Chand v Amin [2015] FJCA 143; ABU0031.2012 (2 October 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Civil Appeal No: ABU 0031 of 2012
(High Court Civil Action No: 39 of 2008)

BETWEEN:

1. VISHWA CHAND
2. COURTS (FIJI) LTD
Appellants

AND:

SHEIK MOHAMMED AMIN
Respondent

Coram : Basnayake JA
Anthony Fernando JA
Wati JA

Counsel : Mr. A. Sen for the Appellant
Mr. A. Kohli for the Respondent

Date of Hearing : 10 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Basnayake JA
[1] This is an appeal filed by the appellants (1st and 2nd defendants) against the judgment of the Learned Judge of the High Court in Labasa awarding the respondent (Plaintiff) special damages in the sum of $39,898.87 together with interest at 3% for the period 19 September 2005 to December 2011 and general damages in the sum of $137,000 together with interest on the sum of $85,000 at 4% for the period 12 September 2008 to 6 December 2011 together with costs in the sum of $1200. The sum of $85,000 referred to above was awarded for pain and suffering (past and future pain) and loss of amenity/enjoyment of life.

[2] The Plaintiff was an employee of the 2nd defendant company as a porter/driver. The Plaintiff was assigned among other duties to carry goods from the ground floor to the 1st floor of the 2nd defendant's warehouse at Labasa. The Plaintiff was also required to transport goods from Labasa to Tavenui branch and unload the same at the end of the journey. The Plaintiff had been working in this place for more than 10 years when he fell ill in September 2005. The Plaintiff states that on 13 September 2005 the Plaintiff had transported goods from Labasa to Taveuni and unloaded the same. On 19 September the Plaintiff moved heavy goods from the ground floor to the 1st floor of the warehouse at Labasa. Some of the goods the Plaintiff carried were washing machines, television sets and microwave ovens of which some weighed 50 kilos. These goods had to be carried on the shoulder along the steps to the first floor. Half way through the steps, due to a cement beam standing across the workers including the Plaintiff had to bend in order to get through while carrying heavy luggage on the back. This is in addition to the driving of the truck with the goods and unloading them at the point of destination.

[3] The Plaintiff complained that due to the negligence of the Defendants, in that by not taking adequate steps in providing facilities, the Plaintiff suffered injuries, namely, slipped disc and compressed nerves. As a result of the injuries suffered, the Plaintiff became totally unfit to work, unable to walk unassisted, unable to enjoy his sex life and was not able to engage in sports which he was so accustomed to. The Plaintiff thus claimed special and general damages for pain and suffering, loss of amenities and loss of future earnings.

[4] The Defendants in their statement of defence denied the injuries, loss and damage and prayed inter alia that the plaintiff's claim be struck off. At the conclusion of the trial, judgment was awarded in favour of the Plaintiff. The Learned Judge had no difficulty in finding that the Plaintiff was entitled to general damages for non pecuniary loss such as pain and suffering and loss of amenities and enjoyment of his sex life both past and future and to recover damages for pecuniary loss, past and future, that is loss of earnings, medical expenses, cost of nursing care and loss of earning capacity.

[5] The learned judge has rightly based his decision on the authority of Mathews v Kuwait Bechtel Corporation [1959] 2 QB 57 where the court held that the common law has placed an employer under a duty to take all reasonable care for the safety of his servants in the course of their work. As a result, where a plaintiff has suffered injury owing to the defendants alleged breach of such duty he was entitled to elect to claim damages either in tort or for breach of contract. The learned judge pronounced the common law principle that in negligence the wrongdoer is responsible for any type of damage which should have been foreseen by a reasonable man as been something of which there was a real risk, even though the risk would only eventuate in very exceptional circumstances (Halsbury's Laws of England 4th edition Vol 12 para 1139).

[6] In a case involving personal injuries caused by the negligence of another, the injured person is entitled to general damages for non pecuniary loss such as pain and suffering and loss of amenity and enjoyment of life both past and future. He is also entitled to recover damages for pecuniary loss past and future for such items as loss of earnings, medical expenses, cost of nursing care and loss of earning capacity. The learned judge held that in cases of breach of contract the contract breaker is responsible for resultant damage which he ought to have foreseen or contemplated when the contract was made as being not unlikely or liable to result from his breach (Halsbury's para 1174).

[7] The learned judge held that the defendant had failed in his duty to provide the necessary equipment such as an adequate number of safety belts for use by the employees lifting and carrying heavy goods which was the obligation of the employer. The learned judge found the employer had failed in his duty of reasonable care by supervision and enforcement of the correct use of such equipment. The Learned Judge was very critical of the facilities available to the workers such as the plaintiff.

"The duty of the 2nd defendant also extended to the provisions of a safety system of work. The movement of heavy consumer goods from the ground floor to the first floor for display purposes was a task that required a safe system of work. The system in use at the time was for one worker to carry a washing machine on his shoulders upstairs and bending down as he passed under a concrete beam during the process was found not a safe system of work".

The Learned Judge had observed that this system of practice was adopted for many years in this work place.

[8] The learned judge found that the defendant ought to have known that this kind of working conditions would give rise to a risk of serious back injury. The Learned Judge held that the defendant had a duty to give adequate instructions to the Plaintiff on the proper and safe method of doing the tasks assigned and the consequences of not following those prescribed methods. The defendant had failed in such duty. The Learned Judge found that the Plaintiff's injury was caused by the second Defendant's breach of duty to provide and maintain a safe system of work, to provide effective supervision not to expose the plaintiff to the risk of injury and to take all reasonable measures to ensure that the work place was safe. The Learned Judge further found that the Defendant by refusing the request of the Plaintiff to offer light duties exposed the Plaintiff to the risk of injury.

The appeal
[9] At the hearing of the appeal the learned counsel for the appellants admitted the liability of the Defendants in that a duty was owed to the Plaintiff with regard to his safety and the working conditions. The learned counsel did not challenge the medical evidence and the injuries suffered by the Plaintiff. The learned counsel challenged only the amount of $85,000 awarded as part of general damages. The rest of the award made as general damages was not disputed. The award made under special damages too was not disputed.

[10] The learned counsel for the appellants submitted that the award of $85,000 is too high. The learned counsel submitted that in the case of Eta Naqeletia v Ram Kumar (2012 FJHC 29: HBC 19.2010 (20 January 2012) only an amount of $70,000 was awarded against permanent disability said to be 19%. In the present case the disability was 18%. Thus the learned counsel submitted that the award be reduced to $ 70,000.

[11] Now that the area of dispute has been narrowed down, there is no necessity to mention all the other grounds the appellants originally relied on. In Eta Naqeletia (supra) the award of $70,000 was made, after considering the awards in other cases of a similar nature. In the present case too, the Learned Judge had arrived at this figure having considered the awards made in recent times. The assessment of damages under this head depends upon the consequences to the individual plaintiff (Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 548 cited in Law of Torts by Balkin & Davis 5th ed. at 11.28). In Hail v Rankin [2000] EWCA 53; [2001] QB 272 the English Court of Appeal had acknowledged monetary inflation to be considered while making the awards. However the amounts decided on in previous cases can be considered no more than as a guide, and any particular determination must depend on such factors as the intensity of the pain felt by the plaintiff and its likely duration (Balkin & Davis (supra) at 11.28).

The pain and suffering
[12] The Learned Judge found that even at the time of hearing this trial in the year 2012, the Plaintiff could not walk without crutches. With crutches he can walk about a half a mile and after that he feels pain and must rest. Prior to the injury he was able to walk 20 to 30 miles. He used to also ride a bicycle every afternoon. He has also played soccer. The injury has affected his sex life. He is on medication to relieve pain. He takes medication every four hours. Yet he is never completely free of pain. Based on the evidence of the doctor the learned Judge had said that the plaintiff's condition will not get better. It will get worse. There is a 50% chance that by the time the plaintiff reaches 60 years he will not be able to walk. Referring to the surgery it was determined that the risk of nerve injury is too high. If the operation is not successful, paralysis is inevitable. The chance of success is 50%.

[13] The learned judge had said that the plaintiff continues to experience pain together with his dependence on crutches and pain relieving medication. The plaintiff is clearly no longer able to perform any outdoor activities that he was able to undertake prior to September 2005. It is only after considering all the facts materiel that the learned judge had arrived at the figure of $85,000 in the form of past and future pain and suffering and the loss of amenity/enjoyment of life as reasonable compensation.

[14] It appears that the learned High Court judge has made a thorough analysis of the evidence in arriving at this figure of $85,000. A judge cannot be so mathematical and mechanical in the calculations of cases of this nature. However I do not find much disparity between the figures $70,000 and $85,000 while computing the damages under pain and suffering and loss of amenities which is intended to give recompense for the mental suffering and feelings of frustration that result from the victims inability to take part in activities (Teybuner v Humblke [1963] HCA 11; (1963) 108 CLR 491 at 507-8 per Windeyer J cited in Law of Torts by Balkin & Davis (supra).
[15] Hence I am of the view that the award of $85,000 is reasonable. Hence this appeal is without merit and should be dismissed with costs fixed at $3000.

Anthony Fernando JA
[16] I agree with the findings and conclusion of Basnayake JA.

Wati JA

[17] I too agree with the reasoning and conclusion of Basnayake JA.

The Orders of the Court are:

1. Appeal dismissed.
2. Costs in the sum of $3000 awarded against the appellants.
   

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice A. Fernando
JUSTICE OF APPEAL

Hon. Justice A. Wati
JUSTICE OF APPEAL