Vunikoro v Chief Executive Officer, Public Works Department [2013] FJHC 40; Civil Action 01.2007 (8 February 2013)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 01 OF 2007

Between:

Ramakula Vunikoro
Plaintiff

And:

The Chief Executive Officer, Public Works Department
First Defendant

And:

The Attorney General
Second Defendant

Appearances: Ms Swastika Narayan for the plaintiff
Mr A. Pratap for the first and second defendants

Dates of hearing: 23rd January, 2012, and 13th April,2012
Closing submissions of the defendants filed on 3rd May, 2012

JUDGMENT

1. The plaintiff, is claiming damages for personal injuries he sustained, in the course of his employment as a plant operator, at the Public Works Department. The first defendant is the Chief Executive Officer, Public Works Department. The second defendant is joined pursuant to the State Proceedings Act.
   

The statement of claim recites that on 13th September, 2004, the plaintiff was operating a bulldozer at the first defendant's job site at Lomati village, Matuku. After clearing space for vehicles to pass, he was reversing into a bush, when a broken branch of a tree hit him. He sustained severe injuries in his left arm. It is alleged that the floor boy assigned to him, had failed to guide him.

The statement of claim proceeds to state that it was an implied term of the plaintiff's contract of employment for the defendants to take all reasonable precautions for his safety, while he was engaged in his work; not to expose him to a risk of damage or injury, of which it knew or ought to have known; to provide and maintain safety measures to enable the work to be carried out in safety; to take all reasonable measures to ensure that the place where he carried out his work was safe; and to provide and maintain a safe and proper system of work especially in remote areas.

The plaintiff alternatively, claims damages under the Workmen's Compensation Act.

The particulars of permanent incapacity claimed are as follows: the plaintiff has constant pain in the left hand; he is unable to lift any heavy objects with the left hand due to the fracture; he has difficulty in operating a bull dozer and takes analgesics for pain constantly.

The defendants, in their statement of defence state that the incident was caused by the negligence of the plaintiff. The defendants plead the defence of contributory negligence on the part of the plaintiff,in not taking directions from the floor boy, while reversing the bulldozer.

2. The hearing
   

The plaintiff's evidence

The plaintiff testified that he was employed with the first defendant from 1985, until his retirement, in 2009. He explained the manner he befell the accident on the morning of 13th September, 2004, and the injuries he sustained, in the aftermath. He was treated at the CWM hospital. In cross-examination, the plaintiff retracted his assertion in evidence in chief, that his left arm was placed in a permanent plaster and said that it was placed in a "U slab". Thereafter, he had traditional massage for two weeks. He was declared fit for work from late January, 2005.The plaintiff explained that the duties of the floor boy was to service the bulldozer and act as standby operator. The floor boy stood away from the machine, to avoid getting injured.

The plaintiff was asked by his counsel, Ms S. Narayan, if the accident could have been avoided, if the floor boy had alerted him of the broken branch. His answer was in the affirmative. In cross-examination, he said the floor boy could not be blamed for the accident. In re-examination, he said that the floor boy does not guide him. He said that infrequently, he assessed the environment, before commencing work. On this occasion, he had looked back while reversing, but a branch of a tree fell on his arm. The vehicle had a hood, but did not have a safety guard.

The statutory notice of the accident given by an officer of the Dept. of Public Works, in terms of the Workmen's Compensation Act, a medical certificate issued by CWM hospital and invoices from the Suva Private Hospital, were produced.

The plaintiff said he received half pay on a weekly basis, during the period he was being reviewed at the CWM hospital. This was inadequate to maintain his family. In cross-examination, he admitted that the hourly wage he received, was increased, after the accident. He agreed that contributions were made to his FNPF.

At the conclusion of the plaintiff's evidence on 23rd January, 2012, Ms S. Narayan moved to call medical evidence, on the next day. On 24th January, 2012, the same application was made and the case was postponed to 13th April, 2012. On that day too, the medical evidence was not available; the defence called their two witnesses. The parties were ordered to file closing submissions on 11th May, 2012.

Evidence given on behalf of the defendants

Messrs Jerry Niulevu, Supervisor, Plant Pool, and Ritesh Chand, Pay clerk, both of PWD gave evidence on behalf of the defendants.

Mr Jerry Niulevu stated that an operator of a bulldozer is required to know the risks involved in his operations and clear obstacles, he encounters. In cross-examination, he said the bulldozer does not have rear mirrors, nor shield to protect the driver. The floor boys' job was to service machines and give directions, when the operator is in the precinct of a dangerous area.

Ritesh Chand, a clerk from the pay office of the first defendant testified as regards the plaintiff's pay history. He produced a tabulated document, which depicted that as at 13 September, 1994, the plaintiff's hourly rate was $ 3.69 and was progressively increased, until his retirement. A schedule, demonstrating contributions made to his FNPF, was also produced. Finally, this witness stated that the plaintiff received two-thirds of his salary, during his period of recuperation.

3. The determination
   

The primary facts are undisputed. The following matters were recorded as agreed facts, at the pre-trial conference: the plaintiff was assigned a floor boy, to guide him while he was operating the bulldozer; the plaintiff, after clearing space for vehicles to pass was reversing into a bush, and in the process, a broken branch of a tree hit his left arm; he sustained a "Closed midshaft fracture of the left humerus"; he was treated at CWMH where his left hand was "put in U slab" and he was given analgesics for pain; he was reviewed at CWMH on 8 occasions; he does not have any permanent disability and was given extended sick leave with pay from 18th September, 2004, till 24th January, 2005.

The disputed issues are as follows:

Was there an implied term of the said contract of employment between the plaintiff and the first defendant to:

take all reasonable precautions for the safety of the plaintiff while he was engaged upon his work.

Was the first defendant negligent at common law as an employer and/or in breach of the contract of its employment;

Is the plaintiff in any manner contributory liable for the injuries sustained?

Has the plaintiff suffered loss and damage, pain and suffering and loss of amenities of life?

Is the plaintiff entitled to Special Damages?

Is the plaintiff entitled to General Damages for injuries sustained?

Is the plaintiff entitled to interest on General and Special Damages and also post judgment interest?

I will first deal with the plaintiff's claim of negligence. The statement of claim alleges that the floor boy had failed to guide the plaintiff, while he was reversing into the bush, resulting in the broken branch of a tree striking him. The particulars of negligence pleaded are the traditional ones, used for a case of this nature and read as follows:

1. Failing to take any or any adequate precautions for the safety of the Plaintiff.
   
2. Exposing the Plaintiff to operate the bulldozer without proper supervision or lookout of floor boy.
   

100. Exposing the Plaintiff to a risk of damage or injury of which they knew or ought to have known.
     

4. Failing to implement that the floor boy at all times is alert and guide the bulldozer during operations.
   
5. Exposing the Plaintiff to foreseeable risk of injury.
   
6. Failing to provide or maintain safe system of work for the Plaintiff.
   

The defendants produced a document, in which the Dept. of Works describes the duties of the floor man/ boy as follows: to "ensure smooth operation for operator;assist in mobilization and demobilization of Plants or Machineries; any other task assigned by Operator/Management from time to time." It does not provide that the duty of the floor boy is to guide the operator.

I find the evidence adduced as regards the duty of a floor boy, of a tenuous character. The plaintiff, in his evidence in chief stated that had the floor man/boy guided him, the accident could have been avoided. In re-examination, he retracted this assertion and categorically stated that it was not the duty of the floor boy to guide him. In cross-examination he said the fault did not lie with the floor boy . There was disparity between the statutory notice given under the Workmen's Compensation Act, by an officer of the Public Works Dept. and the evidence given on behalf of the defendants. The notice provides that the plaintiff reversed into the woods, without the alert of the floor boy. Jerry Niulevu testified that the floor boy gives directions, only when the operator is working in a perilous terrain.

In my judgment, the plaintiff's claim of negligence is elusive .The evidence does not establish that it was the duty of the floor boy to alert the plaintiff of any impending danger. Nor that the first defendant was otherwise negligent in "failing to take any or any adequate precautions for the safety of the Plaintiff" or "failing to provide or maintain safe system of work for the Plaintiff, to use the expressions set out in the statement of claim. I do not find that the first defendant was negligent. It is a truism to say one does not expect a branch of a tree to fall. It was unexpected and most unfortunate, that it struck the plaintiff.

The matter does not rest there. The plaintiff alternatively, claims damages under the Workmen's Compensation Act.

The plaintiff was engaged in the work, he was employed to do .Lord Atkinson in St. Helen's Colliery Co. V. Hewitson, [1924] A.C. 59 stated:

"A workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do'. Or what is, in other and I think better words, in effect the same thing-namely, when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but is to be borne mind that the word 'employment' as here used covers and includes things belonging to or arising out of it".

Section 5(1) of the Workmen's Compensation Act provides that an employer shall be liable to pay compensation, where "personal injury by accident arising out of and in the course of the employment" was caused to a workman. The plaintiff meets the requirements of this section, as graciously conceded by Mr Pratap, counsel for the defendants, in his closing submissions.

It remains, then, to consider what is a proper amount of damages. I turn to the medical certificate dated 13 January, 2005, produced by the plaintiff. This provides that the plaintiff's fracture was healing. He had received treatment as an out-patient and was declared " fit for light duty on 25.1.05", four months after the accident.

I am satisfied that the plaintiff suffered pain,as a result of the injury, although the plaintiff does not have any permanent disability, as provided in the agreed facts. The plaintiff also testified that he experiences pain of his left arm, during cold weather. Accordingly, he is entitled to general damages for past and future pain and suffering, which I assess at $ 4000.00 (four thousand dollars).

Beyond general damages, the plaintiff has claimed damages under a number of special heads. These are: (i) special damages (ii) loss of amenities (iii) loss of earning capacity (iv) future earnings (v) loss of FNPF contributions (vi) loss of interest on FNPF contributions and (vii) interest.

A up to date schedule of special damages has been filed by the plaintiff, claiming a sum of $716.60 in respect of three items of expenditure, namely medical examination and reports from CWM hospital; medicines and transport. Albeit, the claim was unsubstantiated with receipts, the plaintiff testified that he received medical treatment at CWM hospital and traditional massage for two weeks. It was an agreed fact that the plaintiff was reviewed on eight occasions at the CWM hospital, commencing on 15 September, 2004, and culminating on 7 March, 2006. Hence I allow the claim for special damages .

In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLR 90 at page 95, Palmer J stated:

"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts."

I reject the plaintiff's claim for reimbursement of medical expenses incurred at the Suva Private Hospital, as contained in the invoices produced by the plaintiff, since they were issued in January, 2012, seven years after he was declared fit for light work.

The second head is loss of amenities. The plaintiff stated he could no longer do the chores he did, prior to the accident. I find this difficult to accept, since the plaintiff does not have any permanent disability and was declared to be fit for light work, four months after the injury.

The third and fourth claims represent the claim for loss of earning capacity and future earnings. The plaintiff said that he worked until his retirement in 2009, as confirmed by the defence. In my view, the claim for future earnings and loss of earning capacity is most inappropriate and declined.

The fifth and sixth claims do not arise. The plaintiff admitted contributions were made to his FNPF.

The plaintiff has claimed interest pursuant to section 3 of the Law Reform Miscellaneous Act (cap 27).Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum –Pickett v British Rail Engineering Ltd (1980) AC 136 at 137. In the exercise of my discretion under the said Act, I award interest at 6% per annum on the general damages awarded and 3 % per annum on special damages of the sum of $ 716.60 from date of writ being 2nd January, 2007, to 23rd January, 2012, being the first date of hearing .
The total sum awarded to the plaintiff as damages is $ 6039.15 made up as follows:

a.	General damages	4000.00
b.	Interest on general damages	1213.81
c.	Special damages	716 .60
d.	Interest on special damages	108.74
	Total	6039.15

There will therefore be judgment for the plaintiff against the defendants in the sum of $ 6039.15 together with a sum of $ 1500 payable by the defendants to the plaintiff as costs summarily assessed.

8th February, 2013

A.L.B.Brito-Mutunayagam
Judge