Chand v Datt [2005] FJHC 431; HBC0084J.2002B (22 November 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0084 OF 2002

Between:

SATISH CHAND
s/o Ram Chand
Plaintiff

- and -

1. RAM DATT
s/o Unknown
First Defendant

2. LABASA TOWN COUNCIL
Second Defendant

Counsel: Mr. A. Sen for the Plaintiff
Mr. V. Ram for the Defendants

Date of Hearing: 27th October, 2005
Date of Judgment: 22nd November, 2005.

JUDGMENT

One of the duties of the Labasa Town Council is to patch up holes in the roads. Coal-tar is heated in drums, to a temperature of approximately 360 degrees centigrade, when it becomes liquid. It is then transported to where it is needed and poured into the holes. The heating of the coal-tar takes place in an open-sided shed. There are timber posts and a corrugated iron roof. Along two sides a single sheet of corrugated iron has been attached horizontally to the posts. The rest of the shed is open. A pit approximately a foot deep and approximately three feet by five feet has been dug in the middle of the shed. One shorter side has a concrete wall. Two iron strips lie across this fire pit. The two halves of a cut-in-half 44 gallon oil drum sit on these two strips above the fire space underneath.

The coal-tar is placed in the oil drums. A fire is lit underneath and stocked with wood fuel. When the coal-tar becomes molten it is then “ladled” out of the drums and taken to where it is needed. The fire is fed with fuel from the shorter, open end, of the small pit. A supply of firewood is nearby.

The plaintiff, Satish Chand, has worked for Labasa Town Council since 1996 as a labourer. This means he will be required to carry out any one of a range of duties including rubbish clearance, maintenance and road making. One of the duties occasionally allocated to him was to make the fire and heat up coal-tar ready for patching roads.

On 16th of October 2001 he says that he was working for the Town Council when the first defendant, a supervisor, told him to stoke up the fire underneath the coal-tar drums. This was to be done after the mid-morning tea-break at 10.00 o’clock. The plaintiff states he went to the shed. He pushed in longer pieces of wood with his hand. Kuppswamy had already lit the fire but it had died down. It was very low. Satish Chand was standing at the open end of the pit and says he was “putting more firewood on and pushing the charcoal inside. When I pushed it inside the fire came out over me. It came on top of me. I yelled out for help”.

Satish Chand stated that his overalls had caught fire and that he rolled on the ground and shouted for help. There was nobody with him at the time. A person came along and put gravel and sand on top of him and the fire went out. He says “it pained badly, I became unconscious”. He was taken to hospital, apparently arriving an hour and half later. He was treated as an emergency with burns and not discharged for two weeks. He says during that time he was in pain. He said it took nearly six months for him to recover. He has lost earnings from work and been unable to cultivate his land and make extra money.

Satish Chand states that he has scarring and loss of pigmentation to his right leg and right hand and this is supported by the medical reports and observation of the affected areas. He says that it is still difficult to work, the burnt areas are still painful and that the skin tends to crack and bleed. There is a medical report of Dr. F.H. Rolland, Consultant Surgeon dated 4th December 2003 describing flesh burns to 18% of the body surface and to be of partial thickness. He refers to a slight recurrent swelling in the calf of the right leg. He states there is no contracture or functional disability. The plaintiff also relies on the Workmen’s Compensation Act Form C/1 in which there is reference to a 20% permanent incapacity. That was dated 20th of March 2002.

The claim is denied by the first defendant Ram Datt, the supervisor, and by Labasa Town Council. It is accepted that Ram Datt was the supervisor and at the time the plaintiff was acting within the course of his employment. The Town Council states that it is a safe system of work, that the instructions given by Ram Datt were perfectly lawful and reasonable, that the plaintiff is an experienced employee and knew what to do and had done it before. The defendants say that neither they nor the plaintiff can say how this accident occurred.

It is accepted that Satish Chand received burns on that day but both defendants state it was not as a result of their negligence. The second defendant stated that the incident and injury suffered by the plaintiff is perfectly consistent with him pushing bits of wood or charcoal into the fire, possibly with his boot, getting far too close and his overalls catching fire. There is no evidence to suggest that the overalls or gloves or boots with which he was supplied and wearing were unduly susceptible to catching fire or were unsuitable as clothing when carrying out these duties.

The defendants state quite simply that the plaintiff has failed to show on the balance of probabilities that there was negligence by the defendants. They say one can speculate as to a number of possible reasons as to how this accident came about, not all of them would suggest negligence by the defendants. In those circumstances, the plaintiff has failed to prove his case. The defendants reject the plaintiff’s argument that the doctrine of res ipsa loquitor applies. They say it hasn’t been shown that in the absence of any other evidence there is only the one conclusion, namely that of negligence by themselves.

In closing address counsel for the plaintiff abandoned the claim against the first defendant. Indeed, it is difficult to see why the first defendant was included in the first place on the evidence adduced before me.

The plaintiff was closely cross-examined by defence counsel as to the moments before and when the fire flared up. It would appear that the plaintiff had pushed in longer pieces of wood using his hand and had used the spade at certain times to push in some pieces of wood or charcoal. All that could be said on the face of the plaintiff’s evidence was that he was stoking the fire when for no apparent reason the fire flared and set fire to his overalls.

Counsel for the plaintiff suggested that the shape of the fire pit and the shed lent itself to the possibility of a gust of wind being channelled down the fire pit from the far end and blowing flame onto a person at the open end. On the evidence before me this pit has been in use for approximately thirty-five years and there has been no accident like this one. I have no diagrams or photographs which lend support to the plaintiff’s suggestion. I do have four photographs of the shed as it currently is and evidence to the effect that it hasn’t changed since 2001; they do not assist on this point.

Counsel for the plaintiff also opened up the possibility that one of the two drums in which the coal-tar was being heated had leaked, the hot molten tar had dropped onto the fire beneath and when it ignited this was what caused the sudden sheet of flame which went over the plaintiff. There is no evidence that either of the two drums on the fire on that day were leaking or that there was hot tar on or around the fire. I do not have evidence that this sequence of events could produce the flame described. This is a possible explanation of what happened, but it is speculation.

Further, defence counsel pointed out that the statement of claim makes no reference to this possibility. Paragraph 6 states “upon receiving instruction from the first defendant the plaintiff was in the process to adding firewood under the bitumen drum to heat the bitumen to make and or prepare coal-tar when fire blazed into the plaintiff’s overall whereby the plaintiff was severely burned and was later taken to the Labasa Hospital”. Neither there nor in any other paragraphs is it suggested that the drums were leaking or that this fire was caused by leaked coal-tar from that time or from an earlier time.

This issue of liability is not easy to resolve. Whilst everyone would have the greatest sympathy with the plaintiff for the injuries that he has suffered and the pain that came with them, I must look specifically to the question whether or not the plaintiff has shown on the evidence on the balance of probabilities that the second defendants were negligent.

There is simply no evidence as to what caused this sudden flaring up. It is possible to speculate but that is not acceptable. In my judgment, the very fact of the flaring up does not speak for itself as showing negligence on the part of the second defendant.

There are a number of aspects of the system of work which might well draw criticism and a number of aspects of the manning of the site and the provision of safety equipment which could well draw criticism. However, I cannot say that any of the failings in relation to these matters can be said on the balance of probabilities to have caused or contributed to the injuries which the plaintiff suffered. For example, it might be that had a fire extinguisher been available then the flames might have been put out more quickly. That would depend on the type of fire extinguisher and also whether or not the method of putting out the flames used was less efficacious than a fire extinguisher would have been. There is a question whether or not when someone operates or uses the fire to heat up coal-tar there should always be at least one other person present.

Accordingly, whilst I have sympathy for the plaintiff in the injuries he has suffered, I must dismiss this claim. He is, of course, entitled to Workmen’s Act compensation, which counsel are content to calculate.

(R.J. Coventry)
JUDGE