Chand v Dutt [2008] FJSC 47; CBV0005.2007S (28 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CBV0005 OF 2007S
(Fiji Court of Appeal No. ABU118 of 2005S)

BETWEEN:

SATISH CHAND
Petitioner

AND:

RAM DUTT
First Respondent

AND:

LABASA TOWN COUNCIL
Second Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Friday, 22nd February 2008, Suva

Counsel: A Sen for the Petitioner
A Ram for the First and Second Respondents

Date of Judgment: Thursday, 28th February 2008, Suva

JUDGMENT OF THE COURT

[1] The petitioner was injured in the course of his employment with the second respondent, the Labasa Town Council, when a fire he was tending flared up. The fire was in an open-sided shed. There was a pit, approximately one foot deep and three feet wide, above which were two strips of iron on which were placed the two halves of a 44 gallon drum containing tar. The drums were heated up to 360 degrees centigrade.

[2] The system of work required the petitioner to tend this fire by feeding it with charcoal and pieces of timber from the open end of the pit.

[3] The fire had died down and the petitioner was instructed to stoke it up. We infer that the instruction was from the first respondent, his foreman.

[4] The petitioner said that he pushed in pieces of timber and charcoal, using his hands for the timber and a spade for the charcoal. After he pushed in a long piece of timber from a distance of about three feet from the fire, it flared up causing his socks and overalls to catch fire resulting in substantial injuries.

[5] He was treated in hospital for flash burns to his hands and right leg. He was unable to return to work for some time, but eventually returned to light duties and then to full duties. He was paid a part salary while off work and he made a claim for the balance of his wages, as well as damages for his inability to attend to his farm, damages for pain and suffering and damages for ongoing disabilities.

[6] It was common ground that the petitioner had been provided with safety boots, overalls, leather gloves and a mask. There was no hose or fire extinguisher in the shed, but there were no findings as to whether they would have reduced the extent of the injuries.

[7] Duty of care was not in issue. However, the claim failed in the High Court because there was no evidence as to what caused the fire to flare up suddenly. There were various possibilities, but only some of them could arguably be suggestive of want of care on the employer’s part. Coventry J held that it was not acceptable to speculate on such matters, and found that the fact of the flaring up did not speak for itself as showing negligence. On the evidence, this system of work had been in use for 35 years or so, without occasioning injury to any worker.

[8] The claim failed because the Judge was not satisfied on the probabilities that the accident was the result of negligence on the employer’s part.

[9] The Court of Appeal dismissed an appeal raising issues as to Rylands v Fletcher (1868) LR 3 HL 330 and invoking the principles of res ipsa loquitur ("the thing speaks for itself").

[10] No costs were awarded in the Court of Appeal because it was found not unreasonable for the appeal to have been brought and that it would be burdensome for the appellant to have to pay his employer’s costs.

[11] The petition to this Court was filed on 9 February 2007. By letter dated 27 February 2007 the Registrar notified the petitioner’s solicitors that security for costs was fixed in the sum of $1,200.00. The petitioner was given 28 days to pay the security.

[12] Since that time no steps have been taken to prosecute the petition. The Acting Registrar has certified non-compliance with the conditions of petition imposed by the Rules, namely security for costs not paid (see Supreme Court Rules, rr 7 and 20).

[13] The matter was placed in the list for mention with a view to the Court ordering the petition to be struck out for want of prosecution if so minded (Supreme Court Rules, r 19). The petitioner countered with a notice of motion seeking waiver of the security for costs and costs for record. His supporting affidavit discloses that workers compensation has been withheld and that this is the reason he could not make the payment. The petitioner is currently employed as a labourer and has to support his wife and school-aged children. He has been unable to obtain financial assistance to prosecute the appeal. His solicitor is acting pro bono.

[14] The petitioner’s lawyer, Mr A Sen, strongly pressed this Court to excuse non-compliance and to permit the petition to go forward for hearing. He properly accepted that the Court could have regard to the petitioner’s prospects of obtaining special leave. Both parties addressed the Court on those prospects.

[15] Mr Sen pointed to the size of the fire, the absence of a guard, and the presence of tar which he said was dripping out of the drum. But at the end of the day he admitted that the petitioner did not know what caused the fire to flare up. He contended that this placed the petitioner at an extreme disadvantage, but he accepted (as he must) that the onus of proof rested upon the plaintiff.

[16] The case does not appear to have been fought at trial upon the basis of negligence in the failure to give instruction on the safe method of stoking this fire. In so observing, we are not suggesting oversight, because this was not a complex task and the risks of getting burnt were obvious (see Electric Power Transmission Pty Ltd. v. Cuiuli [1961] HCA 3; (1961) 104 CLR 177 at 180-1). As indicated, the petitioner had been provided with protective clothing.

[17] We detect no error in the principles applied by the trial Judge and the Court of Appeal. There were and remain two central difficulties in the petitioner’s path: he cannot point to evidence showing what happened to cause the fire to flare up; and in any event, he has not adduced evidence to show what a reasonable employer would have done or refrained from doing in the circumstances.

[18] Occasionally, a tribunal of fact can apply its own knowledge of human affairs in arriving at a conclusion that a particular act or omission was negligent. But in most situations (the present included), the plaintiff must adduce evidence on the issue. That evidence may be from an expert who, by study and/or experience, is familiar with the task at hand and with the availability of measures that would reasonably eliminate the risk of injury. Or it may consist of lay evidence about the general practices of this or other employers in the task at hand (see generally Vozza v Tooth and Co. Ltd. [1964] HCA 29; (1964) 112 CLR 316). There is a fuller discussion of these principles in the reasons of the Court of Appeal in this matter (Chand v Dutt and Anor, ABU 118 of 2005, 24 November 2006).

[19] For these reasons, we are not disposed to waive the Rules or to exercise our discretion not to dismiss the appeal for want of prosecution. On the contrary, to allow this matter to go forward would only increase the waste of costs. The prospects of obtaining special leave are such that it is appropriate to dismiss the petition for want of prosecution.

[20] It follows that the petitioner’s summons ought also to be dismissed.

[21] We have sympathy for the plight of the petitioner given that his inability to meet the costs condition is contributed to by the withholding of workmen’s compensation (see below). But, regardless of what factors may have contributed to his inability to meet the conditions under the Rules, there is no justification in the particular case for allowing a second appeal to this Court freed of the normal constraints as to compliance with the Rules.

[22] It has been drawn to our attention that the claim for workmen’s compensation that was raised in the High Court remains outstanding. This matter appears to have been overlooked in the Court of Appeal.

[23] As indicated, compensation has not yet been paid to the petitioner. This appears to have occurred because the appeals bought by the petitioner to the Court of Appeal raised the prospect that damages might be recoverable. We have difficulty in seeing why this should have occurred. An injured worker is clearly not entitled to both damages and compensation for the same injury. But here the injury arose out of and in the course of employment; compensation would in any event be less then any damages payable; and, most importantly of all, there was a finding of entitlement by the trial Judge.

[24] The respondents have, with leave, recently filed submissions seeking to explain their stance in the matter of workmen’s compensation. They have drawn attention to the procedures stipulated in the Act for the notification of injuries, medical examinations, and sending of notices to and from the Ministry with a view to resolving a claim without litigation. They point to the notice and time limitation requirements of s.13 of the Workmen’s Compensation Act (Cap 94), contending that the petitioner has defaulted in both requirements and thereby lost his entitlement to compensation. This stance is entirely without merit.

[25] Section 13 of the Workmen’s Compensation Act provides:

"Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury or, in the case of death, within twelve months from the time of death:

Provided that –

(a) the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if it is proved that the employer had personal knowledge of the accident or had been given notice of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause;

(b) the failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings if it is proved that –

• (i) the failure was occasioned by mistake or other good cause; or
  
• (ii) the employer failed to comply with the provisions of subsection (1) or (2) of section 14,
  

so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years from the date of the accident.

[26] In para 13 of the Statement of Claim the petitioner claimed compensation in the alternative to damages. In their Statement of Defence the defendants pleaded a bald denial of this paragraph together with a statement that the alternative claim was statute barred.

[27] Section 25(2) of the Workmen’s Compensation Act provides (emphasis added):

"If in proceedings independently of this Act or on appeal it is determined that the employer is not liable under such proceedings, the court in which such proceedings are taken or the appellate tribunal shall, if the plaintiff so chooses, proceed to determine whether compensation under this Act is liable to be paid to the plaintiff and shall assess the amount of compensation so payable, but may deduct from such compensation any extra costs which in the opinion of the court or appellate tribunal have been incurred by the employer by reason of the proceedings that have been taken independently of this Act."

[28] The final paragraph of the reasons of Coventry J states:

"Accordingly, whilst I have sympathy for the plaintiff in the injuries he has suffered, I must dismiss this claim; He is, of course, entitled to Workmen’s Act compensation, which counsel are content to calculate."

[29] The costs of the action were left unresolved.

[30] The parties elected to allow the matter to go to trial in the High Court with compensation being claimed in the alternative to damages for negligence. The petitioner’s injuries undoubtedly arose out of and in the course of his employment. Para 16 of the statement of Statement of Defence took no point other than a bald denial and the invocation of the time bar. It is inconceivable that the employer was ignorant of the accident or the injuries suffered. The petitioner has been kept on as an employee, initially on light duties.

[31] The concluding remarks of the trial Judge may reflect the fact it was common ground at the trial that, if damages were not awarded, compensation was payable. Perhaps it was clear to all that s.13 did not apply on the facts and/or that, if it did, the provisos to the section were satisfied.

[32] Be that as it may, we read the concluding remarks of Coventry J as a finding in the petitioner’s favour on the matter of workmen’s compensation. Accordingly, that matter should have been attended to regardless of the petitioner having launched what turned out to be an unsuccessful appeal to the Court of Appeal. The Court of Appeal should have been asked to address the matter in its orders disposing of the appeal. Identifying the correct procedure for attending to this matter at an appellate level involves a matter of substantial general interest to the administration of civil justice.

[33] This Court should make orders that will ensure that if any genuine dispute about calculations arises then it can be resolved expeditiously by a Judge of the High Court as an outstanding aspect of the original action.

[34] We therefore make the following orders:

1. Grant special leave to appeal.

2. Declare that the petitioner is entitled to compensation calculated in accordance with the Workmen’s Compensation Act with respect to the injuries suffered in his employment on 16 October 2001.

3. Remit the matter to Master J J Udit of the High Court to arrange an expedited hearing for the assessment of workmen’s compensation due to the petitioner and determination of any outstanding costs issues in the action.

4. Otherwise appeal dismissed with no order as to costs.

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
Maqbool and Company, Labasa for the Petitioner
Gibson and Company, Labasa for the First and Second Respondents