Amin v Chand [2012] FJHC 1015; Action39.2008 (13 April 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NO: 39 OF 2008

BETWEEN:

SHEIKH MOHAMMED AMIN
Plaintiff

AND:

VISHWA CHAND
First Defendant

AND:

COURTS (FIJI) LTD.
Second Defendant

Mr A Kohli for the Plaintiff
Mr A Sen for the Defendants

JUDGMENT

This is an action commenced by writ issued from the High Court on 12 September 2008. The Plaintiff Sheikh Mohammed Amin claims damages for back injury which he alleges was caused by the negligence of the Defendants. At the time the Plaintiff was employed by the Second Defendant as a driver/porter at its Nasekula branch in Labasa. The First Defendant was at the time employed by the Second Defendant as warehouse manager at the same branch premises.

The hearing of the action commenced at Labasa on 6 December 2011 and was completed the following day. The Plaintiff gave evidence and called two witnesses. The First Defendant gave evidence and the Defendants called one other witness. At the conclusion of the evidence the parties sought and were granted leave to file written closing submissions. The submissions were filed by 5 January 2012 and the file was subsequently transferred to the Suva Registry on 7 March 2012 for judgment.

At the commencement of the hearing Counsel sought to have admitted into evidence by consent documents numbered 12 to 28 in the Agreed Bundle of Documents filed on 21 September 2011. The Court directed that those documents be marked as exhibits 1 – 17 respectively.

The thrust of the Plaintiff's claim is set out in paragraphs 4 and 6 (as amended) of his Statement of Claim. They are quoted in full in this judgment for the purpose of understanding the factual basis of the claim:

"4 In the course of his employment the Plaintiff was ordered by the First Defendant, the warehouse manager of the Second Defendant to cart goods from the ground floor to the first floor of its warehouse at Labasa and to cart goods from Labasa branch to its Taveuni branch via a truck and to unload goods at Taveuni branch.

6 (a) As a result of the said orders the Plaintiff on 13 September 2005 carted heavy goods from Labasa to Taveuni and off-loaded the same at its Taveuni branch.

(b) As a result of the said orders the Plaintiff moved heavy goods from the ground floor to the first floor of the warehouse at Labasa on 19 September 2005."

The legal basis of the claim is set out in paragraph 5 of the Statement of Claim which states:

"5 That it was an implied term of the Plaintiff's contract of employment that the Second Defendant would by its servants and or agents take all reasonable care to provide and maintain a safe system of work and effective supervision of the same and would not expose the Plaintiff to risk of accident or damages or injuries and would take all reasonable measures to ensure that the place where the Plaintiff carried out his work and the machines he was required to operate and use were safe and that the Second Defendant would provide and maintain a safe and proper system of work."

On the basis of this paragraph the Plaintiff's claim was pleaded as a cause of action based on contract. As a result it would reasonably he expected that what would follow would be an allegation that the contract had been breached with particulars of breach.

However paragraphs 7 and 8 of the Statement of Claim then set out particulars of negligence against the First and Second Defendants respectively. In paragraph 9 it is alleged that as a result of the said negligent acts the Plaintiff was injured. The injuries are particularised as (a) slipped disc and (b) compression of nerves. In paragraph 10 to 12 particulars are provided as to the loss and damage that has resulted from the injuries. Special damages are pleaded and particularised. The Plaintiff also claims general damages for pain and suffering, loss of amenity and loss of future earnings including loss of future FNPF contributions. Interest and costs are also claimed.

In the Defence the Defendants denied the allegations in the Statement of Claim other than to admit that the Plaintiff was an employee of the Second Defendant on 13 September 2005. The Defendants alleged that on that day the Plaintiff "did his routine works without any request or complaints." The Defendants admit that the Plaintiff took some sick leave in September 2005.

The Defendants pleaded in paragraph 15 of the Defence that "the alleged incident was caused or contributed by the negligence of the Plaintiff". The particulars of contributory negligence are: (a) failing to take proper care of himself when loading and unloading goods, (b) failing to ask for assistance, (c) failing to obey the instructions of the supervisor and (d) attempting to work without any assistance.

In the Minutes of the Pre-Trial Conference dated 8 March 2011 it was agreed that there was an implied term in the contract of employment between the Plaintiff and the Second Defendant which was in the same terms as pleaded in paragraph 5 of the Statement of Claim.

Although not raised by Counsel during the hearing and although not discussed in their closing submissions, it is necessary for the Court to consider the pleadings and determine what cause of action the Plaintiff pleaded. As framed the Statement of Claim first of all pleads the particulars of an implied term of the Plaintiff's contract of employment. However, as noted earlier, the Plaintiff then pleads that he suffered injuries as a result of the negligence of the Defendants. There was an objection taken by the Defendants to paragraph 7 the Plaintiff's claim. It must also be recalled that the Defendants conceded that there was an implied term in the Plaintiff's contract of employment.

However the objection to paragraph 7 of the Statement of Claim raised by the Defendants in paragraph 6 of the Defence is not specified or particularised. The Defendants plead only that paragraph 7 "is not properly pleaded." The Defendants did not subsequently proceed under Order 18 Rule 18 to have any perceived defect remedied. No objection was raised at the trial of the action. The only reference to the issue of pleading in the Defendants' submissions is indirect when in paragraph 14 it is submitted that "the Plaintiff has failed to prove any negligence or breach of duty against the defendants. Since there was no claim for a breach of statutory duty, the reference to "negligence or breach of duty" must be regarded as a tautology.

The Plaintiff has pleaded an implied term of a contract of employment and has alleged negligence in the common law tortious meaning of the word.

It is now well recognised that breach of a contractual duty must be dealt with according to the law of contract, and cannot be regarded as the tort of negligence, even though the same facts may in some cases amount to a breach of contract as well as the tort of negligence. (See Charlesworth and Percy on Negligence 8th Edition at paragraph 1 – 18).

In Matthews –v- Kuwait Bechtel Corporation [1959] 2 QB 57 it was held that the common law placed an employer under a duty to take all reasonable care for the safety of his servants in the course of their work. As a result, where a plaintiff has suffered injury, owing to the defendant's alleged breach of such duty, he was entitled to elect to claim damages either in tort or for breach of contract. The problem with the Statement of Claim is that it is not clear whether the Plaintiff has elected to sue in contract or in tort. There is no doubt that the duty is present. But is the Plaintiff relying on the duty as one imposed by the contract of employment or as one imposed as an obligation under tort law. In some situations (e.g. service out of the jurisdiction or limitation periods) the choice may be of some importance. Certainly the issue is relevant to the remoteness of damage or measure of damages.

In negligence the wrongdoer is responsible for any type of damage which should have been foreseen by a reasonable man as being something of which there was a real risk, even though the risk would only eventuate in very exceptional circumstances, or in the most unusual case, unless the risk was so small that the reasonable man would feel justified in neglecting it, or brushing it aside as far-fetched (See Halsbury's Laws of England 4th Ed Vol 12 para. 1139). In a case involving personal injuries caused by the negligence of another the injured person is entitled to general damages for non-pecuniary loss such as pain and suffering and loss of amenity and enjoyment of life both past and future. He is also entitled to recover damages for pecuniary loss, past and future, for such items as loss of earnings, medical expenses, costs of nursing care and loss of earning capacity.

In cases of breach of contract the contract breaker is responsible for resultant damage which he ought to have foreseen or contemplated when the contract was made as being not unlikely or liable to result from his breach or of which there was a serious possibility or real danger. The requisite degree of likelihood is in general higher in contract than in tort (See Halsbury's supra at para. 1174).

In the present case no significant factor appeared to be present that might be presumed to have influenced the Plaintiff's choice to sue in contract or tort. Furthermore in this case it would appear that there was no significant difference between the two causes of action. The duty imposed under the implied term of the contract of employment is the same duty imposed by the law of negligence. The measure of damages in terms of responsibility for the resultant loss and damage falls within the requisite degree of likehood of both negligence and contract.

The background facts are not in dispute. The Plaintiff was born on 4 March 1964. He is now aged 48 years. He claims to have suffered injury to his back at work on two separate dates in September 2005. At that time he was about 41½ years old.

The Plaintiff commenced employment with the Second Defendant in 1994 as a driver/porter. He also performed other duties as required. At all material times, he was based at the Second Defendant's premises in Labasa. This was a two storey building used as a department store and for storage and display. Refrigerators, beds and other heavy items were stored on the ground floor. Lighter items were stored upstairs. However it was not disputed that some beds, refrigerators and washing machines were on display on the first floor. There was no lift and generally the use of trolleys was not encouraged as the merchandise might be damaged. Heavy goods that were required for display purposes were, if necessary, carried upstairs by two workers, or otherwise by just one worker. In the case of one worker, the item was carried on the shoulder. There was a concrete beam above the stairs at one point that required the lifter to bend as he climbed the stairs and passed under the beam so as to prevent the item from hitting the beam.

Another aspect of the Plaintiff's work was to load and unload trucks. The usual practice was that one person was on the tray. One or more workers would lift items such as refrigerators up to or down from the tray. The person on the tray by himself positioned the items around by lifting or pushing them to or from a designated position on the tray.

The Plaintiff gave evidence that he had frequently complained about the stairs and the beam. He had complained to the First Defendant Vishwa Chand who was the store manage at the time. He was told to work if he wanted the work.

The Plaintiff stated that although an OHS Officer was appointed by management in about 2000, he (the Plaintiff) had never been shown the correct method of lifting or carrying heavy items nor told how he should lift and carry heavy goods.

The Plaintiff's evidence concerning the events that occurred on 13 September 2005 was clear and credible. He was tasked to drive a five ton loaded truck from Labasa to Taveuni. The load consisted of mixed merchandise such as electrical goods, furniture, television sets and washing machines. He was required to assist with loading the truck before departure. He was positioned on the tray. He was required to position and secure the goods on the tray. He was required to push and or lift the items. After loading was completed he drove the truck to his home and early the next morning (at 3.00a.m.) he drove to Savusavu and then to Taveuni. On arrival at the Taveuni branch, the truck was unloaded in much the same way as it had been loaded. Unloading took about 1½ hours. He then returned to Savusavu and then left Savusavu at about 6.00 pm on 14 September. During the journey between Savusavu and Labasa he experienced pain in his right leg and in the middle of his back. He arrived back in Labasa at about 9.00pm. He went straight home with the truck. His pain was severe. He took some pain relieving tablets and managed some sleep.

The next morning he informed his boss that he couldn't go to work. It was apparent to his employer that he was unable to drive or move around. One driver was sent to collect the truck and another employee drove the Plaintiff to the hospital. The driver came to his house and took him to Labasa Hospital. He was given pain medication and with a certificate took 2 days sick leave. He gave his sick certificate to his employer. When he returned to work he asked for light duties. This was refused by the First Defendant. He continued to perform his usual lifting duties, carrying goods from the ground floor to the first floor.

On 19 September 2005 he was carrying a washing machine on his shoulders up the stairs from the ground floor to the first floor. As he bent down whilst passing under the beam he suddenly felt severe pain in his back. He then placed the washing machine on the stairs. A workman took the machine and the Plaintiff went downstairs to the ground floor with some difficulty, holding on to the railing. He reported to the OHS officer, Suruj Narayan, who in turn sent him to the warehouse manager Vishwa Chand who in turn sent him to the relieving manager Mohammed Saheed. The Plaintiff said he was injured at work and asked for transport to go to the hospital. The request was refused. He was told to go by himself and he took a taxi to the outpatient clinic at the Labasa Hospital. He was given more of the same pain medication and a certificate for a further two days leave.

It would appear that the pain did not go away and after two days the Plaintiff returned to the hospital where he was referred to Doctor Joji Bulibeci at the surgical unit. He was asked by the doctor if there was an incident report. He was then told that he needed to have an X ray taken. After the X ray was taken the Plaintiff was admitted to the Labasa Hospital as an in-patient. He was kept in overnight and discharged the following day. He was given further medication. The pain remained. He was re-admitted as an in-patient and on the second occasion was in hospital as an in-patient for "one or two weeks". He was transferred to Suva's CWM Hospital for a Myelogram.

Upon his return to Labasa, the Plaintiff returned home and attended at the hospital clinic. He was told that he should have surgery but that there was a 50% chance of paralysis. He told the Court that he hasn't had the operation because he was told that his chances were better if the operation was performed overseas. He does not know how much overseas surgery would cost. Since then he can only walk with crutches. He said he has no power in his right leg. In fact the Defendants do not dispute the injuries suffered by the Plaintiff. The Plaintiff has not worked since 2005. He has been medically classified as unfit for work.

At the present time the Plaintiff still cannot walk without crutches. With crutches he can walk about a half mile. After that, he feels pain and must rest. He stated that before his back injury he was able to walk between 20 to 30 miles. He used to ride a bicycle every afternoon. In earlier years he had played soccer. He said that he can't enjoy sex since the injury without experiencing pain. He is required to live with pain and to take medication to relieve the pain on a daily basis. He takes medication every four hours but even then he is never completely pain free.

The Plaintiff gave evidence in respect of his special damages that were particularised in a Schedule of Special Damaged dated 6 December 2011. He also relied on the material (wage slips) in the agreed bundle of documents.

Under cross-examination the Plaintiff admitted that prior to 13 September 2005 his sex life had been normal. He admitted that he carried merchandise up the stairs in the same way as other workers did. Heavy items were lifted by two workers. The Plaintiff stated that he was not aware in 2005 that he should bend his knees when lifting heavy items. He maintained that he had never received any training on lifting heavy items.

The Plaintiff denied that there was a second person on the tray helping him unload at Labasa. He maintained that it was always the driver who was on the tray by himself. He did concede that he was allowed to pull heavy goods along the tray.

The Plaintiff admitted that upon his return to Labasa he had parked the truck on his neighbour's property. The neighbour insisted that he have two bowls of yaqona.

He denied that he had asked to work on the afternoon of the day he had been taken to hospital. He stated that he had given the sick certificate to Vishwa Chand and returned home. He also denied that he had been allocated light duties by Chand on 18 September 2005.

There were a number of questions concerning a meeting that took place in Labasa on 25 November 2005 involving management from Suva, Labasa staff and the Plaintiff. The Plaintiff did not agree with the assertions put by Counsel. The Court was not greatly assisted by this material.

The Plaintiff admitted that prior to September 2005 he was a regular gardener which involved digging from time to time for up to 20 minutes at a time. He also did grass-cutting.

He stated that he had not been able to return to work up to the time when he received a termination of employment letter dated 14 January 2006.

In re-examination the Plaintiff stated that the First Defendant assisted with the loading of trucks by giving instructions as to what should be loaded. He confirmed that he was required to carry goods up the stairs on a daily basis.

The termination letter dated 14 January 2006 was admitted into evidence as exhibit 19. Also admitted into evidence as exhibit 20 was a copy letter dated 31 May 2006 addressed to Mr John Mudaliar of the Plaintiff's union asking him to take up his case. More significantly admitted into evidence as exhibit 21 was a copy letter dated 23 October 2005 from the Plaintiff addressed to Mrs M Sandys, the Manager Group Human Resources of the Second Defendant. That letter was written just over a month after the incident at work on 19 September 2005. Its contents are quite consistent with the evidence given by the Plaintiff at the hearing of the action.

The medical evidence was given by Dr Joji Bulibeci. He referred to his report dated 17 March 2010 (ex.14). He indicated that his finding in paragraph 2 was consistent with lifting. He said that this type of injury happens when lifting is part of the job. Paragraph 2 states:

"A CT Scan performed showed compression of thecal sac around lumbar L2 – L3 vertabrae probably due to a bony bar at level L2. A plain X ray done also showed presence of oeteophytes around the same level."

The medical report was admitted into evidence as exhibit 22.

Under cross-examination the doctor admitted the injury could be caused by digging with a fork. He accepted that an injury such as this might result from carrying more weight than others, or by not lifting properly or there might be a genetic reason. He stated that disc injuries were common in Labasa.

In re-examination the doctor stated that although disc injury is common, sometimes the pain only becomes apparent after the event and furthermore the injury may be aggravated by further activity if pain is not initially experienced.

The third witness called by the Plaintiff was Suruj Narayan who had been employed by the Second Defendant at Labasa since 1994 as a driver, porter and handyman. He confirmed that workers used the stairs to carry goods from the ground floor to the first floor. He also confirmed that because of the presence of a cement beam it was necessary for workers to bend down as they climbed the stairs and passed under the beam if they were carrying goods on their shoulders.

This witness stated that he saw the Plaintiff in front of him going up the stairs carrying a washing machine on his shoulders. He saw him bend down at the beam. He saw the Plaintiff then place the machine on one of the stairs. The Plaintiff came down the stairs. He was "a bit bent". The Plaintiff told Narayan that his back was paining. Narayan told the Plaintiff to tell the warehouse manager (Vishwa Chand) who sent him to the manager Mohammed Saheed. That was all he know about the incident. He said the Plaintiff did not return after that day.

This witness said that an OHS officer had explained how to lift things about 2 or 3 months before the incident. The OHS officer had told the workers who lift and carry heavy goods that they should wear a belt. Narayan said there were three permanent staff whose duties included lifting and carrying heavy goods. He said there was only one belt and nobody used the belt. There was only one helmet when all workers should be wearing a helmet. He also said that no one from management enforced the belt/helmet requirements. He said that if the Plaintiff did not receive that training it was because he was not on the premises at the time.

He said that the workers had complained about the beam across the stairs because it was difficult when carrying heavy goods on the shoulders to bend down. This movement caused backache.

Under cross examination Narayan confirmed that the workers were required to carry heavy items up the stairs to the first floor. He stated that not all heavy items were carried in pairs. Freezers were carried in pairs. Washing machines were carried on the shoulders by one worker. Although there was a notice that said belt and helmet were to be worn, there was only one belt. Narayan also stated that he and the others also got back aches from carrying goods upstairs.

The evidence on behalf of the Defendants was given by two witnesses. The first witness was the First Defendant, Vishwa Chand. He stated that washing machines were displayed on the first floor but stored on the ground floor. He stated that they were carried upstairs for display by manual labour. Refrigerators displayed on the first floor were carried upstairs by two workers. He conceded that smaller washing machines (18 kg unpacked) were carried upstairs on the shoulders by one worker.

This witness agreed with the evidence given by the Plaintiff as to the loading and unloading of the Plaintiff's truck for the Taveuni trip on 13 September 2005.

The witness stated that there had been no previous complaints about back injury. It had been an injury free work place other than for the Plaintiff.

He stated that there were three belts in 2005.

He said that he was not aware of the Plaintiff carrying a washing machine up the stairs on 19 September 2005.

Under cross examination Chand said that he had given verbal warnings to the Plaintiff about not wearing a belt when carrying heavy goods. He admitted that these warnings were not recorded or documented. He accepted that there was no check to ensure that workers bent correctly when passing under the beam.

The last witness called was a Mr M Fareed. He was the Labasa manager in 2005. He said he was not present in 2005. There was a relieving manager there at that time. Fareed was on long service leave and Saheed was relieving. He said that as far as he knew there were no other complaints of injuries.

Under cross examination Fareed said that when he returned to work he found out that the Plaintiff was not at work due to a back ache. He did not find out what had caused the back ache.

I have taken some time to discuss the evidence as, in my judgment, it clearly supports the following findings of fact. I am satisfied that for a number of years the Plaintiff was required to load and unload his truck in the manner described. I am also satisfied that for a number of years the Plaintiff was required to carry heavy items (washing machines) on his shoulders and climb upstairs to the first floor. I am also satisfied that a concrete beam across the stairs required him to bend down as he passed under the beam whilst he was carrying a washing machine on his shoulders. I am satisfied that the Plaintiff had not received any guidance or training as to the safe method of carrying heavy items under those circumstances. If OHS training was provided, it was provided on a day when the Plaintiff was not on the premises. I am satisfied that the Plaintiff experienced back pain as a result of the loading and unloading of his truck on 13 September 2005 which was symptomatic of a developing back injury. I am also satisfied that the Plaintiff suffered further injury to his back on 19 September 2005 which aggravated the back injury and left him with a permanent disability. I am satisfied that as a result of his back injury he was rendered permanently unfit for any further employment.

I also find that upon the Plaintiff's return to Labasa from Taveuni, management had been informed by the Plaintiff that he was not able to go to work because of severe back pain. Second Defendant did two things. A driver was sent to drive the truck back to the premises and a driver and vehicle were sent to drive the Plaintiff to hospital. As well, at some time prior to his returning to work the Plaintiff had delivered a medical certificate to the Defendants. I am satisfied that when the Plaintiff returned to work on about 18 September 2005, the First Defendant had actual knowledge that the Plaintiff had been away from work for two days because of back pain from back injury.

I accept that upon his return to work the Plaintiff requested that the First Defendant allocate him light duties because of his back pain. I also accept that, although aware of the Plaintiff's injury and pain, his request was refused. He was, instead, directed to carry on with his normal duties which, of course, included lifting heavy merchandise and carrying washing machines upstairs on his shoulders.

I am satisfied that the Plaintiff suffered further injury to his back on 19 September 2005 as a result of carrying a washing machine on his shoulders upstairs and having to bend as he passed under the concrete beam.

On balance I accept that there was only one safety belt for the use of employees whilst lifting or carrying heavy goods in September 2005. I also find that there was no actual supervision of employees by management to ensure that the workers used the belt. It would appear that it was never used nor was it insisted upon by management that it should be used. Any sign that indicated that a belt should be worn was insufficient supervision or enforcement. I am also satisfied that at no stage was there any or sufficient supervision of the Plaintiff by management to ensure that be lifted and carried heavy goods in a safe manner.

Regardless of whether the duty of the Second Defendant arose in tort or out of a contract of employment it was a duty to exercise reasonable skill and care for the safety of the Plaintiff. It was a duty that was owed to the Plaintiff as an individual. It was a duty that required the Second Defendant through his warehouse manager, the First Defendant, to take into account any peculiarity, weakness or special circumstances of the Plaintiff which was known or ought to have been known. In my judgment when the First Defendant refused the Plaintiff's request to be placed on light duties, there was a breach of the duty owed to the Plaintiff. The liability of the Defendants arises from the failure to take into consideration all the circumstances that were relevant to this Plaintiff: Paris –v- Stepney Borough Counect [1950] UKHL 3; [1951] 1 All ER 42.

One aspect of the duty owed by the Second Defendant to the Plaintiff was to provide a safe place of work. In this particular workplace there existed a possible danger in the form of a concrete beam. The concrete beam ran above the stairs leading to the first floor. Whenever the Plaintiff, or any other worker for that matter, carried a washing machine, for instance, on his shoulders up the stairs, he was required to bend as he proceeded up the stairs passing under the concrete beam. The concrete beam was a danger that could not be removed. The Second Defendant's obligation in such a case was to take reasonable precaution for the Plaintiff's safety. The witness Narayan confirmed that other workers experienced back ache when carrying heavy goods up the stairs and having to bend when they passed under the concrete beam.

I accept that the duty on the Second Defendant was not an absolute statutory duty, and in this case it may not have been reasonable to expect the Second Defendant to effect structural alterations. However, what the physical nature of the warehouse did impose on the Second Defendant was a duty to implement and supervise a safe system of work and to provide adequate safety equipment.

In my judgment there was an obligation on the part of the Second Defendant to provide the necessary equipment such as an adequate number of safety belts for use by employees lifting and carrying heavy goods. Reasonable care by supervision and enforcement of the correct use of such equipment is part of that duty. In this case, on the evidence before the Court, I am satisfied that both Defendants failed in this duty.

The duty of the Second Defendant also extended to the provision of a safe system of work. The movement of heavy consumer goods from the ground floor to the first floor for display purposes was a task that required a safe system of work. The system in use at the time was for one worker to carry a washing machine on his shoulders upstairs and bending down as he passed under a concrete beam during the process. In my judgment that is not a safe system of work. There was no evidence before the Court as to what practice, if any, was in common use by similar business conducted in similar premises. There was evidence that the same practice had been in use by the Second Defendant at its Labasa premises for many years. In my judgment that evidence alone was not, in the circumstances of this case, conclusive of the issue of breach of the common law duty in favour of the Second Defendant.

Furthermore this was a case where it was essential for the First Defendant to give initially adequate instructions to the Plaintiff concerning not only the proper and safe method of doing the task but also the consequences of not following the prescribed method.

In my judgment the management of the Second Defendant knew or ought to have known that, even on one occasion, the action of bending that a worker was required to do when he passed under the concrete beam carrying a washing machine on his shoulders gave rise to the risk of back injury and if performed on a regular basis, serious back injury.

As a result, this was a case where it was necessary for the Defendants to give, from the beginning, adequate instructions to the Plaintiff concerning not only the proper and safe method of doing the task, but also the consequences of not following the prescribed method. On the evidence before the Court I find that the Second Defendant and/or his warehouse manager, the First Defendant, failed in this duty.

It is my judgment that the Plaintiff's injury was caused by the Second Defendant's breach of the duty (a) to provide and maintain a safe system of work (b) to provide effective supervision, (c) not to expose the Plaintiff to the risk of injury and (d) to take all reasonable measures to ensure that the work place was safe. I am satisfied that the First Defendant exposed the Plaintiff to the risk of injury when he refused the Plaintiff's request to be placed light duties before the incident on 19 September 2005.

Furthermore I am satisfied that there was no evidence to support the Defendants' claim that the Plaintiff had contributed to his injury by his neglect for his own welfare and safety. To the extent that the Plaintiff performed his tasks in a manner that was different from other workers, it was not due to a failure on the Plaintiff's part to follow what he considered to be the usual manner. In my judgment the Defendants' allegation of contributory negligence simply re-enforces the Second Defendant's breach of its duty to take reasonable care to supervise and train the Plaintiff. The Second Defendant thereby failed to protect the Plaintiff from his own inadvertence.

I also note that at no stage during the cross examination of the Plaintiff was there any reference to belts or helmets, nor as to number of belts available in 2005.

Finally, as for the injuries suffered by the Plaintiff and causation, it is important to recall that the Plaintiff does not need to adduce "conclusive evidence". The standard is on the balance of probabilities. I am satisfied on that standard, after reading the medical report and having heard the evidence, that the back injury was suffered as a result of the breach by the Defendants' of the duty that was owed to the Plaintiff as employee.

In respect of damages, I shall first consider special damages claimed by the Plaintiff. As previously noted the Plaintiff prepared a schedule of special damages which particularised the claim for special damages sought in the writ. Counsel for the Defendants did not seek to cross-examine the Plaintiff to any extent on these amounts other than in respect of loss of wages. Although there were no receipts for travel expenses, I do not regard the claim of $750.00 for a weekly visit for over 6 years as unreasonable. There was no challenge to the claim for past wages and I am prepared to allow the claim for past loss of wages in the sum of $36,249.25. The claim for past FNPF contributions was not straightforward. It was not clear from the wage slips whether the amount that the Plaintiff was claiming for lost wages represented his take home pay after FNPF deductions. Under those circumstances I propose to allow only the employer's contribution of 8 cents being the lost employer's contribution. As a result the claim for past FNPF contributions is $2899.62. I am therefore prepared to award as special damages a total amount of $39,898.87.

So far as general damages are concerned, I shall deal first with the non-pecuniary aspect that covers pain and suffering and loss of amenity (enjoyment of life). For this purpose it is necessary to refer to Doctor Bulibeci's report dated 17 March 2010. It concluded:

"The medical findings, x ray features and the significant persistent symptoms that limit the ability to perform the activities of daily living amounts to 18% whole person impairment."

On top of that it is necessary also to recall the evidence given by the doctor at the trial. The doctor said that the Plaintiff's condition will not get better. It will get worse. There is a 50% chance that by the time the Plaintiff reaches 60 years old he will not be able to walk. So far as surgery is concerned, the doctor said that the risk of nerve injury is high. If the operation is not successful then paralysis inevitably results. There is only a 50% chance that the operation would be successful.

There is as well the evidence given by the Plaintiff as to the pain he continues to experience together with his dependence on crutches and pain relieving medication. He clearly is now no longer able to perform any of the outdoor activities that he was able to undertake prior to September 2005.

Considering the guiding principles discussed by the Court of Appeal in Attorney-General of Fiji and Another –v- Paul Praveen Sharma (unreported civil appeal No. 728 of 1984 delivered 17 May 1995) and The Permanent Secretary for Health and Another –v- Arvind Kumar (unreported civil appeal No.84 of 2006 delivered 20 June 2008), I am not able to obtain a great deal of assistance from awards that go as far back as 1996. However, in line with recent awards I consider an award of $85,000 as general damages for non-pecuniary loss in the form of past and future pain and suffering and loss of amenity/enjoyment of life as reasonable compensation.

The pecuniary aspect of general damages is the claim for loss of earning capacity or loss of future wages. His claim for future economic loss runs from the date of the trial since he is compensated for past loss of wages up until the date of the trial. As at December 2011 the Plaintiff was approximately 47 years and 9 months old. The claim for future loss is based on a retirement age of 60 years old. Since this aspect of the claim has not been addressed by Counsel for the Defendants I am prepared to assume that 60 is the retirement age for employees employed by the Second Defendant. That would mean that the Plaintiff could expect to remain in the work force for a further 12 years and 3 months approximately. Under those circumstances I am prepared to allow a multiplier of 8. The calculation for future loss is then made on the basis of $118.85 multiplied by 52 which comes to $6180.20. Using a multiplier of 8 the award then becomes $49,500.00 (in round figures) for loss of future earning capacity.

The claim for the loss of future FNPF contributions, again, is not as straightforward. Regardless of the retirement age as agreed between the Second Defendant and the Plaintiff, the employer's obligation to make FNPF contributions ceases when the employee terms 55. The employee may continue to make voluntary contributions after the age of 55.

As a result I am prepared to allow future loss of FNPF contributions up to the age 55 years. The future loss of wages up to 55 years is most probably conveniently calculated as being seven elevenths (7/11) of $49,441.60 which comes to $31,462.84. The claim for future loss of FNPF contributions at the rate of 8 cents in the dollar is $2,517.03. The total amount for pecuniary general damages is $52,000.00 round figures.

The Plaintiff has pleaded a claim for interest and is therefore entitled to be awarded interest in accordance with section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27. I propose to award interest based on the guidelines provided by the Court of Appeal in Attorney-General of Fiji –v- Charles Valentine (unreported civil appeal No. 19 of 1998 delivered 28 August 1998).

As a result interest on special damages is allowed from the date of the incident on 19 September 2005 to the date of trial being 6 December 2011 at half the appropriate rate. The appropriate rate is 6% and as a result interest is awarded on the sum of $39,898.87 at the rate of 3% for the period of 6 years and 3 months. Interest is not awarded on the future component of general damages. The result is that there is no interest on the amount awarded for loss of earning capacity. A lesser amount of interest will be awarded on general damages for pain and suffering and loss of amenity as it contains both past and future components. I am prepared to award 4% interest on $85,000.00 from the date the writ was issued being 12 September 2008 up to the date of trial being 6 December 2011, a period of 3 years and 3 months.

The Plaintiff is entitled to the costs of the action which are fixed summarily in the sum of $1,200 for professional costs plus disbursements.

The orders of the Court are:

1. Judgment for the Plaintiff.

2. The Defendants are ordered to pay to the Plaintiff special damages in the sum of $39,898.87 together with interest at 3% for the period 19 September 2005 to 6 December 2011.

3. The Defendants are ordered to pay the Plaintiff general damages in the sum of $137,000.00 (in round figures) together with interest on the sum of $85,000 at 4% for the period 12 September 2008 to 6 December 2011.

4. The Defendants are ordered to pay costs to the Plaintiff in the sum of $1200 for professional costs plus disbursements.

5. Stay 28 days.

W D Calanchini
JUDGE

13 April 2012
at Suva