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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CIVIL APPEAL NO.0004 OF 1993
Between:
FIJI SUGAR CORPORATION LIMITED
Appellant
- and -
THE LABOUR OFFICER for and on behalf
of DAYA WATI (wife) SHALEN KUMAR SHARMA
(son) and SALESHNI LATA (daughter) of the
deceased BANS BAHADUR (f/n Jagat) of
Boubale, Labasa.
Respondent
Mr. V.P.Ram for Appellant
Mr. J.Udit for Respondent
JUDGMENT
The Appellant/Original Respondent appeals against the judgment of the learned Magistrate given on 28 April 1993 in the Magistrate's Court, Labasa whereby he found for the Respondent/Original Applicant on the issue of liability and on the question of compensation to be paid with costs to be taxed if not agreed.
GROUNDS OF APPEAL
The Grounds of Appeal are as follows: -
"2. That the learned Magistrate erred in fact and in law in holding that Bans Bahadur died as a result of personal injury by accident arising out of and in the course of his employment with the Respondent in terms of Section 5 (1) of the Workmen's Compensation Act, Cap. 94.
THE FACTS
Briefly, the facts surrounding the case and some of the observations of the learned Magistrate are as follows as stated by him in his Judgment (page 15 of record):
"Bans Bahadur had been married to Daya Wati for about 25 years and at the time of the marriage had been a healthy man. He worked in the FSC Mill.
He had been admitted to hospital in 1982 and again in 1990. He was having chest pains. On the day of his death he had returned from his work around 2p.m. It had been a Saturday and he had done the day shift. He had taken his dinner and returned to bed around 7p.m. In the evening he had complaint of pain in the left hand and head.
Around 11p.m. he had taken a deep breath in his sleep and his wife had massaged his chest. Taken to hospital, he had been pronounced dead.
His health had began to soften in 1982. After he feel sick he had used to smoke only two cigarettes a day. After his second admission to hospital he had stopped smoking since then. Occasionally he took yaqona. He ate mostly fish and mutton only sparingly without fat. He went to work regularly and was happy. Since 1990 sometimes he used to tell his wife that he had had a hard day's work.
On the day of his death he had returned home around 11.30a.m. and had gone to Naga Mandir with his wife to pray. After returning home from the temple around 2p.m. he had lunch. He had relaxed at home in the afternoon. Before going to bed he had his evening meal of rice with dhal, tomato chutney and Bhaji which was the same menu as for lunch.
Around 11p.m. he had two long breaths and the children had brought him to hospital when he was pronounced dead.
He had been on medication and used to take this tablets regularly. He had no worries. His daughter had been married and the other two children were attending school.
After his second attack in 1990 he used to complain of tiredness after return from work".
MAGISTRATE'S FINDING
After analysing the evidence of the witnesses, he further stated in his judgment (page 19 of record):-
"It is in this background that the deceased died on 7/10/1990 after returning home from work. He had last attended the clinic on the 12th of September 1990 about 25 days prior to his death. After his second attack in 1990 he had been given light work on the recommendation made by the doctor in 1982 after the first attack. The deceased was a heart patient suffering from Ischaemic heart disease where exertion is falted. Even after the first attack in 1982 the deceased has been doing his normal work for about 8 years.
As regards the light work he was supposed to be doing the respondent's witness tried to show that it comprised if making two cups of tea twice a day. But the other witness stated that the duties consisted of cleaning as well. In addition to convey of messages. No commercial institution would employ a person for making only two cups of tea a day. The evidence shows that the deceased was performing some sort of tasks. Dr.Jian Shaomin was of the view that even the light work may have precipitated a heart attack".
And at page 21 of Record he said:
"Hence Bans Bahadur had suffered his first attack in 1982 but he had been continuously working in the boat building yard for a further period of eight years. Of course two years prior to his death his work had been changed and he had been given light work. The question is whether the work he had been doing at the time of death was light or heavy. The terms light and heavy are relative terms. Light work for a young and healthy person may not be so far an old and sickly person.
The fact that he had suffered a second attack in 1990 a few weeks prior to his death is ample testimony that the work he had been doing at the time, though termed light, had contributed to and accelerated his death".
Both counsel made comprehensive written submissions which I found very useful. I have given careful consideration to their arguments and will traverse the grounds in the manner hereafter appearing.
FUNCTION OF APPELLATE COURT
In considering this appeal, I have borne in mind the function of an appellate court on an appeal from the findings of the lower court. In the well-known and often quoted case of BENMAX v AUSTIN MOTOR CO. LTD (1955) AC 370 it was pointed out by the House of Lords that in appeals such as this it is necessary to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as has sometimes been said, between the perception and evaluation of facts. On this aspect LORD REID at p.376 said:
"in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from the task, though it ought, of course, to give weight to his opinion".
I have also borne in mind the following words of LORD HALSBURY, L.C. in RIEKMANN v THIERRY (1896) 14 RPC 105 at p.116 which was cited in BENMAX (supra) at p.370:
"The hearing upon appeal is a rehearing and I do not think there is any presumption that the judgment in the court below is right".
And later in the same speech he said (ibid):
"Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellant tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the court from which the appeal proceeds, and that it is not within their competence to say that they would have given a different judgment if they had been the judge of first instance, but that because he has pronounced a different judgment they will adhere to his decision".
Therefore in the case before me in accordance with established principle the Court will not interfere with findings of primary fact which depend on the credit of witnesses, but will do as stated above, to use the words of MILES C.J., "as to inferences drawn from primary facts, in general, an appellate court is in as good a position as the tribunal to decide what inferences are to be drawn from the findings of the tribunal from which the appeal is brought, and "once having reached its own conclusion, will not shrink from giving effect to it" (RADOVANOVIC v WHITE CONSTRUCTIONS (ACT) PTY LTD 106 FLR 405 at p.406.
CONSIDERATION OF THE GROUNDS OF APPEAL
I shall consider the six grounds of appeal in one single ground and therein deal with the following points raised in them in the manner hereafter appearing:
(a). that the three essential elements as required by s5(1) of the Act have not been satisfied.
(b). the effect of a pre-existing heart condition and its effect on the deceased has not been taken into account.
(c). that the death was unrelated to his employment.
(d). whether the death resulted as a result of deceased's "pre-existing heart condition" or the employment had been a contributing factor had not been considered.
I might mention at the outset that there is conflict of evidence as to whether the deceased died on 6th or 7th October, 1990. Without going into details the fact remains that he died on a Saturday and it was 7th October and that was the day he knocked off work and died the same day.
It is an undisputed fact that he died of acute 'myocardial infarction'.
CLAIM UNDER s.5(1) OF WORKMEN'S COMPENSATION ACT
The Respondent had claimed compensation under s.5(1) of the Act which provides as follows:-
"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, as accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connection with his employer's trade or business".
The onus was on the widow (the Respondent) to prove the following three essential elements of her claim:
(i) "that the workman suffered personal injury, i.e. physiological injury or change, by accident;
(ii) that the injury arose out of the employment;
(iii) that the injury occurred in the course of employment". (CARPENTERS (FIJI) LTD v LABOUR OFFICER FOR KATARINA ESITA 36/84 FCA - cyclostyled judgment p.3)
The claimants "have to prove their case; that is to say, they must show with reasonable clearness that the accident actually did come from the employment" (HAWKINS v POWELL'S TILLERY STEAM COAL CO. [1911] UKLawRpKQB 38; (1911) 1 K.B. 988 at p.995 per FLETCHER MOULTON L.J.)
The drawing of inferences from a given set of facts particularly in pre-heart condition cases is difficult. In any case one has to rightly direct oneself on the law and draw inferences from the facts; and " ..... so long as there is evidence upon which the arbitrator, as a reasonable man, can come to a finding, it is not competent for the appellate court to substitute their own view of the weight of the evidence and the balance of probabilities for the view of the arbitrator" (DAVIES v ARMSTRONG - WHITWORTH (1933) 26 B.W.C.C. 299) (THE WORKMEN'S COMPENSATION ACTS 32nd Ed. 1939 p.119).
Evidence for the Respondent was given by VISHNU DEO (PW1) labour inspector, DR.JIN SHAOMIN (PW2) acting consultant, DAYA WATI (PW3) widow of deceased and ABDUL KHALIL (PW4) F.S.C. employee.
For the Appellant evidence was given by DR.RAJESHWAR CHAND (DW1) and SHIV RAJ (DW2) FSC employee, training transport engineer.
Bearing in mind the elements that have to be proved, the determination of the issue therefore depended upon sufficiency of evidence.
I shall now deal with each of the said three essential elements separately.
WAS IT PERSONAL INJURY BY ACCIDENT (FIRST ELEMENT)
The circumstances and the events which led to death has been outlined hereabove suffice it to say that death occurred at his home some eleven hours after the deceased knocked off work.
It is clear from the authorities that in the circumstances of this case and on the facts it is a case of personal injury by accident. I discuss hereunder what constitutes "personal injury by accident".
I refer to THE WORKMEN'S COMPENSATION ACTS 1925 TO 1938 by WILLIS 32 ED (hereafter referred to as "WILLIS") on the first element, namely "personal injury by accident" where at p.8 "accident" is defined thus:
"The word "accident" does not necessarily involve the idea of something fortuitous and unexpected as formerly held (HENSEY v WHITE [1899] UKLawRpKQB 227; (1900) 1 Q.B. 481. ........... It includes injury caused by over-exertion in the ordinary course of employment (Fenton v. Thorley[1903] UKLawRpAC 48; , [1903] A.C. 443; 5 W.C.C. 34 Digest 266, 2264). The word "accident", is used in the Act "in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed (per LORD MACNAGHTEN, ibid., at p.448); or as denoting or including "any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence" (per LORD SHAND, ibid., at p.451); or "any unintended and unexpected occurrence which produces hurt or loss" (per LORD LINDLEY, ibid., at p.453).
It is further stated (ibid):
"Applying the above description of accident to the case where a man suffering from serious aneurism ruptured it by an ordinary exertion (Clover v.Hughes[1910] UKLawRpAC 7; , [1910] A. C. 242; 3 B. W. C.275; 34 Digest 273, 2316), it was said that the event was unexpected in the sense that a sensible man would not have expected it from the nature of the work being done, and that it was not correct to ask whether a medical man knowing the condition of the workman would have expected it".
What is "personal injury by accident" has also been clearly stated by LORD ATKIN in FIFE COAL CO., LTD v YOUNG (1942) AER H.L. 85 at 91 thus:
"... it is necessary to emphasize the distinction between "accident" and "injury", which in some cases tend to be confused. ...... It is now established, however, that, apart from external accident, there may be what no doubt others as well as myself have called internal accident. (underlining mine for emphasis) ...............
A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity". (underlining mine for emphasis)
The above passage includes death or incapacity arising "at once or after a lapse of time". In the case before me it was after a few hours of time.
Also on "personal injury by accident" the following extract from the judgment of LORD MACNAGHTEN in CLOVER, CLAYTON & CO. LIMITED v HUGHES [1910] UKLawRpAC 7; (1910) AC 242 AT 247-8 is apt:
"There the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that "injury by accident" meant nothing more than "accidental injury" or "accident", as the word is popularly used".
In both CLOVER (supra) and FENTON (PAUPER) V J THORLEY & CO. LIMITED [1903] UKLawRpAC 48; (1903) A.C. 443 the House of Lords held that the workman had suffered personal injury by accident. In the former case the workman was suffering from serious aneurism whilst employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. In the latter the workman, employed to turn the wheel of a machine, by an act of over-exertion ruptured himself.
Applying the above principles to the present case there was an accident in the popular sense of the word. As learned counsel for Respondent pointed out, cause of death was "myocardial infarction" supported by Dr.Krishnan's medical report; Dr.Rajesh Chandra did not deny that it was heart attack and Dr.Shaomin agreed.
I therefore find that the first element has been satisfied and as found by the learned Magistrate.
SECOND AND THIRD ELEMENTS
I shall now deal with the second and third elements namely. (ii) Did the injury arise out of the employment? and (iii) Did it arise in the course of the employment? The determination of these issues involve mainly issues of fact and in part they are questions of law. Since the two questions posed before me overlap each other that to treat them separately would be repetitive so therefore I would deal with (iii) above first showing when course of employment began and ended and then with (ii) dealing mainly with the work the deceased was employed to do.
IN THE COURSE OF EMPLOYMENT (THIRD ELEMENT)
Under this head I will not reiterate the facts which are as outlined hereabove by the learned Magistrate in his judgment. It is in the evidence of PW3 (the widow) at page 31 of record that deceased worked half a day on 7 October 1990 and returned home at 11.30a.m. and died at 11.00p.m; upon arrival at the hospital he was pronounced dead. I fail to understand how the learned Magistrate could say in his judgment that the deceased came home at 2.00p.m. and died around 7.00p.m. thus giving the difference between work and death as seven hours (page 23 of record).
Be that as it may, the question that arises is whether on the facts of this case it can be said that the deceased died in the "course of employment".
The test of what is "in the course of employment" is stated thus in WILLIS supra at p.22.
"A workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do'. Or what is, in other and I think better words, ... when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based in a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment',as here used covers and includes things belonging to or arising out of it" (St. Helen's Colliery Co. v. Hewitson, [1924] A.C. 59, 71; 16 B. W.C. C. 230, 238, per Lord ATKINSON; 34 Digest 280, 2364).
"The man is not in the course of his employment unless the facts are such that it is in the course of his employment, and in performance of a duty under his contract of service, that he is found in the place where the accident occurs. If there is only a right and there is no obligation binding on the man in the matter of his employment there is no liability" (ibid., p. 95, per Lord WRENBURY);
"I think an accident befalls a man 'in the course of' his employment, if it occurs while he is doing what a man so employed may reasonably do within a time when he is employed, and at a place where he may reasonably be during that time" (Moore v. Manchester Liners[1910] UKLawRpAC 39; , [1910] A.C. 498; 3 B. W. C. C. 527; 34 Digest 309, 2547, per Lord LOREBURN, L. C.)".
The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are: (a) the accident must have occurred during the employment of the workman and (b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do" (HELEN'S COLLIERY supra p.91, 92).
In this case the above conditions have not been met. The deceased did not die at work; he was not doing any work for his employer at the time of his death; there is no evidence to indicate that the work which he did while at work before knocking off gave rise to any adverse effect on him and in fact he did not complain about any aches and pains. According to PW4 he "did his usual light duties". The nature of his work on the last day at work was just 'light work' which he has been doing for about two years prior to his death. On the day in question he worked half a day and knocked off at 11.30a.m. as stated by the learned Magistrate (page 15 of Record).
The learned Magistrate with all due respect could not possibly have on the facts of this case find that the deceased's death was work-related or that the work had an adverse effect on his pre-heart condition. He is merely assuming without any supporting evidence when he said in his judgment at page 21 of record that "the fact that he had suffered a second attack in 1992 a few weeks prior to his death is ample testimony that the work he had been doing at the time, though termed light had contributed to and accelerated his death". This is not a proper inference which he could draw from the evidence before him.
I therefore find that the third element has not been proved.
INJURY ARISING OUT OF EMPLOYMENT (SECOND ELEMENT)
Now I shall deal with element (ii) above, namely, whether the "injury arose out of employment".
The term has been defined in WILLIS supra at p.44 thus:
"Arising out of the employment' obviously means arising out of the work which the man is employed to do and which is incident to it - in other words, out of his service" (Davidson v. M'Robb, [1918] A.C. 304, at p.314; 10 B. W. C. C. 673, at p.684; 34 Digest 276, 2339).
The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply".
I have already stated what the nature of the deceased's work was and it was some eleven hours after he knocked off work that he died.
It is in the light of the deceased's medical condition that this aspect of the matter could be better understood and dealt with and I therefore propose to set out the medical evidence in this regard as hereunder.
It is not in dispute that for two years before his death the deceased was a 'tea boy' and also delivered messages in the mill area and cleaned the office.
There is no doubt that since 1982 the deceased was suffering from ischaemic heart disease (IHD). The PW2 DR.SHAOMIN who gave evidence based on Dr.Krishnan's report of 22 August 1991 testified that the deceased had artery atherosclerosis which gave chest pain and that it was a progressive disease. She said that work could accelerate a heart attack, light work was not bad for a person suffering from IHD but irrespective of whether he worked or not the change in his heart would still occur because of IHD. She said that the deceased was a very sick man but he could have died at any time since the disease was a progressive one.
This doctor did not say that the work the deceased did that day brought about his death. After he left work he went various places before returning home. Could this have brought about chest pains? This possibility could not be ruled out rather than the work which he did until 11.30a.m.
Dr. Rajeshwar Chand for the Respondent testified along the same lines as Dr.Shaomin. He said that 'angina' is not work related. It can happen at any time. It is the disease that caused his death.
There is evidence from the doctors and fellow employees that he was smoking daily which was bad for him. His cholesterol level was 329mg whereas normal is 240mg. According to KHALIL (PW4) a fellow employee the deceased did "his usual light duties" on his last day at work.
In his report dated 22 August 1991, Dr.Krishnan said that the "cause of his disease was coronary artery atherosclerosis which has no relation to his occupation. He was working on the day of his death with no complaints but died suddenly at home later on the same day" but he goes on further to state that "it is possible that the strain of his work could have accelerated his death within two months after a heart attack he already had on 19.08.90". He merely talks of the possibility of that happening but how does this tie up with the work he did on the day in question; the evidence in this regard is not there.
The above is in gist an account of the work which the deceased did on the last day at work and his medical condition.
The test to be applied in order to determine whether an accident arises out of the employment has been stated by LORD SUMNER in L. & Y.R. v HIGHLEY (1917) A.C. 352, 372 thus:
"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury".
Further, on the factors to be looked at to determine whether the accident arose out of employment, I refer to the case of PARTRIDGE JONES and JOHN PATON LIMITED JAMES (1933 A.C. 501) which states:
"An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it".
The facts in PARTRIDGE (supra) were different from the present case. There the deceased a ripper was suffering from disease of the coronary arteries, and his state was such that although he might die at any time without any act of physical exertion, any such exertion was dangerous and likely to lead to heart failure. He stopped work for a short time and sat down. Within ten minutes of stopping work he died. The House of Lords affirmed the award of damages.
Here, although he could have died at any time, he knocked off work without any complaint and whilst at home he died. Could be from any cause while at home. The possibility of some physical exertion after work cannot be ruled out but certainly not at work as there is no evidence in that regard. The evidence from PW4 is that he did "his usual light duties" on the day that he died. The learned Magistrate's statement at page 17 of record that " .... BANS BAHADUR with his high cholesterol continuing to work has been a contributing factor to his eventual heart attack" is unsupported by evidence. There is no nexus revealed between his work that day and his eventual heart attack some eleven hours afterwards at home. Dr.Rajesh Chand who said that he is not a cardiologist, is evidently not qualified to speak with authority and confidence on this matter.
The situation in CLOVER, CLAYTON v HUGHES was also different from this case. There a workman who was suffering from a serious aneurism was employed on tightening a nut by a spanner when he fell down dead. The county court judge found that death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal and the House of Lords held that it was a case of personal injury by accident arising out of and in the course of employment. There is a distinction between this case and CLOVER CLAYTON as is evident from the facts outlined already.
The principles applicable in situations such as the present have been clearly stated by LORD LOREBURN in CLOVER, CLAYTON (supra) at p.246. It will be seen from the extracts which I quote from the judgment of LORD LOREBURN that the deceased did not fit into the category of persons in whose case liability can be attached to his employer for his death. The relevant passages at p.246 are as follows: -
"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade".
He goes on to state that:
"Nor do I think we should attach any importance to the fact that this man's health was as described ..... An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health".
Further at p.247 he continues:
"In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly? Looking at it broadly, I say, and free from over-nice conjectures, was it the disease that did it, or did the work he was doing help in any material degree?" The answer to that question has been found in this case in the clearest terms, and, if any possible comment could be made upon the conclusions of the learned county court judge, my feeling would be that they had not been sufficiently emphatic as to the association of the employment and the disease which resulted in death".
In the same case at p.249 LORD MACNAGHTEN gave judgment to the same effect said:
"The real question, as it seems to me, is this: Did it (the death) arise out of his employment? On this point the evidence before the county court judge was undoubtedly conflicting. But he has held that it did, and I think there was sufficient evidence to support that finding .... 'The death,' the learned judge says, 'was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal'.
Mr. Udit referred the Court to a number of cases in which the Courts had to consider lapses of hours, weeks and even months from the time of knocking off work and time of death. In some cases it was held that death occurred in the "course of employment". But it should be borne in mind that each case must be considered on its own facts. I refer to the following extract from the judgment in BA INDUSTRIES LIMITED and LABOUR OFFICER, BA (Civil Appeal 37/83 Fiji Court Appeal) where the deceased died of a heart attack at home although there was "no positive evidence of existing heart disease". The employer's appeal was dismissed; the Court stated what had to be proved and on whom the decision lay of proving:
"No burden lay on the respondent to prove that the deceased was suffering from a heart disease prior to his death. Evidence that the manual work he was engaged in would not, as a rule, trigger a heart-attack in a normally healthy man would only provide basis for inference. The burden on the respondent was to show that the heart attack occurred during the course of his employment and that the work he was doing was a contributing factor". (underlining mine for emphasis)
In the case before me the Respondent has not discharged the burden that lay upon him; there was no evidence that the work that the deceased did some eleven hours before his death was a contributing factor.
On the facts of this case, I cannot find in the following passage from the judgment of CLAUSON L.J. in OATES v EARL FITZWILLIAM COLLIERIES CO (1939) 2 AER 498 at 502 (although worth noting) which was referred to by the Respondent, to be of any assistance as the work the deceased was doing at about the moment of the occurrence of the physiological injury or change did not contribute in any material degree to its occurrence:
"In our judgment, a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence - moreover, this is nonetheless true though there may be no evidence of any strain or similar cause than that arising out of the man's ordinary work". (underlining mine for emphasis).
The cases that were referred to were mainly those of workers dying at work. In the Court of Appeal case of WHITTLE v EBBW VALE STEEL IRON v COAL CO. LTD (1936) 2 AER the workman with heart disease was found dead at work. There was evidence in that case that the employment contributed to the death of the workman. In WHITTLE (supra) the House of Lords case of BARNABAS v BERSHAM COLLIERY CO. (1990) 4 B.W.C. 119, 34 Digest 325, 2656) was distinguished. There a collier died of apoplexy during working hours in a mine. It was held that the evidence as to cause of death was equally consistent with an accident and no accident and the onus of proving that it was due to accident rested on the applicants who had not discharged that onus. Similarly, in the case before me, the onus of proof has also not been discharged.
Further in WHITTLE (supra) SLESSER L.J. in discussing the case of FALMOUTH DOCKS v ENGINEERING CO. LTD v TRELOAR (1933) A.C. 48) H.L. and PARTRIDGE (supra) pointed out that in both those cases there was a finding that the worker might have died at any time, but what is more important is that there was evidence that the work he was doing was of a laborious nature and that it accelerated or produced the workman's death. One died ten minutes and the other 25 minutes after he last worked. The situation in the present case on the evidence is otherwise.
There is also the Fiji case of THE LABOUR OFFICER on behalf LUISA LEGALEVU and THE PORTS AUTHORITY OF FIJI (Civ.App. No.6 of 1983 F.C.A.) where the court in a "pre-heart condition" said that there has to be evidence of injury "occurring in the course of employment". It said:
"There does not seem to be any serious divergence of views as to the principle to be applied in such cases. It is not necessary for the evidence in case of a person with a long history of heart disease to show that a specific injury had resulted from a specific act during the course of employment. But, as was said in Oates v. Earl Fitz William's Collieries Co. (1939 2 All E.R. 498):-
"It was essential that there should be evidence of a physiological injury or change occurring in the course of a man's employment by reason of the work on which he was engaged at or about the time of his death".
The principle was also stated by Goddard J. in Whittle v. Ebbw Vale etc. Co. (1936 2 All E.R. 1221 at 1235) in following words:-
"The principle which I extract from the case of Partridge Jones v James (1933 A.C. 501) seems to me to be this: the House of Lords have decided that where a man in a diseased condition dies and it is found that the disease and the work together contribute to his death, then his death results from accidents within the meaning of that Act".
In the Ports Authority of Fiji (supra) because of lack of evidence as to the work the deceased did prior to his death no damages was awarded; but the Court concluded by saying:
"So in the instant case the applicant would have succeeded if there had been any evidence of heart attack during working hours and death followed shortly thereafter".
On lapse of time in WHITTLE (supra), SLESSER L.J. at p.1223 said "But there can be no general principle that a man must die immediately he has received the strain; it is a question of fact to be decided on the evidence and the medical evidence". Here there is no evidence of any strain as a tea boy or other miscellaneous work which he did. When I say that I note the following statement from the editorial note to OATES (supra):
"The Court of Appeal have reiterated that the proof of extra exertion or strain is not essential for recovery of compensation but there must be evidence of physiological injury or change due to the work upon which the workman was engaged at or about the moment of his death".
(underlining mine for emphasis)
Before I conclude on the list of authorities I would like to mention the case of FIJI ELECTRICITY AUTHORITY and LABOUR OFFICER (for and on behalf) of Kesaia Naikolala and Another) Civ. App. No.5 of 1993 of 24.8.94 where SCOTT J. found that although the death occurred after about 4 days the chest pain commenced on 4 April at work and continued until he died at home on 8 April after medical attention and hence it was work related. His Lordship stated that the "difficulty is not the principle but the evidence required to bring the matter within their scope" and with this view I concur.
To conclude, in this case with respect I have disagreed with the learned Magistrate's inferences from the evidence before him and find that he was "plainly wrong". In this regard I paid heed to the dicta of LORD SHAW in CLARKE v EDINBURGH TRAMWAYS CORPORATION [1919] UKHL 303; (1919) S. C. (H.L.) 35 where he said:
"...In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment".
With respect, I cannot see how the learned Magistrate could possibly have come to the conclusion that the deceased's death arose out of and in the course of his employment. There is nothing in the evidence to prove that the work the deceased did that day in any way caused or contributed to his death. The application should have been dismissed. To use the words of CLAUSON C.J. in OATES (supra) at 503: "In MILLER v CARNTYNE STEEL CASTINGS CO.LTD (1935) J C 207 the workman would have succeeded if he had collapsed during his work under the strain of his work ................." AND as KERMODE J said in the PORTS AUTHORITY of FIJI case (supra) (in the High Court Civ.App. No.13/82), so in the instant case the applicant "could have succeeded if there was evidence of a heart attack during working hours and death resulted shortly thereafter". With this view I agree.
For the above reasons the appeal is allowed with costs to the appellant. The costs are to be taxed unless agreed.
D PATHIK
JUDGE
At Suva
3 FEBRUARY, 1995.
HBA0004J.93B
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