Tiko v Sai Yee Foods Industries Ltd [2015] FJHC 756; HBC103.2012 (12 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 103 of 2012

BETWEEN:

MERINI TIKO
Plaintiff

AND:

SAI YEE FOODS INDUSTRIES LIMITED
Defendant

BEFORE : The Hon. Mr Justice David Alfred

Counsel : Mr D Singh for the Plaintiff
Ms B Malimali for the Defendant

Dates of Hearing : 27 August, 28 August and 1 September 2015
Date of Judgment : 12 October 2015

JUDGMENT

1. This action came up for hearing before me on 27 August 2015. According to the Statement of Claim, the Plaintiff, while in the course of her employment with the Defendant, in its factory at Lami, suffered an injury to her left eye, as a result of an alleged accident.
   
2. It further averred that the accident was caused by the Defendant's breach of statutory duty and/or negligence on the part of the Defendant and/or their servant or agent.
   
3. Finally, the Statement of Claim contains the particulars of injuries, the Plaintiff's present condition and the schedule of special damages.
   
4. I have perused the Minutes of the Pre-Trial Conference (undated) (Minutes) which state that the agreed matters are, inter-alia the allowing:
   
   • (i) At all material times, the Plaintiff was employed by the Defendant as a labourer at their factory at Lami.
     
   • (ii) On 9 September 2009 the Plaintiff was cutting dalo during the course of her employment with the Defendant when one piece of cut dalo suddenly whipped into her left eye.
     
5. The Minutes also disclose that among the matters in issue are whether the Plaintiff is entitled to general damages for pain, suffering and loss of amenities of life, special damages and costs.
   
6. The hearing commenced with the Plaintiff's first witness Dr. J Narayan (PW1) giving evidence. He said he is a doctor, specializing in Opthamology. He attended to the Plaintiff and the medical report dated 5 November 2009 was written by him. This was tendered and marked as Exhibit P1. However the Plaintiff was examined by another doctor who has since returned to Germany. The report was based on the records. He wrote another report on the Plaintiff which is dated 13 December 2012 which was tendered and marked as Exhibit P2. His supplementary report dated 21 October 2014 was also tendered and marked as Exhibit P3.
   
7. Under cross examination PW1 said the Plaintiff presented herself on 14 September 2009 but the other doctor did not state the time. The injury was 3 days earlier according to the record. She told him (PW1) it happened at work. He only saw her on 16 February 2011. He did not know what chemical had splashed into her eye as it is not in the record. The doctor did not record what was the cause of the swollen eye.
   
8. The Plaintiff (PW2) then gave her evidence. She said the accident was on 9 September 2009 at about 11a.m and the injury was to her left eye. She was cutting dalo into small pieces and putting them into a tub of water mixed with chemicals when dalo with chemicals whipped into her left eye. Her left eye was very painful. The accident was on a Wednesday and she tried her best to work on Thursday and Friday to take her pay to enable her to go to hospital.
   
9. She went to hospital on Saturday morning, when she was told to come on Monday to the eye department. She went there on Monday and an overseas doctor admitted her into the ward. On Tuesday they anaesthetized her and performed an operation on her left eye. They bandaged it and took her back to the ward. She was admitted in hospital for 9 days and her eye was very painful.
   
10. The Plaintiff said she had been working with the Defendant for 2 years before the accident. She earned $20.00 per day. After being discharged from hospital she was looking for jobs and got one as a baby sitter for less than 1 year. After that she returned to her village.
    
11. Under cross-examination, PW2 said she was a casual worker who would be paid if she worked. On 9 September she carried on working, after the accident, till 7 pm. All she did that day was to peel. On Saturday 12 September, the doctor told her to come back on Monday. She could confirm she went to hospital 3 days after the accident and that the hospital records are correct. She had no evidence of her medical and transport expenses. On 9 September 2009, she was mixing chemicals and got injured in the Defendant's factory. She was not required to cut dalo which was not her job.
    
12. The final witness was Karalaini Sekisolo Rokosuka (PW3). She said she was working with the Plaintiff and both were peeling dalo and cassava.
    
13. Under cross examination PW3 said the Plaintiff was working and peeling. PW3 saw her coming back from the drum and her eye was red. The Plaintiff was not injured when peeling the dalo. She did not see the Plaintiff getting injured.
    
14. With this the Plaintiff closed her case.
    
15. The Defendant's case started with its director and shareholder, Sai Kin Yee (DW1) giving evidence. He described how the work in the factory was carried out. There was a notice posted on the wall that workers were not to touch the chemicals. The notice was tendered and marked as Exhibit D1, when Plaintiff's counsel did not object.
    
16. Under cross-examination, DW1 said the preservative in the chemical was used to preserve the natural colour of the product. If the Plaintiff was only peeling dalo, there would be no danger. The certificate of analysis was tendered and marked as Exhibit D2 with Plaintiff's Counsel's consent.
    
17. The next witness was Luisa Taubale (DW2) who was the supervisor of the Plaintiff on 9 September 2009. The Plaintiff only needed to take out the root and soil and then peel the skin from the dalo using the peeler. The Plaintiff never came to her to report the matter. She never complained to her (DW2) of any injury to her eye. DW2 saw her on 10 September 2009 and her face and eyes were o.k and nothing wrong with it. If the Plaintiff had come to her she could have reported the matter to Elizabeth. It is not part of the Plaintiff's job to cut dalo and not part of her job to mix chemicals. She (DW2) is the only one to scale and mix chemicals. There are notices for the workers not to touch the chemicals. She tendered the contract book as Exhibit D3.
    
18. The next witness was Elizabeth Ofati (DW3), the operation manager of the Defendant. On 9 September 2009, before the Plaintiff left the factory, she gave her, her wages. The Plaintiff did not complain of any injury. On 10 September the Plaintiff came to work, DW3 saw her and saw no injury to her eye, and the Plaintiff did not complain.
    
19. The final witness was Fane Vika (DW4) who said that on 9 September 2009 she was seated next to the Plaintiff. She only cleaned and peeled dalo and the Plaintiff had the same job. She did not see the Plaintiff injured.
    
20. With that the Defendant closed its case.
    
21. The oral submissions started with Counsel for the Defendant submitting that cutting dalo was not part of the Plaintiff's job. The dalo was cut by other people. PW3 said she did not see nor reported any accident to the supervisor and the operation manager. With such an eye injury the Plaintiff still came to work the next day. There was no complaint at all on 9 and 10 September. It was not dangerous work as the chemicals were not dangerous and were only to preserve colour. The Plaintiff had not proven her claim on a balance of probabilities.
    
22. Counsel said that as for the special damages which must be proved, there was no evidence. As for the loss of earnings, the Plaintiff worked as a baby sitter after the accident. Nothing should be given for any loss of earning capacity because she worked until she decided to return to her village. General damages for the eye injury should be $20,000.00. However there was no liability based on the evidence.
    
23. Counsel for the Plaintiff submitted that the parties are bound by their pleadings. He referred to para 3 of the Minutes and said this was an admission of the accident. He also said that there were breaches by the Defendant, of its statutory duty, of the Regulations, of the Workmen's Compensation Act and of the Health and Safety At Work Act.
    
24. Counsel submitted the general damages for pain and suffering should be $50,000.00, loss of earnings should be for 10 years at $56.67 per week and the Court should give something reasonable for the medical and travel expenses which had not been strictly proved. There should also be interest on the damages. Finally Counsel asked for costs of $5,000.00 because the case should have been settled.
    
25. Counsel for the Defendant replied.
    
26. At the conclusion of the hearing, I reserved judgment to a date to be announced.
    
27. In the course of reaching my decision, I have perused the authorities provided by both Counsel. I now deliver my judgment.
    
28. This is a case based on the tort of negligence. The requirements of this tort are four in number and according to Clerk & Lindsell on Torts (19th Edition) they are the following:
    
    • (1) There is a duty of care.
    • (2) There is a breach of the duty of care by the defendant.
    • (3) There is a causal connection between the defendant's careless conduct and the damage.
    • (4) The kind of damage to the particular claimant is not so unforseable as to be too remote.
      
29. When these four requirements are satisfied, the defendant is liable in negligence. Only then is it relevant to consider the assessment of damages i.e the compensation for the damage for which the defendant is responsible.
    
30. With that out of the way, I turn to the evidence that came out at the hearing. For reasons which will be obvious in the course of this judgment, I have reproduced the testimony of the witnesses in extenso. This is because to my mind, there has to have been an accident in the Defendant's factory on the day in question involving the Plaintiff and resulting in an injury to her left eye, before I can consider whether the 4 requirements of negligence have been satisfied.
    
31. To answer this issue I need to consider first of all the pleadings and the Minutes.
    
32. (i) Para 1of the Statement of Claim avers that at all material times the Plaintiff was employed by the Defendant at their factory, at Lami.
    

(ii) It also avers in para 4 that on or about 9 September 2009 in her course of her employment the Plaintiff was cutting dalo when one piece of cut dalo whipped into her left eye causing her injury.

33. Therefore putting the pieces together, I gather that the Plaintiff's case is she was injured on 9 September 2009 at the Defendant's factory, while she was cutting dalo.
    
34. In the Minutes, Para 3 of the agreed matters states that on 9 September 2009 the Plaintiff was cutting dalo into pieces during the course of her employment with the Defendant when a piece of cut dalo whipped into her left eye.
    
35. But the above runs counter to the Statement of Defence where paras 4 and 5 deny paras 4 and 5 of the Statement of Claim. There is here, to my mind, a clear denial of the accident and the injury.
    
36. It is trite that a party is bound by its pleadings. But what is the position if the Minutes contradict a party's pleadings?
    
37. Order 34 rule 2(2) of the Rules of the High Court make it clear that the object of a Pre-Trial conference (PTC) is for the parties to reach agreement on ways to curtail the duration of the trial while rule 2(4) require the solicitors to draw up and sign a minute stating (a) the matters agreed upon and (b) the issues remaining for determination by the Court.
    
38. The fact that the Plaintiff's Counsel felt it necessary for the Plaintiff to give evidence to prove the accident and called another worker (PW3) in aid of her case suggests he did not think the Minutes relieved the Plaintiff of her duty to prove her claim. Thus, the issue of liability has to be determined by the Court.
    
39. In doing this, Plaintiff's Counsel is bolstering the Defendant's case which is there was no accident on 9 September 2009 in the Defendant's factory which resulted in any injury to the Plaintiff's left eye.
    
40. The Defendant's case is fortified by the authority cited by its counsel, the case of: Rapchand Holding Limited... Plaintiff and Native Land Trust Board... Defendant: Lautoka High Court Civil Action No. HBC 438 of 2003L. Inoke J held in para 73 of his judgment that the Court is not bound to accept the issues agreed at the Pre-Trial Conference as the issues for the trial. If the parties and their Counsel are mistaken, the Court is duty bound to correct them so that justice is done according to the respective cases as pleaded in the Statement of Claim, Defence and Reply.
    
41. I follow the reasoning of my brother and hold that based on the pleadings the Plaintiff has to prove on a balance of probabilities that her eye injury was sustained as a result of an accident on 9 September 2009 at the Defendant's factory. This is because the alleged accident is denied by the Defendant. This is the situation based on the respective pleadings of the parties. This is the sole issue for me to decide now.
    
42. To arrive at a correct decision. I will consider the evidence. The Plaintiff's Exhibit P1, the medical report states the Plaintiff first presented herself on 14 September 2009. She was admitted and the required treatment was administered.
    
43. The next medical report, Exhibit P2 states the Plaintiff was first seen in the Eye Clinic in September 2009. She had presented herself with a history of chemical splashed into her eyes especially in the left eye.
    
44. The final medical report, Exhibit P3 states the Plaintiff was admitted on 14 September 2009 with history of chemicals splashing into her eyes and the right eye was more affected. She was discharged on 22 September 2009.
    
45. In my opinion the medical evidence all tend to show a different injury on a different date from that alleged by the Plaintiff in her Statement of Claim.
    
46. In further confirmation of the above is the evidence in the hearing. The Plaintiff said after the dalo whipped into her left eye it was very painful. The accident was on Wednesday, yet she worked on Thursday and Friday and only went to the hospital on Saturday.
    
47. In my view it is most implausible that an accident could have occurred on Wednesday when the injury was so painful. That would have necessitated immediate hospital attention and yet according to her own evidence she first only went to the hospital on Saturday.
    
48. The final confirmation of the non-occurrence of any accident in the Defendant's factory on Wednesday 9 September comes from the witnesses on both sides.
    

The Plaintiff's own witness, PW3 said the Plaintiff was not injured when peeling the dalo. She did not see the Plaintiff getting injured.

49. The supervisor, DW2 said the Plaintiff never came to her to report the matter. On 10 September she saw the Plaintiff and her face and eyes were o.k.
    
50. The operation manager DW3 said on 9 September she gave the Plaintiff her wages and she did not complain of any injury. On 10 September the Plaintiff came to work and she did not complain of any injury and she (DW3) did not see any injury to her eye.
    
51. Having seen and heard the witnesses and the parties in the witness box and observed their demeanour, I am satisfied that the Plaintiff has not proved on a balance of probabilities that she was injured in an accident on 9 September 2009 in the Defendant's factory.
    
52. I therefore dismiss her claim with costs which I summarily assess at $1,500.00 to be paid by the Plaintiff to the Defendant.
    
53. For the sake of completeness. I will assess the damages as if the Defendant were wholly liable.
    
    • (1) For general damages I would have awarded $35,000.
    • (2) For all the special damages, applying the de minimis rule, I would have awarded $200.00
    • (3) I would have not awarded anything for loss of earnings nor for loss of earning capacity.
    • (4) Interest would have been at the appropriate rates (on simple interest) on the general and special damages commencing on the applicable dates.
      
54. Before I conclude, I have the following observations to me.
    
55. Counsel (which includes the solicitors handling the matter before the hearing) must pay careful attention to the P.T.C. They must ensure that the matters agreed upon are in accordance with the pleadings which are supposed to be drafted according to their respective clients' instructions. The Court will not be bound to accept the matters agreed upon if they contradict or are at variance with the evidence that comes out in the hearing. The consequences will of course be visited on the Counsel in costs, if it turns out they did not act in accordance with their clients' instructions. As much attention has to be paid to pre trial matters as are supposed to be paid to the trial.
    
56. Counsel should be careful not to ask for excessive costs in their confidence that victory is assured. This is because on the principle of what is sauce for the goose is sauce for the gander if they do not succeed their successful opponent might ask for the same level of costs.
    
57. At the end of the day I enter judgment for the Defendant with costs of $1,500.00 to be paid by the Plaintiff.
    

Dated at Suva this 12th day of October 2015.

David Alfred
JUDGE

High Court of Fiji