Flour Mills of Fiji Ltd v Labour Officer [1992] FJHC 12; Hba0010j.91s (13 February 1992)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CIVIL APPEAL NO. 10 OF 1991

Between:

FLOUR MILLS OF FIJI LTD.
Appellant

- and -

THE LABOUR OFFICER
for and on behalf of
MOHAMMED SHER ALI s/o Asgar Ali
Respondent

Mr. W. Morgan for the Appellant
Mr. J. Prakash for the Respondent

JUDGMENT

This is an appeal from the judgment of the Magistrate Court, Suva, in which it was held that the appellant company was liable to compensate a workman, Mohammed Sher Ali, under the provisions of the Workman's Compensation Act (hereafter referred to as 'the Act') for a knee injury sustained by him in the course of his employment with the appellant. Judgment in the sum of $8,289.45 was given against the appellant company in favour of the workman.

In the trial before the Magistrate Court 3 issues were raised for the determination of the learned trial magistrate:

(1) Whether Section 13 of the Act barred the application;

(2) Whether the injury arose in the course of the workman's employment with the appellant company; and

(3) Whether the workman was entitled to compensation and for how much?

These questions the learned trial magistrate answered as follows:

"... the answer to the 1st inquiry is that the applicant is not barred from bringing this action.

The answer to the second issue is in the evidence of the applicant. He said the accidents occurred while he was working. Accordingly I hold that the injury arose during working time ...

Coming now to the question of damages I have read the medical report and studied the evidence before me. I find disability, and incapacity to be 25% - as this appears to be a reasonable estimate of the senior doctor.

That being the case I find that bearing in mind the applicant's earning capacity and other factors I award him judgment against the defendant in the sum of $8,289.45 plus costs to be taxed if not agreed."

Nowhere in the learned trial magistrate's judgment has he referred specifically to any of the provisions of the Act (other than perhaps Section 13) - certainly no mention has been made of the provisions of Section 8 or of the definition of "partial incapacity".

Against that decision the appellant company now appeals on the following grounds:

"(1) That the learned trial magistrate erred in law and in fact in holding that the applicants failure to comply with Section 13 of the Workman's Compensation Act did not constitute a bar to the bringing or commencement of the proceedings;

(2) That the trial magistrate erred in law and in fact in failing to properly consider the requirement of Section 8 (1) (b) of the Workman's Compensation Act in holding that the Applicant's disability and incapacity was 25%; and

(3) That the learned trial magistrate erred in law and in fact in holding that the Applicant had suffered 25% incapacity or disability when there was insufficient, unreliable and/or no independent and/or reliable corroborative evidence to support such a finding."

In considering the appellant's first ground of appeal it is convenient to set out the provisions of Section 13 of the Act which reads (so far as relevant):

"13. Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury ...:

Provided that -

(b) the failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings if it is proved that -

(i) the failure was occasioned by mistake or other good cause; or

(ii) the employer failed to comply with the provisions of subsection (1) or (2) of section 14,

so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years from the date of accident (amended by 27 of 1975, s.9)."

In Shiri Ram Sharma v. Secretary of Labour 21 FLR 190 Marsack J.A. said in delivering the judgment of the Fiji Court of Appeal (in which Gould V.P. and Spring J.A. agreed) at pp. 192 and 193:

"The object the Legislature had in view in passing the Workman's Compensation Ordinance must have been in great measure the protection of the worker, and, in the appropriate circumstances, an assurance that he would receive the compensation properly payable in the case of accidental injuries. The rights and the interests of the employer are certainly not to be overlooked under the Ordinance; and I must not be held as saying that the interests of the workman are always, under the Ordinance, to be preferred to those of the employer.

In any event, it appears clear ... that the Court should interpret a statute of this character broadly and with due regard to 'the substantive intention and meaning of the Statute'."

With that in mind I set out below the evidence before the learned trial magistrate in so far as it relates to the first ground of appeal and which is largely undisputed.

The respondent it appears injured his knee in 2 'accidents' that occurred during the course of his employment with the appellant on the 13th and 15th of November 1984. He was treated for his injury by a Dr. Dobui and given 5 days sick leave. On the 22nd of November 1984 the appellant gave the requisite notice of the accident to the Labour Department and 3 years later on the 9th of December 1987 an application for compensation under the Act was lodged in the Magistrate Court Suva by the Labour Officer acting for and on behalf of the respondent. The appellant filed an answer to the respondent's notice opposing the application on 3 grounds which included a failure by the applicant to comply with the provisions of Section 13 of the Act.

From the foregoing it is clear that the respondent's 'claim for compensation' in respect of the accident in which he was injured was not "... made within twelve months from the occurrence of the accident". Prima facie therefore the respondent's claim was not maintainable unless it could be saved under one or other of the excuses enumerated in proviso (b) to Section 13.

In this latter regard the learned trial magistrate without saying in so many words wholly attributed the failure to make the claim in time to the doctor "who was late in filling the compensation forms". Such failure on the doctor's part presumably amounted to 'good cause' in the learned trial magistrate's view and therefore did not bar the applicant from bringing his claim.

In similar vein in Kitchen v. C. Koch & Co. Ltd. [1931] AC 753 the House of Lords:

"held: on the facts, that the failure to make the claim within the prescribed period was due to the delay of the certifying surgeon and so far as the workman was concerned, was occasioned by reasonable cause, within proviso (b) to subsection 1 of Section 14 and that the workman was entitled to compensation."

Learned counsel for the appellant however whilst not disputing that the doctor in this case had been responsible for some delay, submits that the evidence before the learned trial magistrate indicates that the Labour Department was itself directly responsible for the 17 months delay which occurred from the 22nd of November 1984 (when notification of the accident was first given to the Department by the appellant) and the 9th of April 1986 when the necessary form was "first" sent by the Department to the doctor to be completed. This delay it was forcefully argued was not excused or explained in any way and as such no "good cause" had been shown by the respondent who bore the onus of proving it.

Needless to say if learned counsel's submissions are correct then the prescribed "limitation period" expired even before the doctor's delay began and whilst the 'doctors delay' might be excused as 'good cause' the same could not be said for the Department's delay which occurred prior to that occasioned by the doctor.

Having carefully considered the evidence in the case I am satisfied that the learned trial magistrate did not err in excusing the delay in this case.

The short answer to learned counsel's submission is that there was no evidence before the learned trial magistrate from which he could have concluded that the Labour Department had been responsible for any delay in the matter.

True the Department wrote to the doctor on the 9th of April 1986 (i.e. 17 months after the accident) but there is no evidence that that was the "first" occasion that it wrote.

Furthermore an examination of the prescribed statutory form LD FORM/C/1, which is required to be submitted by an employer in the event of an accident causing injury to a workman and which was properly submitted by the appellant in this case on the 22nd of November 1984, reveals immediately after the part required to be completed by the employer, the following relevant instructions:

"Notes - (1) In the case of injury to a workman involving incapacity for work for three or more consecutive days it is requested that the employer complete Part I in quadruplicate and then despatch it immediately as under:

Original - To the Permanent Secretary for Labour, Suva Duplicate, Triplicate and Quadruplicate - To the Medical Practitioner attending or examining the injured workman."

In this case the portion completed by the appellant disclosed the identity of the employee, details of his earnings, the nature and circumstances surrounding his injury, the name of the doctor who treated him and more importantly the fact that the employee was "incapacitated for work for" 5 days.

In the circumstances it would not have been unreasonable for Labour Department officials to assume on receipt of the original notification of the accident that the employer (the appellant) would have complied with the above "Notes" and sent 3 copies of the form to the medical practitioner concerned.

It is noteworthy that the Labour Officer's evidence in the Magistrate Court was to the effect that the delay in filing the claim was caused by their inability to obtain the medical report. The claim was lodged about 4 weeks after they had received the medical report dated the 13th of May 1987. He also acknowledged that he wrote a letter to the doctor dated 9.4.86 but whether that was the "first" is unclear.

The letter itself (Ex.3) is not unequivocal. It states that the case was "... still pending awaiting the final medical assessment ..." which could mean that the Department was still awaiting the return of the appropriate copies that it assumed had been earlier sent to the doctor by the employer and the fact that a copy of the form was enclosed with the letter could have merely been a 'safety measure' in the event that the copies sent by the employer had been misplaced.

In this latter regard it is not insignificant that the relevant form which was completed by the doctor and which was tendered in court as Exhibit 1 was the copy enclosed by the Department in its letter of the 9th April 1986 (Ex.3).

Even if Ex.3 was the Department's "first" communication to the doctor (and there is no evidence to support that) that would only amount to a failure by the Department to make an early enquiry which hardly alters the primary reason for the relevant failure to lodge the claim which was occasioned solely by the non-availability of the doctor's report.

Furthermore if the Department had wrongly assumed that the employer had already sent the relevant forms to the doctor then that would in my respectful view be excused as a reasonable 'mistake' for which the respondent could hardly be blamed.

The doctor in his cross-examination acknowledged that he did receive the necessary workmans compensation forms but more importantly, from whom? and when? is not disclosed. He also admitted (without seeking in anyway to lay the blame elsewhere or excuse any part of the delay) that he was late in filling in the medical assessment part of the form. Needless to say he could just as easily have said that he had received the forms late but he did not.

The first ground of appeal is without merit and is accordingly dismissed.

I turn next to grounds (2) and (3) which were argued together at the hearing of the appeal and in the written submissions of learned counsel for the appellant.

In this latter regard 3 paragraphs of counsel's written submissions fairly summarises his oral submissions before the court. These are:

"6. The learned Magistrate in his decision makes no mentioned whatsoever of the provisions of the Act upon which he is relying. He simply finds that there is disability and incapacity without finding whether the disability is partial or total or permanent or temporary in terms of the Act. He does not state his basis for making the ward of $8,289.45 indeed no evidence at all was presented at the hearing relating to the Applicants income;

13. It is submitted that the first issue for the learned Magistrate to determine on the evidence adduced was whether the permanent injury to the Applicants right knee reduced his earning capacity in any employment which he was at the time of the accident capable of undertaking. If he found on this issue in favour of the Applicant then he should have gone on to consider if he could on the evidence presented determine the level of compensation payable under Section 8(1)(b) of the Act; and

15. The evidence of the Doctor makes no reference to loss of earning capacity. In fact in cross examination he clarified that by 25% permanent incapacity he meant 25% use of one limb i.e. the leg (see page 26 of record). This makes it clear that the Doctor was only considering physical incapacity and does not relate such physical incapacity to loss of earning capacity as is required by Section 3."

As to the first complaint, it has been earlier noted that the learned trial magistrate nowhere in his judgment refers to any of the relevant provisions of the Workers Compensation Act but that omission does not necessarily mean that he had not properly applied his mind to the relevant provision under which compensation could be awarded in his case which, it is common ground, was Section 8(1)(b) of the Act.

Moreso as the application before the learned trial magistrate clearly sought the following order:

"That the Respondent named herein be ordered to pay the sum of $8,289.45 to Mohammed Sher Ali as compensation in respect of the permanent partial incapacity sustained by him in accordance with Section 8(1)(b) of the Workman's Compensation Act Cap. 94."

Furthermore the particulars of incapacity given in the application form was:

"Permanent partial incapacity - 25%."

Using the information as to the respondent's earnings supplied by the appellant company in its notice to the Department one does not have to be a mathematical genius to compute that the sum claimed and subsequently awarded by the learned trial magistrate is 25% of the respondent's total earnings over 260 weeks which coincidentally is the 'compensation formula' provided by Section 8(1)(b) of the Act which reads (so far as relevant):

"8.- (1) Where permanent partial incapacity results from the injury the compensation shall be -

(a) in the case of an injury not specified in the Schedule, such percentage of two hundred and sixty weeks' earnings as is proportionate to the loss of earning capacity permanently caused by the injury ..."

It is convenient at this stage to set out the relevant definition of "partial incapacity" which provides:

"... where the incapacity is of a permanent nature, such incapacity as reduces his earning capacity in any employment which he was capable of undertaking at that time."

In Labour Officer v. Hornibrooks Overseas Pty. Ltd. Civil Appeal No. 66 of 1985 (unbound decisions), O'Reagan J.A. in delivering the judgment of the Fiji Court of Appeal said of the ambit and purpose of Section 8(1)(b) of the Workman's Compensation Act at p.5:

"An award pursuant to the subsection can properly be made without evidence that the earning capacity of the applicant has been reduced ... The subsection is designed to provide workmen who by reason of injury not specified in the schedule, who otherwise meet the prescriptions of the Act, with compensation for 'the loss of earning capacity permanently caused by the injury'. Compensation not just for such loss at the date of the accident or at the date of the hearing but for loss that will probably be suffered over the whole of their working life. And that loss is to be compensated by a single lump sum payment."

and later at p.6 the following relevant passages occur:

"In cases ... where there is no evidence of reduced earnings at the date of hearing, the Court has to do its conscientious best to assess compensation for the effect the injury will have in narrowing the opportunities for employment in the future ..."

and

"In assessing compensation for the loss of opportunities for employment in the future, the Courts have long since accepted medical evidence - as to the extent of such loss ... for instance, in this country, Hazelman v. Fiji Industry Ltd. 18 FLR 156."

In this latter case Spring J.A. at p.164 deprecated the Supreme Court's decision (on appeal) where it sought to lay down various evidential matters that it said must be considered before a determination of permanent partial incapacity could be made. In doing so Spring J.A. alluded to the potential 'onus of proof' problems of such matters.

It is noteworthy that in Hazelman's case (as in the present) the only evidence relating to the workman's incapacity came from the workman himself and the opinions of 2 doctors, one of whom was preferred by the trial magistrate and 'adopted' by him as the basis (later affirmed by the Court of Appeal) on which the workman's degree of permanent incapacity was assessed.

Such medical opinion evidence was clearly sanctioned by the Court of Appeal in the Hornibrook case where it said at p.7:

"Firstly, the medical opinion in this case - and in this type of case generally - is sought as to the probable 'loss of earning power permanently' ... Secondly, on principle and by dint of inveterate practice such evidence is admissible."

In the present case the learned trial magistrate dealt with the question in the following manner:

"Coming now to the question of damages I have read the medical report and studied the evidence before me. I find disability, and incapacity to be 25% - as this appears to be a reasonable estimate of the senior doctor."

The medical report in question (Part II of Exhibit 1) contains the following observations and opinion of the doctor:

"Sustained sprain of the right knee joint with swelling and tenderness over the injured site."

"Permanent incapacity ... 25 percent."

This was elaborated upon in the doctor's evidence-in-chief when he said:

"Injury examined in 1984 swollen knee, very tender, couldn't move at all - I thought he must have damaged something inside knee. Injury is of a permanent nature.

It will affect him all his life ... He can't flex his leg - stiff knee. I estimate his permanent incapacity at 25% but this will increase with time because knee is getting stiffer and stiffer. 25% is the minimal incapacity."

Later in cross-examination he said:

"I mean 25% use of one limb i.e. the leg."

The respondent who worked as a Fitter and Turner in the appellant company for 11 years described his 'incapacity' as follows:

"I slid and fell while working. After 2nd accident I couldn't stand - my knee hurt a lot. I was looked after by Dr. Dobui. The injury still troubles me. I can't move properly it pains. I have difficulty bending to pick things. My prospects of promotion are nil because of my injury."

In cross-examination however he accepted that his working conditions in the Maintenance Department of the appellant company had not gotten any worse since his injury. He was previously employed as a motor mechanic with the P.W.D.

The appellant company's auditor was also called and he testified that the respondent's position, work and wages with the company had not altered since his disability. He confirmed however that "... another person was appointed supervisor in late 1987".

In the circumstances learned counsel for the appellant forcefully argues that the evidence in the case merely established the diminution in the function of the respondent's injured leg (i.e. his physical incapacity) and not his "earning capacity" which is the relevant statutory test laid down in Section 8(1)(b) of the Act.

However the mere fact that a workman's wages have not detrimentally altered after an accident in which he has been injured is but one inconclusive factor of a workman's earning capacity in any employment which he was capable of undertaking at that time.

Henry J.A. in delivering the judgment of the Court in F.E.A. v. Labour Officer (on behalf of Ramesh Prasad) Civil Appeal No. 25 of 1983 said at page 7:

"It is true that he earns as much in his present employment notwithstanding his disability but even then, ... his capacity to undertake some types of work, including some involved in his present employment, has been materially diminished. To this extent the fact that his earnings in his present employment have not diminished, is not relevant. The difference is between actual earning in his employment at the time of the accident and capacity to earn after the accident in any employment which he was then capable of undertaking. It is the latter which is the test."

and later at p.8:

"A workman is not to be forced to cease employment, offered or continued, at the same rate, and to place himself on the open market, or, remain in his employment while seeking other and better jobs. It is sufficient if he has proved to the satisfaction of the Supreme Court (on his appeal) that his eligibility, as an employee, in any employment within his capacity, has been diminished."

It is sufficiently clear from the evidence in this case that the respondent's injury is of a permanent debilitative nature which adversely affects him in his present employment and is likely to deteriorate in future. Indeed it appears to have already affected his promotion prospects within the appellant company and unlike Hazelman's case the learned trial magistrate only had the uncontraverted opinion of one doctor.

In my view the learned trial magistrate was quite entitled to rely on the doctor's opinion in the case in finding that the respondent had suffered a permanent disability which reduced his earning capacity and in assessing that incapacity at 25%.

The appeal is accordingly dismissed and it is hereby further ordered that the amount paid into the Magistrate Court be paid out to the respondent at the expiration of 6 weeks from the date hereof.

(D.V. Fatiaki)
JUDGE

At Suva,
13th February, 1992.

HBA0010J.91S