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Raj v Prasad [2018] FJHC 56; HBC74.2014 (31 January 2018)

IN THE HIGH COURT OF FIJI AT LABASA

CIVIL JURISDICTION

Action No. HBC 74 of 2014

BETWEEN

KAMAL RAJ of Nagigi, Labasa, Driver

PLAINTIFF

AND

ARUN PRASAD of Nasisi, Labasa, Supervisor.

FIRST DEFENDANT

AND

PARMENDRA NATH BHAROS and SHAILENDRA NATH BHAROS both trading as

Matavlivoli Taxi and Tours at Matavolivoli, Nandi.

SECOND DEFENDANTS

Counsel : Mr. Sarju Prasad for Plaintiff

Mr. A. Kohli for Defendants

Date of Hearings : 16^th and 17^th of November, 2017

Date of Judgment : 31^st January, 2017

JUDGMENT

[1] The plaintiff instituted these proceedings against the defendants to recover damages for the injuries caused to him while being on duty.

[2] It is his case that when he reported for work on 29^th June, 2014 the 1^st defendant instructed him to repair the ferrow wheel of the Massey Ferguson tractor bearing registration No. FN 281 which was a property of the 2^nd defendant. The defendant failed to provide safety goggles. When the plaintiff tried to remove the damaged collar and bearing with a chisel and hammer a piece of metal from the collar struck the plaintiff’s left eye causing it serious injury and as a result of the injury the plaintiff lost vision of the left eye totally.

[3] The 1^st and 2^nd defendants while admitting that the plaintiff’s eye was injured averred in their statements of claim that the injuries were caused due to the negligence of the plaintiff.

[4] At the pre-trial conference the parties admitted the following facts:

1. The plaintiff was at all material times a driver employed by the second defendants and was paid wages at the rate of $140 per week.
2. Both the second defendants are businessmen trading as Matavolivoli Taxi and Tours.
3. There was in existence an implied contract of employment between the plaintiff and the defendants.
4. The plaintiff had suffered from an eye injury while working for the second defendants.
5. As a result of the injury the plaintiff was taken to the hospital.
6. The plaintiff is entitled to interest under the Law Reforms (Miscellaneous Provisions)(Death and Interest) Act if there is liability.

[5] It is the evidence of the plaintiff that he was a tractor driver and on the day he sustained injuries that is on 29^th June, 2014 he went to the residence of the 1^st defendant who worked for the 2^nd defendants as the foreman. Explaining the responsibilities of the 1^st defendant the plaintiff said that the time sheets were in possession of the 1^st defendant and he used to tell the plaintiff whatever the work he had to do. On the 29^th June, 2014 when he went to the 1^st defendant’s house he had asked the plaintiff to the collar and the bearing from the ferrow wheel shaft of a tractor using a hammer and a chisel apiece of iron had stuck his left eye. It is his evidence that he had not done this kind of work previously nor did he have any training to do this kind of repairs. He also said that he was not given any safety equipment, goggles, gloves or safety boots although requested. When he was taken to the hospital the doctor who saw him at the emergency ward had told him that his eye was blind. The doctor had prescribed medicine and sent him home. When he went to the hospital on the following Monday he had been given an injection, eye drops, and some other medicine. When he again went to the hospital on Tuesday the plaintiff had been transferred to the CWM Hospital where he was operated on. The plaintiff also testified that he cannot work now because the eye that was injures is totally blind and the doctors have told him that they would make an artificial eye which would cost him $4000 – 5000. The plaintiff said in evidence that he feels bad when people call him one eyed man. He had been prescribed an eye drop for the pain in the injured eye.

[6] The plaintiff testified further that he lost $4460.00 from not contributing to the Fiji National Provident Fund, his spent $60 for the taxis to go to the Lautoka Hospital form Nadi, $300 was paid for the accommodation of the wife for which he does not have receipts, and $57.50 to obtain the medical report (P7). The receipt of $57.50 was tendered in evidence marked as “P6” and the “Member Detailed Statement” of Fiji National Provident Fund was marked as “P5”, in evidence.

[7] After recovering from the eye injury the plaintiff had come back to work but when he informed that he could work only from 7.00 am to 5.00 pm he had been asked to leave.

[8] In cross-examination the plaintiff said that he had never repaired a ferrow wheel nor had he seen it being repaired and it was the mechanic who repaired the ferrow wheels. He said that when he came to Labasa the senior most person was one Cassim and he was the supervisor. The plaintiff denied the suggestion that he was the supervisor at the time he was injured.

[9] Witness Davendra Prasad testified that he and the plaintiff were at the 1^st defendant’s residence on 29^th June, 2014 and on the instructions of the 1^st defendant, the plaintiff was working on the ferrow Wheel. While the plaintiff was trying to remove the collar from the ferrow wheel using a chisel and hammer, he was not wearing safety glasses and a piece of metal went into his left eye. In cross-examination the witness said that his salary was paid by the 1^st defendant.

[10] Dr. (Ms) Varanisese Naviri is a doctor attached to the Eye Department of the Labasa Hospital. She had examined the plaintiff at CWM Hospital. She said that on 02^nd July, 2014 the plaintiff’s left eyeball was removed by a surgery because it was infected. Ii is the opinion of the doctor the in these circumstances the pain could be severe because, although the eyes is a small organ in the body lot of nerves are connected to it. The witness also said that that cannot be persistent pain but occasional dryness causing pain in the eye can occur. The doctor also said when questioned by the counsel for the defendants that they do not encourage people to drive with one eye because eye is a very vital organ in the body. One can get along with his life with one eye but it won’t be the same as before. The doctor testified further that the Labasa hospital should have kept the patient in hospital without sending him home and that our hospitals do not have the facilities to remove a foreign object from the eye. The report prepared by this doctor on 03^rd February, 2016 was marked as “P7” in evidence where it is stated as follows:

In his last review at our clinic on 20.01.16 his visual activity in the right eye was 6/6 and nil perception to light in the left eye. His prosthesis had fallen out in the left eye but the socket looked clean. Examination of the right eye was unremarkable.

Therefore as a result of the injury he has lost one eye which means that he has 40% incapacity.

[11] The 1^st named second defendant testified that the plaintiff worked for them since March 2012 as a taxi driver and the maintenance handyman. The plaintiff was trained by the3 mechanics. The tractor drivers were giver safety glasses, reflector vests, rain coats and gun boots. The witness tendered two receipts for safety equipment marked as “D1” and “D2”.He testified further that the 1^st defendant was not a supervisor and the plaintiff was the supervisor. As the supervisor the plaintiff was expected to liaise with the project officer and the project manager. The workers were reporting to the plaintiff and the plaintiff was paid the highest wages. The plaintiff used to attend to this kind of work when he was in Nadi. He must have done this about 8 – 10 times. After the plaintiff was discharged from the hospital we took him to Nadi and he was paid the same salary. He requested to go to Labasa and he was sent to Labasa as the supervisor. The witness said that he does not know why the plaintiff left the employment.

[12] In cross-examination the witness said safety equipment are provided on individual basis. They are stock items. As and when requested by the worker we provide them with safety equipment. When the bearing is broken it has to be changed and it may be taken 8 to 10 minutes. To remove the collar of the bearing chisel and hammer cannot be used. It has to be cut and removed with a grinder. He said further it is the duty of the worker to take their safety gear. Kamal Raj at the very beginning was only a driver. He was paid much higher salary than Arun Prasad. We could not depend on Arun Prasad because he had to work in his private farm. We sent Kamal Raj to Nagigi at his request. Arun Prasad was never the supervisor.

[13] Witness Rajendra Prasad has been working for the second defendants for five years as a tractor driver. He said the tractors are serviced by the mechanic and servicing of the plough is done by the driver. The witness explained how to remove a broken bearing and said that mechanic taught him how to do that and Kamal Raj also used to change bearings. The witness also said that all the workers were given safety equipment and the safety equipment was brought to Labasa.

[14] In cross-examination the witness said Naca, Cassim Kamal Raj and he came from Nadi and Arun Prasad, Davendra and Avinesh came later. The first forman was Isekeli then Cassim and after Cassim left Naca became the foreman. He said that Arun Prasad did not become the foreman and after Naca, Kamal Raj became the foreman.

[15] It is the evidence of Arun Prasad that on the day of the incident Ravinesh and Kamal Raj came to his residence and at that time he was brushing his teeth. He said he heard their voices and went there and saw them trying to remove bearings using chisel and hammer. He has asked them to use the grinder but they did not listened to me and he has gone to the bathroom. It is also his evidence that he was not the supervisor and the supervisor was Kamal Raj. The 1^st defendant had not been a permanent employee of the 2^nd defendants. At certain times he used to work in his own farm. He said it was Kamal Raj who used to calculate the wages. However, he admitted that the money came to his account but said that his daughter withdrew the money and given to Kamal Raj. In cross examination when the counsel for the plaintiff asked the witness that since he knew the people and had a base in the area he was appointed to look after the operations in Nagigi, he said only the tractors were parked at his place.

[16] The particulars of negligence as averred in the statement claim as follows;

(i) Failure to provide goggles and/or proper protective glasses to prevent the plaintiff from sustaining injuries as aforesaid.
(ii) Failing to provide or maintain a proper system of work and failing to instruct the plaintiff to follow proper system of work.
(iii) Failure to provide adequate supervision or at all.
(iv) Failing to take any or adequate precautions for the safety of the plaintiff while he was engaged in removing the ferrow wheel bearing collar.
(v) Exposing the plaintiff to a risk of damage or injury of which the defendants knew or ought to have known.
(vi) Failing to provide any or any safe or proper system of work.
(vii) Instructing the plaintiff to engage in a dangerous activity without due regard to his safety.
(viii) Ordering the plaintiff to do the work for which he was neither trained nor had any knowledge as to its operation.
(ix) Failing to provide any proper tools for the job assigned.
(x) Being totally reckless under all circumstances of the situation.

[17] The plaintiff came to court alleging that the 1^st defendant was the foreman and while attempting to remove the bearing collar from the ferrow wheel on the instructions of the 1^st defendant he sustained injuries. The defendants denied that the 1^st defendant was the foreman. The question is whether the plaintiff was successful in establishing that the 1^st defendant was the foreman at the work site. The only evidence available for the court to consider is the testimony of the plaintiff. The plaintiff’s witness said that it was the 1^st defendant who paid his salary. The evidence of the defendants was that the money was sent to the 1^st defendants account because others did not have bank accounts and the 1^st defendant’s daughter withdrew the money and gave it to the plaintiff who paid the salaries. It is common ground that the 1^st defendant was not a regular worker at the 2^nd defendants’ farm and he also looked after his own farm. The 1^st defendant’s evidence is that only the tractors were parked at his residence which was adjoining the 2^nd defendants’ farm. The evidence of the defendants that the plaintiff was the most senior worker at the time this accident occurred was also not challenged or contradicted by the plaintiff. Since it is the plaintiff who alleges that the 1^st defendant was the foreman at the work place, the burden was on him to prove that fact to the satisfaction of the court. When there is evidence to the contrary a bare statement that the 1^st defendant was the foreman is grossly insufficient for the court to conclude that the plaintiff worked on the instructions of the 1^st defendant. The evidence of the first named 2^nd defendant that the plaintiff was the foreman and he was paid a higher salary than the other workers was also not challenged by the plaintiff. For these reasons I am of the view that there is sufficient evidence for the court to conclude that it was the plaintiff who supervised the work at the site and not the 1^st defendant.

[18] The defendants denied the allegation that the plaintiff and the other workers were not provided with safety equipment. It is their position that every worker including the plaintiff were provided with safety equipment and when the workers came to Labasa they took all the necessary equipment with them. The first named 2^nd defendant tendered in evidence two receipts dated 13^th February, 2009 and 08^th July, 2010, marked as “D1” and “D2”, to show that they have in fact purchased safety equipment such as safety glasses, masks etc. Witness Rajendra Prasad’s evidence supports this contention of the defendants. He had been provided with hand gloves, safety boots and goggles. From this evidence it is clear that the allegation of the plaintiff that the 2^nd defendants did not provide them with safety equipment cannot be true.

[19] Assuming that the 1^st defendant instructed the plaintiff to repair the collar still there is no evidence that the 1^st defendant compelled him to use only hammer and chisel and not any other tool. There is evidence that there was a grinder at the work place. If the plaintiff wanted to he could have used the grinder instead of the hammer and chisel. He is in my view not entitled to place the responsibility on the defendants for his own fault.

[20] The other act of negligence complained of by the plaintiff is that he was asked to do something which he had no knowledge of or any training. There is no evidence that the defendants compelled the plaintiff to repair the collar. The court prefers the evidence of the defendants to that the plaintiff on that issue. Even if the court assumes that the 1^st defendant asked the plaintiff to repair the collar he could always have worn the safety gear which could have prevented from any injury being caused to him. Since there is sufficient evidence to show that the 1^st defendant was not the supervisor or the foremen but the plaintiff himself the allegation that the 1^st defendant asked him to repair the collar is therefore unfounded.

[21] The learned counsel for the plaintiff cited the following paragraph from the observation of Lord Denning in the case of Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117;

..... I think rightly, that employees who send their workmen to work on the premises on others cannot renounce all responsibility for their safety. The employers will have an overriding duty to take reasonable care to devise a safe system of work, and if they know or ought to know of a danger on the premises to which they send their men, they ought to reasonable care to safe guard them from it. What is reasonable care depends, of course, on circumstances.

[22] As I have already stated the defendants had provided all the necessary safety equipment to the workers and they were available at the time the plaintiff sustained injuries. In my view the employer cannot be expected to be behind every worker all the time to see whether they wear the safety gear. They of course have to create an environment at every work place which guarantees the safety of the workers which the defendants have done in this instance. Injuries caused to the plaintiff is therefore, due to his own negligence.

[23] The plaintiff in his statement of claim has averred the he also relies on the doctrine of res ipsa loquitur. Res ipsa loquitur is not a doctrine but a Latin maxim which means ‘the thing speaks for itself. If the facts of the case are such that the most natural explanation of what happened is that the defendant is careless the burden of proof shifts to the defendant who will then have to show that he did not breach a duty of care owed to the claimant.

[24] Res ipsa loquitur has been applied to help establish that the defendant breached a duty of care owed to the claimant in the following types of cases:

1. the defendant performed a minor operation on the claimant’s hand and after the operation was over the claimant loss the use of his hand; (Cassidy v Ministry of Health [1951] 2 KB 343);
2. the claimant was working in the defendant’s factory and an electrical panel fell on his head; (Bennet v Chemical Construction [1971] 1 WLR 1571);
3. the claimant was injured when a coach driven by the defendant suddenly veered across the road into the claimant’s path; (Ng Chun Pui v Lee Cheun Tat [1988] UKPC 7; [1988] RTR 298);
4. the defendant cleaned a suit belonging to the claimant and the claimant suddenly developed dermatitis on wearing the suit again. (Mayne v Silvermere Cleaners [1939] 1 All ER 693).

[25] However, a plea of res ipsa loquitur was not allowed in the case where a door on a moving train operated by the defendant suddenly opens and the claimant falls out. The fact that the door opened suddenly did not of itself indicate that the defendant was careless in operating the train; the door could just as well have opened because of the fault of another passenger.

[26] In the instant case how the plaintiff sustained injuries is a fact within the exclusive knowledge of the plaintiff and therefore the burden of establishing that the defendant failed to discharge the duty of care owed toward the plaintiff, is on the plaintiff. In the circumstances a plea of res ipsa loquitur cannot be allowed.

[27] For the above reasons the court makes the following orders.

ORDERS

(1) The plaintiff’s action is dismissed.
(2) Taking into consideration the circumstances of this case the court will not make an order for costs.

Lyone Seneviratne

JUDGE

31^st January, 2018.