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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
HBC No. 272 of 2011
BETWEEN:
SAMANTHA JULIA WISE
of Lot 14 Tavola Street, Kinoya, Sales Assistant as the widow and Administratrix of the Estate of her late husband Donald Philip
Wise, Sprinkler Fitter, Deceased.
PLAINTIFF
AND:
TYCO FIJI LIMITED t/a Wormald
a limited liability company having its registered office at Lot 19 Wailada Estate, Lami.
1ST DEFENDANT
AND:
CARPENTERS FIJI LIMITED
a limited liability company having its registered office at Suva trading as MORRIS HEDSTROM.
2ND DEFENDANT
Counsel : Mr. Daniel Singh for the Plaintiff
Mr. A. Narayan for the 1st Defendant
Mr. P. Knight for the 2nd Defendant
Hearing : 26th and 27th January, 2015
Date of Judgment : 20 March 2015
JUDGMENT
INTRODUCTION
1. The Plaintiff is the widow of the deceased, had instituted this action against the defendants for damages due to a fatal electrocution of her husband while being engaged in his work as a sprinkler fitter with the 1st Defendant. The 2nd Defendant was the owner of the premises where the 2nd Defendant was working when he got electrocuted. The 1st and 2nd Defendants allege contributory negligence of the deceased. The ladder on which the deceased was working had got contacted with live wire on the ground which supplied temporary electricity to the persons who were in the room, including the deceased. The contact with the live wire happened as the one of the legs of the ladder was placed over a part of live wire. Since the insulated covering of the leg of the ladder was damaged the aluminum part of the ladder was exposed and it had pierced through the covering of the live wire, and the electrical current passed on to the aluminum ladder. There were four persons working in the room, including electricians employed by Top Energy, engaged in the electrical installation in the room, and none of them knew how to disconnect the temporary electricity supply and it was not protected by Residual Current Device (RCD)[1] which automatically disconnects the current in case of a drop of current (eg. Electrocution, leakage, heating etc. that create imbalance of incoming current and outgoing current from the power point). Even after fatal electrocution the current supply was neither disconnected automatically through circuit breakers of the premises where the power was obtained (circuit breakers of the MHCC building ), nor was it possible to be disconnected manually by the persons who were working in the site, including electricians who were working on the site. The Defendants failed to provide any evidence as to why the disconnection of the temporary power supply was impossible even after a fatal electrocution. There was no evidence of how it was disconnected ultimately. There was no evidence as to the safety or protective mechanisms relating to the temporary power supply to the workers including the deceased. Work sites are places that are incomplete hence untidy by nature and prone for accidents and adequate protective mechanism are needed when dealing with such things in such locations. Highly dangerous thing such as electricity was allowed to be used by the workers without adequate protective mechanisms in an emergency and or in an accident. The life of a 35 year old could have been saved if the 1st Defendant adequately ensured the safety of their employees by ensuring the power supply provided to its sprinkler fitters for drilling etc. was safe. The 2nd Defendant who provided the temporary power supply should have ensured that it was adequately protected by a RCD. Placing a leg of aluminum ladder on live TPS wire was a negligent act but there is no direct evidence as to who placed the ladder on the wire and when considering circumstantial evidence, there is no proof of this fact on balance of probability. There were two people working with the same ladder and the burden of proof of this fact is with the Defence who pleaded contributory negligence. The deceased had climbed the ladder soon after his foreman Mr. Luke ascended and there is no evidence of deceased changing the position of the ladder after the foreman got down. It is unsafe to rely on Mr. Luke's statement on this point as there is every likelihood of concealing and misrepresentation as to who place the ladder accidently on part of live wire as he was the other person who could have moved the ladder . Mr. Luke was not called as a witness by the defence and tried to rely on his statement made to Mr. Richard Streat.
FACTS
2. The following facts are admitted between the parties
3. At the hearing further facts were admitted by the parties. Even the 1st and 2nd Defendants through their solicitors had agreed on the apportionment of liability at the hearing. Accordingly, if the court finds the Defendants are liable then the apportionment of the liability is 62% to 1st Defendant and 38% to the 2nd Defendant.
4. For the Plaintiff, the widow of the deceased, an electrician who was engaged in electrical installation of the room where the fatal electrocution happened, and a person from Fiji Electric Authority (FEA) gave evidence. For the 1st Defendant only the then Project Manager Mr. Fenton Barrack gave evidence. No evidence was called for 2nd Defendant.
5. There is no dispute that the deceased was employed by the 1st Defendant and he was electrocuted while being employed with the 1st Defendant and there is no dispute that deceased was electrocuted while fitting a sprinkler pipe on the ceiling.
6. The Deceased was on a ladder when he got electrocuted and one leg of the ladder was on electrical wire which was pierced by the said exposed leg of the ladder and electricity had passed through the aluminum frame of the ladder to the body of the deceased and when he touched steel sprinkler pipes on the ceiling he was electrocuted, but the exact manner how he got electrocuted was not presented as no one has seen electrocution but had noticed it shortly afterwards when late Donald was in a strange posture on the ladder . Initially they had thought that late Donald was acting or behaving strangely to amuse the workers, but soon realized that he was electrocuted.
ANALYSIS
7. There is no dispute between the parties as to the cause of electrocution of the deceased. There is no dispute as to the apportionment of the liability, too. So the first issue is whether the Defendants are liable for the electrocution of the deceased. The Defendants pleaded contributory negligence. If contributory negligence is established then there is an issue of percentage of contributory negligence by the Deceased. The burden of proof of negligence is with the Plaintiff and once this is established, the burden of proof of contributory negligence lies with the Defendants.
8. The only eye witness who was called to give evidence in this trial was Mr. Sumit Kapoor. He said he was working with the deceased when the incident happened and was employed by Top Energy. There were four people working in a 'L' shaped room in 3rd floor of MHCC building, where accident happened. Two were engaged in electrical installation while the late Donald and Mr. Luke were engaged with work relating fire sprinklers on the premises. The place they were working did not have access to sunlight and the lighting was provided by two fluorescent lights which were placed on the floor. The temporary power source for the lighting, drilling etc l was supplied by the 2nd Defendant through a long TPS wire which was untidily placed on the floor and it is not clear from where the current supply was obtained. The temporary power supply was commonly used by sprinkler fitters and Mr. Sumit Kapoor for their work.
9. In the written submissions of the 1st Defendant stated that the electricity was obtained from the neighbouring unit. This is not supported by evidence of any of the witnesses and this was a vital fact that the Defendants failed to provide evidence. The point on which the electricity was obtained is vital and this was not revealed in the report of the 2nd Defendant.
10. The point on which the temporary connection to the workers in the 'L' shaped room is vital as to ascertain whether it was obtained from a power point, that was protected by a circuit breaker. If the power was obtained from a neighbouring unit (this fact is not supported by evidence, but only suggested in written submissions of the 1st Defendant) why it could not be disconnected quickly, even after electrocution by the electricians who were working at the site, is worth consideration. By the same token if the power source was connected to already existed power point then, it must be protected by the circuit breakers and this would have triggered when there was a leakage of current to the ladder, before electrocution of the deceased.
11. The report of the 2nd Defendant relating to the electrocution lacked evidence on this vital point. So, the contention that the temporary power supply was obtained from 'neighbouring unit at the premises' which was not supported by the evidence at the trial, is rejected in my analysis due to lack of evidence.
12. Irrespective of from where the power was obtained the temporary power supply should have been protected by RCD which is more sensitive and also purpose built for prevention of the electrocution from a temporary power supply.
13. It is also noteworthy that the report prepared by the 2nd Defendant after the incident had avoided this vital information. This report is annexed to the FEA report marked 'P2'. Neither the author of the report prepared by 2nd Defendant, nor any of the persons who had given statements was called by the Defendants. The most important person, the electrician of the 2nd Defendant, who would have knowledge of the protective mechanisms of the temporary power source was not called to give evidence and even his statement contained in the said report was not helpful as to the ascertain as to why the power source could not be disconnected even after fatal electrocution. The person who supplied temporary power line (TPS with power points) was not revealed
14. FEA report relied on the report supplied by the 2nd Defendant to them and they considered the said report of the 2nd Defendant as an 'independent' and accurate report. I cannot agree more on that. The person who made FEA report gave evidence and he considered that report to be accurate without giving any reason for such a belief. This not very satisfactory, to say the least. It should also borne in mind the 2nd Defendant had failed to report the incident to the FEA and culpability of 2nd Defendant was the issue that FEA needed to investigate independently.
15. In terms of Section 57 of Electricity Act (Cap 180) whenever any accident had caused serious hurt or death that should be reported immediately to electrical inspector appointed under Section 11 A of the Electricity Act (Cap 180). There is an obligation on the FEA to visit such an accident site immediately and make a report to the Magistrate (See Section 57 (2) of Electricity Act). It is pertinent to note that no alteration to the accident site should be done without the consent of the Electrical Inspector till his investigations is over and any breach of this provision is an offence punishable in a criminal court. It is strange that FEA had taken the non reporting of the fatal electrocution lightly and totally relied on the report provided in the said report prepared by the 2nd Defendant. The FEA is legally obliged to conduct an independent investigation as to the cause of electrocution in order to ascertain the culpability of the consumer (2nd Defendant) relating to the death or serious hurt due to electrocution.
16. In terms of the Section 57(3) of the Electricity Act (Cap 180) a preliminary investigation under the Section 57(1) of the Electricity Act is to ascertain the culpability of the customer and in this instance the 2nd Defendant. The subsection 57(3) states;
'(3) If, upon a preliminary investigation under the provisions of subsection(1), it appears to the officer making such investigation that there is reason to believe that the accident was due to any failure to comply with the provisions of this Act or of the regulations made thereunder or to neglect of any lawful order given by an inspector, or if the officer making such investigation is satisfied that the accident might have been prevented if proper precaution had been taken and observed in the working of any installation or electrical plant or apparatus, the Chief Inspector shall further investigate the circumstances of the accident together with the inspector and shall report the matter to the Authority and give his opinion thereon. If the Chief Inspector or the Authority (FEA) is of the opinion criminal proceedings will lie against any person, he shall then forward to the Director of Public Prosecutions a copy of the inspector's report together with his opinion on the circumstances and findings.'
17. In terms of Subsection 57(5) it is an offence to contravene subsection s 57(1) and 57(2) of the Electricity Act (Cap 180), without a lawful excuse. In such a scenario it is not advisable to rely on a report supplied by the 2nd Defendant as they would invariably try to exonerate their culpability in such a report prepared by them. When FEA was alerted of the accident by the Magistrate, site was altered as it was more than a month after the electrocution.
18. That is the very reason the preparation of a report of serious accident of electrocution is vested with Electrical Inspector of FEA and his independent opinion is submitted to the Director of Public Prosecutions for criminal prosecution, but unfortunately in this instance there was no independent report prepared by FEA and their report entirely depended on the report submitted by the 2nd Defendant. It is noteworthy that the report which FEA relied did not contain the qualification of the person who prepared the report.
19. It seemed that report of the 2nd Defendant was prepared by Security Division. The Electricity Act is very specific as to who should conduct the investigation and prepare the report and professional opinion about the electrocution resulting death or serious hurt. So by any stretch of imagination the report prepared by the 2nd Defendant cannot be considered as independent and also not a report that can be relied for the purpose of Section 57 of the Electricity Act by FEA.
20. There are glaring deficiencies in the report prepared by 2nd Defendant. First, the report had not addressed the main issue as to the culpability of the 2nd Defendant and or compliance of the provisions contained in the Electricity Act (Cap 180), regulations made under it and or any directions or instructions given by electrical inspector of FEA. It seemed the focus on that report of the 2nd Defendant, was relating to the security breaches if any relating to the items brought to the site including the damaged ladder that was used by the deceased.
21. The report had not addressed the supply of electricity to the 'L' shaped room where the accident happened. This is the main reason for fatal electrocution to the sprinkler fitter late Donald Wise. If the circuit breakers were properly functioning and the temporary power supply was obtained from a power point protected by a circuit breaker, any leakage of current would have disconnected the power supply to temporary power line (TPS wire). If that happened, the current supply to the temporary connection should have got disconnected and there would not be a fatal electrocution. Unfortunately not only that the power supply did not get disconnected even after a fatal electrocution, the persons who were in the room could not disconnect the power supply in order to remove the victim without endangering their lives. This is a serious issue and this vital aspect had not been addressed in the report prepared by the 2nd Defendant and or through the evidence of the only witness called for the defence Mr. Fenton Barrack.
22. The accident happened in a 'L' shape room and both sides of the room were already occupied by the tenants. So there was ample opportunity for the 2nd Defendant to provide electricity from a power point or power line that was protected by a circuit breaker as the adjoining premises were already occupied by tenants in the said floor of the building. If the electricity was obtained from an adjoining shop it could not have been difficult to disconnect and if so supply would have got disconnected before electrocution as all the power points of the adjoining premises should have been adequately protected by circuit breakers for any possible current leakages including electrocution to a person.
23. Apart from the power point or the circuit being protected by a circuit breaker, the temporary power supply did not contain RCD[2] which was highlighted in the report prepared by FEA. This is another vital factor that is missing in the report prepared by the 2nd Defendant. If the temporary power supply was protected by an RCD[3] the life of the deceased would have been saved. By not providing an adequately secured power supply to the workers, including the deceased, the 1st and 2nd Defendants were jointly and severally, negligent for the death of late Donald Wise.
24. First Defendant is negligent as the foreman Mr. Luke had not considered the safety of the power supply before commencement of the work. This is a serious lapse on the part of the 1st Defendant as to the safety of their employees. The 2nd Defendant was also negligent in providing a temporary electricity to workers which was not obtained from a power point or circuit protected by circuit breaker and more specifically the temporary power supply did not contain RCD. Not only the power supply to the TPS could not be disconnected automatically, but also it could not be disconnected even manually in an emergency, indicating a high level of negligence by the Defendants relating to the temporary power supply.
25. The 1st Defendant called Mr. Fenton Barrack, who is the GM and Director of Evergreen International Fiji. Evergreen is the successor to the 1st Defendant. He was told of the demise of late Donald by his driver who had arrived at airport to provide transport to himself, as he was abroad when this happened. Mr. Fenton was neither at the site at the material time nor had he made even a statement to the report prepared by the 2nd Defendant. He said Mr. Luke who was the foreman at the site, is currently employed by Tyco in Australia in Queensland. According to him Tyco was taken over by Evergreen. So there cannot be difficulty in locating Mr. Luke or obtaining his evidence at this trial. There is no evidence that he cannot be located as suggested in the written submissions of the 1st Defendant (at paragraph 4.2).
26. Mr. Fenton also said Mr. Richard Streat who conducted the investigation and recorded statements including Mr. Luke, is also working for Tyco Australia. There is no evidence that he cannot be located or cannot be communicated. Though both of them are in Australia they still work for the same company Tyco, which is presently owned by Evergreen and Mr. Fenton is GM of its entity in Fiji (Evergreen International Fiji). The 1st Defendant tried to rely on a statement made by Mr. Luke to Mr. Richard Streat at this trial without calling any of them as witness.
27. Section 6 of the Civil Evidence Act 2002 states as follows
'6. In estimating any weight to be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.
(emphasis added)
28. The electrocution happened in September 2010 and the trial commenced after 4 years from the incident and there is no evidence, that any of the vital witnesses to the electrocution, including the foreman Mr. Luke and Mr. Richard Streat, the Project Manager at that time and the electrician of the 2nd Defendant etc who had provided statements in the report prepared by 2nd Defendant cannot be called as witnesses. The statement of Mr. Luke to Mr. Richard Streat is marked P3 and his statement from a phone interview was provided in the report of the 2nd Defendant (this is an annexed to the report of FEA). The 1st Defendant tried to rely on the statement of Mr. Luke to Mr. Richard in this trial.
29. Mr. Luke being the foreman was responsible for the safety of the deceased and he could have alerted late Donald of the danger of having a live wire underneath the leg of ladder if he was vigilant as a foreman. He had returned to work after lunch while late Donald was working without any supervision by a foreman and why he allowed unsupervised work was not explained in his statement. There was no difficulty in locating Mr. Luke as a witness as he is presently working for Tyco Australia and his evidence could have been obtained even from abroad as done often in this court. Mr. Luke had a good motive to conceal the truth as he was primarily responsible for the safety of late Donald at the site. He had failed to see the eminent danger of having a live wire underneath a leg of a ladder. Since he was on the ground and had come to the site after refreshing himself during the lunch, he could have alerted this danger. Mr. Luke did not ensure proper safety of the workers by examining the protective mechanisms of the power source. In a work site accidents do happen and proper safety mechanisms should be in place before the commencement of the work and such safety mechanisms should be ensured at all times. As a foreman more responsibility of the safety requirements and or supervision was with him.
30. Mr. Luke had failed to identify the inherent danger in the power supply not protected by RCD. He had also failed to ascertain how to disconnect the temporary power supply in an emergency. There is no evidence as to who placed the ladder on top of a live wire, except Mr. Luke who said that ladder was moved by late Donald in his absence. But the deceased was able to do work in his absence including draining of water from sprinkler pipes and there was no electrocution to him at that time.
31. Immediately prior to the electrocution Mr. Luke had ascended on to the ladder and he had got down and let the deceased continue with the work. So there is a possibility that the ladder being moved even slightly by Mr. Luke too. Obviously such fact will only known to late Donald and Mr. Luke and after death of late Donald there was every reason to conceal the negligent and or rash deeds of Mr. Luke in his statement.
32. There was only a small part of the live wire underneath one leg of the ladder and unfortunately that leg of the ladder was exposed as the plastic or rubber part at bottom that provide additional grip to ladder had worn off or damaged and this had exposed the aluminum part of the leg presumably a sharp edge that could cut through the insulation of the live TPS wire.
33. There is a motive to conceal or misinterpret the matters by Mr. Luke. So the evidential weight of the statement of Luke is low, specially relating to the vital issue of who placed the ladder on the live wire. It is also strange why he was silent as to his failure to spot that danger soon after returning to work after lunch. Mr. Luke had realized that work was done in his absence and according to him even the ladder was moved in his absence, so as a foreman he could have supervised the work that were done in his absence to see whether there posed any threat to safety. He was in a better position to see the imminent danger if he was vigilant, as he was free from boredom and work related stress at that time compared to late Donald.
34. In my judgment if Mr. Luke was called as a witness much light would have shed on vital issues and specially the culpability of the 1st Defendant in this fatal accident, and that may be a reason for not calling him as a witness to be cross examined by a counsel. Even the Plaintiff in her evidence said that though Mr. Luke was a family friend prior to this incident but he had refrained from even talking to her after the incident and 'everything changed'. The subsequent conduct of Mr. Luke and the material before this court would indicate 'the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight'. So I would not attach much weight on Mr Luke's statement specially on to who place the ladder on the live wire.
35. Much emphasis was drawn to the use of ladder when one of its legs had a worn off insulation part. Mr. Fenton said it was the responsibility of the person who was using it. This responsibility cannot be solely passed on to late Donald. At least on the site there were two workers and the foreman was Mr. Luke. So if there was a responsibility on Donald to report, there was more responsibility on foreman, Mr. Luke and the 1st Defendant would be vicariously liable for its employees including any negligence on the part of Mr. Luke.
36. There was no evidence produced that this ladder was examined by the 1st Defendant at any time after purchase. The age of the ladder does not necessarily indicate the condition of that as these things are used by different people in different locations and condition of an item deteriorate due to usage, than the age.
37. The part of wire that was on the TPS wire would not been clearly visible, too. The only eye witness who was called as witness said that the lighting conditions of the room. He said there was no sunlight and the only source of light was two tube lights placed on the ground. So, any object on the ground would have obstructed visibility unlike a light placed at some higher point. Neither the foreman Mr. Luke nor the others who came for assistance, initially saw the danger in the first place and they noticed it only after they were also electrocuted. So this danger was not clearly visible and could have been overlooked by late Donald who was more dedicated to work and desired to complete his task, despite not feeling well that day.
38. In the written submission filed by the 1st Defendant there is a suggestion that the last person to move the ladder was late Donald. There is no evidence of that and only Mr. Luke's statement states that and I do not attach much evidential weight on such a fact solely on Mr. Luke's statement on the analysis. He is an interested party, who had the control over Mr. Donald and who ought to be responsible for his safety. He had not even examined the safety of the temporary power supply or at least how it can be disconnected manually in an emergency. It is unlikely that he will admit placing the ladder on the wire if he did so accidently. Even in Mr. Luke's statement, he ascended on the ladder and desired to continue the work and asked late Donald to pass the pipe, instead of passing the pipe from floor, Donald had climbed the ladder and Mr. Luke had descended from the ladder and had moved in search of a ceiling grid. The electrocution was shortly after this. The written submissions of the 1st Defendant suggest that ladder was moved while Mr. Luke was searching for ceiling grid. This is again is not supported by evidence produced at the trial.
39. In the 1st Defendant's written submissions suggest that the deceased got wet while draining the sprinkler pipe alone. If so there should be water on the floor, too. There is no evidence of water on the floor. The eye witness Mr. Sumit Kapoor said that late Donald's dress was wet on certain places and he was not sure whether it was sweat or water.
40. The cases submitted by the 1st Defendant for the measure of contributory negligence are not comparable with the situation before me. The 1st Defendant as an employer ought to have provided adequately safe environment for the deceased to work. 2nd Defendant also owed a duty to supply a power source adequately protected. The experience of late Donald in his work as sprinkler fitter cannot absolve Defendants from their primary responsibility of providing an adequately safe environment for work. To allow power supply without adequate safety mechanism is inherently hazardous thing.
41. Irrespective of who places the ladder on a live wire climbing such a ladder and working can be considered as a contributory negligence of late Donald, but in such a situation the responsibility of the deceased is low. When considering all the facts and circumstances and late Donald's dedication to work even when he was not feeling well indicates his dedication to work. The contributory negligence on his part is very low. First even his foreman who was in a better mental and physical condition failed to see that the live wire was under a leg of ladder. This was an avoidable accident and major contributor to the negligence was with 1st and 2nd Defendants for allowing the workers in an inherently dangerous power supply without proper safety features like RCD. So it was an accident that was waiting to happen unfortunately it was late Donald who had to pay from his life. Considering all these factors it is hard to ascertain a high percentage of contributory negligence to the deceased and being dedicated and hardworking cannot be considered as a contributory negligence, and if at all the contributory negligence in the said accident is minimal and for that I allow 5% contributory negligence on the part of the deceased.
Assessment of Damages
Special Damages
42. The following special damages were contained in the schedule of special damages
| a. | Funeral expenses | 3,000 |
| b. | Transport Expense | 1,000 |
| c. | Cost of obtaining probate | 500 |
| d. | Cost of obtaining FEA investigation report | 25 |
43. Jona Moli -v- Dr Frances Bingwor & Others [4] Suva High Court Civil Action No. HBC 335/1998, Mr. Justice Pathik awarded $2,200 for funeral expenses in lieu of the full $3,500 claimed:-
"We are all familiar with the customs of the various races in Fiji and in the context of funeral there are certain expectations and obligations which have to be fulfilled. It is only right that reasonable expenses ought to be allowed without requiring the plaintiff to produce receipts and proof of each items of expenditure as is required for the purposes of proving special damages."
44. There was no document proof of such special expenses. It is hard to provide receipts of funeral expenses. The Plaintiff said that there were three funeral 'seatings' considering the convenience of the friends and relatives who wished to attend late Donald's funeral. According to the evidence late Donald was a person who had lot of friends and they used to come to his house regularly. She said that she had withdrawn her FNPF for the funeral expense though no evidence of that was substantiated by documentary evidence. The Plaintiffs evidence is reliable and can be accepted as truth. Considering the circumstances of this case I will award $2,500 as funeral expense even though there was no documentary poof of that. There was no evidence to contradict what the Plaintiff said relating to funeral expenses.
45. Though no receipt was produced obtaining the probate and FEA report would have cost the amounts stated in the schedule. And for the transportation expenses another $300 can be awarded considering the special circumstances as there were three places where people gathered for the funeral of late Donald and there ought to be transport cost in such a situation.
46. The total special damage is ($2,500+300+ 500+25) FJ$ 3,325.00. For this 3% interest is added from the date of incident to date of trial. (i.e 4 years and 140 days)
General Damages
47. In Hicks v Chief Constable South Yorkshire Police [5][1991] UKHL 9; [1992] 2 All ER 65[3], the House of Lords said as follows:
In this case the deceased died the same day, hence no claim for pain and suffering arises as no damage is given for pain and suffering when unconsciousness and death followed the injury within a very short time (Hicks v Chief Constable South Yorkshire Police [1991] UKHL 9; [1992] 2 All ER 65).
48. Considering the circumstances of the case there is no evidence of pain and suffering and I decline any award for pain and suffering.
49. For the loss of expectation of life a sum of 2500 is awarded
Lost Years
50. The parties had admitted in the pre trial conference that the weekly gross salary of the deceased was $193.20. The evidence is that the deceased did overtime hence the weekly salary was around $300. The evidence of the Plaintiff can be accepted as correct considering the special nature of the work the deceased was engaged and the nature of the work that involves. Such work invariably requires overtime as sprinkler fitting will be contingent on other works on a site. In any event the over time earning was not cross-examined by the 1st Defendant and not challenged.
This is a fact that could have easily proved by the salary records of the deceased which the 1st Defendant should have records. Even in the cross examination this was not challenged. Considering the nature of the job deceased was engaged it is safe to assume that there were overtime and the amount of overtime can be more than $100 per week. Since there was no evidence to contrary I will consider the weekly income @ FJ$300. For this FNPF contribution needs to be added 8%. The weekly income would be $ 324 and from that I deduct $75 as his expense and the rest is utilized for the family.
The Plaintiff said that the entire earnings of the deceased was utilized for family expenses. This fact was corroborated by the Plaintiff's evidence that there was no noteworthy account balance in his bank account which received the salary. The Plaintiff also said deceased was a smoker and used to smoke a packet of 10 cigarettes per day. It is hard to factor an amount for the Plaintiff but considering the facts presented to court $75 would be reasonable.
So the net loss of weekly income to the estate of the deceased would be $249 ($324-$75). The annual loss of income is $249 x 52= 12,948.
51. The deceased was 36 years old and he was healthy person who even was planning to migrate for greener pastures. His foreman and project manager had already migrated to Australia. Considering the contingencies of life the multiplier of 14 would be appropriate. When considering multiplier the contingency factor is considered and further reduction for contingencies does not arise as stated in the written submission of the 1st Defendant. So the loss of future earnings would be 12,948 x 14=181,272. Since there is 5% contributory negligence this has to be deducted.
52. Interest on special damages would be 3% from the date of incident to the date of trial.
CONCLUSION
53. The main reason for the electrocution of late Donald was the failure to provide safe environment for the workers. The temporary power supply was not protected by RCD which was a very cheap devise but a life saving one in an electrocution. This could have been easily done by the 1st and or 2nd Defendants. Even after electrocution the temporary power could not be immediately disconnected manually in order to remove the victim safely. Whether the death was instantaneous or not cannot be arrived with the evidence, but it is certain that this life could have been saved if the temporary power supply was protected by RCD. This is the main reason for the fatal electrocution.If there was a RCD, as soon as the live wire was damaged and current passed though it to an object outside would create a loss of current (eg current passing through the ladder) and the supply of power must disconnect automatically. In the circumstances the main reason for fatal electrocution is negligence of the 1st and 2nd Defendants. The person who provided such a hazardous temporary power supply was not revealed. I do not have to consider the apportionment of the damages as the Defendants have come to an agreement as to that and 62% of that should be apportioned to the 1st Defendant and 38% to the 2nd Defendant. The contributory negligence of the deceased was 5%. The cost of this action is summarily assessed at $4500 to be paid by the Defendants.
Calculation (approx to FJD)
| Special Damage - | 3,325 |
| Interest at 3% for 4 years and 140 days- | 437 |
| Lost years - Damage- | 181,272 |
| Loss of expectation of life- | 2,500 |
| Total Damages - | 187,534 |
Less 5% for Contributory Negligence
| Total Damages- | 178,157 |
Apportionment as agreed
| 62% for 1st Defendant - | 110457 |
| 38% for 2nd Defendant- | 67700 |
FINAL ORDERS
d. The cost of this action is summarily assessed at $4,500.
Dated at Suva this 20th day of March, 2015.
.....................................
Justice Deepthi Amaratunga
High Court, Suva
[1] Residual Currant Circuit Breaker is another name for RCD
[2] An RCD, or residual current device, is a life-saving device which is designed to prevent you from getting a fatal electric shock
if you touch something live, such as a bare wire. It can also provide some protection against electrical fires. RCDs offer a level
of personal protection that ordinary fuses and circuit-breakers cannot provide
http://www.electricalsafetyfirst.org.uk/guides-and-advice/electrical-items/rcds-explained/
[3] An RCD is a sensitive safety device that switches off electricity automatically if there is a fault.
An RCD is designed to protect against the risks of electrocution and fire caused by earth faults. For example, if you cut through
the cable when mowing the lawn and accidentally touched the exposed live wires or a faulty appliance overheats causing electric current
to flow to earth(ibid)
[4] Cited in Pal v Hussain [2011] FJHC 588; Civil Action 73.2007 (23 September 2011)(unreported decision of Master Tilevuka as his lordship then was)
[5] Cited in Pal v Hussain [2011] FJHC 588; Civil Action 73.2007 (23 September 2011)(unreported decision of Master Tilevuka as his lordship then was)
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URL: http://www.paclii.org/fj/cases/FJHC/2015/206.html