Sharma v Sarwan [2012] FJHC 1450; HBC6.2009 (12 October 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 6 OF 2009

BETWEEN:

VIRENDRA CHARI SHARMA
[Plaintiff]

AND:

SARWAN
[1st Defendant]

AND:

NUKUBATI RESORT LIMITED
[2nd Defendant]

Counsels : Mr. A. Kohli for the Plaintiff
Mr. R. Vananalagi for the Defendants

Date of Judgment: 12th October, 2012

JUDGMENT

[1]. On 13.02.2009, the plaintiff filed a writ against the defendant claiming special and general damages for injuries sustained in the course of his employment with the defendant company.

[2]. The plaintiff was employed as a carpenter by the 2nd defendant. The 1st defendant was a servant or agent of the 2nd defendant.

[3]. The 2nd defendant was a company duly incorporated and liable to be sued in its corporate name. The 2nd defendant has been made a party to this case on the basis of vicarious liability.

[4]. According to the Statement of Claim, the plaintiff fell to the floor at the 2nd defendant's kitchen when he was attending to repair and to fix a panel of the air vent in the kitchen on the instructions of the 1st defendant.

[5]. The plaintiff stated that he suffered injuries due to negligence of the defendants.

[6]. The defendants in their statement of defence denied that the said accident was caused by any negligence on the part of themselves, their servants or agents.

[7]. Further, the defendants stated that alleged accident and injuries were caused and/or contributed to by the negligence of the plaintiff.

[8]. Following facts were agreed by both parties at the pre-trial conference.

• At all material times the plaintiff was employed by the 2nd defendant at the Nukubati Island Resort as a carpenter.
  
• At all material times the 2nd defendant was a company duly incorporated and liable to be sued in its corporate name and was vicariously liable for the acts of its servants and/or agents.
  
• At all material times, the 1st defendant was a servant and/or agent of and was in employment of the 2nd defendant at the resort.
  
• The 2nd defendant owed the usual duty of care to the plaintiff as his employer.
  

[9]. In determining the liability, the following issues are of much importance:

1. Whether the 1st defendant ordered the plaintiff to climb up the wooden ladder and fix a panel on the ceiling of the resort's kitchen?
   
2. Whether the accident resulted due to the negligence of the 1st and 2nd defendants?
   

100. Whether the plaintiff voluntarily consented to accept the risk of injury by using the ladder?
     

4. Whether the accident caused due to the negligence or contributory negligence of the plaintiff?
   

[10]. At the trial, the plaintiff and Dr. Jaoji Vulibeci testified on behalf of the plaintiff while the defendants called five witnesses, namely, the 1st defendant, Maheshwar Prasad, Sarafina Burekalou, Alamm Khan, Gord Leewai and Dr. Emosi Taloga.

[11]. The plaintiff in his evidence, explained as to how the accident occured. According to the plaintiff, he was working as a carpenter boy. On the day of incident the plaintiff was asked by the 1st defendant to patch the ceiling of the kitchen in the resort.

[12]. The plaintiff further stated that he attended to the work with the 1st defendant and one Alamm who was also a carpenter. They used an aluminium ladder to reach the ceiling. There were 6 x 2 rafters and they placed 6 x 2 panels across the bars; so that they can sit there and repair. Alamm placed the ply on the rafters and climbed the ladder and sit on the ply.

[13]. Then the 1st defendant asked the plaintiff to go with Alamm and patch the ceiling. Thereafter the plaintiff also climbed the ladder and started patching the ceiling.

[14]. Alamm was sitting on the board and fixing the board with the screw driver. Alam was patching the upper side while the plaintiff was patching the lower side with a screw.

[15]. According to the plaintiff, there was not enough space between the board and the place where the plaintiff was, so that he could not apply enough force to fasten the screws.

[16]. Therefore, he placed one of his legs on the ladder and bended his body to get space and apply pressure. Then the ladder slipped and he fell on the ground.

[17]. The plaintiff further stated that he was not provided with safety belts or helmet by the employer.

[18]. He further stated that no scaffoldings were provided with, prior to this accident and he had never climbed a ladder, and also he was not taught to how to use or fasten a ladder.

[19]. The plaintiff went on to explain how he was taken to the hospital and was treated at the hospital. At the Labasa hospital, the plaintiff's both hands were plastered and it was removed only after 5 weeks.

[20]. The plaintiff stated that, due to the injuries he suffered, the movements of his hands are restricted.

[21]. Further, the plaintiff stated that he had never repaired a ceiling before, he had not taken any precautions, and he was not aware nor was he told about precautionary steps by the defendants. Therefore, the plaintiff alleged that, if not for the negligence of the defendants, he would not have suffered injuries.

[22]. From the beginning, the defendants maintained the position that when the accident occurred the work had not been commenced, the plaintiff had on his own volition and contrary to instructions given to him climbed the ladder and therefore, the accident was caused solely due to the negligence of the plaintiff.

[23]. Nevertheless, the plaintiff's evidence was that he met with the accident while repairing the ceiling of the kitchen with the 1st defendant and Alam. The plaintiff alleged that no safety gears were issued to him by the defendants.

[24]. Further, the plaintiff made an attempt to show that he was not an experienced carpenter but a carpenter boy and therefore, the defendants failed to instruct him properly, in particular, when a ceiling work was to be done.

[25]. However, in the statement of claim as well as at the Pre-trial conference, the plaintiff admitted the fact that he was a carpenter. Moreover, his own evidence shows that he had been doing carpentry works for past 20 years.

[26]. Hence, it is reasonable to infer that the plaintiff was employed by the defendants not as a carpenter boy as alleged by the plaintiff, but as a carpenter and also he had enough experience in the relevant field.

[27]. The 1st defendant, Alamm Khan and Gordon Lee who is the Resort Manager of the 2nd defendant were the other employees of the resort who gave evidence for the defence.
[28]. The 1st defendant in his evidence stated as to how the repairing of the ceiling was carried out. According to the 1st defendant, the plaintiff and Alamm was assigned to repair the ceiling. The 1st defendant went to the tool room to bring certain items and instruments including a rope. The rope was to tie the ladder to the beam in order to prevent any one falling from the ladder.

[29]. When the 1st defendant and Alamm were coming to the kitchen from the tool room and were about 25 meters away from the kitchen they heard something fell inside. Then they rushed to the kitchen and saw the plaintiff fallen down and was lying on the floor.

[30]. According to the witness, the plaintiff had climbed the ladder before others came to the kitchen. The witness further stated that he never ordered the plaintiff to climb up the ladder.

[31]. In cross examination, it was suggested to the witness that the work had already been started, Alamm was screwing the upper part of the panel while the plaintiff was screwing the bottom part and then only the plaintiff fell down, but the witness did not agree with that.

[32]. Alamm in his evidence stated that he and the plaintiff placed the ladder inside the kitchen, then went to bring tools leaving the plaintiff in the kitchen and when they were bringing tools they heard a loud noise as if something fell.

[33]. Then they rushed to the kitchen and saw the plaintiff was fallen down on the floor. In cross examination, the witness testified as follows:

Q. When did you go to the kitchen?

A. About 7.00 am.

Q. When you went to the kitchen, how long you stayed there before you went back to bring the tools?

A. 5 minutes.

Q. How long did you take to get the tools?

A. 15 – 20 minutes.

Q. why the plaintiff did not go to get tools?

A. There were not many tools. When we left the ladder in the kitchen we asked the plaintiff to stay there.

Defendants' Negligence

[34]. The plaintiff submitted that the 2nd defendant had a duty to take all reasonable care by its servants and/or agents to provide and maintain a safe system of work and effective supervision of the same and not to expose the plaintiff to risk of accident or damage or injury.

[35]. Let me consider whether the 2nd defendant had properly and adequately exercised all reasonable care to provide a safe system of work.

[36]. The plaintiff was engaged in carpentry work for last 20 years, thus there was no need for the plaintiff to be trained on how to use a ladder. Even an ordinary labourer with some common sense would know how to use a ladder safely. Therefore, it is difficult, if not impossible, to believe that the plaintiff had not climbed up a ladder before the accident, as alleged by him in his evidence in chief.

[37]. It is proved that the 1st defendant and Alamm were getting safety gears when the plaintiff was in the kitchen. The evidence of the 1st defendant and Alamm clearly demonstrates that a rope to tie the ladder to a beam was being brought by the 1st defendant at the time of the accident.
[38]. The procedure followed by the defendants i.e. the safety requirements of a rope to tie and secure the ladder to prevent it from slipping, in my view, is reasonably sufficient to protect the plaintiff from any injuries given the nature of the work, the magnitude of the risk and also the height to the ceiling from the floor.

[39]. The plaintiff submitted that a scaffold or some sort of safety net should have been provided with the plaintiff since the work involved a considerable risk and failure to do so prove negligence on the part of the 2nd defendant.

[40]. It is proved that the plaintiff was instructed by the 1st defendant to wait until they bring the tools and safety gears. Though the defendant had not supplied scaffold and net, the evidence shows that other necessary tools such as ropes and helmets which were necessary to ensure the safety of the plaintiff had been provided with. In other words, the defendants have acted in accordance with the common or general practice of others in a similar situation.

[41]. It is true that an employer was under a duty to take reasonable care for the safety of its employees irrespective of the nature of the work. However, that does not mean that the employer is required to provide security measures greater than the situation demands.

[42]. Similarly, an employer will not be liable if a worker fails to make proper use of equipment supplied. It was so held in Parkinson v. Lyle Shipping Co [1964] 2 Lloyd's Rep. 79, nor where the employee acted foolishly in choosing the wrong tool for the job. (Leach v. British Oxygen Co. (1965) 109 SJ 157).

[43]. Where an employer has followed a general practice of a particular industry the plaintiff will have some difficulty in establishing that the practice was negligent.

[44]. In Thompson v. Smith Shiprepairers (North Shield) Ltd [1984] 1 AER 881, it was held that the test was what would have been done by a reasonable and prudent employer who was properly but not extraordinarily solicitous for his workers' safety, in the light of what he knew or ought to have known at the time.

[45]. If the employer can rely on the experience of the employee to use the equipments no other persuasion is necessary. Qualcast (Wolverhampton) Ltd v. Haynes [1959] AC 743

[46]. Further, a mere possibility of risk does not give rise to a breach of duty if it is one which could be met by employees taking obvious precautions.

[47]. In Jaguar Cars Ltd v. Coates [2004] EWCA Civ:337, the Court of Appeal held that steps without a handrail posed no real risk to those using them with reasonable care and that the judge who had held there to be a breach, had "erred by equating foreseeability of risk with a finding of a duty to install a rail.

[48]. When the evidence of the 1st defendant, Alamm and Lee is considered, it makes obvious that the degree of care exercised by the defendants and the standard of safety methods provided with, were in conformity of the accepted practice. More importantly, the plaintiff failed to call any evidence to show that there was any other better industry practice.

[49]. Further, it is proved that the plaintiff had climbed up the ladder before the 1st defendant and Alam came to the kitchen with tools. Allam and Sarwan in their evidence in chief stated that Allam asked the plaintiff after the accident what happened and the plaintiff's reply was that he had climbed the ladder to sit and wait on the platform for Sarwan and Allam.

[50]. Though, the defence witnesses were cross-examined by the plaintiff's counsel, I do not see any reason to disbelieve their evidence nor do I observe any inconsistency or contradictions inter-se. On the other hand, the plaintiff's evidence relating to the accident and his present medical condition lacks clarity and consistency.

[51]. When the evidence of the defendants and the plaintiff is evaluated it is more probable that the accident could have happened in the way described by the defendants than by the plaintiffs. Therefore, it is difficult to place much reliance on the plaintiff's evidence as to the manner in which he met with the accident.

[52]. In his evidence, the plaintiff explained the pain and suffering he experienced after the accident and also his disabilities. Since his both hands got fractured, from wrist to the elbow they were plastered and only after 5 weeks the plasters were removed.

[53]. The plaintiff further stated that until 2 years he could not eat with hands and also had no feelings in his fingers.

[54]. According to the plaintiff's evidence, he used to cut sugarcane in addition to his carpentry work; but after the accident he cannot cut cane, cannot lift heavy things and also cannot do any work for a longer period with his hands.

[55]. Dr. Jaoji Vulibeci, the Medical Superintendent of the Labasa Hospital was called by the plaintiff to give evidence.

[56]. According to Dr. Vulibeci, the plaintiff sustained a commuted fracture on the wrist. Both hands were plastered with plaster of paris. It could be there for 4 -5 weeks. During that period it was difficult to use his hands.

[57]. Referring to the Medical Report, Dr. Jaoji described the nature of the injuries of the plaintiff. The Medical Report dated 26.01.2007 prepared by Dr. Jaoji was marked as Exhibit 8.

[58]. According to the report, the plaintiff sustained a comminute crush and intra-articular fracture of the distal radius and ulna of both the forearm. He had manipulation of his forearm under anaesthesia because of some displacement and was put on plaster of paris. The total impairment of the plaintiff given in the report is 25%.

[59]. In his evidence, Dr. Jaoji stated that massaging, physiotherapy or surgical intervention could have improved his condition. He further stated that in first two years after the accident it was possible that the plaintiff was not able to use hammer or cutting canes for long hours.

[60]. In cross examination Dr. Jaoji admitted that the plaintiff has no impairment on his shoulder or elbow movements, presence of callosities shows he was using his hands also the absence of muscle waste shows that his limbs are used.

[61]. The defendants relied on the evidence of Dr. Taloga, the Orthopaedic Surgeon of the Suva Private Hospital. The Medical Report prepared by Dr Taloga in respect of the plaintiff was marked as Exhibit 05.

[62]. Dr. Taloga expressed his expert opinion on the presence of callosities as a reaction of the hand to trauma and it disappears in a month after a person stop working.

[63]. Dr. Taloga further explained that muscle wasting associates with people who are not doing work after injury.

[64]. It must be noted that Dr. Vulibeci assessed the plaintiff's incapacity at 25% on 26.01.2007, where as Dr. Taloga's assessment was 9% according to the Medical Report stated 4.7.2009.

[65]. In the report, it is stated:

"There is no evidence on the X-Ray to suggest Osteoarthritis at this stage. The callosities of the hands and normal appearing skin colour and texture without muscles wasting tell me that Mr. Sharma has full use of the hands."

[66]. When both Medical Reports prepared by Dr. Vulibeci and Dr. Taloga are considered it is obvious that when the plaintiff was assessed by Dr. Vulibeci in 2007, injuries were still in the healing process; but when Dr. Taloga examined the plaintiff he had recovered to a great extent.

[67]. It is noteworthy, that the credibility of the medical evidence of Dr. Taloga though cross examined by the plaintiff's counsel remains intact. Hence, it can reasonably be concluded that the plaintiff's present medical condition does not affect his ability to earn a living from his usual form of occupations such as carpentry, cane cutting and grass cutting.

[68]. Not only that, Dr. Vulibeci who was called by the plaintiff also confirmed the fact that the presence of callosities in the plaintiff's hands and the absence of muscle waste were indicative of using the plaintiff's hands.

[69]. The medical evidence further corroborated the testimony of defence witnesses namely, Maheswar Prasad a neighbour of the plaintiff, and Serafina Burekelou, whose evidence was that they saw the plaintiff was engaged in cane cutting, grass cutting and farming.

[70]. Upon consideration of the above, it is plain and obvious that the plaintiff has made an unsuccessful attempt to exaggerate his impairment which, in my view, clearly demonstrates his deviousness as a witness.

[71]. When a witness's testimony relating to a very material fact of a cause of action is proved false, it is not safe to rely on his evidence as to the manner in which the accident occurred. In other words, the plaintiff's evidence lacks credibility and consistency, thus, court cannot act on it.

[72]. In the circumstances, it is my considered view that the accident occurred solely because the plaintiff had acted against the instructions of the defendants. The defendant had taken necessary and adequate steps to ensure the safety of their employees.

[73]. Further, the evidence in this case shows that the system, which prevailed at the resort and the degree of supervision, which was exercised by the defendants, was in fact sufficient and adequate, having regard to all the circumstances of the case.

[74]. Upon consideration of the evidence of both parties, I conclude that the plaintiff has failed to prove his case on the balance of probabilities. Premised on that, I dismiss the plaintiff's claim.

[75]. Cost is summarily assessed in the sum of $1000.00.

Pradeep Hettiarachchi
JUDGE