Shiu Pal v. Maharaj Buses Limited HBC 191 of 2004 (judgment of 8th November 2005).
    
46. Also, in the case of Qualcast (Wolverhampton) Ltd v.Haynes [1959] 2All ER 38, Their Lordships in their speeches said:
    

Lord Radcliffe at page 40 E states:

"An experienced workman dealing with a familiar and obvious risk may not reasonably need the same attention or the same precautions as an inexperienced man who is likely to be more receptive of advice or admonition. Here, no doubt, the question of delimiting the duty merges with the question of causation."

Lord Keith of Avonholm at page 42 E states:

"The duty owed by the employers was a duty owed to the plaintiff. This is not necessarily the same as the duty owed to others of the workers. The duty may vary with the worker's knowledge and experience."

47. Having regard to the evidence and the authorities mentioned above, I am not inclined to agree with the decision of Justice Inoke as to the aspect of contributory negligence of the respondent that led to the accident causing him injuries. Considering the nature and the gravity of the negligence on the part of the respondent, it is my considered view that the quantum of damages awarded by the learned High Court Judge should be reduced by 40%.
    

Failure to call an important witness (Appeal ground 4)

48. The witness Rupeni, a trainee miner who was working with the respondent immediately before the occurrence of the accident had not been called to give evidence despite the fact that the said person Rupeni has given a statement to the Board of Inquiry, which inquired into the incident. The appellant, therefore, alleged that the learned Judge has not addressed his mind to these matters. Accordingly, the appellant advanced an argument to state that, had Rupeni being called as a witness, he would have given evidence stating that the respondent did not attend to scaling in the proper manner and also not adhered to the correct procedures.
    
49. However, even without considering the absence of the evidence of Rupeni, I have found that there had been contributory negligence on the part of the respondent. Therefore it is not necessary to address this issue as it would not make a difference to the final outcome of the Judgment.
    

Non- Consideration of important Evidence (Appeal ground 5)

50. The learned counsel for the appellant has advanced an argument to state that the Learned Trial Judge did not assign reasons for not giving adequate weight to the respondent's statement made before the Board of Inquiry. Also, it is alleged that the trial Judge failed to consider the evidence of Eliki, Naua and Samisoni in respect of the negligence on the part of the respondent. In support of his contention he has quoted Eagill Trust Co.Ltd v. Pigott-Brown and Another [1985] 3 All ER pg. 122.
    
51. Certainly, it is an omission on the part of the Judge to have not given adequate reasons, analyzing the evidence adduced in relation to the issues before the Court for the decision that he has arrived at.
    
52. However, the evidence alleged to have not being considered by the learned trial Judge has now been looked at in this judgment. Therefore I do not wish to consider this aspect since it would not prejudice the rights of the appellant.
    

Quantum of damages (Appeal ground 8)

53. Generally, the heads of damages include the damages for pain and suffering, loss of amenities, disfigurement and loss of expectation of life, loss of earning capacity and expenditure on needs created by the injury such as cost of hospital, medical and similar treatment, aids, appliances and voluntary nursing and assistance.
    
54. However this appeal is only against the damages awarded for the pain and suffering and loss of amenities of life. The judgment in respect of the claims on the other heads is yet to be delivered by the learned High Court Judge.
    
55. When assessing the damages for pain and suffering and loss of amenities, it is necessary to look into the nature of the wounds and the period that it took to get the wounds healed and the nature of amenities lost. Such a test would depend on the evidence led at the trial.
    
56. The learned Trial Judge in paragraph 65 of his judgment has extensively dealt with the respondent's injuries and his period of stay in the hospital. He has also compared the evidence relating to such matters with the facts and the amount of damages awarded in nine other cases decided in Fiji. Whilst considering those matters, he also has carefully looked into the different amounts of damages awarded in cases where the limbs were amputated.
    
57. In the circumstances, it is my view that the learned Judge has given due consideration of the matters that should be looked into when assessing the damages for pain and suffering and for loss of amenities of the respondent.
    
58. However, since the learned Judge has come to the conclusion that there had been no negligence on the part of the respondent for the accident that led to cause the injuries, he has not taken into account the contributory negligence on the part of the respondent when he decided on the quantum of damages. However, in this Judgment, I have decided that the respondent too, had contributed to the occurrence of the accident. Considering the nature and the extent of the negligence on the part of the respondent, it is my considered opinion that the quantum of damages in this instance should be reduced by 40%.
    
59. In the circumstances, I conclude that the appellant should pay the respondent $60,000.00 as damages for pain and suffering and loss of amenities of life. However, this decision would not affect the Order No. 2, namely assessing the quantum of damages by the trial Judge in respect of the other heads of damages claimed by the respondent. However all damages must be calculated on the basis of 40% contributory negligence.
    
60. Accordingly, subject to the aforesaid variation, I affirm the decision of His Lordship Justice Inoke. Considering all the circumstances of this case, I do not propose to order costs on the parties.
    

Sriskandarajah, JA

62. I also agree with the judgment, the reasons and the proposed orders of Kankani Chitrasiri JA.
William Marshall, JA

ORDERS OF THE COURT

63. The orders of the Court are as follows:
    
    1. The defendant shall pay to the plaintiff the sum of $60,000.00 as damages for pain and suffering and loss of amenities of life.
       
    2. Learned High Court Judge in Lautoka is directed to make an order as to the quantum of damages in respect of the other heads of damages claimed by the plaintiff, expeditiously. Such order to be on the basis of 40% contributory negligence.
       
    3. In respect of this appeal there be no order as to costs.
       

......................................................
Hon. Justice William Marshall
Justice of Appeal

......................................................
Hon. Justice Kankani Chitrasiri
Justice of Appeal

......................................................
Hon. Justice Sriskandarajah
Justice of Appeal

Solicitors
A.K. Lawyers for the Appellant
S. B. Patel and Company for the Respondent