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Fiji Forest Industries Ltd v Labour Officer [1995] FJHC 132; Hbc0014j.94b (1 August 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 14 OF 1994

Between:

FIJI FOREST INDUSTRIES LIMITED
Appellant

- and -

THE LABOUR OFFICER
for and on
behalf of Josua Cola
Respondent

Mr. A. D. Ram for the Appellant
Mr. D. Singh for the Respondent

JUDGMENT

This is an appeal by FIJI FOREST INDUSTRIES LIMITED (hereafter referred to as "FFI") against the judgment of the learned Magistrate, Labasa delivered on 12 August 1994 when he made an order for compensation in favour of the workman JOSUA COLA (hereafter referred to as 'JC') on an application made on his behalf by the Labour Officer under section 8 of the Workmen's Compensation Act Cap 94 (hereafter referred to as the "Act") in respect of an accident suffered by him on 28 February 1991 while working for FFI.

Grounds of Appeal

The Grounds of Appeal are as follows:-

"(i) That the Learned Magistrate erred in fact and in law in holding that the Applicant had discharged the burden of proof which was upon him.

(ii) That the Learned Magistrate erred in law and in fact in assessing the partial permanent incapacity at 7.5% contrary to the body of evidence before him.

(iii) That the Learned Magistrate erred in law and in fact in failing to find on the negligence of the Applicant subsequent to the injury and not only failing to find thereon but completely misunderstanding the submissions of the Appellant in that regard and therefore reaching an erroneous decision."

The facts

The facts of this case are very simple and they are as follows (as stated by Mr. Ram in his written submission):

"Application was made by the Labour Officer acting on behalf of the Workman Josua Cola (JC) for compensation under the provisions of S.8(a)/(b) of the Workmens Compensation Act (WCA) following an accident while JC was at work with his employers FFI. The circumstances relating to the accident are simple. JC employed as a maintenance Supervisor was assisting in the clearing of old scrap metal piled in FFI's premises next to a drain. Two workmen were removing the metal when JC decided to assist them. As he did so his foot slipped into the drain. An old roller stored in the heap rolled and fell on his foot. He slid his foot out of the safety boots he was wearing, inspected his foot for any injury, saw that none was visible, nor did he have any sensation of injury, then pulled the boot out of the drain. He then continued with his work. FFI does not dispute that there was an accident within the terms of section 5 of WCA."

The further facts, as contained in the judgment of the learned Magistrate (Record p.7) are:

"At night he felt pain the ankle which had started to swell. He went to work on the next day and informed the Supervisor of the injury. He worked for the whole week. The personnel officer asked him to go to the hospital where he was treated by Dr. Asaeli who had made an assessment too. Later he was sent to Dr. Sharma for an assessment again by his employer 8 months after the injury. He again went to Dr. Asaeli for a reassessment. At the time of the injury his gross weekly earnings was $221."

On his medical condition the learned magistrate said in his judgment (page 7-8 of Record):

"He still has the stiffness pain and swelling which restrict his activities like walking running and sports.

Dr. Asaeli Matairavula who was the acting Consulting surgeon at Labasa Hospital had seen the injured workman for the first time on 20/3/91. The workman was limping and the outer aspect of the right ankle was swollen. Workman complained of extreme pain. The x-ray showed a spinal fracture of his lower end of the fibula. He was given 5 days rest. The doctor again saw him on 11/4/91. The workman still had the limp and the ankle was still swollen through reduced.

The doctor saw him on 2/5/91. He still had the painful swelling and was limping. Pain was aggravated by the cold. An assessment was made and the report sent to the Ministry of Labour (E3). The doctor assessed it as 7.5 permanent incapacity.

The doctor had made another assessment after Dr. Prem Sharma had made his own assessment. Dr. Asaeli did not agree with Dr. Prem Sharma and persisted in his original assessment of 7.25%

Under cross-examination Dr. Asaeli stated that the fractures at joints should be treated quickly as otherwise they would lead to chronic joint problems. Treated or untreated swellings pain and limp would remain. The present condition may be attributable to the delayed treatment. Follow up xrays could reveal improper healings but follow-up xrays had not been taken."

(underlining mine)

Magistrate's finding

The evidence before the learned Magistrate was that the partial permanent incapacity of JC according to Dr. Asaeli a consultant surgeon was 7.5% while Dr. Sharma a private medical practitioner has assessed it at 3%.

The learned Magistrate accepted the percentage as computed by Dr. Asaeli and proceeded to make an award under s8(a) of the Act on the basis of a scheduled injury. Based on his gross weekly earnings of $221 he assessed damages in the sum of $4309.00.

Submissions

Both counsel made written submissions; Mr. Ram filed his on 11 January 1995 and the Respondent (after a reminder) on 17 May 1995 and on 5 June there was a reply thereto.

(i) Appellant's submission

Briefly, Mr. Ram submits that "FFI does not dispute that there was an accident within the terms of section 5 of WCA. To that extent this exercise is made easy. What is the subject of the argument is the extent, i.e. the proven percentage of the disability, if there was any real liability for which FFI can be made liable."

It appears to me that whilst Mr. Ram admits that there was an accident he still says firstly, that FFI is not liable for the injury arising out of the accident and secondly, JC is not entitled to any damages. In his submission he attacks the form of the "application" which he calls "pleadings" and also that JC has not discharged the burden of proof that lies upon him in proving his claim. Hence, he submits that no order for compensation should have been made.

(i) Respondent's submission

Mr. Singh submits that the "pleadings" are in order and it was "patently obvious that section 8(1)(a) of the Act was relied upon by counsel for JC. The Appellants were not taken by surprise as the issue was raised in the Court below".

On burden of proof, the Respondent says that the claim was established on a balance of probability resulting in the assessment referred to hereabove.

Dealing with the grounds of appeal

I shall deal with Ground (iii) first.

In his judgment (at page 13 of Record) after referring to section 5(1)(b) of the Act the learned Magistrate found as fact that there was no negligence or wilful misconduct to penalise JC as an employee for the injury he received and the delay in treatment in the circumstances of this case. He said:

"Thus it is seen that even when the workman is guilty of serious and wilful misconduct in relation to the injury the court has the discretion to award compensation or part thereof.

Hence in this case the injured workman is not guilty of any serious or wilful misconduct. What he has done is continuing to work even after he had been injured.

In my view it is not fair and just even to attribute negligence to the workman under these circumstances in the absence of proof of any ulterior motive on his part in continuing to work after getting injured.

In Riley v Wearmouth Coal Co. Ltd (1904) 4 All ER 342 - Victoria Spuring Co (Rochdale) Ltd v Matthew (1936) 2 All E.R. 1359, the court held that the workman was entitled to compensation even when he had acted contrary to regulations.

In this case there is nothing so serious as acting contrary to regulations. Hence I hold that the injured workman has not been guilty of negligence in continuing to work after getting injured or in not seeking medical treatment early".

Hence as far as liability is concerned the learned Magistrate found that FFI was liable to pay damages for the injury. I agree with him.

It was all a pure question of fact whether JC was negligent or not or whether there was "wilful misconduct" to use the words of s 5(1)(b) of the Act. The learned Magistrate was in a better position than the appellate Court to decide on these matters. He had the opportunity of hearing and seeing JC and watching his demeanour. After a careful analysis of the evidence as presented to him he found that there was no negligence or "wilful misconduct" on the part of JC. The fact that JC continued to work for a few days without medical examination after he received the injury cannot in the circumstances of this case be taken against him as having contributed to the deterioration in his condition or giving rise to "a serious and wilful misconduct". In this case I do not think that FFI had been prejudiced thereby for it was when he was too ill that he went for a medical check.

Having read the record I find that the learned Magistrate had approached the issue properly before him, and I find no reason to differ from his findings of fact as there was ample evidence in support. It is very rarely that an appellate court would be justified in interfering unless findings of fact could not be supported on the evidence or law or any other proper ground.

If there is evidence which, if believed, would support the findings, there is no error of law NICOLIA v COMMISSIONER OF RAILWAYS (NSW) 1970 45 ALJR 465. In WILSON v LOWERY [1993] 110 FLR p142 it is stated:

"If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statement (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law."

This ground therefore fails.

Grounds (i) and (ii)

As for grounds (i) and (ii), it will be convenient to deal with the two grounds together. They pose the question, firstly, whether JC has discharged the burden of proof that lay upon him in proving the case; secondly, whether on the evidence the learned Magistrate was correct in calculating damages on the basis that it was a scheduled injury under section 8(a) of the Act.

I have given careful consideration to the written submissions of both counsel in this regard.

Mr. Ram in his submissions while attacking what he calls the "pleadings", says that it is not made clear whether the claim is under 8(a) or 8(b). He also says that the burden of proof has not been discharged by JC.

I have already stated what the Respondent's reply is as to these arguments.

I find that these two grounds of appeal have no merits.

As far as Mr. Ram's arguments as to "pleadings" is concerned it is abundantly clear from the record of evidence, and as stated by Mr. Singh that parties were aware that the evidence adduced pertained to scheduled injury under s8(a). Hence no question of pleading being defective arises and Mr. Ram had all the opportunity to cross-examine the witnesses in this regard.

On this aspect of the matter the learned Magistrate expressed the same view in these words on p.12 of Record:

"Dr. Asaeli has made his assessment treating the injury as one specified in the schedule. Under the circumstances of this case, I do not treat this (referring to objection to application by Labour Officer under s8(a)(b)) as fatal to the application" (words underlined supplied by me)

Hence Mr. Ram was well aware of the issue before the Court. The learned Magistrate having accepted and found that it was a scheduled injury proceeded to award damages in accordance with the formula under the said schedule to section 8.

I therefore find that there is no merit in Mr. Ram's argument about the alleged defect in the "pleadings".

The issue therefore that remains for my determination is whether JC has discharged the burden of proof that lay upon him in proving his claim and whether the learned Magistrate was right in accepting the injury as a scheduled injury.

Mr. Ram submitted that "only the quantum of the award is being challenged by FFI". He says that "in doing so FFI says two things: First, that the amount claimed is arbitrarily assessed on the evidence and secondly allowance must be made in the quantum where there is negligence of the worker in or about the injury." (page 4 of submission).

As I have ruled on the "secondly" aspect, I see no merit in it.

As found by the learned Magistrate I am convinced that the claim is under s 8(a) and no doubt it was for JC to prove that the claim falls under this subsection. I find that on the evidence before the learned Magistrate that burden has been discharged; in other words it has been proved that it was a scheduled injury. It is my view that the learned Magistrate has rightly accepted both Dr. Asaeli's and Dr. Sharma's evidence which made the injury a scheduled injury.

I have already stated what the injuries were. It amounts to "ankylosis" under provisions of (2) in the said schedule.

Mr. Ram's argument boils down to this that it is not a scheduled injury and that it is not the case of "ankylosis". Whether the injury fits into the definition of "ankylosis" or not will depend on the medical evidence adduced in this case. In KEMP & KEMP, The QUANTUM OF DAMAGE Vol I (0-089) "ANKYLOSIS" is defined as "obliteration of a joint by fusion, either bony or fibrous". I am satisfied that on the evidence the injury does come under the scheduled injury under item (2) in the Schedule although the actual term "ankylosis" was not specifically used to describe the injury.

The two doctors are not in agreement with the percentage of permanent partial incapacity. Dr. Asaeli says it is 7.5% and Dr. Sharma states it at 3%. The learned Magistrate has given his reasons for accepting Dr. Asaeli's figure in preference to Dr. Sharma's. I do not find anything wrong with his approach to this aspect of the matter and the appellate Court would be loathe to interfere with his conclusion in this regard suffice it to say that Dr. Asaeli is more knowledgeable and experienced in cases relating to joints. Dr. Sharma did admit that he has no special qualification regarding joints. It is clear that Dr. Sharma made his assessment based merely on the pain complained of by JC.

The learned Magistrate had on the evidence before him accepted the assessment made by Dr. Asaeli stating that the doctor "is a consulting surgeon and who originally treated the workman. He has made two assessments and came to the same conclusion". I have no reason to differ from this conclusion.

Having found in favour of the workman under s 8(1)(a) and (2) as a scheduled injury the learned Magistrate did not have to consider s 8(1)(b). He then proceeded to calculate the compensation, which he was justified in doing, as provided under s 8 which reads as follows:-

"8. (1) Where permanent partial incapacity results from the injury the amount of compensation shall be -

(a) in the case of an injury specified in the Schedule, such percentage of two hundred and sixty weeks' earnings as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

(b) in the case of an injury not specified in the Schedule, such percentage of two hundred and sixty weeks' earnings as is proportionate to the loss of earning capacity permanently caused by the injury:

Provided that in no case shall the amount of compensation in respect of permanent partial incapacity be greater than twelve thousand dollars nor less than such percentage of one thousand five hundred dollars as represents the loss of earning capacity arrived at in accordance with paragraph (a) or paragraph (b)."

The Schedule to the Act lists the injuries and fixes the "percentage of incapacity" in respect of each item in the Schedule. What it conveys is as stated by KERMODE J. in FIJI ELECTRICITY AUTHORITY v LABOUR OFFICER ON BEHALF OF VITALE RAMASI, [1981] 27 FLR 62 AT 66:

"Each percentage stated is the percentage of loss of earning capacity which a person is deemed by law to have suffered as a result of the injury to which the percentage relates. It is immaterial whether a person who has suffered a scheduled injury loses no earning capacity at all or has, in fact, suffered a much higher percentage of loss of earning capacity. For the purposes of the Act he has suffered the percentage stated in the Schedule and is only entitled to compensation based on that percentage".

And under item (2) in the schedule (under s8) it provides for percentage of incapacity for ankylosis of any joint thus:

"2. The percentage of incapacity for ankylosis of any joint shall be reckoned as from twenty-five to one-hundred per cent of the incapacity for loss of the part of that joint, according to whether the joint is ankylosed in a favourable or unfavourable position...."

On the evidence Dr. Asaeli's assessment has been accepted and compensation has been calculated on that basis which amounts to $4309.00.

For the above reasons grounds (i) and (ii) also fail.

In the outcome, for the reasons given the appeal is dismissed with costs to be taxed if not agreed. Consequently the learned Magistrate's order for compensation in the sum of $4309.00 payable by the Appellant to the Respondent stands. Furthermore, the Respondent shall be entitled to interest at the rate of 5% from 19 August 1994 (date of judgment) until payment for Or 32 r.8 of Magistrate's Courts Rules, Laws of Fiji Vol II Cap 14 provides that "where a judgment or order is for a sum of money, interest at five per cent per annum shall be payable thereon; unless the court otherwise orders". The circumstances of this case do not warrant a higher rate of interest.

D. Pathik
Judge

At Suva
1 August 1995

HBC0014J.94B