Lata v DVH Textile Mills (Fiji) Ltd [2000] FJLawRp 45; [2000] 1 FLR 171 (9 August 2000)

[2000] 1 FLR 171

IN THE HIGH COURT OF FIJI

MADHU LATA

v

DVH TEXTILE MILLS (FIJI) LTD

High Court Civil Jurisdiction
Prakash, J
9 August, 2000
HBC0027/99L

Interim payment - whether court is satisfied that plaintiff will succeed against defendant - High Court Rules O.29 r.19 & 11; Workmen's Compensation Act ss 5(1)(a), (b), (2) and (3)

This is an interlocutory application for interim payment by the plaintiff who was injured by electrocution in the course of her employment with the defendant. The main issue at the hearing for the application was whether the court was satisfied that the plaintiff would ultimately succeed against the defendant in the substantive action which was founded on common law negligence and the Workmen's Compensation Act. Upon hospitalisation, the physician diagnosed the plaintiff with 100% percentage incapacity caused by right side Hemiparesis secondary to Electrocution. The defendant's doctor gave evidence that the plaintiff had a pre-existing pathological condition and assessed her at 100% incapacity caused by right sided spastic hemiplegia secondary to electric shock.

Held - (1) Once the plaintiff has shown a prima facie basis of incapacity, the onus of proving that an incapacity is caused by a pre-existing condition lies on the defendant. The defendant here failed to discharge the onus of proving that the plaintiff suffered a pre-existing condition.

(2) The Court is sufficiently satisfied that the Plaintiff would succeed against the Defendant at least on the basis of a claim under the Workmen's Compensation Act.

Interim payment is awarded to the plaintiff with costs.

Cases referred to in Ruling
Foll Shearson Lehman Bros. Inc. v Maclaine Watwon & Co Ltd [1988] 1 WLR 480; [1987] 2 All ER 181, CA
Foll Gibbons v Wall, The Times, February 24, 1988 CA
Foll British Commonwealth Holdings plc v Quadrex Holdings Inc. [1989] QB 842; [1989] 3 All ER 492, CA
Foll Andrews v Schooling [1991] 3 All ER 723 CA
appl Purkess v Crittenden [1965] HCA 34; 114 CLR 164

Rajendra Chaudhary for the Plaintiff
Ram Krishna for the Defendant

9 August, 2000.

RULING

Prakash, J

This is a summons by the Plaintiff seeking an Order for Interim Payment in the sum of $13,306.80 from the Defendant company. This Application is made pursuant to Order 29 Rules 10 and 11 of the High Court Rules (1988). An affidavit in support has been filed deposing the grounds for the application and enclosing Medical Reports relied upon. An affidavit in reply has also been filed. While opposing the application 'for interim payment on various grounds the Defendant does not depose that it is not insured in respect of the Plaintiff nor a person whose means and resources are such as to enable him to make an interim payment.

In considering this application the Court "must be satisfied that the plaintiff will obtain judgment for substantial damages or for a substantial sum apart from damages and costs. In determining whether it is so satisfied the Court should apply the civil standard of proof; the Court is not required to be sure in the sense of being satisfied beyond reasonable doubt (Shearson Lehman Bros. Inc. v. Maclaine Warwon & Co. Ltd [1988] 1 WLR 946; [1987] 2 All ER 181, CA; Gibbons v. Wail, The Times, February 24, 1988, CA). It should be observed, however, that the test prescribed by r. 11(1)(c) and r. 12(c) is whether the court is satisfied that the plaintiff will succeed in his claim against the defendant, rather than whether he is likely to succeed (British & Commonwealth Holdings plc v. Quadrex Holdings Inc. [1989] QB 842; [1989] 3 All ER 492, CA; Andrews v. Schooling [1991] 3 All ER 723, CA)." (See White Book 1997 Ed para 29/11/1 at page 545).

In her affidavit the Applicant sets out the grounds of her claims. She claims that she was injured during and in the course of her employment with the Defendant company by electrocution. She has claimed damages and compensations under common law negligence and Workmen's Compensation Act. She has provided the basis of arriving at the interim payment figure of $13,306.80. It is clear from the Medical Reports made available to the Court that her medical condition has been caused by electrocution or electrical injury.

Dr Suman Lata Gounder's report dated 26/11/98 states: inter alia "Madhu was not seen by me either socially or as a patient until I was called to attend to her after an accident at her workplace, D.V.H. Textiles, Lautoka. I was told that a worker at the factory had an electric shock and I was requested to see her at the factory. Upon arrival at the factory premises I found her to be in the company of many sympathetic staff in an executive's office. She was quite distressed and holding on to her right leg complaining that she had numbness in her right leg and couldn't walk properly after an electrical injury while working at her sewing machine."

Apart from noting other matters the report concludes: "I assessed her as having Neurological Deficit secondary to electrical injury and thus after eventually convincing her that she needed hospitalisation, I made arrangements for her to be admitted to W.M.W. of Lautoka Hospital under care of Physician".

At Lautoka Hospital she was under the care of Dr John V Tomargo, Acting Consultant Physician. His report dated 20/01/99 is also enclosed in the Affidavit. His conclusions are:-

Diagnosis ..

Right side Hemiparesis 2˚ to Electrocution

Percentage incapacity: 100%

"This patients right upper and lower limbs (2 limbs) are totally incapacitated because of spasticate and pain aggravated by movement and therefore is considered to have lost 2 limbs which accounts for 100% incapacity."

A report by Dr Ponnu Samy Goundar dated 6/09/99 was also admitted by consent of the parties. It appears from the pleadings and correspondence by the Plaintiff solicitors that Dr P.S. Goundar assessed the Plaintiff at the request of the Defendant. In its defence para 7 the Defendant says that the injuries and residual disabilities alleged by the Plaintiff arose as a result of a pre-existing pathological condition and not as a result of the alleged or any injuries that she sustained at her place of work. In paras 3 and 5 of the affidavit of Ashim Chakraboty similar allegations are made. In any case Dr P.S. Goundar final comments of his examination etc. states: "Ms Madhu Lata has right sided spastic hemiplegia secondary to electric shock. Percentage of incapacity is 100%."

As far as any question of pre-existing condition is concerned, the High Court of Australia in Purkess v. Crittenden 14 CLR 164 at p.168 states:-

"We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial."

There is no evidence before the Court that the Plaintiff's incapacity was caused by any pre-existing condition. The statements by Defendant Director that "Madhu Lata has long been a very sickly lady. She missed 233 days of work. Her right foot has always had that disability since she began working for the Defendant" are not sufficient to discharge the onus that her incapacity is wholly or partly the result of some pre-existing condition.

It is clear on a balance of probabilities that the Plaintiff did suffer personal injury by accident arising out of and in the course of her employment. The matters deposed in paragraphs 3, 6, 7, 8, 9 and 10 of the Defendant's affidavit do not preclude liability by the Defendant under Sections 5(1)(a) and (b), and (2) and (3) of the Workmen's Compensation Act.

The Court is sufficiently satisfied that the Plaintiff would succeed against the Defendant at least on the basis of a claim under the Workmen's Compensation Act.

The Defendant is ordered to pay the sum of $13,306.80 as interim payment to the Plaintiff. Costs for the application are summarily assessed at $250.00.

Application succeeds.

Mereseini R Vuniwaqa