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Kumari v Jack's Motor World Ltd [2006] FJHC 70; HBC273.2001L (1 September 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 273 OF 2001L

NO. 175 OF 2006

BETWEEN

LEKHMA KUMARI
Plaintiff

AND

JACK’S MOTOR WORLD LIMITED
Defendant

Appearances: Messrs S. B. Patel & Co. for the plaintiff
No Appearance for the defendant

Hearing: 2 August 2006
Decision: 31 August 2006

JUDGMENT

[1] The plaintiff is the widow of Jagat Singh who prior to his death was employed by the defendant as a welder/mechanic. In September 2001 she issued proceedings seeking damages for negligence and breach of statutory duty and in the alternative compensation under the Workmen’s Compensation Act (Cap 94 – the Act) in the sum of $24, 000.00.

[2] On 16 October 2001 interlocutory judgment was entered against the defendant. The defendant had failed to file Acknowledgment of Service of the Writ of Summons. A Notice of Assessment of Special and General Damages was issued on 26 October 2001. Following that the proceeding were left to lie for several years. On 30 November 2005 Notice of Intention to proceed was issued. A further Notice of Assessment of Damages was issued on 23 January 2006. The defendant has been served.

[3] On 2 August 2006 the hearing proceeded in the defendant’s absence. All claims were abandoned except for the claim for compensation under the Act. Mrs. Kumar testified that her late husband worked for the defendant for approximately 10 years prior to his death. He was paid $100.00 per week. On 13 April 2000, while he was working, his left foot was crushed by a grinder machine. He was admitted to the Lautoka Hospital on the same day, was operated on and died 12 hours after the operation. She testified that at the time of his death, both she and their youngest child were wholly dependant on his income.

[4] The defendant has not contested the proceedings at all. I have found on the evidence before me that Jagat Singh suffered an accident arising out of and in the course of his employment resulting in his death. The three essential elements of S. 5 (1) of the Act have been satisfied. The unchallenged medical evidence is conclusive.

[5] Doctor Mareko testified for the plaintiff. He tendered a medical report in respect of the deceased workman. He stated that on 13 April 2000 the deceased was admitted to the Lautoka Hospital. He had sustained serious injuries to his left foot – in medical terms an open comminuted fracture metatarsals on his left foot – which was caused when his left foot was crushed in a grinder machine at his workplace. He was immediately operated on for wound debridement and the fractures on his foot were wired up. Some 12 hours after the surgery, at 8.00 am the next morning he developed a cardiac event and died of myocardial infarction.

[6] Doctor Mareko attributed the cause of the heart attack suffered by the deceased to:

(i) the stress caused to the deceased by the original personal injury which occurred at the workplace; and

(ii) the stress caused by the anesthesia administered to the deceased for the purpose of operating on the injured foot.

[7] The evidence before the Court is that the deceased did not have a pre-existing heart condition. The question is this: Did it (the death) arise out of and in the course of his employment? In Doctor Mareko’s opinion it did. I am satisfied that the requisite causal connection has been established.

[8] There is no general principle that a man must die immediately he has received the strain; it is a question of fact to be decided on the evidence and the medical evidence. In The Labour Officer on behalf of Luisa Lagilevu –v- The Ports Authority of fiji FCA Civil Appeal No. 6 of 1983, the Fiji Court of Appeal adopted the principle expressed in Oates –v- Earl Fitz William’s Collieries Co. [1939] 2 All ER 498 of what is required to be proved, and I quote:

"It was essential that there should be evidence of a physiological injury or change occurring in the course of a man’s employment by reason of the work on which he was engaged at or about the time of his death."

[9] The evidence in this case has established that the deceased sustained serious injuries on his foot whilst he was working. He died of a heart attack 12 hours after the operation to treat the injuries he had suffered. Doctor Mareko testified that the cause of the heart attack is directly attributable to the stress caused from the injured foot and the stress of the anesthesia administered on the deceased prior to the operation. I have found the injury he suffered at his workplace was a causative trigger factor in the onset of the heart attack. I hold that the heart attack of the deceased was an accident within the terms of the Act and that it arose out of and in the course of his employment. The plaintiff is entitled to payment in the sum of $24, 000.00 under the Act as amended by section 3 of the Workmen’s Compensation (Amendment) Act 1994.

Order

[8] Judgment for the plaintiff in the sum of $24, 000.00 plus costs assessed in the sum of $1,200.00.

Gwen Phillips
JUDGE

At Lautoka
1 September 2006