Wati v Buliruarua [2005] FJHC 128; HBC0070.2004 (8 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0070 OF 2004

BETWEEN:

BRIJMA WATI
PLAINTIFF

AND:

MIKALI BULIRUARUA
FIRST DEFENDANT

SUNCOURT (WHOLESALERS) LIMITED
SECOND DEFENDANT

Mr. V. Maharaj for the Plaintiff
Mr. H. Nagin for the 2nd Defendant

JUDGMENT

The core issue in this action is of vicarious liability that is whether the second defendant the employer is liable in damages for assault on a fellow employee committed by the first defendant during working hours.

FACTS:

This is a tragic case. The facts are not much in dispute. The second defendant employed the first defendant and also one Lekh Ram, who is now deceased. The plaintiff is deceased’s wife. The deceased was a lorry driver for the second defendant and the first defendant was a forklift driver. On 24th May 2001, the first defendant was operating a forklift in the timber yard of the second defendant. Lekh Ram drove his truck into the yard and parked it in such a position that it blocked the forklift. The first defendant moved the truck. There was an argument. The first defendant slapped Lekh Ram once. Lekh Ram fell on the sealed surface and later died due to intracerebral and subdural haemorrhage. The first defendant was convicted for manslaughter.

SUBMISSIONS:

Mr. Maharaj submitted that vicarious liability of employers is really a policy matter of spreading liability to those who are able to pay. He looked at driving cases where courts have looked at whether a driver was on a frolic of his own or acting in the course of employment. He said employers are in a position to control actions of their employees and on this basis the court ought to hold the second defendant vicariously liable.

Mr. Nagin submitted that vicarious liability only arose if certain strict conditions are fulfilled. He gave examples of where a master entrusts goods to his employees who converts them or where a bouncer or security officer who in the course of his duty assaults someone in which event the master is liable.

Driving cases he submitted are not relevant. In the present case, the slap was sudden and no amount of supervision could have stopped it. He said that this was a wilful or deliberate act of an employee. He said the test was whether the unauthorised act was so connected to his duty so as to make the master liable.

VICARIOUS LIABILITY:

Vicarious liability is an instance of no fault liability. It is imposition of legal responsibility on an employer for acts of his employee carried out in the course of employment even though the master himself is free from blame. Professor Fleming in “The Law of Torts” 7th edition at page 339 says “we speak of vicarious liability when the law holds one person responsible for the misconduct of another, although he is himself free from personal blameworthiness or fault” and that the modern doctrine of vicarious liability has as its basis “a combination of policy considerations”. He goes on at page 340 to highlight what those policy considerations are as –

“the modern doctrine of vicarious liability cannot parade as a deduction from legalistic premises, but should be frankly recognized as having its basis in a combination of policy considerations. Most important of these is the belief that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise; that the master is a more promising source for recompense than his servant who is apt to be a man of straw; and that the rule promotes wide distribution of tort losses, the employer being a most suitable channel for passing them on through liability insurance and higher prices. The principle gains additional support for its admonitory value in accident prevention.”

In Darling Island Stevedoring and Lighterage Co. Ltd. v. Long – [1957] HCA 26; (1957) 97 CLR 36 at 57. Fullagher J stated that the rule for employers liability for his employees act under the common law was adopted not by way of an “exercise in analytical jurisprudence but as a matter of policy”, and in Bazley v. Curry – 1999 Can LII 692 (SCC); (1999) 174 DLR (4th) 45 the Supreme Court of Canada stated :

“Increasingly, courts confronted by issues of vicarious liability where no clear precedence exists are turning to policy for guidance, examining the purposes that vicarious liability serves and asking whether imposition of liability in the new case before them would serve those purposes” per McLaughlin J. at page 53 paragraph 14.”

He considered that the two policy considerations which underpin vicarious liability are first just and fair provision of a remedy from those who create the risk and are able to bear the loss and secondly deterrence of future harm.

Bazley decided that in considering whether an employer is vicariously liable for an employee’s unauthorised intentional wrong the test is whether ‘the wrongful act is sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires” – page 64 paragraph 41(2).

The House of Lords in Lister & Others v. Hesley Hall Ltd. – (2002) 1 AC 215 adopted the test of sufficient connection between the work an employee was employed to do and the wrongful act committed. In Lister the defendants owned and managed a school for problem children. The school had a boarding where a warden was employed to look after the children. The warden sexually abused the children and the school was held vicariously liable.

Their lordships expressed reservations about the test for vicarious liability enunciated by Salmond in “Law of Torts” to the effect that a wrongful act is deemed to be done by a servant in the course of his employment if it is either “(a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master”. The test was applied in Aldred v. Nacano – 1987 IRLR 292 and referred to by Mr. Nagin. Lord Steyn was of the view that the above test ought not to be taken mechanically or literally but considered with a view to achieving “principled but practical justice” – p. 224. Lord Millet cautioned that the Salimond test is “not a statutory definition of the circumstances which give rise to liability, but a guide to the principled application of the law to diverse factual situation” p. 245 and at page 246 “an excessively literal application of the Salmond test must also be discarded”.

Lord Millet had occasion to consider the doctrine again in Dubai Aluminium Co. Ltd. v. Salaam & Others – [2002] UKHL 48; 2003 1 ALL ER 97 referring back to Lister commented at paragraph 121 on page 126 as follows :

“In that case I observed that it was no answer to a claim against the employer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty. Vicarious liability for tortious and even criminal acts had been established well before the end of the nineteenth century. Lloyd’s case, which Lord Steyn described as a breakthrough, finally established that vicarious liability is not necessarily defeated if the employee acted for his own benefit. The consequence, he said (at [17]), was that ‘an intense focus on the connection between the nature of the employment and the tort of the wrongdoer became necessary.”

It therefore appears that a master is liable for acts of his servant in the course of employment even if the act is a criminal act or a tortious wrongdoing.

CONCLUSION ON LIABILITY:

Therefore one has to look at the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing. In other words the question to be answered is: was the assault so closely connected with what the second defendant authorised or expected from the first defendant in the performance of his duties as a forklift driver that it would be fair; just and reasonable to conclude that the second defendant is to be held vicariously liable for the assault and resulting damages. Whether the alleged wrongdoing or tortious act takes a violent form or a non violent as where an employee converts something entrusted to an employee for his own benefit is really immaterial. The principles underlying vicarious liability remain same.

In the present case the assault occurred in second defendant’s timber yard. It occurred during working hours. The first defendant the wrongdoer was a servant of the second defendant. He was there to load timber onto trucks. The deceased too in the course of employment had brought the truck to the yard to be loaded. The first defendant took exception to the position where the truck was parked as it interfered with his work. The interference by the truck with his work which he was doing for the second defendant’s benefit led to the assault.

However, the employer, that is, the second defendant’s business of a timber merchant coupled with the fact that both the victim and the first defendant were drivers could not have significantly increased a risk of assault from such activity. The duty of the first defendant was to drive a fork hoist to load timber. That duty by itself should provide him no opportunity to assault other employees. This is not a job akin to that of a security officer and who may be encouraged by the employer to take highhanded action against fellow employees and who assaults a fellow employee. Simply because the assault occurred in the second defendant's yard during working hours is not enough.

There is evidence that the forklift driver that is the first defendant moved the truck which was blocking the way. Had he knocked down someone while moving the truck that could result in liability for employer because of the close connection between his duty and the obstruction. However once the truck was moved, there was no obstruction and the assault was unwarranted.

Each case stands or falls on its own peculiar facts. The evidence in the present case falls short of establishing an authority or an implied authority or a close connection to take violent action where none was needed. I hold that vicarious liability in the present case does not arise. The incident occurred all of a sudden; no amount of supervision could have avoided it. To sheet home vicarious liability in such cases would be extending the boundaries of such liability too far under the common law.

Accordingly I hold the second defendant not vicariously liable for the wrongdoing of the first defendant. The plaintiff did not lead any evidence of negligence on part of second defendant or breach of Health and Safety at Work Act 1996. So I find no liability on these two grounds against the second defendant either. The claim on common law principles against the second defendant has to be dismissed and assessment of damages against the first defendant to be done.

QUANTUM OF DAMAGES AGAINST 1ST DEFENDANT:

At the time of his death on 3rd June 2001 the deceased was a month over 42 years of age. He earned gross wages of $111.25 and net wage $102.37 – see document 10 in bundle of documents. On Sundays he drove a taxi earning on average $15.00 on that day. I believe the plaintiff when she said this. She was unable to give the name of owner or taxi number but I believe having seen her that she had genuinely forgotten these details; otherwise she struck me as a simple woman giving honest answers without exaggerating. Additionally she produced her husband’s licence and PSV badge.

According to her, her husband was a healthy man. He only suffered from diabetes for which he took medicine supplied free by hospital.

The plaintiff brought this claim pursuant to Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and under Compensation to Relatives Act (Cap 29). Under the former Act, damages are limited to damages which arose before the death or as a result of the death of the deceased. Generally speaking damages are claimed and awarded first, for loss of expectation of life. There is no acknowledged criteria by which these damages are assessed but they are usually limited to a nominal sum usually about $2,500.00 – The Medical Superintendent and Attorney-General of Fiji v. Abdul Hafeez Ismail – ABU0050 of 2000.

Secondly, Section 2(2)(c) of the Act also makes provision for claim for funeral expenses. The plaintiff has claimed $1500.00. Funeral expenses would include all expenses occurred in ceremonies attendant upon the burial or cremation of the corpse. I consider a sum of $1500,00 as very reasonable so I allow that. Therefore the total sum I allow under Law Reform (Miscellaneous Provisions) (Death & Interest) Act is $4,000.00

CLAIM UNDER COMPENSATION TO RELATIVES ACT CAP 29:

Under this Act an action accrues for the “benefit of the wife, husband, parent and child” of the deceased when the death of a deceased is caused by wrongful act, neglect or default – Sections 3 & 4 of the Act. Under Section 5 the court is empowered to give “such damages as are considered proportional to the injury resulting from the death”. Such damages would be the pecuniary loss suffered by the dependants as a result of the death. The damages for pecuniary loss suffered by Section 3 relatives of the deceased is calculated by ascertaining the extent of their financial dependence on the deceased. The usual formula for calculating the family’s dependency is by deducting from the net earnings of the deceased the sum which the deceased spent exclusively on himself and others apart from his family – Harris v Emperor Motors Limited - 1983 3 ALL ER 531.

Evidence shows that the deceased has three children. The eldest, a daughter is married. I do not know when she got married. I have no clear evidence if she still lives with the plaintiff. In cross-examination she stated that the two sons are working and between the three of them they can run the house so I presume the daughter lives with her husband elsewhere. In plaintiff’s evidence in chief (the written statement) the husband’s personal expenses are worked out as $35.00 per week leaving a balance of $82.00. I see that no provision is made for clothing so I reduce the net loss to the family to a round figure of $80.00 per week. These figures were not challenged in cross-examination.

The next issue is the multiplier. The factors I look at in considering the multiplier are his age 42 years, he was a wage earner, a driver which is a job with some attendant risks. He was also diabetic but how serious it was and for how long he had it I do not know. I am also not told what is the normal retiring age at Suncourt or for other drivers in Fiji. I shall presume it is 55 years. He may well have got a rise in wages over period of time or found a better paying employment in the field of driving. These are contingencies I have to bear in mind plus the fact that one cannot be certain as to how long the deceased would have lived; there are also risks of illness or redundancy. I also have to take into account of the fact that the plaintiff will receive his compensation now rather than earning it in future.

Taking all these factors into account I adopt a multiplier of 10. I have already assessed the net weekly dependency at $80.00 per week. The pre-trial loss would be from 01/06/01 to 01/05/05 i.e 201 weeks is $201 x $80 that is $16,080.00. The post-trial loss (319 weeks) would be 319 x $80 that is $25,520.00.

Interest:

Section 3 of Law Reform (Miscellaneous Provisions) (Death and Interest) Act gives the court discretion to grant “interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and date of the judgment”. I am minded to grant interest at 6 percent per annum from the date of filing of the writ that is from 1st March 2004 but not on future loss.

Fiji National Provident Fund:

I note in her evidence the plaintiff claims loss of FNPF. This is a statutory contribution payable by all employees with an equal contribution by the employer. The deduction is 8% of the gross wages. The plaintiff had not claimed it in her statement of claim but an amendment was allowed.

CALCULATION OF DAMAGES:

(a) Loss of expectation of life .. .. .. $2,500.00

(b) Funeral expenses .. .. .. 1,500.00

(c) Pre-trial loss of earnings .. .. .. 16,080.00

(d) Post trial loss of earnings .. .. .. 25,520.00

(e) Interests on (b) & (c) .. .. .. 2,373.30

(f) Loss of FNPF at 8.88 per week

for 201 weeks (pre-trial time) .. .. .. 1,784.88

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TOTAL = $49,758.18

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The award for loss of expectation of life is a benefit which accrues in favour of the dependants. To avoid duplication of payment of this sum, it must be deducted from the damages awarded under Compensation to Relatives Act – Davies v. Powell Duffryn Associates Collieries Ltd - 1942 AC 601; Medical Superintendent and Attorney-General v. Abdul Hafeez Ismail - ABU 50 of 2000. The effect therefore is the total sum is reduced by $2,500.00.

Accordingly I enter judgment for the plaintiff against the first defendant in the sum of $47,258.18 together with costs which I find in the sum of $2,200.00.

WORKMEN’S COMPENSATION ACT:

The plaintiff had also claimed compensation under the above Act. Mr. Nagin submitted that there was a quarrel between workers here and the provisions of the Act do not cover such situations. Mr. Maharaj submitted that the evidence falls short of a quarrel. There was no evidence that the plaintiff went out to quarrel.

Obviously a workplace is not a boxing ring where workers go to “discuss their private affairs or ventilate their private quarrels in their employer’s time”. If they do this, they would not be acting in the course of employment – South Maitland Railway Proprietary Limited v. James – [1943] HCA 5; 67 CLR 496 at 507. However there would be times when workers do discuss matters relating to work or even argue as to how work is to be done. Arguments can be healthy as they can determine how work is to be done in future or what one can or cannot do. In the present case, the deceased went to find out from the first defendant why he had moved the truck. The truck was given to him to drive so it was his responsibility to keep it safe. It was perfectly legitimate for the deceased to question the first respondent why he had moved the truck. There is no evidence that the deceased in anyway tried to assault the first defendant. It is the first defendant who became aggressive and moved beyond the realms of an argument while the deceased remained passive. The actions of the deceased had not crossed the argument stage. I am of the view that this incident arose out of and in the course of employment and therefore the provisions of Workmen’s Compensation Act apply.

I am further fortified in my conclusion by the case of Weston v. Great Boulder Gold Mines Limited – (1964) 112 CLR 30 where the High Court of Australia dealt with provisions similar to our Workmen’s Compensation Act. There an off duty workman assaulted the employee who was performing his duties in a mine because of some personal grudge which was unconnected to the employment. The Court held that the workman suffered injury by accident which arose in the course of employment.

If is agreed in minutes of Pre-trial Conference that the deceased earned $111.25 per week. Under Section 6 of the Workmen’s Compensation Act the plaintiff is entitled to 208 weeks earning which comes to $23,140.00. Accordingly I enter judgment under the Workmen’s Compensation Act against the second defendant in the sum of $23,140.00 together with costs in the sum of $2,200.00.

For clarification of doubt, if the second defendant pays this sum, then the amount to be recovered from the defendant is to be reduced by this sum.

FINAL ORDERS:

Judgment against the first defendant in the sum of $47,258.18 together with costs in the sum of $2,200.00 and against the second defendant in the sum of $23,140.00 under Workmen’s Compensation Act together with costs in the sum of $2,200.00.

[ Jiten Singh ]
JUDGE

At Suva
8th June 2005