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Vinod Patel & Company Ltd v Labour Officer [1993] FJHC 31; Hba0012j.92s (29 March 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. 12 OF 1992

BETWEEN:

VINOD PATEL & COMPANY LIMITED
Appellant/Respondent

AND

THE LABOUR OFFICER FOR VINOD B. PATEL
Respondent/Applicant

Mr. G.P. Shankar: For the Appellant
Mr. P. Cowey: For the Respondent

Date of Hearing: 20th November 1992
Date of Judgment: 29th March 1993

JUDGMENT

This is an appeal against the decision of the Suva Magistrate's Court of 6th February 1992 whereby it refused to set aside an order made by another Magistrate of that Court, the late Mr. R.L. De Silva on 4th November 1991.

On that date the Learned Magistrate had before him an application for workers' compensation made under Section 8(1)(b) of the Workmen's Compensation Act Cap. 94.

Under Section 8(1)(b) where permanent partial incapacity results from personal injury by accident arising out of and in the course of employment a workman is entitled to workmen's compensation amounting to such percentage of two hundred and sixty weeks' earnings as is proportionate to the loss of earning capacity permanently caused by the injury.

The circumstances giving rise to the original claim of workmen's compensation were as follows:

The Respondent was employed by the Appellant under a contract of service as a Sales Supervisor.

On 25th November 1988 while working inside his employer's office at 10 Stewart Street, Suva he was suddenly hit on the head by a former salesman with a mole hammer handle. The Respondent was taken to hospital and as a result claimed that he had suffered a twenty-five percent permanent disability for work.

At the time of his injury he was said to be earning an average of $160.63 per week.

Liability was denied by the Appellant who filed a Statement of Defence on 29th March 1991 which denied that the alleged injuries suffered by the Respondent were received by him in connection with or related to the performance of his duties but were the result of a purely criminal act, quite unrelated to the discharge of his duties and not within the scope of the Act.

The matter was first listed before Mr. De Silva on 10th April 1991 when both the Respondent and the Appellant were represented. The Magistrate fixed the hearing date as 20th June 1991 but on that day the Respondent was represented by counsel who informed the Court that his client was overseas and therefore requested another adjournment.

It appears from two affidavits which have been filed in the proceedings, the first by the Appellant's present solicitor on 27th January 1992 and the other by a law clerk employed by the Appellant's solicitor, that the reason why the Appellant was not represented on 20th June was because Mr. Shankar had been informed that the Respondent was overseas and was therefore seeking an adjournment and Mr. Shankar then stated that for this reason he would not come to Suva on 20th June 1991 merely for an adjournment.

On 20th June the Learned Magistrate adjourned the case for mention on 28th August 1991 when again the Respondent was represented by his counsel but there was no appearance for the Appellant.

The Learned Magistrate then fixed 20th September 1991 as the date to hear formal proof by the Respondent.

There is nothing in the Court Record to indicate that the Appellant's solicitor was ever notified either of the mention date or the date for formal proof. On the latter date the Respondent called two witnesses, himself and a Mr. V. Maharaj a Labour Officer. The Respondent gave evidence that on 25th November 1988 while he was at his place of work a worker named D. Prasad who had been formerly employed by the Appellant but whose services had been terminated thought that the Respondent had been responsible for his termination and therefore hit Mr. Patel on the head with a hammer. He then gave evidence that Dr. J. Fatiaki had examined him and found that he was suffering from a twenty-five percent disability for work and consequently the Respondent claimed $10,440.95 workmen's compensation.

The Labour Officer Maharaj then gave short evidence that the Respondent had made a claim for workmen's compensation in the sum of $10,440.95 and that the Labour Officer was claiming on behalf of the Respondent.

The Learned Magistrate then reserved judgment to be given on 14th October 1991 but again it appears from the Court Record that this date was never notified to the Appellant's solicitor. On 14th October the Respondent was again represented by his counsel but the Court did not deliver judgment as it had not received written submissions. The Court stated that it would give judgment on 4th November 1991.

Again there is nothing to show in the record that the Court office ever informed the Appellant's solicitor of the date of judgment so that when judgment was delivered only the Respondent was represented by counsel.

In the course of his judgment the Learned Magistrate stated that he had examined the case law cited by counsel for the Respondent in his written submission and was of the opinion that the attack on the Respondent was made while he was discharging the duty imposed on him by his contract of service, and that the attack itself came within the definition of accident as it was an unlooked for mishap or untoward event which was not expected or designed. The Magistrate also stated that he had examined the medical report tendered by the Respondent namely that of Dr. J. Fatiaki dated 8th December 1989 and saw no reason to disagree with the doctor's finding that the work performance of the Respondent had been severely impaired.

The Magistrate therefore awarded the Respondent the sum of $10,440.95 compensation.

When the Appellant's solicitor heard of this award he applied to the Court on 6th February 1992 to have the award set aside on the ground that there had been no hearing inter partes on the merits. Counsel for the Appellant, who is its present counsel, stated that the Respondent's injuries had been caused by a criminal act and therefore the award should not be allowed to stand.

The application was opposed by counsel for the Respondent who submitted that there had been no miscarriage of justice; that the case had been formally proven and there was no fault by the Respondent. The Learned Magistrate before whom this application was made gave a short ex tempore judgment in which he dismissed the Appellant's application. He stated that he had read the Court Record and considered that the Learned Magistrate Mr. De Silva had entered judgment after careful consideration of all the evidence and written submissions by the Respondent. He stated that the fact that the case had proceeded on this basis was of no consequence and should not deprive the Respondent of his judgment. He then stated that Mr. De Silva would have had in mind the Appellant's defence which its present counsel Mr. Shankar had read to the Court and that the Learned Magistrate was satisfied there was no tenable defence available to the Appellant. He therefore declined to set aside the judgment as being irregular and dismissed the Appellant's application with costs.

It is from this decision that the Appellant appeals on three grounds.

The first is that the Learned Magistrate was wrong in refusing to set aside the order of the Court of 4th November 1991 for the reason he gave namely, that Mr. De Silva would have considered the Statement of Defence, because there had been no cross-examination of the Respondent on behalf of the Appellant.

The second ground is that the Learned Magistrate failed to apply the correct principles and took irrelevant matters into consideration.

The third ground is that the decision could not be upheld having regard to all the circumstances.

According to the affidavit sworn by the Appellant's solicitor on 27th January 1992 and used in support of its application to have the award set aside there is a serious question of law to be determined because the Respondent's alleged injuries were not received by him in the normal performance of his duties but as a result of a criminal act by a former workman of which the Respondent was a party. This of course is simply a repetition of the Defence filed in the lower Court.

Before me the parties made various submissions. The Appellant relied first on Order XXX (5) of the Magistrates' Courts Rules which states:

"Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit."

The Appellant relied on some remarks of Lord Denning in Hayman v. Rowlands (1957) 1 ALL E.R. 321 at 323 where the Court of Appeal had before it an application to set aside an eviction order which had been made in the absence of the tenant of certain premises who had mistaken the date of hearing in the lower Court.

After the order had been made the tenant applied to the Court for a new trial but this was refused on the ground that the Court said it would have come to the same conclusion if the case had been heard afresh, even with the knowledge that the full amount of rent had been paid into Court. The order had been made on the ground of non-payment of rent.

In upholding the appeal Lord Denning said this:

"What, then, is to be done? I have always understood that, if by some oversight or mistake a party does not appear at the court on the day fixed for the hearing, and judgment goes against him but justice can be done by compensating the other side for any costs and trouble to which he has been put, then a new trial ought to be granted. The party asking for a new trial ought to show some defence on the merits, but, so long as he does so, the strength or weakness of it does not matter. I think it plain in this case that the tenant had a defence on the merits. He had a defence on the question whether it was reasonable to make an order for possession against him.

It seems to me that, as the tenant has paid the full amount into court and wishes a new trial to be had, he ought to have it. He will probably have to pay the costs thrown away in the court below, but subject thereto I think he ought to have a new trial. I would allow the appeal accordingly."

In the present case I am informed that the amount of compensation awarded has been paid into Court and consequently it is submitted that I should follow Hayman v. Rowlands and order a new trial.

The second submission made to me is that the Respondent in his application pleaded that he was assaulted by a fellow employee but in evidence said a former employee. It is then submitted that whereas a fellow employee has the right to be on the premises of employment a former employee does not because he then becomes a trespasser with no right to be on the premises. It is argued that without an amendment and notice to the Appellant the Respondent was not entitled to depart from his case as pleaded. Counsel relies on a High Court of Australia decision Banque Commerciale S.A., en Liqun v. Akhil Holdings Ltd. (1990) A.L.J.R. 244.

To attempt to use this decision in this appeal seems to me with respect to show a regrettable misunderstanding of the principles of law applicable to the present case. Even if the former employee was a trespasser, which it is possible to presume on the material before me, this would not constitute a bar to the Respondent's claim for workers' compensation. In Weston v. Great Boulder Gold Mines Limited (1964) 112 C.L.R. 30 the High Court of Australia held that an employee who was assaulted and seriously injured while performing his duties in a mine by one of the mine company's employees who should not have been in the mine had suffered personal injury by accident which arose in the course of his employment within the meaning of the Workers' Compensation Act of Western Australia.

As long ago as 1910 in Nisbet v. Rayne [1910] UKLawRpKQB 133; (1910) 2 KB 689 it was held that there had been personal injury by accident where a cashier carrying money to pay his employer's workmen was robbed and murdered. It was never suggested either in that case, nor so far as I can gather in any other case since then, that the status of the assailant was relevant to the question whether the victim was entitled to claim workers' compensation.

It is said by the Appellant that Section 7 of the Workers' Compensation Act of Western Australia which was before the Court in Weston is materially different from Section 8 of the Fiji Workmen's Compensation Act. Section 7(1) of the Western Australia Act provided:

"(1) If in any employment personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions, is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule ..."

I agree that Section 7 is different but only in the words following the first two phrases, that is after the word "employment" in the second phrase, but the High Court in Weston was concerned only with the first two phrases in Section 7 and not the remainder of the Section and the decision is based on those first two phrases.

It follows therefore in my judgment that this submission cannot be accepted.

Whilst still on Weston's case, the Court there held following its own previous decision in Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 C.L.R. 547 that the phrase "arising in the course of his employment" ought not to be regarded as meaning more or less than "arising while the worker is engaged in his employment" - see 103 C.L.R. at pp. 558, 559 or, as Menzies J. said at p.576, the words "in the course of" signified no more than that the worker must be doing something that was part of or incidental to his service.

On the material before me I fail to see how as a matter of law it could be argued now that the Respondent when he was injured was not in the course of his employment and I consider the Learned Magistrate at first instance was correct in so holding.

This leads me to consider the other related submission by the Appellant on this question, namely whether the Respondent had suffered an injury by accident.

It has been established since Fenton v. Thorley & Company Limited [1903] UKLawRpAC 48; (1903) A.C. 443 that when a worker is injured in his employment by an unlooked-for mishap or an untoward event which is not expected or designed by the worker himself, there is injury by accident for the purposes of the Workmen's Compensation Act. See Clover, Clayton & Co. Ltd. v. Hughes [1910] UKLawRpAC 7; (1910) A.C. 242; Trim Joint District School Board of Management v. Kelly [1914] UKLawRpAC 15; (1914) A.C. 667 and McGuire v. Union Steamship Co. of New Zealand [1920] HCA 37; (1920) 27 C.L.R. 570 and, as I have said, in Kavanagh v. The Commonwealth (supra) the High Court of Australia held that when a worker is so injured while he is working injury by accident arises in the course of his employment also.

To argue some seventy-nine years after the decision in Trim Joint District School Board of Management v. Kelly (supra) that the dissenting speeches of Lords Dunedin Atkinson and Parker are preferable and should be followed here seems to me with respect to be not only unjustifiably optimistic but also to ignore the fact that Trim has been followed frequently ever since the decision was pronounced. For these reasons I reject the submission that the Respondent in this case did not suffer an injury by accident arising out of and in the course of his employment.

However that still leaves open the question of whether in all the circumstances the matter should be referred back to the Magistrate's Court for retrial on the question of the amount of compensation which should be paid to the Respondent. It was put to me by counsel for the Respondent that if, as the Appellant argued, it was vital for the Appellant's Insurance Company to have the points of law raised in this appeal clarified then the Appellant and its insurer had only themselves to blame for missing countless opportunities. As I said in the beginning there is nothing in the record before me to show what opportunities apart from the adjournment in June 1991 the Appellant ever had to put its case to the Magistrate's Court. It is apparent from the record that the Appellant was unaware of the events in the Magistrate's Court after the adjournment of 20th June 1991. The Appellant's solicitor's law clerk deposes that his efforts to find the adjourned date were not successful although he does not state details of those efforts, but whatever they were in my view the Court office was duty bound to the Appellant to notify it of the date of hearing and the date on which judgment was to be delivered in the first instance. There is nothing to indicate the Appellant received any such notification.

In my judgment the case should be remitted to the Magistrate's Court but only on the question of the amount of compensation if any which should be paid to the Respondent. I have held above that as a matter of law the defence pleaded by the Appellant in the Magistrate's Court and not sought to be resiled from before me discloses no defence in law on the question of liability of the Appellant to the Respondent to pay workers' compensation.

Different considerations apply however to the amount of compensation awarded to the Respondent. There is nothing in the record of the Magistrate's Court to show how the percentage disability of twenty-five percent was arrived at and I think it is desirable in the interests of justice that the Appellant should have an opportunity to cross-examine Dr. Fatiaki on his medical report and any other evidence he may give at the fresh hearing. I therefore order that this appeal should be upheld in part and the matter referred back to the Magistrate's Court at Suva to decide the amount of compensation if any which should be paid to the Respondent. In the circumstances I consider the Appellant should not be asked to swear and file an affidavit on the merits as suggested by counsel for Respondent. In view of what I have said I do not make any order for costs.

JOHN E. BYRNE
JUDGE

HBA0012J.92S