IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

Workmen's Compensation Case No 70 of 2011

BETWEEN:

THE LABOUR OFFICER for and on behalf of Joseph Waqanui
Applicant

AND:

TELECOM FIJI LIMITED
Respondent

Counsel: Ms S. Khan, for the Applicant 
Ms S A Cevalawa, for the Respondent 

Date of Hearing: Wednesday 28 March 2012 

Date of Judgment: 2 July 2012 

JUDGMENT

PERSONAL INJURY BY ACCIDENT ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT– Section 5(1) Workmen's Compensation Act (Cap 94); Death of employee. 

Background

1. The Applicant Labour Officer has made a claim for workmen's compensation for Mr Joseph Waqanui (deceased) who died on 21 February 2009 at the Colonial War Memorial Hospital, Suva, while an employee of Telecom Fiji Limited. 

2. The claim is made reliant on Section 5(1) of the Workmen's Compensation Act (Cap 94), in that it is contended that the deceased's death, was a "personal injury by accident arising out of and in the course of (his) employment" as caused to him. 

3. The Respondent employer argues that the death of Mr Waqanui has come about as a result of natural causes and is therefore not a personal injury of the type contemplated by Section 5(1) of the Act. 

The Case of the Applicant 

4. The case of the Applicant was clarified for the Tribunal, by the evidence provided from Labour Inspector Ms Anglene Raj. Her evidence was that some time on or after 24 February 2009, the Respondent employer notified the Labour Office of the death of the deceased, in accordance with Section 14(2) of the Act. 

5. The cause of death, provided for within the Certificate of Death issued by the Registrar General was: 

Gram negative septicemia, klebsiella pneumonia, diabetes mellitus type II, renal impairment.

6. On 20 April 2010, the Labour Office issued to the Respondent, a lump sum claim for compensation on behalf of the deceased worker, in the amount of $24,000.00. 

7. It is as a result of the employer's rejection of that claim in accordance with Section 17(1)(c) of the Act, that the present proceedings come about. 

Did the Worker Suffer a Personal Injury For the Purposes of the Act? 

8. It is noted that the legislation provides no statutory definition of the term, "personal injury". And herein lies the importance of the structure and language of Part II of the Act. 

9. Part II commences with the heading note, "Employer's liability for compensation for death or incapacity resulting from accident". The Part then commences with the notion of personal injury by accident, where it arises out of and in the course of employment. 

10. The language of Section 6 of the Act, then proceeds to deal with compensation where "death results from the injury". 

11. The basic premise in the case of death, is that it is the consequence of the personal injury; the personal injury arising out of and in the course of employment. 

12. But more fundamentally, that the personal injury "is caused to a workman".

13. The starting point for the analysis is therefore, was a personal injury resulting in the death of the deceased, caused to him and arising out of and in the course of his employment? 

The Cause of Death 

14. The cause of death of Mr Waqanui was as previously stated: 

Gram negative septicemia, klebsiella pneumonia, diabetes mellitus type II, renal impairment

15. Dr Mai-Ling Perman, a Consultant Physician specialising in Internal Medicine, was called by the Labour Officer, to give evidence in relation to the cause of death and the medical reports that had been held by the treating hospital. 

16. Dr Perman was of the view that the pneumonia and septicemia were not related to Mr Waqanui's employment. She gave evidence to support the earlier report she had provided to the Ministry (see Exhibit A2) in which she had stated that "the deceased's nature of work (did not) in any way contribute(d) or accelerate(d) his demise". 

17. Dr Perman's sole reservation as set out within the Exhibit A2, was written as follows: 

It is possible but indirectly (that the deceased's work contributed or accelerated the disease if any which subsequently led to his death). It was noted in his medical records that he was unwell for 3 weeks before admission to CWM hospital, If his work had prevented him from seeking appropriate medical care while he was unwell then this could have contributed to the acceleration of this overwhelming infection and his demise. 

18. The Doctor's report concluded, that the death was a natural one. 

Evidence of Ms Yasata Dracirilala

19. In relation to the events that coincided with the deceased's demise, the evidence of Ms Dracirilala was relevant. 

20. Ms Dracirilala had been married to the deceased for approximately six years. 

21. Her evidence was that the Mr Waqanui came home from work one Friday afternoon, complaining that he was unwell. The following day he was taken to a private doctor in Nausori, where he was given some medication. According to the witness, her husband returned to the doctor some three days later, when he was unable to urinate. 

22. The witness gave further evidence that two days later her husband went to the Nausori hospital, where he was fitted with a larger catheter. He returned home for a fortnight and his condition appeared to worsen. He was admitted to the Suva Private Hospital for one night and then subsequently transferred to the Colonial War Memorial Hospital, where he remained until his death. 

Evidence of Manager and Co-workers

23. There is nothing remarkable in the evidence given by the deceased's co-workers and Manager. 

24. It is noted that in a Statement provided to the Labour Office by Mr Gregory Nabong, that he initially opined, that 

I believed that (the deceased's) work is the main contributing factor to his demise as the amount of work he was doing was enormous 

25. It is also a fact that the witness, recanted from that view at the outset of his evidence in chief. 

26. I draw no conclusions from such action. 

27. Mr Nabong was a subordinate to the deceased and unsurprisingly provided a very complimentary account of Mr Waqanui's dedication and commitment to his job. He was unable through his evidence to provide any real insight into the deceased's medical history, though he did acknowledge that he sometimes was sick. 

28. Ms Taravisa Tuitoga, was the Team Leader Human Resources, for Telecom Fiji. Her evidence focused on the employment contract and the relevant entitlements made available to the deceased. She was unable to provide any insight as to the deceased workers' fitness for work. 

29. A further witness for the Respondent, was Mr Timoci Motokula, Manager Operations, who had been engaged with the employer for 30 years. 

30. Mr Motokula had worked with the deceased since 1982 and gave evidence to the effect that he had no knowledge of the seriousness of Mr Waqanui's condition, prior to visiting him at home after he had been absent from work for six days. 

31. Mr Motokula was questioned by the tribunal in relation to Exhibit R6, the Summary of Leave taken by Mr Waqanui between January 2006 and February 2009. 

32. It is the case, that the deceased took 41 sick days in a 3 year period. That is, on average 13.6 sick days per year. 

33. This is an extremely high quantity of sick leave to be taken each year. While it is appreciated that some employment contracts may generously provide for such levels, it should still be cause for concern for employers, where levels such as these are sustained year in, year out. 

34. Coupled with that fact, was the further evidence of Mr Motokula and Mr Vula Dakuitoga, a Team Leader at Telecom Fiji, that spoke of various packets of medicine being left in Mr Waqanui's company vehicle. In Mr Motokula's case, he recalls various packets of pills in the company vehicle, when he came to collect it from Mr Waqanui's home during his confinement. In the case of Mr Dakuitoga, he spoke of antibiotics in the console of the vehicle when he borrowed the car for use, "one or two times" in 2009. 

35. Despite the potential health and safety consequences that may flow where prescription medicine is left unattended in a company vehicle that is accessed by others, it should have also provided some message to the company that Mr Waqanui may not have been entirely well at work. While there is no evidence that Mr Waqanui was unable to perform the inherent requirements of his role as a consequence of his 'fitness for work', it may have been the case that had a more proactive worker health program been in place, that some earlier detection and intervention of Mr Waqanui's condition been undertaken. In other circumstances, the non-intervention may possibly have had different consequences.

Was the Deceased's Death Caused by Accident Arising Out of And In the Course of Employment? 

36. It appears well accepted that there are three requirements to satisfy Section 5(1) of the Workmen's Compensation Act (Cap 94).

37. These are:- 

(i) Personal injury by accident; 
(ii) Arising out of employment; 
(iii) In the course of employment. 

Personal Injury by Accident

38. In relation to the first limb, the worker had initially presented unwell due to renal impairment and developed complications thereafter, including ultimately scepticemia and klebsiella pneumonia. 

39. Dr Perman's report, determines that the deceased's death was a natural one. That is not the same as whether or not he had suffered a personal injury (which I assume includes illness) by accident. 

40. I am satisfied based on the evidence, that the deceased did suffer a personal injury by accident.

Arising Out of Employment

41. The Applicant has provided a range of authorities that set out the historical way in which this second limb is addressed.
42. Pathik J in Travellodge Fiji Limited Suva v The Labour Officer for Karalaini Diratu, also sets out the case law as it affects the various limbs under examination. In relation to the second limb, His Honour relied on Lord Sumner's characterisation in L & YR v Highley to apply the following test: 

".... Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury. 

43. It is here where I find the Applicant's case must fail. There is simply no link between the employment and the personal injury. There is no evidence that in any way that the employment contributed or exacerbated the illness. Nor is there any evidence that the employer prevented the worker from accessing medical intervention.

In the Course of Employment

44. For the sake of completeness, I will deal with the third limb of Section 5(1) of the Act. Again in the Travellodge case, Pathik J stated: 

The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are: 

(a) the accident must have occurred during the employment of the workman and 
(b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do"

45. The argument of the Applicant is that the worker became ill and his health deteriorated while at work. Insofar as his Honour's two criterion are concerned, I accept that the injury occurred in the course of the worker's employment and while engaged in undertaking activities that Telecom Fiji could and did expressly or by implication employ him to do. 

46. Despite that fact, as the second limb has not been satisfied, I cannot find that the personal injury (in this case the illness) arose out of the worker's employment. 

47. The Application must fail on that basis. 

Decision

The Tribunal orders that the Application be dismissed. 

Mr Andrew J See
Resident Magistrate