Prasad v Public Works Department [2008] FJHC 214; HBC45.2002 (10 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 45 OF 2002

BETWEEN:

SUREND PRASAD
Plaintiff

AND:

PUBLIC WORKS DEPARTMENT
First Defendant

PRINCIPAL ENGINEER, SUVA WATER SUPPLY &
SEWERAGE SECTION
Second Defendant

ATTORNEY GENERAL OF FIJI
Third Defendant

Mr. S. Valenitabua for Plaintiff
Ms S. Levaci with
Ms K. Nadu for Defendants

Date of Hearing: 8th August 2008
Defendants Submissions filed: 21st August 2008
Plaintiff’s Submissions filed: 4th September 2008
Date of Judgment: 10th September 2008

JUDGMENT

[1] The plaintiff was employed with the Water Supply Section of the Public Works Department in 1992. He is still an employee of that department. He says that he got injured on 8th April 1992 while digging a trench to connect water from the main pipe for a consumer. He told the court that his gumboot got caught in a polythene pipe they had just fitted. He says he fell and his back hit a large soap stone which was lying in a bigger drain beside the trench. The incident he stated happened at Delaitokatoka, Valelevu. He stated that a fellow worker Pita Vilikesa took him to Valelevu Health Centre and from there to CWM Hospital, Suva by ambulance. He told the court that his lower left back was injured, so he stayed home for three weeks.

[2] The defendants state firstly that on 8th April 1992 to 10th April 1992 the plaintiff was on sick leave so he could not have been at work. There is no record of any accident in the plaintiff’s personal file. Secondly, they say that the plaintiff reported the matter too late by which time the claim was time barred.

[3] The plaintiff is claiming damages for breach of statutory duty in that the first defendant failed to report the plaintiff’s injuries to the Labour Office thereby the plaintiff was deprived of payment of compensation under the Workmen’s Compensation Act.

[4] The issues in this case are:

1. Was the plaintiff involved in an accident?
   

The plaintiff says he was injured on 8th April 1992. Except for his evidence I have no other oral evidence to support his testimony. He produced a form called Notice by employer of accident form (document 4 in the agreed bundle). The date it is signed by the employer is 8th May 2001, close to nine years after the accident. The report by Doctor Veitogavi part 2 of the form is also dated 8th May 2001.

[5] Doctor Veitogavi has filled on the form that the plaintiff attended the hospital as outpatient from 8th April 1992 till that day. The issue is how did Doctor Veitogavi recall this date 8th April 1992? The plaintiff himself told the court that he went to hospital and doctors could not find file for him. He also told the court that Doctor Veitogavi did not find his file but just examined him, had X-ray done and filled the form. The only inference I can draw is that Doctor Veitogavi’s source of information was the plaintiff himself and not any independent hospital record.

[6] The second piece of evidence which I have to consider is that the plaintiff told the court that his supervisor Bhim Sharma and leading hand came to see him at his residence after he was injured. He produced a letter dated 12th July 2001 written by Bhim Sharma stating that he and his leading hand visited the plaintiff one week after the injury he suffered. Bhim Sharma was called by the defence as a witness. He admitted signing the letter. He explained that the plaintiff kept on pestering him to write a letter. He said he wrote it to get rid of the plaintiff’s continuous pestering as he had other work to do. I accept this explanation by Bhim Sharma as to why he wrote the letter.

[7] The third piece of evidence I have to consider is the personal history record of the plaintiff kept by the Public Works Department. This record keeps details of accident, absent dates under three headings namely sick pay – outpatient, leave without pay and absent without leave. According to these records the plaintiff was on sick leave on 8th April 1992, 9th April 1992 and 10th April 1992. This would mean that he was not at work. The records also disclose that he next took sick leave on 8th May 1992. This would mean that the plaintiff was at work from 11th April to 8th May 1992. This record therefore contradicts plaintiff’s assertions that he was away from work for a period of three weeks following the injury on 8th April 1992. It would also give credence to Bhim Sharma’s evidence that he wrote the letter to get rid of a nuisance. There would be no need to visit the plaintiff a week after injury if the plaintiff was at work.

[8] Further the records clerk from Public Works Department Vasemaca Kuru explained that accidents are recorded in the personal history card and there is no record of any accident regarding the plaintiff on 8th May 1992. I find on balance of probability that the plaintiff was not involved in any accident on 8th April 1992.

[9] Even if I assume that there was an accident as stated by plaintiff, then that injury was not reported till 8th May 2001. Further what were the injury suffered and the seriousness of such injury? The plaintiff showed his lower left back as where he got injured. He said he was X-rayed. He complained of great pain.

[10] Doctor Veitogavi made a report. It is a report made on 8th May 2001. He describes the nature of injury as "bruised back with pricks and needles on both lower limbs. Patient is titled to one side with extreme pain". The plaintiff himself did not speak of pricks and needles on his limbs. Doctor Veitogavi also gave him 30% permanent incapacity and states that there is development of osteoarthritis. Opposed to the report of Doctor Veitogavi is a report prepared by Doctor Emosi Taloga who came to court and testified. He had examined the plaintiff at the request of the Solicitor General’s Office. He had examined the plaintiff on 19th September 2006. He had checked the plaintiff on areas he complained of pain. He checked motion of spine, signs of tenderness and for numbness. He did an X-ray which showed no bony injury. He found no permanent incapacity.

[11] I prefer the testimony of Doctor Taloga. It was tested in cross-examination. His testimony was based on records he had with him. I accept his evidence and find the plaintiff suffered no disability. Hence even if the plaintiff is believed about accident, it would not necessarily have entitled him to compensation under the Act as he would have to further show that the injury incapacitated him to work for three consecutive days: Section 5(a) of Workmen’s Compensation Act.

2. Was there breach of statutory duty by the Employer?
   

[12] The Act requires certain procedures to be followed. Section 13 requires that notice of accident must be given as soon as practicable after the accident and in any event a claim must be made within 12 months. Further no claim for compensation can be made after the expiry of six years. This claim would therefore be statute barred by 8th April 1998.

[13] Once proper notice of accident is given to the employer, then the employer must take certain steps.

[14] Section 14(1) of the Workmen’s Compensation Act Cap 94 imposes upon the employer the obligation to notify the Permanent Secretary of Labour of any accident which would entitle the workman to compensation. An employer who fails to report an accident without reasonable cause commits an offence and may be fined. A breach of statutory duty ipso facto does not confer a right to private law cause of action. Such a course of action can arise if it can be shown as a matter of construction of the statute, that the statutory duty was imposed for the protection of the particular class of public and that the Parliament intended to confer on that class of public a private right of action for breach of the duty: Minors and Others v. Bedfordshire County Council – [1995] UKHL 9; (1995) 2 AC 633.

[15] The object of the Workmen’s compensation Act, as the long title suggests, is to provide for compensation to workmen. The Act is drafted in such a way that the Ministry of Labour takes over the recovery process once the report of accident is made. It saves expenses for the injured workman and prevents potential victimization of the worker if he were to sue the employer directly. Besides an employer commits an offence if he fails to report an accident. This however does not stop an injured employee himself making a claim under the Act: Section 14(4).

[16] The plaintiff therefore could have initiated the action himself. The plaintiff has not explained why he waited so long since 4th April 1992 to make efforts to pursue his claim. He only began enquiries in 2001 and then immediately he was given a form to fill. However it was too late.

[17] Having seen the plaintiff, I was not impressed by his evidence. He blamed everybody except himself. He blamed the hospital doctors who told him he had no file. He probably did not have a file as I have found earlier that he was not injured at work.

[18] He also blamed the Labour Office. He told the court the Labour Office too told him there was no file. He also at first blamed the Office of the Ombudsman for not responding to his complaint. With much prodding, he finally agreed that the Ombudsman had responded.

[19] All the activity from the plaintiff points to a report in 2001. He went to Doctor Veitogavi in May 2001. He went to the Labour Office in May 2001. He got Bhim Sharma to write a note on 12th July 2001. He complained to the Ombudsman on 21st May 2001. Hence all the documentary evidence is centered around 2001. I find the first complaint was made by the plaintiff in May 2001.

Conclusions:

[20] I first find that the plaintiff was not injured at work. Further, even if he was injured, he did not report the matter to the employer till 2001, some nine years later. Also, I have preferred the evidence of Doctor Emosi Taloga so any injury he suffered would not entitle him to any compensation. By 2001, this claim was well and truly statute barred. The plaintiff in this case is faced with insurmountable difficulties at every step of his case.

[21] Accordingly I dismiss the plaintiff’s claim with costs which I summarily fix in the sum of $2,000.00 to be paid in twenty-one (21) days.

[Jiten Singh]
JUDGE

At Suva
10th September 2008