IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL CASE NO: HBC 624 OF 1998

BETWEEN:

JAI RAJ
f/n Sukh Raj
Plaintiff

AND:

FLOUR MILLS OF FIJI LTD.
Defendant

COUNSEL: Mr. V. Maharaj for Plaintiff
Mr. H. Lateef for Defendant

Hearing: 2nd September 1999
Judgment: 9th November 1999

JUDGMENT

On 24th November 1998, the Plaintiff filed a writ against the Defendants claiming special and general damages for injuries sustained in the course of his employment as a Maintenance Fitter for the Defendant Company. The Defendants filed a Statement of Defence on 5th January 1999 denying liability, and in the alternative, claiming contributory negligence.

The trial in respect of the matter was conducted on 2nd September 1999. Written closing submissions were filed by both counsel by 13th September 1999.

In the course of the trial, the Plaintiff called 4 witnesses, Jai Raj, Masla Mani (the Plaintiff’s co-worker), Dr Jagdish Maharaj and Anushma Devi (the Plaintiff’s wife).

The Defendants called Francis De Souza (Maintenance Manager at the Defendant Company) and Daniel Kumar, (Production Supervisor at the Company).

The plaintiff’s evidence was that he is a 39 year old man, employed as a maintenance fitter at the defendant company since February 1997. As maintenance fitter he was responsible for the general maintenance of all the machines at the company. These machines are part of an industrial plant which manufactures flour, rice and dhal. In August 1998, the plaintiff was instructed to install a new drag conveyor machine on top of the silo at the factory. This machine is for pulling wheat into the silo. The silo is a 5 storey building with a ladder running down the side to the ground.

The plaintiff worked on the machine from 27th August 1998. He recommenced work on the machine at 7.30 a.m. on 31st August, a Monday, together with Masla Mani and one Amman. By Monday evening the work was still incomplete, with welding for the brackets and belts and nuts for the cover and the spout belt needing to be done. The plaintiff said he was told by Francis De Souza to complete the project on the same day. He said he went to the ground for 20 - 25 minutes at about 5 p.m. to collect stores. He then returned to the top of the silo to continue welding. He said he was seen by Daniel, Anirudh and Muthu (his co-workers) working on the machine. He then told his colleague Masla Mani to keep welding while he put his hands inside the spout to tie a belt. When he was tying the second belt, the machine started. His hands were crushed in the machine. He told Masla Mani to switch the machine off at the manual switch. The plaintiff was rushed to hospital where his right arm was amputated. He said he did not know that the machine would be switched on by computer, that he had not been present at about 5 p.m. when a test-run had been conducted on the machine and that his instruction had been to complete the project on the same day. In cross-examination the plaintiff agreed that all employees of the factory had been given padlocks to isolate machines before they worked on them, but said that this rule only applied to old machines, and not to the new drag conveyor which he had thought, had not been supplied with electricity at the time of the accident.

PW2 Masla Mani gave evidence which supported the plaintiff’s evidence. He agreed that they had been told by Francis de Souza to complete the project by the end of the day on 31st August 1998. He said he knew there had been a test-run of the machine at 5 p.m. but could not recall if the plaintiff had been present during the test. He said that there was no warning of a computer test-run, and said that he did not know that the machine had been energised. Masla Mani said that he heard Daniel, Anirudh and Vijay telling the plaintiff that belts were needed in the spout of the machine. He said that unlike normal procedure at a test-run of a new machine, no one was present with a walkie-talkie radio to tell the computer room that it was safe to start the machine.

He said there was no need to isolate the machine by clamp because it was a new machine. Under cross-examination, he agreed that he knew that the machine had been energised during the manual test, but thought the electrician had clamped it after the test.

Dr Jagdish Narayan’s evidence was that the plaintiff’s arm had to be amputated after the accident and that the plaintiff now needed a prosthesis. His left arm was also injured in the accident in that he can barely move his fingers and elbow. His disability is assessed at 100%.

Anushma Devi is the plaintiff’s wife. She gave evidence of the pain and suffering suffered by the plaintiff and the degree of dependence he now has on her. I will be returning to her evidence in the latter part of this judgment.

The Defendant’s first witness Pascal Francis De Souza gave evidence that he was in August 1998, and still is, Maintenance Manager at the Defendant Company. In August he was the plaintiff’s immediate superior. He said that he had instructed the plaintiff to install the drag conveyor, and that he had told him to complete the work on the same day. He said he had inspected the work several times during the day, and that he had conducted a test-run at 5.15 p.m. on 31st August. He said that the plaintiff was present when the manual test-run was conducted. He said that the machine ran perfectly and that he told the boys to pack up and go home. He could not say whether he had told them that he would now try the computer test-run. He said he had noticed that 2 or 3 belts were missing but said he had not told the boys to fix them. He was not aware if anyone else had told them to fix the belts. He said that all employees were instructed in writing to follow the “Isolation Procedure.” This was that all machines were to be switched off and padlocked before any work was done on them. He said the plaintiff had been issued with padlocks 11 and 18, and that he was expected to clamp the machine before working on it. He said that the rule applied to new and old machines. He agreed under cross-examination, that the work was urgent because there had been a fire in the silo over the weekend. He agreed that he had not checked if the boys had gone home after the manual test-run, and agreed that it would have been prudent to check before starting the machine from the computer room. He also agreed that it would have been prudent to use the walkie-talkie system to ensure that the machine was safe to run, since it was not visible from the computer room at the bottom of the silo. He agreed that he could have informed the plaintiff before starting the machine.

Daniel Kumar, the defendant’s second witness, said that he was head operator at the Flour Mills factory, and had been employed by the company for 9 years. He said that he had not been present during the manual test-run but had visited the new machine site at 6 p.m. The plaintiff, Masla Mani and Anirudh were there. He said he noticed that three belts were missing and told Francis de Souza, who said that the installation could wait until the next day. He said he heard Francis tell the boys to go home and that he heard Francis tell everyone that he was going to run a computer test-run. Daniel then left the scene and went to the computer room. He said that they checked if anyone was at the machine by walkie-talkie before the computer switched the machine on.

Under cross-examination he said that he thought the machine had been switched off after the manual test-run but had not checked it himself. Nor did he know who switched the machine on again before the computer run.

Counsel for the plaintiff, Mr V. Maharaj claims liability on two bases; firstly under common law, and secondly for breach of statutory duty under the Health and Safety at Work Place Act 1996. He referred to the employer’s general duty to provide general safety instructions to their employees, and to lay down a reasonably safe system of work. He submitted that Francis de Souza had failed to provide effective supervision, that he had failed to warn the plaintiff that the machine was to be switched on although he knew that the work on the machine was incomplete. He submitted that the court should dismiss the claim of contributory negligence on the basis that the plaintiff did not hear the instructions to stop work at 5.15 p.m. after the manual test-run, and on the basis that the plaintiff did not need to clamp a new machine, which the plaintiff thought, had not been energised.

Mr H. Lateef for the Defendants said that the Defendants had accepted liability under the Workman’s Compensation Act and that the plaintiff’s salary continued to be paid to him since the accident. He submitted that the accident would not have occurred if the plaintiff had isolated the machine by using the clamps and padlocks. He also submitted that the plaintiff was present during the manual test-run according to the evidence of Francis de Souza and that he should have known that the machine was operationable.

Mr Lateef further submitted that Francis de Souza’s evidence was that everyone was told to stop work at 5.15 p.m. but that the plaintiff continued to work on the machine. He submitted that there was no duty on the defendants to place notices on the machine or to use walkie-talkies since the employees had all been told to go home.

Furthermore the plaintiff failed to follow basic safety instructions. As such the defendants were providing a reasonably safe system of work, and they were not liable.

Having heard the evidence in this case, I am satisfied that the plaintiff and Masla Mani were truthful and forthright witnesses. I accept the plaintiff’s evidence that he was not present during the manual test-run, that he did not know that the machine had been energised, that he did not hear the instruction to pack up and go home, and he did not consider the necessity to isolate the machine because it was a new machine that to his knowledge had not been connected by the electricians.

In particular I note that the evidence of Francis de Souza and Daniel Kumar as to the use of walkie-talkies, as to the isolating of the machine after the manual test-run, and as to whether Francis warned the men of the planned test, to be contradictory and unreliable.

I consider that Francis de Souza failed to check with reasonable prudence that his instructions had been carried out by everyone working on the machine including the plaintiff, had failed to ascertain by a walkie-talkie that the machine was safe before the computer test-run commenced, and importantly, had failed to tell the plaintiff, who was his next-in-command, that the computer test-run was to take place. I note in particular that walkie-talkies had been used for the manual test-run, and that Mr de Souza conceded in cross-examination that he could have used them for the computer run, and could have informed the plaintiff of his intention to run the machine. I do not accept his evidence that the plaintiff was present during the manual run, and that he was present when Mr de Souza gave instructions to stop work.

The evidence therefore is that the defendants did issue instructions to all employees (Exhibit D1) that “No repairs or maintenance shall begin on any Plant, Machinery or Equipment without it first being isolated from the power source ...... A multiple locking device and padlock MUST be used wherever possible.” The evidence is also that some employees did not believe that the instructions applied to new machines. The evidence is also that the plaintiff was told to finish the project the same day, that he was not present when his colleagues were told to go home at 5.15 p.m, that the project was incomplete to the knowledge of his superior, that he was not told that the machine would be tested again and that there was no check done from the computer room to ascertain that the machine was safe to operate.

Liability

The question is whether on these facts, in the common law, the defendant company has failed to provide a safe system of work.

The authorities suggest that some regard should be given to the level of knowledge and experience of the plaintiff workman. In Qualcast (Wolverhampton) Ltd. -v- Haynes (1959) AC 143, the House of Lords in considering an employer’s duty to insist on employees wearing protective clothing provided said (per Lord Keith of Avonholm) at page 755:

“The duty owed by the employers was a duty owed to the plaintiff. This is not necessarily the same as the duty owed to others of the workers. The duty may vary with the worker’s knowledge and experience.”

It was held by the House of Lords, that having provided protective attire, there was no additional duty to insist that the plaintiff, an employee of some experience and seniority, should wear them.

In General Cleaning Contractors Ltd. -v- Christmas (1953) AC 180, Lord Reid said (at page 193):

“The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out. On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not sufficient answer. Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required ....”

The question is therefore whether taking into account the considerable experience and seniority of the plaintiff in machine maintenance, the defendants had provided him with a reasonable safe place of work and whether the factory was as safe as the exercise of reasonable care and skill permitted.

In considering whether or not a safe system of work has been provided it is essentially a question of fact whether a system should be prescribed, whether the operation required proper supervision, or whether a reasonably prudent employer would properly think could safely be left to the individual employee (Jenner -v- Allen West & Co. Ltd. (1959) 1 WLR 554.

Merely prohibiting certain acts where a danger is known to exist is not always sufficient to relieve the employer of liability (Baker -v- T.E. Hopkins & Son Ltd. (1959) 1 WLR 966).

Moreover, where a system has been provided and the employer knows it is not being followed and does nothing to enforce it, the employer is liable (Clifford -v- Charles H. Challen & Son Ltd. (1951) 1 KB 495. It follows that providing a safe system is not enough, an employer must take reasonable steps to see that it is carried out (Crookall -v- Vickers-Armstrong Ltd. (1955) 1 WLR 659.

The onus of proof that the defendant has been negligent is on the plaintiff, and it must be proved on a balance of probabilities.

Section 9 of the Health and Safety at Work Act No. 4 of 1994 provides:

“(1) Every employer shall ensure the health and safety at work of all his or her workers;

(2) Without prejudice to the generality of subsection (1) of this section, an employer contravenes that subsection if he or she fails -

(a)	to provide and maintain plant and systems of work that are safe and without risks to health;

(b)	to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transplant of plant and substances.”

Section 9(4) provides that contravention of the section creates a criminal offence. Section 15 of the Act provides that:

“Nothing in this Part shall be construed as -

(a)	conferring a right of action in any civil proceedings in respect of any contravention, whether by ct or omission, of any provision of this Part.”

In the light of this provision I find that section 9 of the Health and Safety at Work Act 1996, has very little relevance to these proceedings.

I now turn to the evidence.

The evidence shows that whilst the defendant provided clear instructions to employees to isolate machines they were working on, no steps were taken by the plaintiff’s superior to see that those instructions were carried out. Indeed it is clear that the drag conveyor in question was never isolated, that the plaintiff’s superiors visited the machine on many occasions on the 28th, 29th and 31st of August 1998 and either did not notice or noticed and ignored the fact that the machine was not isolated in accordance with the general instructions. When Mr de Souza ran the manual test-run he either failed to see or saw and did nothing about, the absence of a padlock on the machine before the machine was energised. The padlock (which appears to have been installed later) can be seen in Exhibit 1 (photograph).

The failure of the plaintiff’s superiors (including Durgessan Naiker the Chief Electrician who was out of the country and was not called) to enforce the instructions tends to confirm the evidence of the plaintiff and Masla Mani that they did not apply to the installing of new machines in practice.

I find therefore that in failing to take steps to ensure that the machine was isolated before the test-run, in failing to ensure that the plaintiff was no longer working on the machine when the computer run commenced, and in failing to inform the plaintiff of the intended test-run particularly when the work on the machine was still incomplete, the defendant was in breach of its duty to provide a safe system of work to the plaintiff.

It follows that I do not find any degree of contributory negligence on the part of the plaintiff. He did not know that the machine was energised. He did not know of the manual test-run. He did not know that the workers had been told to go home at 5.15 p.m. He did not know there would be a computer test-run. He had been working on the machine for three days and had been told to complete the work on the same day. Three belts were missing and he was replacing them when, without warning, the machine started. No isolation clamp or padlock had been used on the machine and none of his superiors had questioned this for three days.

In the circumstances I do not consider that the plaintiff departed from a reasonable standard of care in respect of the accident and I consider that the defendant has failed to prove a contributory negligence on a balance of probabilities.

Damages

I now turn to the question of damages. The plaintiff asks for $95,000 for pain, suffering and loss of amenities of life, $256,608.00 for loss of future earnings, a total of $45,360.00 for loss of FNPF contributions, $50,000 for medical expenses including the cost of Prosthesis, $6,480.00 for cost of nursing services, and interest from the date of injury to the date of judgment.

The defendant submits that the sum of $30,000.00 is sufficient for pain and suffering and loss of amenities of life,$120,000 for loss of future earnings (using a multiplier of 12) and interest from the date of filing of the writ. He made no submissions on medical costs and suggested that FNPF contributions should be paid but on the basis of the multiplier of 12.

Pain and Suffering and Loss of Amenities

Whilst the defendants submit that the plaintiff suffered little pain and suffering because he was unconscious for four days after the accident, it is clear from the evidence that there was significant pain and suffering. When the machine started, one arm was crushed and the other jammed inside the machine. The plaintiff cried out at the pain and told Masla Mani to switch off the machine. Some time was then spent extricating the plaintiff from the machine. He was unconscious for three days after being taken to hospital. He said in evidence:

“I suffered unbearable pain. I saw my arm was amputated. I thought it was better for me to die. They did skin grafting from my thigh. For one month I was in plaster. I was on medication .... I took pain relievers.”

The plaintiff is 39 years old. He was a keen sportsman prior to the accident. He is now largely inactive, and dependant on his wife for the simplest tasks. His sexual relations with his wife have deteriorated and he now feels embarrassed to go out. He may now be fitted with an artificial limb but is unlikely that his left arm will ever be restored. He has been taken to theatre on many occasions for wound cleaning, stump closure, skin graft and for removal of an external fixator.

Although there is no suggestion that his left arm will also be amputated, he cannot use the arm. The medical report noted however that he may benefit from therapy.

The plaintiff himself says that he continues to suffer pain, especially when his stump is touched.

I cannot agree therefore that an award of $30,000 reflects adequately the degree of pain and suffering and loss of amenities suffered by the plaintiff.

In Attorney General -v- Sharma FCA 41/93 the Fiji Court of appeal said at page 9:

“Pain and suffering and loss of amenities of life are not susceptible of measurement in terms of money; a conventional figure derived from experience and awards in comparable cases must be assessed.”

Counsel in this case were unable to refer the court to other cases where the plaintiff had lost the use of one arm and suffered severe disability in the other.

However, in Rothmans Pall Mall (Fiji) Ltd -v- Narayan FCA 51/93 an award of general damages of $60,000 was upheld for a 25 year old man whose leg was injured in a traffic accident and whose situation was akin to a man suffering amputation and severe disability of an arm.

In Attorney-General -v- Sharma FCA 41/93, a sum of $AU50, 000 was awarded to a man whose leg was amputated after he developed gangrene.

When considering damages under the head of pain and suffering, the court must consider; the pain the plaintiff actually suffered and will continue to suffer. As stated in Kemp & Kemp (Vol. 1 p.2007 2-010):

“Pain and suffering are not measurable by any absolute standard and it is not easy, if indeed possible other than in the most general way, to compare the degree of pain and suffering experienced by different people, however, the individual circumstances of particular plaintiffs clearly have a significant effect upon the assessment of damages.”

The evidence is that the plaintiff suffered considerable pain and suffering and that he continues to so suffer. He still suffers from pain on the stump and from “phantom” pain which is undoubtedly real to him. He was hospitalised for one month but continued to receive medical care and rehabilitation.

Under the head of loss of amenities of life the evidence is that the plaintiff can no longer play sports, do work around the house and garden and that his sexual relations with his wife is significantly affected. Dr Jagdish Narayan said that his disability is 100%.

Taking all these matters into account I consider that an award of $85,000 appropriate as general damages for pain and suffering and loss of amenities of life.

Future Economic Loss

The plaintiff continues to be paid his full salary and there is therefore no award for past economic loss. However for future economic loss, the plaintiff is 39 years old and will never be able to work. At the time of his accident, he earned a gross salary of $18,000 and a net salary of $14,256.00 per annum.

I consider that a multiplier of 15 is fair, given the plaintiff’s age, and good prospects of employment as a machine fitter before the accident. I therefore award $213,840.00 for loss of prospective earnings, ($14,256.00 x 15).

The defendants agree to the payment of FNPF but suggest a lower multiplier. Using the same multiplier of 15, I award $37,800.00 for loss of FNPF contributions.

Medical Expenses

The plaintiff asks for the cost of an artificial arm. The evidence of Dr Jagdish Narayan is that the plaintiff would have to go to Australia with his wife for prosthetic services, which are not available in Fiji.

The defendants do not dispute that the plaintiff would benefit from the artificial limb. The quotation from Prince Henry Hospital assessed costs as follows:

(i)	Cost of 21 days at the hospital at $685.00 per day
	$14,385.00	
(ii)	Cost of wife’s expenses at $16.00 for 21 days
	$ 3,336.00	
(iii)	Therapy at $200 per day for 15 days
	$ 3,000.00	
(iv)	Consultation fee
	$ 600.00	
(v)	Cost of prosthesis
	$12,576.00	
	TOTAL	[$AU30,897.00]
$F37,315.22	

The plaintiff asks for an additional $20,000 for airfares for his wife and himself. Even if he visits Australia with his wife on 5 occasions, this is an excessive amount. I award $10,000 for airfares.

To cover the possibility of changes to the prosthesis and future consultation, I award a further $5,000. The total under this head is therefore $52,315.22.

Nursing Services

I accept the evidence of Anuleshni Devi and the plaintiff that Anuleshni now takes care of her husband at the cost of her former job as a baby-sitter. This meant a loss of $30.00 per week. Using the same multiplier of 15 the total award under this head is $5,400.00.

Interest

Interest is given to compensate the plaintiff for being kept out of his money for the period since the filing of the writ. In Attorney-General -v- Singh (opp cit) the Court of Appeal said that interest should run from the date of the filing of the writ to the date of judgment. It was also said in that case, that in the light of current economic conditions in Fiji, a rate of between 4% and 6% is appropriate.

I fix interest at 5% on the awards for pain and suffering and loss of amenities, loss of future earnings and 6% for loss of FNPF contributions over 15 years. This latter reflects a higher interest rate due on FNPF contributions. Although the Defendant submits that no interest is payable, the Plaintiff in receiving the FNPF award now would lose his interest entitlement due to him at the age of 55.

In summary damages are awarded as follows:

1) 	Pain and Suffering/Loss of Amenities
	$ 85,000.00	
2) 	Loss of future earnings
	213,840.00	
3) 	FNPF
	37,800.00	
4) 	Medical Expenses
	52,315.22	
5) 	Cost of Nursing Care
	5,400.00	
6) 	Interest on (1) and (2) for 12 months
	14,942.00	
7) 	Interest on FNPF at 6% for 15 years
	34,020.00	
	TOTAL	$443,317.22	

Costs of this action have not been agreed to by the parties. They are to be taxed and paid to the plaintiff by the defendant.

Nazhat Shameem (Ms)
JUDGE

At Suva
9th November 1999