Singh v Domalco Ltd [2000] FJHC 197; HBC0032.1998L (6 October 2000)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0032J.1998L

Between:

SUBHASH CHANDRA SINGH
of Navatu Ba Machine Operator.
Plaintiff

And:

DOMALCO LIMITED
a limited liability company having its registered office at KPMG
Meghji Arjun Building 157 Vitogo Parade Lautoka.
Defendant

Counsel: R Chaudhary for the Plaintiff
A K Narayan, G P Shankar for the Defendant

Date of Hearing : 21 April, 30 April, 19 July, 21 July, 3 August 1999
Date of Decision : 6 October 2000

JUDGMENT

Subhash Chandra Singh the plaintiff is sueing Domalco Limited the defendant for general and special damages for injuries he sustained on 6 May 1996 when his left index, middle and ring fingers were all amputated at the metacarpo-phalengeal joint after the die of a double action press machine crushed them. At the time the plaintiff was employed as a press operator on the said machine by the defendant.

The double action press machine made pots. It was imported imported from New Zealand by the defendant but had originally been manufactured in Australia by John Hinde & Company Limited. The defendant bought it in a dilapidated state in New Zealand and engaged engineers from the Fiji Sugar Corporation Limited in Ba to refurbish it. This they did in their own time. The machine was powered by electricity. The central parts were a top die and receiving die which moulded the pots. The top die would move down after a lever to the side on the right was shifted by the operator. The top die would then move up and stay there until the lever was shifted again. The operator stood in front of the machine and would select pieces of aluminium to place on the bottom die for moulding into pots. Apart from moving the lever, the counter had to be adjusted as well. It kept a record of the number of pots made. The double action press machine stood about eight feel high and it was rectangle in shape. There was no guard in front of the operator but there was one at the back of the machine.

The particulars of negligence are set out at paragraph 6 of the statement of claim as follows:

(i) Failing to provide safety guards for the machine to prevent the hand getting crushed.

(ii) Failing to provide adequate supervision to the plaintiff while he was engaged in his said work.

(iii) Failing to take any adequate precautions for the safety of the plaintiff while he was engaged in his said work.

(iv) Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have know.

(v) Failing to provide any or any safe or proper system of work.

(vi) Requiring the plaintiff to work on a very outdated and unsafe machine bought second hand from Australia.

(vii) Requiring the plaintiff to work on and operate a very old faulty and defective machine without ensuring that the machine was in proper and safe working condition.

(viii) Failing to maintain the machine in a condition it would be safe to operate.

(ix) Failing to properly recondition the outdated secondhand machine imported from Australia.

(x)

The plaintiff first called Dr Viliame Taoi the consultant surgeon at Lautoka Hospital. He referred a medical report dated 21 January 1998 (Exhibit P8). Another report was also prepared on 6 March 1999 (Exhibit P9). He was admitted with three fingers of his left hand not being viable. They had crushed and they had to be amputated up to the knuckles. The plaintiff was admitted for five days. He attended clinics in hospital three times in 1996 and once in 1997. Dr Taoi gave the plaintiff a 30 per cent permanent incapacity. His little finger and thumb are still functional to some extent. The plaintiff is left handed.

The plaintiff joined the defendant in August 1985. He initially did finishing work on the defendant’s products. In 1987 he started operating on the small machines. He then moved to bigger machines. His hours were 7.30 - 5.00 p.m. with lunch on at 12 to 12.30 p.m. On Saturdays he worked on overtime basis. His pay in 1996 was $112.00 per weekly. The aluminium scales are oiled. The sheets are then placed on the bottom receiver. The plaintiff would pick up the sheet with his right hand, takes it in his left. It would then be placed on the receiver die. When the lever was pulled to the right, the top die come down, pressed the aluminium sheet and moved up again as part of our action . While the top die moved down, the plaintiff would have picked another sheet. On 6 May 1998, the plaintiff had started at 7.30 p.m. The plaintiff had just placed another die on the lower die when the top die fell without warning at about 9.15 am. His wound was cleaned at Ba Hospital and he was transferred to Lautoka. The plaintiff returned to work for the plaintiff and only lost his position when he instituted these proceedings.

The machine had been purchased in December 1995. It was an old machine that had seized and it was in no working condition. The machine was refurbished by the plaintiff’s workers and a few from the Fiji Sugar Corporation. The plaintiff stated that as far as he knew no one was sent to service the machine. It took from December 1995 to April and May 1996 to get the machine going. It initially operated on a trial basis rather then full time. Prior to the day he was injured, he had been told to work to a target of three hundred and fifty pots per hour. The connecting rod held the shaft and it controlled the top die. At the time, there were problems with keeping the connecting rod in a vertically upright position. If not it could move down it again because the load was always there. The day the plaintiff was injured the comrod would stop pointing towards the operator.

Ronald Jai Raj is a health and safety inspector employed by the Ministry of Labour and Industrial Relations. He joined in 1991 and had completed a course from Ballarat University in occupational health and safety. He went to the factory to investigate the plaintiff’s case in late 1997, early 1998. The machine had no guards at the front and he found some whose measurements correlated with that placement. The corn rod was apparently not stopping in a vertical position but was two or three degrees out. In cross examination, Mr Raj conceded he could not comment on the state of the machine on 6 May 1996. He was in Suva at the time. In relation to his visit to enquire about the plaintiff’s accident, he had not issued instructions to have the guard fitted on the machine. He denied that the slots where the guards were to be filled were actually light sockets.

Kalivati Silimaibau a fitter at Fiji Sugar Corporation Limited oversaw the refurbishing of the double action press machine. He had completed a course in Brisbane as a fitting machinist and had twenty eight years experience. He was at the defendant’s factory when the crate containing the machine was opened. It had no guard in the front. The alleged guard fitting was actually for lights. The cornrod driving the top die could not slip unless the motor was running the double action press machine operated when the lever was shifted to the right. The double plates were worn and they were removed and thinned to make it true in the parlance of the trade. Mr Silimaibau admitted that he and colleagues worked on the machine and no one from the manufacturer was engaged to inspect the machine or supervise its overhaul. He also said he did not work with a manual but relied on his own experience.

Anish Kumar Swamy is a foreman at the defendant’s factory. He joined them in 1998. He was trained on the double action press machine by one Thakur Mistry who had come out from India to work for the defendant. The machine came in one piece. There was no guard on it. It worked properly after servicing. The clutch plate was polished and it required adjustment only once. It had a main switch and a press button started the motor. When the operator put the aluminium plate on the die, the corn rod press ring is stationary. After the sheet is placed on the die, the operator places left hand on the counter and the right hand on the lever. Mr Swamy stated in his experience the cornrod and pressing which drove the top die could not move down without the lever. When the plaintiff was injured, Mr Swamy was his assistant greasing the aluminium tanks. He was also taking out the manufactured pots and stocking them. Mr Swamy was at the back of the machine when he was injured. The cornrod itself was operated by a big flywheel which turned the crankshaft that operated the cornrod. When this happened upon the plaintiff his left hand was trapped under the receiving die and pressing die from the top. Mr Swamy switched off the main switch, released the lever and the press ring and cornrod went up. The guard could not fit in front of the machine because it would interfere with the placing of aluminium sheets on the die. Mr Swamy admitted in cross examination there was a manual. The manual was kept by the defendant. When the machine was first brought it was not in working condition. Apart from machining the clutch plates, new brake liners were also put in. These have yet to be replaced.

Thakorbhai Gajanand Chudgar was formerly employed by the defendant as an engineer. He dismantled the double action press machine recently. He checked the clutch and found no wear and tear or scratches on the clutch lining. In his opinion the pressing and corn rod would not fall suddenly. It is controlled by multiple gears provided in the double action press machine. Unless the clutch was engaged the cornrod would not move. In cross examination Mr Chudgar conceded he could only speak about the machine as he found it and not as to its condition in 1996. However he insisted the top die could not fall of its own volition because there were four gears fitted in the machine. The brakes stopped the clutch from dismantling and the top die from falling.

Vijay Ram a fitter machinist works for the defendant. After the plaintiff was injured he checked the machine. He found it the ram, cornrod and press ring normal. There was no defect in the clutch ring and the cornrod was not incling toward the operator. That morning he had checked the clutch, brakes, cornrod and pressing and they had functioned normally.

Mr Pravin Babubhai Chauhan is the managing director of the defendant. He was not in Fiji at the time of the accident. He imported the John Hinde double action press machine and had it serviced. It had no guard at the front of the machine. In refurbishing the machine they polished the clutch plates, pads on brakes were changed and they serviced the corn rod and pressing. He also had it realigned. Although, he spent a good deal of time on the factory floor overseeing operations,

Mr Chauhan left much of the responsibility to his foreman. He said the cornrod and rim could only fall of their own volition if there was a breakdown of the clutch. It could only be activated by the lever on the right. He admitted he had no formal engineering qualification. The machine was inspected in New Zealand and no engineer was engaged to inspect it. Mr Chauhan said there was a manual which was relied on to refurbish double action press machine.

The court has heard the evidence of the parties. While it is not persuaded that the double action press machine required a guard, it is satisfied that the defendant failed to take proper precautions to ensure the said machine was properly refurbished. In this regard the evidence of Kalivati Silimaibau is crucial. He oversaw the refitting of the machine and the court does not doubt his expertise and experience. However he clearly stated in evidence that he did not rely on the manual of the machine and worked from his own knowledge. Mr Chauhan contradicted this assertion but Kalivati Silimaibau must be taken to know what he was doing. The manual of any machine is the guide to its intricate workings. It is issued by the manufacturer to assist mechanics, engineers, toolsman working on their machines in understanding how they work. How can Mr Silimaibau assure the court the machine was in good working order without any reliance on the manual? Can it be assured that the clutch plates were functioning normally, as were the brake lines, the corn rod, press ring and other component parts? It is only by reference to the manual that one can say with any confidence how a machine can best operate at optimum level both production wise and in terms of safety. The plaintiff himself has referred to some problems the machine had. One of the defendant’s witness also referred to one readjustment.

In the court’s respectful opinion, the particulars in paragraphs 6(viii) and (ix) have been made out. The defendant’s failure in this regard led to the plaintiff’s unfortunate accident, the former being unable to satisfy the court that it had refurbished the double action press machine to the standard set out in the manual issued by the manufacturer. The double press machine had problems in alignment particularly in relation to the top die and connecting rod. Although Mr Chudgar and Mr Silimaibau insisted the top die could not fall without the lever being activated, neither could speak with certainty about the double action press machine in 1996. It was just being put through trials and as at the date of the accident there were a few teething problems to iron out. Those problems including the alignment difficulties caused it to fall in the manner it did injuring the plaintiff by amputating the three middle fingers of his left hand at the metacarpophalangeal joint. The problems with alignment suggested the machine had some problems with balance and it follows that the weight of the connecting rod and top die caused it to tilt in the manner it did. In any case the defendant’s assurances were somewhat hollow because the manual had not been followed by Mr Silimaibau and no certified engineer with knowledge of the particular machine had overseen its refurbishment.

The plaintiff is awarded general damages as follows:

Pain, suffering loss of amenities	$25,000.00
Interest on past pain and suffering ($15000.00 at 6 percent p.a. from 5.5.98 to 6.10.2000)	2,175.00
Loss of earning capacity	15,000.00
	$42,175.00

There will be no award for special damages as the plaintiff has provided no receipts.

Judgment will issue for the plaintiff in the sum of $42,175.00 and costs are summarily assessed against the defendant at $3000.00.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
6 October 2000