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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 21 OF 2015
BETWEEN: ATENDRA KUMAR
PLAINTIFF
AND: WAIQELE SAWMILLS LIMITED
DEFENDANT
Counsel:
Mr. S. Sharma for the Plaintiff
Mr. A. Sen and A. Kohli for the Defendant
Date of Hearing : 12th and 13th of September, 2016
Date of Judgment : 16th September, 2016
JUDGMENT
Introduction
[1] The Plaintiff was a mechanic in a garage belonging to the Defendant company who
engages in commercial lumber, logging, etc that employs a large number of employees. While attending to his duties as a mechanic the Plaintiff was injured on his right eye. He was working underneath a heavy vehicle and was making efforts to align a heavy spring which was part of that vehicle and tapping the point of alignment with a hammer to align and fix it. Since the visibility was poor and unsuitable for the task, the Plaintiff had removed the safety glasses he was wearing. He was holding the spring with one arm and tapping the metal part by hammer to align and fix the spring to the metal part, and a piece of foreign object flown and pierced through his right eye and it had got attached to the retina of eye resulting detachment of the retina from the eye. This had resulted near total blindness to the right eye. The Defendant is claiming contributory negligence for the removal of safety glass. Since there was no treatment for such an injury in Fiji the Plaintiff was recommended to obtain treatment abroad, and the Defendant had initially agreed to provide funds for such treatment but later when arrangements were made by the hospital for foreign treatment, it had declined to provide funds, as workers insurance did not cover such treatment in abroad. The Plaintiff could not afford treatment abroad and presently there is no treatment for the right eye and he is also facing a possibility of developing any other complications, including infections due to the presence of foreign object in his eye. The possibility of developing in sympathetic ophthalmic condition that could lead to total blindness is also increased due to the presence of foreign object according to the Doctor who gave evidence.
Facts
[2] Following facts are admitted in the minutes of Pre-Trial Conference;
[3] The Plaintiff in his evidence stated that when he examined his safety glasses on the 7.7.2014 he had realized that it was broken and he complained about the broken glass but was informed by the store-keeper that there were no replacements available in the store.He said that he was forced to work by the store keeper to whom they complain as there was no supervisor in the garage at that time.
[4] According to the evidence of one of the mechanics who gave evidence at the trial there were no safety glasses available in the garagestore for more than two weeks prior to the incident. He said that the Plaintiff was wearing a goggles used for wielding work hence it was dark in colour. He also said that the visibility underneath the vehicle is low and no suitable lights were available and or provided in the garage at that time for work done under the vehicles.
[5] The Doctor who examined the Plaintiff when he was first admitted to the hospital gave evidence and said that she had obtained her post graduate qualification in the field of Ophthalmology. She said that when she first examined the Plaintiff already the foreign object had pierced through the cornea and had got attached to the retina. She also said that she had obtained and examined the X rays, and CT scans of the right eye and those indicate that the retina had got detached from the eye. When she was cross examined and asked about the ‘possible detachment’ stated in the medical report submitted, she said that the she had examined the patient and the CT scans and saw the detached cornea.
[6] She said that depending on the complicated situation of the Plaintiff she immediately decided that here were no treatments available in Fiji for this kind of injury and this fact was informed to the Plaintiff and she was informed by the Plaintiff that Defendant would bear the expense of the overseas treatment.
[7] The Doctor said when they have prepared the arrangements to treat overseas the Defendant did not responded , closing even the small window of opportunity for the Plaintiff of recovery or totally or partially, or even an improvement of his condition by removal of the foreign object from the eye . Such an operation would have served all parties including the Defendant in this action as well as in their industrial relations with the workers.
[8] The Doctor said that the Plaintiff could see a movement of hand. She described the visibility as ‘hand movement only’. The Plaintiff said that he was in the hospital for 9 days and after that he visited every other day for clinics for some time and there after he attended for clinics.
[9] The Doctor stated that the Plaintiff had lost stereo vision or what is commonly called as 3D vision hence he could only see a flat picture without a depth of field. She said when you lose this, though he could see from the unaffected eye there are certain dangers that are inherent depending on things that person do. She said such a person should not be a surgeon or ophthalmologist. She also said though playing is not prohibited that would put him as well as other players in danger and she said that such a person should never drive a vehicle as stereo vision is a must in driving in public thorough fare. She also produced medical certificate of the Consultant.
[10] The payment of compensation for disability under the Workmen’s Compensation Act (Cap 94) in terms of section 8 of the Act in accordance with the schedule of the Act. For that purpose an eye it is assessed at 40%.
[11] The Defendant did not dispute the medical evidence through alternate medical certificate or calling a medical officer.
[12] Defendant called the accountant of the Defendant and Store Keeper of the Defendant at that time.
[13] The Accountant said that overseas treatment for the Defendant was refused by the Defendant as it was not covered under the insurance that they have obtained on behalf of the category of workers that Plaintiff belonged. He said that when he was informed of the overseas treatment through the Plaintiff, he had initially shown agreement for such funding, and sought approval from the senior management and it was not successful as there was no insurance cover for overseas treatment for the workers.
[14] The Accountant did not deny non availability of the safety glasses, but he said that it was not brought to the notice of him or his section. He said these items were purchased in bulk.
[15] As regard to the line of communication between the Plaintiff and his immediate floor supervisor Mr. Feroz, the Accountant admitted that Store Keeper was used. This fact was denied by the store keeper in his evidence.
[16] The last witness was the store keeper. Though he was no longer employed by the Defendant his demeanour was clear. He even denied fats admitted by the Accountant. Eg.Conveying instructions from Mr. Feroz. He said that only communication that he had with Mr. Feroz relate to the parts, or items to be released from the store for repair and he never gave any instructions regarding repairs and Feroz did not relate such information to him to be related to the workers.
Analysis
[17] The position of the Defendant is that they are not liable due to the negligence of the Plaintiff as he did not wear the safety glasses. So they are claiming volenti non fit injuria though the exact phrase was not used this was pleaded in the paragraph 8 of the Statement of Defence.
[18] At the outset, in the oral submissions of the Defendant’s counsel it was taken up, and stated that there was no liability for the Defendant as the incident happened due to total negligence of the Plaintiff as he had decided remove the safety glasses while tapping the metal part underneath a heavy vehicle.
[19] Halsbury's Laws of England (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[1], 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[2].’(emphasis added)
[20] In Reeves v Commissioner of Police of the Metropolis [1997] EWCA Civ 2686; [1998] 2 All ER 381 at 385 it was stated that;
‘.........it is important to remind ourselves first of the nature and basis of the defence of volenti. Mr Owen, for the plaintiff, took us to paras 3–43 and 3–44 of Clerk and Lindsell on Torts (17th edn, 1995), where the editor draws attention to two possible theoretical bases for the defence: that the plaintiff is to be taken to have agreed to waive any claim for injury (see Nettleship v Weston[1971] EWCA Civ 6; [1971] 3 All ER 581 at 587[1971] EWCA Civ 6; , [1971] 2 QB 691 at 701 per Lord Denning MR); or on the other hand that evidence that the plaintiff was volens simply operates to define the scope of the duty owed to him by the defendant (see most clearly for that view the judgment of Diplock LJ in Wooldridge v Sumner[1962] EWCA Civ 3; [1962] 2 All ER 978 at 989[1962] EWCA Civ 3; , [1963] 2 QB 43 at 67). In Morris v Murray[1990] EWCA Civ 10; [1990] 3 All ER 801 at 807[1990] EWCA Civ 10; , [1991] 2 QB 6 at 15 Fox LJ held that there was probably not much difference between the two positions, a view strongly indorsed in Clerk and Lindsell, and continued, in respect of the application of the defence of volenti to a case of negligence:
'In general, I think that the volenti doctrine can apply to the tort of negligence, though it must depend on the extent of the risk, the [plaintiff's] knowledge of it and what can be inferred as to his acceptance of it.'
I would respectfully agree that this broadly pragmatic approach is to be found in the majority of the cases.’
[21] In the High Court of Fiji, in the case of John v Tebara Transport Ltd [2005] FJHC 396; HBC0327.2003 (decided on 28 October 2005)it was held
‘In industry cases therefore knowledge of the risk cannot give rise to acceptance of it. By engaging in work with knowledge of the risks involved does not mean that an employee is waiving all claims to any injury suffered as a result’.
[22] So, when an employee engaged in his usual work and exposed himself to a danger that cannot be considered as voluntary acceptance of all the risks involved in such activity. Obviously, the Plaintiff did not consent to the injury he suffered in this case, only because he removed the safety glass, due to unclear vision. The reason for removal was poor visibility at the time and need of clear visibility to fix the component to the vehicle and importance in doing it properly and also fast. He said he was requested to do this work fast as the vehicle was required for work by the afternoon. As an employee Plaintiff was concerned about the work he was doing and even exposed himself to a danger in the process, but unfortunately when he got injured in the eye the Defendant declined to provide funds for an overseas treatment in the absence of local treatment.
[23] First, it should be borne in mind that the Plaintiff was engaged in hazardous type of work. Repairing heavy vehicles in a garage can be dangerous. This canbe when it relate to undercarriage of such vehicle. That is reason the Plaintiff had used a safety glasses borrowed from another worker.
[24] It is also noteworthy to ascertain why he had used a borrowed safety glass. The Plaintiff said that he requested for a new safety glass for his broken one but there were none available, I accept this position.
[25] One of the mechanics who was at work on that day gave evidence and said that there were no safety glasses available in the stores for more than two weeks. Plaintiff said that he refused to work without safety glass but the store keeper insisted that he attend to the repair of the heavy vehicle despite that, as the vehicle was required for its usual work by the afternoon.
[26] The Accountant of the Defendant admitted that the Plaintiff was obliged to follow the instructions of the storekeeper, as he was relaying the instructions of the floor supervisor Mr. Feroz. This fact was denied by store keeper, but his demeanour was clear when he gave evidence, and on the balance of probability I accept that there were no usable safety glasses available in the store for the use of the Plaintiff on that day.
[27] Even the Accountant who gave evidence for the Defendant could not state with certainty whether there were safety glasses available in the store. He said that the purchase of safety glasses were done in bulk. So there can be a lag time between the request for such items and then such items being purchased in bulk and distributing them and reaching where it needed. On the analysis of the evidence using the test of probability, it is proved on the balance of probability that no safety glasses were available in the store on 7.7.2014 and that was the reason for the Plaintiff to borrow a safety glasses used in wielding work.
[28] The Plaintiff also said that he had borrowed things from the store for the work on that day and there was no reason not to borrow safety glasses if that was available in the store. This was stated in the cross examination and this reinforce the position of unavailability of suitable safety glasses at that time.
[29] The Plaintiff said that he realized his safety glasses were broken in the morning when he commenced work and requested a replacement. There was no evidence to the contrary or this evidence being challenged in the cross examination. So on the balance of probability it is proved that the Plaintiff’s safety glasses were broken.
[30] In the cross examination the counsel tried to show that replacements of the safety glasses were issued previously, but this does not prove that there were safety glasses available for the Plaintiff in the store located at the garage on morning of 7.7.2014 for a replacement for the Plaintiff’s broken safety glass.
[31] The Defendant is a company that employ large number of employees and it would not have been difficult to prove the availability of the safety glasses if those were available from the records that it had kept, but rather relied on oral evidence of a ex-storekeeper who’s demeanor was evident.
[32] The Accountant admitted that the Plaintiff was obliged to follow instructions of the store keeper as he would convey the instructions from Mr. Feroz, when Feroz was not in the garage.
[33] The Store keeper admitted that Mr. Feroz was not in the garage on 7.7.2014. So the Plaintiff’s evidence that he was requested to repair the heavy vehicle by store keeper can be accepted on the balance of probability. It was proved, that Plaintiff had requested for a replacement for a safety glasses, and the store keeper was unable to supply a proper safety glass. Apart from that he had insisted that the work should continue on the heavy vehicle. So, the Plaintiff had no option other than to borrow a safety glass from a worker who was not using such safety glasses. Since the Plaintiff was left with borrowing a safety glass from a person who is not using, the use of safety glass used for wielding would have been a preferred option.
[34] So, he had obtained a safety glass that is used for wielding from a person named Sashi. According to the evidence of Kunal, who was working at the garage, the safety glasses that the Plaintiff was wearing were dark in colour. He also said that visibility is low in the garage specially underneath a heavy vehicle and there were no light available.
[35] There was no evidence provided that the Plaintiff or any other worker in the garage were provided with suitable lights when they do work underneath a heavy vehicle. This can be done with a light fitted with the helmet or light fitted to forehead or some other devise so that visibility is improved underneath the vehicles and parts of a vehicle that are covered are visible when repairing.
[36] So, not only the Defendant was unable to provide a replacement for the broken safety glasses for the Plaintiff but there was no proper lighting underneath the heavy vehicles inside the garage. This kind of lighting can be fixed to forehead or to the helmet or provided in some other manner. This lack of lighting resulted in the poor visibility when the fixing of the spring to the vehicle. It is to be noted that unlike in removal of the spring, when fixing it is important to align the pints exactly and visibility should be at maximum at that time. So, the absence of proper lighting added with dark coloured glasses had resulted blurred or poor visibility that required the Plaintiff to remove the safety glasses at the time of alignment of the spring to the point of fixing.
[37] The store keeper had told that there were no safety glasses available but insisted that repair to the heavy vehicle should be completed fast. The Plaintiff was obliged to follow the orders of the store keeper as this was the accepted line of communication in the garage as Mr. Feroz would convey the instructions through the store keeper.
[38] The type of work the Plaintiff was assigned on 7.7.2014 was to replace a spring of a heavy vehicle that weighs more than 700 Kg. Since it was broken this has to be removed and a new spring needed to be replaced. The Plaintiff with the help of the others had replaced the broken spring with a new one.
[39] The Plaintiff had to borrow the safety glass from another person as the repair needed to be done fast. Since there was no adequate lighting he had to remove it to align it and the alignment also needed tapping with hammer.
[40] The Plaintiff was negligent in selecting a dark safety glasses for the work he was assigned, when he borrowed a pair, but since wielding safety glasses are not required to wear in a garage when wielding is no done, it would have been easy option for the Plaintiff to borrow such a pair. He knew that there was no lighting provided underneath the vehicle. There was no evidence that this was the only pair of safety glasses that Plaintiff could borrow.
[41] The reasons for the Plaintiff to remove his safety glasses was the poor visibility. He was using a dark coloured safety glass as there was no replacement for his broken safety glass. The visibility was poor as it was underneath a heavy vehicle in the garage, and no lighting was provided either in the helmet, forehead lights, or any other suitable lighting for work under a vehicle. A person who is unskilled in mechanics as admitted by store keeper is entrusted to order the work to the mechanics. One or all of these have contributed to the ultimate decision of the Plaintiff to use an unsuitable safety glass for the work and that had resulted poor visibility and removal of the same.
[42] Non availability of safety glasses for replacements, not providing adequate lighting for work under a large heavy vehicle, not providing safety gear to lift and fix components more than 600 kg,non-supervision of work by competent person, allocation of work and line of communication through a store keeper who is not competent in mechanics had cumulative effect that resulted the loss of sight in the right eye of the Plaintiff to ‘hand movement’. Therefore, the Defendant is negligent towards the workers including the Plaintiff. The Plaintiff was also negligent and exposed himself to danger.
[43] So unlike in the case of John v Tebara Transport Ltd(supra) where 30% contributory negligence is assessed, the contributory
negligence should be reduced to 15% considering the circumstances that resulted the removal of the safety glasses.
[44] In the John v Tebara Transport Ltd(supra) it was a non-use of safety glasses for removal of centre bearing using a chisel and
getting injured in the eye. In that case the there was no issue of insufficient lighting or instructions given by unqualified person
like store keeper. There was no evidence of instructions that work to be done fast. There was no evidence of unavailability of
safety glasses in the store.
[45] In contrast the Plaintiff had borrowed a safety glass, but unfortunately visibility was poor for the work he was entrusted due
to two reasons. One was the unavailability of lightings (in helmet, forehead, or other device) and the other reason was use of
dark coloured safety glass. The Defendant had acted negligently for both reasons. So I decided to decrease the contributory negligence
to 15% considering the 30% contributory negligence in John v Tebara Transport Ltd (supra) in a comparable injury.
[46] For pain and suffering John v Tebara Transport Ltd(supra) in a similar injury had granted $45,000 in more than a decade ago.
So, considering the present value of money I would grant a sum of 60,000 as general damage for past pain and suffering.
[47] Unlike in John v Tebara Transport Ltd(supra) the conduct of the Defendant after the incident had not been satisfactory, as it
had declined the treatment abroad. The reason for that is their own failure to obtain an adequate insurance cover for treatment
abroad for workers. As a result of that Plaintiff’s condition could worsen due to infection of foreign object. Considering
the circumstances of the case the foreign object may be a rusted metal part and the likelihood of such rusted part resulting further
complication cannot be ruled out. The doctor in her evidence said the presence of foreign object can aggravate the condition of
the Plaintiff including increase the probability of Sympathetic Ophthalmic condition. The Plaintiff said he was advised that any
infection resulting from foreign object needs immediate attention and removal of right eye entirely. So, there should be some allocation
for future medical care and considering the circumstances I allocate $20,000 for that. This includes any pain and suffering for
further surgery due to infection and or for increase possibility of developing Sympathetic Ophthalmic condition. In such an event
future nursing care may also be needed. This amount of damage could have been prevented had the Defendant funded the foreign treatment.
[48] Without prejudice to above, the refusal to provide adequate medical treatment abroad due to their own fault of not obtaining
a sufficient medical insurance for them can be alternately be considered as a reason for an award of punitive damages. So the above
provision for $20,000 which was a direct result of such refusal, can be alternatively granted as a punitive damage. It is noteworthy
that removal of safety glasses was mainly due to the faults of the Defendant.
Loss of wages
[49] At the moment the Plaintiff is unemployed. Though the Defendant re-employed the Plaintiff after recovery he explained the difficulties
that he encountered specially after filing of this action. He was regularly called to the office and was forced to withdraw this
action. This along with other difficulties that he encountered had result in the Plaintiff’s decision not to work with the
Defendant. In the circumstances of the case I do not think it is an unreasonable decision, considering the conduct of the Defendant
after the injury. The Plaintiff was a heavy vehicle mechanic and stereo vision or 3 dimensional visions is very important for such
a person for removal and fixing of parts. The depth of vision is paramount for such a person compared with another person. The Plaintiff
was 30 years old when he was injured. Though he can be gainfully employed his ability to work as a heavy vehicle mechanic is significantly
reduced and needs compensation by way of damages. He can perform mechanical work but it would be low risk, work compared with hazardous,
heavy vehicle repair. So his earning capacity is reduced in the labour market to obtain gainful employment for the same salary.
Since the Plaintiff is unemployed the reduction in his wages due to injury is not provided, so a lump sum needed to be given as
general damages for future loss of wages. For this I award a sum of 30,000
Calculation of damages
[50] a. General Damages for Loss of Pain and suffering $60,000
a. Loss of wages for future $ 30,000
b. Future medical care, nursing care, and other contingencies 20,000
(Alternatively this sum can be considered as a punitive damage for declining a reasonable medical care)
c. Interest for (a) at 6% from 6.8.2015 for one year $3,600
Deduction for contributory negligence at 15% -16,500
Total $96,560
The cost of the case is summarily assessed at $2,500.
Final Orders
[51] a. The judgment is entered for the Plaintiff against the defendant for a sum of
$96,560.
b. The cost of this action is assessed summarily as $2,500.
Judge
[1] As to the defence of volenti non fit injuria see PARA 465; and NEGLIGENCE.
[2] 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).
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