Fiji Sugar Corporation Ltd v Labour Officer [1995] FJHC 80; Hbc0003j.1993b (28 April 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 3 of 1993

Between:

FIJI SUGAR CORPORATION LIMITED
Appellant

- and -

THE LABOUR OFFICER for and on
behalf of CHANDRA BHAN s/o Sukhai
Respondent

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

JUDGMENT

The Appellant who was the original Respondent appeals against the decision of the learned Magistrate Moses Fernando Esq. delivered on the 30th day of January 1993 in the Magistrate's Court, Labasa whereby he found for the Respondent/Original Applicant on the issue of liability and on the question of damages and made an award in favour of the Respondent/Original Applicant in the sum of $3065.71 compensation based on an assessment of 12% and costs to be taxed if not agreed.

The grounds of appeal are as follows:-

1. That the learned Magistrate erred in law and in fact in holding that the injury in question was a scheduled injury as described in Section 8 (1)(a) of the Workmen's Compensation Act.
   
2. The learned Magistrate erred in law in failing to distinguish between loss of earning capacity and percentage of permanent partial incapacity determined by the doctor at 12%.
   
3. The learned Magistrate erred in fact and in law in awarding compensation in the form of a lump sum of $3,065.71 without first determining the percentage of loss of earning capacity sustained by the Respondent/Original Applicant.
   
4. The learned Magistrate erred in fact and in law in holding that there was no dispute as to the amount calculated and/or claimed, and erred in law and in fact in awarding compensation.
   
5. The learned Magistrate's finding is unsupported by the weight of evidence.
   

The facts and circumstances leading to the accident to the workman Chandar Bhan s/o Sukhai are as set out below in the learned Magistrate's judgment (pages 11 and 12 of Record) and I will adopt his summary of them:

"Chandra Bhan s/o Sukhai had been employed by the Respondent under a contract of service as a Loco Pointsman. While working at Lagalaga in Wainikoro sector in coupling loaded cane trucks his right leg had got caught between the cane truck buffers causing him permanent partial incapacity.

The respondent is denying liability. According to Chandra Bhan he had joined the FSC 16 years back and in 1988 at the time of the accident was working as a loco pointsman. His duties were to check the tickets, hook the carts and deliver the empty carts. Empty carts are delivered to the farmers to be loaded with cane. In the ticket are mentioned the number of the cart and the grower's number. Just before crushing starts they have an instruction course. They are instructed not to hook ill-laden carts and not to bring carts where the numbers do not agree.

Regarding hooking a signal has to be given to the driver. When the driver reverses a signal is given to him to stop at the suitable point. They stand outside the line about half-a-chain away so that the driver can see them. If the area is boggy they have to mount a loaded cart. Before hooking the hooks have to be examined. On climbing a hill, if the hooks are bad the carts get disconnected. For hooking the carts have to be stationary and the hooks and rings have to be loose. Their heads and hand have to be clear of the buffers. Unhooking has to be done from the bottom. Feet should not be used. They have to work closely with the driver. Despite the instructions to the contrary they sometimes use both hands and feet.

On the day of the accident he was at Lagalaga points. There the tram line is on a slope. There were 75 loaded cane trucks. There were some half-loaded trucks too which had to be put at the back. The engine had some 20 to 30 carts hooked. There were 4 carts not carrying a heavy load. He wanted to connect those carts. When the carts were being reversed he was about half a chain away from the tram line. He signalled the driver to stop. It was a slope. He wanted to hook the carts. In the middle they got disconnected. He was on the tram line. The carts came down and bumped him causing injury. Normal buffer is about 6 inches above the ground but the one that hit him was very low. His leg was caught between the two buffers. He held on to the trucks. For about half a chain his leg was caught between the buffers. After that he had jumped off while the carts were still moving. He found his leg red and black. The driver took him to the engine. After a while a FSC van came and took him to Navualevu health centre. From there he was referred to Labasa hospital after some treatment. Then he was given some tablets and sent home. As he was suffering he came again to hospital the next morning. He was examined by a doctor, an x-ray was taken and a plaster cast was put. It was removed after 6 weeks, and he was again examined by a doctor."

According to the Appellant the facts in dispute are as follows and they need the Court's determination but the Respondent thinks otherwise (to which I shall refer later):

1. The Appellant contends that the Respondent was attempting to hook the 2 trucks by use of his right foot and as a result received the injury to his right ankle whereas the Respondent says he did not use his foot to hook the trucks. (underlining mine)
   
2. The Respondent contends that the injury he received resulted in a 12% permanent incapacity of loss of use of his ankle whereas the Appellant argues that the Respondent's ankle was not permanently incapacitated at all.
   

Both counsel made useful but quite lengthy written submissions and I have given careful consideration to them.

Mr. Sharma in his written submission argues, that under section 5(1)(b) of the Workmen's Compensation Act Cap 94 (hereafter referred to as the "Act") the appellant has proved that the Respondent's injury is attributable to the "serious and wilful misconduct" of the Respondent and therefore any compensation claimed in respect of that injury should be disallowed.

The said s. 5(1)(b) reads:-

"if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of the injury will be disallowed:

Provided that where the injury results in death or serious or permanent incapacity, the Court on consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit."

It is the appellant's submission that all the evidence presented in this case suggests that the Respondent's injury arose due to his "serious and wilful misconduct".

Whether it is "serious and wilful misconduct" is a question of fact or law is discussed in WILLIS WORKMEN'S COMPENSATION 33rd Ed. 1941 by W.P. WILLIS (hereafter referred to as "WILLIS") thus:

"Whether a Question of Fact or Law. - The question whether or not the conduct amounts to "serious and wilful misconduct" is, according to the English Courts, a question of fact; and, in order to dispute in the Court of Appeal the finding of a county court judge on this subject, it is necessary to satisfy the Court that there was no evidence on which the arbitrator could rightly have found as he has found." (underlining mine for emphasis).

After referring to the above-quoted passage from WILLIS the learned counsel agrees that the issue is not so much of law as of sufficiency of evidence. In view of this in considering this appeal I remind myself of what is stated in the headnote to WILSON v LOWERY 1993 110 FLR p. 142 that "it is not the role of the Court to review findings of fact made by the Workers' Compensation Court at first instance. The Court should not review a finding of fact by the Workers' Compensation Court where there was evidence to support that finding of facts".

I am asked to review the findings of facts by the trial Magistrate. The findings in this case are based essentially on the credibility of witnesses. Very rarely would an appellate court be justified in interfering unless the findings of fact could not be supported on the evidence or law or any other proper ground. The principles to be applied by an appellate court in this regard are laid down in the well-known and oft-quoted case of WATT (or THOMAS) v THOMAS (1947) 1 AER 582 at p.587 and BENMAX v AUSTIN MOTOR CO LTD (1955) 1 AER 326 at 329.

At this juncture I would like to refer to one aspect of the appeal. It is a point which has been raised by Mr. Udit for the Respondent in his written submission. He says that:

"NOTE: Before any further submissions on this issue is made, the respondent prays to his Lordship that the submissions on this (pgs 8-15 of the appellant's submission) be struck out. This is because the appellant in it's grounds of appeal has no where attempted to challenge the decision of Magistrate in this respect. That is, the respondent acted in contravention of his instructions and was guilty of serious and wilful misconduct."

I agree with this comment of his. The matter raised by him is not included in the grounds of appeal. I do not think it would be proper to allow Mr. Sharma to make submission on this aspect for my consideration and determination. In any case I refer him again to the appellate Court's reluctance to interfere with the learned Magistrate's findings of fact.

Lest I am held wrong in disallowing Mr. Sharma to argue this subject of "serious and wilful misconduct", I have myself on a careful study of the record in this case found that the learned Magistrate in his well-considered and well analyzed judgment could not have come to any other finding on this aspect than he did.

In dealing with this he no doubt considered s. 5(1) of the Workmen's Compensation Act which reads, inter alia (referred to by Mr. Udit):

".... an accident resulting in the death of 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 on behalf of his employer, or that he was acting without instruction from his employer, if the act was done by the workman for the purposes of and in connexion with his employer's trade or business":... (emphasis added)

The learned Magistrate found as follows (page 19 of Record):

"What Chandra Bhan had done in my view falls far short of misconduct let alone it being serious. It is common ground that he was a capable experienced and excellent employee with a commendable record in recognition of which he had been given promotion. It is difficult to think that he would wilfully expose himself to personal danger.

In the circumstances I hold that Chandra Bhan was not guilty of any wilful and serious misconduct."

In these circumstances I do not wish to consider any further Mr. Sharma's submission on pages 8 to 15 of his written submission on the subject of "serious and wilful misconduct".

I shall now consider the grounds of appeal as one ground.

Putting the grounds together the issue for my consideration boils down to this, whether the learned Magistrate was correct in regarding the injury in this case as a scheduled injury for which compensation is payable under section 8(1)(a) of the Act or whether it should have been a non-scheduled injury for which compensation if any is payable under section 8(1)(b) of the Act if the injury has resulted in loss of earning capacity.

The relevant provisions of section 8 are as follows:

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

(a) in the case of an injury specified in the Schedule, such percentage of two hundred and sixty weeks' earnings as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

(b) 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:

Provided that in no case shall the amount of compensation in respect of permanent partial incapacity be greater than twelve thousand dollars nor less than such percentage of one thousand five hundred dollars as represents the loss of earning capacity arrived at in accordance with paragraph (a) or paragraph (b)."

Under the Schedule to the Act is a list of injuries and fixes the "percentage of incapacity" in respect of each item in the Schedule. What it conveys is:

"Each percentage stated is the percentage of loss of earning capacity which a person is deemed by law to have suffered as a result of the injury to which the percentage relates. It is immaterial whether a person who has suffered a scheduled injury loses no earning capacity at all or has, in fact, suffered a much higher percentage of loss of earning capacity. For the purposes of the Act he has suffered the percentage stated in the Schedule and is only entitled to compensation based on that percentage". (KERMODE J in FIJI ELECTRICITY AUTHORITY v LABOUR OFFICER ON BEHALF OF VITALE RAMASI, 27 FLR 62 at 66).

Under item (2) in the schedule (under s8) it provides for percentage of incapacity for ankylosis of any joint thus (underlining mine):

"2. The percentage of incapacity for ankylosis of any joint shall be reckoned as from twenty-five to one-hundred per cent of the incapacity for loss of the part of that joint, according to whether the joint is ankylosed in a favourable or unfavourable position....."

Mr. Sharma submits that there is no evidence of "ankylosis"; that Dr. Matainavula was not questioned on this subject; that Dr. Goneyali's report of 2 February 1989 does not refer to "ankylosis" apart from saying "cannot move the right ankle freely". Mr. Sharma says that according to the Medical Dictionary "ankylosis" is defined as (no reference given to this definition):

"a fusion of the bone across the joint space either by bony tissue or by shortening of connecting fibrous tissue. It is a complication of prolonged joint inflation as may occur in chronic infection of rheumatic disease".

He says that there is conflicting evidence on the incapacity of the Respondent's ankle. Doctors Goneyali and Matainavula examined the workman in the early stages of the injury but because it takes time for injury to heal Dr. Chandra's report of 25 February 1992 would be a more viable one.

Mr. Sharma submits that there is no evidence in regard to the provisions of item (2) above. Hence he says item (2) is not applicable in the circumstances.

Therefore he says that the Respondent's submissions on the applicability of section 8(1)(a) ought to be rejected.

Mr. Sharma further submits that since the injury is not a scheduled one under section 8(1)(a), the quantum (if any) must be assessed under section 8(1)(b). In his submission Mr. Sharma states that since the accident his wages has increased and he received two promotions; that there is no loss suffered by him or that he is likely to suffer. There is no chance of loss of potential incapacity. He is still in employment of the Appellant.

He concludes by saying that the question is:

"did the incapacity suffered by the Respondent which was of a permanent nature reduce the Respondent's earning capacity in any employment which he was capable of undertaking at the time must be considered in the negative having regard to both the evidence of the Respondent's earnings (which demonstrates no loss of earning capacity) and the medical evidence of Dr. Chandra."

He therefore says that under the circumstances no compensation should be paid to the Respondent under Section 8(1)(b) either.

On the other hand Mr. Udit submits that it is a scheduled injury and that compensation ought to be paid under s 8(1)(a) as the learned Magistrate ordered.

I would not like to reiterate Mr. Udit's arguments but will deal with them in my consideration of the issue which is for my determination.

Whether the injury fits into the definition of "ankylosis" or not will depend on the medical evidence adduced in this case.

Mr. Sharma gave one definition (referred to above) but without reference and Mr. Udit quoted another from ENCYCLOPAEDIA AND DICTIONARY OF MEDICINE, NURSING AND ALLIED HEALTH, 3rd Edition by MILLER & KEANE at p.58 which states: "ankylosis - abnormal immobility and consolidation of a joint".

I have carefully analyzed the evidence of the two doctors, namely Dr. Asaeli Matairavula and Dr. Chandra and also Dr. Goneyali's report on the workman. In the final analysis on a balance of probabilities I prefer to accept the report of Doctor Goneyali and the evidence of Dr. Matainavula who are both surgeons of considerable experience and their qualifications are higher than those of Dr. Chandra a general practitioner. Also because Dr. Chandra is engaged as the appellant's doctor there is every likelihood of his evidence being biased in favour of the Appellants with all due respect to the doctor. Justice must not only be done but it must be seen to be done. I am satisfied that on the definition of "ankylosis" the injury does come under the scheduled injury under (2). The fact that the actual term "ankylosis" was not specifically used to describe the injury does not matter so long as it fits the definition. I also accept the doctors' opinion that the disability is 30%. The doctor (Dr. Goneyali) stated in his memorandum dated 2 February 1989 to the Permanent Secretary for Employment and Industrial Relations, inter alia, at (page 129 of Record):

"due to the above injury the following disabilities could be seen:

(1) Cannot move his right ankle freely;

(2) Pains especially during cold season.

He is therefore entitled to 12% permanent disability.

Calculation: Loss of foot = 40%

Percentage of disability =

30% of 40% = 12%"

The learned Magistrate also concluded at p.21 of Record that:

"In these circumstances the opinion expressed by Dr. Goneyali and confirmed by Dr. Asaeli have to be given preferences".

In fact the learned Magistrate had very carefully analysed the three doctors' evidence (see pages 19 to 21 of the Record) before finally accepting the report of Doctor Goneyali and the evidence of Dr. Matainavula and he gave his reasons for so doing so as far as the matter of degree of partial permanent incapacity is concerned and the extent and type of the injury. Both the doctors were well qualified to give their opinion on the matter and according to them the fact that Dr. Goneyali's examination was done some two months after the injury was sustained it was not premature to form an opinion which they gave.

In the grounds filed by the appellant, Mr. Sharma argued that the learned Magistrate "erred in law and in fact" in grounds 1, 3 & 4 but in ground 2 he said that he "erred in law". The learned Magistrate has given a well-considered judgment setting out the facts, analyzing the evidence and drawing conclusions from them. I find that he had taken into account all the factors that should have exercised his mind. He has correctly applied the law and came to the right conclusion.

On the matter of distinguishing between questions of law and questions of fact, the authorities have been conveniently summarised by MILDREN J in TRACY VILLAGE SPORTS AND SOCIAL CLUB v WALKER (UNREPORTED, SUPREME COURT, NT, MILDREN J File No. 43/92 November 1992). Since this subject of the application of 'facts' and 'law' and proper inferences to be drawn from those facts have a strong bearing on the issue before me I venture to repeat the principles involved as hereunder (quoting from WILSON v LOWERY (supra) p. 146) at the risk of being lengthy and conclude by saying that the learned Magistrate followed the right principles in this case:-

"1. In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NZWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469-470.

2. Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.
   
3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra), per Martin and Mildren JJ (at 145-146); Haines v Leves (supra) (at 156).
   
4. But, a finding of fact cannot be disturbed on the basis that it is "perverse", or "against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence". Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (at 469-470).
   
5. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
   
6. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
   
7. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14".
   

Since the learned Magistrate found in favour of the workman under s 8(1)(a) of the Act as a scheduled injury and item (2) of the said schedule he did not have to consider s 8(1)(b). So the matter ends there and this Court has no reason to disturb the learned Magistrate's findings in this regard.

In the outcome, for the above 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 $3065.71 payable by the Appellant to the Respondent stands.

The Respondent claims interest on the judgment amount of $3065.71 at the rate of 13%. Since it was a Magistrate's Court judgment, the post judgment interest is allowed at the rate of 5% from 4 February 1993 (date of judgment) until payment for Or. 32 r.8 of Magistrate's Courts Rules Vol 11 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 circumstances of this case are not such as to warrant a higher rate of interest.

The appeal is dismissed.

D. Pathik
Judge

At Suva
28 April 1995

HBC0003J.93B