IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0292 OF 2002L

BETWEEN:

RABEN PRASAD
f/m Sant Ram
Plaintiff

AND:

T.F. JAN BULLDOZING COMPANY LIMITED
1st Defendant

AND:

BINAY DAYAL SHARMA
f/n Hari Dayal Sharma
2nd Defendant

Counsel for the Plaintiff: Mr. R. Chaudhary
Counsel for the Defendants: Mr. M.K. Sahu Khan

Date of Hearing: 5 February 2005
Date of Judgment: 16 March 2005

JUDGMENT

The Claim

The plaintiff, Raben Prasad, brings this action as a result of injuries sustained by him in the course of his employment with the 1st defendant on the 14th November 1999.

The plaintiff pleads his cause of action as against the 1st defendant, his employer, in the alternate, both at common law and pursuant to the Workmen’s Compensation Act (Cap. 94).

Background

The plaintiff was born on the 25th May 1960 and at the date of trial is 44 years old. He was educated to class 8. Upon leaving school, he worked for his father cutting cane and lived on his father’s farm. After about 3 years of cutting cane for his father, he commenced employment as a tractor driver at a poultry farm. He remained in this employment for about 3 years and then returned to work on the farm and cut cane.

In 1989, the plaintiff commenced employment with the 1st defendant as a truck driver. He had a Group 6 licence which he still holds. This licence, he says enables him to drive a 6 wheeler truck. He was driving manual trucks for the 1st defendant and prior to his employment with the 1st defendant, he had been driving his father’s truck. 

He says that he was earning $74.25 per week gross and from this amount the only deduction was Fiji National Provident Fund (FNPF).

On the 14th November 1999, the defendant says he started work at 3.00am. He was required to have such an early start as the company was involved in digging out gravel from the river which was tidal and it was necessary to work when the tide was out. He says he reported to work to his supervisor, the 2nd defendant, who picked him up and took him to the river. There were 3 trucks and a digger working at the river at that time. After checking the water and oil in his vehicle, he then commenced work. He was engaged in carting the gravel about half a mile where it was dumped. He says at about 1.30pm the other trucks had gone and he had the last truck which was loaded.

The 2nd defendant who was driving the digger then asked him to take him to the van, which I understand to be a van owned by the 1st defendant. Some disagreement resulted between the plaintiff and the 2nd defendant and the 2nd defendant told him quite forcefully to put a 44 gallon drum of diesel into the bucket of the digger. The digger is depicted in a photograph, Exhibit P-4, where it is there described as a Hitachi EX 300 Excavator.

When the plaintiff resisted the 2nd defendant’s request to put the 44 gallon drum of diesel into the digger bucket, he says the 2nd defendant threatened that if he didn’t he would report him. The plaintiff says he asked the 2nd defendant why the diesel was not being put into the digger using the pump and hose. Again, the plaintiff says that the 2nd defendant told him to “just do it”. After the drum was placed in the bucket, the bucket was lifted about 20 feet into the air and the plaintiff then inserted the hose into the drum of diesel. The 2nd defendant then from ground level siphoned diesel into fuel tank of the digger. The fuel tank of the digger was about 5 feet above ground level. When the diesel drum was empty, the plaintiff says he asked the 2nd defendant to lower the boom at which time he says the 2nd defendant opened the bucket. He then shouted and grabbed part of the boom of the bucket and screamed “what are you doing”. At this point, he says the drum fell and then he fell from the bucket to the ground. He was badly hurt. He was bleeding. There were stones on the ground. He doesn’t remember anything after falling on the ground because he became unconscious. He says that before he fell he got bumped by the boom and had a cut above his eye. He says that the next thing he recalls is waking up in Lautoka Hospital.

The plaintiff says that the boss on the site on this particular day was the 2nd defendant. He said to the plaintiff that if he did not do as told then he would be told to go home. This he understood to mean he would be sacked.

He says that there was a pump and hose available in the company yard. Clearly from the evidence to use the pump and hose would have taken significantly longer than the more dangerous method adopted by the 2nd defendant.

In cross-examination, it was suggested to the plaintiff that the excavator/digger driver was not in fact a supervisor. The plaintiff denied this and said that he had been informed at the weekly meeting that for this period the excavator driver was to be the supervisor. In any event, as is apparent from the evidence the excavator driver is the recipient of the higher wage and from that point of view was the more senior individual.

There was apparently nobody else present on the site at the time the accident occurred. He says that at the meeting, a week prior, the son of the Managing Director of the plaintiff, Feroz, informed him that the excavator driver was to be the supervisor for the coming period. I accept the evidence of the plaintiff as to the circumstances surrounding the accident and in particular as to the 2nd defendant directing the plaintiff as to what to do.

The plaintiff was hospitalized for 7 weeks and after release from hospital he was required to go back to hospital on a regular basis for review. 

Since the accident, he has not worked apart from some casual work as a water carrier during crushing season for which he has earned $60 to $70.00 for the 6 month crushing season. He is married with 3 girls and 1 boy, the oldest girl being 22 and married, the boy being 21 and the other 2 girls, 15 and 14. The plaintiff has been able to support his family as per the assistance of his son who is working and with an uncle who has supported him. The land on which he lives is the farm which is now owned by his mother and he is accordingly not required to pay rent. He described to the court the pain that he still feels when he moves. He entered the court using a single crutch and was indeed very slow moving.

The only money he says he received from his employer since the accident, which is not disputed, is two weeks pay at half pay that is approximately $74.00.

The special damages are not disputed.

He says he is required to take panadol and painkillers. Before the accident, he says he was able to participate as a striker in his soccer team and of course he can no longer participate in any form of sport.

Medical Evidence

Evidence was given by way of reports being Exhibits P-1, P-2 and P-3. The first of these was a report by Dr. E.D. Taloga of Lautoka Hospital dated the 4th May 2000. This report describes his admission to the hospital and the follow up. A subsequent report from the Lautoka Hospital was prepared by Dr. Joeli Mareko who also gave oral evidence to the court.

A report prepared on behalf of the defendant was also tendered by consent from Dr. Eddie McCaig of Suva Private Hospital. The medical reports and the evidence of Dr. Mareko are all indeed consistent in describing the injury, the pain, the continuing disability and the need for a hip replacement as the only means of alleviating the pain. Dr. Mareko indicates that because of the age of the plaintiff, it may be necessary for the hip to be replaced twice during his life.

Dr. McCaig says that such an operation can now be conducted at Suva Private Hospital and that the cost thereof is about $18,000.00.

Dr. Mareko in his oral evidence indicates that there is a significant risk of complications developing with such an operation particularly with the defendant and it may be prudent that the operation to be conducted in New Zealand or Australia where resources and facilities are better. He estimates that the cost of an operation of this type in those countries would be an excess of $20,000.00.

The X-rays produced by Dr. Mareko show that the head of the femur has died resulting in the pain described by the plaintiff. The X-rays and the evidence of Dr. Mareko also confirmed the insertion of a plate and pins into the pelvis. Osteoarthritis is set in as a result of the trauma and some calcification has occurred in the soft tissues surrounding the hip, again as a result of the trauma. This calcification also results in there being further pain and restricts the movement of the hip.

Dr. McCaig assessed the plaintiff as having lost about 25% of his lower limb function and on the Schedule of the Fiji Labour Department, he assesses the plaintiff as having a 20% permanent incapacity.

Clearly on the evidence before the court, the plaintiff has suffered a very severe injury to his left hip, is significantly disabled as a result of that injury, is in constant pain and is unable to engage in any gainful employment and further is in need of at least one, if not two hip replacements to minimize the pain but on the oral evidence of Dr. Mareko, such an operation will not enable the plaintiff to return to any gainful employment. There is no dispute with respect to the medical evidence by the defendants.

The Pleadings

The counsel for the defendants submits that the plaintiff’s pleadings are defective in that the plaintiff pleads that he was “instructed” by the 2nd defendant to climb onto the bucket of the digger together with the 44 gallon drum filled with diesel whereas his evidence was that the plaintiff was “coerced”. I see little difference as to whether he was instructed, requested or coerced when one looks at the evidence of the plaintiff as a whole.

I see no merit in the defendants’ submission with respect to the pleadings.

Liability

The 2nd defendant did not give evidence and his counsel informed the court that he had migrated. The only evidence given on behalf of the 1st and 2nd defendants was that given by Mohammed Atik who was a loader operator/truck driver employed by the 1st defendant at the relevant time. He says that he delivered the drum of diesel and the pump to the site, the previous afternoon at about 5.00pm. He was not present when the accident occurred and he does not know what 

occurred but he does most relevantly describe the practice of siphoning diesel from a 44 gallon drum lifted aloft in a bucket of a machine and says it was a much quicker process but he acknowledges that it is not approved by the employer and he in fact was suspended from work for a period of 7 months.

He gives conflicting evidence as to the weekly meetings and says that the excavator driver would not have been a supervisor.

The Law as to Liability

Counsel for the defendant has by cross-examination and the evidence given by Mr. Atik attempted to show that the conduct of the plaintiff was prohibited by the 1st defendant and that this prohibition therefore meant that the conduct was not carried out in the course of the plaintiff’s employment by the 1st defendant.

Lord Diplock in Ilkiw v Samuels [1963] 2 All E.R. 879 at 890 when dealing with a situation of similar facts said:

“The duty in tort of which he was in breach was, in my view, a duty delegated to him by the defendants under his contract of employment, and for that breach the defendants are vicariously liable notwithstanding that it resulted from his breach of an express prohibition by the defendants against permitting any other person to drive, for that prohibition did not limit the sphere of his employment, but dealt with the conduct of … within that sphere.”

Whilst counsel for the defendants submits that the law has moved on subsequent to this decision, it was followed with approval by the Fiji Court of Appeal in Watisoni Vunivi, Chand Lal v Rajeshwar Prasad & Ors – Civil Appeal No. 46 of 1991.

The High Court of Australia has adopted a similar position in State of New South Wales v Angelow Lepore & Anor [2003] HCA 4 (6th February 2003). In paragraph 42 the court said:

“To point to a vivid example of conduct by an employee that is not in the course of employment is a useful method of a elucidating the concept, but may be of limited assistance in resolving difficult borderline case. It is clear that if the wrongful act of an employee has been authorized by the employer, the employer will be liable. The difficulty relates to unauthorized acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the First Edition 1907, and in later editions: an employer is liable even for unauthorized acts if they are so connected with authorized acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorized and wrongful act is not so connected with the authorized act as to be a mode of doing it, but is an independent acts.”

Counsel for the defendants refers the court to O’Reilly v National Rail & Tramway Appliances, Ltd [1966] 1 All E.R. 499. This case is clearly distinguishable as the worker there was engaged in skylarking and was not carrying out his employment duties. He was not using an improper mode to perform an authorized act.

The court is also referred to Nicol v Allyacht Spars Pty Ltd [1987] 163 C.L.R. 611. Unfortunately the passage quoted by counsel for the defendants in his written submissions stops short of the limitation imposed by Dawson J. at page 622. His Honor went on to say:

“The application of such a principal is, however, limited to those occasions when the wrongful conduct is that of the employee alone and no fault can otherwise be attributed to the employer.”

On the evidence that is before the court, it is only possible to conclude that the plaintiff was directed by the 2nd defendant to place the 44 gallon drum in the bucket of the excavator to enable the 2nd defendant to siphon diesel into the fuel tank of the excavator. Even if, such behavior was prohibited by the employer, the 1st defendant, is vicariously liable for the conduct of the 2nd defendant in the course of his employment.

The plaintiff had no choice or indeed no practical choice but to accede to the direction, however reluctantly, of the 2nd defendant due to the threat to his employment.

There can be no doubt that the 1st defendant owed the plaintiff a duty of care and that duty of care was breached by the 2nd defendant which results in the 1st defendant’s vicarious liability to the plaintiff and accordingly, I find in favour of the plaintiff on the issue of liability.

Damages

The incident occurred on the 14th November 1999, approximately 5 ¼ years ago. The income earned by the plaintiff since the time of the accident is negligible and his past economic loss might therefore be considered as being total from the time of the accident to the date of trial which on his rate of pay at the time of the accident of about $74.00 per week amounts to $20,202.00.

On the medical evidence, the plaintiff will be required, more likely than not, to have at least one hip replacement at a cost to at least $18,000.00. 

As indicated the special damages are not in dispute. 

Doing the best I can, I allow cushion of future economic loss of $20,000.00.

By way of general damages, there can be no doubt that the plaintiff has suffered significant pain and disruption to this life which will continue for the remainder of his life. To allow the sum of $50,000 by way of general damages would appear not to be excessive. That amount should be apportioned as to $30,000.00 for past and $20,000.00 for the future.

Interest

In Attorney General of Fiji v Charles Valentine – Civ. App. No. ABU0019 of 1998S the Fiji Court of Appeal considered at that time that the appropriate interest rate was between 5% and 7% for claims of this type.

In considering the principle of the applicability of interest in personal injury claims, it is necessary to consider Jefford v Gee [1970] 2 Q.B. 130 where the Court of Appeal analyzed the logic behind the assessment of interest and set various principles which the Court of Appeal repeated in Attorney General of Fiji v Charles Valentine. Those principles are:

“1.	Special damages. Interest should be awarded from the date of the accident to the date of trial at half the appropriate rate. (Usually special damages such as hospital expenses, loss of wages etc, accrue on a day by day basis. Rather than the court making a series of interest calculations from the time each was incurred, it can achieve a broadly appropriate assessment by taking a figure representing a mean or average for the period. Half the interest over that time may be accepted as a suitable compromise figure in most cases).

2.	Loss of future earnings. No interests should be allowed. (This is because the plaintiff does not become entitled to this money until the award is made so has not been kept out of it to justify giving interest).

3.	Pain and suffering and loss of amenities. Interest should be awarded at 	the appropriate rate from the date of service of the writ to the date of trial.”

In applying the principles expressed to the matter at hand, it would seem appropriate in the circumstances to adopt an interest rate of 6% which would result an effective interest rate of 3% with respect to special damages.

General Damages

(i)	Past 	..	..	..	..	..	..	..	$30,000.00
(ii)	Interest from 10/9/02 - 17/3/05 @ 6%	..	..	$ 4,500.00
(iii)	Future ..	..	..	..	..	..	..	$20,000.00
Past Economic Less	..	..	..	..	..	..	$20,202.00
Interest @ 3% from 14/11/99 – 17/2/05	..	..	..	$ 3,182.00
Future Economic Loss	..	..	..	..	..	$20,000.00
Hip Replacement	..	..	..	..	..	..	$18,000.00
Special Damages	..	..	..	..	..	..	$ 200.00
Interest @ 6% from 10/9/02 – 17/2/05	..	..	..	$ 30.00

		TOTAL						 $116,114.00

Orders

1.	Verdict and judgment for the plaintiff in the sum of One Hundred and Sixteen Thousand, One Hundred Fourteen Dollars ($116,114.00).

2.	The defendants to pay the plaintiff’s costs assessed in the sum of Three Thousand Dollars ($3000.00).

JOHN CONNORS
JUDGE
At Lautoka
16 March 2005