Chand v Permanent Secretary for Health [2012] FJHC 1456; HBC18.2011 (28 November 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 18 OF 2011

BETWEEN:

ASHOK CHAND
[Plaintiffs]

AND:

THE PERMANENT SECRETARY OF HEALTH
[1st Defendant]

AND:

ATTORNEY – GENERAL OF FIJI
[2nd Defendants]

Counsels: Mr. A. Sen for the Plaintiff
Mr. J. Mainavolau for the Defendants

Date of Judgment: 28th November, 2012

JUDGMENT

[1]. The Plaintiff in this action filed writ of summons together with a statement of claim seeking inter alia general damages and special damages for injuries he sustained during the course of his employment with the 1st defendant. The plaintiff alleges that the 1st defendant's failure to provide and maintain a safe system of work to the plaintiff caused the accident and injuries.

[2]. The defendants in their statement of claim deny that the accident was caused by the negligence of the defendants. It is further stated that all workers including the plaintiff were provided with safety gears and were advised to wear the safety gears while at work but the plaintiff did not comply with it. Therefore, the defendants seek that the plaintiff's claim be dismissed with costs on indemnity basis.

[3]. Following facts were agreed to by the parties at the Pre Trial Conference.

• (i). On 17.2.2009, the plaintiff while in employment with the 1st defendant was injured as a result of fall in the cause of his employment at Labasa Hospital when he was painting the front of the Labasa Hospital building on a ladder provided by the 1st defendant.
  
• (ii). That the fall caused the plaintiff to get injured.
  
• (iii). At the time of the injury, the plaintiff was earning a sum of $169.84 per week.
  
• (iv). Parties agreed that the plaintiff is also claiming Workmen's Compensation as an alternative claim for this injury he sustained to be assessed in accordance to Workmen's Compensation Act.
  

[4]. At the trial the plaintiff, Dr. Alipate and Shalendra Prasad gave evidence for the plaintiff whilst Jolame Nayasi, Shiu Chand and Manikkam Reddy gave evidence for the defence.

[5]. Dr. Alipate testified referring to a Medical Report prepared by Dr. Abhay Chaudhary, and the Medical Folder of the plaintiff. According to the witness, the plaintiff was brought to the hospital on 17.2.2009 with a history of lower back pain as a result of accidental fall at work. The plaintiff was x-rayed and found to have a wedge compression fracture of T12. While describing the nature of the plaintiff's injury, Dr. Alipate stated that wedge compressed fracture was considered as stable and do not need any surgery. In 2010 the plaintiff was admitted with a swollen knee and was diagnosed as having lateral compartment arthritis.

[6]. Further, the witness stated that an injury to knee could subsequently lead to arthritis. It must be noted that when the plaintiff was admitted in 2009, nothing mentioned in the hospital records about any injury to knee. In 2010, the final assessment of the plaintiff's impairment was done and he was given 5% permanent incapacity.

[7]. In answering the cross examination, Dr. Alipate stated that a wedge compressed fracture usually considered as stable and would not worsen and also it doesn't have any neurological defect.

[8]. When the witness was questioned whether there was any link between arthritis and the injury the plaintiff sustained due to the accident, the witness said that he would not comment on that since there was no injury to the plaintiff's knee according to the Medical Folder.

[9]. The plaintiff in his evidence explained the nature of his work with the 1st defendant, the period within which the work was to be completed and the way he met with the accident. According to the plaintiff, on the day of incident, he was painting some window frames which were about 8 feet above from the floor.

[10]. The plaintiff was issued with a safety helmet, boots and a ladder. He was painting while standing on the ladder with a 4 litre can of paint in one hand and a brush in the other hand. The ladder did not have a safety latch but had a sting. Suddenly, the ladder slipped and the plaintiff fell on the floor with the ladder and hit his back on the floor.

[11]. Thereafter, he was taken to hospital and was treated. He was given some pain killers and injections and was in the hospital for 4 days. The plaintiff stated that he was not provided with a safety belt and had the ladder not collapsed, he wouldn't have fallen.

[12]. In cross examination, it was suggested that a safety belt was provided to the plaintiff but since he had failed to wear it, he met with the accident, which was denied by the plaintiff.

[13]. The 3rd witness for the plaintiff was Shalendra Prasad. He gave evidence with regard to the accepted safety requirements that should be provided to a painter. He stated that a ladder is used only to climb and when a person is required to paint, he must be provided with scaffolding or if the level is not that high he must be given a roller brush.

[14]. The defendant's first witness was Jolame Nayasi who was working with the plaintiff when the accident occurred. The witness stated that they were issued with safety belts, boots and helmets but the plaintiff was not wearing a safety belt at the time of the accident. However, in cross examination the witness stated that he did not see the store man giving the plaintiff a safety belt.

[15]. Answering further, the witness stated that after the accident the plaintiff was taken away by Shiu Chand and another and the witness could not come to the plaintiff's assistance since he could not unhook his safety belt quickly.

[16]. Although the witness stated that he was wearing a safety belt at the time when the plaintiff met with the accident, the witness's evasiveness was evident when he was questioned about the description of the safety belt.

[17]. It could be noted that this witness in his statement to the Medical Superintendent of the hospital had stated that he and Shiu Chand took the plaintiff away, whereas in his examination in chief and in cross examination, the witness stated that when he managed to unhook the safety belt and got down from the ladder the plaintiff had already been taken away by Shiu Chand and another person.

[18]. Further, the evidence given by this witness with regard to the description of the safety belt already shows that he had never seen a safety belt prior to this accident.

Further, his inability to answer some vital questions pertaining to relevant and crucial issues affects his credibility, and his inconsistency in evidence is also pervasive right throughout the trial.

[19]. The next witness for the defence was Shiu Chand, a fellow worker who was at work in the same premises with the plaintiff. His evidence was that he was painting on the 2nd floor while the plaintiff and Jolame were painting below him, he could not see them, Jolame was wearing a safety belt, the witness heard a noise about a ladder falling and when he came down he saw the plaintiff was lying on the floor. The ladder was fallen besides him and Jolame was also beside the plaintiff. Then the witness and Jolame took the plaintiff to the Out-Patient Department.

[20]. The witness further stated that when he came to work, he saw the plaintiff with a safety belt. The witness also stated that their foreman Manikkam Reddy did not meet them nor did he instruct them before the work was commenced. In re-examination, the witness stated that he was never provided with a safety belt when he was working in the Labasa Hospital.

[21]. The most important evidence pertaining to this action came from Manikkam Reddy the foreman who oversaw the painting work done by the plaintiff and other workers at Labasa Hospital.

[22]. According to his evidence, he was not present at the site on the day of the incident. He very clearly stated that there was only one safety belt provided for the workers and they had been instructed to organize with themselves and share it. He further stated that only when a painter was above the ground he was required to wear the safety belt.

[23]. From the plaintiff's and defendant's evidence, it is evident that the plaintiff was not provided with a safety belt. Though he had to paint heights, he was only provided with a ladder. In addition to that, to complete his work, he was required to climb the ladder while holding a 4 litres can of paint in one hand and the paint brush in other hand.

[24]. It is further proved that he fell down from the ladder while he was painting and landed on the floor.

[25]. Needless to say that when the plaintiff was required to hold a 4 litres can of paint in one hand and a brush in another and stand on a ladder to paint, it exposed the plaintiff to risks.

[26]. Had the plaintiff been provided with a bench or a small stand to stand on, this accident could have been avoided. The defence witness Manikkam confirmed the fact that only one safety belt was issued to the painters. Therefore, the defendant's position that the plaintiff was provided with a safety belt and he did not wear it cannot stand any further.

[27]. The evidence before me clearly established that the plaintiff was not provided with a safety belt nor was given any proper training. Further, the plaintiff was required to do the painting while standing on a ladder which was some 6 – 7 feet above the ground with no additional support.

[28]. Therefore, it is plain and obvious that the plaintiff was exposed to a considerable risk. Thus, the 1st defendant failed to provide for the plaintiff a safe working environment.

Relevant Legal Principles

[29]. In Mathews v. Kuwait Bechtel Corporation [1959] 2QB57 it was held that the common law placed an employer under a duty to take all reasonable care for the safety of his servants during the course of their work.

[30]. In Wilson and Clyde Co. Ltd. v. English [1937] UKHL 2; (1938) AC 57 it was held 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 Statutory Provisions

[31]. Section 9 of the Health and Safety at Work Act 4 of 1996 set out the duties of employers to the employees.

[32]. 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.

[33]. In the present case, the only safety equipments provided to the plaintiff were a helmet and a pair of safety boots, which in my view is inadequate given the place on which the plaintiff was required to paint.

[34]. Evidence of Manikkam Reddy clearly proved that there was only one safety belt available. Further, it was proved that the workers were issued with two ladders. Hence, it is obvious that though two persons were required to paint while standing on ladders only one could wear the safety belt, which further confirms that the plaintiff was not issued with a safety belt.

[35]. Had the plaintiff been provided with a scaffold or at least a steady table by the 1st defendant instead of a ladder, the danger or the risk could have been minimized.

[36]. In the present case, the 1st defendant knew or ought to have known that it was not safe to make the plaintiff to paint while standing on a ladder without any additional support or safely methods.

[37]. In Crookall v. Vickers Armstrong Ltd (1955) 2 ALL E.R 13 Glyn Jones J said:

"Once the employer knows or ought to have known of the risk and that risk can be markedly diminished ... he must take all reasonable steps, by clearly warning the men... and by encouragement and exhortation to seek to persuade them to do so(to ease the unsafe practice).

[38]. From the evidence in the present case, it can safely be inferred that the defendant failed to provide a safe place of work and safe system of work. The ladder provided for the plaintiff was not the ideal one to be used for the work assigned to him. The evidence shows that it did not have a safety hook to prevent it from collapsing and also a rubber shoe of the ladder had detached from its bottom.

[39]. In summary, the 1st defendant has failed to take care to provide the plaintiff a safe work place, safe equipments and a safe system of work. Thus, I hold that the 1st defendant is liable for injuries caused to the plaintiff, and the 2nd defendant is vicariously liable for the negligence of its servants and agents.

Injuries Suffered by the Plaintiff:

[40]. The evidence of Dr Alipate proved that the plaintiff suffered a compressed fracture of T12 due to the accident. He was in the hospital for four days before he was discharged.

[41]. It was further revealed that the plaintiff has developed osteoarthritis in his knee and Dr. Alipate in his evidence stated that an injury to a knee joint could cause osteoarthritis subsequently. However, Dr. Alipate confirmed that there was no record in the hospital folder that the plaintiff had any injury to his knee when he was admitted. The plaintiff tried to link osteoarthritis also to the injuries sustained by him in the accident. The plaintiff's position was that the hospital staff would have failed to notice his injury on the knee.

[42]. It must be noted that according to the evidence the plaintiff had landed on his back when fallen from the ladder. Thus, it was very unlikely that there was a trauma to his knee. Further, even if it is assumed that the hospital staff failed to notice an injury to the plaintiff's knee there was no reason for the plaintiff to remain silent if he really suffered an injury to his knee. In the circumstances, I am not inclined to conclude that the plaintiff's osteoarthritis is caused subsequent to an injury to his knee in the accident.

[43]. The plaintiff asked $ 20000.00 for loss of wages. It was proved that the plaintiff was earning $ 143.72 per week and he could not attend any work for 5 months after the accident.

[44]. However, there is no satisfactory evidence to show that the plaintiff's ability to work is restricted due to the accident. Further, there is no medical evidence to show that the plaintiff's capacity to earn has been curtailed due to the injuries he sustained in the accident. Although it is proved that the plaintiff developed osteoarthritis, there is no medically accepted link to establish that the injuries sustained by the plaintiff in the accident caused osteoarthritis.

[45]. At the PTC, the parties have admitted that the plaintiff was paid $169.84 per week by the 1st defendant but in his evidence, the plaintiff stated that he was paid $ 143.72 per week. It is further proved that he was not working full time with the 1st defendant but employed on a casual basis depending on availability of work. The evidence before me shows that the plaintiff was out of work for only 5 months due to the accident. Therefore, I award him $ 2875.00 for that period.

[46]. The plaintiff is entitled to damages for pain and suffering. As stated in Kemp & Kemp (vol. 1 P 2-007-2-010):

'The Court must take into account, in making its assessment in the case of any particular plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages.'

[47]. In making awards which are fair and reasonable the Court falls back on previous amounts so that the figures arrived at are in proportion to amounts in other cases of those who have suffered injuries of comparable severity.

[48]. In A.G v. Praveen Sharma (FCA Reps 94/351) a young man of 19 who lost the lower part of his right leg as a result of negligence following a sport injury was awarded approximately $ 52000.00 in general damages.

[49]. In Tacirua Transport v. Chand ( FCA Reps 95/67) an award of $ 20000.00 was awarded for considerably lighter injuries.

[50]. Upon being guided by these awards and having taken into account the injuries suffered by the plaintiff in this case, I am of the opinion that a proper award for pain and suffering is $ 7500.00 and I so award.

Special damages:

[51]. The plaintiff claimed special damages in the sum of $ 500.00. Although the plaintiff failed to adduce any receipts to substantiate the amount claimed under special damages, I hold that he is entitled to expenses reasonably incurred in attending clinics in the hospital. Therefore, I award $ 500.00 as special damages.

[52]. I would award interest on general damages that is on pain and sufferings at the rate of 4% per annum on 7500.00 from 17.02.2009 (date of accident) to 30.11.2012 (date of judgment) which calculated accordingly comes to $ 1125.00. Post judgment interest under the statute is 4% and I order that as well until the date of payment.

[53]. In summary therefore I award:

1. Pain and sufferings: $ 7500.00.
2. Loss of income: $ 143.72 per week x 20 weeks = $ 2875.00
3. Interest on general damages: $ 1125.00.
4. Cost is summarily assessed in the sum of $ 3000.00.
   

Pradeep Hettiarachchi
Judge