Prasad v Kumar [2008] FJHC 368; HBC 252.2002S (20 June 2008)

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CHANDRIKA PRASAD
(f/n Jagdishwar Prasad) of Lot 9, Sivi Road, Caubati,
Nasinu in the Republic of Fiji Islands,
Painter but presently unemployed.
PLAINTIFF

KISHORE KUMAR
(f/n unknown to the Plaintiff) trading as
SHARNIK CONSTRUCTION of 22
Namuka Street, Samabula, Suva in the
Republic of Fiji Islands, Businessman.
DEFENDANT

Counsel for the Plaintiff: R Naidu: Naidu Law
Counsel for 1^st Defendant: A Kohil: Kohli & Singh

This is an action in tort. The plaintiff is seeking damages from the defendant for injuries he sustained in the course of his employment. The injuries the plaintiff claims, were caused by the defendant's negligence by breach of duty of care.

Background
The plaintiff, Chandrika Prasad who is a painter by profession, was 47 years old at the time of the accident. On or around 17 July 2001 he was employed alongside one Lliesa Cama, by the defendant, to paint a house located at Mead Road, Nabua, a suburb of Suva. The building was a doable-storeyed residence. The plaintiff was tasked to paint the outside of the house. He was provided a ladder some 4.5 metres long, by the defendant. It did not allow the plaintiff access to the upper part of the building, about 5 metres high. He requested and was given another ladder belonging to the owner of the house. Together with Ifesa Cama, the plaintiff joined the two ladders, thus extending the plaintiff's reach to the top of the house. A little later, upon descending the ladder, the ladder slid at its footing resulting in the plaintiff's fall. He fell from a height of approximately 27 feet onto a hard soapstone surface ground resulting in his injuries, the details of which are set out below. There was scaffolding set up on the site where the accident occurred. According to the plaintiff, he asked for its use, but was instructed b y the defendants' just to use the ladder. This is denied by the defendant.

The particulars of the defendant's negligence according to the plaintiff, includes:

- exposing him to a risk of injury or damage of which he knew or ought to have known.

The plaintiff also relies, so far as it is necessary, on the doctrine of res ipsa locquitur.

The defendant denies liability alleging that the plaintiff had suffered injuries through his own negligent conduct in

- failing to take other safety precautions, including wearing of safety, boots and

The plaintiff was admitted on 17 July 2001 to the Colonial War Memorial Hospital. He had sustained a fractured right ankle as well as a fracture of left calcaneum (heel). The fracture was treated with a padded crepe bandage. He was kept in hospital until he was discharged on 26 July 2001.

Subsequent medical review report of 9 July, 2003 by Dr Eddie McCaig noted that the plaintiff is:

“... walking with a bilateral antalgic gait (painful gait). He has lost the extreme of left ankle function and he has only a jog of subtalar joint motion. The well-healed surgical scar over the medial malleous is noted.

The right heel is varus (inverted) and he has lost about 50 percent of ankle function ..."

The plaintiff is claiming general damages for pain and suffering and loss of amenities, as well as special damages plus interests.

At common law an employer is under a duty to take reasonable care for the safety of his employees so as not to expose them to unnecessary risk. This duty of care must be considered and in measuring it, one must balance the risk against the measures necessary to eliminate the risk: see Denning LJ in Watt v Hetfordshire County Council [1954] 2AER 368.

Our Health and Safety at Work Act 1994 and its Regulations, in addition to common law obligation, impose on every employer a general duty to ensure, so as far as reasonably practicable, the health safety and welfare at work of all his employees. It must however be noted that the duty under the Act does not give rise to civil liability. This is still govern by common law.

The employers' duty to take reasonable care is personal to him. The duty is a continuing one both in the provision of a proper plant and the maintenance of a proper system. Under it, the employer is obliged to provide the following:

For the plaintiff, in order to succeed in an action for damages against his employer, he must show that his injuries were caused by the employer's breach of duty. The onus is on the plaintiff to establish the employer's breach of duty and that the breach caused or materially contributed to his injuries.

In this case, it is not in dispute that the plaintiff: and his co-worker Iliesa Cama, were driven to their work site, a house at Mead Road, by the defendant at around 7.30a.m. on 27 July, 2001. There they were told to complete the painting of a two-storey house. According to the defendant, they were provided with the following safety work equipment: a ladder, scaffoldings, hard hats and safety boots and belts. There is evidence that the roof had been painted first, days before with the aid of the scaffoldings and with an additional worker, Abdul Aiyas, the most senior of the defendant's employees. On 17 July, the plaintiff with Iliesa Cama continued painting the house from the rear then the sides and finally the frontage.

The parties agree that the painting of the upper section of the front would not have been possible with the use of the single ladder as it was too short for the employees to reach the second storey. The obvious solution would have been the use of the scaffoldings already erected but located towards driveway of the house. There is dispute as to why it was not used. The defendant gave evidence that he had instructed the plaintiff to use the scaffolding to complete the painting. Abdul Aiyas, the senior employee, but who was not at work on the 17^th July, also in his evidence said that he had directed the plaintiff to use the scaffolding for completion of work. However both the plaintiff and Iliesa Cama are adamant that the defendant had specifically prohibited them from using the scaffoldings; that they should rely on the use of ladder only to enable them to finish the job quickly as the defendant had other painting contracts awaiting.

The Court having listened to both sides and their witnesses, believes the plaintiffs and Iliesa Cama's version of the event. The defendant was aware that there were only two, instead of the four employees, for the day to complete the task. Without the presence of the leading hand, Abdul Aiyas, the defendant would have been concerned at the delay that would have been caused by the moving of the scaffoldings from where it was (disassembling) to the front of the house (re-assembling) to enable the plaintiff to reach the second floor front facade of the house. The task was to complete the painting of the house as soon as possible so that the defendant can move his employees on to the next contract. It was, the Court finds, the instruction by the defendant that the plaintiff and Iliesa Cama complete the painting of the house without the use of the scaffoldings.

Having being left only with a ladder to work with, the plaintiff, with the help of Iliesa Cama, joined together 2 ladders, the other Mr Cama borrowed from the owner of the house, to allow plaintiff access to the upper side of the second storey building. According to Mr Cama, he joined the two ladders by tying two ends with “electricity
wires". With the “extended" ladder leaned against the side of the house, the plaintiff was able to reach and paint the upper front side of the building. As Mr Cama was preoccupied with the painting of the left side of the house, and there being no other employee around, the plaintiff was left on his own on top of the ladder which was neither secured at the top or bottom to stabilise the ladder and/or stop it moving or sliding. The accident, as the saying goes, was waiting to happen. It did. The foot of the ladder slipped and the plaintiff tumbled to earth resulting in his injuries.

It is clear beyond doubt, from all the evidence before this Court, that the defendant was in breach of his duty to take reasonable care of the plaintiff, his employee. He failed to provide a proper and safe equipment from which the plaintiff could with relatively safety, complete the painting of the upper portion of the front facade of the house. Second, the defendant failed, even in allowing the plaintiff the use of the ladder(s), to provide ropes for the purpose of securing the ends of the ladder, given the fact that plaintiff was expected to work on his own. Third, and following from the second, the defendant did not provide proper supervision for the two employees on the day in question. The defendant claimed that he would visit the work side from time to time to supervise. In the Court's view supervision in this sense, and especially involving work with elements of danger, requires continuous on the spot or site supervision. One or two visits a day does not amount to proper supervision as required by the law. In the circumstances I have just described, the defendant as the employer, is under an obligation to provide effective supervision to ensure that reasonable safety precautions are observed: Wilson & Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57.

By the same token the Court also notes that it is an implied term of the contract of employment at common law that an employee takes upon himself risks necessarily incidental to his employment. The defendant may then well argue in this case that the plaintiff was fully aware of the dangerous character of the work upon which he was engaged and therefore the maxim “Volenti non fit injuria" should apply. However, the Court holds that whilst there may well be risk involved in the work, knowledge of which is known to the employee, the maxim would not apply to situation as in this instance, where the injuries to the plaintiff had been created or enhanced by the negligence of the employer.

I do not think it is necessary to discuss the cases of General Cleaning Contractors v. Christmas [1953] AC 180; Waisale Rauqe v. Attorney General of Fiji FCA ABU 400 of 20005; and Ajay Kumar v. Fletcher Construction (Fiji) Ltd CA 316/1997, cited by Counsel for the plaintiff in support of the common law duty of an employer to take reasonable care for the safety of his employees, whether the employment is inherently dangerous or not. This Court adopts totally their pronouncements.
In the end, the Court finds the defendant negligent in its duty to take care of the plaintiff's safety who suffered injuries arising in the course of his employment.

The defendant alleges contributory negligence by the plaintiff in firstly, not using the scaffoldings on site to paint the upper storey of the building. The Court has already found that the defendant on the contrary, had denied the plaintiff the use of the scaffoldings. The defendant then alleged that the plaintiff had failed to use the safety equipment provided for his use during the painting work. These included; hard hats, safety harness, and safety boots. Again, from the evidence before this Court, I am satisfied that the plaintiff was not issued with a hard hat or safety harness on the day in question.

The plaintiff on the other hand was issued with a pair of safety boots and evidence showed that he was wearing it on the morning of 17 July, when he started work. When he fell off the ladder on the afternoon, the plaintiff was only wearing a pair of “flip flops". The Court believes that sometime during the day, the plaintiff had exchanged his safety boots for the "flip flops". While the plaintiff insisted in his evidence that he continued to wear his “gumboots" while painting although it was heavy and cumbersome, I am satisfied from the evidence of others, that he had in fact got out of his safety boots for the very reason that he may have found it unwieldy and impeded his work.

The question for the Court to decide is whether the plaintiff's injuries would have been avoided or the extent of injuries reduced, if he had on safety boots when he fell off the ladder. Considering the height from which the plaintiff fell of approximately 27 feet, and the fact that he landed on hard soapstone surface, l am satisfied that the injuries was unavoidable. The injuries to the plaintiff were mainly around the feet and ankle areas and the Court is equally satisfied, that these injuries would not have been as serious, if the plaintiff had his safety boots on at the time of the accident. The conclusion by the Court is that the injuries would not have been avoided. However, by the plaintiff not using the safety boots provided by the defendant, he did contribute to the seriousness of his injuries. The Court assesses the extent of the plaintiff's contribution to his own injuries at 25 percent.

This normally covers any claim for pain and suffering and loss of amenities of life. As for pain and suffering, the plaintiff would have suffered pains from the moment of the accident, although if he insisted that he lost conscious when he landed on the hard surface, he could not possibly have felt any pains during this period of unconsciousness. Nevertheless, considering the nature of his injuries, the Court accepts that continuing pains from his injuries during the period of his hospitalization of 9 days and the 7 months or so of recuperation following. Medical reviews done by Doctors Taloga and McCaig, orthopedic surgeons, suggest that the plaintiff continues to experience pains. Dr Taloga in his report of 21 February, 2005 stated that the plaintiff “has chronic pain and deformitory of the heel". Dr McCaig's report of a more comprehensive character, dated 9 July 2003, states that:

This, it must be noted, is not the professional opinion of Dr McCaig, but what was told to him by the plaintiff. However, what is relevant, as far as the Court is concerned, in the ascertainment of the degree and extent of the pain and suffering of the plaintiff, is Dr McCaig's opinion an actual physical examination of the plaintiff, noting “Examination sees Chandrika to be walking with a bilateral antalgic gait (painful gait)"

The other important factor the Court notes, from Dr McCaig's report, is that the plaintiff had injured previously his left ankle some 20 years ago and that this had resulted in surgery with a screw in-situ in the medial malleous. There is according to Dr McCaig, evidence of osteo arthritis in this ankle joint which is unrelated to the plaintiff's accident of 17 July 2001. It is common knowledge that the onset of osteo arthritis brings on extreme and sometimes long periods of pain to the victim. It is not beyond comprehension therefore that some continuing pains experienced by the plaintiff, is due to osteo arthritis of his left ankle; totally separate from the injuries the plaintiff sustained from his fall of 17 July, 2001. Nevertheless, the Court accepts that plaintiff will still continue to experience some pain from his latest ankle and foot injuries now and in the future.

Counsel for the plaintiff referred the Court to some comparable awards for pain and suffering. These include Ram Karan v. Niranjans Autoport Ltd. & Or Suva CA 330/1977; Govind Sam v. Karl Francis Obrian & Or Ltka CA 349/1997; Sanaila Baleiwai v. The Attorney-General of Fiji Suva CA 495/1999; and Aliana Kotaiwasawasa & Or v. the Attorney-General of Fiji Suva CA 192/2000. The awards ranged from $30,000 to $50,000. In all of these cases however, the injuries sustained were extensive and more serious than the plaintiff's in this case. There are in addition comparable cases and certainly insofar as the extent of injuries, that this Court finds very useful in making its assessment. In Ram Deo v. Tropicwoods Ltd. Labasa CA 4/1991, the plaintiff sustained fractures to both legs, as well as a dislocated hip. He was hospitalised for 68 days. The Court awarded $13,000 in general damages. The plaintiff was aged 44. In Apisai Malani v. Punja & Sons Ltd., Ltka CA 4/1997, the plaintiff also suffered fractures to his legs and hip. He was hospitalised for 2 weeks and was on crutches for 12 weeks. The injuries also resulted in the shortening of his left leg by 2cm. The Court awarded general damages of $25,000. The plaintiff was 49 years old.

In this case; the plaintiff sustained fracture of right ankle and fracture of heel. He walks with a painful gait and together with some ankle joint discomfort, he is susceptible to these pains in the foreseeable future. Considering the nature of injuries and extent of pains that the plaintiff has suffered and will likely to experience in the future, and taking into consideration the comparable cases and awards made by the Courts previously, I am satisfied that an award of $18,000 would be appropriate.

As to loss of amenities of life, damages awarded under this head is intended to cover a person's loss of enjoyment of life, including "any of the five amenities, loss of sex drive, damage to the plaintiff's married prospects, loss of enjoyment of hobbies, enjoyment and indeed loss of any facet of life": see Rajesh Prakash v. Kamlesh Ramesh Parmar & Or Suva HC 350/1995. The plaintiff's physical condition after the accident and several reviews, as stated in Dr McCaig's report of 9 July 2003, speaks of a person who walks with a gait; who has lost about 50 per cent of his right ankle function and the same ankle inverted by 10 degrees. His left ankle was previously injured but in turn contributes to the plaintiff's inability to perform or work. The plaintiff claims of loss include, not been able to participate in football/soccer, cannot walk long distance, sexual dysfunction, inability to wear shoes and to accompany his wife shopping and to social occasions.

I have no doubt that the plaintiff, because of the accident as detailed in the medical reports, would find some difficulty into walking for long distance, fitting into shoes, and participating in sports, although in the case of the latter, at his age of 44 at the time of the accident, he realistically could not be expected to continue such pursuit as soccer, for any great deal longer. Deprivation of sleep and perhaps sexual dysfunction are possible effects of pains and deformities resulting from injuries both from the 17 July 2001 accident as well as from the earlier one. In all the Court recognises the merits in the plaintiff's claim for loss of amenities associated with the injuries sustained in the accident, with the proviso that some will be of short duration while others are not exclusively brought about by the defendant's negligence of 17 July 2001. An award of $10,000 is appropriate under this head. Under general damages for pain and suffering and loss of amenities the plaintiff is awarded the sum of $18,000 + $10,000 = $28,000.

Under general damages for future loss of earnings, the plaintiff is claiming $41,600.00. The plaintiff was earning $80.00 per week at the time of the accident. He was 44 at that time. He submits that a multiplier of 10 is appropriate, given his age ($80 x 52 x 10). Counsel referred to Virendra Kurmar v. Viliame Waga & Or Ltka. CA 92/1998 and Ram Karan v. Niranjan Autoports Ltd Suva CA 330/1997 where multipliers of 16 and 14 were used for plaintiffs aged 44 and 38 respectively. However in this case the plaintiff was employed only as a casual labourer by the defendant. As such the plaintiff cannot claim that he would have remained in the permanent employment of the defendant for the next 10 years. According to the defendant, the plaintiff is someone he had met in a religious gathering months before the accident. The plaintiff had asked for work and he had given him work on a case by case or contract by contract basis. In the circumstances, the Court agrees that the multiplier of 10 is untenable. A more reasonable figure, given the nature of their working relations is 4. Under this head, the Court assesses loss of prospective earnings as $80 x 52 x 4 = $16,640.

This covers actual economic loss, out of pocket expenses including medical and travel expenses. For medical expenses, the plaintiff claims the actual costs of medication, the medical reports, the cost of crutches and transportation costs in the period involving his medical reviews. No specific sum had been pleaded by the plaintiff. Neither has he produced any receipts to substantiate his claims. In the circumstances, I am reluctant to give any award under these claims.

As for economic loss, the plaintiff claims that he has since the accident, been unable to work because of his injuries and that except for the immediate 6 weeks after the accident when he was paid his wages, he has not found any employment.

Economic loss under special damages means loss of earnings. In this case the plaintiff is claiming loss from the time of accident to the date of hearing. The defendant ceased paying the plaintiffs salary in August, 2001. The hearing began on 1 March 2005. The plaintiff is claiming a sum of $14,400 ($80 x 180 weeks) representing loss salary or earnings. The Court is satisfied that the plaintiff is entitled to claim loss of earnings in the amount of $14,400.

Interest of 6 per cent is awarded on special damages from the date of the injury to the date of hearing. On general damages, the more appropriate rate is 3 percent from the date of issuance of the Writ to the date of judgment.

(i) (ii)	Loss of earnings Interest at 6 percent from 1.09.01 to 1.03.05		$14,400.00 3,024.00
			$17,424.00
2. General Damages
(i)	Pain and suffering, and loss of
	Amenities of life	:	$28,000.00
(ii)	Future loss of earnings	:	16,640.00
			$44,640.00
(iii)	Interest at 3 per cent from
	13.06.02 to 20.06.08	:	8,071.99
			$52,711.99

3. Total damages awarded		$70,135.99
4. Less 25 per cent contributory negligence
by the plaintiff		17,534.00
Judgment is entered far the plaintiff in the amount of	:	$52,601.99

Costs of $500.00 is summarily assessed against the defendant to be paid within 14 days.

High Court of Fiji

Prasad v Kumar [2008] FJHC 368; HBC 252.2002S (20 June 2008)