Buinimasi v Food Processors (Fiji) Ltd [2005] FJHC 232; HBC0522J.2003S (17 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0522 OF 2003

Between:

SEFANAIA BUINIMASI
Plaintiff

- and -

FOOD PROCESSORS (FIJI) LTD.
Defendant

Counsel: Ms. Y. Fatiaki & Mr. D. Sharma for the Plaintiff
Ms. S. Devan for the Defendant

Dates of Hearing: 8th and 9th August, 2005
Date of Judgment: 17th August, 2005

JUDGMENT

In 2001 the Plaintiff Sefanaia Buinimasi started work as a maintenance worker with the defendant company Food Processors (Fiji) Limited.

On the 13th May, 2002 the plaintiff was operating a grinding machine to cut down some metal shutters when the blade of the machine broke, a piece flew off and hit him on the left side of his neck and upper chest. He suffered injury and was taken to the Colonial War Memorial Hospital where he was treated. He spent sometime as in-patient and then sometime off work sick at home. He has made a full recovery from his injuries save for a scar to his lower neck and upper chest.

The plaintiff brings his claim in negligence against the defendant company. For various reasons the plaintiff’s counsel limited the case to negligence by the defendant and the amount of general damages and costs, if successful.

There is no dispute on the evidence that the machine should not have been used for doing the job the plaintiff was carrying out. The plaintiff alleges that the defendants were negligent in:

(a) failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged in the work,

(b) exposing the Plaintiff to a risk of damage or injury which they knew or ought to have known,

(c) failing to select proper or competent persons to supervise and provide safety helmet faceguards to the Plaintiff,

(d) failing to provide and maintain a safe place which the Plaintiff carried out to set work,

(e) failing to take any or adequate or necessary measures whether by way of regular inspection testing, examination or otherwise to ascertain whether it was safe for the plaintiff to use the grinding machine, and

(f) failing to provide gas cutting equipment to cut welding bolts.

The plaintiff also relied on the principle of “res ipsa loquitur”.

The defendants denied any negligence and particularly denied the specified allegations of negligence. They also alleged the plaintiff was contributorily negligent in that he failed to use the safety guard, he failed to ensure he was equipped with proper safety gear and failed to show any care for his own safety.

At paragraph 4 of the Statement of Claim it is pleaded that it was an implied term of the plaintiff’s contract of employment that the defendants would provide a safe place and system of work. This was not pursued at the hearing itself. The pleadings for both the plaintiff and the defendants were not as precisely in accordance with the evidence as they might have been. There is sufficient for me to proceed.

I have the evidence of the plaintiff and, in support, the evidence of Dr. Emosi Taloga and a number of medical reports. The Defence called Mr. Don Prasad, the defendant’s Production and Development Manager, and Tevita Loa an employee of the defendants who was working with the plaintiff at the time of the accident. Both parties supplied to the Court bundles of documents upon which they sought to rely.

The plaintiff stated in evidence that the “task given by the Supervisor was to grind the door”. He said his Supervisor was Don Prasad. He continued “the Supervisor gave me the instructions. He gave me gloves and glasses (to cover the eyes). The Supervisor gave me the grinding machine. There was other equipment there. There was also a circular saw. There was a better machine, a gas cutter. The instruction of the Supervisor was to repair the door quickly. I used the grinding machine on his instructions. Gas cylinder was empty at the time. No other equipment to assist me.”

He said he stood up to do the job and the point he was cutting was above his head level. He was holding the machine up. He continued “when I was cutting the metal, the blade of the machine got broken and flew off and hit my left neck”. He added “I thought everything was o.k. with the machine. The Supervisor told me to do it quickly.”

He described how he was hit on the left neck, he pressed his hand over the bleeding wound and went out and was taken to the hospital. The plaintiff showed the full extent of the scar to the Court and there is a photograph at Tab 8 of the plaintiff’s bundle. The photograph gives a reasonable representation of the scar, although on looking in Court it seems to be slightly less pronounced than in the photograph.

There are three medical reports: Dr. I.R. Afolabi dated 16.10.2002, Mr. Eddie McCaig dated 26.10.2004 and Dr. Taloga dated 21.7.2005. There was no real challenge to the contents or opinions expressed in those reports.

In summary the plaintiff suffered a deep laceration extending from the left side of the neck to the left supraclavicular fossa. There was a brief loss of consciousness. The carotid artery and brachial plexus were intact at exploration. The plaintiff recovered well post-operatively. He had been operated on the same day for the wound to be explored, debrided (cleared of the matter which should not be left in the wound) and sutured. He recovered well. By September 2002 despite some complaints of problems Dr. Afolabi found that muscle power, tone and reflexes in all the limbs were within normal limits. He was given a light duty certificate on 13th September, 2002 and was being followed up in the out-patient department.

Mr. McCaig saw the Plaintiff on 22nd September 2004. After reviewing the history he states “the scar with the loss of the clavicular head of the sternocleodomastoid muscle is unsightly. The injury ... was extensive and potentially fatal. He can be considered very lucky to have escaped a more significant disability. I find no pathology on today’s examination and prior investigations to account for the ongoing symptoms of the headache, dripping nose and red eye. The muscle injury to his neck is unslightly and will limit neck strength. He would be advised (not) to return to play any form of contact sport. ... I would estimate a temporary impairment of about six months and a 10% permanent disability”. No further treatment was advised for the neck wound.

By July 2005 Dr. Taloga was able to say that “Mr. Buinimasi did complain of a lot of symptoms which could not be substantiated by any objective findings. In my opinion there is no residual incapacity resulting from his injury.” He measured the scar as 13 centimetres long and 1 centimetre wide.

It therefore appears that in the short and middle terms there were difficulties. These have cleared up over time leaving only the scar.

The defendant called Don Prasad, the Production and Development Manager. He stated he was not the supervisor for the maintenance department. He said that the first he knew of the accident on the morning of Monday 13th of May, 2002 was shortly after it had happened. He was not aware of what the plaintiff was doing before that time. He denied giving any instructions to the plaintiff to carry out this work or to use any machine. When he arrived at 7.30 that morning he had seen the plaintiff and other boys carrying out debris from a building. He just went to his office and was there till he was notified of the accident. He saw blood running down the neck of the plaintiff and instructed that he be taken to the hospital.

He said he carried out an investigation immediately afterwards. He said the plaintiff had used the wrong tool to carry out the job. He should have used a gas torch cutter. He said he did not know on whose, if anyone’s, instruction the plaintiff did that.

He further stated that a week before the preceding Friday instructions had been given by the General Manager to remove two metal roller shutters to admit more light to a building. On Friday 10th May a maintenance worker called Salesh, the plaintiff and possibly one or two others had removed the first of the two shutters. Salesh had done the cutting and used gas cutting equipment. He could not say in what way the plaintiff had assisted.

Don Prasad gave a résumé of the position as far as Supervisors in the Maintenance Section of the defendant’s company was concerned. He said that a few weeks before this incident Ken Robinson, the Maintenance Section Supervisor, had left the Company. No person had been specifically appointed Supervisor in his stead. There were then only two workers in that Section, namely Salesh and the plaintiff. As Salesh was the more senior of the two “it just happened that he became the Supervisor”.

On the morning of Monday 13th May Salesh was off sick. Thus the plaintiff, on Don Prasad’s evidence, was at work without any immediate supervisor.

Tevita Loa is a delivery man. He stated he had finished his own work early on that Monday and started helping the plaintiff at approximately 8.00 a.m. The plaintiff had asked him to help remove the door and put it on the floor. He said he himself used the machine at one stage as the plaintiff told him to. He said over the two hours they tried different ways to do the job. He did not know where the plaintiff got the machine from. The plaintiff was wearing gloves and goggles. He could not say why the plaintiff did not use gas cutting equipment. He said they did not meet Don Prasad at anytime that morning. He said he did not actually see the plaintiff at the moment of injury as he was on a ledge just above the shutter. He was injured between ten to eleven and eleven o’clock.

Tevita Loa continued that he saw the machine afterwards and it was broken in two pieces. He said the machine was not right for cutting metal, it was for smoothing metal. He thought the metal being cut was harder than the metal on the machine.

There is little dispute upon most of the pertinent facts. However, there are some important factual issues which must be resolved. In particular, I must decide what if any instructions were given to the plaintiff by Prasad on the morning of 13th May.

I have considered carefully the evidence of all the witnesses. There is no dispute about the evidence of Dr. Taloga and I accept it in full.

I have carefully assessed the evidence of the plaintiff and Don Prasad. Recollections are always difficult after some 3 years. Further, it is not always easy to recollect events which occur immediately before receiving a serious and traumatic injury. I find that where the evidence of Don Prasad and the plaintiff differ on material matters I prefer that of Don Prasad. I also accept the evidence of Tevita Loa.

I find that instructions were given for these two aluminium shutter doors to be removed. It is clear that on Friday 10th of May Salesh, assisted by the plaintiff and maybe one or two others, did remove the first of the two doors. Salesh used gas cutting equipment.

Salesh was not at work on Monday 13th of May. The plaintiff was at work. He must have known from the Friday that the instructions were for both doors to be removed. It was therefore natural and reasonable that he considered, on that Monday morning, that his instructions were to continue with Friday’s work and remove the second door. I do not find that he was given instructions by anybody in a superior position to use the grinding machine for that purpose.

I do find that the grinding machine was entirely the wrong type of tool to use for that job. It was not designed for that purpose. In any event, it was a light machine and the metal cutting required was of the type requiring specific cutting equipment.

I cannot make any finding as to whether there was gas cutting equipment and gas available on the Monday morning. The plaintiff said no gas had been available for a week. I find this is not correct in that gas cutting equipment had been used on that Friday. There is no evidence that the plaintiff went out looking or asking for such equipment before he started on the job.

There is no evidence to suggest it was other than the plaintiff’s decision to use the grinding machine. Tevita Loa in evidence stated that he would not have used such a machine although he did do so on that morning as the plaintiff told him to. It is clear that Loa’s knowledge, training and general level of intelligence is about the same if not slightly less than that of the plaintiff.

I do take into account the fact that often jobs are carried out with the wrong or inadequate tools and nothing amiss occurs. It is easy to be wise after the event. However, the evidence is that the plaintiff must have seen Salesh using gas cutting equipment for the same job on the preceding Friday. He went ahead of his own volition on the Monday using a machine which at best could be regarded as risky for the job concerned.

The defendants argued that it must have been clear to the plaintiff that this was entirely the wrong kind of machine to use and that it would be dangerous to do so. The plaintiff’s counsel’s responded that this is not obviously so, especially for a worker of the plaintiff’s level of knowledge and experience and this was known to the defendant.

In the few weeks from the departure of Ken Robinson no other person had been appointed to supervise Salesh and the plaintiff. It “just happened” that Salesh became the plaintiff’s supervisor. Salesh, on the Friday, had either been instructed or realised that gas cutting equipment should be used. It must be accepted that the plaintiff’s knowledge and experience of this kind of job and the equipment required was not as great as that of Salesh. He came to the Company as a carpenter and moved across to maintenance work.

The noise of the use of the grinding machine must have been considerable. It is not known how much general noise there is at this work-site and how much noise gas cutting equipment would have made. However, for between two and three hours the plaintiff was unsupervised and trying to carry out a job with no supervision and no oversight or periodic checking by anyone in a position of authority.

I find that the plaintiff did arrive at work on that Monday morning. He naturally and reasonably decided to continue with the work which had not been completed on the Friday. That work was the removal of the second shutter. He decided to use the grinding machine. He regarded his instructions as to continue to remove the second shutter. He did not seek gas or other cutting equipment. He was not instructed to use the grinding machine. He knew it was a grinding machine used for cleaning metal and was not meant for cutting metal. It was put to him in cross-examination : “The machine was for cleaning metal, not cutting metal. Answer : yes”. He used it “because there was no other machine to replace that grinding machine ... Prasad told me to use the machine ... There was no gas”. I have already found that Prasad did not order him to that machine.

Whilst the plaintiff accepts that the machine he used was not a cutting machine, I do accept that he did not believe for a moment that its use would have the catastrophic results that occurred or that he thought there was a real risk of that happening. Nevertheless he knew it was the wrong kind of machine and went ahead and used it.

The question of safety gear is not relevant. It is highly unlikely the gloves or goggles would provide protection against the piece of flying metal. There is no evidence of the presence of any gear that would. The issue is not the use of the correct machine and injury from lack of safety gear. It was the use of the wrong machine.

The blade did not break immediately. Tevita Loa used the machine for sometime. The plaintiff used it for some period of time before the blade broke and a piece flew off and hit him. Whilst it is not possible on the evidence to specify exact times, it would appear that between 8.00 and 10 o’clock the plaintiff and Tevita were working on this job, that for some of that time towards 10 o’clock they were using that machine and that between 10 and 11 o’clock approximately they were using the machine to try cut the metal to remove the shutter. For the whole of that period the plaintiff was without supervision or instruction. It is clear that had there been proper supervision or instruction then he would have immediately been told to stop using the grinding machine.

This accident did not occur the moment the machine was used. It was known by those in authority that the job had not been finished on the Friday. It must have been known that Salesh was not coming into work by 8-8.30 a.m. The plaintiff and Tevita were working unsupervised and uninstructed for a considerable period of time upon a job which required the use of particular equipment and persons knowledgeable in the use of that equipment for the kind of job concerned. I accept that any employer and supervisor can expect persons to get on with a job within their capacity without being supervised and instructed every moment of the working day. Further, that they will take reasonable care to look after their own safety. Also that an employee might use the wrong equipment for a job before a supervisor is aware. However, given the circumstances of this case I find that the defendants were negligent in their failure over the course of that morning to supervise and instruct the plaintiff.

The plaintiff himself must accept a substantial measure of responsibility for utilising a machine which on his own admission he was aware was not the right one for the task he was trying to do.

This kind of apportionment is difficult to do with mathematical accuracy. In all the circumstances I find that the responsibility for this accident can be attributed in equal measure to the plaintiff and to the defendant. I find the defendants are liable for a failure to supervise and instruct the plaintiff and that the plaintiff was contributorily negligent in undertaking a task with what he knew to be the wrong kind of machine.

I now turn to the question of general damages. This is, save for costs, the only remaining matter which I must determine. I have set out above the medical reports and opinions.

There are few cases in Fiji to give guidance in setting a figure for general damages. I take into account the fact of the initial injury and its shock and pain. I look through the period when he was in pain as an inpatient and than recuperating as an outpatient. It would appear that within a few months most of the pain and incapacity had cleared up. By the time of Mr. McCaig’s report in October 2004 there was some residual problems which were clearing up and a temporary impairment of 10% disability. By July 2005 all that had cleared up save for the scar.

Counsel for the plaintiff has supplied a number of authorities. I have specifically looked at case 283 of 1996 Apemeleki Kava and Jiko Fisheries Limited. In that case, as a result of a fishing accident, the plaintiff lost an eye and was left with an unsightly scar on his eye-brow. An award of $50,000.00 was made for general damages. In this particular case counsel for the plaintiff suggest, on a full liability basis, that $30,000.00 is the correct figure. It must be noted that Apemeleki Kava case was some 9 years ago. Counsel for the defendant states that the figure is too high.

The Apemeleki award is based on the fact that an eye was lost and there was an unsightly scar. In this case there is no permanent disability. The scar itself is not visible or only just visible when an ordinary loose-neck shirt with collar is being worn.

In all these circumstances I fix general damages at $20.000.00. I have found there is fifty percent contributory negligence and accordingly give judgment for the plaintiff for $10,000.00.

I will hear the parties on costs.

(R.J. Coventry)
JUDGE