IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 6/10

TOMASI RABUKATOKA SERU 
of Ovea, Bau, Tailevu in Fiji, Carpenter.
[Plaintiffs]

And

KAITEX CONSTRUCTION LIMITED 
a limited liability company having its registered office at Nadera, Nasinu in Fiji.
[Defendant]

Ms. Swastika Narayan for the Plaintiff
The defendant is absent 

Judgment

01] This is a personal injury case where the Plaintiff has filed his case by way of writ of summons. The Defendant filed statement of defence asking that the claim be dismissed. The Plaintiff filed reply o the statement of defence. However the defendant was absent for considerable period of time and case was formally proved on 29-11-2011. The Plaintiff filed their submission and claimed;

(a)	 Special damages

(b)	 General damages

(c)	 Interest

(d)	 Costs

(e)	 Claim limited to $50,000.00

(f)	Such other relief as the Court deems just and equitable in the circumstances.

02] At the hearing the Plaintiff called two witnesses. 

•	1st witness Dr. Alipate Natoba

•	2nd witness Tomasi Rabukutoka Seru

03] The witness was a medical doctor. He is a Doctor and Surgical Registrar at CWM Hospital, currently based at Surgical Registry. He has been based at CWM Hospital since 2008. Prior to that, he was based at Labasa Hospital since 2005. The witness explained that his job at CWM Hospital include administration work, checking of patients, preparing of medical reports, carrying out operations and surgeries and also liaising with consultants about treating patients. The witness admitted that he had reviewed the Plaintiff in the fracture clinic in December 2009.

04] The expert doctor explained the medical reports relating to the Plaintiff's injuries:

•	Medical Report dated 3rd November 2009 prepared by Dr. Bauro Tematang. This document was tendered as Exhibit A.

•	Medical Report dated 17th December 2009 prepared by Dr. Vaigalo McCaig. This document was tendered as Exhibit B.

•	Medical Report dated 27th July 2010 prepared by Dr. Vaigalo McCaig. This document was tendered as Exhibit C.

05] As a Medical expert, he gave evidence that as far as future effect of the injuries such as that was suffered by the Plaintiff were concerned, with regard to laceration on the Plaintiff's head, it would have healed over time. In regard to the fracture on the left arm, he stated that the Plaintiff is likely to have pain which can also develop into chronic pain which may result in the Plaintiff not being able to use that fractured arm later on.

06] Thereafter the Plaintiff gave evidence on oath. He said that he was working at the Salvation Army building near Peninsula Hotel,Suva which work was assigned to him by the Defendant Company during the course of his employment. The last time he worked for the Defendant Company was on 7th September 2009. He was engaged in carpentry work with the Defendant at the said venue. He was fixing noggin on the roof by standing on the wooden plank that was of 4" x 2" in thickness, which was placed across with one end of the said timber resting on the cement blocks and the other end resting on the window seal. It was approximately between 10.00 am and 11.00 am when the incident happened. He was working at a height of 17 feet from the ground floor. The plank broke and he fell 17 feet down on the cement floor.The Plaintiff said that he sustained severe injuries as follows:

•	Open wound to his head and he had a heavy blood flow;

•	He couldn't lift his left arm;

•	Dislocation to his back.

07] This evidence clearly corresponds with the medical evidence given by the Doctor, 1st witness. He stated that he was not working alone on that day. There were 4 of them; however, they were working separately. A Fijian boy was working on the roof with him and they were sharing the plaint to stand on. He was unconsciousness at the time of the injury and gained consciousness on the way, while being taken to the hospital. After the injury, he was taken to CWM hospital in a taxi and he was taken directly into the recovery room where his clothes were changed, the wound on his head was cleaned and stitched by the nurses, he was given painkillers and injection and was taken in the surgery ward. He was admitted for 5 days. On the 2nd day of his admission at the hospital, his left arm was x-rayed and plastered. Whilst being admitted, the dressing on the head was being changed daily, he was put on drips and was being given painkillers on regular basis. He was discharged on 11th September 2009 and was brought home by his wife in a taxi. His taxi fare for the trip was $4.50. He gave evidence that he was not able to attend to his personal needs on his own and required assistance at all material time. While at hospital, his wife and son used to be with him all the time to provide assistance and help in whichever way he needed, including having shower and taking food. When he was discharged, same thing applied, he was fully assisted by his wife and son all the time and took continuous bed rest for 3 months, until he had substantially recovered. Since being discharged, he continued to go to hospital for reviews and check ups for 1 complete year. He was called for reviews twice every month for 3 months, that is until the plaster on his arm was removed and then at longer intervals after that. He was later admitted in hospital again on 22nd June 2010 for 2 days. This was relating to further treatment of his left arm. He underwent another surgery whereby steel plates and 7 u-bolts were implanted to his left hand.

08] The Plaintiff explained the damages. While travelling to and fro hospital for reviews, his wife took care of his transportation and medical expenses and expenses for food and other basic amenities.

09] The Plaintiff tendered documentary evidence. The following documents were tendered as evidence in Court as follows:

•	Medical Certificate dated 13/5/10, tendered as Exhibit D

•	Discharge from Hospital dated 24/6/10, tendered as Exhibit E

•	Discharge from Hospital dated 11/9/09, tendered as Exhibit F

•	Revenue Receipt dated 14/9/09, tendered as Exhibit G

•	Photographs of the scene where the incident had occurred and of the Plaintiff, tendered as Exhibits H1 to H4

10] The Plaintiff explained his capacity to earn before the incident. He stated that when he was employed, his gross income was $112.00 per week. He had FNPF deductions of $8.96 per week and was earning approximately $103.05 per week as net earnings. After the injury, he was paid $74.65 per week for 11 weeks only, which is 2/3 of his normal income, a reduced sum compared to his normal earnings. His 12th weeks pay was not given to him and remains pending to date. His pay packets were tendered as evidence in Court as Exhibits J1 to J11. The Plaintiff gave evidence that had he not been injured, he would have continued to work. It was due to the injuries he sustained in September 2009, that he was unable to work anymore and he relied on his own earnings for his daily survival. He also stated that the planks that he had used at work was supplied by the Defendant Company and was authorized by the Defendant Company to be used in place of scaffoldings. He stated that it was the Defendant Company's responsibility to ensure that all safety measures were taken at work.

11] The Plaintiff request the safety requirements but the defendant company failed to provide those requirements. As part of safety requirements, the Plaintiff stated that he was only provided with safety hats at work with no straps whatsoever and no other equipment, harness or boots. The Plaintiff stated that he was almost 62 years old now. He had 20 years of experience as a Carpenter and always knew that steel scaffolding were required in the nature of work he was assigned by the Defendant Company, but he had no choice due to the strict directives he was given from the Defendant Company. He stated that he would have certainly used the scaffolding had it been provided. He also informed the Court that the injuries he has sustained would have been avoided if scaffolding was provided as the injuries were solely caused due to the reason of having being provided with the wooden plank to stand on in place of scaffolding which was more proper for the work assigned.

12] The Plaintiff also gave evidence that he currently continues to suffer as follows due to the injuries sustained:

•	Headache in cold weather and has blurred vision because of the injury on the head;

•	Not able to work with his left hand like before;

•	Not able to lift heavy objects with his left hand;

•	Cannot fully stretch his fingers on the left hand;

•	Pain in left hand in cold weather;

•	Not able to fully stretch his left hand.

13] He takes painkillers to relieve pain now, he carries painkillers with him all the time nowadays.

14] With regards to special damages the Plaintiff gave evidence that he claims following as special damages from the Defendant:

•	Costs for medical report (3 x $5.00) - $ 15.00

•	Costs for transportation - $300.00

•	Costs for medicines - $700.00

15] In addition, he also claims against the Defendant damages for pain and sufferings, loss of amenities, loss of future earnings, loss of domestic and nursing care, loss of FNPF Contribution, loss of interest on FNPF and interest on damages.

16] The Plaintiff was a Carpenter seeking for compensation and damages for personal injuries suffered as a result of accident arising out of the course of his employment.The Defendant is a limited liability company having its registered office at Nadera, Nasinu in Fiji.

17] The Plaintiff evidence shows that the Defendant Company;

(a)	Failing to ensure the safety of the Plaintiff or to have regard for his personal safety at all material times.

(b)	Failing to provide steel scaffold for the Plaintiff to stand on when working above the ground.

(c)	 Failing to provide safety harness that in the event the Plaintiff fell he would not have sustained injury.

(d)	Failing to check the wooden planks whether it was strong to stand on before allowing the Plaintiff to carry out his work.

18] As a result of this negligence the Plaintiff fell down and he suffered;

(a)	A closed fractured left ulna (left hand)

(b)	Scalp lacerations

19] Apart from those instant injuries, he is suffering long term illness such as;

(a)	His left bone has become weak;

(b)	He suffers from constant headaches;

(c)	He is unable to do any heavy work with his left hand;

(d)	He experiences pain in the left hand when the weather is cold;

(e)	He is unable to work as a carpenter anymore due to the fracture of his left hand.

20] The Expert evidence proves plaintiff's long term illnesses. As the Plaintiffs injuries arose from the negligence of the Defendant, the Defendant are liable to compensate him. I hold the Plaintiff prove his case on balance of probabilities. By reason of the incident, the Plaintiff has suffered loss and damage, pain and suffering and Loss of Amenities of Life. The Plaintiff is unable to do many of the things he used to do before the accident.

21] In Baleiwai v Attorney General of Fiji (2002) FJHC 274, Byrne J stated that:

"There is no longer any mystery about the legal liability of an employer to its employees who suffer injuries during the course of their employment. The law may be stated simply thus:

It is the duty of an employer to provide and maintain work premises in as safe a condition as reasonable care by a prudent employer can make them".

He continued to say that:

"Fortunately eventually good sense prevailed and now we have Factories Acts and other legislation which emphasis the need for an employer to provide safe working conditions. I will conclude my obtain of cases with the remark of Lord Oaksey in General Cleaning Contractors Ltd v Christmas (1953) A.C.180, 189 who said:

"Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger, and in circumstances in which the dangers are obscured by repetition".

22] I now deal with the Quantum of Special Damages. This covers actual economic loss, out of pocket expenses including medical and travel expenses. For medical expenses, the Plaintiff claims the costs of medication, the medical reports and transportation costs in the period involving his medical reviews in the sum of $1015.00 as per the up to date Schedule of Special Damages.

Particulars of Special damages for the Plaintiff

Medical and Transport expenses	 - 	$300.00	
Medical report from CWM Hospital	-	$ 5.00	
Medicines	-	$700.00	
Crutches	-	$ 45.00	
Total	-	$1050.00	

23] Special damages:In this case, the Plaintiff has not produced any bill or cost involved. But no matter that the plaintiff has visited and spent money several times to cure his aliment caused by this accident. The receipts of hospital bills are not sine qua non to award special damages. If the court is satisfied that the plaintiff has paid or spent money, then special damages could be granted. In Narendra Kumar v Sairusi Drawe 36 FLR at page 95, his Lordship Justice Palmer enunciated "Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts". Thus, I grant Special damages of $1050 as the Plaintiff mentioned in the claim. 

24] Due to this accident the Plaintiff received Loss of Earnings. As for economic loss, the Plaintiff claims that he has since the accident, been unable to work because of his injuries and that except for the immediate 11 weeks after the accident when he was paid 2/3 of his wages, he has not found any employment. The Plaintiff is claiming the following as loss of earnings.

•	1/3 lost wages for 11 weeks:
$37.33 (1/3 of $112.00 per week) x 11 weeks = $410.00 (Gross earnings)
Net Earnings (less FNPF) would be $377.20

•	$112.00 (per week) for rest of the weeks until 29th November 2011:
$112.00 x 105 weeks = $11,760.00 (Gross earnings)
Net Earnings (less FNPF) would be $10,819.20

•	Total loss of salary or earnings until the day of hearing $11,196.40 (Net Earnings)

25] Not only that he said that he received Loss of FNPF Contributions. The Plaintiff is also entitled to FNPF Contributions on the lost income since the date of the injury and we submit that his loss of FNPF Contributions be calculated as follows:

Employees Contribution:

•	8% x $410.00 = $32.80 (on 1/3 wages for 11 weeks)
•	8% x $11,760.00 = $940.80 (on full wages for 105 weeks)

Employers Contribution

•	8% x $410.00 = $32.80 (son 1/3 wages for 11 weeks)
•	8% x $11,760.00 = $940.80 (on full wages for 105 weeks)

Total Loss of FNPF Contributions (inclusive of employer and employee's contributions) = $1,947.20.

26] The Plaintiff can claim Loss of Interest on FNPF. 

Interest at 8% per annum on FNPF Contributions:

•	8% x $32.80 (11 weeks FNPF on lost income) x 2 = $24.81
•	8% x $940.80 (105 weeks FNPF on lost income) x 2 = $74.55

Total loss on interest on FNPF is $99.36

27] General Damages: I now turn to General Damages. The Plaintiff is entiled to claim damages on Pain & Suffering and Loss of Amenities of Life. Compensation under this head takes into account of the past, present and future plan and suffering and loss of amenities.

28] In Heaps v J. Perrite (1937) 2 ALLER 60, Greer LJ said:

"we have to take into account not the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future"

29] In In Moce v Racule (1995) FJHC 198, it was stated that:

"As stated in Kemp & Kemp (Vol. 1 p. 2007 – 010):

"….the Court must take into account, in making its assessment in the case of any particular Plaintiff, the pain which he actually suffered and will suffer and the suffering which he has undergone and will undergo. Pain and suffering are not measureable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular Plaintiff's clearly have a significant effect upon the assessment of damages". As stated in Kemp & Kemp, The Quantum of Damages (Vol 1 loose leaf Edition p. 1009, 1 – 008):

"There is a head of damage which is sometimes called the loss of amenities, the man made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed and will never again go upon his walking excursions – things of that kind – loss of amenities". (Per Birkett LJ in Manley v Rugby Portland Cement Co. Ltd (1995) C.A. No. 286.

"This head embraces everything which reduces the Plaintiff's enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the loss of amenity. What matters is the fact of deprivation of an amenity or amenities, not whether the injured person is aware of such deprivation…"

30] The disability and symptoms of the Plaintiff is ongoing. His social, leisure and domestic pursuits have been affected. The Plaintiff is entitled to General Damages from the Defendants under the following heads:

(a)	Pain and suffering 

(b)	Loss of amenities

(c)	Loss of earnings

(d)	Loss of future earnings

(e)	Cost of domestic and nursing care

(f)	Loss of FNPF Contribution

(g)	Loss of FNPF Interest

31] I consider the risk the Plaintiff had borne whilst carrying out his duties at the construction site and the duty of care the Defendant Company owed to the Plaintiff which it failed to honor and based on the above award the Plaintiff General Damages for Pain and Suffering plus Special Damages as pleaded.

32] On that basis, I make following orders;

a)	Pain & Suffering and Loss of Amenities of Life $ 30,000.00

b)	Interest at 6% per annum (from 11.2.10 to date) 

c)	Special Damages $ 1,015.00

d)	Interest at 4% on Special Damages (from 7.9.09 to $ 90.57

e)	Loss of Earnings and Future Earnings $ 11,196.40

f)	Loss of FNPF Contributions $ 1,947.20

g)	Loss of Interest on FNPF Contributions $ 99.36

h)	Costs $ 2,000.00( Summarily assessed) 

i)	The original statement of defence is hereby dismissed. 

j)	But all claim is limited to $50,000

33] Judgment to be entered accordingly.

On 04st December 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu