Tuqiri v Solander (Pacific) Ltd [2014] FJHC 334; HBA06.2013 (15 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No 06 of 2013
Magistrate's Court Case No Civil Action No.: 257 of 2008

BETWEEN:

MITIELI BALEINASAU TUQIRI of Lot 46, Kinoya Subdivision, Nasinu in Fiji
APPELLANT

AND:

SOLANDER (PACIFIC) LIMITED a limited liability company having its registered office at Muaiwalu Complex, Walu Bay, Suva in Fiji
RESPONDENT

BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. P. Knight for the Appellant
Mr. N. Prasad for the Respondent

Date of Argument: 15th November, 2013
Date of Judgment: 15th May, 2014

JUDGMENT

INTRODUCTION

1. The Appellant (Plaintiff) filed an action in the Magistrate's Court seeking damages for the injury incurred while he was standing on a jetty. At the far end of the jetty a fishing line had been transferring from one vessel to another and a pulley block tied to one vessel (M.V Seaka), for the said operation, broke loose and struck the Plaintiff and another person. The said fishing line transfer was conducted by the employees of the Respondent (Defendant).The Defendant in its amended defence not only deny the negligence on their part, but also state that Plaintiff was a trespasser at the material time and alternatively, claimed that he had voluntarily consented to the injury when he remained close to the dangerous activity, despite alleged warnings by the person in charge of the activity. In the court below the claim was struck off on the basis that the Plaintiff was a trespasser as he did not possess a valid identity card to enter said jetty despite security of the premises allowing him. Apart from that the learned Magistrate had held that the Plaintiff cannot claim damages from the Defendant, as the rule volenti non fit injuria applies as he did not heed to warnings. The Plaintiff and other eyewitness to the incident denied any warnings, but the Learned Magistrate rejected said evidence. The Plaintiff appealed against the said judgment of the Magistrate.
   
2. The grounds of appeal in the petition of appeal are as follows
   
   1. Ground 1. The Learned Magistrate erred in law and in fact in finding that on the day in question, the Plaintiff/Appellant was a trespasser on the Mua-i-Walu Jetty owned by the Fiji Ports Corporation Limited.
      
   2. Ground 2. The Learned Magistrate erred in law and in fact in not finding that even if the Plaintiff/Appellant was a trespasser (Which is denied) the Defendant/Respondent owed a duty of care to the Plaintiff/Appellant and that the Defendant/Respondent was in breach of that duty, of care to the Plaintiff/Appellant.
      
   3. Ground 3. The Learned Magistrate erred to fact in finding that the witness Lino Ratuvou shouted three times to the Plaintiff/Appellant to move from where he was standing and /or that the Plaintiff/Appellant heard such, warning or directive.
      
   4. Ground 4. The Learned Magistrate erred in law and in fact in find in that the Plaintiff/Appellant voluntarily exposed himself to the risk which resulted in his injury and thereby waived his right of action against the Defendant/Respondent.
      

ANALYSIS

3. The learned Resident Magistrate had first come to a conclusion that the Plaintiff was a trespasser at the material time. The incident happened inside the jetty and this was an area with restricted access which comprised few buildings and wharf. The Plaintiff was allowed in by the security personnel who was at the entrance. He had an identity card to enter similar places in two other locations, but not the place in issue. It is a fact that not only on this occasion but even on earlier instances the Plaintiff had entered the premises in search of casual work and he had also found such casual work in ships berthed in the wharf including the particular instance. On this day again he had entered seeking causal work in the ships berthed.
   
4. The jetty does not belong to the Defendant. The Defendant apparently does not have any control over the entry of persons to the jetty and more particularly the area where the accident happened. The Defendant was a company that involved in the activities of fishing using fishing vessels and their ship was berthed in the wharf and they were conducting a fishing line transfer from one vessel to another close, to the jetty.
   
5. The security personnel who was on duty gave evidence and said that he allowed the Plaintiff in since he had an ID card. He said apart from persons holding ID cards issued by the Ports Corporation, he as the person in charge of the entry of people, allowed even persons without ID cards if they had come for business. He also said there was no sign to indicate the premises was a dangerous place, but access was restricted and one of the reasons for restriction of access was that it was dangerous. He said that the Plaintiff was allowed in as he was searching for causal work and he had an ID card. He admitted that worker needed an ID card to enter the premises. From the evidence it is admitted that Plaintiff did not have a valid ID card to enter the premises where he got injured.
   
6. The Plaintiff got injured while he was on the jetty. The defendant was transferring the fishing line from one vessel to another near the jetty. The Plaintiff was standing about four meters from the said operation on the jetty and there were other persons on the jetty in the vicinity, too. The activity of transferring fishing line from one vessel to another is 'dangerous activity'.
   
7. The Plaintiff did not sue the occupier of the premises, but sued the Defendant who was conducting the 'dangerous operation' of line transfer, near to the jetty. In Cleark and Lindsell on Torts (19th Edition)(2006) at p 1265 under 'Particular Hazards' (21-60) stated
   

'Liability of the actual wrongdoer.

In addition to any liability there may be upon the occupiers of the land, the person who actually caused the fire or performed the dangerous operation resulting in fire is liable, as also is the person who authorized the act' (foot notes omitted)

8. Though the said statement is relating to the particular hazard fire, this can be applied to other dangerous activities, too. The person who causes dangerous activity in premises belonging to another, is liable for negligence irrespective of the occupier being made a party to the action. In this action the Plaintiff opted not to sue the occupiers and or the owners and or the managers of the premises, namely the Fiji Ports Corporation Ltd and only sued the Defendant, who conducted the hazardous activity close to the jetty. In Pannett v P McGuinness & Co Ltd - [1972] 3 All ER 137 when a child who was warned previously entered a dangerous premises and got injured from a fire. The contractors who alighted the fire was sued instead of the owner of the property, and damages was awarded against them. In Buckland v Guildford Gas Light and Coke Co [1948] 2 All ER 1086 was a case, when a girl got electrocuted from climbing to a tree with thick foliage that hid live electricity wires and contacting with them, but the owner of the premises where the tree was not sued, presumably as she had no authority to enter the premises and climb the tree, but the entity that was in charge of the electricity lines was held liable for the negligence. So, irrespective of the position of the owner or the occupier of the premises a defendant can be sued for negligence independently.
   
9. The Privy Council decision of the Hillen and Pettigrew vs ICI (Alkali) Limited [1936] AC 65 relied in the court below by the learned Magistrate. The Defendant's counsel had relied on the same authority in its written submission and quotes from the said judgment were taken out of context to apply to the facts before this appeal as well as in the court below, hence closer look at said decision is needed to understand the determinations of the said case and its applicability of that ratio to present context.
   

Hillen and Pettigrew vs ICI (Alkali) Limited [1936] AC 65

10. The facts of the above case are succinctly stated in the head note as follows;
    

'The appellants were members of the stevedores' gang employed to load a steamship from the respondents' barge Hibernia. The cargo in the hold of the barge consisted of bicarbonate of soda in bags and soda in kegs on top of the bags. The foreman required the bags to be loaded before the kegs. The kegs were therefore laid along the deck of the barge to enable the bags to be slung on board the steamer by the ship's derricks. After this had been done the crew of the barge replaced the hatch covers and the appellants placed seven kegs in the sling. When they were moving the eight kegs, the hatch covers gave way and the appellants fell into the hold and were injured. The men knew that it was dangerous and improper to load cargo off the hatch covers'

11. Lord Atkin in the judgment of said case at page 68 summarized the facts as follows;
    

'After the bags for the Darro had been transported in the slings the crew of the barge put the hatch covers on the after portion which had been uncovered. They did not put on the fore and aft beam. The kegs still remained to the shipped from the barge to the Darro. The engineer threw a sling on to the covered hatch and assisted the two plaintiffs to place eight of the kegs in the sling. He probably told them it was all right. When seven kegs were in the sling and the eight was being put in, two of the hatch covers gave way, and the two plaintiffs and the engineer fell through into the hold. One of them, Pettigrew, received very serious injuries. The Plaintiffs brought separate actions, afterwards consolidated, against the respondents on the ground that the defendants were negligent in providing unsafe hatch covers, or at any rate in not warning them that the hatch cover were not at the time supported by the fore and aft beam.

.......

On appeal the members of the Court of Appeal came to the conclusion that the terms of Rule 34(b) of the Dock Regulations, 1925, made under s.79 of the Factory and Workshop Act, 1901, it was unlawful to use the covered hatch for the purpose of discharging cargo from it: and that no duty towards the plaintiffs in those circumstances be established against the defendants.'(emphasis is mine)

12. So, in the said case, what was done by the claimants, that resulted injury was an unlawful act according to the Rule 34(b) of the Dock Regulations,1925 made under s.79 of the Factory and Workshop Act, 1901(UK). The claimants in the said case engaged in the said unlawful act of using the covered hatch for discharging cargo and the said hath broke and claimant finally got injured as a result of falling to hold. In that case the stevedores were invitees to the barge and they were supposed to comply with the said regulations, but they did not do so, which directly resulted the injury to the claimants. There was no negligence proved on the part of the owners of the barge. The alleged negligence in that case was not to warn the claimants of the 'hidden danger of which they were unaware but which was known or ought to have been known to the defendants or their servants.' It was held in that case that if there was such an obligation to warn, it was only a moral obligation on the part of the engineer and such moral obligation of an employee cannot result vicarious liability to the employer.
    
13. In the said context Lord Atkin held at p69
    

'My Lords, in my opinion this duty to an invitee only extends so long as so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purpose for which he had been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute and improper use.'

14. So, in the said case the claimants who were invitees to the barge, had used the premises for purpose which they already knew as dangerous and improper use which in law was designated as 'unlawful'. Lord Atkin quoted Scrutton L.J and said p 69
    

'As Scrutton L.J has pointedly said: "When you invite a person into your house to use the staircase you do not invite him to slide down the banisters."(I) So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.'

15. The facts before the Resident Magistrate in the present case were different. The Plaintiff was not an invitee of the Defendant to the jetty, in fact they were not in control of persons who enter to the premises. The jetty belongs to a third party and there was no claim against them in this action. There was evidence that apart from the Plaintiff there were others on the jetty near or in the vicinity of the line transfer. There were no warning signs preventing a person from entering the area of the jetty, where Defendant carried out hazardous activity. The board outside the port only state that the jetty was 'restricted area' and no unauthorized person could enter. It was clear that jetty was not public thoroughfare, nevertheless it was an area where people have access for various activities including business purposes presumably in the buildings inside the premises and also in ships berthed for various reasons. The security person who manned the entrance in his evidence said that he allowed in persons who had business to do and there were buildings on the premises and jetty was only one part of the premises where there was common entrance.
    
16. The Plaintiff was standing on the jetty and was talking to another person nearby when the pulley block attached to one vessel broke loose and became a missile injuring the Plaintiff and another person. The Plaintiff, was an onlooker of the operation unlike in the Hillen case (supra) who did unlawful act that was a violation of law, that resulted them getting injured.
    
17. In the Hillen (supra), the very dangerous act of the claimants resulted the giving way of the hatch cover and stevedores falling to hold of the barge and this particular act was against a regulation that governed the stevedores, who got injured. In contrast to this the Plaintiff cannot be found fault for the breaking of the pulley block from its tight position and became extremely dangerous missile that injured two persons including the Plaintiff who was on the jetty. Specific instructions were given to person operating contained in P3, that in case of 'tangle jams in the guide block, it is strong enough to break the line, rather than the guide block anchor letting go'.
    
18. According to D6 paragraph 19, which was a statement marked and relied by the Defendant the incident was a tangle jam and more details were given as 'the line coiled on the deck, tangled, and the resulting 'bird's nest' jammed in the pulley, which was ripped off its mounting by the inertia of 50 miles of rotating monofilament.' So, quite opposite to what was instructed the tangle jam did not break the line but guide let go as the rope got broken instead of breaking of line. There was no explanation as to why the line did not break as expected in such a scenario as per the instructions contained in P3.
    
19. The action of the Plaintiff that was highlighted in the trial was not heeding to the warnings of the Defendant's employee not to come to the edge of the jetty. This was a fact that was not only denied by the Plaintiff but also the only other eye witness called by the Plaintiff. Mr. Lino Ratuvou who was in-charge of the line transfer said it was a hazardous activity. He admitted that there were others on the vicinity of jetty and in fact stated that he had seen the Plaintiff talking to another person shortly before the accident that injured him. He admitted that there were no sign boards warning any person entering the area of the jetty where the hazardous activity was conducted by him. There were no steps taken to prevent any person from entering the area where the hazardous activity was conducted and Mr. Lino admitted that there should have been warning signs to warn the danger. In this instance when the tangle jam happened as detailed above, the line did not break as it should have been as per the instruction in P3 but the pulley block gather force due to tension as the line did not break. The pulley block became a dangerous missile as opposed to what was expected in such a situation as per the instructions in P3 indicating negligence or derelict of duty by Mr. Lino.
    
20. In such a scenario his evidence was motivated to exonerate himself from his lapses and has to be analysed in that context and believing everything he said without analysis facts separately, cannot be accepted. Mr. Lino in his evidence stated that he was distracted by Plaintiff's presence. In D6 again the alleged distraction was the reason for the tangle jam, but interestingly none of the Plaintiff's witnesses were encountered with such a proposition during the trial when they gave evidence. D6 was purportedly signed on 18th October, 2012, in Suva and this was the day the trial started and if so the Defendant had ample opportunity to encounter the Plaintiff and his eye witness on the alleged statement in paragraph 19 of D6. Isireli said he tied the pulley block, from a nylon rope, but was not cross-examined on that fact by the Defendant. In contrary to that in D6 as well as in the evidence of Mr. Lino the rope was not nylon and attaching the pulley block to the vessel was done by him. These were vital issues that directly have an impact on the level of negligence of the Defendant, but were never cross-examined but at the end of the trial these evidence were introduced and without analysis such evidence was accepted by the learned Magistrate.
    
21. The person who was in charge of security, in his evidence stated that any person who had business was allowed in at the entrance and there was no sign to indicate that person was entering a dangerous zone. Having access to authorized area, did not necessarily mean that a person was entering a dangerous zone unless stated so. There was evidence that there were some buildings inside the premises and persons who were working there may not be exposed to dangerous activity and people who had business would have entered these buildings without any warnings and there would not have been a need to warn them at all. There were no warning signs apart from the sign at the gate which indicate that only authorized persons could enter the premises in general. The said restriction was done for safety as well as for security purposes like prevention of thefts. No special safety clothings like hard-hats or special gear, were worn by any person entering the jetty, including the persons who were involved in the hazardous activity of the fishing line transfer from one ship to another.
    
22. There was no one on the jetty to warn any person moving in the vicinity. It was also not clear what was the dangerous zone of the jetty due to said operation of line transfer. There was a statement of a Company Director of the Defendant Company who was based in New Zealand marked as D6 according to him the activity was hazardous and they selected a corner of the jetty because of that reason. This indicate negligence on the part of the Defendant. If a person conducts a hazardous activity in a place open to others without any warning signs, thinking that it was safe, as it was a corner where there was less likelihood of people coming, there was equally a risk involved in that and can be considered a negligent act, depending on the circumstances of the case. In such a scenario, admitted by the Defendant, if a person entered danger zone and subsequently injured, it would be negligence on the part of the Defendant. The entry of the person to the danger zone was due to the negligence of the party that did not restrict movements in the said danger area. It was not good enough to say we never thought no one would enter the area as it was a corner of a jetty. The absence of any mechanisms to curtail the free movements of persons to the danger zone where the Defendants conducted hazardous activity was a negligent act.
    
23. The dangerous activity that the Defendant performed would under normal circumstances took more than 4 hours. This was a considerable time period and without any mechanism of restricting movement of persons in to the danger zone such an activity should not have been commenced as monitoring people on the jetty and their movements for such a long time period of time was not possible. This was the reason that resulted the Plaintiff entering the danger zone without any hindrance.
    
24. The Learned Magistrate had believed the evidence of the Defendant and concluded that Plaintiff had not heeded to the said warning. The Learned Magistrate had the opportunity of observing the demeanor of witnesses. It is noteworthy that the Plaintiff was never cross examined on the alleged three warnings given by Mr. Lino the person who was in charge of the operation. If such three warnings were in fact given there was no reason not to cross-examine the Plaintiff on such a vital point. The learned Magistrate had allowed the counsel for the Defendant to raise an issue of warning after the counsel for the Plaintiff had established no warnings were given in the re-examination. With the permission of the court counsel for the Defendant had raised an issue of warning, but again there was no cross-examination of three warnings given as detailed in the evidence of Mr. Lino. Even assuming that the Plaintiff did not heed to the warning, the injury did not happened due to said action of the Plaintiff not to move from the place of the jetty he was standing. This was a factor for contributory negligence. The all or nothing rule had been displaces long time ago and the contributory negligence of not heeding to the warning and remaining on the jetty can reduce the amount of damages in the assessment, but this will not absolve the Defendant from its liability towards the users of the jetty in general. Whether this applies to a trespasser I will deal later in this judgment. But it was wrong to apply the statements in the Hillen (supra) case to the present case as the injury in that case happened directly as a result of using the premises by the invitees, the stevedores, for a dangerous act which was against the law that governed them.
    
25. There were number of factors that can distinguish Hillen (supra) from the case before me. First the Plaintiff in this case was not an invitee of the Defendant, and the liability was not sought on that basis as done by stevedores in Hillen (supra).Second there was no law that governed the Plaintiff as to the movements on the jetty including the area where the Defendant was conducting the line transfer between the two vessels. Third the Plaintiff got injured due to the pulley block breaking loose from its tight position, making it a dangerous missile, unlike in Hillen (supra) as it could not withstood the tension of tangle jam, as required under P3 instructions for which Mr. Lino was the entirely responsible and the Plaintiff had no part in the said compliance of the instruction. There were issues relating to who tied the pulley block to the vessel and what was the type of rope used for that and what was the method used for holding the pulley anchor tightly to the vessel in a tangent jam. Fourthly, standing on a jetty cannot be considered as dangerous use of the premises as opposed to the stevedores actions in the said case. Fifthly, the alleged liability of the engineer to warn the stevedores was held to be only a moral obligation hence the vicarious liability of the employer was not extended. As opposed to that there was no finding of any moral obligation on the part of the Defendant who admittedly conducted dangerous activity that normally last for more than 4 hours without adequate measures to curtail persons moving in to danger area of the operation.
    
26. The Judgment of the Magistrate's Court at paragraphs 45,46 learned magistrate stated as follows,
    

'It is clear that the security guard and Mr. Isireli Cirnavosabula acted outside their powers. Lord Atkin in Hillen and Pettigrew states" I am far from satisfied that any one so invited the plaintiffs; I think the engineer's part was confined to a friendly suggesting that they should all do something irregular together. But whether there was an invitation by crew or any member of the crew, I am quite satisfied that it was wholly without the authority of the owners, and quite outside the ostensible scope of the authority of the crew. The owner of the barrage does not clothe the crew with apparent authority to use it or any part of it for purposes which are known to be extraordinary and dangerous. The crew could not within the scope of their employment convert it in to a dancing hall or drinking booth.

Therefore in the present case even the Plaintiff was invited to the jetty by the above stated persons the Defendant will not vicariously liable for the acts of their servants who have clearly acted outside the scope. On the other hand a duty of reasonable care only extends even to an invitee who is acting with due care.'

27. The Plaintiff's claim was not against the Fiji Ports Corporation Ltd as the occupiers of the premises, whose guards allowed the Plaintiff in to the premises presumably on the strength of the ID issued to different ports. So, the application of Hillen (supra) to this case in the above paragraphs cannot be accepted as correct application of law. The Plaintiff's claim was based on the injury to him with the collision of pulley block after breaking loose from its tight position from the vessel. The Plaintiff was not claiming vicarious liability of the security guards who allowed him in or of any negligence on the part of Mr. Isireli in inviting him to the premises to unload fish in the vessel. So the said application of the Hillen (supra) to the present case in the court below and application of the said quotes from the sad case cannot be accepted and can be distinguished for reasons given above.
    
28. According to the eye witness, Isireli the breaking loose of the pulley block from its tight position had happened due to the breaking of the rope and this had happened due to braking of the strands of the rope. There was contradictory evidence as to who tied the pulley block to the vessel. Isireli said that he did that and he was not even cross examined on that vital fact by the Defendant's counsel. He not only described how he did that, but also said it was a nylon rope. He said 'The pulley broke because it was only tied with a rope. It was cutting the rope.' This was a vital piece of evidence, but was not cross examined by the Defendant. No cross-examination was done as to who tied the rope which got broke, instead Mr. Lino and D6 produced evidence to the contrary at the end of trial. Why they failed to question Plaintiff's witnesses on the contradictory evidence contained in D6 and Mr. Lino's version has not been explained. In such a scenario it is not safe to believe Mr. Lino as he was an interested party to the alleged negligence and there was strong motivation to exonerate his lapses during the operation.
    
29. The Defendant's evidence was that Mr. Lino had done it. He said he had done it many a time and had also been trained on that. Assuming that he done it he had not proved that he followed the directions marked 'P3' which specifically deals with fishing line transfer. Under 'Transferring main line' it is stated as follows
    

'When transferring mainline from one drum onto another, or from one vessel to another, care must be taken to, or from one vessel to another, care must be taken to, first, ensure that all members of the crew know that the operation is taking place, and do not emerge unexpectedly from within the vessel into the path of rapidly moving line.

Care must be taken to ensure that all guide blocks are securely fastened to a strong part of the vessel so that if a tangle jams in the guide block, it is strong enough to break the line, rather than the guide block anchor letting go. If the guide block anchor lets goin such a case, it will become a missile endangering anyone in the vicinity. Care must be taken to ensure that the person operating the spool does not cause the transfer of line to be too fast. In the event of tangle, too much speed only makes a bad situation worse. A moderate speed with good lookouts posted to keep the operator informed is the best policy.'

30. The Defendant did not prove that he had taken all the precautions, stated in 'P3'. In his evidence he failed to explain to how the pulley block (guide block) became a missile endangering the people in the vicinity. According to the evidence given on behalf of the Plaintiff this had happened due to the 'cutting' of the stands of the rope that fastened the block anchor to the vessel. This evidence was not cross examined and remained unassail as no contrary evidence was given or cross-examined on the vital fact of how the pulley block broke from the tight position.
    
31. In contrast to this the document marked D6 tries to attribute the accident to the Plaintiff. This was an unsworn hearsay statement of a person who was in New Zealand, but the statement was purportedly made on 18th October 2012 in Fiji which was marked as D6. Even the person who was making the statement failed to mention as to how he became aware of the factual statements therein. Obviously, these facts were not perceived by the Director of the Defendant company. No evidence was produced to substantiate the hearsay statement where he had attributed the reason for accident to the plaintiff's entry in to danger zone. In paragraph 19 of the D6, it was stated as follows
    

'19. As a result of this altercation, the operator lost concentration on the job at hand, the line coiled on the deck, tangled and the resulting 'bird's nest' jammed in the pulley, which was ripped off its mounting by the inertia of 50 miles of rotating monofilament. The operator was unable to stop both spools in time to prevent the plaintive (sic) being hurt.'

32. This was a complete different version of what was evidenced by the eye witnesses of both parties. First, such a contention was never suggested in the cross-examination of Plaintiff as well as Isireli who were eyewitness to the incident. Why the Defendant failed to raise such a vital issue when the Plaintiff and his witnesses were giving evidence needs to be considered in the analysis of evidence. These were never highlighted in the submissions of the counsel, and not dealt in the judgment of the learned Magistrate.
    
33. I do not think the reason given in above quoted paragraph for incident can be believed on the balance of probability. If that was so why they did not say so in their statement of defence was not explained. The said statement was purportedly signed on 18th October, 2012, at the start of the trial, but strangely did not thought fit to encounter the witnesses of the Plaintiff. By the same token the procedure explained D6 including the type of rope used and that Mr. Lino did the tightening of the pulley block cannot be accepted as these were never cross-examined when Mr. Isireli gave evidence to the contrary to that.
    
34. Even if am wrong on rejecting said statements in D6, if paragraph 19 of D6 is to be believed the entry of person to danger zone could distract the person who was in control of the dangerous operation, making it even more dangerous. If so the Defendant should have been extremely cautious not to allow any person entering the area where the Plaintiff was, as that could easily distract the person in charge resulting even injury to their employees, as one of the injured was on the vessel. Since the Defendant had not taken such precautions prior to the commencement of the hazardous operation it was a negligent act.
    
35. The evidence of Mr. Lino was that there were inadequate warnings regarding the hazardous activity they were conducting close to a jetty. The quoted instructions contained in P3 earlier, state that if the guide block get loose it will become a missile endangering anyone in the vicinity. It also stated that in a tangent jam, the line should break instead of breaking loose of the block, which did not happen in this instance. No reason was given why it did not happen as it was expressly stated in the instructions P3. The explanation needs to come from the Defendant as tangent jam was admitted in D6.
    

Trespasser

36. The learned Magistrate had held that the Plaintiff was a trespasser as his authorization was only to enter Kings and Lautoka wharfs and not to the wharf were the accident happened. The witness from the Fiji Ports Corporation stated that the Plaintiff could not have been allowed in to the jetty, where the injury happened, based on his ID produced in court below. The Plaintiff had not only entered the said jetty on this occasion, but also on previous occasions, in search of work and he had also found work occasionally, presumably on production of ID. He had presented his ID card to the guard at the gate and he had authorized the entry. This fact was corroborated by the evidence of the security guard who was on duty on the day of the incident. It was never contended that Plaintiff made a honest mistake of fact that he had authority to enter the premises. He had admitted in his evidence that it might have been a misuse of his ID card, to enter the premises as he did on this occasion. On the ID card it was stated in bold capital letters the places he could enter and the place where he got injured was not mentioned in the ID. On the balance of probability the evidence presented by the Defendant that Plaintiff may be considered as a trespasser at the material time to the owners of the premises.
    
37. When the Defendants conducted hazardous activity close to said premises the liability of the Defendant will be to all the users of the premises irrespective of said status of the occupants on the premises whom they could foresee injury. The claim of the Plaintiff was not against the occupiers of the premises, but against the Defendants who conducted the hazardous activity close to the premises where people were present. This fact was not addressed by the learned Magistrate, and was not contended in the court below as well as in this court. In order to understand the position of the Plaintiff it is important to know the rationale in placing a trespasser a lesser liability for a claim for damages against the occupier.
    
38. In Privy Council decision of Commissioner For Railways v Quinlan [1964] 1 All ER 897 at 913, Viscount Radcliffe held,
    

'trespasser to whom the occupier is accountable for his actions, even if dangerous, is one of whose presence he actually knows or one whose presence at the time of injury can fairly be described as extremely likely or very probable. To go further is to accept the proposition that a trespasser who insists on forcing himself on to the occupier's premises and lets him know that he intends to enter in this way can impose on the latter, against his will, a duty to take precautions and have care which may seriously impede the conduct of his lawful activities. In their lordships' opinion the law does not admit of this result.

39. From the above statement it can be deduced that if the occupier was unaware of the presence of the claimant or it was extremely unlikely or least probable, such claims were absolved. Applying the facts before me, the occupier and or owner and or the manager of the wharf was the Fiji Ports Corporation and they may be unaware of the presence of the Plaintiff, due to the actions of their own security personnel, thus the Plaintiff may be a trespasser to them if there was any claim against them, but there was none in this case.
    
40. The Defendants were conducting a dangerous activity on the premises belonging to the Fiji Ports Corporation and there was evidence that there were no restriction of people in the vicinity of the dangerous operation. So the rationale that can absolve the liability of the occupiers cannot be applied to the Defendants as they were fully aware of the dangers to the persons on the jetty and had not put any warning signs or restrictions to curtail movements of the people on the jetty. According to statement of the Director of Defendant marked D6, they considered the place they conducted the dangerous activity as less likelihood of injuring a person on the jetty as the operation was done on one end of the jetty. That statement in D6, would alleviate any doubts as to the persons on the jetty as trespassers as Defendants were fully aware of the presence and movements of the people on the jetty and selected a corner of jetty knowing the danger to the people on jetty. So the liability of the Defendants to the people on the jetty including Plaintiff cannot be considered as the liability of the trespassers.
    
41. In Buckland v Guildford Gas Light and Coke Co [1948] 2 All ER 1086 a school girl had gone on a school trip and while they were not visiting a nearby farm she had gone in and had climbed to a tree where the live electricity wires were hidden inside the thick foliage of the tree, and got electrocuted. The action was not against the farm or the occupiers but against the company who were in charge of transmission of the electricity who were in charge of the live wires that resulted the electrocution.
    
42. It Buckland v Guildford Gas Light and Coke Co at[1948] 2 All ER 1086 at 1092, Morris J held,
    

'The deceased girl was, in my judgment, within the group of those whom the defendants ought to have had in contemplation. She was a "neighbour" in the sense in which that word was used by Lord Atkin in what Lord Wright [in Bourhill v Young ([1942] 2 All ER 404)] called his "well- known aphorism ... in Donoghue v Stevenson". I have given my reasons for concluding that she must not be regarded as having been a trespasser in field No 298. It has not been proved to me that she was, but, even if, contrary to my view on the evidence before me, the inference ought to be drawn that she was not permitted to be, but was a trespasser when she was, by the tree, she was nevertheless in the circumstances of this case on to whom, in my judgment, the defendants owed a duty. The classifications into which persons may fall according to whether, in relation to the occupier of the land, they are his invitees or his licensees or whether they are trespassing, do not have decisive significance when considering in the present circumstances the position of the defendants. The occupier of field No 298 might own different duties to those who were his invitees from those which he owed to those who were his licensees. The duties owed by the defendants to those in the two classes would be the same' (emphasis mine)

43. The above dicta of Morris J supports the contention that though the Plaintiff can be considered as a trespasser against the occupier and or owner and or the manager of the premises, it would not necessarily mean that he was a trespasser to the defendant in that case. This distinction was not addressed in the court below as well as in the appeal. It would be strange and impossible to have two sets of liabilities imposed on the Defendant depending on the status of the persons on the jetty.
    
44. The burden of proving that the Plaintiff was a trespasser to the Defendant was with the Defendant and there was no such proof. They had only tried to prove that Plaintiff was a trespasser to the owner of the premises, against whom there was no claim. As I have stated earlier on the Plaintiff cannot be classified as trespasser to the Defendant as his position on the jetty was no different from another authorized person on the jetty in relation to the injury from the negligent act of the Defendant. In my judgment the Plaintiff cannot be considered as a trespasser for the Defendant in his present claim.
    
45. Without prejudice to what I have stated above, In the case of Revill v Newbery [1995] EWCA Civ 10; [1996] 1 All ER 291 it was held that in a personal injury claim for damages for negligence was not debarred from making any recovery by the fact that the claimant was a trespasser. In that case the claimant was engaged in criminal activities inside the defendant's premises, at the time the injury was suffered to him. In this case the claimant was a thief who had entered the premises to conduct a criminal activity for which he was charged and pleaded guilty, but before he stole anything the owner of the premises fired blindly in the dark at the key hole which injured the claimant for which the civil action was brought against for negligence. The court held that despite the claimant being a trespasser and also a person who was convicted for an offence for entering the premises in pursuance of criminal intent, at relevant time, an award for damages was made. In the circumstances being a trespasser is not a bar to a claim for damages for lack of duty of care.
    
46. Learned Magistrate had applied the case of British Railways Board v Herrington - [1972] UKHL 1; [1972] 1 All ER 749 and held that even a trespasser should be treated with ordinary humanity. At the paragraph 48 Learned Magistrate state as follows
    

'In 1972 in British Railways Board v Herrington - [1972] UKHL 1; [1972] A.C 877 the House of Lords held even a trespasser should be treated with ordinary humanity. This was not a new development on the law relating to duty of care. Even Lord Atkin emphasized during the above discussed case, that the Defendant might owe a moral duty even to a trespasser to warn him about the danger.' (emphasis mine)

47. The Lord Atkin's decision in Hillen and Pettigrew vs ICI (Alkali) Limited [1936] AC 65 where it was held that there was a moral duty on the part of the engineer to warn the stevedores of any danger of their unlawful operation, was under entirely different circumstances and this cannot be used to support the finding of the British Railways Board v Herrington - [1972] UKHL 1; [1972] 1 All ER 749, [1972] A.C 877. It should be noted that in Herrington (supra) the House of Lords did not applied Hillen for their determination, but equally overruled R Addie & Sons (Collieries) Ltd v Dumbreck [1929] UKHL 3; [1929] All ER Rep 1. It is worth considering the said decision and the ratio before applying it to the present case.
    
48. In Clerk & Lindsell on Torts(19th Edition) at p 772 it was stated
    

'British Railway Board v Herrington departed from the old rule, discarded the fictions that had circumvented it, and held that a trespasser (here a trespassing child injured by a liv electrified rail) was, after all, owed a limited duty of care. Unfortunately, however, the precise level of the duty of care, remained obscure. There were attempts to mark it off by suggesting that a defendant could not be liable without actual knowledge that trespassers were likely to be on his land, or that, exceptionally his assets(or lack of them) should be in account in assessing what was expected of him. But these were later discountenced, and in their absence, one was left with little more than a Delphic description of the duty as being one of "ordinary humanity".(foot notes omitted)

British Railways Board v Herrington - [1972] UKHL 1; [1972] 1 All ER 749, [1972] A.C 877.

49. Facts of said case as stated in Lord Reid' s judgment at p 749 state as follows
    

'My Lords, on 7 June 1965 the respondent, then a child of six years old, was playing with other children on National Trust property at Mitcham which is open to the public. Immediately adjoining this property the appellants have an electrified railway line a few yards from the boundary. Their boundary is marked by a fence which, if it had been in good repair, would have sufficed to prevent the respondent from reaching the railway line. But it was in very bad repair so that when the respondent strayed away from his playmates he was able to get through or over it. He then went a few yards farther and came in contact with the live electrified rail. Fortunately he was rescued but he had already sustained severe injury. His age was such that he was unable to appreciate the danger of going on to the railway line and probably unable to appreciate that he was doing wrong in getting over the fence.'

50. The contention in Herrington (supra) was that an occupier owed no duty to the potential trespassers. In the lower court it had relied on House of Lords decision in R Addie & Sons (Collieries) Ltd v Dumbreck [1929] UKHL 3; [1929] All ER Rep 1, but this was not followed in the Lord Reid's judgment and held,
    

'The speeches in this House in Addie's case appear to me to be intended to lay down a general rule that no occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land however likely it may be that they will come and run into danger and however lethal the danger may be. I find it impossible to reconcile these speeches with any idea that the occupier will incur any duty of care to trespassers by carrying out dangerous operations on his land even when he knows that trespassers are very likely to come on to his land and that if they come these operations may cause them injury. If he knows that trespassers are already on his land then for the first time he does incur a duty but it is a duty of a very limited kind--a duty not to act with reckless disregard of their safety.

There was nothing new in that. But the rule was laid down with stark simplicity and the speeches must have been intended to check a growing tendency of courts both in England and Scotland to try to soften its impact. The noble and learned lords appear to have had in mind that occupiers are entitled to know precisely what their duties are and nothing could be simpler than the answer which they gave.

But there were already two exceptions to this rule. The first was where the occupier had put on his land something which was dangerous and was an allurement to children. That seems to me to be easy to explain. He ought to know that by putting that allurement there he was in a sense inviting children to meddle with the dangerous thing, and the law would not permit him to do that without imposing a duty on him. His liability arose from his own choice to endanger children in that way.

The second exception is not so easy to explain. If, after a certain point not easy to define, the occupier continued to stand by and acquiesce in the coming of trespassers he was held to have given a general permission or licence to trespassers to continue to do what those trespassers had been doing. Any 'licence' of this kind was purely fictitious. There was no need to find any evidence that he had in fact consented to the coming of the trespassers or to the continuance of the trespassing. His inaction in suffering the trespassing might have been due to many other reasons than his being willing to allow it. He might prove that there was some other reason but that would not avail him.'

51. Considering the second exception as stated in the said judgment of Lord Reid, even the occupier would become liable on the basis of 'fictitious licence' as explained in the above quoted paragraph of Lord Reid in the Harrington (supra) as there was no need to prove 'any evidence that he had in fact consented to the coming of the trespassers or to the continuance of the trespassing'. So applying the same to the facts before me even considering the Plaintiff as a trespasser, still he would qualify for the second exception, so that even the occupier would be liable for damages on the proof of negligence. So, I need not go further than this to conclude that application of Harrington (supra) would not exculpate the Defendant.
    
52. Lord Reid in Harrington, (supra) at p 754 held as
    

'The speeches in this House in Addie's case appear to me to be intended to lay down a general rule that no occupier is under any duty to potential trespassers, whether adults or children, to do anything to protect them from danger on his land however likely it may be that they will come and run into danger and however lethal the danger may be. I find it impossible to reconcile these speeches with any idea that the occupier will incur any duty of care to trespassers by car-crying out dangerous operations on his land even when he knows that trespassers are very likely to come on to his land and that if they come these operations may cause them injury. If he knows that trespassers are already on his land then for the first time he does incur a duty but it is a duty of a very limited kind--a duty not to act with reckless disregard of their safety.'

53. In Southern Portland Cement Ltd v Cooper - [1974] 1 All ER 87 at 98 it was held
    

'If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger he may have to do more. There may be difficult cases where the occupier will be hampered in the conduct of his own affairs if he has to take elaborate precautions. But in the present case it would have been easy to prevent the development of the dangerous situation which caused the plaintiff's injuries. The more serious the danger the greater is the obligation to avoid it. And if the dangerous thing or something near it is an allurement to children that may greatly increase the chance that children will come there.

Next comes the question to whom does the occupier owe a duty. Their Lordships have already rejected the view that no duty is owed unless the advent of a trespasser is extremely probable. It was argued that the duty could be limited to cases where the coming of trespassers is more probable than not' (emphasis mine)

54. The Plaintiff had come in search of casual work as he did not receive any work in the place he used to do causal work. In order to work as casual worker he had obtained an ID card that allowed access to Lautoka and Kings Wharfs. He had used the said ID to enter the premises and the evidence is that it was not proper authorization to enter the premises where he got injured. The Plaintiff had enough incentive or allurement to enter the premises in search of work as his casual work. The Defendant owed a duty to take precautions when it conducted a dangerous activity close to the jetty, where other persons were present including the Defendant.
    
55. Though the Learned Magistrate had believed Mr. Lino's evidence in toto I am not inclined to do so. It is a trite law in the analysis of the evidence that false statement in one aspect cannot be used to reject the evidence of a person in its entirety. The only eye witness called by the Defence Mr. Lino stated that he had tied the pulley block that got loose to the vessel. This was never suggested in the cross-examination of Isireli who gave evidence for the Plaintiff who said that he was the person who tied the pulley block to the vessel. Though Isireli's evidence was contrary to the Plaintiff's evidence, it cannot be rejected entirely.
    
56. The Defendant's eye witness also stated that Plaintiff asked him to do his job without being concern of his safety, which again was never put to any of the Plaintiff's witnesses. All these suggest the believing the Defendant's eye witness in toto was equally not warranted in the circumstances of the case. If the said witness who was trained in this type of operation did the fastening of the pulley block he should also be able to say why it broke loose. The reasons for braking the rope given by the Plaintiff's eye witness was not challenged in the cross examination or by Defence witnesses, but again at the end of the trial a different contention was presented in D6 in an unsworn statement which detailed how the tightening of pulley block was done. These are all hearsay statements and Mr. Lino did not elaborate them or tried to cross examine contrary evidence given by Mr. Isireli. So the details of the hearsay activities of Mr Linw, was not corroborated by him when he gave evidence and should be rejected. So the fact remained that the nylon rope which was used got 'cut 'during the operation and in a tangent jam, it broke instead of breaking the line.
    
57. Mr. Lino did not give evidence as to reasons of the accident happened other than saying he was distracted by the presence of the Plaintiff. I have dealt with this issue earlier in this judgment and do not wish to repeat the same here, but would suffice to state if a distraction of person entering could cause such a mishap he should have been carful not to let any person to enter the area.
    
58. This type of accident was specifically dealt in the written instructions given to the operators marked P3 and it is stated that if a pulley block got loose during the operation of line transfer, it would become a missile endangering the people in the vicinity and Defendant was negligent in conducting such an activity in the manner they did. I am reluctant to believe that Mr. Lino tied the pulley block, from a special type of rope. But even assuming that he tied the pulley it was clear that in tangent jam the line did not break which was against the instructions in P3. No explanation was given either in D6 or by Mr. Lino for not braking line before the pulley block rope broke.
    
59. Volenti non fit injuria

Halsbury's Laws of England [1](Tort (Vol 97 (2010) 5th Edi). Torts in Specific Contexts- Tort and Employment (i) Employer's Liabilities to Employee/C. Defences/676. Defines the concept as follows

'The defence of volenti non fit injuria is available to an employer as it is to any other defendant sued in tort[2], but for the defence to succeed it must be shown not only that the employee fully understood and appreciated the risk and danger of the work, but also that in carrying it out he acted as a volunteer in the strictest sense. In practice, therefore, the defence rarely succeeds where the employee is going about his usual work[3].

The principle volenti non fit injuria is not generally a defence to a claim for breach of a statutory duty intended to protect the employee[4], but the defence may be applicable where the employer is not personally in breach of the statute[5].'

60. The learned Magistrate in paragraph 51 of his judgment stated as follows
    

'It was apparent that the Plaintiff has the choice and freedom to move out from the danger after the warning of Mr. Ratuvou. But he did not move out of the danger. A person who makes and(sic) agreement, whether expressly or by implication, to run the risk of harm negligently infected (sic) by another cannot recover in respect of damage suffered in consequence. This rule has traditionally been expressed by the maxim volenti non fit injuria. The law states that the defence must be pleaded specifically raises issues whether the Plaintiff agreed to the breach of the duty of care, owed him by the defendant; and the Plaintiff consented to waive his right of action against the defendant in respect of that breach. If the answer to each is in the affirmative then the wrongfulness of the Defendant's conduct is excused and the Plaintiff is precluded from recovering damages.'

61. First I do not consider that the Plaintiff was warned three times, when there were others on the vicinity and close to the Plaintiff talking with him few minutes before the incident where he got injured. If such warning was there, it would have been to all the persons in the vicinity who were in danger if the pulley block got loose and become a dangerous missile. In any event under the circumstances there was no voluntary consent by the Plaintiff for any injury. He had come to the premises in search of work and had in fact found some work. He said he was in the same area of the jetty when he performed causal work for the vessel with Isireli earlier. The line transfer operation was going on for more than two hours and under such circumstances there was no consent by the Plaintiff or any injury from dangerous act of the Defendant, but the actions of the Plaintiff proved contributory negligence. Plaintiff admitted the mainline transfer as a dangerous operation. He had gone near to such operation and remained there. Whether he was warned or not since he was aware of the danger of such operation, and he had not moved away to safe but remained there without a valid reason indicate contributory negligence.
    

Negligence of the Defendant

62. I have dealt this issue in my judgment above but for completion would deal it separately in brief .There were no warning signs on the vicinity of the operation. It was not clear what was the safe distance from which all persons other than the persons involved in the operation should be removed or restricted. In any event there was no such restriction or warning and the people on the jetty were free to move without any notice of hazardous activity conducted close to the jetty. In my judgment Mr. Lino who had done the operation in a dangerous manner is trying to exculpate himself and his evidence needs to be analysed as an interested party The alleged three warnings which were only introduced at the end of the trial was such an effort specially the evidence of Mr. Lino that Plaintiff had asked the Plaintiff to conduct his operation and he could not be injured, without giving the Plaintiff an opportunity of rebuting cannot be accepted. The manner in which the operation was conducted and the type of the rope used to attach the pulley block anchor to the vessel and details of the manner in which it was done, was never cross- examined when Isireli gave evidence relating to these facts.
    
63. Under these circumstances I would be reluctant to believe that the pulley block that broke loose was tied to the vessel by Mr. Lino as this issue was never cross-examined from Mr. Isireli who said that he did it. If he did not do it, as suggested by the Defendant, there was no reason as not to cross-examine him on this issue. The manner in which the pulley block was fastened to the vessel was not proper according to Mr. Isireli. Mr. Lino in his evidence did not try to contradict this evidence as he failed give evidence as to how he tied the pulley block. The evidence contained in unsworn statement contained in D6 regarding said evidence should be rejected in the analysis of evidence on the balance of probability. Since he had failed to describe what caused the pulley block to break free from the vessel and become a dangerous missile, instead of breaking the line as per the instructions in a tangent jam, indicate negligence of the Defendant.
    
64. In my judgment the Defendant was negligent, too. The Plaintiff was not a stranger to wharfs or to places similar to that. He admitted that the fishing main line transfer being a dangerous activity. He said that he had seen transfers of fishing main line within the ship, he ought to know the dangers from that, though he had never witnessed such a transfer from one fishing vessel to another vessel. He had come in search of casual work as he did not find any work with his usual work place as a causal worker. He had found some casual work and also got some fish and was served with rum after completion of the work. There was no evidence that he was drunk or that his ability to understand was affected from drinking of rum, and or his reaction time was affected. Considering all the circumstances I find that Plaintiff's actions had proved a high degree of contributory negligence, but there was no consent of the Plaintiff to injury as held in court below. I consider the contributory negligence is 50%.
    

Claim for damages

65. The Plaintiff had not produced evidence to support special damages it had claimed. So I do not make any award for special damages. The Plaintiff is claiming general damages for the injuries he suffered due to the accident happened on 5.9.2007 The medical report prepared on 13.12.2011 was marked as P1 and states inter alia
    

'Mr. Mitieli Baleinasau is a 47 year old male Fijian client whom I saw in Emergency Department, CWM Hospital on 5th September 2007 at 1615 hrs. he received a left hand injury from snapped steel pulley block at Muaiwalu Wharf. Upon examination, there was a 2cm X1 cm cut between 1st /2nd left finger web which is reduction of left wrist movements and there was obvious deformity of left 3rd finger.'

Apart from the said injury he had a fracture of the styloid process lower left radius and according to the medical report had undergone K-writing of the left 3 metacarpal and proximal phalanx of middle finder.'

According to the said medical report P1 the condition of the Plaintiff was

'1. Partial loss of sensation of 1st, 2nd, 3rd finger in the dorsum aspect – medial nerve involvement.

2. Inability to fully flex the left big thumb. Thus there is weakness of left hand grip(approx. power Grade 3) involvement of medial and ulna nerve.'

66. The said medical report was prepared by Dr. Josese Vuki and he gave evidence at the trial and admitted the preparation of the medical report marked P1. According to him the disability was 12%. It is not clear what guide lines he had followed and whether 12% was limited to the left hand or as a whole person. He said he had followed a Fijian guide for assessment, but such a guide was never produced.
    
67. He had not followed the AMA guide lines which are generally accepted impairment assessment as a whole person in US, Australia and also accepted a widely used method in Fiji. He had indicated that he had followed some Fiji guide lines but details were not given. So the 12% disability presumably was confined to the left hand only. The Defendant in cross-examination referred to another assessment where the disability was assessed at 9%, but again no such medical report was produced. Even assuming the lesser figure there is a disability of 9% and he could not engage in hard work. The disability was restricted to left hand only. The learned Magistrate had observed that Plaintiff could work equally with the right had though he said that he was left handed. There was no evidence other than his evidence to suggest he was left handed. From the observation of the learned Magistrate, the Plaintiff may be right handed or ambidextrous and in either situation the result would be the same, as disability in left hand was not significant. The evidence support that he could not engage in hard labour activities because of the permanent disability. Considering the nature of the injury he suffered a general damage for pain and suffering is assessed at $7,000.
    

Loss of future earnings

68. The type of work that Plaintiff used to do according to D4 was
    

'Mitieli allocation of in the operating area unpacking loading and delivery at the wharf. Mitieli rate 30 per day base if any job available.'

So it can be accepted that after this injury he was unable to do the work he used to do in wharf where he was paid at a rate of $30 per day depending on the availability of the work. There was no evidence produced to as how much he earned as causal worker with the employer at the time of the injury. It is not safe to accept the oral evidence relating to income considering the strong likelihood of exaggerations. Though he could not work with the same efficiency he could still be gainfully employed with 9% disability in the left hand, as he could equally do things from right hand.

69. In the absence of any documentary proof as to average days he worked with the employer as a casual worker I assume that he worked for minimum of 15 days as casual worker at the time of the injury. He was not fully disabled and disability was 9% of the left hand and he could without difficulty work with his right hand as observed by the learned Magistrate. So the loss of earning for a month from the employer would be 15X10 = 150 and total future earnings will be 4X(150X12)=7200 considering loss of future earnings to four years considering the age of the Plaintiff. The Plaintiff has failed to provide evidence to the court below in order to make a more detailed assessment. It was the duty of the Plaintiff to provide them. It will be difficult to calculate any value for other casual work that he used to do. It was not clear whether he was paid every time he did so as he was given fish and rum to drink when he did casual work before the injury incurred and he was a person who was willingly did work for such rewards other than money. He said he used to sell the fish, but it is hard to arrive at any exact amount. But considering circumstances of the case the future loss from all casual work will be assessed at $10,000 considering all other types of casual work he would engage. The contributory negligence was assessed at 50% so the future damages will be $5,000. Considering the contributory negligence the general damages for pain and suffering will be $3,500 and this will accrue an interest of 6% from the date of issuance of writ to date of this judgment (ie. 15.5.2014). The Plaintiff is awarded a cost of $5,000 as cost for the action in court below and this appeal, assessed summarily.
    

FINAL ORDERS

1. The appeal is allowed. The judgment of learned Magistrate dated 10th December 2012 is set aside.
   
2. The Plaintiff is awarded $3,500 as general damages and an interest of 6% from the date of action to date of this judgment and $5,000 as damages for future loss of earnings.
   

100. The Plaintiff is also awarded a cost of $5,000 as cost of this appeal as well as cost of the action in court below assessed summarily.
     

Dated at Suva this 15th day of May, 2014.

Justice Deepthi Amaratunga
High Court, Suva

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^[1] LexisNexis Data Base, (7.5.2014)

^[2] As to the defence of volenti non fit injuria see PARA 465; and NEGLIGENCE.

^[3] See Bowater v Rowley Regis Corpn [1944] KB 476, [1944] 1 All ER 465, CA, where the defence was held inapplicable in a case where a carter under protest drove a horse known to be unsafe which injured him. See also Clarke v Holmes [1862] EngR 424; (1862) 7 H & N 937; Yarmouth v France [1887] UKLawRpKQB 169; (1887) 19 QBD 647, DC; Smith v Baker & Sons [1891] AC 325, HL (where Lord Herschell, at 366, criticised the Court of Appeal's application of the defence in Thomas v Quartermaine [1887] UKLawRpKQB 47; (1887) 18 QBD 685, CA); Monaghan v WH Rhodes & Son [1920] 1 KB 487; Baker v James [1921] 2 KB 674; D'Urso v Sanson [1939] 4 All ER 26; Hyett v Great Western Rly Co [1948] 1 KB 345, [1947] 2 All ER 264; Merrington v Ironbridge Metal Works Ltd [1952] 2 All ER 1101, 117 JP 23; Weir v Andrew Barclay & Co Ltd 1955 SLT (Notes) 56, Ct of Sess; General Cleaning Contractors Ltd v Christmas [1953] AC 180, [1952] 2 All ER 1110, HL (a workman is not expected to initiate safety measures, and his continued work in an established dangerous system does not afford the employer a defence). The defence was applicable in Taylor v Sims [1942] 2 All ER 375; Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2; [1965] AC 656, [1964] 2 All ER 999, HL; O'Reilly v National Rail and Tramway Appliances Ltd [1966] 1 All ER 499 (obiter).

^[4] Baddeley v Earl Granville [1887] UKLawRpKQB 143; (1887) 19 QBD 423, DC; Davies v Thomas Owen & Co [1919] 2 KB 39; Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669, CA; Alford v National Coal Board [1952] 1 All ER 754 at 757, HL, per Lord Normand. See also PARA 513.

^[5] See Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2; [1965] AC 656, [1964] 2 All ER 999, HL (employees in breach of statutory duty laid on them personally being volens could not hold employers liable for fellow workers' breaches). See also Hugh v National Coal Board 1972 SC 252, Ct of Sess.