Saladoka v Attorney General of Fiji [2005] FJMC 15; Workmen's Compensation No 12 of 2003 (25 October 2005)

IN THE FIRST CLASS MAGISTRATES COURT
WESTERN DIVISION AT LAUTOKA

WORKMEN’S COMPENSATION NO. 12 OF 2003

LAVENIA SALADOKA
APPLICANT

V

ATTORNEY GENERAL OF FIJI
AND MINISTRY OF WORK AND ENERGY
RESPONDENT

For the Applicant: Mr S. Krishna
For the Respondent: Miss Moni Ajala

Date of Hearing: 11/05/05, 15/09/05
Date of Judgment: 25/10/05

JUDGMENT

The applicant is the widow of the deceased Iliesa Derogo Saladoka who died on 05/05/96 at Lautoka Hospital. The deceased was employed by the Ministry of Works and Energy (Public Works Department – PWD) as a Senior Technical Assistant in the Hydrology Section. On 01/05/96 the deceased collapsed at his office at PWD Lautoka and he was taken to Lautoka Hospital and he went into a coma and remained in that condition until his death on 05/05/96. At the time of the death the deceased was 50 years old and the cause of his death was described as Cerebrovascular Accident, Hypertension. At the time of the death the deceased was paid a gross fortnightly salary of $344.15.

The applicant was married to the deceased and they have 3 children, 2 daughters namely Ema Savere and Merelini Tio aged 25 and 24 respectively and a son Sikeli Malo aged 22 years as at 17/07/03.

Before I discuss the issues regarding this application I wish to discuss some matters regarding the applicant’s attempt to seek assistance from the Ministry of Labour with respect to this application. The applicant went to the Ministry of Labour immediately upon the death of the deceased to lodge an application for a claim under the Workmen’s Compensation Act. She provided them with all the necessary informations and material and the Ministry of Labour did not take any action until July 2002 when she sought assistance from her solicitors Messrs Krishna & Co. By this time the limitation period (6 years) had expired and therefore Messrs Krishna & Co. had to seek leave to file this claim out of time and leave was granted by my brother Magistrate Mr Penaia Samusamuvodre on 11/07/03.

In her affidavit dated 30/06/03 the applicant deposes that she asked the Ministry of Labour to give all her documents to her solicitors but the Ministry of Labour refused to do so. It only released a document called LD Form C/1 which is a notice by the employer of the accident to the Permanent Secretary of Works. It refused to release all the documents including the investigation report as it claimed that all documents were confidential and were only for their use. I find this proposition to be very absurd as at that point in time the Ministry of Labour was acting on behalf of the applicant and as such she was entitled to copies of all the documents.

This application was filed on 17/07/03 with a returnable date of 06/08/03 and the Attorney General’s Office filed an answer to the application on 10/11/03 and also filed a skeleton submissions challenging the validity of the application as it was filed after a period of 6 years. I am not called upon to make any determinations on this issue as the same has been determined by my colleague Mr Samusamuvodre, however, I only wish to make one comment that the Attorney General’s Office should not be complaining as the claim became statute barred because of their inaction.

This matter was set down for hearing on 11/05/05 when Ms Moni Ajala of counsel from the Attorney General’s Office sought an adjournment for two reasons. Firstly, she said that she was only given the file two weeks ago and secondly, she did not have her witness namely Dr Vinod Singh who was a consultant physician working at Lautoka Hospital and who has since migrated. I refused to grant an adjournment and the trial proceeded. After the applicant’s evidence in chief she was then cross examined by Miss Ajala. During her cross examination it transpired that Ms Ajala was cross examining her on a statement that she gave to the Ministry of Labour on 09/07/96. At that stage I stopped her from cross examining the applicant and I made comments that it was highly unethical of the Attorney General’s Office to act in this matter. I adjourned this case to 25/05/05 to enable Ms Ajala to consider her position and I also said that I will give a considered ruling on this issue after I have heard both parties. On 25/05/05 neither Ms Ajala nor anybody else appeared on her behalf and there was no appearance of the respondents. I adjourned the matter to 31/05/05 and I asked my Senior Court Officer to write to the Attorney General’s Office and find out the reason for their non appearance. On 31/05/05 Ms Ajala appeared and agreed that her office had a conflict of interest in this matter and sought an adjournment for one month. I adjourned the matter to 28/06/05 for mention only. On 28/06/05 Ms Ajala appeared and informed me that she was seeking a hearing date and that she had advised PWD to seek separate representations. I adjourned this matter to 09/08/05 for hearing strictly on the basis that the Attorney General’s office will not be allowed to represent the respondents and that this matter will proceed on to hearing on that day. On 09/08/05 I was taken ill and the matter was adjourned to 15/09/05 for continuation. On both 09/08/05 and 15/09/05 the respondents did not appear and also there was no appearance on their behalf from the Attorney General’s Office or any other solicitors. On 15/09/05 I took the remaining evidence in this case.

I hope that this kind of situation does not ever arise again. In a case like this when a person seeks assistance of the Ministry of Labour they are in my view obliged to act in a very professional manner in giving the services. Amongst other things they should do as follows:

1. Give a written opinion of the applicant’s chances of success;
   
2. They should also inform the applicant of the limitation periods;
   
3. They should also inform the applicant of whether he or she is entitle to seek an additional claim under the common law principle for damages over and above the amount paid under the Workmen’s Compensation Act.
   

What I find most disturbing in this case is that the counsel from the Attorney General’s chambers was cross examining the applicant on her own statement. That was obviously the worst possible case of conflict of interest. The Attorney General’s chambers should not have played any part in this case. This is indeed an embarrassing situation for them and all this embarrassment could have been avoided by briefing this matter out.

THE CLAIM

The claim is made pursuant to Section 5 (1) of the Workmen’s Compensation Act which reads as follows:

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, as accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connection with his employer’s trade or business."

The onus is therefore on the Applicants to prove the following three essential elements of their claim:

i. "that the workman suffered personal injury, i.e. physiological injury or change, by accident;

ii. that the injury arose out of the employment;

iii. that the injury occurred in the course of employment."

The applicant’s "have to prove their case, that is to say, they must show with reasonable clearness that the accident did actually come from the employment" (Hawkins v Powell’s Tillery Steam Coal Co. Limited [1911] UKLawRpKQB 38; (1911) 1 KB 988 at page 995 per Fletcher Moulton L.J.)

The deceased was employed by PWD from 1976 to 1996. He worked at various places. Between 1976 to 1979 he worked at Monasavu under very extreme and rough conditions and between 1979 to 1994 he was based at PWD’s office at Lautoka and was required to travel to the interior of Ba. He worked very long hours. He used to leave home at 5 am and return home at 11pm and he used to feel very tired as a result.

In 1984 the deceased was transferred to Labasa and again he was required to travel to the interior of Labasa and he would leave home at about 6 am and return home at around 10pm and these long hours used to make him very tired. In 1990 he suffered a stroke at Labasa and his superior officers knew about this. He continued to work in Labasa till 1994 when he was transferred to Lautoka.

He was promoted to the position of Senior Technical Officer. If he was working in the office then he would leave home at 6 am and returned home at 5 pm and if he was required to go out in the field then he did not come home until after 9 – 10pm. On an average he used to do field work for 3 days a week and again the applicant’s evidence is that he used to come home very tired and was constantly complaining about his work load.

Dr Ponnu Swamy Gounder gave evidence on the basis of the cause of the death as contained in the death certificate. He elaborated on the cause of the death. He said that Cerebrovascular is the hemorrhage in the cerebrum and the accident in the brain is the hemorrhage of the brain which could be caused by rapture of blood vessels and the rapture of the blood vessels can be caused as a result of hypertension. He said that there were many reasons why a person had blood pressure. He said that first is the primary high blood pressure where the causes are not known and then there is the secondary high blood pressure which is caused as a result of constrictions of the blood vessels or obesity or kidney damage and lifestyle such as work stress and combination of long hours. He said that given the kind of work that the deceased was doing including the long hours of work could cause the high blood pressure to rise.

The deceased died as a result of cerebrovascular accident. It is unclear as to what the deceased was doing at the time he collapsed at work. He was taken to Lautoka Hospital by his colleagues and when admitted he was in a coma and remained in that condition till his death on 05/05/96. The deceased suffered from a minor stroke in 1990 and his condition was known to his superiors. Dr Ponnu Swamy said that the kind of work the deceased was doing would alleviate his high blood pressure and he also said that cerebrovascular accident is caused by high blood pressure so the physical change in event which eventually caused the death of the deceased at his work place is the elevated high blood pressure which caused the cerebrovascular accident. For the purposes of Section 5(1), injury is to be taken to have arisen out of employment if the employment contributed casually to its being suffered. (Whittle – v - Ebbw Vale Steel, Iron & Coal Co. Ltd (1936) 2 All E.R 1221).

I therefore find that the injuries arose out of the employment and that the injury arose in the course of the employment.

I find that the applicant has discharged the burden cast upon her and I further find that the applicant was totally dependant on the deceased for financial support. Under Sections 3 of the Workmen’s Compensation Amendment Act 1994 I make an order for compensation in favour of the applicant in the sum of $24,000.00 against the respondent.

I am unable to award any interest on the sum of $24000.00 . Mr Krishna has relied on the case of Fiji Sugar Corporation Limited, Labasa – v- Labour Officer for Mom Wati (wife) Malini Sandhya (daughter) and others Civil Appeal No. 0005 of 1993 a decision of Pathik J. I note that Pathik J relied on the cases of Maganlal Brothers Limited - v - L B Narayan & Company, Civil Appeal 31/84 FCA, Jai Prakash Narayan - v - Savita Chandra, Civil Appeal 37/85. The case of Jai Prakash (supra) refers to Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 which is the enabling section and which reads as follows:

"In any proceedings tried in the Supreme Court for the recovery of any debt or damages the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

Provided that nothing in section –

1. shall authorize the giving of interest upon interest; or
   
2. shall apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement or otherwise; or
   

100. shall affect the damages recoverable for the dishonor of a bill of exchange".
     

The "Court" referred to in Section 3 above is the Supreme Court (now the High Court). Unfortunately Section 3 does not make any reference to the Magistrates’ Court. So notwithstanding the decision of Pathik J and with all due respect to him I am unable to make any award for interest.

I award costs to the applicant in this matter. I have no intention of having the cost taxed as it is a very cumbersome process and does not bring matters to finality. Having perused the file and having taking into account the numerous appearances by the applicant’s solicitors and the adjournments that were granted as a result of the Attorney General’s chambers conflict of interest which was not the fault of the applicant and I summarily assess cost in the sum of $3,000.00

[Mohammed Shafiullah Khan]
Resident Magistrate