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Prakash v Ranjit Garments (Mfg) Ltd [2005] FJHC 446; HBC0371J.2004S (21 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0371 OF 2004

Between:

ROSHNI PRAKASH
d/o Ram Deo
Plaintiff

- and -

RANJIT GARMENTS (MFG) LIMITED
Defendant

Counsel: Mr. A. Sen for the Plaintiff
Mr. H. Nagin for the Defendant

Date of Hearing: 18th October, 2005
Date of Judgment: 21st October, 2005

JUDGMENT

The defendant, company Ranjit Garments (MFG) Limited, are garment manufacturers. The plaintiff had worked as a machinist and quality controller for them since 1996. One of the machines used at the defendant’s premises is a machine for putting studs in garments. The male part of the stud is put in an upper arm and the female in a part on the lower horizontal surface. A garment is aligned on the surface to where the stud is to be placed. A pedal is pressed and the upper arm comes down and joins the two parts of the stud together through the garment. The upper arm then retracts to its starting position.

On 17th July 2003 Roshni Prakash was working on a stud machine. She went to adjust a garment when the upper arm descended and affixed a stud through her right index finger. The plaintiff was taken to the hospital where her finger was amputated at the joint nearest the palm of her hand. She now claims general and specific damages.

In her pleadings she alleges negligence on behalf of the defendant company, its servants and agents. The particulars are:

“(a) Failing to provide any safety measures or at all to the employees.

(b) Instructing and allowing the plaintiff to operate the said stud machine knowing the facts that the said is mechanically defect.

(c) Failing to keep any proper care for the employees.

(d) Failing to provide the plaintiff with any safety requirements pursuant to the Factories Act.

(e) Exposing the plaintiff to a risk of damages or injuries of which they knew or ought to have known.”

Particulars of Negligence on Part of the Agents and Servants of the Defendant

“(a) Failing to advise the plaintiff not to use the said stud machine knowing the fact that the same is unsafe to use.

(b) Failing to properly fix the said stud machine.

(c) Allowing and/or instructing the plaintiff to use the defective machine.”

The plaintiff goes on to rely upon the doctrine of “Res ipsa loquitur”. She also alleges it was an implied term of her contract of employment that the defendant would take all reasonable care to provide and maintain a safe system of work, effective supervision and not expose the plaintiff to a risk of damage or injury.

The defendant’s deny the claim. In a very sparse amended statement of defence, they say that they “always provided the plaintiff with a safe place and safe system of work. Any injuries suffered by the plaintiff is due to her own gross negligence and not during the course of her employment with the defendant”.

There was never any real dispute that the plaintiff was acting in the course of her employment. It was accepted by counsel that she was entitled to Workmen’s Compensation.

The defendants say that the plaintiff’s evidence is unreliable and that she has grossly exaggerated her pain and losses.

I have heard the evidence of Roshni Prakash, her daughter-in-law Reshma Prasad and Dr. Arun Murari for the plaintiff and the evidence of Manoj Kumar for the defendant.

There is no technical evidence from the plaintiff concerning the machine.

The plaintiff states that she had worked for seven months on a manual stud machine and then for two months prior to this accident on an electrical stud machine. She was a quality controller and in that regard she did not work permanently on one machine.

On the 17th of July 2003 in the morning she arrived at the usual time. She was working on this stud machine when, after the fifth garment, she put the next garment in. The upper arm just dropped without the pedal being pushed and stayed down. She stated it damaged the garment and it had to be removed. The arm was raised and she tried another garment and the same thing happened. After a further garment was damaged in this way she told the supervisor, Feroz. She says she went and did other work while the mechanic fixed the machine.

Later the mechanic told her the machine was fixed. In the afternoon she was working on the same machine when a garment to be studded had a crease or fold in it. She put her hand in to straighten it. Without touching the pedal the arm came down and a stud was driven through her right index finger from above and below.

She stated that the machine arm remained down and that a mechanic had to be brought to raise the upper arm to release her finger. The garment was cut around so she could move away.

She stated there was great pain. She waited in a room for 20 minutes until she was taken to the hospital. She was seen and given pain-killers and after being seen by a consultant the amputation took place later that evening.

She was discharged from hospital the next day. She stated she returned to the hospital a number of times. The stump caused immense pain. She was unable to carry out normal tasks such as dressing and wearing her sari, doing cooking and washing, and combing her hair. She states that she has not been able to work because when the end of the stump is touched or accidentally hits anything it causes intense pain. She said she has suffered psychologically. Also, as a result of her being unable to carry out normal domestic and conjugal duties her husband left her after six months and has not returned or contacted her.

Her daughter-in-law gave evidence corroborating the effect upon the plaintiff of this injury. The plaintiff lives with her son and daughter-in-law. She says she has to do the cleaning and cooking and help with the dressing of her mother-in-law. She describes the pain her mother-in-law has suffered. She and her husband go out to work and there is a home help while she is away.

Dr. Arun Murari is a Consultant Surgeon at the Colonial War Memorial Hospital. He gave his qualifications. He gave the plaintiff’s medical history from the records. These were broadly consistent with the plaintiff’s evidence. However he says that on the 27th of August 2003 she was seen in out-patients. The hyper analgesia (severe pain) had resolved. The stump was healthy and the pain had resolved without medicine.

He said that after amputation nerve endings can swell up and become very painful. This is called neuroma. If an amputee patient complains of this kind of pain then certain operations can be undertaken which have a good chance of relieving or eliminating that pain. There was no evidence on her records that she had sought such operations or made a complaint about continuing pain. I accept the evidence of Dr. Murari. There was no challenge to it.

Manoj Kumar was the only witness for the defendant company. He has been with them since 1995 and has risen to become Inventory Manager. He has worked as a Supervisor in the Pressing Department, Spare Parts Manager and Plant and Equipment Manager.

He stated that in 2003 there were some 1,100 employees in four buildings at the work site. He said there are a number of machines at the premises and there are several stud machines of this kind. He stated there have never been any manual stud machines, they have always been electrically driven. Feroz was the plaintiff’s supervisor and Zahib was a mechanic. There were several mechanics at the premises who would deal with any breakdown of machinery and if necessary take it out of use for further repair.

He stated the stud machine in question had been bought new from Australia in the late 1990’s. He stated all machines were regularly serviced. No manual came with this particular machine.

He produced two pictures of the machine. He pointed out a safety guard which is in the shape of a hollow lollipop. There is an arm coming from the back of the machine which is attached to a circle above where a garment is placed. Before the upper arm will come down the lollipop is lowered and if it encounters any obstruction then the upper arm will not descend. The upper arm descends through the circle of the lollipop.

Mr. Kumar said if the machine was operated properly then he could see no way in which the plaintiff could have been injured. Further he said that he was at work on the day in question. In the morning he knew nothing of the problems with the machine in question, although it is likely that would not have been reported to him. He stated that within minutes of the accident he and the mechanic Zahib looked at the machine. The mechanic checked the machine and could find nothing wrong with it.

The Supervisor Feroz and Zahib, the mechanic, did not give evidence. Feroz apparently left the company a few weeks ago and has gone to Sigatoka but cannot be located. The mechanic has migrated to New Zealand.

Mr. Kumar stated he was responsible for occupational health and safety. He did agree in cross-examination that no report was written either at the time or later concerning the accident and the various tests and investigations that took place. He said there were only the entries on the Workmen’s Compensation form which has been produced by the plaintiff.

I have considered carefully the credibility of the plaintiff. The defence in effect say she has “compensation-itis“. In other words, her pain and suffering will not clear up until after the finalisation of the court proceedings.

This is denied by the plaintiff who states that her pain, injury and suffering is genuine and the consequences she alleges flowed from this accident did occur.

There is no dispute as a matter of fact that this plaintiff’s right index finger suffered an injury when the stud machine upper arm came down and a stud was put into the finger.

However, I do not find that I can rely on her evidence as being wholly reliable over matters affecting the quantum of damages.

She claimed for transport charges without mentioning the fact that some $360.00 in taxi fares had already been paid to her. She complained of serious and continuing pain in the stump generally and particularly when it was knocked. Yet on the face of her medical notes by the 27th of August, 2003 she was not complaining of further pain and did not seek any further medical attention. She portrayed herself as unable to do even the simplest tasks about the house when clearly these could either have been done with her left hand or alternatively with the limited use of her right hand. It is pertinent to note that Dr. Murari stated that he would expect recovery after an amputation of this kind to take 6 to 12 months. The plaintiff is still claiming she is unable to do any simple tasks over two years later yet she has not sought any further medical assistance.

Her answers as far as finding other jobs were concerned were not in themselves consistent. She has claimed psychological damage but there is simply no evidence of that. She claims that this injury has broken up her marriage and her husband left some 6 months or so after these events. I do not find on the balance of probabilities on the evidence before me that I can find there is any causative effect between the accident and injury and the departure of her husband. These are a few of the examples for why I have come to this conclusion.

Whilst I do not reject the evidence of her daughter-in-law Reshma Prasad, it is subject to the same considerations as that of the plaintiff’s evidence. There were some understandable inconsistencies. However in one or two areas the daughter-in-law did go beyond what the plaintiff had said and what is reasonably acceptable, for example the fact her mother-in-law is unable to
do up or undo a zip.

The defence say that if she is unreliable in these matters she is unreliable as far as the supporting facts for establishing liability are concerned. They further add that in examination-in-chief at no stage did she mention the presence of the safety guard. They say on her version of events the presence of that safety guard would mean no injury could occur without her negligence.

I also have to consider the evidence of Mr. Kumar in this regard. It is correct that he has worked for the company for many years, and that he had responsibility for health and safety at the time. It is suggested that he is likely to mould his evidence to support the position of the defendant company.

I do accept the evidence of Mr. Kumar. He appeared to be doing his best to recollect reliably and relate the events of July 2003. He accepted without trying to make up excuses the fact that no full report of the accident had been produced.

Mr. Kumar could not see how this accident could have occurred unless the plaintiff interfered with the machine or did something that was grossly negligent or deliberate. He does not claim to have any formal technical qualifications but says that he has worked with machines, particularly of this kind, for many years and is conversant with their workings.

Counsel for the defendant in closing drew the court’s attention to Domalco Limited against Subhash Chandra Singh Civil Appeal No. 71 of 2005. This was a very similar case in which a worker lost three fingers of his hand when the top dial of a machine came down squashing his fingers between it and a receiving dial. In that case the Court of Appeal stated there was overwhelming evidence that the machine was in good working order before the accident. They stated it was on the plaintiff/respondent “to prove that the machine was not kept in a safe condition and that the top dial came down suddenly due to a technical breakdown in the machine for which the appellant could properly be held responsible. There was no evidence to suggest there was any defect in the mechanical operation of the top dial before the accident”.

I have considered carefully the plaintiff’s evidence concerning the events of the day in question. I do find I can accept her evidence when she states there was a problem with the machine in the morning. That is clearly pleaded in paragraph 5 and 6 of the Statement of Claim. I do not consider that she has made this up. I also accept her evidence that she told her supervisor and the mechanic Zahib came and looked. She was told the machine could be used again.

I also accept her evidence when she says that when her injury occurred the upper arm came down and remained down after putting a stud into her right index finger.

These were allegations that she must have known could easily have been checked by the defendant. She would have known at the time the supervisor and mechanic could have been called to give evidence. I accept that the supervisor and mechanic cannot now be brought to court. However, when making that allegation there is nothing to suggest that she knew they would be untraceable or overseas at time of hearing.

The repairing mechanic apparently did not have the manual for the machine. That in itself does not mean it was not working properly or repaired properly. The injury to the plaintiff in the afternoon was caused by, according to the plaintiff, the same misfunctioning as occurred in the morning, namely the dropping of the upper arm without warning and without the pedal being pressed.

It is arguable that had the machine been functioning properly the upper arm, after pressing the stud into the finger, should have returned up again. There is no dispute that the arm had to be mechanically raised to get the plaintiff’s hand out of the machine. Defence counsel says this could well be because the machine jammed as it is only designed to put studs through cloth and not through finger and bone. There is no evidence either way to say what would have happened when it encountered a finger if the machine had been functioning properly. However, I note that what the plaintiff describes is not inconsistent with her version of events.

I must also look at the safety device described by Mr. Kumar. Mr. Kumar stated the safety device should come down first. Had the plaintiff put her fingers onto the garment in line with the studs and then pressed the pedal the safety device should have come down first and into contact with the plaintiff’s hand. That would mean the upper arm would not come down. The clear fact is that it did come down.

It is difficult to see from the photograph of the machine and also from commonsense how or why, when smoothing out a crease in a garment to be studded, the plaintiff would place her hand over and through the safety guard rather than underneath it. If the plaintiff’s finger was in the line of the two studs and she accidentally or even deliberately pressed the pedal then the safety guard should have ensured that the upper arm did not come down. There is no evidence as to whether the safety guard was above or below the plaintiff’s hand when it was removed from the machine after the accident.

In all these circumstances I find that on the balance of probabilities this machine was not working properly. It had misfunctioned in the same way in the morning. The mechanic had been told of the problem. He had, according to him, fixed the problem. However, he had no manual from which to work. The problem of the arm coming down without the pedal being pressed occurred again. The safety guard did not work. As a result the plaintiff’s finger was injured. As the Court of Appeal pointed out in Domalco’s case the fact that a manual is not used to repair a machine does not in itself mean the machine is not properly repaired or is malfunctioning or will malfunction. However, given the sequence of events in this case there is no evidence to rebut what the plaintiff is saying.

I do note that Mr. Kumar said he and the mechanic checked the machine immediately afterwards and it appeared to be working properly. It is difficult to see how the injury could have occurred unless there was a fault.

The plaintiff complained that she had had no training upon this machine. She had only had a short period of instruction from a supervisor. I do not find this affects the issues in this case. She clearly knew how the machine worked and had worked it for at least two months and possibly upto to nine months. She says that for seven of those nine months it was a manual machine; Mr. Kumar says it was an electric machine. I do not need to resolve this discrepancy.

Accordingly I find the defendants were negligent in that they failed to ensure the machine was working properly and safely. They failed to either repair it or withdraw it from use as a result of the problems in the morning. They did not exercise sufficient care in allowing the plaintiff to use the machine again when it had already malfunctioned earlier that day.

Was there any contributory negligence by the plaintiff? The defendants have not alleged that the plaintiff deliberately injured herself or her injury came about as a result of wilful misconduct. The only basis upon which contributory negligence can be alleged is in the placing of her finger and hand into the machine in the direct line of the two halves of the stud before they came together.

The defendants produced a red safety notice which they say is laminated and attached to the horizontal surface of the machine within a foot or so of the operating part. That document was not disclosed. Further, it is in English. The plaintiff’s first language is not English and her understanding of that can be described as moderate. There is no evidence as to whether or not she can read. No other notices were put up in any other language. Accordingly for all these reasons I disregard this part of the defence submission.

The plaintiff’s counsel said that the plaintiff should be able to rely on the fact that the machine is working properly and that the upper arm would not just drop without being activated in some way. Further, he argued that the plaintiff could reasonably rely upon the safety guard working yet it did not do so in this case.

I find there has been contributory negligence in this case. The plaintiff has been in the garment trade for several years and must have seen machines like this one and similar ones operating day after day for years. It is commonsense for someone experienced in this way not to place her hands between the operating surfaces. This is an ordinary basic safety precaution. From the picture of the machine and the description of how it is used I can see no reason why anyone should have to put their fingers between the two operating halves which hold the studs. If a garment is creased and needs straightening it is a simple action to pull it straight from either side or remove it from underneath the studding machine, straighten it up, put it back and realign it.

I do accept that the plaintiff did not realise the top arm would come down. She straightened the garment with her fingers under the studding arm when she should have removed it and started again.

For these reasons I find that she was contributorily negligent. The next question is by how much. Had she not placed her fingers in the way then even if the guard did not work or the arm dropped without warning no injury would have occurred. The worst that could have happened would have been, as in the morning, a few garments would be damaged or ruined. On the other hand, she is entitled to say I expected the machine to work properly and also that if it wasn’t working properly the safety guard was also working properly. In these circumstances, I find that she was contributorily negligent by one third.

Counsel for the plaintiff has put forward the figure of $25,000.00 as being reasonable for general damages. $20,000.00 is to cover pain and suffering to date, $5,000.00 for future pain and suffering. Whilst I find that there is little or no remaining pain there is 8% residual disability and I accept that there will be some pain or possibly discomfort in the future. In these circumstances, I find that the figure of $25,000.00 for general damages is reasonable.

I make no award for transport expenses. These have apparently been reimbursed to the extent that the plaintiff requested. I award $5.50 for the medical report.

I award $63.08 per week for 26 weeks for loss of earnings. Six months is the start of the period in which the doctor would expect complete recovery. There was no complaint of pain after 27th August. The figure of $147.19 is to be deducted from that in respect of the wages she was paid. There is no evidence to contradict the plaintiff’s evidence on this figure. I do not make any award in respect of future loss of earnings. Whilst there is 8% residual disability I do not find that this injury has affected her earning capacity. Her job at Ranjit Garments is still open to her. As a quality supervisor, I find that she is capable of carrying out all the requirements of that job despite the loss of her index finger on the right hand.

The position concerning F.N.P.F. is not entirely clear on the evidence. Loss of F.N.P.F. is payable. The parties can agree the amount.

I therefore award:

General Damages - $25,000.00

Special Damages (a) Medical Report - 5.50

(b) Lost wages - 1,492.89

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Sub-total - $26,498.39

Less one-third - 8,832.79

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Total = $17,665.60

=========
I award interest at 6% from date of filing of the Writ to payment upon the special damages and interest at 6% on the general damages from the date hereof till payment.

(R.J. Coventry)
JUDGE