Wati v Emperor Gold Mining Company Ltd [2005] FJHC 295; HBC0054.1998 (16 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0054 OF 1998

BETWEEN:

RAJ WATI
father’s name Bisnath of Toko, Tavua, Domestic Duties
as the administratrix of the
Estate of BHARAM DEO also known as BHARAM DEO PANDE
father’s name Harihar Dutt late of Toko, Tavua, Miner
by virtue of Probate Jurisdiction Grant No. 33088.
PLAINTIFF

AND:

EMPEROR GOLD MINING COMPANY LIMITED
a limited liability Company having its registered
office at Vatukoula.
DEFENDANT

Mr S K Ram for the Plaintiff
Mr M S Sahu Khan for the Defendant

Date of Hearing: 11 October 2005
Dates of Submissions: 19 October and 26 October 2005
Date of Judgment: 16 November 2005

JUDGMENT OF FINNIGAN J

This is an action brought by a widow to claim damages for the death of her husband. She brings the action under the Compensation to Relatives Act Cap 29 and The Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27. She claims special and general damages on the ground of negligence by the Defendant. In the alternative she claims compensation under the Workmen’s Compensation Act Cap 94.

To establish the latter claim it is sufficient if she establishes (pursuant to Section 5 of Cap 94) that the death of her husband was an “accident arising out of and in the course of (his) employment”. For the former claim she has undertaken by her pleadings to establish one or more of four allegations of negligence. These are;

(a) The Defendant failed to take adequate precautions for the safety of the deceased;

(b) It exposed the Plaintiff to risk or injury causing his death which could have been avoided by reasonable care;

(c) It failed to keep proper and/or efficient medical facilities and/or equipment and/or medical personnel for emergency; and/or

(d) It failed to keep proper and efficient means of transporting the deceased from his place of work underground for needed medical attention.

The Witnesses:

Three witnesses gave evidence for the Plaintiff and three for the Defendant. The deceased died on 24 February 1995. His death was unexpected. A claim made on his behalf by the Labour Officer on the Defendant gave the cause of death as “Acute Infarolateral Myocardial Infarction/Cardiogenic shock/ Smoker”. There was no death certificate in the evidence. Of the Plaintiff’s three witnesses only she herself could give direct evidence about the deceased on the day he died. Her second witness Dr. Maung Mon the Acting Sub-Divisional Medical Officer and Principal Medical Officer of Tavua Hospital had not seen the deceased as patient and was not aware of the circumstances of his death. He was unable to find any hospital folder for the deceased. He gave evidence in general about heart disease and the causes of cardiac death. The third witness Mr Paul Hanfiro is a senior employee of the Labour Ministry who gave evidence on behalf of the Labour Officer who was in charge of the investigation. That officer is now based in Labasa. He produced the Labour Officer’s file on this case. There was some objection by Counsel for the Defendant to admission of one document in particular as hearsay. That objection was upheld by the Court to the extent that it will not be used as proof of the truth of what it contains but as proof of the statements made to Medical officers and on which they based their opinions.

For the Defendant evidence was given by Fonorito Josaia a senior employee of the Defendant, Mr Sikeli Lagilagi and Dr. I. R. Bakani a Cardiac Specialist and Physician. Of these Mr Josaia and Mr Lagilagi saw the deceased on the day he died.

There were however two other silent witnesses. These were two medical practitioners whose opinions about the cause of death, written in 1995, were before the Court and were referred to generally by the witnesses who gave evidence. These were Dr. A. K. Ishri the Subdivisional Medical Officer Tavua in December 1995 and Dr. Epeli Nailatikau who was the company doctor employed by the Defendant, while the deceased was employed.

The Facts:

There were some mild conflicts in the evidence. The Plaintiff was inclined to the opinion that the deceased was not a heavy smoker and she gave her reasons. These primarily were that he had a daily routine which allowed him only a small opportunity in the evening, he had children whose health he respected and he had a heavy job. Mr Josaia said he was a heavy smoker and that on his visits underground every day he had actually seen the deceased smoke three or four cigarettes per hour. After hearing and observing these two witnesses I concluded that the deceased was a daily smoker on which they agreed, and that he smoked rather more than the Plaintiff knew. This opinion was reinforced by the report of Dr. Nailatikau which was evaluated and commented on by some of the witnesses. Dr. Nailatikau’s opinion was that he smoked far too much and suffered lung problems because of it.

The report of Dr. Nailatikau appears to be a summary of his patient records for the deceased and it concludes with a brief statement of his opinion about the cause of death which is based on that record. Briefly, he first examined the deceased on 8 July 1992 when he was recruited by the Defendant. He then weighed 70kg with blood pressure 120/80 and “all the other systems were well except that he obviously had a smoker’s cough. The advice given to him was that he should keep fit and stop smoking”. Thereafter he records his interviews with the deceased on 24 separate days before the final day which was 26 January 1995. The conditions for which he was treated most often were cough and asthma. The doctor records advising the deceased to quit smoking on one other occasion, 25 October 1994, but recorded as a fact that the deceased was “still smoking” on six other occasions. By 5 May 1994 his weight had declined to 65kg. The report ends with the following comments:

“On 24/02/95 was brought in from underground with an obvious heart attack from which he did not survive. Obviously, he had continued smoking up to that date.

In my honest opinion, the heavy smoking contributed to his heart attack.”

Dr. I.R Bakani was asked his opinion about the record/report of Dr. Nailatikau. Dr. Bakani gave evidence that he is a Cardiologist and Physician who has practised medicine for over fifty years. Without knowing the height of the deceased he would still say that the patient was underweight rather than overweight. This he said is a common feature of excessive smoking by reason of bad lungs and bad oxygen transfer. He said most of such patients are extremely underweight and they often die of breathing failure. He said that chronic long-term lung disease leads to right heart failure which is secondary to chronic pulmonary (i.e. lung) disease. He said that the record of 5 May 1994 showing the deceased at 65kg illustrated that on that day he was physically ill from his documented progressive bronchial illness.

I accept Dr. Bakani as an expert on this topic. There is in addition the evidence of the Plaintiff that her husband was prone to coughing and that after coughing he would rub his chest. Relevantly also, she said that on the morning he died her husband was not well when he went to work. She said he was breathing heavily and she told him she would go with him to the hospital but he said no he would go to the doctor who looks after the Gold Mining staff. She said her husband told her he had been to the company doctor the previous day and before he died said to her that he had been again that day and that the doctor had given him cough mixture and told him to go back to work. There is no record of this in Dr. Nailatikau’s report.

The situation at this point then as I find it is as follows. The deceased had a chronic (i.e. long term) lung condition which was sufficient to cause weight loss and heavy coughing, and this condition was certainly contributed to and probably caused by the cigarette smoking of the deceased. He had symptoms of illness when he went to work on the day he died, but no identifiable symptoms of heart disease.

The Facts – Cause of Death

There was no direct evidence of the cause of death. Dr. Mon knew nothing of the facts. Dr. Bakani made the point that there is no confirmation by any measurement that the deceased died of a heart attack. He said all persons involved in the case acted on the certificate of the certifying doctor that it was a heart attack and no post-mortem was done. He said there was no family history of heart attack to his knowledge. He said one has to depend on the history and clinical findings, which usually are accepted and reliable. He listed ten or eleven documents, some being copies of others, which he took into account and on which he based his evidence. Most of these documents are before the Court in evidence and there is a summary by the Labour Officer of the statements of some workmen of the deceased. These included a statement by Mr Lagilagi. They included also the reports and opinions of Dr. A K Ishri and Dr. Nailatikau. They included also a report by Sikeli Lagilagi who was the Emergency Services Officer on duty on 24 February 1995 who attended the deceased when he began to complain of chest pain.

This officer gave evidence and said he was trained in First Aid. He said in his report that he informed the two rescue officers with him after he had examined the deceased and measured his pulse and breathing that he suspected a heart problem. From that time until the present day no person from the barely trained to the medical specialist has expressed any other opinion. Dr. Mon was not able to express an opinion but his general comments about heart disease only reinforced what was in the medical reports and what was stated in considerable detail to the Court by Dr. Bakani. From the evidence of Dr. Bakani in particular whom I observed and assessed, I am satisfied the deceased had undiagnosed heart disease which was associated with his pulmonary illness. Dr. Ishri in his report had no doubt of it and from the hospital records he stated that the death (8.30pm) followed severe chest pains (at 5.45pm) and treatment for cardiogenic shock. I am satisfied that he suffered a myocardial infarction which was muscle death in his heart. This caused his death.

The Plaintiff’s Claims

The Plaintiff contends that this in turn happened because the Defendant (a) failed to take adequate precautions for the safety of the deceased and/or (b) exposed him risk or injury causing his death which could have been avoided by reasonable care. I must therefore consider the evidence to see what the employer required and what the deceased did in the course of his employment in the days leading up to his death. The evidence is not difficult to assess. There is a claim by the Labour Officer in his request to Dr. Ishri for an opinion as to cause of death (Exhibit P. 22). This claim is based on the statements of the workmates. The claim is that “his work involved handling of concrete blocks, bags of cement and logs of timber. All this work involves manual labour. The workmates stated that the work done by deceased was strenuous”. Against these claims, which were hearsay even to the Labour Officer, is the evidence of Mr Josaia. He is currently a Section Manager and was previously a mine captain. He supervised the deceased in the two years seven months of his employment. He said the duties of the deceased were to supervise loading and unloading of gear for 16 level flat and pit shaft. As supervisor he was not required to do the work himself, if he did any loading or unloading that was his choice. The witness said the gear was all put on trolleys and put on to a loader and carried in and out of the 16 level. By “gear” he said he meant timber blocks 1 meter long. He said no concrete blocks and no bags of cement were involved in this work at all and that “logs of timber” could mean nothing other than 1 meter blocks because the shaft itself was 1 meter by 2 meters in dimension.

This witness impressed me as being professional accurate and knowledgeable in his evidence and I see no reason to temper his evidence by reference to reported statements written by the workmates of the deceased. I accept it.

There is no other evidence about what the deceased did for the employer on the day of his death or the preceding days. He himself was employed to supervise and there is no reliable evidence that he undertook any strenuous physical activity even voluntarily. I accept that he smoked cigarettes while underground. Even the Labour Officer in Exhibit P 22 stated he had been told that the deceased was a heavy smoker and “used to have heavy coughing at night”. He had lung disease, asthma at least. It is difficult to construct from the evidence any picture in which the deceased voluntarily undertook stressful, physical labour. He certainly was not required by the employer to do so. These first two claims are not proved. That is my finding.

The Plaintiff further contends that the employer failed in a duty of care to the deceased in that it ( c ) failed to keep adequate medical facilities etc and (d) failed to keep a proper and efficient means of transporting the Plaintiff from 16 level to a place of medical treatment. The evidence brought to support these claims is mostly the evidence of the Plaintiff herself. She was told by her husband before he died that “he was pulled out after a long time, the cage man did not send down the cage for a long time”. Mr Josaia was at work the day the deceased died. He had seen him at 7.30am when the deceased reported there was no timber underground and Mr Josaia organized the timber. He said he was there when the deceased reported that he was sick and it was he who called the emergency services. He said this is routine. He denied that the emergency services officers took a long time to arrive. He said he did not know how long it took but it was not long before they came. The report of Sikeli Lagilagi (above) which is Exhibit D3 states that he received a phone call at 1.25pm on 25 February 1995 informing him that an employee was on his way to the surface from 16 level complaining of chest pain. He repeated this in evidence and said that the officers concluded their examination and filed their report by 1.30pm. He reported they left “straight away to get him to the dispensary as quick as possible”. He reported that on arrival at the dispensary they had to wait “a couple of minutes whilst the doctor was examining another patient. During this period the now deceased was still joking with a workmate from Smith Shaft”. Other evidence shows that he was soon transported to Tavua hospital.

I accept in full the evidence of Mr Josaia having seen and heard him give his evidence. I accept also the evidence directly bearing on these claims of Mr Lagilagi. It is consistent with that of Mr Josaia, it is not contradicted by any other evidence, and he also was an impressive witness, so I give it weight also. Lunch was 12 to 12.30pm. The deceased felt pain about 12.30pm but clearly not bad pain. Dr. Bakani agreed about that with Plaintiff’s Counsel. He was admitted to the hospital ward at 4.10pm according to Dr. Ishri.

On the evidence I am unable to find these two latter claims made out, either.

Connection between Death and Employment

Dr. Bakani who gave evidence, Doctors Ishri and Nailatikau who wrote reports, and Dr. Mon who gave evidence all persuade me that the Court may safely accept that the deceased died from myocardial infarction or heart attack. Was this heart attack caused by some breach of duty by the employer? The Labour Officer gave Dr. Ishri some facts which I find not proved by the evidence.

The request by the Labour Officer to Dr. Ishri for his opinion is Exhibit P22. The officer told the doctor that the Plaintiff had told him the deceased was a healthy man with only one problem, he used to have heavy coughing at night. He stated as fact that the deceased had been handling concrete blocks, bags of cement and logs of timber, all being strenuous manual labour. He summarized for the doctor the social habits of the deceased which included the fact that he was a heavy smoker.

Dr. Ishri’s written opinion based on those facts is Exhibit P 11. He appears to have read the medical report of Dr. Nailatikau. He said that from the information he had been given the deceased “had been under great stress from working long hours and overtime, underground, and his already diseased coronary vessels as a consequence of heavy smoking, family history, and him being the male sex in the 4^th decade of life, could not supply sufficient blood to his over worked heart muscles leading to eventual myocardial ischaemic attack”. On that basis he concluded that “the attack was precipitated by excessive strenuous work, therefore the stress at work was an aggravating factor and not the causative factor”.

Dr. Bakani did not agree with this opinion, even though he had before him the statements of the Labour Officer and workmates. His written report(Exhibit D1) is more than two full pages and includes a lot of explanatory comments. He accepted that the deceased was a supervisor “but at times helped his workmates by loading gear at 16/L Flat”. He noted the deceased was resting at the Palm Station after mid-day lunch when he developed chest pain. He stated “it is my view that the nature of his work is not unduly stressful”. He emphasized in his report and in his evidence that the deceased as a heavy smoker who already possessed “a strong independent risk factor for myocardial infarction and sudden cardiac death”. He concluded his written report;

“It is my view therefore that the deceased died of heart attack as a result of the natural progression of his coronary atherosclerosis the development of which had been greatly accelerated by heavy smoking. The heart attack was not precipitated by strenuous physical activity as he was resting at the time and the attack is considered to be the result of the natural progression of coronary atherosclerosis . Chronic stress is not a provocative cause of acute heart attack”.

While giving evidence and under questioning from both Counsel and the Court Dr. Bakani did not deviate from this opinion. I accept it as a responsible opinion based on the facts as established in the evidence before me and I make it my finding.

I turn to the hours worked by the deceased. The Plaintiff through Counsel has contended that the Defendant required the deceased to work heavy hours. A statement of the hours which he did work, signed by the Defendant’s Senior Personnel Officer – Administration and provided to the Labour Officer by the employer set out the actual hours he worked from and including the week ending 2 August 1994 until the time of his death. He worked 6 – day weeks and from time to time had days off. By my calculation of this 32 – week period before his death the deceased worked 1,424 hours or 44.5 hours per week on the average. The Labour Officer sent to Dr. Ishri a slightly different statement, being 1,152 hours which by my calculation was 44.3 hours per week of which 48 hours in total were overtime. By this calculation the overtime is just over half an hour per week. The deceased however missed some normal working days and the overtime average must have been higher. However there was no evidence at all to suggest that these apparently reasonable hours were an unreasonable demand or a cause by themselves of stress for the deceased.

The Submissions:

The submissions of Counsel for the Plaintiff both in support and in answer are clear concise and on the point. In respect of liability he relies on one authority only, Fiji Sugar Corporation Ltd Labasa –v- The Labour Officer Civil Appeal No ABU0020.1995, Judgment 17 May 1996 (CA). He supplied a copy of the judgment which is appreciated.

He cited a passage from page 5 of the judgment:

“We can see no reason why the aggravation or acceleration of a disease by something other then the disease process itself is not, and should not be treated as, an injury by accident”.

This proposition is now well established at law. It is the foundation of the Plaintiff’s case. After citing the principle, Counsel was then at pains to show how the evidence demonstrated on the balance of probabilities that something other then the disease process itself aggravated or accelerated the heart condition which caused the death. Some of Counsel’s conclusions of fact differ a little from mine, as do some of his notes of the evidence. The evidence established that the lunch period for the deceased was noon till 12.30pm and that lunch was taken in a special place five meters from the cage that serviced 16 level. The evidence of Mr Lagilagi established that the emergency team met the deceased at the top of the shaft at 1.25pm and had finished its assessment by 1.30pm. In the meantime some workmates had massaged the deceased. After 1.30pm he was able to joke with his workmates. The deceased apparently did not suffer much pain, and Plaintiff’s Counsel established this point with Dr Bakani. If it is true that the deceased first suffered pain at about 12.30pm (and there is no direct evidence about that) then it was 55 minutes before the emergency team evaluated him. Mr Josaia said he does not know how long the emergency team took but it was not long and that the emergency services were attending other people, whatever that may mean. There is nothing to indicate that the deceased was in great stress or in urgent need of any relief even at the time he was assessed between 1.25 and 1.30pm. I cannot hold that there was any breach of duty of care to the deceased arising merely from that lapse of 55 minutes. Counsel for the Plaintiff asked Dr. Bakani in cross-examination whether it is possible to have a heart attack and no pain and the reply of the witness as I noted it was, “it happened here, there is no denial”. The first record of severe pain is in the report of Dr. Ishri, after admission to the ward.

Counsel also submitted that Dr. Bakani changed his opinion during the hearing. In his medical report it was his opinion that chronic stress is not a provocative cause of acute heart attack and Counsel suggested he changed that to say during the hearing that stress at work causes heart attack. My note of the evidence is different. At the hearing the doctor said that strenuous activity at work causes heart attack. The two statements are consistent, in my view. Neither was the witness inconsistent when he said (a) “Such attack will occur .... and could happen at rest etc ....” And (b) that stress causes heart attacks. (Counsel’s answering submission).

Counsel also made much of the Plaintiff’s claims that the deceased had been required to work at a stressful occupation and had been required to work in an atmosphere of foul air or other dangerous gases contrary to Reg. 177 of the Mining Regulations. I cannot uphold these creative submissions. The deceased was employed as a miner. He may or may not have had the choice of other employment but to the employer he was a volunteer who chose to turn up for work. As a miner he went underground and did the work of a miner. As for foul air and dangerous gases, cigarette smoke from his own and others’ cigarettes within the confines of a mine cannot on the basis of these submissions be declared to be foul air or dangerous gases which imposed an obligation on the employer.

Counsel in his submission addressed the hours which the deceased was required to work. His arguments based on the wages slips and working hours records are simple and direct. What they amount to however is a statement that normal hours under the Wages Regulation (Wholesale and Retail Trades) Order 1997 are 45 per week, and the records show that in the eight weeks before his death the deceased worked 47 hours per week on the average. If this means he worked two hours’ overtime per week in each of eight 6 – day weeks, then I am hard pressed to find in that any evidence of breach of duty by the employer or indeed any evidence of untoward stress. Counsel relied also on the evidence of the Labour Officer in Exhibit P22 that the deceased had worked 48 hours’ overtime in the 6 months before his death. That is eight hours’ overtime per month on the average or roughly two hours per week, as above. I am however unconvinced that there was even 2 hours’ overtime per week because Mr Josaia was not challenged in his evidence that in this workplace the employees worked 8 - hour shifts for a 6 – day week including Saturdays and that sometimes they worked overtime.

I cannot see any evidence to support Plaintiff’s Counsel’s further submission that stress arose for the deceased out of the fact that he was a supervisor with the responsibilities of supervision. The case originally put up by the Labour Officer was based on strenuous physical activity and most of the evidence about causative factors centred on physical stress. The evidence about the employment duties of the deceased in my opinion showed no stress factor arising either from physical activity or from supervisory responsibilities or from working hours.

Not only was there here was no evidence at all of any “Supervisory Stress”. I agree with Counsel for the Defendant that the claim also made for the Plaintiff that the deceased was sent underground when he was known to be sick, has no substantial support in the evidence. There is in fact no evidence to this effect except that the Plaintiff told of a conversation she says she had with the deceased. However the only sickness of which any person was aware before the fatal day was the lung disease which the company doctor had diagnosed long before and which the deceased took with him into the mine whenever he went to work. The Plaintiff herself in evidence and the workmates of the deceased in their statements were all very clear that till he died the deceased seemed a healthy man except for his cough.

I am bound to conclude that stress caused during and by employment was not a contributing factor in the present case.

This being so, my conclusion applies in both the claim of breach of duty and the claim of injury by accident arising out of and in the course of employment.

The submissions of Counsel for the Defendant and those of Plaintiff’s Counsel in answer have all been considered. Without referring to each submission I leave the matter here.

Conclusion:

For the above reasons I am bound to hold that the evidence on the balance of probabilities favours a conclusion that the death of the deceased was caused by a sudden heart attack which arose in the course of undiagnosed heart disease. The heart disease itself arose in the course of chronic pulmonary disease, neither of which were caused by or aggravated by anything that the deceased did in the course of his employment with the Defendant.

For that reason I must dismiss this claim. Costs follow the event. I assess these summarily for the Defendant at $800.00.

D.D. Finnigan
JUDGE

At Lautoka
16 November 2005