Nand v Publics Works Department [2008] FJHC 384; HBC0024.2007 (29 August 2008)

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The plaintiff was a carpenter. On 29^th May 2004 he was employed by the Public Works Department. On that day he with others was repairing the roof on the third floor of Labasa Hospital. They were engaged in changing the roofing iron of the roof. The procedure they followed was to remove three sheets of corrugated iron roof at a time and to replace them with two new wider sheets.

This work entailed that the workers had to place their feet on the purlins. The plaintiff while engaged in these duties, slipped and fell sideways and was dangling there. He did not fall to the floor.

In the process he injured his right knee. He has not returned to employment since his injury. He is claiming damages for injury sustained. His ground is that the employer failed to provide a safe system of work.

(b) If the answer to (a) is in the affirmative, then what is the quantum of damages?

The seminal case for workplace or industrial accidents is Wilsons and Clyde Co. Ltd. v. English - [1937] UKHL 2; (1938) AC 57, which established that an employer is under a personal non-delegable duty to take reasonable care to provide a safe work place, safe equipment, competent fellow employees and safe system of work in all the circumstances of the case. The degree of care required would vary according to the probability of an accident occurring and the seriousness of the consequences: Paris v. Stepney Borough Council - [1950] UKHL 3; (1951) AC 367.

The Australian position on employer's duty is expressed in Bankstown Foundry Proprietary Limited v. Braistine - 160 CLR 301 and Hamilton v. Naroof (WA) Pty Ltd - [1956] HCA 42; (1956) 96 CLR, 18 which concluded that the employer's duty to his employees is to take reasonable care to avoid exposing the employee to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with circumstances: The Fiji Court of Appeal adopted the above proposition of law in Satish Chand v. Ram Datt & Labasa Town Council – ABU0118 of 2005.

The Health and Safety at Work Act 4 of 1996 has codified the common law provisions. Section 9 lays down the duties of employers to the employees. Subsection 1 provides that every employer shall ensure the health and safety at work of his/her workers. Subsection (2) provides that an employer contravenes subsection (1) if he fails to provide and maintain plant and systems of work that are safe and without risks to health.

The only safety equipments provided to the plaintiff were safety boots and a hard helmet. There were no safety belts given. Underneath the removed sheets of corrugated iron was sisalation so the purlins and noggins were not visible. This meant that the workers including the plaintiff had to walk on purlins after locating where they were under the sisalation. The sisalation hid the purlins. This created an obvious danger. It was raining mildly that day but the employer wanted the roof covered so water would not leak inside.

Mohammed Sameer (PW3) is involved in construction work. He explained that on a rainy day, it is risky to allow one to work on gable roofs as there is no foot grip. In case of roof slopes of over 15 degrees or 20 degrees or more, one needs to use roof ladders securely fastened to the structure of the roof. More importantly he stated that purlins are not meant for workers to walk upon. I accept his suggestions.

Allowing workers to walk on narrow purlins which themselves were hidden by sisalation is undoubtedly unsafe. The employer could have easily provided planks which were a foot wide at no great extra costs. I hold the first defendant negligent.

The plaintiff suffered anterior cruciate ligament injury with unstable knee joint. He was advised for repair of the anterior cruciate ligament. He underwent an arthroscopy of the right knee at CWM Hospital. Arthroscopy is key hole surgery done to confirm if earlier diagnosis was correct and to decide if the plaintiff needed anterior cruciate ligament surgery.

Dr Taloga, who is an orthopaedic surgeon, stated that he had examined the plaintiff a day prior to the trial, and that both knees of the plaintiff show some laxity. He had looked at arthroscopy record which suggests that he does not require anterior ligament surgery.

Evidence was also given by Doctor Abhay Chaudhary who stated that he was not an expert in this type of surgery. He did not know how anterior cruciate ligament surgery is done. He however stated that the plaintiff had a ligament tear which cannot be repaired without surgery.

Such surgery according to him was available at Suva Private Hospital for somewhere between $5,665.00 to $6,310.00. No one told me whether such surgery would restore the plaintiff back to his pre-accident condition.

The medical evidence as presented was not conclusive. All I can say is that the plaintiff's knee was injured. What some visiting doctor had written on the medical folder does not count for much. The visiting doctor has not testified in court so his opinion is untested.

Doctor Chaudhary told the court that he did not know if loss of ligament can be reversed or not as he is not an expert in this field. He also stated that after arthroscopy the 10% disability could change.

I accept Doctor Taloga's evidence. Of the two doctors who testified Doctor Taloga's expertise was more relevant and he also had access to arthroscopy notes. After examining these notes, he gave the plaintiff 3% disability. He said the injury was not severe and he does not require anterior cruciate ligament surgery. On balance of probability I am not satisfied that the plaintiff requires anterior excruciate ligament surgery.

The parties had agreed to special damages of $1,000.00. I do not know what the special damages are supposed to cover but I believe they are for transport and medicine. Mr. Sen in his submissions has submitted a sum of $30,000.00 for pain and suffering, $6,000.00 for future medical care and $20,000.00 being loss of earnings for four years.

This type of injury is not usually subject of claims before courts. Counsels have not referred me to any cases with comparative injury. However, it is not a minor injury. I grant the plaintiff $14,000.00 for past pain and suffering, $2,000.00 for future pain and suffering.

The plaintiff was employed on a casual basis depending on availability of projects. He was not working full time. In the Pretrial Conference Minutes the parties have agreed that he earned $147.84 nett per week. While not employed he supplemented his income by working outside. His payroll for 2003 shows that he had earned nett of $3,174.00 by 20^th August 2003 or an average of roughly $100.00 per week. He has been out of work for four years so I allow him $20,000.00 for this period.

I allow interest at 3% per annum on special wages and 6% per annum on past pain and suffering from the time of filing of writ to date of judgment.

(a)	Past pain & suffering ... ...	...	...	...	$14,000.00
(b)	Future pain & suffering ... ...	...	...	...	2,000.00
(c)	Loss of wages ... ... ...	...	...	...	20,000.00
(d)	Special damages ... ... ...	...	...	...	1,000.00
(e)	Interest on (a) at 6% per annum from
	15^th May 2007 to today:.. ...	...	...	...	827.00
(f)	Interest at 3% per annum on (c) & (d)	...	...	...	654.00
					$38,526.00

Accordingly I enter judgment for $38,526.00 and in view of the brevity of the case I award costs in the sum of $1,200.00.

High Court of Fiji

Nand v Publics Works Department [2008] FJHC 384; HBC0024.2007 (29 August 2008)