He was employed e Defendant from 1992 until 31st December 1996 and until thil the 15th of October 1995 as a member of the crew on
one of its fishing boats which operate out of Suva.
On 15th of October 1995 while working on one of the Defendant's boats "l Fortune" in the wate waters off Lau he was directed
by servants or agents of the Defendant engaged in work on the same boat to unclip branch lines from the main fishing line and while
doing this was hit by a snapped fishing line which flew on to his left eye causing severe injuries to the eye.
As a result of this accident the Plaintiff has lost the sight of the and has a scar approximately 3cm long extending from abov above
the eyelid about half way to the left of that lid. He now claims damages for his injuries and alleges that they were caused by the
Defendant failing to take any or any adequate precautions for his safety while he was engaged in his work.
He bases his claim first under the ordinary principles of common law negligence and altively he alleges breach ofch of the Factories Act Cap. 99. Particulars of the alleged negligence are set out in the Statement of Claim annexed to the Writ herein which was issued
on the 18th of June 1996. These are as follows:
(a) Exposing laintiff to a risk of damage or injury of which the Defendant knew or ought to have known.
(c) Failing to provide him with adequate or suitable tackle or appliances, and in particular with any or any suitable protective face
gear or goggles or effective screens to enable him to carry out his work in safety and to protect his eyes and face while he was
working.
(d) Causing or permitting him to work without ping him with any suitable gble goggles or effective screens to protect his eyes and
face when the Defendant knew that it was unsafe and dangerous for the Plaintiff to carry out his work without such protection.
(e) Faili take any measures to protect the Plaintiff from being injured by snapped or flying fishingshing lines.
(f) Faili take any or any adequate measures whether by way of examination, inspection, testing or otor otherwise to ensure that the
Plaintiff was not injured by fishing lines.
(g) Failing to move the boat uniformly to avoid highion on the fishing line.
(h) Failing to provide professional medical attention promptlyan>
The culars of statutory negligence allege breach by the Defendant of Section 24(1) and Section tion 63 of the Factories Act.
Section 24(1)ires an employer, so far as is reasonably practicable, to provide among other things a safe safe working place for his
employees.
Sect3 deals with the protection of eyes and states "suitable eye protection shall be proviprovided for all employed persons where
there are circumstances involving special danger to their eyes".
The word "factory" is defined in Section 2(1) of th as including (ii) any premises in which the business of soof sorting
any article is carried on as a preliminary to the work carried on in any factory and in (ix) any premises in which the business of
making or mending nets is carried on incidental to the fishing industry.
Section 73 gives Inspectors the right among other things to make such examination and inquiry as may be necessary to ascertain whether
the provisions of the Act are complied with in relation to any factory and any person employed in the factory.
Sect0 deals with offences and penalties for any contravention of the provisions of the Act rela relating to a factory.
A Defence was delivon the 14th of April 1997 but before the hearing began before me on the 1st of April 1998 t998 the solicitor for
the Defendant sought leave to withdraw his representation of the Defendant on the grounds primarily that he was having great difficulties
in obtaining proper instructions to defend the matter from the Defendant's insurers and that as the insurance cover was limited to
only $6,000.00 it was considered it may be in the interest of the Defendant to obtain the services of its own solicitors to defend
the case. The application was made by Summons dated 27th of March 1998 and on the hearing I gave leave to Messrs Lateef & Lateef
to withdraw as solicitors for the Defendant subject to them filing an Affidavit of Service on the Defendant of the Summons of the
27th of March within 24 hours. This was duly done and as there was no appearance either in person or by other counsel for the Defendant
I directed that the action proceed undefended. Sworn evidence was then given by the Plaintiff and another witness and I shall now
summarise that evidence.
The Plaintiff stated that he is single, was educated to Form 3 and lives with his grandmothncle, aunt and two younger nger brothers.
At the time of the accident he was the sole breadwinner for this family. After he left school he joined the army in 1987 and remained
until 1990. He began working for the Defendant in 1992 and said that the Defendant has several fishing vessels and exports fish overseas.
The normal practice was to leave Suva for a fishing trip lasting two weeks and then return with the catch. On the 15th of October
1995 he was fishing on the vessel "Royal Fortune" which had 9 crew, all Fijians, and 4 officers, all Koreans, comprising
the Captain, First Officer, Chief Engineer and Second Engineer.
He saidsystem of fishing was to lay a main line of heavy plastic for several kilometres.
Attached to the main line was a large number ofler branch lines between 10 and 12 feet long with fishing hing hooks attached. These
lines were spaced about 12 feet from each other and linked with the main line by clips. There were hundreds of such small branch
lines on the main line which was fixed with a number of buoys which kept it afloat.
The system was to lay the main line and leave it for a few hours to enable fish to bite and start pulling in the main main line. There
were two rollers on the boat and one member of the crew would then start rolling the wheel so that the main line would start collecting
on that roll. This brought the smaller branch lines towards the boat and a member of the crew would then start bringing in the branch
lines.
Another member unhooked the fish at the end of the line and put them e cooler. The Plaintiff saif said this was a very delicate operation
because the First Officer or Captain had to co-ordinate with the person operating the roller to ensure that the boat moved uniformly
with the main line as it was being wound on the wheel. If there was no proper co-ordination tension would be created on the main
line which could then snap. The Plaintiff said the line would also snap if the sea were rough or if the Captain or the First Officer
were not sufficiently skilled to handle it.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In the eve the main line snapping which happened frequently, the boat was turned around to pick up thup the line because it was floating
with the help of the buoys and the operation then resumed.
When the line snapped it sprang back and hit the crew including the Plaintifquently. The Plaintiff said said that no goggles or protective
clothing were provided by the Defendant for the crew working the lines. They complained to the Captain about this lack of protection
but nothing was done to remedy the failure. The Plaintiff said that the Captain told them that if they did not like the work they
could leave. As the Plaintiff had no other source of income he was forced to continue to work to feed his family.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the 15th of October, which was a Sunday, they had laid the main line severaes and after a few hours thrs they started pulling it
in. They had caught a large number of fish. When the first roller was almost full the Plaintiff was taking a clip off the branch
line.
Another member of the crew was next to him pulling in small lines taking off them and putting them ihem in the cooler.
Suddenly the main line became tense and snapped. One end flew back on the boat and hit tft side of the Plaintiff's ff's head at an
angle. The Plaintiff then demonstrated showing that the line hit the right top of his forehead and across diagonally to his left
eye and chin. The Plaintiff fell and slumped on to the deck. He was unconscious and when he regained consciousness after about half
an hour he realised he was in his cabin. There was much blood on his face, he had headache and pain all over his body. He felt great
pain in the left eye and had lost much blood. He had no strength.
The accident ocd at about 10.00 p.m. and while he was unconscious the Chief Engineer stitched the eyelid. lid. He later told the Plaintiff
he had done this. He also said that at the time the fishing was carried out under lights. The only medication available was Panadol
tablets which did not give him any relief and his eye continued to give him much pain.
The nearest port to the boat when the accident red was Lakeba which the Plaintiff could see about thirteenrteen miles away. They were
then about two hundred miles from Suva.
The Plaf says that he knew there was a Medical Centre at Lakeba which also has an airstrip and is d is about one hour's flight from
Suva. The Plaintiff says that the Captain could easily have taken him to Lakeba whence he could have been flown to Suva but he did
not suggest this to the Captain.
The boat remained at sea and returned to Suva as scheduled on the following Tuesday the 17th of October at about 8.00 p.m.
He said that when he was in his cabin only the Fijian crew came to see him. When the boat reached Suva he asked the Captain for money
to take him to hospital and was given $5.00.
At Suva the boat was met by a Mr. Alfred of Jiko Fisheries Limited ook him by car to his uncle's house to inform his family thly that
the Plaintiff had been injured. His uncle then joined him and Mr. Alfred drove them to the Colonial War Memorial Hospital where they
arrived about 10.00 p.m.
The Plaintiff was seen promptly by a r who cleaned his eye which was bleeding and bandaged it. Hit. He told him to go home and return
the next morning to see an Eye Specialist which he did. The Eye Specialist removed the stitches and stitched the eye again under
local anaesthetic.
The Specialist toe Plaintiff to go home but come back to the hospital later which he did. The pain continuedinued and so he was admitted
on the 28th of October and remained as an in-patient for two weeks. The Plaintiff says during this time he was very weak and had
headaches. He could not sleep and felt frightened. The doctor told him that his left eye had become permanently blind. The Plaintiff
then tendered medical reports on his condition, one from the Colonial War Memorial Hospital which said that the Plaintiff had vision
of hand movement only in the left eye and normal vision in the right eye. There was a left lower lid and upper lid laceration with
dislocated lens and total hyphaema, meaning the anterior chamber of the eye had haemorrhaged.
The lid laceration was sutured on 8th of October but the damage to the left eye was so extensive that Dr. T.B. Sikivou, the Othe Ophthalmology
Registrar, said that the Plaintiff's vision was then only perception of light.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On discharge the Plaintiff was seen in the Eye Clinic until the 8th of Feb 1996.
At the request of the Defendant's then solicitors the Plaintiff was examined in Fiji this year by an Eye Specialist Dr. Girish Jamnadas
whose report after giving the history is as follows:
"On examination vision his left eye iserception of light. There is notching of the upper lid marg margin, i.e. there is loss
of upper lid issue measuring 1.5cm in length. The cornea is normal. The eye is aphakic with a remanent of after cataract present
which is appearing as a whitish scar. Also most of the iris is absent with a small portion of the iris remaining superiorly. Introcular
pressure is 10mm mercury for each eye. Funduscopy in the left eye shows proliferative retinopathy of the left eye in the macula region.
The right eye is normal with normal vision.
The above patient has suffered complete loss of vision in eft eye rending him monoculnocular. In addition to that he has suffered
cosmetic deformity of his upper eyelid. I do not feel that there would be any useful vision gained with further surgery. If you require
any further information please do not hesitate to contact me."
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Plaintiff says that his employers paid him his wages until December 1996 but he has been unable to work since the accident. He
survives only because his grandmother, who is now aged 73, goes fishing from the Lami Wharf.
The Plaintiff says we does any work, for example sweeping the house and bending down, he fells weak, and his heis head starts spinning.
His condition is worse in the wet season when he gets neck pain and pain in his eye. He was admitted to hospital again on the 2nd
of May 1997 because his whole body was weak and he had lost weight. He says he was in hospital for one month.
Before the accident he played rugb pleasure but now could not do so because of his injury. He says that since the accident hint his
personality has changed and he worries about his condition. He keeps remembering the accident and this makes him frightened. Before
the accident he led a very happy life but now does not talk much and has no social activity. He stays at home mainly. In traffic
he feels frightened as a pedestrian and in supermarkets and other markets feels uncomfortable. Now in a supermarket he goes direct
to what he buys but before the accident he wandered around looking at goods. Before the accident he used to attend rugby matches
but since the accident does not. At the time of the accident he was earning $153.45 per fortnight nett. He has also lost his employer's
contributions of $11.55 per fortnight to the Fiji National Provident Fund from the 1st of January 1997 to the 28th of March 1998.
The Plaintiff's uJosefa Radanita then gave evidence. He said that before the accident the Plaintiff was very very strong and active
and talkative. Since the accident he has become quiet. Mr. Radanita has noticed the Plaintiff is nervous when in supermarkets and
now remains at home most of the time. He cannot stand for very long and lies down a lot.
On this evidence I am satisfied that the Defendant was nent at common law and alternatively was guilty of statutoryutory negligence
for failing to comply with Sections 24 and 63 of the Factories Act, I hold that at the time of the accident the fishing vessel on which the Plaintiff was employed was the Plaintiff's place of work
and as such the Defendant had a duty to keep it safe for the Plaintiff at all times while he was employed.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the 15tOctober 1995 it failed to do so. Also the Defendant was in breach of Section 63 in failing ling to provide suitable eye
protection for the Plaintiff when his work involved special danger to his eyes. I find also that the boat was a factory within the
meaning of Section 2 of the Act particularly sub-paragraph (ii) and sub-paragraph (ix). It now remains to assess the Plaintiff's
damages.
As a result of his accident the Plaintiff has suffered the loss of sight of his left eye and has a scar on the left eyebrow. The eye
is unpleasant to look at because it is permanently bloodshot and I have no doubt is one of the reasons why the Plaintiff claims some
loss of personality and has made him disinclined to mix with the public as he did before the accident. I believe this is a source
of some embarrassment to him.
In addition I cannot understand why the Captain of his boat did not go in to the port of Lakestead of remaining at sea tsea to complete
the fishing expedition.
In my opinion it must have been obvious to any reasonable person ord the vessel that the Plaintiff had suffered a very seriouerious
injury and it was desirable to get medical attention for him as quickly as possible. In my judgment if the Captain or any of his
officers did not know that medical assistance was available on Lakeba or indeed that it had an airstrip from which the Plaintiff
could have been flown to Suva at least on the Monday morning, it would have been simple for him to ask any of the Fijian crew whether
they knew if such services were available at Lakeba. Given their respective positions, I do not consider it was unreasonable for
the Plaintiff not to have requested the Captain to go into Lakeba. I believe the Captain owed a duty of care to the Plaintiff in
this regard to get medical assistance for him as quickly as possible and in my view this was no later than during day light on the
16th of October. Instead the Captain preferred to remain at sea and return to Suva only on the normal date. In the process in my
judgment he caused the Plaintiff unnecessary pain and suffering which could have been at least mitigated considerably by his receiving
qualified medical attention as soon as possible on the Monday morning.
Counsel for the Plaintiff has referred me to a number of decisions of English and Australian Courts during the last six years and
damages for eye injuries, beginning with two New South Wales Supreme Court decisions, Latimer v. Lismore City Council (decision of Master Greenwood) No. 600165/92 in which a male student, aged 17 years who suffered blindness in his left eye following
a detonator explosion was awarded $95,000.00 for pain and suffering and loss of amenities of life. In Nominal Defendant v. Ischac (decision of Powell and Stein JJ) No. 40439/97 an unemployed male, aged 28 years was awarded $112,500.00 for pain and suffering and
loss of amenities of life for the loss of an eye following a motor vehicle accident. In Ould v. McKee Newton DCJ Southport Queensland, No. 321 of 1990, on 12th October 1993 awarded $50,000.00 for pain and suffering and loss of amenities
for a 28 year-old male who suffered the total loss of sight in his right eye in a motor vehicle accident on 12th June 1987. Like
the Plaintiff in the present case the Plaintiff Ould became monocular as a result of the accident and Judge found that the eye was cosmetically unacceptable.
In Trevis v. Newhopes Collieries Pty Ltd in District Court ane Case No. 1124/91 Wylie DCJ awarded $56,000.00 for pain,pain, suffering and loss of amenities of life to a male
paving contractor, then aged 36 years who suffered the loss of all the sight in the right eye following a motor vehicle accident
on 9th December 1988.
In a recent English decision Kyci v. Utility Tyre Services Ltd reported in the October 1997 Current Law Monthly Digest at p.65, on the 1st of July 1997 His Honour Judge Quentin Edwards Q.C. awarded
general damages of £23,000.00 to a male aged 31 at the time of the accident and aged 36 at the date of hearing who suffered total
loss of vision in his left eye when a piece of wire measuring approximately 5mm broke loose from a tyre which he was remoulding and
penetrated his left eye.
If one were to converte general damages into Fijian currency at the present rate of exchange it would be equivaleivalent approximately
to F$69,000.00. However it must be remembered that the cost of living in England has, at least since the end of World War II, been
much higher than in Fiji and for that matter Australia also. Thus it is considered in some quarters that bearing in mind the relatively
low cost of living in Fiji compared with that of England it is unwise to simply multiply the English award by the current rate of
exchange so as to equate it with Fijian dollars so that it might be said the award of £23,000.00 in Kyci is roughly equivalent to the same amount in Fijian dollars. If that be true, then with great respect to Judge Quentin Edwards, I
must say that in my view such an award would be most inadequate in Fiji.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> More to the point in my view are the Australian decisions I have just quoted. os of this I might add that that I think it is commonly
agreed in the profession that until recent years, despite the very high cost of living in England, awards there for general damages
have been much lower than those in Australia for comparable injuries. It is true that in the last 10 to 15 years awards for general
damages for personal injuries in England have been slowly rising but generally speaking as a guide I find Australian decisions far
more helpful in the assessment of damages for particular injuries.
Consequently whilst I accept it will probably be a long time before an award of $112,500.00 (Nominal Defendant v. Ischac) or $95,000.00 (Latimer v. Lismore City Council) will be made in Fiji for the loss of sight of one eye I do not consider it would be outrageous to award the Plaintiff in this case
$50,000.00 for pain and suffering and loss of amenities as was done by Newton DCJ in Ould v. McKee.
On the other hand the usual practice of the law is to advance by gradual increments wherever pos. With due respect to previprevious
decisions of the superior courts in Fiji until the last eight years I think it fair to say that increments in the award of general
damages here have not been merely gradual but at times regrettably slow and almost painstaking.
That situation I am grateful to see has now changed.
In the present case I consider that the Plaintiff should receive an award of $5000 for the loss of sight ofht of his eye and the cosmetic
defect arising from the scar on his left eyebrow and the unpleasant appearance of his eye due to the accident. This of course includes
damages for the pain and suffering and loss of amenities he has had to endure since the accident. In addition the Plaintiff claims
special damages of $5,340.00 consisting of:
Ml Reports - $60.00
Loss of earnings at $153.00 per fortnight
from 1/1/97 to 28/3/98 - 32 fortnights - 4,910.00
Loss of employer's contributions of $11.55 per fortnight for 32 fortnights (1/1/97 -
28/3/98) - 369.60
The Plaintiff claims loss of prospective earningthe future at $80.00 per week. This is because it is arguedrgued that he has lost
approximately one half of his former earning capacity and although he has been unemployed since the accident he recognises that there
is probably some work of which he is now capable such as that of a cleaner. He told me that as such he could expect to receive between
$35.00 and $40.00 per week if able to get such a job. I consider this reasonable and I told the Plaintiff that it is in his own interest
to endeavour to find work as soon as possible otherwise he will continue to be reclusive which can not be good for him psychologically.
He therefore claims $80.00 x 52 weeks x 16 years (the multiplier) and the sum of $66,560.00 under this heading.
Although I am inclined to think that tay be a little pessimistic, in the absence of any argument ment from the Defendant as to a different
amount and a different multiplier I am prepared to accept this sum as reasonable.
In addition the Plaintiff is entitled to interest on his damages which I assessollows:
General Damages $50,000.00 by 5% from the
date the Writ was issued, 12th June 1996
to the date of judgment - 2 1/3 years - $5,833.00
He is also entitled to interest on his special damages which is acd here, following Jefford v. Gee [1970] EWCA Civ 8; (1970) 2 Q.B. 130, 130, as half the rate on general damages from the date of accident to the date of trial. This amounts to $344.00 and to this must
be added his prospective loss of earnings of $66,560.00. In total these sums come to $128,077.00. Bearing in mind all other factors
such as the impossibility of estimating precisely the amount of general and other damages I round this off to $128,100.00.
There will be judgment for the Plaintiff against the Defendant for the s $128,100.00 which automatiomatically carries interest at
the rate of 4 percentum per annum until satisfied and for which, as Pathik J. recently said in Civil Action No. 244 of 1995 Anjula Wati v. Vakatora Holdings Ltd and Others unreported judgment of 17th October 1997, no order of the Court is necessary.
The Plaintiff is also entitled to his costs of these proceedings which are taxed if not agreed.
JOHN E. BYRNE
JUDGE
Legislation and cases referred to in judgment:
Factories Act Cap. 99.
Kyci v. Utility Tyre Services Ltd, October 1997 Current Law Monthly Digest p.65.
Latimer v. Lismore City Council, NSW Supreme Court No. 600165/92.
Nominal Defendant v. Ischac, NSW Supreme Court No. 40439/97 decision of Powell and Stein JJ.
Ould v. McKee, District Court No. 321 of 1990, unreported judgment of Newton DCJ of 12th October 1993.
Trevis v. Newhopes Collieries Pty Ltd, District Court Brisbane Case No. 1124/91 of Wylie DCJ.
Civil Action No. 244 of 1995 High Court Suva, Anjula Wati as Administratrix of the Estate of Suraj Prasad v. Vakatora Holdings Ltd and Others - unreported judgment of Pathik J. dated 17th October 1997.
Hbc0283j.96s
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