Manufotu v Phil/Rorbyg Joint Venture [2002] WSSC 12 (25 June 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

OLI MANUFOTU
(an infant who sues by his guardian ad litem
TUTASI MANUFOTU IONATANA.)
Plaintiffs

AND

E. PIHL & SONS A.S. and A/S RORBYG
of 116, Nybroyej 2800 Lygnby, Denmark and
A/S RORBYG, Industrial Holmen 80, 2650 Hridrove, Denmark
carrying on business in Samoa as
the PHIL/RORBYG JOINT VENTURE at Fuluasou.
Defendants

Counsel: A Roma for plaintiff
S Leung Wai for defendants

Hearing: 24, 26 April, 12 June 2002
Judgment: 25 June 2002

JUDGMENT OF SAPOLU CJ

In this case the plaintiff as employee is claiming against the defendants as his former employers damages for personal injuries alleged to have been caused to him as a result of the defendants negligence. As usual, the issues which arise for determination by the Court in an action for personal injuries are: (a) negligence, (b) contributory negligence if that defence is raised by the defendant, and (c) damages. For convenience, this judgment will be divided into two parts, part A and part B. Under part A I will deal with the issues of negligence and contributory negligence and under part B I will deal with the issue of damages. Under each part I will deal first with the relevant evidence and then with the law that is applicable.

PART A

Evidence

The plaintiff was first employed in November 2000 by the defendants which are two companies that operate as a joint venture in both Upolu and Savaii. I accept that the defendants are being sued as individual companies and not as a joint venture which employed the plaintiff. At the time he was first employed by the defendants, the plaintiff was about 17½ years old. He started off as a labourer at the defendants workshop at Fuluasou in Upolu. He was a hardworking employee and he showed an interest in the use of an electrified bench saw used by the defendants in its timber operation. The saw can be used as a ripsaw for thinning and resizing timber and that was the main purpose for which it was used. The saw consists of a motor with a round blade and a wooden bench shaped like a rectangular table. The motor is stood beneathe the bench but about half the size of the blade projects perpendicularly above the middle of the bench while the other half is beneathe the surface of the bench. When the saw is switched on, its blade runs at very high velocity and can rip through any timber, even a timber with knots, without any problems. It can even cut through a nail with ease.

Two employees are always required to operate the saw when it is used for ripping timber. One employee will stand at each end of the rectangular bench lengthwise. One of them will then push the timber to be ripped through the running blade with his unaided hands and then with a pushstick as he gets closer to the running blade. The stance which that person is required to take is to have one foot forward and one foot back to keep his balance. He would then bend slightly forward about 45 degrees whilst he is moving forward and pushing the timber through the running blade. As the unripped part of the timber diminishes and as the person who is pushing it gets closer to the running blade, he is required to use a pushstick to continue pushing the timber through the running blade whilst still maintaining the same stance as before. The pushstick is placed at the unripped end of the timber and then pushed. Both hands still needs to be used with one hand holding the pushstick towards its upper end and the other hand holding the pushstick towards its lower end which is in contact with the timber that is being ripped. About thirty centimetres from the blade, there is a line marked on the bench where the pushing is supposed to stop. However, Mr Mortensen, the civil works and carpentry supervisor for the defendants, said in his evidence that one can continue pushing the timber that is being ripped to as close as ten centimetres from the running blade without his safety being endangered so long as his hands are firmly holding the pushstick. That may be so, but it does not take into account the serious danger which will come about if the pushstick unexpectedly or suddenly breaks whilst someone is using it to push forward a timber through the running blade whilst at the same time bending forward and moving forward towards the running blade. Mr Mortensen in his evidence in chief agreed that if such an event happens, the person who is using the pushstick will fall forward and his hands may touch the blade and be injured. Now, the employee who stands on the opposite end of the bench from the one who is pushing the timber through the running blade, is required to hold the ripped end of the timber to keep the timber in line. That is his function; and after the timber has been completely ripped he takes it away. He applies no force to pull the timber that is being ripped towards him; if at times he applies any force to pull the timber towards him, it is very minimal force. The person who really applies force is the one who is pushing the timber from the opposite end of the bench through the running blade.

Perhaps Mr Mortensen, the civil works and carpentry supervisor for the defendants, observed the plaintiff as a suitable candidate for the operation of the benchsaw because he was hardworking and showing an interest in the use of the saw. Thus in February 2001, three months after the plaintiff had started as a labourer for the defendants in November 2000, he was picked by Mr Mortensen to be trained in the use of the saw. The training Mr Mortensen gave the plaintiff took three weeks. He showed the plaintiff how the saw works and how to use it to rip timber by thinning and resizing them. He also showed the plaintiff how to prepare a pushstick and how to use it to push a timber through the running blade of the saw, the kind of force to be applied when using the pushstick, and the stance he has to take whilst pushing a timber through the running blade of the saw with unaided hands and then with the use of the pushstick. He also explained to the plaintiff the risks and dangers that were involved in the use of the saw. In the second week, Mr Mortensen gave practical training by allowing the plaintiff to operate the saw under his supervision and guidance. Then in the third week the plaintiff was given the full operation of the saw but still under the supervision of Mr Mortensen. After the third week, the plaintiff was allowed to operate the saw without supervision. However, Mr Mortensen during his inspections, two or three times a week, continued to warn the plaintiff of the high risk involved in the operation of the saw and to take care. The witness Ropati Neemia, another employee of the defendants who had previously worked at the saw, also assisted by pointing out to the plaintiff any errors he made in the use of the saw.

The plaintiff worked at the saw for about six to seven months from February to August 2001. He worked from Monday to Saturday every week. From Monday to Friday he worked each day from 6am in the morning to 6pm in the evening with two fifteen minutes break at 9am in the morning and 3pm in the afternoon and a half an hour break at 12 noon. On Saturdays he worked from 6am in the morning until 12.30pm with a fifteen minutes break at 9am. In total the plaintiff worked for 66½ hours a week which included 5¼ hours for breaks.

The accident which affected the plaintiff occurred on Wednesday, 15 August 2001, at about 2.45pm in the afternoon. The circumstances surrounding the cause of the accident were subjected to close and detailed questioning by both counsel for the plaintiff and the defendants. Some of the witnesses gave detailed evidence as to how the accident was caused; other witnesses gave detailed opinion evidence as to how the accident could have been caused. I need not refer to all of that evidence.

It is clear that at the time of the accident the two employees who were working at the saw were the plaintiff and the witness Mata’u Tapusa (Mata’u) who was called by the defendants. According to the plaintiff in his evidence, he was at one end of the bench ripping a 2" x 3" timber by pushing it lengthwise through the running blade of the saw. He was moving and bending forward whilst pushing the timber. At that time the witness Mata’u was at the other end of the bench keeping the timber in line. As the plaintiff was getting close to the running blade, he used a pushstick about fifty centimetres long and two and half centimetres wide to continue pushing the timber through the running blade. The plaintiff said that the blade then suddenly stuck ("u"), perhaps, because of a knot in the timber. As a result, the pushstick he was using broke and his right hand slipped and came into contact with the running blade causing severe injuries to three of his fingers and a minor injury to a fourth finger.

There is no evidence that the manner in which the plaintiff was carrying out his work was not in accordance with his training, or was not the right way he should have carried out his work. The witness Mata’u who was called by the defendants also did not, in his evidence, criticise as incorrect the manner in which the plaintiff was doing his work when the accident occurred. Mr Mortensen gave opinion evidence as to how the plaintiff might have incorrectly positioned himself when the accident occurred; but he was not present when the accident occurred and his evidence would therefore be mere speculation. There is also no evidence that the pushstick the plaintiff was using was not of the correct size. Even the witness Ropati Neemia who had previously worked at the saw and is now a senior member of the defendants staff did not, in his evidence, criticise the size of the pushstick used by the plaintiff as incorrect even though he said that he inspected the pushstick sometime after the accident.

The evidence given by the witness Matau who was working with the plaintiff at the saw at the time of the accident is quite consistent with the evidence given by the plaintiff except in one respect. This witness said the blade of the saw was not stuck before the pushstick broke. After careful consideration, I have decided to accept the evidence given by this witness that the blade of the saw was not stuck. Mr Mortensen in his evidence said that the running blade of the saw would rip through the knot in a timber with ease. And all the timber that were being ripped with the saw whilst the plaintiff was working there had knots, being timber imported from Mr Mortensen’s country of Denmark. However, there had been no previous occasion when the saw became stuck because of a knot in a timber. He also said the blade of the saw would even cut through a nail. Counsel for the defendants also quite perceptively, made the point in his final submissions that the blade of the saw could not have been stuck at the time of the accident, because, if it was, then the plaintiff’s hand should not have been injured. The fact that the plaintiff’s hand was injured shows that the blade was running and not stuck. I have decided that the pushstick did not break because the blade of the saw was stuck due to a knot in the timber that was being ripped.

When the witness Matau was questioned by counsel for the defendants as to what he thought caused the pushstick to break so unexpectedly, he said that he suspected the pushstick might already have been cut from the blade when other timber were being ripped. However, this is only evidence of suspicion. It is also difficult to accept that the pushstick was previously cut from ripping other timber, not only because Mata’u gave no evidence of an actual cut to the pushstick, but also because the plaintiff was probably using the same pushstick without breaking since he started work at 6am in the morning up to the time before the accident occurred at 2.45pm in the afternoon. It is somewhat difficult to accept that a cut pushstick would be able to stand up for that length of time to the demands of the work that was done, without breaking earlier than 2.45pm in the afternoon. The witness Ropati Neemia (Ropati) who was also called for the defendants said that when he returned to the defendant’s workshop after taking the plaintiff to the hospital, he looked for the pushstick that was used by the plaintiff at the time of the accident. When he found it, it had a cut about as deep as the tip of his index finger. But he was not able to say whether that cut was on the pushstick before the accident or was caused by the running blade at the time of the accident. In any case, I am of the opinion that that cut did not cause the pushstick to break, because, if it did, one would have expected the pushstick to break at where the cut was. But the cut was still showing on the broken pushstick which suggests that the pushstick broke at some other part and not where the cut was. So it is difficult to conclude with any degree of confidence that a cut on the pushstick caused it to break. I would also have thought that if there was a cut on the pushstick, Mr Mortensen would have been made aware of it by the witness Ropati before the commencement of this hearing. But Mr Mortensen in his evidence made no mention of a cut on the pushstick used by the plaintiff. His evidence was that the accident might have occurred because of the plaintiff incorrectly positioning himself and therefore became unbalanced whilst pushing the timber through the running blade.

This matter about whether there was a cut on the pushstick was also not put to the plaintiff. It only came up in the evidence given by the witnesses Mata’u and Ropati for the defendants. As a consequence, the plaintiff did not have the opportunity to say whether or not there was any cut on the pushstick he was using before the accident occurred. It was part of the plaintiff’s work, in accordance with the training given to him by Mr Mortensen, to prepare his own pushsticks. And he gave no evidence that there was any cut on the pushstick he was using. In these circumstances, and given the nature of the evidence by the defendants witnesses Mata’u and Ropati, I cannot conclude that a cut on the pushstick was the cause or probable cause of the pushstick having broken causing the plaintiff’s right hand to slip and come into contact with the running blade of the saw resulting in severe injuries to his fingers.

As for the witnesses Sekone Ioane Tupufia (Sekone) and Tupu Tuifua (Tupu) who are former employees of the defendants called by the plaintiff to give evidence, I have decided not to accept their evidence that they were present at where the saw was at the time the accident to the plaintiff. Sekone and Tupu were not employed at the saw but at other segments of the defendants workshop. It was clear from the evidence of these two witnesses and from the evidence of the other witnesses including the plaintiff, Mr Mortensen and Mata’u, that all employees were strictly prohibited from the area of the workshop where the saw operated, except the two employees who had been selected to operate the saw. The plaintiff in his detailed evidence also never mentioned that Sekone and Tupu were present at where the saw was being operated at the time of the accident to him. The witness Mata’u who was working with the plaintiff at the time of the accident also testified that Sekone and Tupu were not present when the accident to the plaintiff occurred. The evidence given by the witness Tupu also clearly suggested that at the time of the accident only the plaintiff was operating the saw to rip timber whilst Matau was attending to something else. This is totally inconsistent with the evidence given by the plaintiff and by Matau that both of them were working at the saw in ripping a timber when the accident occurred. I therefore reject the evidence given by the witnesses Sekone and Tupu that they were present near the saw at the time of the accident to the plaintiff and witnessed how the accident happened.

Now it is clear from the evidence that there are risks inherent in the operation of the saw. The blade of the saw is exposed when used and it has no safety cover. When the saw is turned on the blade runs at very high velocity and can cut through any hard object such as a timber or nail with ease. Mr Mortensen in his own evidence said that he had seen many people with missing fingers from ripsaw operations in his own country of Denmark, but employers there take out insurance cover for injuries to their employees. He also agreed under cross-examination that a high safety risk is involved in the use of the saw if the correct procedures are not followed. In other words, as I understand this part of Mr Mortensen’s evidence, the saw is not dangerous if the correct procedures are followed by the employee who is operating the saw; but the saw becomes dangerous if the correct procedures are not followed. But it is there that the danger of the saw lies. The saw must not only be safe when the employee is following the correct procedures; it must also be safe when the employee deviates from the correct procedures due to some inattention, lapse of concentration, inadvertence or misjudgment on his part whilst using the saw. The employer should take into account the possibilities of inattention, lapse of concentration, inadvertence or misjudgment on the part of its employee when devising a system of work that is safe. In this case, however, the plaintiff was following the correct procedures; there is no acceptable evidence that he was not doing so; yet he was injured. The pushstick he was using to push a timber through the running blade of the saw suddenly broke when he was close to the blade causing his right hand holding the pushstick to slip and come into contact with the blade. There is no acceptable evidence that the pushstick broke due to any fault on the plaintiff’s part. In my judgment, the method devised by the defendants for operating the saw, should have taken into account not only the risks involved if there is some inattention, lapse of concentration, inadvertence or misjudgment on the part of the employee who is operating the saw, but also the risk which would arise if the pushstick suddenly or unexpectedly breaks, especially when the employee who is using the pushstick is close to the exposed running blade of the saw.

I should also mention again at this point that the plaintiff was required to work from 6am in the morning to 6pm in the evening, everyday from Monday to Friday each week. Except for two fifteen minutes breaks at 9am in the morning and 3pm in the afternoon, and a thirty minutes break at 12 noon, the plaintiff had to work for the rest of the time which would be eleven hours everyday. Then on Saturdays, the plaintiff would work from 6am in the morning to 12.30pm in the afternoon with a fifteen minutes break at 9am. In total, the plaintiff worked sixty one hours and fifteen minutes every week operating the defendants saw. Given the safety risks involved in the use of the saw and the need to take care in order to safeguard against such risks, spending eleven hours at operating the saw everyday from Monday to Friday is not an insignificant demand on any employee’s mental concentration. The possibility of a lapse in concentration on the part of an employee at some time resulting in injuries to himself would not be too remote. Mr Mortensen’s evidence that he had seen many people with missing fingers from ripsaw operations in his country of Denmark also goes to show that the possibility I have just mentioned is not remote. However, Mr Mortensen gave evidence that the employees using the saw could take a short break to relax or have a drink of water. That could be so, but the employees have to be sufficiently productive; too many of such breaks could jeopardize their jobs with their employer.

I would also accept the submission by counsel for the plaintiff that the fact that the plaintiff was given three weeks training before he was allowed the use of the saw, and the fact that Mr Mortensen during his inspections of the plaintiff’s work constantly warned him of the dangers involved in the use of the saw and the need to take care, both go to show that the use of the saw involved a high safety risk. The evidence of the plaintiff and the witness Matau were also to the effect that the saw is dangerous, particularly when the employee who is using the pushstick gets close to the running blade.

An inspector from the Labour Department who was called for the defendants said in his evidence that when he inspected the defendants workshop some five months after the accident to the plaintiff, it had a high standard of safety. However, under cross-examination he agreed that he felt concerned when he noticed there was no safety cover over the blade. At the time of this witness’s inspection, the saw was also being turned off as the employees were having a break. He also did not interview any of the employees who were working at the saw for their views on the safety or otherwise of the saw. In my judgment, the evidence of this witness carries very little weight, if any, on the question whether the saw was safe or not.

Evidence was, however, properly adduced on behalf of the defendants that with a very similar saw operated by the defendants at Savaii, a hard plastic cover is placed over the running blade when the saw is used to protect the employees who are ripping timber from the sawdust. This plastic cover was brought into Court and the witnesses for the defendants helpfully demonstrated how it is used. It is attached to a metal arm-rod which in turn is fixed to a metal stand. The metal stand is fixed to about the middle of one side of the rectangular bench widthwise. Its metal arm-rod which is adjustable up and down has at its end a hard plastic cover with a quarter circular shape. When the saw is turned on, the metal rod-arm is extended to the blade until the plastic cover at its end is placed above the blade so that it partially covers the blade. The cover and arm-rod are then locked so that they are immovable as the saw is being used. It was clear from the demonstration that was given, that apart from giving protection to employees from sawdust, this hard immovable plastic cover over the running blade of the saw would significantly reduce the risk of injury whilst the saw is used. The saw the plaintiff was working with at the defendants workshop at Fuluasou had no such safety cover or any cover at all.

Negligence

We are, of course, concerned in this case with an action for personal injuries arising from an employment situation with the defendants as employers and the plaintiff as employee. It is now well established in other common law jurisdictions, like Australia and England, that in an employment situation, the employer owes to an employee a duty of care which is a duty to provide a safe system of work. This duty is personal to the employer and is non-delegable. It is more stringent than the duty to take reasonable care; it is a duty to ensure that reasonable care is taken. This special duty but arises from the very nature of the relationship between an employer and an employee: see the judgment of Mason J in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

Kondis was concerned with an appeal from an action for personal injuries arising from an employment situation. Mason J after identifying the categories of case where one party owes a special non-delegable duty of care to another as including the relationships between a hospital and patient, school authority and pupil, and employer and employee, explained at p.687 the basis of this special non-delegable duty which exists in such relationships in these terms:

"In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or the property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."

More specifically in relation to the relationship between an employer and an employee, His Honour said at pp 687 – 688:

"The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to those matters. The consequence is that in these relevant aspects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system of work he should bear the consequences."

See further Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 551 and Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 where the rationale behind this personal and non-delegable duty of care is further explained. Then at p.689 of his judgment, Mason J pointed out that the employer’s duty of care extends to the giving of instructions in the performance of the work where such instructions are reasonably necessary. He said:

"The employer's duty at common law to take reasonable care for the safety of his employee extends to giving him directions in the performance of his work where directions might reasonably be thought to be required to secure him from danger of injury: O’Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p.229."

Murphy J at p.686 of his judgment confirmed the existence of a special non-delegable duty owed by an employer to his employee to provide a safe system of work by saying:

"It is well-settled that an employer has a personal, non-delegable duty to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk: Wilsons & Clyde Coal "Co. Ltd v English [1983] AC 57"

So it is clear from the authorities I have cited that an employer owes to his employee a duty of care which is a duty to provide a safe system of work. The first requirement which the plaintiff must establish in his cause of action in negligence for damages for personal injuries is that the defendants owed a duty of care to him. That such a duty exists is clearly supported by authority. The first requirement of the cause of action has therefore been established. However, because of the special circumstances of this case, more needs to be said about the contents of the duty of care owed by an employer to his employee. The employer in fulfilling his duty to provide a safe system of work for his employee is also required to take into account the possibility of inattention, lapse of concentration, inadvertence and misjudgment on the part of his employee. It is not an acceptable answer to an action in negligence for personal injuries by an employee for the employer to say that the system of work he instituted was safe provided there was no inattention, lapse of concentration, inadvertence or misjudgment on the part of the employee. Those are matters the employer should also have taken into account in providing a safe system of work. In McLean v Tedman (1984) 155 CLR 306, the majority of the High Court of Australia comprising of Mason, Wilson, Brennan and Dawson JJ when dealing with the question of negligence in an action for personal injuries by an employee against an employer stated at pp 311-312 of their joint judgment:

"In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v Clarke [1937] HCA 7; (1937) 56 CLR 715 at p.723; Henwood v Municipal Tromways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438, at p.444. The employer is not exempt from the application of this standard vis-à-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such risk.

"Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgment in performing his allotted task."

Further on at pp 312 – 313 their Honours said:

"If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J in Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1959) 97 CLR 337, at p.343, when he referred to an employer contemplating ‘the possibility of thoughtlessness or inadvertence – or to use what is, perhaps, a stronger word, carelessness.’"

Finally their Honours said at p.313:

"The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer. See Fleming, Law of Torts, 6^th ed. (1983), pp 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

Now the next question is whether the defendants as employers were in breach of their duty to provide a safe system of work for the plaintiff their employee. From the evidence it is clear that the use of the electrified bench saw to rip timber at the defendants workshop involved a high risk of injury to the plaintiff and other employees who had been operating the saw. The blade of the saw runs at very high velocity when it is turned on. The blade would cut through any timber or even a nail. Yet the blade was exposed; it had no cover or other protective device to secure the safety of the plaintiff who was working the saw eleven hours a day from injury in the event of any inattention, inadvertence or misjudgment on his part or in the event of the pushstick suddenly breaking as it happened in this case when the plaintiff was close to the running blade. In my judgment the method of operating the saw that was used was unsafe. In other words, the defendants did not provide a safe system of work as required of them by their duty of care. The defendants were therefore in breach of their duty of care to the plaintiff.

It is not an acceptable answer for the defendants as employers to say that they had done everything they could do to provide a safe system of work for the plaintiff as their employee if what they had provided falls short of meeting the requirements of the duty of care imposed on them by law, which is to provide a safe system of work. It is for the defendants as employers to come up to the requirements of the duty of care imposed by law on them; it is not for the duty of care to descend to the level of a system of work that falls short of being safe by relaxing its requirements. If the defendants best efforts to provide a safe system of work fall short of attaining that goal, then they should be prepared to bear the consequences of such failure if, as a result, the employee sustains injury. From Mr Mortensen’s own evidence that he had seen many people with missing fingers from similar ripsaw operations in his country of Denmark, the defendants ought to have known the high risks of injury that were inherent in use of their saw. Not to do enough to safeguard their employees against such risks, is a breach of their duty to take care. And it is not an acceptable answer to say that no accident had occurred before in their saw operation in Samoa. In any event, it is clear from the evidence that whilst the defendants had provided a protective safety cover for the blade of their saw in Savaii, there was no such cover provided for their saw in Upolu which was used by the plaintiff. I am therefore not able to accept that the defendants had done everything that could possibly have been done to secure the safety of the plaintiff.

It is also not an acceptable answer for the defendants as employers to say that the saw was not dangerous provided the plaintiff as their employee followed the correct procedures when operating the saw. In providing a safe system of work as their duty of care to their employee requires, the defendants ought to take into account the possibility that their employee may not follow the correct procedures due to inattention, lapse of concentration, inadvertence or misjudgment and thereby expose himself to the risk of injury. For not doing so, the defendants would be in breach of their duty to take care. The plaintiff, as the evidence shows, had to work at the saw for eleven hours, from 6am to 6pm, every day from Monday to Friday every week and for more than six hours on every Saturday. He was therefore in constant close proximity with the exposed running blade of the saw during all those times. In such circumstances, I am of the opinion that the possibility of inattention, lapse of concentration, inadvertence or misjudgment on the part of the plaintiff resulting in injury to himself was not too remote. By not instituting a system of work that provides safeguards against such a possibility, the defendants were clearly in breach of their duty to take care. In any event, there is no direct evidence that the plaintiff followed incorrect procedures when the accident occurred. The pushstick he was using to push a timber through the running blade of the saw just suddenly broke. As a result his right hand came into contact with the running blade causing severe injuries to some of his fingers. The defendants should also have provided safeguards against the possibility of a pushstick suddenly breaking whilst the plaintiff was close to the running blade in order to prevent injury to himself. That is all part of their duty of care to their employee. By not providing such safeguards, they were also in breach of their duty of care.

Contributory negligence

For the defence of contributory negligence, the onus is on the defendants to establish that defence by proving that the plaintiff was negligent and his negligence contributed to the cause of the accident. As already pointed out, there was no satisfactory evidence from the defendants to show that the plaintiff was negligent. Mr Mortensen and the witnesses Matau and Ropati called for the defendants, gave evidence as to what they thought might have caused the pushstick used by the plaintiff to break. But I am not able, for reasons already given in this judgment, to accept the evidence given by any of those witnesses as a satisfactory basis for finding negligence against the plaintiff.

In the first place, there must be a fact or facts established to the satisfaction of the Court upon which a finding of negligence can be based. In the second place, the defence of contributory negligence as its name shows, means negligence on the part of the plaintiff. Anything less than negligence on the part of the plaintiff will not do. Thus mere inattention, inadvertence or misjudgment without more on the part of the plaintiff/employee will not suffice, there being a well recognized distinction between mere inattention, inadvertence or misjudgment on one hand and conduct which amounts to negligence on the other: see Sungrave Prorietary Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24, per Windeyer J at p.37 and McLean v Tedman (1984) 155 CLR 306 at p.315 which were both cases on claims for personal injuries arising from an employment situation. In McLean v Tedman the majority of the Court after finding negligence against the respondent employer stated at p.315:

"The issue of contributory negligence has now to be approached on the footing that Brambles [the employer] failed to discharge its obligation to provide a safe system of work, that is, to take appropriate precautions against the risk of injury arising from the motorists negligence and the employee’s failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.

"As Windeyer J observed in Sungrave [1964] HCA 16; (1964) 110 CLR 24 at p.37, when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to ‘inattention bred of familiarity and repetiion, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions’. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of risk, ‘excusable in the circumstances because not incompatible with the conduct of a prudent and ‘reasonable men’".

The Court in that case then held that the conduct of the appellant/employee amounted only to mere inattention, inadvertence or misjudgment and therefore he was not guilty of contributory negligence.

In the present case, it was not suggested that the accident to the plaintiff was, or could have been, partially caused by a mere inattention, inadvertence or misjudgment on his part which did not amount to negligence or want of care for his own safety. Perhaps, that is because it was difficult to make such a suggestion on the basis of the evidence. But the evidence shows that the pushsticks which were used by the plaintiff in his work were chosen and prepared by the plaintiff himself. So the pushstick which broke resulting in the accident must also have been chosen and prepared by the plaintiff. But even if one were to assume that the plaintiff made an error of judgment in his choice of pushstick, or committed some mistake in the preparation of the pushstick, it is still difficult to draw an inference that that amounts to negligence, particularly when the accident occurred at 2.45pm in the afternoon and the plaintiff might have been using the same pushstick since he started work at 6am in the morning without breaking. In other words, for about nine hours from 6am to 2.45pm, the pushstick had been able to withstand the demands of the work without breaking; there was no evidence that the plaintiff changed pushsticks between 6am to 2.45pm. Thus the plaintiff might have been lulled into complacency because the pushstick was able to withstand the demands of the work for that long. Beyond this point, one cannot take this matter any further without being engaged in mere speculation or guesswork which is, of course, not allowed.

In the result, the onus is on the defendants to establish the defence of contributory negligence. That onus has not been discharged. Accordingly, the defence of contributory negligence cannot succeed.

PART B

I will now deal with the question of damages under this part of my judgment. I will first set out the relevant evidence and then deal with the claim for damages under the conventional heads of pain and suffering, loss of amenities, and loss of earning capacity in an action for personal injuries.

Evidence

When the pushstick that the plaintiff was using to push the timber through the running blade of the saw broke, his right hand which was holding the pushstick slipped forward and came into contact with the running blade. The plaintiff’s fifth finger was completely cut off at the distal joint which is above the middle joint; the ring finger was seriously injured with some of the tissues and tendons cut; the middle finger had a minor laceration; and the index finger was almost cut off at the middle and distal joints with serious loss of tissue. There was much bleeding from the injuries accompanied by severe pain. A piece of cloth was wrapped around the plaintiff’s injuries, and he was then taken to the hospital. This was about 3pm on Wednesday afternoon, 15 August 2001.

At the hospital, the plaintiff’s hand was x-rayed before he was taken to the theatre for an operation. According to the plaintiff, he was still suffering severe pain during all that time. In the theatre he was administered anaesthesia before the doctors operated on his injuries. All his injured fingers, including his middle finger, were sutured. After the operation which took about five hours, the plaintiff was admitted in the hospital. The plaintiff continued to feel a lot of pain after he regained consciousness from the anaesthesia and he was given painkiller tablets and pethidine injections to alleviate the pain. He was also given intravenous fluids and antibiotics. The following week, on 22 August, the plaintiff had a second operation in which his index finger was amputated due to complications in blood circulation in that finger. The plaintiff also testified to experiencing severe pain when he regained consciousness from the effects of the anaesthesia after his second operation. Again he was given painkiller tablets and pethidine injections to alleviate the pain. On 27 August the plaintiff was discharged from the hospital, but he still attended to the hospital as an outpatient for two weeks for follow-up checks and to change the dressings of his injuries.

Thus as a result of the plaintiff’s injuries, his index finger has been amputated and his fifth finger has been completely severed at the distal joint. He also can no longer straighten his ring finger. He still feels pain in the remaining parts of his index and fifth fingers when they hit something hard. Dr Tala Taavao who operated on the plaintiff’s injuries testified that functionally, the plaintiff has lost a fair bit in the use of his right hand, and he would still feel some pain in his cut fingers when they hit a hard object. However, the doctor did not say whether this pain is going to be permanent or not.

Before the plaintiff was injured, he had left school at the Year 10 level in 1998. He was 15 years of age at the time because he was born in April 1983. He was healthy and energetic. He then worked at some private carpentry jobs earning $70 to $80 a week nett until he was employed by the defendants in November 2000. In those private carpentry jobs he must have worked as a casual doing simple jobs for carpenters. He could not have been a carpenter himself or do serious carpentry work because of his age and the fact that he had just left school. At home he did domestic chores such as weeding and cutting grass, planting taros and vegetables, cutting firewood, and cooking food for his family. Such domestic chores could not have been onerous tasks given the young age of the plaintiff. He also used to take part in such sports as rugby, volleyball and cricket as social pastimes. After his injuries, the plaintiff, who is right-handed, could no longer perform any of his usual domestic chores except putting firewood into the fire and watching that the "saka" for his family was properly cooked. He also could no longer take part in any of his social pastime sports.

Now after the plaintiff was discharged from the hospital on 27 August 2001, he was accepted back for re-employment by the defendants doing simple jobs such as carrying nail boxes from one place to another and getting water for other employees when they needed a drink. He was still paid his usual wages of $133 a week nett. He was not re-employed at the saw. Obviously the plaintiff’s utility as an employee to the defendants had become severely limited due to his injuries. One week after the plaintiff was back at work, he was dismissed by the defendants. This was in early November 2001. The reason given by some of the witnesses for the defendants for the plaintiff’s early dismissal was that the plaintiff and other employees took cooking oil from the canteen without permission and used it to cook their "eleni" (herring). At first the plaintiff denied to Mr Mortensen any involvement in the unauthorized taking of the cooking oil, but later he admitted to it. He was then dismissed. The plaintiff’s misconduct appears a minor one. But one witness for the defendants, Dan Mu’a, said that the initial denial by the plaintiff aggravated the matter. Since his dismissal, the plaintiff has not had another job. His mother testified that when she told the plaintiff to find another job, he did not do so. So he is now just staying at home. But there is no evidence that the plaintiff will stay at home for the rest of his life. It was also not canvassed at the trial what are other jobs that the plaintiff can do at his present age of 19 years given the injuries to his hand.

Damages

The plaintiff is claiming only general damages for post-judgment or post-trial non-pecuniary losses for pain and suffering, loss of amenities and loss of earning capacity. The total claim is for $200,000. The award for damages will be in a once and for all lump sum which will be given as a global sum: see Western Samoa Shipping Corporation Ltd v Iosefa Feagai (1994) (CA6/93; unreported judgment delivered on 22 March 1994); Iese Katopau v Samoa Breweries Ltd (2000) (unreported judgment delivered on 13 October 2000); Toilolo Egelani v Board of Trustees of the Methodist Church (2002) (unreported judgment delivered on 5 April 2002).

(a) Pain and suffering

The severe pain which the plaintiff suffered at the time of the accident and up to the time he was put to sleep under anaesthesia in the surgical theatre at the hospital, the pain which he suffered after the two operations, and the pain which he still suffers when his cut fingers hit a hard object, are to be taken into account in the assessment of damages under this head of damages. The plaintiff must also have experienced some measure of distress, depression and anxiety from the loss of his index finger and part of his fifth finger as well as from the inability of his ring finger to straighten. This is suffering and should also be taken into account under this head of damages.

It is to be noted here that I would expect the pain which the plaintiff still experiences when his cut fingers hit a hard object to progressively disappear given the natural capacity of the human body to adjust itself as the healing process takes effect. I would also expect that such pain will not be often felt. Being aware of the pain that will ensue if his cut fingers hit a hard object, I would expect that the plaintiff will naturally ensure that his cut fingers do not hit any hard object.

(b) Loss of amenities

The loss of the plaintiff’s index finger and part of his fifth finger as well as the inability of his ring finger to straighten itself are very serious matters and must be fairly reflected in an award of damages. They are permanent disabilities which the plaintiff, who is now 19 years of age, will have to carry and live with for the rest of his life. He has been deprived of the capacity to enjoy life as he used to do before his injuries. He can no longer play and enjoy his social pastime sports of rugby, volleyball and cricket, particularly as he is right handed and his injuries are to his fingers on his right hand.

The plaintiff has also suffered a partial but substantial loss of house keeping or domestic capacity. He can no longer use his right hand for weeding grass; he can no longer use his right hand to cut grass or firewood because he is unable to get a full grip of the handle of a bush knife or an axe with his right hand; he is also unable to plant taro which requires the use of both hands. In short, he is unable to do any hard manual work at home which requires the use of both his hands or his right hand, particularly such work which requires a full grip with the right hand.

Even though the plaintiff’s field of work appears not to lie in work which requires much handwriting, he is now clearly no longer able to write or sign his name with his right hand. He will now have to train his left hand to write.

The evidence also shows that the plaintiff is conscious of his injuries and feels embarrassed about it. When people are around he tries to cover his injured hand. When he comes to town, he either covers injured hand with a handkerchief or hides it in his pocket. When he attends his church, which at times requires the congregation to raise their hands in praise of Our Lord, he will not raise his right hand out of embarrassment. I would also accept the submission by counsel for the plaintiff that as a result of the injuries, the plaintiff’s matrimonial prospects have been diminished to some extent.

All these matters I have referred to which were also matters covered by counsel for the plaintiff in his submissions, are matters that I should take into account in the assessment of damages for loss of amenities or loss of enjoyment of life.

(c) Loss of earning capacity

Given that the plaintiff is now 19 years of age and the usual retiring age for workers is 55 years, his remaining working life is about 36 years. The evidence shows that the plaintiff was destined for manual work having left school at the Year 10 level and then took up work as a casual worker in carpentry, and then became employed by the defendants as a labourer and later at its saw operation. His future prospects of gaining employment in carpentry work or at a saw operation must now be very seriously diminished to almost nil. I also cannot see any prospect of the plaintiff becoming a planter now that he cannot get a full grip of the handle of a bushknife with his right hand. His chances of gaining employment in any kind of manual work which requires the use of both hands have been very seriously reduced. The plaintiff will now have to look for some other kind of work to earn a living. His earning capacity has certainly been seriously diminished.

When the plaintiff was employed in carpentry work, he was paid weekly wages of $70 - $80 nett. When he was working for the defendants, he was paid weekly wages of $133 nett for a 66½ hour week including breaks which totalled 5¼ hours. So a substantial part of his weekly wages with the defendants was made up of overtime pay given that the normal working week for a worker under the provisions of the Labour and Employment Act 1972 should be for forty hours. Any time worked in excess of forty hours a week will count as overtime and must be paid at a higher rate of pay provided in the Act. Thus for the normal forty hour week, the plaintiff would probably have been paid by the defendants the same kind of wages he was earning when employed as a casual in carpentry work.

In the assessment of damages for loss of earning capacity, the Court will also take into account future contingencies or "vicissitudes of life" such as the possibilities that the plaintiff may later suffer from ill-health and therefore will not have a job, or he may become redundant or dismissed from a job so that if such events occur he will not be earning any income. On the other hand is the possibility that the plaintiff may earn increased wages.

Another factor which is relevant to the assessment of damages in this regard are recent comparable verdicts in other similar personal injuries cases. On that basis, counsel submitted that I should have regard to Western Samoa Shipping Corporation v Iosefa Feagai (supra). In that case the plaintiff employee sustained an injury to his right leg which resulted in his having to walk with a limp for the rest of his life. The trial Court and the Court of Appeal both accepted that the injury to the plaintiff was the result of negligence on the part of the defendant employer. General damages of $52,000 which was awarded by the trial Court was upheld on appeal. The injury in that case did not result in loss of a limb or part of a limb unlike the present case where the plaintiff has lost parts of a limb, namely, two fingers and the inability of a third finger to straighten. The evidence on loss of future earning capacity in that case was slim. That is unlike the present case where the evidence of the plaintiff’s loss of future earning capacity is quite obvious. Perhaps this distinction between the two cases is more obvious to me as I was counsel initially engaged by the plaintiff in Iosefa Fegai but I was appointed to my present office before that case came on for hearing. In a real sense, the injuries to the plaintiff in the present case and their consequences in terms of loss of earning capacity are more serious compared to the injury and its consequences to the plaintiff in Iosefa Feagai. That case was also decided some eight years ago. It is also to be noted that even though the award of $52,000 was upheld on appeal, the Court of Appeal said that it was on the high side.

Having said all that, I am conscious that there has not been a case like this one before which involves the loss of an employee's fingers. Thus the Court, with whatever assistance it receives from counsel, has to try and arrive at a sum which is considered to be fair compensation having regard to all the circumstances I have referred to.

Taking all these circumstances into account and bearing in mind that the plaintiff should not be compensated twice under separate heads of damages, I have come to the view the sum of $66,000 would be a fair lump sum award to be paid to the plaintiff as general damages. Judgment is accordingly given for the plaintiff in that amount.

Costs are also awarded to the plaintiff to be fixed by the Registrar together with any disbursements.

CHIEF JUSTICE

Solicitors:

Sapolu Lussick for plaintiff
Leung Wai Law Firm for defendant