Krishna v Standard Concrete Industries Ltd [2008] FJHC 42; HBC17.2006 (19 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION

Civil Action No.: HBC 17 of 2006

BETWEEN:

HARI RAJU KRISHNA
Plaintiff

AND:

STANDARD CONCRETE INDUSTRIES LIMITED
Defendant

Mr. R.P. Singh for Plaintiff
Mr. A.K. Narayan for Defendant

Date of Hearing: 29th February 2008
Date of Judgment: 19th March 2008

JUDGMENT

BACKGROUND:

[1] In 2004 the plaintiff who was a welder by profession worked for the defendant. The defendant owned a quarry in Navua. On 4th April 2003, the plaintiff with others finished welding a 16-meter long iron frame in their workshop in Navua. After the frame had been completed, it had to be taken to the crusher site for installation, a distance of about 100 meters. This iron frame was heavy; according to the plaintiff it weighed about 5 tons. It could not be carried by manpower. It was accordingly carried to the crusher site about 100 meters away from the workshop by a digger.

[2] It was a slow process. The frame had chains hooked to its four corners. There were four chains. Two chains had one common ring; the other two also had another common ring. Once the four chains were tied to the four corners, the two rings were taken by the employees and hooked to a hook which was attached to the digger bucket. This hook had a locking device in it so the rings would not come off.

[3] On 4th April 2003, this hooking was done at the workshop. The digger then took the iron frame to the crusher site. It went that distance unassisted. There was a lot of evidence and cross examination as to who walked behind the digger and who was in front. All this is strictly irrelevant in view of the fact that there is no dispute that it was at the crusher site that the plaintiff got injured. It is also not in dispute that the injury was serious requiring hospitalization and surgery.

[4] On the issue of liability, there are two central questions:

(a) Did the plaintiff disobey instructions not to go near the iron frame when it was being unloaded from the digger?

(b) Was the defendant’s failure to maintain a safe system of work the operational and effective cause of the accident?

ISSUE 1 - DID THE PLAINTIFF DISOBEY ORDERS?

[5] According to the plaintiff four people plus the digger operator went from workshop to the crusher site. The plaintiff stated that the supervisor namely Leca told them to line the frame as it was being brought down by the digger to the ground.

[6] He told me that Junior and Roopesh were holding the frame on one side and he was holding it on the other side trying to line it between the crusher jaw and screen. He told the court that as they were turning the frame the chain ring came off the hook and the side of frame he was holding fell on his right leg.

[7] The defendant’s version of events is that the plaintiff had been cautioned in no uncertain terms to keep away from the frame but he did not. The defendant called two witnesses to support this. Jiujiua Leca was the supervisor at the Navua Quarry that day. He was next in chain of command to one Paul Stacey.

[8] According to Leca, Roopesh and the plaintiff connected the chains to the frame and the digger. He told the court that the frame was taken to the crusher site by the digger. At the site, the digger had to swing and he stated that both Paul Stacey and he shouted to Roopesh and the plaintiff to move away. Paul Stacey is their boss.

[9] According to him no instructions were given to anyone to hold the frame and put it on the ground. He said the digger could do it itself. He denied that he too held the frame.

[10] He also told the court that the plaintiff initially followed instructions to keep away but later came to hold the frame. The frame swung and hit his leg. Roopesh did not hold the frame.

[11] Roopesh Chandra an employee of the defendant who was also at the site that day gave evidence substantially in conformity with what Leca told the court.

[12] The defence version is that there was no need to line the frame that day as it was going to be mounted the next morning when it would be straightened. In short the digger operator could bring down the frame himself. If this version is correct then what was the need for all other employees to follow the digger or come ahead of it to the crusher site. Their presence at the crusher site would be superfluous. Leca says he came to tell the digger operator where to drop the frame. Then what was the necessity for others? The digger operator after dropping the frame could easily have taken the rings off. Taking rings off the hook needs no expertise. Alternatively Leca himself could have taken the rings off.

[13] I believe the plaintiff on this. The frame mounted by chains onto the digger hook and being 16 meters long would swing from side to side and unlikely to come down without swaying. I believe that the other employees came there so they could hold the frame and guide it as the digger operator tried to bring it down. I find that the plaintiff was told to hold the frame in order to guide it down. It was not a moment of madness on part of plaintiff’s part that he rushed to hold the frame despite instructions to the contrary.

(b) WHAT WAS THE OPERATIVE CAUSE OF THE ACCIDENT?

[14] The plaintiff stated in cross-examination that there is a locking device on the hook. He says he told the supervisor and Paul Stacey that the clip on the hook was not there. He says he did this at the workshop. He also told the court that they had not lifted a frame as big as this before. This particular fact, absence of clip, is not stated in the statement of claim as being one of the reasons plaintiff claimed that the system of work was unsafe. Leca stated that after the incident he checked the hook and ring. He found defect in the spring to the hook. He said the spring broke and it made the hook unable to hold the ring inside. Leca also told the court that in the workshop he told people to move away as he was fearful it may fall down. Something must have triggered this concern and I believe that it was because the plaintiff had drawn his attention to the defect in the hook and because of the large size of the frame.

[15] The defendants were moving a large frame. They must have over a period of time realized the potential risk inherent in such procedure. They should also have realized the importance of the locking device in the hook. Checking the hook before each transportation of frame would not have taken long. There is no such evidence before me of the last time when Paul Stacey or Leca had carried out examination of the hook.

[16] The plaintiff also told the court that their boss Paul Stacey was well qualified and did not compromise safety. He however also immediately afterwards stated that because of Stacey he got injured. The plaintiff also told the court that as a welder he knew when danger existed. He said he knew that he had to keep away from the frame when it was transported and that is why he kept behind the digger.

[17] A large iron frame being moved by a digger with it being suspended in the air is bound to swing. Such a danger would be obvious to all. Anyone with some commonsense would realize that he/she ran the risk of getting hit if one went close to it. I believe the plaintiff was aware of such risk. I also believe him that he went to hold the frame because he was asked to and not voluntarily. This is really the operative cause of the accident. He could hardly go against his employer’s orders as he could risk being terminated or suspended.

[18] There is no doubt that an employer owes his employees a duty to take reasonable care for the safety of his employees. This extends to providing a safe work place, safe equipment, competent fellow employees and safe system of work in all the circumstances: Wilson v. Clyde Co. Ltd. v. English - 1939 AC 57. 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 where the employer failed to provide protective goggles to a mechanic who had sight of only one eye. A metal splinter struck his good eye and he lost sight of that eye. The chance of a splinter hitting the eye was slight but the consequences were serious. Therefore failure to provide the goggles was held to be unreasonable.

[19] In the present case the following factors are important in considering negligence. First, the size of the iron frame being 16 meters long according to one witness and 15 meters according to plaintiff. Secondly, its weight, the plaintiff stated it weighed about 5 tons. Thirdly, that when suspended it would tend to swing and could swing in any direction. It therefore should have been obvious to an employer that to send a person or persons to hold the frame was exposing that person to a foreseeable harm. I find the employer negligent.

SECTION 9 OF HEALTH & SAFETY AT WORK ACT:

[20] There is no need for me to consider the provisions of this Act but in deference to Mr. Narayan’s submission on this, I feel constrained to do so.

[21] Mr. Narayan submitted that the plaintiff’s claim is based on breach of statutory duty namely failing to maintain a safe and proper system of work in breach of Section 9 of Health & Safety Act 1996. He relies upon Section 15 of the Act which states that nothing in this part of the Act (which includes Section 9) shall be construed as conferring a right of action in any civil proceedings in respect of any contravention.

[22] Legislation on workplace accidents falls into two broad categories – those which attempt to prevent accidents and injuries and secondly those which deal with compensating workers for injuries suffered as a result of breach of law. The three main pieces legislation of relevance to workplace accident are Health & Safety Act, Factories Act and Workmen’s Compensation Act.

[23] The older legislation – the Factories Act Cap 99 – was an act which regulated conditions of work in factories and to protect health and safety and welfare of persons employed therein. The Factories Act focused primarily on particular workplaces and processes. However there has been a growing awareness about occupational diseases and therefore the emphasis now is not only on safety from accidents but also from illnesses. The Health & Safety at Work Act 4 of 1996 is the principal legislation in the area of workplace mishaps. The name of the Act suggests we should protect the safety of all workers not just workers in the factories.

[24] The Health & Safety Act also has accompanying regulations known as Health & Safety at Work (General Workplace Conditions) Regulations 2003 which came into force on 1st July 2003. One of the employers’ duties is to provide a safe system of work. The regulations have given this duty a new impetus by not only looking at the static conditions of the workplace but also at the way it is organized. It takes a proactive approach to industrial safety particularly in risk assessment – Regulation 39, 40, 41 which deal with manual handling. These regulations require an ongoing process.

[25] By these regulations employers are encouraged under the pain of penalty up to $20,000.00 if possible to avoid risk altogether, doing away with a risk e.g. if stairs are slippery, replace them rather then placing signs "slippery if wet", taking advantage of continual progress for improving work methods and making them safer.

[26] The major provisions of the Act proper are that it does not allow anyone to compromise safety. One cannot contract out or limit the protective provisions of the Act – Section 7(1) and (2). Section 9 contains the duties of the employer. It confirms the common law duty. It states every employer shall ensure the health and safety at work of all his or her workers.

[27] Section 9(2) provides some of the details of duties imposed on an employer to ensure health and safety. These are to provide and maintain safe equipment, to provide necessary information and institutional training about the equipment, supervising staff and use of such equipment, provision of maintenance to the extent reasonably practicable of a safe and healthy place of work and means of access and egress.

[28] The similarity between the duties laid in Section 9 of the employer’s common law duty is obvious. However Section 15 goes further than the common law by providing for ongoing training and supervision of skill and details of relevant research carried out. Subsection (1) gives the employer’s general duty and subsection (2) gives the traditional headings of that duty.

[29] The legislature must have felt very strongly that if these general duties were not backed up by sanctions, then the employers would disregard them. So in Section 9(4) penalties are provided for.

[30] It appears therefore that the Health and Safety at Work Act is a preventive piece of legislation. It lays emphasis on prevention of accidents. If an Act does no more than state that a certain act constitutes a criminal offence, it may be taken to indicate that the person injuriously affected by the commission of the offence is intended to have a civil remedy: Rickless v. United Artists Corporation - (1987) 1 ALL 197. However the Health & Safety at Work Act is not silent on this aspect.

[31] Mr. Narayan submits that Section 15 prevents a civil remedy if an employer breaches the Act. One of the objects of the Act as the long title suggests was to reform the law relating to the health and safety of workers. The Act also forbids contracting out of the provisions of the Act. As Section 3(1) indicates it applies to all workplaces except for a named few. The Act would lose a lot of its efficacy and objectives if a worker injured as a result of employer’s breach of the provisions of the Act could not sue him. What Section 15 means is that simply because there is a breach of a section does not ipso facto give a worker a right of action for damages. For example under Section 9(2)(c) if an employer fails to provide in appropriate languages information regarding the use which a plant is designed for or fails to provide information about any research or tests carried out on any substance, it does not give cause for civil proceedings. I am of the view what Section 15 means is that there has to be an injury as a result of failure to comply with the Act before one can bring civil proceedings. Section 15 does not prohibit civil proceedings but retains the essence of tort law that there must be injury to found a claim.

WHAT INJURIES AND DISABILITY DID THE PLAINTIFF SUFFER?

[31] I must commend the defendant employer for the total care it took of the plaintiff immediately after the accident. It took him straight to the CWM Hospital in Suva where the medical facilities are superior to what one would expect at Navua Hospital. Secondly, once the doctors at the CWM Hospital did not attend to the plaintiff for an hour or so, it rushed the defendant to the Suva Private Hospital where he underwent surgery and follow up. All the expenses for surgery, treatment, admission and follow up were paid for by the defendant.

[32] It is not in dispute that the plaintiff suffered fracture of the right ankle bone. It was a bimalleolar fracture that is on both sides of the ankle bone. Screws and plates were placed on the bone by means of an operation. The screws and plates are still there. The screw heads can be felt over the outer bone.

[33] The plaintiff says as a result of the screws he cannot wear safety boots which in turn he says results in him not being able to do welding. However, there is evidence from Doctor Joeli Mareko and Doctor Eddie McCaig that the screw and the plates can be removed by cutting the skin. There is risk of bleeding and infection. There is also risk of the patient reacting to some drug. But these risks are small. According to Doctor Mareko removing the screws involves a less complicated surgery than inserting them. This should heal in six months. So this concern of the plaintiff can be taken care of according to the two doctors. Doctor Mareko in fact had told the plaintiff that screws could be removed.

[34] The scars have healed well. The fractures have properly healed. The bones are not malaligned. Where the two doctors differ as in percentage disability. Doctor Mareko considered that the plaintiff suffered from 10 percent disability while Doctor McCaig considered that he suffered from no functional disability. In December 2005 Doctor Mareko had calculated his disability at 15 percent so he had seen an improvement over three years.

[35] I am of the view that the plaintiff can do work now if he is minded to. If he wants to continue to work as a welder, he can do so after having the screws removed as suggested by the two doctors. His temporary incapacity after the first surgery would have lasted about nine months and removal of screws would result in further temporary incapacity of roughly six months.

[36] I find that he suffers from no permanent disability but this is not to say that he suffers from no pain.

DAMAGES:

[37] The plaintiff’s prayers in the statement of claim seek special damages in the sum of $500.00 and general damages and interest at the rate of 10 percent per annum and in the alternative compensation under the Workmen’s Compensation Act.

[38] A plaintiff’s prayers must be supported by the pleadings. There must be enough facts pleaded in the body of the statement of claim to support every prayer. I agree with Mr. Narayan that there is inadequate information in the body of the claim for plaintiff to seek loss of wages.

Special Damages:

[39] The plaintiff’s medical expenses and transport expenses to Suva Private Hospital were paid for by the defendant. The plaintiff told me that he went to Lautoka Hospital many times. Later he said five times. According to hospital records, Dr Mareko said the plaintiff saw him three times. I accept Doctor Mareko’s version of three trips as he testified from hospital records. The plaintiff stated taxi fares to Lautoka by running cab cost $22.00 each way. His latest visit to Lautoka was in July 2007 by which time he had shifted to Ba. Hence I allow him travel expenses for two visits that is $88.00.

General Damages:

[40] These are awarded for pain and suffering. A fracture is a serious injury. The plaintiff must have felt great pain at the time of infliction of injury. I accept that he would probably still feel some pain at times either due to temperature changes or pressure changes.

[41] The plaintiff was aged 30 at the time of injury in April 2003. After his surgery, he stayed in hospital for two days. Doctor Mareko took X-rays of both ankles and by comparison he stated that there is no sign of osteoarthritis developing.

[42] In Gyan Kuar Nand & Another v. Hira Sami & Others – HBC 167D of 1995 (Lautoka) a sum of $9,500.00 was awarded for fracture of left wrist and fracture of the right ankle.

[43] In Rajesh Prakash v. Kamlesh Ramesh Parmar & Another – HBC 350 of 1996 a 32 year old cinema technician was awarded a sum of $45,000.00 for pain and suffering for fracture of left ankle with permanent incapacity of 20 percent. He walked with a limp and there was development of painful arthritis.

[44] Damages for pain and suffering and assessed by the nature of injury, its severity and its impact on the particular claimant before the court. The awards I have mentioned above are a decade old and with passage of time and inflation some adjustment has to be made. I award the plaintiff the sum of $14,000.00 for pain and suffering being $13,000.00 for past pain and suffering $1,000.00 for future pain and suffering.

[45] The plaintiff is awarded interest at 3 percent per annum on special damages and 6 percent per annum on past pain and suffering from the day of the filing of the writ of summons till the date of judgment.

CONCLUSIONS:

[46] I therefore make the following awards:

(a)	Special damages	$88.00
	Interest on (a)	3.00
(b)	General damages	14,000.00
(c)	Interest on damages for past pain & suffering at 6%	931.00
	TOTAL	= $15,022.00

Orders:

[47] I therefore enter judgment for the plaintiff in the sum of $15,022.00 together with costs summarily fixed in the sum of $3,000.00.

[Jiten Singh]
JUDGE

At Suva
19th March 2008