In re Holy Trinity Anglican School [2008] FJHC 96; Civil Action 8.2007 (9 May 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Action No.: 08 of 2007

BETWEEN:

IN THE MATTER OF
HOLY TRINITY ANGLICAN SCHOOL
Appellant

AND:

IN THE MATTER OF AN APPLICATION BETWEEN
THE LABOUR OFFICER
FOR AND ON BEHALF OF THE
DEFENDANTS OF SELA TOALOA (Deceased)
Respondent

Mr. N. Prasad for Applicant
Ms S. Serulagilagi for Respondent

Date of Hearing: 15th April 2008
Date of Judgment: 9th May 2008

JUDGMENT

Sela Toaloa aged 71 years was employed by the Holy Trinity Anglican School as a gardener/labourer/security guard. He died on 4th April 2007 while resting in a storeroom in the school compound. He had told his workmate that he was going to rest. This was after lunch. A short while later, the workmate found him in the storeroom dead. The issue in this case is whether Toaloa’s death was work related or did he die natural death.

Proceedings in Magistrates’ Court:

The Labour Officer brought an action in the Magistrates Court on behalf of the dependants of the deceased for compensation under the Workmen’s Compensation Act. Most of the facts were not in dispute. The only issue was what caused the death. He died of cardiac arrest according to the two doctors. However what caused the heart attack. Was it work related or did he die a natural death. The learned Magistrate had the issue correctly set out. She came to the conclusion that the deceased’s work not only contributed but also accelerated his death. The learned Magistrate on the fourth last paragraph of the judgment stated:

"Taking into consideration all the factors I would accept the view of Doctor Garvez. The age factor, the long hours and the fact that on that day in the hot sun he mowed the lawn not only contributed to his demise but would have accelerated it."

Grounds of Appeal:

Mr. Prasad only advanced two grounds of appeal being grounds one and two. There were that the learned Magistrate erred in law and fact in disregarding that there was no post mortem report available to the court to establish the cause of death and that the Magistrate failed to provide reasons as to why she favoured the evidence of the Garvez to that of Doctor Bakani.

Statutory provisions:

Section 5 of the Workmen’s Compensation Act Cap 94 provides that an injured workman has a right to compensation provided he proves on balance of probability three elements namely:

(a) that the workman suffered personal injury by accident.
(b) that personal injury by accident arose out of the employment.
(c) that the personal injury by accident occurred in the course of employment.

Facts:

There is no dispute that for 8 years prior to his death on 4th April 2007, the deceased worked for Holy Trinity School. He was employed as a gardener and worked from 8.00 a.m. to about 4.00 p.m. He would leave home at 7.00 a.m. and return by 5.00 p.m. He had one other younger person assisting him. Their work was to clean toilets, cut grass, remove rubbish. Every alternate week, he would additionally remain behind at school and be the caretaker at night. This meant that every alternate week he acted as gardener during the day and at night acted as a caretaker. There were two wooden beds in the storeroom where they could rest during lunch hour which was of one hour’s duration. When working as caretaker at night, they slept on a desk in one of the classrooms. On the day of his death, the deceased cut grass with a mower. He started work at 8.00 a.m. He helped clean toilets. They had started to take out rubbish. The deceased told his colleague that he was feeling tired so he went off to rest. He did not complain of any pain.

Evidence of Doctors:

Two doctors testified as to his death. The Death Certificate gives the cause of death as cardio pulmonary arrest which Doctor Bakani explained meant heart stops and breathing ceases. It is not a disease. It is not in dispute that no post mortem was ever done so there was no post mortem report. As such there was no direct evidence as to the cause of the death.

The respondent had called Doctor Alan Garvez who was a consultant physician. He had prepared a medical report based upon photocopy of case summary and LD form prepared by the Labour Officer. In his report he had stated "that the nature of the employment of the deceased could have a contributing factor to his death". However earlier on in his report he had stated that "the aging process carries the risks of developing degenerative diseases that lead to sudden cardiac death that obviously the deceased succumbed to". This suggests that the deceased died of old age and his death was not due to the nature of the work. The report prepared by Doctor Garvez is not conclusive. In his evidence he stated that the opinion he expressed in the report does not state what the cause of death was.

Doctor Bakani, a cardiologist since 1980 also testified and had prepared a report. According to him a normal heart could sustain any physical activity. A diseased heart may not tolerate small activity. He stated that without a post mortem report one could only speculate as to the cause of death. His opinion was that the deceased died a natural death. His view was that there was no evidence to suggest that death was work related despite the age of the deceased. There was no evidence of any struggle at the place where he died and therefore the deceased did not die of heart attack, he reasoned, but his death was a natural one unrelated to work. Doctor Bakani found nothing brutalizing about the deceased’s work.

Analysis:

In the present case there is no evidence that the deceased suffered from diabetes, high blood pressure or had high cholesterol, factors which Dr Bakani outlined as potential causes of heart attack. Therefore there could be no aggravation. In Fiji Sugar Corporation v. The Labour Officer – Civil Appeal 20 of 1995 the deceased had suffered from an attack of myocardial infarction some seven years earlier and had diabetes. He was on medication. He had suffered chest pains two weeks prior to his death. He had a demanding job with great deal of responsibility. It was combination of such factors that led the court to conclude that his work aggravated and accelerated his death.

Generally an appellate court does not interfere with findings of the primary court which had had the advantage of seeing the witnesses and assessing their credibility. However where the primary court has drawn inference from specific facts, the appellate court is in as good a position to evaluate the evidence as the trial judge is and it should form its own independent opinion though it will give weight to the opinion of trial judge: Benmax v. Austin Motor Co. Ltd. – 1955 1 ALL ER 326.

In the present case the report by Dr Garvez at one stage suggests that death could be due to old age and at another that the nature of his employment could have contributed to his death. Dr Bakani says that it was natural death. Doctor Garvez has not explained why he seemingly came to two contradictory conclusions or what he meant by deceased succumbing to some degenerative disease that led to sudden cardiac death.

The appeal is allowed because there is no post mortem report to conclusively explain the cause of death nor did the deceased suffer from any disease which could have been aggravated by the nature of his work. The deceased’s death cannot be attributed to long hours and hot sun. The report of Doctor Garvez is ambiguous and it gives two possible conclusions. And one of those conclusions agrees with what Doctor Bakani says that the deceased died a natural death.

Accordingly I allow the appeal with costs summarily fixed in the sum of $400.00.

[Jiten Singh]
JUDGE

At Suva
9th May 2008