Fiji Sugar Corporation Ltd v Labour Officer [1995] FJHC 38; Hba0005j.93b (17 February 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO.0005 OF 1993

Between:

FIJI SUGAR CORPORATION LIMITED LABASA
Appellant

- and -

THE LABOUR OFFICER for MOM WATI (wife),
Malini Sandhya (daughter) and Avishkaar
Deep (son) of deceased Mohan Lal.
Respondent

Mr. V.P.Ram for Appellant
Mr. J.Udit for Respondent

JUDGMENT

The Appellant/Original Respondent appeals against the judgment of the learned Magistrate, Labasa delivered on 26 May 1993 in which he awarded compensation in favour of the Applicant the widow of MOHAN LAL the deceased workman, under the Workmen's Compensation Act Cap 94 (hereafter referred to as the "Act").

In the Court below the Labour Officer (the original applicant) for and on behalf of MOM WATI the wife of the deceased MOHAN LAL (the "deceased") applied for compensation under Section 5 of the Act against the deceased's employer the FIJI SUGAR CORPORATION LIMITED (the original Respondent) for personal injury by accident arising out of and in the course of his employment with Appellant.

The Grounds of Appeals as filed are as follows: -

1. That the learned Magistrate erred in fact and in law in holding that Mohan Lal died as a result of personal injury by accident arising out of and in the course of his employment with the Respondent in terms of Section 5 (1) of the Workmen's Compensation Act, Cap. 94.

2. That the learned Magistrate failed to have any proper regard to the evidence concerning the pre-existing heart condition of the deceased and the deceased's employment with the Appellant / Respondent would not have caused contributed or accelerated the deceased's death.

3. That the learned Magistrate failed to have proper regard to the evidence adduced with respect to the deceased's employment with the Appellant / Respondent and that the said employment and/or work the deceased was engaged in could not have caused, contributed or accelerated the deceased's death.

4. That the learned Magistrate erred in fact and in law in holding that the Respondent / Original Applicant had established the element required under Section 5 (1) of the Workmen's Compensation Act, Cap. 94.

5. That the learned Magistrate erred in finding that the death of the deceased was work related.

6. That the decision of the learned Magistrate was against the weight of the evidence and/or is unsupported by the weight of evidence.

7. That the learned Magistrate misapplied the requirements of the onus of proof applicable in Workmen's Compensation cases in civil actions.

I shall consider the grounds of appeal in one single ground and therein deal with the following points raised in them in the manner hereafter appearing:

(a) that the three essential elements as required by s5(1) of the Act have not been satisfied.

(b) the effect of a pre-existing heart condition and its effect on the deceased has not been taken into account.

(c) that the death was unrelated to his employment.

(d) whether the death resulted as a result of deceased's "pre-existing heart condition" or the employment had been a contributing factor had not been considered.

THE FACTS

Briefly, the facts surrounding the case and some of the observations of the learned Magistrate are as follows as stated by him in his Judgment (page 11 et. seq. of record):

"Mohan Lal c/o Munessar had been employed by the respondent Fiji Sugar Corporation as a Farm Advisor under a Contract of service. After a day's work on the 5th of October 1990 he had returned home, felt ill the next day, and was rushed to hospital when he died on the 5th of October 1990 .......................

The death certificate in respect of Mohan Lal states the cause of death as left ventricular failure. The report made by Dr. Krishnan the Medical Superintendent of Labasa Hospital states that the deceased had died of an acute attack of myocardial infarction. Despite the difference in medical terminology describing the cause of death it can be taken as the result of heart failure for all intents and prupose as far as this case is concerned ..........................

The deceased had been a farm advisor employed by the respondent. In 1983 he had an operation for kidney stones. In November 1983 he had an attack of myocardial infarction; he was suffering from diabetes too at the time. Since then he had been in regular mediatum from the hospital. In 1988, 1989 and 1990 he had had impatient treatment in Labasa Hospital for ischaemic heart disease. He had developed signs and symptoms of cardial failure in 1990.

Two months before his death he used to complain of tiredness. Two weeks before his death he had been on two week's sick leave and had been having pains in the chest.

He left for work at 6.30 a.m. in his own vehicle. At the work place he had a company vehicle. He had given up both smoking and liquor six years before his death. He used to take grog occasionally with visitors.

He owned a farm of 30 acres of which only a part had been under cultivation. It provided about 300 tons bringing $2000 - $3000 a year. It was worked by labourers under the deceased supervision ......................

Nasir Ali's evidence gives a fair idea about the work the deceased performed as a farm advisor. Nasir Ali too is a farm advisor who had worked with the deceased Mohan Lal.

A farm advisor's job is a field job required 6 hours of work in the field advising the growers. Farm advisors travel about 50 k.m. a day on main roads and feeder roads. They drive the vehicles themselves. They have certain targets to meet and have to submit reports monthly to the head office. If targets are not achieved they have to answer. They work all year round with more work during the crushing season.

Deceased used to travel from house to the work place with Nasir Ali using their vehicles alternatively ........................"

MAGISTRATE'S FINDING

After analysing the evidence of the witnesses, he further stated in his judgment (page 17 et. seq. of record):-

"The evidence shows that the work the deceased was performing as a farm advisor entailed going round visiting farmers advising three or four farmers a day, travelling about 50 k.m. a day on various types of roads. There were targets set by this F.S.C. to be achieved. There is no doubt that it is a job carrying with it a great responsibility and stress for a person who had already suffered a heart attack and who was on continuous medication visiting the clinic regularly.

Although driving in Seaqaqa can not be compared to driving in Shanghai, driving daily 50 k.m. on country roads is not an easy task. Adduced to this is the need to achieve the targets set by the employer. There is no doubt that all this had caused stress to the deceased who was already suffering from heart disease.

Dr. Jui Shaomin was of the view that the work the deceased was performing contributed to the progress of his disease and accelerated his death. The result of Dr. Krishnan too is to the same effect ........................

In my view the lapse of a few hours or a night between the time Mohan Lal left his work and his subsequent death does not snap the nexus between his work and death and consequently I hold that his death had arisen in the course of his employment ........................"

Both counsel made comprehensive written submissions which I found very useful. I have given careful consideration to their arguments and will traverse the grounds in the manner hereafter appearing.

In considering this appeal, I have borne in mind the established principles on the function of an appellate court on an appeal from the findings of the lower court. In the well-known and often quoted case of BENMAX v AUSTIN MOTOR CO. LTD (1955) AC 370 it was pointed out by the House of Lords that in appeals such as this it is necessary to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as has sometimes been said, between the perception and evaluation of facts. On this aspect LORD REID at p.376 said:

"in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from the task, though it ought, of course, to give weight to his opinion".

I have also borne in mind the following words of LORD HALSBURY, L. C. in RIEKMANN v THIERRY (1896) 14 RPC 105 at p.116 which was cited in BENMAX (supra) at p.370:

"The hearing upon appeal is a rehearing and I do not think there is any presumption that the judgment in the court below is right".

And later in the same speech he said (ibid):

"Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellant tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the court from which the appeal proceeds, and that it is not within their competence to say that they would have given a different judgment if they had been the judge of first instance, but that because he has pronounced a different judgment they will adhere to his decision".

CLAIM UNDER s.5(1) OF WORKMEN'S COMPENSATION ACT

The Respondent had claimed compensation under s.5(1) of the Act which provides as follows:-

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, as accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connection with his employer's trade or business".

The onus was on the widow (the Respondent) to prove the following three essential elements of her claim:

(i) "that the workman suffered personal injury, i.e. physiological injury or change, by accident;

(ii) that the injury arose out of the employment;

(iii) that the injury occurred in the course of employment". (CARPENTERS (FIJI) LTD v LABOUR OFFICER FOR KATARINA ESITA 36/84 FCA - cyclostyled judgment p.3)

The claimants "have to prove their case; that is to say, they must show with reasonable clearness that the accident actually did come from the employment" (HAWKINS v POWELL'S TILLERY STEAM COAL CO. [1911] UKLawRpKQB 38; (1911) K.B. 988 at p.995 per FLETCHER MOULTON L.J.).

The drawing of inferences from a given set of facts particularly in pre-heart condition cases is difficult. In any case one has to rightly direct oneself on the law and draw inferences from the facts; and " .... so long as there is evidence upon which the arbitrator, as a reasonable man, can come to a finding, it is not competent for the appellate court to substitute their own view of the weight of the evidence and the balance of probabilities for the view of the arbitrator" (DAVIES v ARMSTRONG - WHITWORTH (1933) 26 B.W.C.C. 299) (THE WORKMEN'S COMPENSATION ACTS 32nd Ed.1939 p.119).

CONSIDERATION OF THE ISSUES

Evidence for the Respondent was given by VISHNU DEO (PW1) labour inspector, MOM WATI (PW2) widow of deceased, NASIR ALI (PW3) farm adviser, DR.JIN SHAOMIN (PW4) acting consultant.

For the Appellant evidence was given by DR.RAJESH CHANDRA (DW1), NIKO YADALEVU (DW2) field officer, DAT RAJ (PW3) farm adviser and MOHAMMED SADAR KHAN (PW4) field officer.

Bearing in mind the elements that have to be proved, the determination of the issue therefore depended upon sufficiency of evidence.

I shall now deal with each of the said three essential elements separately.

WAS IT PERSONAL INJURY BY ACCIDENT (FIRST ELEMENT)

The circumstances and the events which led to death has been outlined hereabove suffice it to say that, as the learned Magistrate found, the deceased went to work at 6.30a.m. on 5 October 1990 and died at 6.00a.m. the next day.

It is clear from the authorities that in the circumstances of this case and on the facts it is a case of personal injury by accident. I discuss hereunder what constitutes "personal injury by accident".

I refer to THE WORKMEN'S COMPENSATION ACTS 1925 TO 1938 by WILLIS 32 ED (hereafter referred to as "WILLIS") on the first element, namely "personal injury by accident" where at p.8 "accident" is defined thus:

"The word "accident" does not necessarily involve the idea of something fortuitous and unexpected as formerly held (HENSLEY v WHITE [1899] UKLawRpKQB 227; (1900) 1 Q.B. 481. ............. It includes injury caused by over-exertion in the ordinary course of employment (Fenton v. Thorley[1903] UKLawRpAC 48; , [1903] A.C. 443; 5 W.C.C. 34 Digest 266, 2264). The word "accident", is used in the Act "in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed (per LORD MACNAGHTEN, ibid., at p.448); or as denoting or including "any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence" (per LORD SHAND, ibid., at p.451); or "any unintended and unexpected occurrence which produces hurt or loss" (per LORD LINDLEY, ibid., at p.453).

It is further stated (ibid.):

"Applying the above description of accident to the case where a man suffering from serious aneurism ruptured it by an ordinary exertion (Clover v. Hughes[1910] UKLawRpAC 7; , [1910] A. C. 242; 3 B. W. C. 275; 34 Digest 273, 2316), it was said that the event was unexpected in the sense that a sensible man would not have expected if from the nature of the work being done, and that it was not correct to ask whether a medical man knowing the condition of the workman would have expected it".

What is "personal injury by accident" has also been clearly stated by LORD ATKIN in FIFE COAL CO., LTD v YOUNG (1942) AER H.L 85 at 91 thus:

"... it is necessary to emphasize the distinction between "accident" and "injury", which in some cases tend to be confused. ...... It is now established, however, that, apart from external accident, there may be what no doubt others as well as myself have called internal accident. (underlining mine for emphasis) ..............

A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity".

The above passage includes death or incapacity arising "at once or after a lapse of time". In the case before me it was at 6.00a.m. the day after he knocked off work as usual.

Also on "personal injury by accident" the following extract from the judgment of LORD MACNAGHTEN in CLOVER, CLAYTON & CO. LIMITED v HUGHES [1910] UKLawRpAC 7; (1910) AC 242 at 247-8 is apt:

"There the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that "injury by accident" meant nothing more than "accidental injury" or "accident", as the word is popularly used".

In both CLOVER (supra) and FENTON (PAUPER) V J THORLEY & CO. LIMITED [1903] UKLawRpAC 48; (1903) A.C 443 the House of Lords held that the workman had suffered personal injury by accident. In the former case the workman was suffering from serious aneurism whilst employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. In the latter the workman, employed to turn the wheel of a machine, by an act of over-exertion ruptured himself.

Applying the above principles to the present case there was an accident in the popular sense of the word. The cause of death was "myocardial infarction" according to Dr. Krishnan's medical report at page 185 of Record.

I therefore find that the first element has been satisfied and as found by the learned Magistrate.

SECOND AND THIRD ELEMENTS

I shall now deal with the second and third elements namely (ii) Did the injury arise out of the employment? and (iii) Did it arise in the course of the employment? The determination of these issues involve mainly issues of fact and in part they are questions of law. Since the two questions posed before me overlap each other that to treat them separately would be repetitive so therefore I would deal with (iii) above first showing when course of employment began and ended and then with (ii) dealing mainly with the work the deceased was employed to do.

IN THE COURSE OF EMPLOYMENT (THIRD ELEMENT)

Under this head I will not reiterate the facts which are as outlined hereabove by the learned Magistrate in his judgment. It is in the evidence of PW3, a fellow employee, that the deceased and PW3 start work early and work 6 hours in the field advising on "plant preparation" and do demonstration whenever required. They do travel about 90 km daily. They work all the year round but during crushing season there is more work. As stated already the deceased left for work at 6.30a.m. and returned home as usual after the day's work. But then the next day when he was getting ready to go to work he "sat on divan and collapsed ...... taken to hospital and was pronounced dead" (widow's evidence page 29 of Record).

The question that arises is whether on the facts of this case it can be said that the deceased died in the "course of employment".

The test of what is "in the course of employment" is stated thus in WILLIS supra at p.22.

"A workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do'. Or what is, in other and I think better words, ... when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to borne in mind that the word 'employment', as here used covers and includes things belonging to or arising out of it" (St. Helen's Colliery Co. v. Hewitson, [1924] A. C. 59, 71; 16 B. W. C. C. 230, 238, per Lord ATKINSON; 34 Digest 280, 2364.

"The man is not in the course of his employment unless the facts are such that it is in the course of his employment, and in performance of a duty under his contract of service, that he is found in the place where the accident occurs. If there is only a right and there is no obligation binding on the man in the matter of his employment there is no liability" (ibid., p. 95, per Lord WRENBURY);

"I think an accident befalls a man 'in the course of' his employment, if it occurs while he is doing what a man so employed may reasonably do within a time when he is employed, and at a place where he may reasonably be during that time" (Moore v. Manchester Liners[1910] UKLawRpAC 39; , [1910] A. C. 498; 3 B W. C. C. 527; 34 Digest 309, 2547, per Lord LOREBURN, L. C.)".

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" (HELEN'S COLLIERY supra p.91, 92.).

I find that in this case both the conditions have been met. Although he did not die at work he did his normal work for his employer, but because of the diseased heart condition the stress at work contributed to his death after knocking off work and collapsing at home the next morning. This is the only logical and sensible conclusion and inference we can draw from the evidence in this case. These facts are in actual fact not in dispute. The appellant disagrees with this finding by the learned Magistrate but there is overwhelming evidence about the nature of work the deceased did before his death and that turned out to be too much for him to bear in his 'pre-heart condition' and other sicknesses.

Bearing in mind the test involved (as stated hereabove) in ascertaining what is "in course of employment" I find that the third element has been proved and as also found by the learned Magistrate.

INJURY ARISING OUT OF EMPLOYMENT (SECOND ELEMENT)

Now I shall deal with element (ii) above namely, whether the "injury arose out of employment".

The term has been defined in WILLIS supra at p.44 thus:

"Arising out of the employment 'obviously means arising out of the work which the man is employed to do and which is incident to it - in other words, out of his service" (Davidson v. M'Robb, [1918] A. C. 304, at p.314; 10 B. W. C. C. 673, at p.684; 34 Digest 276, 2339).

The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply".

I have already stated hereabove the nature of the deceased's work. However, it is in the light of the deceased's medical condition that this second element could be better understood and dealt with and I therefore propose to set out the medical evidence in this regard which is as hereunder.

In his memorandum dated 6 June 1991, (at page 185 of Record) Dr. Krishnan, the Medical Superintendent, Labasa Hospital, stated, inter alia, that the deceased's death was "accelerated by the nature of his work". He said:

"Having considered the distance the deceased had to travel daily to his work, his working hours, nature of his work, his long medical history of diabetes and ischaemic heart disease, it is my opinion that the deceased's death was caused by his disease but accelerated by the nature of his work"

(underlining mine for emphasis).

Dr. Jin Shaomin (PW4) said that the deceased had a history of ischaemic heart disease; he was also a diabetic. The PW4 said that "if he suffers from stress and exerts himself too much heart failure could occur". He used to drive 64km everyday to work and "driving is a stressful job. Driving is a cause of stress". This, the doctor said might cause heart failure; the "work he did definitely accelerated his ischaemic heart disease". The doctor said that she agrees with Dr.Krishnan's said report that "death had been accelerated by the stress caused by the work".

Dr. Rajesh Chandra who gave evidence on behalf of the appellant is not a cardiologist like Dr.Shaomin who was a professor of cardiology in China. He says that he is employed on contract with the Fiji Sugar Corporation (the Appellant) and is paid by the F.S.C.

Although he said that he does not "think that his work had any relation to his death that morning", he later said that if the deceased had a heart attack it would have had something to do with his work". I prefer to accept the testimony of Dr.Shaomin to that of Dr.Chandra in regard to the essential matters pertaining to the deceased's medical condition. I also accept in toto Dr.Krishnan's opinion referred to hereabove.

The above in gist is an account of the deceased's health and the doctors' opinions prior to his death.

The test to be applied in order to determine whether an accident arises out of the employment has been stated by LORD SUMNER in L. & Y.R. v HIGHLEY (1917) A.C. 352, 372 thus:

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: 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".

Further, on the factors to be looked at to determine whether the accident arose out of employment, I refer to the case of PARTRIDGE JONES and JOHN PATON LIMITED JAMES (1933 A.C. 501) which states:

"An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it".

The circumstances in which work contributes to the accident have been amply borne out by the said cases of PARTRIDGE and CLOVER, CLAYTON (supra).

The facts in PARTRIDGE (supra) were not too different from the present case. There the deceased a ripper was suffering from disease of the coronary arteries, and his state was such that although he might die at any time without any act of physical exertion, any such exertion was dangerous and likely to lead to heart failure. He stopped work for a short time and sat down. Within ten minutes of stopping work he died. The House of Lords affirmed the award of damages.

In CLOVER, CLAYTON v. HUGHES a workman who was suffering from serious aneurism was employed on tightening a nut by a spanner when he fell down dead. The county court judge found the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal and the House of Lords held that it was a case of personal injury by accident arising out of and in the course of employment.

The principles applicable in situations such as the present have been clearly stated by LORD LOREBURN in CLOVER, CLAYTON (supra) at p.246. It will be seen from the extracts which I quote from the judgment of LORD LOREBURN that the deceased fits into the category of persons in whose case liability can be attached to his employer for his death. The relevant passages at p.246 are as follows:-

"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade".

He goes on to state that:

"Nor do I think we should attach any importance to the fact that this man's health was as described .... An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health".

Further at p.247 he continues:

"In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?" The answer to that question has been found in this case in the clearest terms, and, if any possible comment could be made upon the conclusions of the learned county court judge, my feeling would be that they had not been sufficiently emphatic as to the association of the employment and the disease which resulted in death".

In the same case at p.249 LORD MACNAGHTEN gave judgment to the same effect said:

"The real question, as it seems to me, is this: Did it (the death) arise out of his employment? On this point the evidence before the county court judge was undoubtedly conflicting. But he has held that it did, and I think there was sufficient evidence to support that finding ...... 'The death, 'learned judge says, 'was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal'.

Mr. Udit referred the Court to a number of cases in which the Courts had to consider lapses of hours, weeks and even months from the time of knocking off work and time of death. In some cases it was held that death occurred in the "course of employment". But it should be borne in mind that each case must be considered on its own facts. I refer to the following extract from the judgment in BA INDUSTRIES LIMITED and LABOUR OFFICER, BA (Civil Appeal 37/83 Fiji Court of Appeal) where the deceased died of a heart attack at home although there was "no positive evidence of existing heart disease". The Court stated what had to be proved and on whom the decision lay of proving:

"No burden lay on the respondent to prove that the deceased was suffering from a heart disease prior to his death. Evidence that the manual work he was engaged in would not, as a rule, trigger a heart-attack in a normally healthy man would only provide basis for inference. The burden on the respondent was to show that the heart attack occurred during the course of his employment and that the work he was doing was a contributing factor". (underlining mine for emphasis)

The Respondent I find had discharged the burden that lay upon him; there was overwhelming evidence that the work that the deceased did some twelve hours before his death was a contributing factor. The following passage from the judgment of CLAUSON L.J. in OATES v. EARL FITZWILLIAM COLLIERIES CO (1939) 2 AER 498 at 502 is apt to show that the work he did prior to the physiological injury or change contributed in a material degree to its occurrence:

"In our judgment, a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about the moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence - moreover, this is nonetheless true though there may be no evidence of any strain or similar cause than that arising out of the man's ordinary work". (underlining mine for emphasis)

The cases that were referred to were mainly those of workers dying at work. In the Court of Appeal case of WHITTLE v EBBW VALE STEEL IRON v COAL CO. LTD (1936) 2 AER the workman with heart disease was found dead at work. There was evidence in that case that the employment contributed to the death of the workman. In WHITTLE (supra) the House of Lords case of BARNABAS v BERSHAM COLLIERY CO. (1990) 4 B.W.C. 119, 34 Digest 325, 2656) was distinguished. There a collier died of apoplexy during working hours in a mine. It was held that the evidence as to cause of death was equally consistent with an accident and no accident and the onus of proving that it was due to accident rested on the applicants who had not discharged that onus.

Further in WHITTLE (supra) SLESSER L.J. in discussing the case of FALMOUTH DOCKS v ENGINEERING CO. LTD v TRELOAR (1933) A.C. 48) H.L. and PARTRIDGE (supra) pointed out that in both those cases there was a finding that the worker might have died at any time, but what is more important is that there was evidence that the work he was doing was of a laborious nature and that it accelerated or produced the workman's death. One died ten minutes and the other 25 minutes after he last worked. This is what happened in the present case.

There is also the Fiji case of THE LABOUR OFFICER on behalf LUISA LEGALEVU and THE PORTS AUTHORITY OF FIJI (Civ.App. No.6 of 1983 F.C.A.) where the court in a "pre-heart condition" said that there has to be evidence of injury "occurring in the course of employment". It said:

"There does not seem to be any serious divergence of views as to the principle to be applied in such cases. It is not necessary for the evidence in case of a person with a long history of heart disease to show that a specific injury had resulted from a specific act during the course of employment. But, as was said in Oates v. Earl Fitz William's Collieries Co. (1939 2 All E. R. 498):-

"It was essential that there should be evidence of a physiological injury or change occurring in the course of a man's employment by reason of the work on which he was engaged at or about the time of his death".

The principle was also stated by Goddard J. in Whittle v. Ebbw Vale etc. Co. (1936 2 All E. R. 1221 at 1235) in following words:-

"The principle which I extract from the case of Partridge Jones v James (1933 A. C. 501) seems to me to be this: the House of Lords have decided that where a man in a diseased condition dies and it is found that the disease and the work together contribute to his death, then his death results from accidents within the meaning of that Act".

On lapse of time in WHITTLE (supra) SLESSER L.J. at p.1223 said "But there can be no general principle that a man must die immediately he has received the strain; it is a question of fact of be decided on the evidence and the medical evidence". Here there is abundance of evidence to enable the Respondent to qualify for compensation particularly the uncontroverted evidence of the doctors. In the editorial note to OATES (supra) it is stated:

"The Court of Appeal have reiterated that the proof of extra exertion or strain is not essential for recovery of compensation but there must be evidence of physiological injury or change due to the work upon which the workman was engaged at or about the moment of his death".

Before I conclude on the list of authorities I would like to mention the case of FIJI ELECTRICITY AUTHORITY and LABOUR OFFICER (for and on behalf) of Kesaia Naikolala and Another) Civ. App. No.5 of 1993 of 24.8.94 where SCOTT J. found that although the death occurred after about 4 days the chest pain commenced on 4 April at work and continued until he died at home on 8 April after medical attention and hence it was work related. His Lordship stated that the "difficulty is not the principle but the evidence required to bring the matter within their scope" and with this view I concur.

Therefore in view of what I have stated hereabove the second element, namely, that the injury arose out of employment has been proved. The learned Magistrate had also found to this effect.

To conclude, on the facts and on the authorities the learned Magistrate came to the right decision in this case and I consider that he had approached the matter in a proper manner.

For these reasons the appeal is dismissed with costs here and in the court below (already ordered by the learned Magistrate) which is to be taxed unless agreed. Consequently the learned Magistrate's order for compensation in the sum of $12,000.00 payable by the Appellant to the Respondent stands.

On the question of interest on the said $12,000.00 which the Respondent claims, I consider that he is entitled to it. The Appellant has not said anything in this regard in its written submissions. The payment of interest falls into two categories, namely (i) 'pre judgment interest' which is the period between when the cause of action arose and the date of judgment and (ii) 'post judgment interest' which is from date of judgment until payment.

On (i) above, in line with decided cases, I award interest on the said $12,000.00 at the rate of 13.5% from 19 February 1992 (date of application) to 26 May 1993 (date of judgment) (MAGANLAL BROTHERS LIMITED v L.B.NARAYAN & COMPANY Civ. App. 31/84 FCA, JAI PRAKASH NARAYAN v SAVITA CHANDRA Civ. App. 37/85). On (ii) above, since it was a Magistrate's Court judgment, the post judgment interest is allowed at the rate of five per cent from 26 May 1993 until payment for Or.32 r.8 of Magistrates' Courts Rules Vol.II Cap 14 provides that "where a judgment or order is for a sum of money, interest at five per cent per annum shall be payable thereon, unless the court otherwise orders". The interest computation is to be done by the learned counsel for the Respondent and incorporated in this order at the time of sealing.

D PATHIK
JUDGE

At Suva
17 February 1995.

HBA0005J.93B