Siqila v Fiji Development Bank [2000] FJHC 86; HBC0348J.1998S (25 July 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 348 OF 1998

BETWEEN:

JONE SIQILA
Plaintiff

AND:

FIJI DEVELOPMENT BANK
1st Defendant

AND:

CHARLIE SILIMAIBAU PESI
2nd Defendant

Counsel: Mr V. Maharaj for Plaintiff
: Mr D. Sharma for Defendants

Hearing: 14th July 2000
Judgment: 25th July 2000

JUDGMENT

The Plaintiff is an employee of the Fiji Development Bank. In July 1995, he was a training officer responsible for organising seminars at FDB branches in Fiji. On 25th July 1995 he and two other colleagues travelled to Sigatoka in a mini van hired from Sunset Tours, and on their return trip in the same van on 28th July, were involved in an accident. The accident was caused by the careless driving of the driver, and the Plaintiff was injured as a result.

The Plaintiff and the First Defendant came to an agreement dated 5th June 1996 under the Workmen’s Compensation Act for payment of a lump sum of $9,824.36. Subsequently, the First Defendant also lent the Plaintiff a further sum of $1,700.00, to allow him to be treated by a physiotherapist.

The injury for which compensation was paid was a fracture of the right arm with permanent reduction of motion, assessed in 1996 at 8.25% permanent partial incapacity.

On 9th July 1998, the Plaintiff issued a writ of summons against the First Defendant, and the Second Defendant (Charlie Pesi) for bodily injuries sustained in the accident of 28th July 1995. The claim states that the Defendant failed to provide a safe system of work and was negligent in providing a hired vehicle with an incompetent driver instead of providing a Bank-owned vehicle. Particulars of injuries suffered are:

(i) Loss of valgus angulation of the right elbow;

(ii) The range of notion of the right elbow was from 5 to 80 degrees;

(iii) Movements were found to be painful;

(iv) There was decreased light touch and pin prick sensation in the distribution of the ulna nerve;

(v) He had a weak grip strength of his right hand;

(vi) Ulna nerve motor deficit;

(vii) A malunited fracture of the lower end of the right humerus.

The Plaintiff claimed general and special damages, interest and costs.

The Plaintiff discontinued his claim against the Second Defendant. The First Defendant in its Defence denied that the driver of the vehicle was its agent, denied negligence both in common law and by statute and claimed that the Plaintiff had already been compensated under the Workmen’s Compensation Act.

The trial in this matter commenced on 21st May 2000, and ended on 12th July 2000. The Plaintiff gave evidence. He said that although the Defendant’s Premises Department had been given ample notice for the trip to Sigatoka, a bank vehicle was not available. He said he was authorised to hire a private vehicle which it transpired, had no seat-belts. He said he did not know how the accident happened, but that he suffered considerable pain in his arm. He was treated by several doctors for the fracture in his arm, but he continued to suffer pain in the arm, shoulder and back. He said that he suffered more pain in an air-conditioned office, and that he could not straighten his arm.

He tendered a report from Mr Eddie McCaig, Associate Professor of Surgery in 1999 who found as follows:

''When seen today Mr Siqila complains of extreme pain throughout his upper limb. The shoulder to finger pains are especially so with cooler temperature. He takes regular medication for pain. Examination reveals a very anxious gentleman. His shoulder movement is complete but is painful at the extreme. He has a centimeter of arm muscle wasting. He lacks 5 degrees of full extension of the elbow with pain at the extremes of flexion. He has no measurable ulna nerve deficit.

Radiographs show a well-healed fracture with mild post traumatic osteoarthritis of the elbow joint.

Opinion: Mr Siqila has improved from last seen about two years ago, at which time he had a definite ulna neurological deficit. His fracture is healed. The extreme symptoms are a result of a shoulder hand syndrome (cansalgia, reflex sympathetic dystoply). This is a poorly explained condition of post-traumatic chronic pain syndrome. He is encouraged to persevere with his work, this in itself is excellent rehabilitation.

He has been referred to the physiotherapists and will continue his review. His long-term prognosis is good. This may be over an indefinite time frame (years)."

The Plaintiff said that the symptoms of osteoarthritis developed after he was paid compensation and that he is now entitled to damages in respect of the injury.

After the Plaintiff had given evidence, counsel for the Defendant applied to have the claim dismissed on the ground that it was statute-barred under the Workmen’s Compensation Act. In a ruling delivered on 20th June 2000, I dismissed that application on the ground that I had heard insufficient evidence about the way in which the agreement under the Act had been made.

Thereafter, the Plaintiff having closed his case, the Defendant called two witnesses. Navitalai Cakacaka, a bank officer gave evidence of the way in which vehicles are hired by the Defendant bank, and the way in which the Workmen’s Compensation Act Agreement had been arrived at. He said that after the accident, the Plaintiff had been paid his full salary whilst recovering from his illness, but that he had agreed to pay _ of his salary back to the Defendant because the Act requires payment of _ of salary only. He said that the Plaintiff’s level of incapacity was assessed by Doctors selected by the Plaintiff and that the Plaintiff accepted the lump sum payment without complaint. He said the Bank lent him a further $1,700 for physiotherapy, but that the Plaintiff attended only one session of therapy and used the money for other things.

The final witness for the Defendant was Iliesa Dave, a Labour Officer. He said that he explained the Workmen’s Compensation Agreement to the Plaintiff before he signed it, he identified his own signature on it, and said that the form had been authorised by the Permanent Secretary for Labour.

Workmen’s Compensation

Since the entire claim would fail if it is statute-barred, I will deal with this issue at the outset.

Section 5 of the Workmen’s Compensation Act Cap. 94, provides that where any workman is injured by accident arising out of and in the course of employment, his employer shall be liable to pay compensation in accordance with the Act.

Section 8 of the Act provides that:

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

1. 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."
   

The Act provides for the method of calculating earnings for the purpose of arriving at a figure for compensation. Section 3 requires that the workman must give notice of the accident "as soon as practicable". Section 15 requires that where the workman has given notice, the employer must have him medically examined. Section 16 of the Act provides:

"(1) The employer and workman may, with the approval of the Permanent Secretary or a person appointed by him, in writing, in that behalf, after the injury in respect of which the claim to compensation has arisen, agree, in writing, as to the compensation to be paid by the employer. Such agreement shall be in triplicate, one copy to be kept by the employer, one copy to be kept by the workman, and one copy to be retained by the Permanent Secretary:

Provided that -

1. the compensation agreed upon shall not be less than the amount payable under the provisions of this Act; and
   
2. where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.
   

(2) Any agreement made under the provisions of subsection (1) may, on application to the court, be made an order of the court.

(3) Where the compensation has been agreed the court may, notwithstanding that the agreement has been made an order of the court under the provisions of subsection (2), on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved -

1. that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);
   

c) that the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

2. that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.
   

(4) All agreements made under this section shall be exempt from the payment of stamp duty."

Section 25 of the Act provides as follows:

"(1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act:

Provided that -

1. a judgment in such proceedings whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury under this Act;
   
2. a judgment in proceedings under this Act whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury independently of this Act;
   

100. an agreement come to between the employer and the workman under the provisions of subsection (1) of section 16 shall be a bar to the proceedings by the workman in respect of the same injury independently of this Act.
     

(2) If in proceedings independently of this Act or on appeal it is determined that the employer is not liable under such proceedings, the court in which such proceedings are taken or the appellate tribunal shall, if the plaintiff so chooses, proceed to determine whether compensation under this Act is liable to be paid to the plaintiff and shall assess the amount of compensation so payable, but may deduct from such compensation any extra costs which in the opinion of the court or appellate tribunal have been incurred by the employer by reason of the proceedings have been taken independently of this Act."

The effect of section 25 is to create a statutory bar to civil action against the employer in respect of the same injury provided section 16 was complied with. The provisions of section 16 are mandatory and must be strictly proved (Vinod Patel & Company -v- Yatendra Prasad Civil App. No. AB00026B/98). In that case, a decision of the trial magistrate that an action was not statute-barred because the agreement under section 16 of the Act had not been approved by the Permanent Secretary or a person appointed by him, was upheld on appeal by the High Court and the Court of Appeal.

In this case, the Plaintiff agreed that he had signed the section 16 agreement, agreed that he had been paid compensation in a lump sum, and agreed that he had been paid for permanent partial incapacity at 8.25%. However he said he did not understand that the agreement was a bar to future civil proceedings against the Defendant in respect of the same injury, that the agreement had not been explained to him and that he now suffers a degree of pain from the injury which is aggravated with the onset of osteoarthritis.

His evidence was contradicted by the evidence of Iliesa Dave. He said that he had been authorised by the Permanent Secretary to explain the section 16 agreement to workmen, and tendered a copy of a memorandum confirming such authorisation. He said that the initial medical examination set the Plaintiff’s level of incapacity at 10% but that a later report assessed this at 8.25%. This lower level was accepted by the Plaintiff. He said that he explained the agreement to the Plaintiff in the Fijian language and that he told the Plaintiff that the agreement prevented him from taking further proceedings against his employer. He said that the Plaintiff signed it, and that he signed it himself. He said that the agreement had then been approved by Principal Labour Officer, Mr Gyan Singh, on behalf of the Permanent Secretary.

The letter of authorisation tendered by Mr Dave authorises him as follows:

"In terms of provision (b) of section 16(1) of the Workman’s Compensation Act, Cap. 94, you are hereby appointed and authorised to read and explain to a Fijian workman in the Fijian language the terms of any agreement under which such workman is paid compensation under the provisions of the Workmen’s Compensation Act Cap. 94, and in pursuance of having done so to endorse to that effect the certificate on such agreement."

This authority therefore extends to reading, explaining and certifying the agreement. I accept Mr Dave’s evidence that he did read and explain the form, and I accept that Clause 3(b) was explained to the Plaintiff which provides that "the workman shall accept the aforesaid lump sum in discharge of all the liability of the employer to pay compensation under the provisions of the Act in respect of the aforesaid injury to the workman."

I also accept his evidence that the Permanent Secretary had authorised the agreement under section 16(1) through Mr Gyan Singh whose signature he identified at the bottom of the form.

I therefore accept that the provisions of section 16 have been satisfied, and that under section 25 of the Act, this action is statute-barred.

The effect of section 25 may well have an unjust effect on employees who develop serious complications from an injury well after compensation has been paid. However, this is not one of those cases. Dr Etika in his medical report of 20th September 1995 said that for assessment of the Plaintiff’s net disability, it was advisable to wait for the injury to heal. The parties did wait for the healing process before his incapacity was assessed on 7th March 1996 at 10%. His permanent reduction of notion was to 90%. Incapacity was assessed on 5th June 1996 at 8.25%, a level which was accepted by the Plaintiff both in the section 16 agreement, and his handwritten statement at the Labour Department, of 10th May 1996.

His evidence of his present incapacity (which I accept) and the medical reports, particularly from Dr McCaig, do not present a picture of aggravation in respect of the injury. His evidence that his motion was impaired to the extent of 90% and that he suffered pain as result of the injury, appear to have been taken into account for the purpose of assessing permanent incapacity. Dr McCaig’s report shows marked improvement since 1997 and good long term prognosis.

In all the circumstances, and having heard the evidence in this case, I consider that the Plaintiff has been compensated, under the Workmen’s Compensation Act, for his injury and that this claim is statute-barred.

The action is therefore dismissed. The Plaintiff must pay the Defendant costs of this action which I set at $400.

Nazhat Shameem
JUDGE

At Suva
25th July 2000