Singh v Lautoka General Transport Company Ltd [2005] FJHC 285; HBC0387.1995 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0387 OF 1995

BETWEEN:

SUBHAG WATI SINGH
daughter of Ram Asre of Namosau, Ba. Domestic Duties,
as the Administratrix of the Estate of ROBERT RAJENDRA SINGH
also known as ROPATE SOKIA father’s name Jang Bahadur late of Ba, Conductor, Deceased.
PLAINTIFF

AND:

LAUTOKA GENERAL TRANSPORT COMPANY LIMITED
a limited liability company having its registered office at Bouwalu Street, Lautoka.
DEFENDANT

Mr A. K Narayan and Ms A. Watkins for the Plaintiff
Mr V. Mishra and Ms M Muir for the Defendant

Date of Hearing: 29 September 2005
Date of Judgment: 4 November 2005

INTERIM JUDGMENT OF FINNIGAN J

This is an Action brought by a widow against her late husband’s employer after the husband’s death from a heart attack.

The claim is first in negligence, alleging eight breaches of a common law duty of care by the employer to the deceased. In the alternative the action seeks compensation under the Workmen’s Compensation Act Cap 94 in the sum of $12,000.00.

The action is brought for the benefit of the estate of the deceased under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 and for the benefit of the Dependants of the deceased under the Compensation to Relatives Act Cap 29.

This is a case where the fatal heart attack occurred at home. It is one of those cases where the Plaintiff must establish that the death by myocardial infarction was either or both of (a) caused by the negligence or other breach of duty of the employer and/or (b) was, or was caused by, an “accident arising out of and in the course of the employment” (S. 5 of Cap 94). The deceased had been employed by the Defendant as a bus driver.

The Facts and the Rule in Browne –v- Dunn

The pivotal claim that the deceased was employed by the Defendant in the time leading up to his death was categorically denied by the Defendant’s witness, its Managing Director. This denial by the Defendant was unheralded in either its pleadings or in cross-examination by its Counsel of the witnesses for the Plaintiff. Neither had it been stated in a Workmen’s Compensation Act form reporting the death which the Defendant as employer had supplied to the Labour Ministry six months after the death, which a Plaintiff’s witness had produced. Taken by surprise, Counsel for the Plaintiff urged the Court to reject this and other parts of the defence pursuant to the rule in Browne –v- Dunn (1894) 6 R 67 (HL). That is a Rule of Practice whereby Counsel are generally bound to put to an opponent’s witness in cross-examination the nature of the case upon which Counsel proposes to rely in contradiction of the evidence of that witness. This need can be avoided if notice has been given in another way but generally it is important for the Court to hear the comments of a witness upon evidence which is said to contradict his.

The amended statement of defence is largely a simple denial of the claims in the amended statement of claim together with an affirmative plea that the “death did not occur in the course of his employment with the Defendant ....” (para 3). This falls well short of denying the crucial claim. Nonetheless Counsel for the Defendant could have remedied the failure to plead that there had actually been no causative employment at any relevant time by putting that claim to the Plaintiff and the witnesses for the Plaintiff but this was not done.

This gives the Defendant’s claim, when finally it was made, much reduced probative power and the appearance of something lately thought up.

There was however an unusual circumstance in this case. It was set down for trial on 29 and 30 August 2005. There was no trial because I was ill. I became available on 1 September 2005 but on that day Counsel intending to represent the Defendant could not attend to hear and cross-examine the Plaintiff’s witnesses. Less experienced Counsel stepped in and undertook that task in order to enable the hearing to proceed. The action was by then more than ten years old. I do not know whether the replacement Counsel was aware that the Defendant’s witness would make that claim. I am unwilling to take a harsh view of Counsel’s failure to put the defence to the Plaintiff’s witnesses.

The Plaintiff’s evidence on this claim could not be obtained. By the time the defence was revealed, on the second day of the hearing on 29 September 2005 she had completed her evidence and returned to Australia where she lives.

She had identified a person at the Court as being the Defendant driver (Ashwin) who had collected her husband and taken him to work after his heart attack, a few days before he died. On the second day Ashwin gave evidence and denied this. Not even his intended denial was put to the Plaintiff.

Significantly, the Defendant’s case was conducted on the second day by its intended Counsel who was familiar with its defence. The Plaintiff’s witnesses resumed giving evidence, in particular a witness for the Labour Officer who had investigated and commenced a workmen’s compensation claim. He produced a Workmen’s Compensation Act form reporting the death of the deceased supplied by the Defendant which stated that four times that the deceased had died at home, but nowhere denied the employment. Also giving evidence was Dr. Bakani a cardiologist who based his entire opinion on the assumed fact that the deceased has been working for the Defendant after his heart attack until the day before he died. To neither of these was the Defendant’s denial put. The Labour Officer in particular may have had documentary evidence in his file to prove or disprove the denial. I shall later refer to that.

Further to this it transpired when the Defendant’s Managing Director Mr Pyara Singh began to give his evidence he commenced by testifying that he had been in the USA from 26 December 1992 until 3 February 1993. The Plaintiff’s son had earlier given evidence that on 15 January 1993 upon his father’s discharge from Lautoka Hospital he went with his father to the Defendant’s yard and there they showed the “sick sheet”(Exhibit P. 7 and/or P. 8) to “the boss Mr Pyara Singh who read it gave it back and said that after the review the deceased should come back to work”. It had not been put to this witness that Mr Singh would say he was not in Fiji at the time.

All of this brings the Defendant’s denial within the rule in Browne –v- Dunn, but I prefer rather to assess the evidence by the credibility of the individual witnesses. So it will all be taken into account.

The Facts

The deceased was employed as a bus driver by the Defendant throughout 1992 and earlier. On 11 January 1993 he had a heart attack and his doctor admitted him to Lautoka Hospital.

An ECG showed inferior myocardial infarction, which is a heart attack, due to right coronary artery disease or blockage. He improved and was discharged on 15 January 1993, to be reviewed on 22 February.

For a week he rested at home and then one day the employer’s driver Ashwin was heard calling from the road. Ashwin was in a bus and called the deceased to come and drive. The Plaintiff said Ashwin called that “the boss wants you back otherwise you will be working for someone else.” She said her husband called out that he was sick. Eventually her husband went out and then came back and said he had no option, he had to work. He said he would rather go back or he would be out of a job. This occurred on 23 January 1993.

She said she sent her son with them and her husband and the son dropped Ashwin home. She gave evidence that her husband worked for a week after that and she described what happened when he got up to go to work on 30 January.

Her son Ronil gave evidence that on 15 January 1993 when his father had been discharged from Lautoka Hospital he had taken him to the employer’s yard where “the boss Mr Pyara Singh” read the hospital “sick sheet” and said that he should return to work after the medical review which the certificate(s) (Sick Sheet) showed would be on 22 February.

He said that the following Friday evening he was at home when he heard Ashwin yell for his father and they went outside. He said Ashwin told them that the boss had sent the bus for his father to go back to work as soon as possible or he would look for another driver. He said his father came in and said he was going to drop off Ashwin. He said he went with his father because his father was on sick leave and not felling well. He said his father worked thereafter each day and about 6.30am on 30 January 1993 he had an episode at home during which he fell down and was taken to Lautoka Hospital where he was dead on arrival.

Before deciding the employment issue it is desirable to make findings as to the cause of the death. The medical evidence is that of Dr. I.R Bakani a Consultant Physician and Cardiologist who prepared a report and gave evidence. His report was prepared on 15 December 2003, 10 years after the death on the basis of the death certificate and on the basis that the deceased had been required to resume work on 23 January 1993 ( to which I shall return shortly) which was eight days after his discharge from hospital. Both in his report and in Court Dr. Bakani gave strong and unchallenged evidence about standard cardiological practice that acute heart attack patients with or without complications are carefully followed up at home or in a hospital clinic between 4 and 6 weeks before they are allowed to resume normal activities or return to employment. The Plaintiff had produced two certificates (Exhibits P. 7 & P. 8) which were not challenged and which on their face appear to show that the deceased was discharged on 15 January 1993 after myocardial infarction, “and being unfit for work is being treated, as .....(b) A Hospital In-patient Date for review 22/2/93”. This is Exhibit P. 7, Exhibit P 8 said “Condition on Discharge satisfactory, home on above medication clinic 1/12”. With that background Dr. Bakani stated in his report (Exhibit P12) which he read into his evidence:

The cause of sudden death was due to a fatal cardiac event on 30/01/93 provoked by work stress either physical, emotional or could be both. He had not recovered sufficiently well to resume work and at that time the heart could not even cope with the usual and normal stress of ordinary activities. Leave alone the work stress. He should have been given more time to recover before resuming work.

It is my view therefore that the sudden cardiac death he had on 30/01/93 was work related.

In his evidence he said it was immaterial where the deceased had died, his opinion remained the same if the deceased had died at home. He said this is because acute fatal cardiac arrest is very common at any time after the event of a heart attack. He said that such patients globally are not allowed to fly out of their home country or travel anywhere by air within the period of 4 to 6 weeks after a heart attack and they should not go back to work. He said this is the general irreversible guideline on the management of heart attack patients. His evidence as I understand and summarise it is that this patient could have died from acute fatal cardiac arrest at any time in the 4 to 6 week period following his initial heart attack, but the fact that he returned to work 8 days after his heart attack and then did his normal work days until his sudden death early in the morning of 30 January 1993 contrary to the universal management guidelines raised not just a probability but a virtual certainty that what he did while at work as a bus driver triggered the fatal cardiac arrest which caused his death. That is his opinion.

I accept his opinion and make it my finding. I do this because the witness qualified himself as a specialist of over 50 years’ experience in medical practice, a specialist physician and cardiologist whose opinion was not rigidly set in concrete but was open to discussion with Counsel and the Court during cross-examination, which opinion was however not varied or even dented during the course of his evidence.

That finding was not altered in any way by the evidence of Dr. Jay Narayan a Consultant Physician at Lautoka Hospital who gave evidence for the Defendant from the hospital file of the deceased. Indeed it was given some support. One Dr. J. Nasaroa writing on behalf of the Medical Superintendent of Lautoka Hospital wrote as his opinion (Exhibit P 11) “......his work was probably responsible for his early demise”.

That finding now renders crucial the evidence about whether the deceased returned to work between 23 January and 30 January 1993. If he did, my findings above about the cause of death must result in a finding that his fatal heart attack arose out of and in the course of his employment between those dates. If he was not employed between those dates, then I must go further back to the time before his 11 January heart attack. His employment in 1992 was admitted in evidence and I would be bound by the pleadings to explore the evidence to see if there is a connection between the final heart attack, the first heart attack and the employment up to the time of the first heart attack.

In all of this the claims of negligent breach of duty must also be borne in mind and either found proved or dismissed.

The Evidence for the Defendant

Mr Singh identified his signature on Exhibit P 10 which was the form sent to the Labour Officer as required after the death of an employee. He said he sent this because he was required to by the Labour officer. He wrote on the form that the death had occurred at home. He stated the earnings of the deceased which, allowing for a simple mistake, amounted to $70 per week as the Plaintiff had said they were. He then gave evidence that he himself had been absent in January, as above. He said that the deceased has worked for the Defendant for two years before his death and he had known the deceased for over ten years and other members of his family as well. He denied all the evidence of the Plaintiff and her son and asserted that the deceased had not been working for his company in 1993.

When asked about the employment file of the deceased he replied that the Defendant keeps these files for three years. When asked if he had the file he replied that the Defendant may or may not have it. A person whom he named had looked for it but could not find it.

This evidence needs to be compared with the pleadings which show that the action was commenced in 1995 and that the Defendant acknowledged service on 12 December 1995, both within two years of the pleaded course of action. The witness was not asked about this. Neither was he asked why he did not claim in the form he completed for the Labour officer, Exhibit P. 10, that the deceased had not been employed.

The way this evidence came out is a little unfortunate because the Plaintiff had called as a witness Paul Hanfield (?) who is Technical officer with the Ministry of Labour and deals with workmen’s compensation cases. He was not the Labour Officer who had dealt with Mr Singh but he had the office file with him in Court. He had given evidence that a claim had been made to the employer and that the employer was unwilling to pay so the Ministry of Labour took the employer to Court. He said the claim had been withdrawn because the widow had opted for the present common law proceeding. It seems to me a reasonable deduction that the Labour officer in commencing workmen’s compensation proceedings in the Magistrate’s Court had some evidence that at the time of death the deceased had been a workman employed by the intended Defendant. While Mr Singh claimed not to be able to find his records although he has been on notice of this claim since in fact July 1993 (the date of Exhibit P. 10) the Labour officer might well have had in his file some of those records and/or copies of them. Surely the whole issue would have been settled by production of the employer’s wages records.

Proceeding with his evidence, Mr Singh stated that he normally organized the rosters for the employees but that during his absence that was done by somebody else. He was not asked who drew up the rosters for January 1993. He did however say that his brother ran the company while he was away. He was unable to say whether his brother had received the sick sheet from the deceased and he did not know whether his brother had sent Ashwin to collect the deceased. He said he knew nothing about the claims of what Ashwin had said (which had been an ultimatum) to the deceased at that time. He did say that Ashwin would have been fired if he had done what the Plaintiff and her son claimed he did.

No questions were asked about why Mr Singh’s brother was not called to give evidence. Clearly on his own claim that he was absent from December 1992 until February 1993, and if he is believed in his claim that the Defendant has no records from which to affirm or deny whether the deceased was employed in January 1993, one wonders why he was called to give evidence at all.

I assessed him while he was giving his evidence and at the conclusion of his evidence took the opportunity of asking some questions myself to elucidate the meaning of claims he had made about the route that had been driven by the deceased when employed, about the occurrence of a hurricane in January 1993 and about how the drivers were deployed following the destruction of the Ba bridge during that hurricane. He said the hurricane and the breaking of the Ba bridge had been on 1 January 1993. I also asked the witness what was the cause of termination of employment of the deceased. He replied that the deceased had not reported for duty. He said his bus came back after three or four days, presumably after the bridge had been repaired or replaced, and the deceased did not report for work. This answer seems to indicate that the witness considered the deceased to be an employee in January 1993 until the time he did not report for work three or four days after the hurricane. When I asked how he knew that the employment had been terminated after return of the bus but not of the deceased he replied that his brother should come and give that evidence. I did agree with him and said so. He told the Court that his younger brother Malkit Singh had been at the Court but had gone back to work on the instructions of the Defendant’s lawyers.

He replied to my question about the failure to keep employment records that the Defendant had thought they may not be needed. He told me that the Labour Officer had checked the employment records of the deceased in August 1993 after the Defendant had filled out the workmen’s compensation form. It seemed to me that if he was in America, he himself could have known what he claimed in evidence only from either the records or his brother.

Neither Counsel had any questions arising from mine. That concluded the evidence of Mr Singh and by that time I had concluded he was an unreliable witness. From his demeanour while answering questions from Counsel and the Court and from the inherent contradictions in his answers and from the fact that he himself suggested his brother knew the facts which he did not I am inclined to discount the whole of his evidence. Not only did his demeanour and his replies merit that judgment. In addition, the fact that his claims were raised in September 2005 for the first time after the Defendant’s lawyers pleaded a defence without these claims weighed heavily against credibility.

The claimed failure of the Defendant to keep employment records although it was on notice, together with the complete failure of both Counsel for the Defendants to give any notice in advance of the evidence leads me to the firm conclusion that this claimed defence is without substance. I discount the evidence of Mr Singh. I regard Ashwin as an employee who was following instructions and his demeanour while giving evidence about the Plaintiff’s claims of his involvement left me without confidence in his answers about that. On that point I did not believe him either. That aside, there was a clear opportunity after the Plaintiff had identified him as a person at the Court waiting outside the Court room to put his intended denials to the Plaintiff and to her son because they must surely (if they were intended) have been known to Counsel. It was not done and that also weighs against his credibility.

Factual Conclusion and Liability

For these reasons I find the only credible evidence is that adduced by the Plaintiff and the evidence of Dr. Narayan for the Defendant. Dr. Narayan merely confirmed the basic details of the latter-day medical history of the deceased. On the evidence of the Plaintiff, her son, Mr Handfield (?) and Dr. Bakani I do not doubt that the deceased was required by the employer to resume employment under threat of losing his job and did so after the hospital certificate had been shown to somebody on behalf of the employer upon discharge of the deceased on 15 January 1993. I am satisfied that the employer was or should have been aware that the deceased was certified by the hospital for review on 22 February 1993 and that meanwhile he was certified as being unfit for work. I am satisfied that he worked as directed for the Defendant from 23 January 1993 until 29 January 1993. I am satisfied that the work he did was a causative trigger factor in the onset of the heart attack early in the morning of 30 January 1993 that caused his death.

It is clear from these findings (and from the authorities which I shall set out) that the claim for compensation under the Workmen’s Compensation Act Cap 94 is made out. The question I must now decide is whether the Plaintiff has made out any of the claims of negligence by the Defendant which are pleaded in her Statement of Claim. The plea (at para. 3 of the Statement of Claim) is that the Defendant as an employer owed a common law duty to its employees to exercise reasonable care and skill for the safety of such employees and/or to guard against danger of injury which reasonable employers ought to have foreseen. The Statement of Claim itemizes eight particulars of that claim. The first I discount. The other seven are as follows:

(b) The Defendant knew or ought to have known that the deceased was admitted to the Lautoka Hospital for treatment and was later discharged on the 15^th day of January 1993;
(c) The Defendant knew or ought to have known that the deceased was on a sick leave and was advised by the doctors to rest at home;
(d) The Defendant knew or ought to have known that the deceased was unfit to attend to work, unless the deceased’s doctor had allowed that he was fit to attend to work
(e) Despite this knowledge the Defendant on the 23^rd day of January 1993 through his another servant or agent sent a bus to the deceased’s house at Ba with instructions to drive the bus forthwith i.e. to commence work.
(f) The Defendant further instructed and threatened through the said servant or agent that if the deceased failed to resume work, he will be terminated from his job.
(g) The Defendant had or ought to have foreseen that due to the deceased medical condition if he is pressured to work, his condition can further deteriorate and/or resulting in his death.
(h) The Defendant in doing so failed to take reasonable care for its servants safety in all the circumstances of the case.

The Submissions

The Plaintiff’s major claim is in negligence. Plaintiff’s Counsel relied on one authority only, Paris –v- Stepney Borough Council [1950] UKHL 3; (1951) All ER 42. The employee therein brought an inherent disability into his employment namely one blind eye. The present case is said to be similar because the employee was required to work when it was known that he had an inherent disability. There can be no doubt that there has been for a long time, well before 1951, a common law duty on each party to an employment relationship not to inflict harm on the other. Donoghue –v- Stevenson (1932) AC 562 is ample authority for that. In the employment jurisdiction there have been many cases refining the employer’s duty of care in tort right up to the present time. It is unnecessary to refer to them because Counsel for the Defendant seemed to concede the point at law, citing no authorities on this point. He was right to do so in my view. The Defendant’s defence rests on the facts, not merely those I have found above but also the similar facts and the judgments in cases under the Workmen’s Compensation Act cited by Counsel for the Defendant. These were Labour Officer o.b.o. Luisa Legalega –v- Ports Authority of Fiji 28 FLR 115 and Fenton –v- Thorley & Co Ltd [1903] UKLawRpAC 48; (1903) AC 443 (LH) and Hockey Yelland & Ors [1984] HCA 72; 157 CLR 124, particularly 139. The Fiji case was a workman’s compensation claim wherein the deceased suffered from advanced heart disease and died two and half days after last working. On the facts the claim failed. The English case provided a definition of “accident” which has long being accepted and which I hold includes a heart attack. There is now ample authority for that. The Australian case contains a useful statement on the linkage between disease and injury.

Plaintiff’s Counsel relied also on a 1972 New Zealand authority for the general principles of foreseeability, cause and effect, Stephenson –v- Waite Tileman Ltd (1973) 1 NZLR 152 (CA). This authority and its application were not contended by defence Counsel. The two major judgments have helped me but I will not cite from them.

For the claim under the Workmen’s Compensation Act Plaintiff’s Counsel has referred me to Fiji Sugar Corporation Ltd Labasa –v- The Labour Officer Civil Appeal No. AHU0020.1995 Judgment 17 May 1996 (CA) and Fife Coal Co Ltd –v- Young (1940) 2 All ER (ANNOT) 85. The Fiji case is a judgment about a claim under the Act for an employee with heart disease who died at home. The judgment contains (at p. 3) a classic description of myocardial infarction. The English case decides a question about whether an employee with an existing condition which was aggravated by and at his work had had an accident. In his case the accident was a “dropped foot”.

Findings

No question of contribution or volenti has been raised in this case and in any event it is excluded by my factual findings above.

I think it sufficient to say that, even had the point been contested, the facts found above establish clearly in my view a breach by the employer of its common law duty of care to its employee. To require an employee under threat of dismissal to return to work after hospital treatment for a heart attack and with the knowledge that the treatment included one month of rest before further medical assessment is clearly a risky action for an employer with clearly foreseeable consequences. On the authorities cited above I hold that the employer is liable in negligence to the Plaintiff for the loss and injury thus caused. The finding central to this conclusion is the finding that the employer obliged the deceased to work under threat of dismissal.

On the authorities cited above I hold that the heart attack of the deceased was an “accident” within the terms of the Workmen’s Compensation Act Cap 94 and that it arose out of and in the cause of the employment. This conclusion is reached without reference to the evidence about why the deceased was at work. It is enough that he worked till the day before he died. Judgment in liability will be entered on this cause of action also against the Defendant.

Quantum

This hearing concluded late on its second day and it was agreed between Counsel and the Court that submissions in respect of quantum would be reserved until liability had been decided. A time for hearing submissions on quantum of damages and costs will now be arranged with Counsel.

D.D. Finnigan
JUDGE

At Lautoka
4 November 2005