Flour Mills of Fiji Ltd v Raj [2001] FJLawRp 40; [2001] 1 FLR 196 (24 May 2001)

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Assessment of damages for personal injuries – amputation of arm caused by the Respondent's arms caught in a conveyor during installation after a manual test run - whether judge's finding of no contributory negligence an error – appropriate multiplier for grievous injuries – whether interest can be awarded on a sum unknown before trial

A maintenance supervisor installing a new electrically-driven conveyor when his hands and arms were caught at the top of a silo. His right arm required amputation above the elbow, resulting in severe limitation of movement in his left hand and arm. A medical witness assessed his disability at 100% loss of working capacity. The trial judge awarded damages totalling $443,317.22, from which the Appellants appeal. Two Appellants' managers gave evidence that the Resppondent had been issued with padlocks for the switch and had been expected to isolate the machine before working on it. The High Court accepted the Resppondent's evidence, supported by a witness that he was not present at the manual test-run; that he did not know the machine had been energised and that there would be a computer test-run; that he did not hear the supervisor's instruction to pack up and go home; and that he did not consider the necessity to isolate the machine because it was new. The appellate Court found no contributory negligence on the part of the Respondent. The Appellant sought a lower multiplier of 10.27, but the Respondent sought a higher multiplier of 18. The appellate Court found the Appellant's assumptions that the Respondent had a working life of only 16 years until he reached the age of 55, when he will be entitled to draw FNPF benefits; and that his wages would have remained the same until he retired unfounded. Taking into account some allowance for the vicissitudes of life, the appellate Court accepted the trial judge's multiplier of 15. However, it adjusted the FNPF contributions using the Appellant's multiplier of 10.27 as a multiplier of $210 per month (representing employer and employee contributions). Thus, the Court awarded a lump sum of $26,000 (rounded up) in place of the $37,800 awarded by the High Court. The appellate court applied a multiplier of 15 to FNPF contributions, but removed interest erroneously calculated. It allowed a rise in cost of $2500 for medical expenses since the date of trial.

Held – It is well established that the assessment of general damages for pain, suffering and loss of enjoyment of life is not capable of precise measurement. Where the injuries suffered by the Respondent were grievous and the effect on his life is catastrophic, a very substantial award was called for.

(2) The ascertainment of an appropriate sum to take account of all the possibilities affecting a Respondent's earning capacity is a matter of experienced judgment with no hard and fast rules or expectation of mathematical certainty, thus a multiplier of 15 is appropriate.

(3) When managers themselves did not see fit to isolate a new machine after a manual test, a higher standard of care for his own safety should not be expected of their subordinate, thus no contributory negligence.

(4) An award of interest is made to compensate for moneys wrongly withheld, but not for items in the nature of general damages before the amount is known, thus interest award is deleted.

Judgment of High Court upheld but varied as to FNPF contributions, interest, medical expenses and nursing care.

Cases referred to in Judgment
Attorney-General v Paul Praveen Sharma ABU 41/93
Wright v British Railways Board [1983] 2 AC 773

Adish K. Narayan and Haroon Lateef for the Appellant
Vijay Maharaj for the Respondent

Casey, Gallen, Byrne, JJA
On 9 November 1999 in the High Court at Suva Shameem J awarded Jai Raj (called "the Plaintiff") damages and interest totalling $443,317.22 for injuries he suffered as an employee of Flour Mills of Fiji Limited (FMF) when his hands and arms were caught in a new electrically-driven conveyor which he was installing at the top of a silo. His right arm required amputation above the elbow and he has been left with severe limitation of movement in his left hand and arm, his disability being assessed by a medical witness at 100% loss of working capacity. The Judge found negligence by the Defendant in failing to provide a safe system of work, and that there was no contributory negligence by the Plaintiff. The damages were made up as follows:

1)	Pain and Suffering/Loss of Amenities $	85,000.00
2)	Loss of future earnings	213,840.00
3)	FNPF	37,800.00
4)	Medical Expenses	52,315.22
5)	Cost of Nursing Care	5,400.00
6)	Interest on (1) and (2) for 12 months	14,942.00
7)	Interest on FNPF at 6% for 15 years	34,020.00
		--------------------
	TOTAL	$443,317.22

FMF appeals against the Judge's failure to find contributory negligence; and against the amount of damages she awarded for pain and suffering ($85,000), and for future economic loss ($213,840) and future FNPF contributions ($37,800); and also against interest awarded on loss of future earnings and on FNPF contributions. However, Mr Maharaj conceded that those two awards of interest were made in error. The Appellant abandoned a ground complaining that the Judge should have awarded on the special damages only 50% of the interest otherwise awarded. It also abandoned an application for an order that there had been an agreed settlement of the appeal.

The Plaintiff gave notice contending that the judgment should be varied, claiming at the hearing that the Judge had adopted too low a multiplier of 15 instead of 18 in calculating future economic loss; and that there had been a miscalculation of the amount awarded for future nursing care of $5,400, submitting that the correct amount should have been $23,400.

The Plaintiff was born on 6 October 1960 and was thus 38 at the time of his accident on 31 August 1998. He was employed by FMF as a maintenance supervisor and was instructed on 27 August to install the new conveyor, the work to be finished within three days. He had two fitters to help him and said that late on Monday 31st he needed about another three hours to finish the job. He put his hands inside the equipment to attach a part when it started without warning, having been activated by remote computer control, causing the injuries described above. There had been what was described as a manual test-run at about 5 pm under electric power when he was down below collecting stores and he said he knew nothing about this. The company had an isolation procedure for the cleaning, repair and maintenance of machinery, requiring the placing of a warning tag and locking device on the switch, but the Plaintiff thought this did not apply to the installation of new machinery.

Evidence was given by two of Defendant's managers to the effect that the work had been finished by the time the manual test had been held, at which the Plaintiff had been present. They said the Plaintiff had been issued with padlocks for the switch and had been expected to isolate the machine before working on it. One of them said he had directed that the remaining parts could be installed the following day, and in the Plaintiff's presence said there would be a computer test-run.

There was accordingly a fundamental conflict between the Plaintiff's version of these events and that put forward by the Defendant's witnesses. The Judge accepted the evidence of the Plaintiff and of his witness supporting his version, holding that he was not present at the manual test-run; that he did not know the machine had been energised and that there would be a computer test-run; that he did not hear the supervisor's instruction to pack up and go home; and that he did not consider the necessity to isolate the machine because it was new (as distinct from the repair of an existing machine), which to his knowledge had not been connected by the electricians. In the light of these findings we cannot see any basis for a finding of contributory negligence against the Plaintiff, and we are not persuaded by Mr Lateef's submission that an employee in his situation should still have checked whether there had been an electrical connection and isolated the machine. As Mr Maharaj pointed out, the managers themselves did not see fit to isolate it after the manual test, and it can hardly be suggested that a higher standard of care for his own safety should be expected of their subordinate. Accordingly we are satisfied the Judge was right in her finding that there was no contributory negligence.

The accident itself was a shattering experience, and the Plaintiff was unconscious for three days after being taken to hospital, where he remained until 1 October. The right arm was amputated and he was in plaster for a month and on medication for constant pain, undergoing frequent trips to the theatre for surgical attention to both arms. Movement in the left arm and hand is very limited and the prognosis is uncertain, but it was said in the hospital report that he might benefit from extensive rehabilitative therapy, and that he will probably benefit from a prosthesis for his right arm. The Judge noted that he had been a keen sportsman and is now largely inactive and dependent upon his wife for the simplest tasks; that his sexual relations with her have deteriorated and that he is embarrassed to go out. He continues to suffer pain.

All this presents a picture of a previously fit active man, highly regarded as a skilled tradesman with an assured and satisfying future, who has been reduced to frustrated invalidity. The Judge referred to other awards in Fiji involving serious injuries, but there are apparently none on all fours with this case, and in any event they could only be general guidelines and not definitive of what is appropriate here. It is well established that the assessment of general damages for pain, suffering and loss of enjoyment of life is not capable of precise measurement. The injuries suffered by the Plaintiff were grievous and the effect on his life is catastrophic. A very substantial award was called for and we see no reason to disagree with the amount of $85,000 fixed by the Judge.

The Plaintiff received his full salary to the date of trial so there was no question of past economic loss. By arrangement equivalent payments were made to him pending the appeal, and it was accepted by counsel that there should be no statutory interest awarded on the amount of the judgment between the date thereof and the date of the appeal, this being treated as offset by those payments.

In her judgment Shameem J noted that the Plaintiff was 39 and will never be able to work, and at the time of his accident was earning $18,000 gross ($14,256 net) annually. Taking the conventional approach to the calculation of a present lump sum in respect of future loss of earnings, she thought a multiplier of 15 was fair, given his age and the good prospects of employment as a machine fitter before the accident. Multiplying the net annual wage by this figure, she arrived at the sum of $213,840 awarded under this heading. We were informed that this figure could not have included the Plaintiff's contribution to FNPF which, along with the employer's contribution, was the subject of a separate calculation using the same multiplier of 15, to arrive at the $37,800 awarded under that heading of damages.

Mr Narayan advanced detailed calculations in support of his submission that the Judge had been too generous in adopting a multiplier of 15, and referred to cases involving Plaintiffs of comparable age where appreciably lower figures had been adopted. We were supplied with the latest Gazette notice showing increases in the rate of annual inflation, and with Reserve Bank figures of long term Government Bond rates. We do not find it necessary to explore their significance as they tend to balance each other out when it comes to arriving at the appropriate lump sum, to be exhausted by monthly drawings of the present salary for the duration of the Plaintiff's expected working life. The Appellant's criticism of the Judge's calculations is based on its assumptions that the Plaintiff had a working life of only 16 years until he reached the age of 55, when he will be entitled to draw FNPF benefits; and that his wages would have remained the same until he retired.

We are satisfied that these assumptions are not well-founded. The evidence makes it clear that he was a highly regarded tradesman with excellent references from his previous employers and was on the salaried staff of FMF with seven fitters working under him. He could obviously have expected increases in salary, and in all probability would have earned promotion to a higher position with the Company. Or he could have found other more lucrative employment, with his qualifications and experience. These are developments which can be inferred as a matter of everyday experience, having regard to the Plaintiff's background and accomplish-ments. Similarly it can be inferred that he would have been quite unlikely to stop work at 55, and would have had many more years of satisfying work ahead of him in well-paid and responsible work. These factors lead us to the conclusion that the Appellant's submission of a multiplier of 10.27 (producing a lump sum of $159,346) is too conservative. There must be some allowance for the vicissitudes of life, although there is no warrant for thinking that these will outweigh the otherwise bright economic future this man had before him, but this consideration leads us to reject the Plaintiff's contention that the multiplier should be 18.

It is plain from the cases in this field that the ascertainment of an appropriate sum to take account of all the possibilities affecting a Plaintiff's earning capacity is a matter of experienced judgment with no hard and fast rules or expectation of mathematical certainty. In the light of the factors outlined above, we think Shameem J got it about right in her calculation of loss of earnings, and we dismiss that ground of appeal. However, we consider her multiplier was too high in the calculation of the FNPF lump sum, where the period of contributions would only have been for 16 years until Plaintiff reached age 55, and we accept Mr Narayan's submission of 10.27 as a multiplier of $210 per month (representing employer and employee contributions), yielding a lump sum of $26,000 (rounded up) in place of the $37,800 fixed by the Judge.

(1) Medical Expenses There was an award of $52,315.22 under this heading, but the Plaintiff was given leave to adduce evidence of a rise in cost of $2500 since the date of trial, and the amount is accordingly increased to $54,815.22.

(2) Cost of Nursing Shameem J accepted that the Plaintiff's wife was entitled to compensation for nursing him, resulting in her losing earnings of $30 per week as a baby-sitter. Applying a multiplier of 15 to this figure (but apparently mistakenly treating it as her monthly earnings) the Judge arrived at a lump sum of $5,400. Counsel agree that this calculation was wrong. Mr Narayan submitted that a proper calculation based on a period of 16 years called for a multiplier of 10.27 of $120 per month, yielding $14,788. On the other hand Mr Maharaj pointed out that the need for nursing would not stop after only 16 years, and either she or a paid helper would be needed to look after her husband for the rest of his life. Accordingly he contended that the higher multiplier of 15 selected by the Judge was appropriate and we agree. We increase the allowance for nursing to $23,040 as calculated by him.

(3) Interest on FNPF award The Judge fixed interest at 5% on the amount awarded for pain and suffering etc and loss of future earnings from the date the writ was issued until the date of judgment; and at 6% on the award for FNPF contributions over 15 years. Both sides agree that these awards cannot be justified. As explained in Attorney-General v Sharma FCA 41/93, such awards of interest are made to compensate for moneys wrongly withheld, but this could hardly be the case with items in the nature of general damages before the amount is known, citing to this effect Wright v British Railways Board [1983] 2 AC 773. Accordingly the amount of $14,942 in item (6) for interest on the damages must be set aside.

Shameem J justified interest for 15 years on the lump sum for lost FNPF contributions by holding that in receiving the award now, the Plaintiff would lose his interest entitlement due to him at age 55. With respect, this appears to negate the discount needing to be made to the total periodic payments, to reflect the fact that the Plaintiff is receiving them in advance. She also seems to have overlooked his ability to invest the amount now to earn interest, thereby compensating for the loss envisaged in the judgment. We agree with counsel that this interest of $34,020 in item (7) must also be deleted.

1 The appeal and the Respondent's notice to vary the Judgment are allowed in part, and the Judgment is varied by

(a) Substituting $26,000 for loss of FNPF contributions instead of the $37,800 awarded.

(b) Substituting $54,815.22 for medical expenses instead of the $52,315 22 awarded.

(d) Deleting the awards of interest of $14,942 and $34,020 in items (6) and (7) of the damages summary.

2 As the Respondent has succeeded on the main issues in the appeal he will have his costs in this Court of $2500 together with disbursements to be fixed by the Registrar if the parties cannot agree.

Fiji Law Reports

Flour Mills of Fiji Ltd v Raj [2001] FJLawRp 40; [2001] 1 FLR 196 (24 May 2001)