Fong v John Beater Enterprises Pty Ltd [2005] FJHC 211; HBC0482J.2003S (2 September 2005)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0482 OF 2003

Between:

SAMUEL FONG
Plaintiff

- and -

JOHN BEATER ENTERPRISES PTY. LTD.
Defendant

Counsel: Ms. Y. Fatiaki for the Plaintiff
Mr. A. Seru for the Defendant

Date of Hearing: 18th August, 2005
Date of Judgment: 2nd September, 2005

JUDGMENT

On the 7th February, 2003 the plaintiff, a mechanic, was working under a vehicle belonging to the defendant company. The company has seven vehicles and is involved in the business of wholesale liquor distribution.

The truck had been jacked up by the plaintiff. Its two rear left wheels had been removed and work was being carried out by the plaintiff underneath the vehicle. Without warning the vehicle came down causing injury to the upper right leg of the plaintiff. He was taken to hospital and found to have sustained a fracture of the right femur and of the right pubic rami.

The plaintiff says the reason the vehicle came down was that an oil seal on the jack broke, the hydraulic fuel fluid came out quickly, the safety propping to the vehicle was of no avail as the vehicle came down with force and slid where there was no tyre.

In his amended pleadings he alleges that he was the employee of the defendant and that they were negligent in their:

“1. Failure to provide proper stable equipment for the plaintiff to use (instead of timber blocks) to hold the truck safety while the plaintiff was under the 7-ton truck;

2. Failure to provide a safe hydraulic jack at the work site, which resulted in the hydraulic jacks oil lid coming off, causing the hydraulic jack to collapse on the plaintiff and causing him injury; and
   
3. Failure to foresee that any faulty hydraulic jack could lead to injuries of any of its employees;
   
4. Failure to ensure that before any equipment were used on the work site by the employees, the equipment was properly checked by supervisors prior to using it.”
   

The plaintiff also alleges that he was an employee of the defendant company and that they were in breach of their implied terms to:

“(a) Take all reasonable precaution for the safety of the plaintiff while the plaintiff was at his work place;

(b) Not to expose the plaintiff to a risk of damage or injury of which the defendant knew or ought to have known;

(c) To provide and maintain adequate and suitable plant and machinery to enable the work to be carried out in safety;

(d) Take all reasonable measures to ensure that the plaintiff’s place of work was safe;

(e) To provide and maintain a safe and proper system of work.”

The plaintiff says he suffered injuries and fractures to the right femur and right pubic rami. He was an in-patient for 20 days, had a steel rod inserted in his right femur, and now walks with a permanent limp and is unable to do heavy mechanical work or undertake hobbies or sports. After walking and in cold weather, he states the leg is painful and requires deep heat ointments and pain-killers. He has been unable to work since that time and his injuries have affected his marriage and family life.

He therefore makes claim for general damages for pain and suffering, loss of amenities, reduction of earning capacity, loss of F.N.P.F. contribution, loss of interest on F.N.P.F. contribution and loss of future earnings. There are other general claims including special damages, and damages by way of further economic loss or loss of prospective earning capacity.

The defendants in their amended defence state the plaintiff was not an employee of the defendants at the time of the accident. They denied any negligence and said that the accident occurred wholly as a result of the actions of the plaintiff or was contributed to by his negligence.

For the plaintiff, I heard the evidence of Dr. Emosi Taloga, the plaintiff and the plaintiff’s wife. For the defendants I heard the evidence of Norman Low, the Production and Development Manager of the defendant company.

There is no dispute over the evidence of Dr. Taloga and the two medical reports, those of Dr. S. Kulkarni dated 3rd June 2003 and Dr. Taloga dated 16th June 2005.

The reports show that the plaintiff suffered a serious leg injury which required surgery and the insertion of a rod. Complications developed post-operatively and for a few days he suffered possibly life-threatening complications. Since that time he has slowly but gradually improved to the time in June 2005 when he was examined by Dr. Taloga. At that examination Dr. Taloga noted the plaintiff was still complaining of pain over his hip, especially after long walks and in some afternoons. In his opinion, the plaintiff had “recovered well from a major injury with life-threatening complications. The fractures have healed well with normal joint motions to the hip and no neurogical compromise to the limb. There is no permanent incapacity to be noted”.

The plaintiff gave evidence next. He outlined his career history as a mechanic, panel beater and welder. He has many years of experience.

The plaintiff moved to Suva and in April 2002 became a casual labourer for the defendant. In approximately July 2002 he says he was told by the defendant’s manager, Mr. Seth Maharaj, that he could work on a full time basis as a mechanic. He worked 5 ½ days a week, was paid a weekly sum of $100.00 cash and until the date of the accident, apart from public holidays and earned over-time leave, he worked full-time. He says he asked for a contract of employment, but this was declined.

Samuel Fong says his job was to keep the defendant company’s small fleet of vehicles serviced, maintained and on the road. If there were break downs he would go out and see to them.

Mr. Fong states that on 7th February 2003 he arrived at work as normal. He was instructed to repair the centre bolt on a 7-ton truck. To do this he placed a jack under the left hand side of the vehicle and jacked it up. The jack was an old one. There was no other. He states he then put timber in front of the three other sets of wheels both back and front, to prevent the vehicle moving. He says he also put timber underneath the area where he was working as a safety measure should the jack fail. These pieces of timber, he states, and it is not challenged, were “pieces of 4 x 2” and were not specifically made or adapted for the purpose the plaintiff was using them. He states that while he was working underneath the truck it suddenly came down very quickly. It trapped and injured his leg. He could see the reason why this happened. The seal on the hydraulic oil cover had broken and hydraulic oil came out very quickly. He said when the jack broke it (the truck) came down with force and slid where there was no tyre.

The plaintiff then described the pain and the time he spent in hospital followed by the period of recuperation. He says he has been unable to work since and his wife has had to go out and sell vegetables at the market where she earns about $70-80.00 a week. He said the relationship with his wife and children has been damaged as a result of the injury to his leg.

The plaintiff’s wife also gave evidence. She corroborated what he said. She also described the ointments and pain-killers which the defendant uses and how he finds it difficult to walk for long periods, how he has pain in cold weather and difficulty in sleeping.

She also corroborated what he said about her work at the market to sell vegetables. She told the court that they have three children, the oldest of whom is a wheel-chair bound young woman.

There was only one witness for the defendant, Norman Low. He states he did not give the Plaintiff the instructions to repair the truck. However, he said he was present at the scene when the accident happened. The plaintiff has said no one was there.

Mr. Low stated he was crouching down talking to the plaintiff and another employee, Rajendra, was beside Mr. Low. The plaintiff asked for a piece of iron so that he could effect part of the repair. Rajendra, a casual labourer, went to get the piece of iron and returned and inserted it between studs on the outer part of the wheel. Mr. Low said that the defendant shouted push as he could not align the bolt from the inside. Rajendra pushed, the vehicle came off the jack and landed on the plaintiff’s leg. Mr. Low said he had to jump clear and pulled a muscle.

Mr. Low said that there was no bursting of the seal of the jack. He said what was being used was the ordinary jack from the vehicle. It was apparently not a mechanic’s garage jack. He could not remember whether or not there were any planks of wood in place to hold the vehicle should there be any jack failure. He stated the reason the truck did come down was it went sideways off the jack when Rajendra pushed.

Mr. Low could not give any direct evidence upon the employment status of the plaintiff. He did however say that a few months after this accident he had seen the defendant working at a garage in Flagstaff. When he talked to the plaintiff, the latter stated he was doing light duties as a greaser. He could not give any further evidence about the plaintiff’s medical condition nor his life after the accident. He said Seth Maharaj was the plaintiff’s supervisor. Seth left the company three weeks before the hearing date.

There is clearly a conflict of evidence between the plaintiff, Samuel Fong, and the defendant’s witness, Norman Low. This must be resolved at the outset. It was not immediately apparent from the pleadings nor the documents that there was such a conflict. I have, however, observed carefully both the plaintiff and Norman Low in the way in which they gave the evidence and their descriptions of what happened. I must consider that if the plaintiff had properly placed the timbers as he said he had, and as an experienced mechanic would, why was it that the truck was not held up when the jack failed.

I do find that where the evidence of the plaintiff and that of Norman Low differ on material facts I prefer that of Norman Low. I do not think he made up the conversation with the plaintiff just before the accident, nor the presence of Rajendra nor the inserting of the rod and the shout of “push” from the plaintiff. He said the jack being used was the normal one for changing a tyre. It was apparently not for holding up the vehicle whilst someone was underneath. This would be consistent with an accident occurring after the plaintiff wedged the vehicle for a front to back movement and not one from side to side. The effect of Rajendra’s push with the rod would be a side to side movement. The truck was then being held up by its normal jack which, it is likely, would not have been designed to hold the vehicle up while somebody was actually underneath it and also would not be particularly stable against side to side movement.

I also found it impressive that Mr. Low did not seek to say there were no pieces of timber around the truck to hold it in case of failure by the jack. He simply stated he could not remember. It is also pertinent to note that when the defendant was asked about the few moments before the truck came down and just afterwards he said he lost consciousness and was not really able to help.

This in itself does not mean that I reject the entirety of the plaintiff’s evidence. I do find that he realised that to a greater or lesser extent the responsibility for what happened lies with him.

Mr. Low could not help as far as the employment status is concerned. He did not seek to contradict the plaintiff in any way in this regard. He simply said it was not within his general purview. There are no other witnesses from the defendants dealing with this question.

Accordingly I find that the plaintiff was employed by the defendant company and had been so on a full time basis since July 2002. I have no evidence about what the F.N.P.F. and taxation circumstances are. There is no documentation from the company, even that which one would expect for a casual worker. I find that the plaintiff was in receipt of $100.00 per week.

The plaintiff’s job was as permanent mechanic to look after the small fleet of vehicles. I find that he was given instructions that morning by an employee of the defendant company to repair the bolt.

I find that he set about doing the job. There was no garage jack or other kind of jack supplied by the defendant company for use when working under a vehicle. The plaintiff used the vehicle’s own tyre changing jack.

I find the plaintiff did wedge the vehicles wheels with 4 x 2 pieces of timber. This would have precluded movement front to back but not movement to the side. I also found that the plaintiff did, once the vehicle was jacked up, place pieces of 4 x 2 underneath the chassis near where he was working. His description of the pieces of timber used and the way in which he placed them meant that they would provide safety if there was movement front to back or back to front but not to the side.

I do find that Mr. Low was crouching down talking to the plaintiff and Rajendra was by his side. The plaintiff called for a piece of iron, Rajendra obtained it inserted it in the stud and pushed when required to do so by the plaintiff. It was that sideways push, at right angles to the length of the vehicle which took it off the jack and rendered the safety timbers useless. The net result was the truck came down on the plaintiff’s leg and injured him.

I do find that the defendant company was negligent and in breach of the implied terms of its contract with the plaintiff. The plaintiff is an experienced mechanic and could be expected to get on with a job like this on his own and without supervision. However, I find that the plaintiff was not supplied with proper equipment, namely a proper jack for carrying out the kind of work he was required to do on that morning, namely working underneath a jacked-up vehicle. A normal tyre changing jack, which comes as part of a vehicle’s wheel changing kit, is not sufficient for those purposes.

I further find that the company was negligent and in breach of its implied terms in that it did not supply the defendant with sufficient or adequate equipment for securing a vehicle from dropping should there be catastrophic failure or movement of the jack.

I do find the plaintiff was contributorily negligent in that he failed to place the safety timbers underneath the vehicle in such a way that a dropping of the vehicle would be stopped whether or not it was a front to back or a side to side movement. I do accept the defendant would be in some difficulties in that he did not have the requisite equipment, had been instructed to get on with the job and was willing to do so yet did not have sufficient safety gear. Nevertheless, having gone ahead and started the job he then gave a direction which brought about the sideways movement of the truck which resulted in it coming off the jack and also rendering the timber useless in preventing the drop of the truck.

I accept that the plaintiff was on a low wage, that he had asked for a written contract of employment and had been refused. Further, I appreciate that it is very difficult for mechanics in his position to make protests about the lack of proper equipment when the reality is he might lose his job and another person take it over.

It must be acknowledged however, that had the defendant had a proper jack which did not allow lateral movement then this accident would not have happened. Further, had there been proper supporting gear for the truck then, even had there been a problem with the jack or a sudden sideways movement, the truck would have come down no more than a minimal distance.

It is not possible to assess with mathematical accuracy the apportionment of responsibility for this accident. I find that the defendants are liable in negligence and breach of the employment contract for this accident but that the plaintiff himself was one third contributorily negligent.

I now turn to the question of damages. There is no dispute over the medical reports and I accept the evidence of Dr. Taloga. I also accept the evidence of the plaintiff’s wife. I find that there was much pain at the time and since and that recovery has taken a long time. However, Dr. Taloga finds that there is “no permanent incapacity to be noted”. I accept the plaintiff’s evidence and that of his wife when they say he finds it difficult after he has walked for a long time and in cold weather. However, the reality is that this injury does not preclude the plaintiff from resuming his work as a mechanic, panel beater and welder. I accept the evidence Mr. Low when he states that he did see the plaintiff working at a service station in the Flagstaff area.

It should be noted that the defendant was left with a 26cm scar down the outer aspect of his upper right leg. This can be seen in the photographs at Tab 6 in the bundle of documents. The plaintiff has claimed for loss of wages and F.N.P.F. contribution from 10th February 2003 to 24th October 2003. I find this reasonable.

Counsel for the plaintiff has suggested a total general damages figure of $55,000.00 upon a basis of a 100% liability. Counsel for the defendant very reasonably and properly accepted that this figure would be approximately right.

Whilst it might be a little on the high side I am willing to accept the parties agreement that figure is the correct one for general damages.

In these circumstances, I therefore award as general damages the sum of $36,666.00 by way of general damages. I award the sum of $3,600.00 in respect of lost wages between the date of the accident and the 24th of October 2003. I have no particular dates when the plaintiff worked for the service station in Flagstaff nor what he was paid. In those circumstances, I am not able to reduce the special damages in respect of those wages.

In closing address the plaintiff’s counsel did not appear to rely upon the provisions of the Health and Safety Act 1966 or the Factories Act 1978 Cap. 99. She considered that, apart from loss of earnings, there was no proof of any of the other special damages pleaded. However, having found that there is a loss of wages, necessarily there will be a loss of employers F.N.P.F. contribution and that must be taken into account.

I therefore award the plaintiff the following:

Special Damages

36 weeks (7.2.05 to 24.10.03) at $100 per week = $3,600.00

Loss of F.N.P.F. Contributions 36 weeks x $16 per week = 576.00

Interest on F.N.P.F. Contribution at 8% = 46.08

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Total = $4,222.08

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General Damages = $36,666.00

I award interest at 8% on the special damages from 24th October 2003 and interest at the rate of 8% from the date of this judgment in respect of the general damages, until payment.

Plaintiff’s counsel in closing address suggested a fixed assessed cost of $2,000.00. I have considered all the circumstances of this case and find that is a realistic figure for assessed costs and I so award.

(R.J. Coventry)
JUDGE