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High Court of Fiji |
IN THE HIGH COURT OF FIJIAT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 149 of 2009
BETWEEN:
PUSHPA WATI
PLAINTIFF
AND:
THE PERMANENT SECRETARY FOR HEALTH
1ST DEFENDANT
THE ATTORNEY-GENERAL OF FIJI
2ND DEFENDANT
COUNSEL : Mr D. Singh for the Plaintiff
Ms R. Mani, Ms S. Daunabuna and Ms L. Ramoce for the Defendants
DATE OF JUDGMENT : 15 July 2016
JUDGMENT
Introduction
(i) Defendants do file and serve their Affidavit Verifying List of Documents within fourteen (14) days and if not their Statement of Defence will be struck out;
(ii) Fourteen (14) days from thereafter for Plaintiff to file and serve Minutes of Pre-Trial Conference;
(iii) Fourteen (14) days from thereafter for Plaintiff to file and serve Order 34 Summons and Copy Pleadings and if not then Plaintiff’s action will be deemed struck out.
(i) Whether Defendants breached any duty of care owed to the Plaintiff?
(ii) Whether Defendant’s breach caused Plaintiff injuries which resulted in Plaintiff suffering pain, special and general damages?
(iii) Whether Plaintiff was contributory negligent?
(iv) What is the quantum of damages?
Documentary Evidence
1. Medical Report by Dr. Oten Bwabwa dated 22nd April, 2008;
2. Medical Report by Dr. Oten Bwabwa dated 20th May, 2009;
3. Wages Slips;
4. Medical Report by Dr. Sitiveni Traill dated 20th November, 2009;
5. Occupational Health and Safety Policy;
6. Photos.
Plaintiffs Case
(i) She was born on 19 November 1952;
(ii) The accident took place on 27 June 2007, at the washroom and the time of the accident she was working as Laundry Hand at CWMH Laundry Department and has been employed in the CWMH Laundry Department for fifteen (15) years prior to the accident;
(iii) The accident happened when she slipped and fell down as there was water on the smooth floor;
(iv) She did not see the water when she fell down;
(v) At the time of accident she was wearing massaging sandal which had proper grips as the sandal was new;
(vi) CWMH gave her safety boots which she returned to the Supervisor as it got old, was damaged and water could get in the boot;
(vii) She returned the safety boots to her Supervisor two months prior to the accident and the safety boots was two years old.
(viii) She asked the Supervisor for new pair of safety boots but was told that Ministry does not have the money;
(ix) There were no signs to caution that the floor was wet and the staffs’ were rostered to clean the floor;
(x) The place she fell was not always wet;
(xi) Forty Four (44) staff worked at the Laundry Department out of which twenty two (22) ladies were rostered to clean the floor and the day of the accident, floor was mopped by Farida;
(xii) There was no door mat where she fell but was one (1) meter away;
(xiii) She worked nine (9) hours a day and the Laundry was busy;
(xiv) She fell at lunch time when she was going to tea room;
(xv) The floor is mopped three (3) times a day which is in the morning, after lunch and in the afternoon;
(xvi) When she fell, color of the floor was maroon;
(xvii) After she fell she could not get up, she was hurt, was in pain and was sweating;
(xviii) One lady, namely Roshni assisted her by lifting her up and making her sit on a chair in the tea room;
(xix) Roshni then called Ambulance and she was taken to the Accident and Emergency Unit (“A&E”) at which time she was in pain as her hip had broken;
(xx) At A&E an X-Ray was conducted after her blood pressure and level of diabetes was checked;
(xxi) On the day of accident she was admitted and was admitted for eight (8) days;
(xxii) Surgical operation was carried out on her when metal plate was inserted;
(xxiii) After being discharged from hospital she went for review for five or six times;
(xxiv) Metal is still fitted in her hips and she feels lot of pain during cold season;
(xxv) She walks with a limp, because after the accident both her legs are not of same length;
(xxvi) Because of her injuries, she finds it hard to stand for long, hard to sit, cannot lift heavy objects and she cannot attend functions where she has to sit and have difficulty in twisting her hips;
(xxvii) At time of accident her pay was $165.44 per week and she is claiming for loss of wages for twenty (20) days sick leave which she has not been paid with Fiji National Provident Fund contribution;
(xxviii) She is claiming $300.00 for travelling expenses and for medication (pain killer);
(xxix) She is taking panadol when she has pain;
(xxv) She finds it hard to go marketing, visit relatives and do shopping;
(xxxi) She returned to work after seven (7) months from date of accident at the same place;
(xxxii) For seven (7) months she found it had to go to washroom, eat and sleep and she was able to move about on walker;
(xxxiii) When she returned to work she was not doing same work but was folding gowns while sitting;
(xxxiv) She left employment in 2009, when she retired at the age of fifty five (55) years.
19. During Cross-Examination Plaintiff:-
(i) Confirmed that at time of accident she was working at the Laundry Department of CWMH and that she had been employed for fifteen (15) years;
(ii) The Laundry area would be more wet, then outside of the washroom which is mostly dry;
(iii) Agreed that she fell in the washroom and that washroom has basin and sink and there is water around the area;
(iv) Stated that, that area will be wet sometimes but not all the time
(v) She had been on the walker for four (4) months;
(vi) Agreed that safety boots were to be worn at all times and that she is aware that it is Occupational Health and Safety (“OHS”) requirement that uniform had to be worn during working hours;
(vii) She would attend OHS training sometimes but not always;
(viii) She was aware about the OHS Policy which was put on the notice board in the Laundry area;
(ix) She used to wear safety boots but, when she did not have it, she did not wear it;
(x) At time of accident she did not have the safety boots and when she asked the supervisor she was told that the Ministry had no money;
(xi) Agreed that correct description of footwear she was wearing at time of accident was flip flop and not sandals;
(xii) She could not recall if there was any staff to assist her and that she only saw Roshni and agreed that there could have been other people;
(xiii) Agreed that, there was system in place to clean floor at CWMH and twenty two (22) ladies were assigned to clean the floor;
Defendant’s Case
23. During Cross-Examination DW1:-
(i) In reference to Intertrochanteric fracture mentioned under the heading “History” in Exhibit 2 he explained that such fracture occurs in the proximal part of the femur, the thigh bone which is trochanteric region;
(ii) The fracture stated in Exhibit 2 is closed (no open wound) and undisplaced (no major separation of fragment);
(iii) Stated that intertrochanteric means it is trochanteric region and is not in danger region;
(iv) Stated that the fracture below the neck (trochanteric region) which does not disturb flow of blood;
(v) In reference to “DHS” under the heading “History” in Exhibit 2 he explained that “DHS” means Dynamic Hip Compression Screw which allows patient to mobilize early and mechanically allow for compression of the fracture site as mentioned on page 1 of Exhibit 4 which were consistent with the injuries sustained by the Plaintiff because they are subjective finding on persons subjective complaints;
(vi) Stated that Plaintiff sustained severe fracture (paragraph 3, page 2, Exhibit 4) means that with the type of injuries there is recorded mortality rate of twenty five percent (25%),whether within six (6) months surgery is done or not;
(vii) Agreed that his findings in respect to reduction in length of leg is same as that of Dr. Traill’s findings;
(viii) Could not answer as to how Dr. Oten found shortening of left leg by two percent (2%) and stated it could probably be as a result of Dr. Oten using different tape and the test carried out;
(ix) Stated that Antalgic Gait (page 2 – Exhibit 4) means limp due to pain and the person who suffers from Antalgic Gait limps;
(x) Stated that whether person with one leg shorter will limp depends on amount of shortening and if it is less than two percent (2%) then person will not limp or it will not be noticed;
(xi) Stated that he did not observe Plaintiff walk a distance;
(xii) Agreed that Dr. Traill and his assessment of Plaintiff are same and stated that the assessment is subjective to the person doing the assessment;
(xiii) Agreed that there could be marked discrepancy in assessment of permanent disability amongst doctors and stated that it is because lot of factors are involved;
(xiv) He used AMA Guidelines to Evaluation of Permanent Impairment 6th edition, functional history of patient, physical examination, and diagnostic (clinical) studies done on the patient to assess the permanent disability;
(xv) Explained that MMI stated under the heading “Current Symptoms” in Exhibit 2 means Maximal Medical Improvement;
(xvi) Stated that from what is said by Dr. B. Oten under the heading “Clinical Studies” means that the screw is still in place and agreed that Dr. B. Oten’s assessment on whole person impairment is 11%;
(xvii) Stated that when a surgical registrar prepares a report and signs for a consultant surgeon the report should be shown to the consultant surgeon;
(xviii) In reference to Exhibit 4 he agrees that the report states that fracture was to left neck of femur (paragraph 3) and Plaintiff was reviewed seven (7) times;
24. In Re-Examination DW1 stated that:-
(i) To observe patients walking a distance can be part of examination but is limited or restricted and he cannot see them walking for a long distance;
(ii) He observed Plaintiff walking in clinic but did not observe her walking for long distance.
27. During Cross-Examination DW2 stated that:
(i) At the time of accident she was sitting at her table and did not have direct view of the wash room where Plaintiff fell;
(ii) No sign saying “Danger Area Slippery When Wet” was placed;
(iii) There was a staff named Tina but was not aware if she fell one (1) week after the accident;
(iv) She was familiar with the procedure for returning old boots and requesting for new boots;
(v) Timeframe for getting new boots when old boots are returned will depend on the Domestic Stock Officer and whether boots are available;
(vi) In response to suggestion that if boots were not available immediately then it would take months to get it she responded that it is not that long and month is too long;
(vii) Timeframe to get new boots will also depend on size of boots;
(viii) Washroom did not have hand rails;
(ix) Tea girl is rostered to mop the floor and the roster is done on monthly basis;
(x) At time of accident there were forty staff (40) with twenty two (22) male staff and eighteen female staff;
(xi) Female staff were rostered to mop the floor and the floor was mopped three times a day;
(xii) When the supervisor goes on leave during month of December and January she acted as supervisor of Plaintiff;
(xiii) She was not the supervisor at the time of accident;
(xiv) She noticed Plaintiff wearing massage flip flops and when she asked her to wear boots, Plaintiff said to her that boot is heavy for her;
(xv) She informed the Lady Supervisor about Plaintiff wearing massage flippers just once;
(xvi) When asked if people working with her are expected to meet deadlines she said that whatever they could achieve during the day, they do, or else they do it the next day.
30. During Cross-Examination DW3:-
(i) Stated that he knows Plaintiff by face;
(ii) Confirmed that he was working at CWMH in June 2007 and he did not receive any accident report from laundry department;
(iii) Stated that he did not receive any complaints by anyone that a worker by the name of Pushpa Wati was not wearing safety boots in contravention of OHS policy;
(iv) Stated that in 2007,Makisi was the Supervisor in Landry section and was still working there and was at work a day before he gave evidence but was not sure if Makisi was at work on the day he was giving evidence;
(v) Stated that in June 2007, Mr. Ram was the store man but has retired;
(vi) Stated that he came in between the Supervisor and the Store-man when there was delay and there was an urgent need;
(vii) Agreed that if delay and urgent need is not communicated to him, then he would not know what goes wrong as he acted on complaints;
(viii) CWMH has a purchasing officer;
(ix) Agreed that procedure to request for replacement boot is as follows:-
- (a) Request is made to the supervisor;
- (b) Supervisor then informs the Store-man;
- (c) If boot is not available then request is made to the Purchasing Officer.
(x) His role in the sequence of events is that if Supervisor finds that there is no boot then he has to speed up the process;
(xi) If Purchasing Officer does not have money to purchase, then his duty is to make sure that Employer looks for the money somehow;
(xii) Disagreed that ‘somehow’ could mean months and stated that all OHS Representatives go around to make sure that all staff comply with the standards and if they do not, they could not be allowed at the work place;
(xiii) In response to question as to when there is no budget he stated that, with OHS there is no excuses and the Employer has to look for money somehow;
(xiv) If Purchasing Officer says there is no money, then he went to management and if management said that there is no money then he as OHS Committee Chairman had to influence the Employer to make sure they get the money to buy the boots.
31. In Re-Examination DW3 gave evidence that:-
(i) Lot of cases of delay in providing footwear to staff was reported to him;
(ii) He did not receive any complaints about Pushpa Wati’s footwear;
(iii) It is not possible for staff to go around without footwear for months;
Whether Defendants Owed Duty of Care to the Plaintiff
Whether Defendants Breached Their Duty of Care
Whether Plaintiff Contributed to Her Injury
“The basic principle of contributory negligence is that, when a court is awarding damages to the Plaintiff for injuries caused by the defendant, it may reduce the award if the plaintiff can be shown to have contributed to the injury by some negligence on his part. However, whilst the liability of the defendant arises from a duty towards the plaintiff, the assessment of contributing negligence is not based on a similar duty on the plaintiff towards the defendant. It was explained by Lord Simons in Nance v. British Columbia Electric Railway Co. Ltd [1951] Ac 601, 611: “The statement that, when negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the Plaintiff to take due care, is, of course, indubitably correct. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the injury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
...this, however, is not to say that in all cases a plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully.”
49. The facts of Staply case are stated in the judgment of Lord Reid at pages 484 and 485 which is as follows:-
“Before the accident Staply and Dale were working together, Staply being a breaker. He was a steady workman with long experience, but rather slow. He had for a time been a borer but had reverted to being a breaker. A well-recognized danger in the mine is a fall of part of the roof. The roof is not generally shored up as any weakness in it can be detected by tapping it. If it is “drummy”, giving a hollow sound, it is unsafe and must be taken down. There are three ways of doing this – with a pick, or with a pinch bar or crow bar, or by firing a shot. Whichever way is adopted, of course, men doing the necessary work must not stand immediately below the dangerous part of the roof. One morning when Stapley and Dale arrived at their stope they tested the roof and found it to be dummy. They saw the foreman, Church, about it and he ordered them to fetch it down. They all knew that meant that no one was to work under the roof before it had come down. Church did not say which method was to be adopted. Both men were accustomed to this work and the method was properly left to their discretion. They used picks, but after half an hour had made no impression. The work was awkwardly placed as a fault ran across the mouth of the stope, the floor and roof inside being about eighteen inches higher than outside. Probably they could not use a pinch bar, but they could easily have prepared the place for firing a shot and sent for the shot firer. Instead, according to dale whose evidence was accepted, they agreed that the roof was safe enough for them to resume their ordinary work, and did so. There was a quantity of gypsum lying in the stope and if the roof had been safe their first task would have been to get to the haulage way. To do that, Stapley had to enter the stope and break the gypsum into smaller pieces and Dale had to make preparation in the twitten. So they separated, and when Dale came back half an hour later he found Stapley lying dead in the stope under a large piece of the roof which had fallen on him.
There is no doubt that if these men had obeyed their orders the accident would not have happened. Both acted in breach of orders and in breach of safety regulations and both ought to have known quite well that it was dangerous for Stapley to enter the stope.”
“A Court must deal broadly with the problem of apportionment, and, on considering what is just and equitable, must have regard to the blameworthiness of each party, but ‘the claimants share in the responsibility for the damage’ cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness. It may be that in this case Dale was not much less to blame than Stapley, but Stapley’s conduct in entering the stope contributed more immediately to the accident than anything that Dale did or failed to do.”
“Designated vehicle supervising officer and seated in the vehicle with the driver. He is in charge of all passengers and is to ensure that the vehicle is not overloaded ...[and]... he is to ensure that the vehicle is driven in a safe and proper manner”.
“Finally, on the basis of success under Issues 1 and 2, the claimant appeals against the judge’s assessment of 75% contributory negligence upon his part. Mr. Braithwaite made short submissions in this respect. However, he failed to persuade me that the judge was other than right in regarding the claimant as largely the author of his own misfortune. On any view his actions were foolish and dangerous in the extreme. He had already sought to discourage Lance – Corporal Fear from pursuing a similar course. It is not known what led to a change of heart on the claimant’s own part. However, no sensible (nor indeed any) reason has been advanced for that change of heart. In my view there are no grounds to interfere with the Judge’s apportionment”.
“The immediate cause of the deceased’s death was suffocation due to inhalation of vomit. The amount of alcohol he had consumed not only caused him to vomit, it deprived him of the spontaneous ability to protect his air passages after he had vomited. His fault was therefore a continuing and direct cause of his death. Moreover, his lack of self-control in his own interest caused the appellant to have to assume responsibility for him”.
Plaintiff was employed by the defendants to operate a fibre crushing machine, which consisted of a rotating pan within which were two rotating stones connected by a central pin. From time to time, in the course of the work, the crushed fibre tended to stick in the grooves along which slid a trap-door at the base of the machine. Through this trapdoor the crushed fibre was discharged into a chute periodically during the day. The machine could be cleaned from above by lifting the cover of the pan, and in that case the machine was stopped and the stones automatically stopped rotating; but the usual method of cleaning the grooves was from below the machine, by opening the trapdoor and putting one’s hand in through the door having first stopped the rotation of the stones. The defendants knew that this was the method which their workmen normally used. There was no guard or barrier at this part of the machine, but it was the practice among the defendants’ work men to stop the machine before attempting to clean the grooves. When the Plaintiff first started to operate a crushing machine, he received adequate training in regard to using and cleaning the machine and was instructed never to attempt to clean the grooves when the machine was in motion. He also received from the defendants a card with safety instructions and warning him not to touch any part of the machine when it was in motion expect those parts which formed part of his normal job and which he had been instructed to do the foreman or a teacher operative. After the plaintiff had been employed on the machine for about six months, it was discovered one afternoon that a small piece of metal from the top edge of one of the grooves, separating the groove from the pan with the rotating stones, had broken away. It was decided that it would be safe to continue to use the machine for the remainder of that shift, and the Plaintiff continued to operate the machine, knowing its condition. Later in the afternoon, when the groove required cleaning, he put his left hand into the machine without stopping it and his fingers were crushed.”
“7.3 (a) Conduction of OHS training;
(b) A OHS Policy was and still is in place;
(c) The OHS Policy is displayed inside the laundry area;
(d) It is expected that the workers in the laundry area know the OHS Policy in place as training was conducted and workers were always reminded to wear the proper safety attire;
(e) A duty roster was enforced whereby the floor is mopped 3 times a day;
(f) The proper work and safety attire is distributed to the workers. For the laundry area workers these were uniforms and safety shoes;
(g) There is a fully functional OHS Committee which existed at the time of the Plaintiff’s accident and still exists todate.
Special Damages
Travelling Expenses/Medical Report
Loss of Earning and Fiji National Provident Fund
$165.44 x 52 weeks/365 x 20 days $471.39
8% of $471.39 (FNPF) 37.71
$509.10
Travelling expenses: $ 65.00
Medication expenses: $200.00
Loss of wages and FNPF: $509.10
$774.10
General Damages
Pain and Suffering
“The assessment of damages under this dead depends upon the consequences to the individual plaintiff (Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 548 cited in Law of Torts by Balkin& Davis 5thed. at 11.28). In Hail v Rankin [20001] QB 272 the English Court of Appeal had acknowledged monetary inflation to be considered while making the awards. However the amounts decided on in previous cases can be considered no more than as a guide, and any particular determination must depend on such factors as the intensity of the pain felt by the plaintiff and its likely duration (Balkin& Davis (supra) at 11.28).”
86. In Chand & An. A v. Amin; Civil Appeal No. ABU 0031 of 2012 (2 October 2015 Respondent/Plaintiff suffered from disc injury as a resullifting heavy objects during his employment. The Learned Trial found tund that the Rthe Respondent/Plaintiff has suffered from pain and could not play soccer which was his interest and had problems with his sex life because of back pain. Respondentntiffalso using sing crutchrutches and in terms of Medical Officer’s evidence Respondent’s/Plaintiff’s situation woot get better.
&##160;; < <
The Court awarded $60,000.00 for pain and suffering and loss of ames of life.
89. ټ In Eta NEta Naqelita v. Ram Kumar; Labasa High Court Civil Action No. 19 of 2010, Plaintiff suffered following injuries:-
“1. Laceration upper lip ann chin
(i) & ټ cl0; closed displaceplaced comminuted intra-articular fracture of left ankle;
(ii) ټ < closed extensige deng inju injury right thigh;
(iii) ra anterious cruciaruciaruciate ligament injury right knee; and
(iv) &##160; mul abrasions to both uppe upper and lowers.
ondenintiff was awarded $65,000.0000.00 by t by the Hohe Honorabnorable Trial Judge for pain and suffering which award was increased to $90,000n app/p>
ټ < n&#“(i)
& F60;turacof r ght femur; &ـʔ< < ); #60;&;;160;; Fracture ofre of left forearm and ulnaeft ap> Piff ae of accident was fourteen (14) years oars old. He had gone througgeryrgeryrgery wher whereby rod was inserted in his right
thigh and his leg ut on.aintiff was was admitadmitted oted on 5 June 2009. The medical officer’s evidence was that Plaintiff’s skin and muscle was cut to release tension and ease flow of blood.
After swelling of Plaintifintiff’s right leg increased that he had to go through open reduction surgery because the fracture
of right femur was bad and had to be straightened. After thigery tiff’s217;s leg leg was put on plaster. Plaintiff was discharged on 5 August 2009, but was re-admitted on 21ember 2009, because fracture had not united. On 29 September
20laintiffntiff went thrt through another open reduction and internal fixation surgery and was discharged on 1st October 2009. In total Plaintiff was admitted for seventy(71) days. Thi> This Court awarded Plaintiff $70,000.00 for past pain and suffering and $10,000.00 for future pain and suffering. Future Economic Loss Loss of Future Care Interest 101. I think it is just and fair that interest on special damage be assessed at three percent (3%) and on general damage be awarded
at four percent (4%). The reason for awarding four percent (4%) interest on general damage is that Plaintiff has been quite slow
in prosecuting this action. Costs Conclusion Special Damages [paragraph 84] $774.10 Less 15% - Contributory Negligence 116.10 $658.00 Interest at less 3% percent from 27/06/2007 (date of Accident) to 15/07/2016 (date of Judgment)-(3307 days) $179.00 $ 837.00 General Damages Past Pain and Suffering $30,000.00 Less 15% - Contributory Negligence 4,500.00 $25,500.00 Interest at 4% per annum from 05/06/2009 (date of Writ) to 15/07/2016(date of Judgment)- (2588 days) $ 7,232.00 $32,732.00 Future Pain and suffering $5,000.00 Less 15% - Contributory Negligence 750.00 $ 4,250.00 Total $37,819.00 Orders 105. I make the following Orders: (i) Defendant do pay Plaintiff the sum of $37,819.00 (thirty seven thousand eight hundred nineteen dollars) including interest; (ii) Defendants do pay Plaintiff cost of this action assessed in the sum of $3,500.00. Kamal Kumar JUDGE At Suva 15 July 2016 Daniel Singh Lawyers for the Plaintiff Office of the Attorney General for the Defendants
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