IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 45 of 2018

BETWEEN:

SHAHEEN SAHIF DEAN 
PLAINTIFF

AND:

WAIQELE SAWMILL LIMITED 
DEFENDANT

BEFORE:	
Hon. Justice Vishwa Datt Sharma

COUNSELS:
Mr. Sharma Sfor the Plaintiff
Mr. Kohli A. for the Defendant

Date of Ruling:
Thursday 06th January, 2022 @ 9.30am

JUDGMENT
[Personal Injuries claim for Damages]

INTRODUCTION
1.	The Plaintiff instituted these proceedings against the Defendant to recover damages for the injuries sustained by him whilst in employment by the Defendant. 

2.	He claimed for General Damages, Punitive Damages, Special Damages in the sum of $854.50, Loss of Amenities of Life and Loss of Earning Capacity, Interests, Loss of FNPF, Cost of this action and in the alternative, Compensation under the Workmen’s Compensation Act to be calculated with reference to the Plaintiff’s wages and percentage disability. 

Pleadings

3.	The Plaintiff pleaded that all material times the Plaintiff was employed by the Defendant as a Welder who was directed by the Defendant to cut the chainsaw’s chain using a grinder without any supervision. The Plaintiff was paid a gross salary of $196.35 per week and received the net salary of $180.64 together with FNPF deduction of $55.20. That it was an implied term of the Plaintiff’s contract of employment that the Defendant would by its servants and/or agents take all reasonable care to provide and maintain a safe system of work and effective supervision of the same and would not expose the Plaintiff to a risk of damage or injury of which they knew or ought to have known, and would take all reasonable measures to ensure that the place where the Plaintiff carried out his work and the machines he was required to operate and use were safe, and that the Defendant would provide and maintain a safe and proper system of working. That on 08th day of June 2017, the Plaintiff was directed by the Defendant company to cut the chainsaw’s chain using a grinder when there is a special machine or cutter designed to cut the chainsaw’s chain. The said injury on the Plaintiff was caused by the negligence of the Defendant or its servants and agents in providing facilities which was unsafe system of work.

4.	The particulars of negligence of the Defendant, its servants and/or agents were the following- 

i.	Failure to provide a cutter or machine which is designed to cut the chainsaw’s chain and whilst cutting the chain the grinder slipped from the chain and landed on the left thumb thus causing injuries. 
ii.	Failing to provide or maintain a safe and proper system of work, and failing to instruct their workmen including the Plaintiff to follow that system.
iii.	Failure to provide adequate supervision or at all. 
iv.	Failing to take any adequate precautions for the safety of the Plaintiff while he was engaged in his said work.  
v.	Exposing the Plaintiff to a risk of damage or injury if which they knew or ought to have known. 
vi.	Failing to provide any or any safe or proper system of work. 
vii.	Requiring the Plaintiff to engage in a dangerous activity without due regard to his safely. 
viii.	Failing to provide any care for the Plaintiff to attend to his surgical treatment in Fiji or abroad. 

5.	The Defendant admitted that the Plaintiff sustained injuries in the course of the employment on or about 08th of June 2017. He says that the Plaintiff was not employed as a Welder but was employed as a Store Man and denies directing the Plaintiff to cut the chainsaw chain. He further categorically denied being negligent as alleged in paragraph 6 (i) to (viii) inclusive of the Statement of Claim and says that any injuries suffered has been due to the sole negligence or recklessness of the Plaintiff or has been contributed to by him.

6.	The Defendant stated the following particulars of negligence on the part of the Plaintiff-
a.	Cutting the chainsaw chain when he was not authorised to do so
b.	Failing to use proper tools whilst working
c.	Failing to take any or any adequate safety precautions before cutting the chain
d.	Failing to wear safety equipment on the date of the incident
e.	Failing to take care and precautions as expected of the Plaintiff
f.	Being reckless and inattentive in the circumstances

7.	The Defendant stated that any loss, damage, pain and suffering, loss of amenities of life and loss of earning capacity is due to the Plaintiff’s own negligence. 

8.	The Defendant said that the Workmen’s Compensation was paid to the Defendant from 18th June 2017 until 10th December 2017 in the sum of $2,752.50.

Reply to Defence

9.	It is noted that upon the perusal of the Court file, it reveals that there was no Reply to Defence filed and served by the Plaintiff in order to complete the cause of action as was required in terms of Order 18 Rule 3 of the High Court Rules 1988. 

Pre-Trial Conference Minutes

10.	Both parties to these proceedings admitted the following facts at the pre-trial conference-

i.	The Plaintiff was employed as a Store Man by the Defendant Company

ii.	The Plaintiff sustained injuries during the course of his employment with the Defendant Company on or about the 08th day of June 2017

iii.	It was an implied term of the Plaintiff’s contract of employment that the Defendant would by its servants and/or agents take all reasonable care to provide and maintain a safe system of work and effective supervision of the same and would not expose the Plaintiff to a risk of damage or injury of which they knew or ought to have known, and would take all reasonable measures to ensure that the place where the Plaintiff carried out his work and the machines he was required to operate and use were safe, and that the Defendant would provide and maintain a safe and proper system of work. 

The Hearing

11.	The Plaintiff [PW1] gave evidence and called two (2) witnesses; Fazeel Farook Hussein (PW2) and Doctor Alipate Naitova (PW3).

PW1

12.	The Plaintiff [PW1] testified that he was employed by the Defendant as a Store Man. His duties included control of stores, OHS and issue items when needed. When he started work for the Defendant, he said he was directed by Supervisors, Mansoor Begg and Feroz Begg to cut the chainsaw chain. However, on the day in question on 08th June 2017, Raiyaz (Chanisaw Operator) had asked the Plaintiff to cut the chainsaw’s chain. It was not the first time for him to cut the chainsaw’s chain. He used a grinder to cut chains on the bench. The chainsaw chain came in a reel. The bench will have nails on each end. The Plaintiff would hook one end of the chain to the nail, drag the chain to its size by counting the number of teeth required and hook the other end of the chain to the second nail and then cut the chain with a grinder. The Plaintiff told Raiyaz that he will cut the chain for him. The floor where he was cutting the chain was not clear. The grinder disc got stuck to the wooden bench and rolled back onto his hand. He received injuries on his left thumb, bleeding, managed to stop the grinder and went outside shouting in pain. Later, he was taken to the hospital where he received the stitches and painkillers and was admitted for three (3) days. The Plaintiff was aware that there was a special tool “chain joinder and chain cutter” which is used to cut the chainsaw’s chain. When he was asked if the Defendant provided the tool? He said no. he further said, he was not wearing any hand gloves. He said that it was not true that he was not supposed to cut the chain. As a Store Man, he cut the chain since he was told to do so. His immediate Supervisor Feroz Begg was not around when he was injured on 08th June 2017. The Plaintiff told Court that Feroz Begg saw him cutting the chain but never stopped him, no one told him to cut the chainsaw chain.

In cross examination, the Plaintiff said that after three to four days of his employment with the Defendant, he had cut the chainsaw’s chain for the first time. He and Raiyaz used a grinder to cut the chain. He told Court that he protested to the Defendant Company that he will not cut chains, he was forced to cut chain and it was his job. He did not require supervision. He said he was in charge of all safety items. The Defendant has an OHS Officer. Labour Department came and inspected the Defendant’s premises, machines, cutting chain and everything. On 08th of June 2017, he cut the chainsaw chain on his own volition since he was the Store Man and he got injured. Thereafter, the Plaintiff did not go to the Defendant to ask for another job. Workmen’s Compensation of $2,752.50 was not paid to him. He stayed with his father and did fishing.

In re-examination, he said when he was employed at Waiqele Sawmills facilities such as clamp and bench was not available. OHS did not advise on cutting of chain.

PW2 

13.	Fazleen Farook Hussein told Court that before he worked for the Defendant from 2012 to 2015 as a Welder. PW1 worked as a Store Man then. He saw PW1 cutting the chainsaw’s chain 2 – 3 times with a grinder on a table. Store Men before PW1 used to cut the chainsaw chain with a grinder at the same place inside the storeroom. PW2 helped him cut the chain. He said there is a special tool used to cut the chainsaw chain but at that time the Defendant did not have the special tool.

In cross-examination, PW2 said that he saw PW1 and before him, another Store Man cut the chainsaw chain. No one got injured before.

PW3 

14.	Doctor Alipate Naitova, Orthopaedic Surgeon told Court that he has been working at Labasa Hospital since 19th December 2017 to date. He was shown the medical report of PW1 written by Doctor Rishaad Sharma dated 30th August 2018 tendered into evidence as Exhibit “P3”. Injuries received were “laceration at the left thumb, extensior pollicis longus and incomplete open fracture of the proximal phalanx of the left thumb” secondary to an accident with a grinder at work. He said PW1 had a fracture outside. Treatment provided was “clean of wound and repair of tendon”. PW3 further told Court that PW1 complained of reduced extension of his left thumb.

PW3 also cited medical report dated 05th August 2019 written by Dr Maloni Bulanauca tendered as exhibit “P4” which stated that PW1 is able to bend his left thumb 20 – 30 degrees without ankylosis.

PW3 cited medical report dated 20th August 2019 written by Dr Maloni Bulanauca tendered as exhibit “D1”. He said PW1 was admitted on 08th of June 2017 and discharged 2 days later. He had “open fracture of proximal phalanx and had pain”. Doctor Lofler did “adhensiolysis” – remove tissue to allow tendon to move freely. From date of discharge, PW1 was supposed to attend ten (10) clinics. However, he cannot say that he attended all ten (10) clinics.

In cross examination, PW3 was referred to exhibit “D1” – Medial Report of Dr Maloni Bulanauca dated 20th August 2019. He said the report stated “2% whole person impairment”. He reached maximum medical improvement and no further surgical intervention is envisioned for PW1. Tendon involved in injury. PW1 could bend left thumb to 20 – 30%. Limitation to movement. Phalanx did not have any significant limitation in range of motion or strength. 

In re-examination, he told Court, PW1 had 20 – 30 degrees loss of motion – Medical Report of 20th August 2019 refers.

15.	The Defendant called two (2) witnesses; Sashi Kapoor [DW1] and Sanjeshwaran Pillai [DW2]. 

DW1

16.	Sashi Kapoor [DW1] was a Garage Foreman and Welder for Defendant for seven (7) years. He knew PW1 as a Store Man and Feroz Begg was his Supervisor. Store Man cuts chainsaw chain from the reel. An angle grinder was used to cut the chainsaw chain prior to his joining the Defendant. He never saw Store Men cutting chainsaw chain and no one was injured. All are given safety glasses, hand gloves and boots.

In cross examination, he told Court he had not worked as a Store Man, nor did he supervise Store Men. Feroz Begg is the Supervisor. In storeroom there is a bench on which chain was cut. He knew PW2 who was his assistant Welder. Whenever DW1 was free, he will sometimes cut the chain. No one in particular was assigned to only cut chain. He was not at work when PW1 got injured but later learnt PW1 was injured. He told Court if proper facilities were used to cut chainsaw’s chain, then PW1 would not have been injured. It could have been possible that the injury could have been avoided.

In re-examination, he confirmed he never saw a chain cutter.

DW2
17.	Sanjeshwaran Pillai [DW2] told Court that he was employed by the Defendant in his capacity as an Electrician for the past 10 years. He was the OHS Officer and ensured that all safety equipment was there. OHS Labour also visited the Defendant’s premises. During his term, no one was injured whilst cutting chainsaw chain with a grinder. However, this was the first time that PW1 was injured.

In cross examination, he said that he has not seen any machine used to cut chainsaw’s chain. The Defendant does not use any bench. He did not know who cuts chains nor did he see the Plaintiff PW1 cutting chainsaw’s chain. He told Court that Fitters and Welders were assigned to cut chainsaw’s chain but would not know if one particular person was assigned to cut chainsaw chain only. He confirmed there was a risk involved in cutting chainsaw’s chain. He knew one Dip Chand was injured and one Atendra whilst welding, lost his eye. He has seen the place inside the storeroom where the chainsaw’s chain is cut and was not a safe place to cut chains. It is only after the incident that the Fitters and Welders are authorised to cut chains. They cut the chain on a proper bench.
He told Court that if the Plaintiff PW1 had used the G-Clamp and proper table, then this incident would not have happened.

In re-examination, he said that before this incident, he did not know if a G-Clamp was available, but available now in stores. He added that the Store Men could use the vice available in the stores. No one got injured before whilst cutting chain. Only Plaintiff (PW1) got injured.

Determination

18.	The issues for Court’s determination are as follows-

i.	Whether the injuries on the Plaintiff were caused or contributed through the sole negligence or recklessness of the Defendant as alleged in paragraph 6 (i) to (viii) inclusive in the Statement of Claim?

ii.	Whether the injuries were caused through the sole negligence of the Plaintiff as alleged in paragraph 6 (a) to (f) inclusive in the Statement of Defense or contributed by him?

iii.	Whether the Defendant complied with the requirements of the implied terms of the employment in providing a safe working system and take all reasonable means to provide a safe and proper working condition?

iv.	Is the doctrine of res ipsa loquitur applicable?

v.	Is the Plaintiff entitled to be paid compensation under the Workmen’s Compensation Act?

19.	The Plaintiff alleges that he suffered injuries to his left thumb.

20.	The particulars of negligence are pleaded in the Plaintiff’s Statement of Claim at paragraph 6 (i) to (viii) inclusive.

21.	The burden of proving the negligence on the part of the Defendant rests entirely with the Plaintiff.

22.	The Plaintiff, Shaheen Sahif Dean in his evidence confirmed that he worked for the Defendant in his capacity as a Store Man. He used to cut chainsaw’s chain during his employment. Mansoor Begg and Feroz Begg directed him to cut the chainsaw’s chain. On 08th June 2017, Raiyaz, a Chainsaw Operator employed by the Defendant Company asked him to cut the chain. The Plaintiff used a grinder to cut the chain on a wooden bench located inside the storeroom. The grinder disc got stuck on the wooden bench and rolled onto his left hand and caused injuries to his left thumb. He managed to stop the grinder, bleeding with the injury and shouted in pain. He was taken to the hospital, received stitches and painkillers and was admitted for three days. He told Court that Feroz Begg was his immediate Supervisor and not around when he was injured. Feroz Begg saw him cutting chainsaw chain with a grinder but never stopped the Plaintiff.

In cross-examination, the Plaintiff admitted that there was a special tool to cut the chain and told the Court that it was not in the stores. He used a grinder instead to cut the chainsaw chains. He said from the end of 2015 to the 08th day of June 2017 he used to cut the chainsaw’s chain at the same place on the bench with a grinder and never got injured until 08th June 2017. He protested and told the Defendant Company that he will not cut the chainsaw’s chain. He confirmed cutting the chain on 08th June 2017 on his own volition since he was the Defendant’s Store Man. The Plaintiff also confirmed that the Defendant Company also had an OHS Officer. Labour Department also came to inspect the premises, machine room, cutting of chains and everything.

In re-examination, he told Court that the Defendant Company did not have facilities such a G-Clamp and bench. OHS did not advise on cutting of chainsaw chains.

23.	Fazeel Farook Hussain [PW2] saw the Plaintiff cutting the chainsaw chain two to three times. Store Men working for the Defendant before the Plaintiff also cut the chainsaw’s chain with a grinder and PW2 helped him cut the chain. He was also aware that there was a special tool for cutting chains but the Defendant did not have the tool.

24.	The evidence of the Plaintiff and Fazeel Farook Hussain [PW2] confirms that the Store Men working for the Defendant Company were in the practice of cutting chainsaw’s chain with a grinder. 

25.	The Defendant had not subpoena or called Mansoor Begg or Feroz Begg to testify and counter the Plaintiff’s contention that they had directed or authorised the Plaintiff to cut the chainsaw’s chain with the grinder nor was Raiyaz, Chainsaw Operator called to testify if he had asked the Plaintiff to cut the chainsaw’s chain on the day in question on 08th June 2017 or did the Plaintiff on his own volition cut the chain for Raiyaz.

26.	It can be ascertained from the Plaintiff’s evidence that on 08th day of June 2017 the Plaintiff on his own volition cut the chainsaw’s chain for Raiyaz, the Chainsaw Operator.

27.	The Defendant has reiterated that the Plaintiff was not authorised by the Defendant to carry out the cutting of the chainsaw’s chain that he did on 08th day of June 2017.

28.	However, even if the Plaintiff was authorised by the Defendant, then the Plaintiff failed to use the proper tool “chain joinder and chain cutter” to cut the chainsaw’s chain. The Plaintiff in his capacity as a Store Man knew as confirmed by him in his evidence that there is a special tool “chain joinder and chain cutter” that is used to cut the chainsaw chain. He instead on the day in question used a grinder to cut the chainsaw’s chain for Raiyaz. The Plaintiff put himself at risk and whilst cutting the chainsaw chain got himself injured. 

29.	The Plaintiff has told Court in his evidence that his Immediate Supervisor Feroz Begg had seen him cutting the chainsaw’s chain with a grinder and had never stopped him from using a grinder to cut the chainsaw chain. DW2 Sanjeshwaran Pillai in his evidence also told Court that there was a risk involved in using a grinder to use a chainsaw’s chain.

30.	It was the Plaintiff’s duty as a Store Man to ensure that safety equipment such as the special equipment “chain joinder and chain cutter” was ordered, kept in the Defendant’s stores and used to cut the chainsaw’s chain. The Defendant Company is a Sawmill, deals with timber business and chainsaws are frequently used during the course of the work.

31.	On the other hand, the Defendant being a well to do Company should have realised and ensured that the proper tool “chain joinder and chain cutter” for cutting chainsaw’s chain was all the time in the Defendant’s store and should have been appropriately used in cutting the chainsaw’s chain to avoid accidents and injuries of its employees instead of a grinder.

32.	In the case of Kumar v Fletcher Construction (Fiji) Ltd FJHC 124 [1999] the High Court of Fiji emphasised on the issue of common law duty of an employer.
“It is the common law that an employer has a duty to take reasonable care for the safety of his workmen in all the circumstances of the case. This duty exists whether the employment is inherently dangerous or not. The employer's duty of reasonable care is the ruling principle.” 
33.	Lord Wright in the case of Wilsons (supra) at 84 said: 
"The whole course of authority consistently recognizes a duty which rests on the employers, and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations."
34.	In the case of Paris v Stepney Borough Council [1951] AC 367 at 384 Lord Oaksey said:- 
"The duty of an employer towards his servant is to take reasonable care for his servant's safety in all the circumstances of the case."
35.	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…”

36.	The Defendant had a duty to take reasonable care for the safety of the Plaintiff in all the circumstances of the case. The Immediate Supervisor saw the Plaintiff cutting the chainsaw chain with a grinder which evidence had remained unchallenged by the Defendant and therefore the Defendant should have taken immediate steps to forewarn the Plaintiff and ensured that if the Plaintiff was so authorised to cut the chainsaw’s chain then he was provided with the proper equipment “chain joinder and chain cutter” instead to avoid any accidents.

37.	Further, the Defendant had breached the provisions of Section 9 of the Health and Safety at Work Act No.4 of 1994 accordingly.

38.	Thus, I find that the Defendant was negligent. 

Safe System of Work and Adequate Supervision

39.	The Plaintiff also alleged that the Defendant failed to provide or maintain a safe or proper system of work or to instruct their workmen including the Plaintiff to follow that system.

40.	The parties to the proceedings in the pre-trial conference minutes admitted the fact “that it was an implied term of the Plaintiff’s contract of employment that the Defendant would by its servants and/or agents take all reasonable care to provide and maintain a safe system of work and effective supervision of the same and would not expose the Plaintiff to a risk of damage or injury of which they knew or ought to have known, and would take all reasonable measures to ensure that the place where the Plaintiff carried out his work and the machines he was required to operate and use were safe, and that the Defendant would provide and maintain a safe and proper system of working.

41.	On 08th day of June 2017, the Plaintiff on his volition made a decision to cut the chainsaw’s chain for Raiyaz by using a grinder when there is a special machine or cutter “chain joinder or chain cutter” designed to cut the chainsaw’s chain. The said injury on the Plaintiff was caused by the negligence of the Defendant or its servants and agents in providing facilities which was unsafe system of work. Further, there was absence of supervision when the Plaintiff was carrying out the task of cutting the chainsaw chain for Raiyaz on 08th of June 2017.

42.	DW2 in his evidence in cross examination told Court that he knew that there was a shelf which was used to store spare parts and after the accident was used to cut chains. He added it was not a safe place to cut the chainsaw’s chain and that after the incident, only the Welders and Fitters were authorised to cut chains.

43.	An OHS Officer was also employed by the Defendant. Feroz Begg was the Plaintiff’s Immediate Supervisor. There was no evidence before the Court to confirm that the OHS Officer carried out any training in terms of how the employees should go about cutting chainsaw’s chain and the proper tool and/or equipment that was supposed to be used. The evidence also reveals that the Immediate Supervisor was not all the time present when the Plaintiff carried out the chainsaw’s chain cutting with a grinder.

44.	The evidence before the Court reveals that the Defendant failed to provide the proper tool and/or equipment "chain joinder and chain cutter” to ensure the same was used by the employees of the Company instead of a grinder in order to cut the chainsaw’s chain.

Res Ipsa Loquitur

45.	The Plaintiff relies on this Doctrine. This is an evidentiary rule that enables the Court to infer negligence from the circumstances in which the accident occurred, if there is no explanation for it. However, this rule on which the Plaintiff relies does not befit the circumstances in which the accident happened. The Plaintiff in his evidence has explained to Court that he on his own volition cut the chainsaw chain for Raiyaz by using a grinder and that the grinder rolled onto his left hand and caused injuries to his left thumb.

Contributory Negligence

46.	The Defendant alleges that the injuries sustained by the Plaintiff have been due to the sole negligence or recklessness of the Plaintiff or has been contributed to by the Plaintiff.

47.	The High Court in Burfoot v Fiji Resort Ltd [2013] FJHC 256, held on the issue of contributory negligence-
“A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as reasonable, prudent man, he might be hurt himself.”

48.	The principle in respect to issue on contributory negligence was stated in Gani v. Chand & Ors. [2006] Civil Appeal No. ABU0117 of 2005 (10 November 2006) by Fiji Court of Appeal as follows: 

“The basic principle of contributory negligence is that, when a court is awarding damages to the plaintiff for injuries caused by the defendant, it may reduce the award if the plaintiff can be shown to have contributed to the injury by some negligence on his part. However, whilst the liability of the defendant arises from a duty towards the plaintiff, the assessment of contributing negligence is not based on a similar duty on the plaintiff towards the defendant. It was explained by Lord Simons in Nance v. British Columbia Electric Railway Co. Ltd [1951 AC 601, 611:

“The statement that, when negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care, is, of course, indubitably correct. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured part to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the injury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full. 

...this, however, is not to say that in all cases a plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully.”

49.	The Plaintiff in his evidence has told Court that on 08th of June 2017, Raiyaz, employed by the Defendant Company as a Chainsaw Operator asked the Plaintiff to cut the chainsaw’s chain. The Plaintiff confirmed in his evidence that he on his own volition had cut the chainsaw’s chain with a grinder for Raiyaz since he was the Store Man and as a result of which he got injured. 

50.	The Plaintiff whether he was duly authorised or not by the Defendant to cut the chainsaw chain is only to blame himself for taking the risk which eventuated in him sustaining the injuries as per the medical report tendered into evidence. 

51.	The Plaintiff (PW1) should have taken precaution and should have been more careful when he was cutting the chainsaw chain with a grinder for Raiyaz. 
52.	The Plaintiff was well aware and confirmed in his evidence to Court that a special tool “chain joinder and chain cutter” is used for cutting chainsaw’s chain. Therefore, he should not have put himself at a risk in the circumstances. 
53.	As a reasonable person, the Plaintiff should have foreseen and realised the danger of sustaining injuries whilst not utilising the proper tool “chain joinder and chain cutter” for cutting chainsaw’s chains.
54.	The Plaintiff failed to use the proper equipment “chain joinder and chain cutter” to cut the chainsaw’s chain for Raiyaz on 08th of June 2017 and instead used a grinder which slipped and rolled onto his left thumb causing injuries.

55.	I find that the evidence hereinabove establishes that there was contributory negligence on the part of the Plaintiff which was the cause of the accident of 08th of June 2017, which I assess at 50%.

Damages for Pain and Suffering 

56.	The Plaintiff [PW1] had undergone pain and suffering. He was bleeding from the injury. It took him 10 to 15 minutes to go to the hospital. After 5 to 6 minutes, he was attended to at the Emergency Department and given the treatment. His injury was stitched and he was given painkillers. Thereafter he was admitted in the hospital for three (3) days and later discharged. 

57.	Doctor Alipate Naitova [PW3] had tendered into Court three (3) Medical Reports dated 30th August 2018 (Exhibit P3), 05th August 2019 (Exhibit P4) and 20th August 2019 (Exhibit D1) respectively. 

58.	The Medical Report Exhibit – P3 showed injuries received by the Plaintiff were “laceration at the left thumb, extensior pollicis longus and incomplete open fracture of the proximal phalanx of the left thumb”. He had a fracture outside. The Plaintiff complained of reduced extension of his left thumb.

59.	The Medical Report Exhibit – P4 stated that the Plaintiff was able to bend his left thumb 20 – 30 degrees without ankylosis.

60.	The Medical Report Exhibit – D1 stated that the Plaintiff was admitted on 08th June 2017 and discharged two (2) days later. He had an open fracture of proximal phalanx and had pain. Doctor Lofler did “adhensiolysis” – remove tissue to allow tendon to move freely. The Report stated that he had scares measuring 4cm with noticeable with minimal limitation to activities of daily living hence score 2% whole person impairment and that he had reached maximum medical improvement and no further surgical intervention is envisioned for the Plaintiff.

61.	The Plaintiff testified that at the time of operation he had undergone pain. He also told Court that his left thumb had no movement before but he could move the thumb freely now, cannot grab things with left thumb nor can hold things for too long.

62.	In cross examination, he told Court that he was not employed after getting injured and did not go to the Defendant to seek for another job. He further said that he can drive and write with his right hand.

63.	In Court, he was asked to lift his hand and add both thumbs together, clap the hands and he did so as was asked. 

64.	Personal Injuries are classified as pecuniary (Economic) and non-pecuniary (Non-Economic) on the Loss being capable of assessment in terms of money, such laws would necessarily include Loss of Earnings and actual prospective (Future) in the nature of Non-Pecuniary Loss including Loss of Amenities and/or Enjoyment of Life.

There is no relationship between pain and money. Hence, the Court must award some amount arbitrarily but reasonable in nature. The Plaintiff suffered whole person impairment of 2%. 

65.	Taking into consideration above and the principle applicable to Assessment of Damages, I assess General Damages for Pain and Suffering in the current circumstances and grant a sum of $30,000. 

From this amount, since this Court has found that the evidence before court has established Contributory Negligence on the part of the Plaintiff and an assessment of 50% has been made, it follows that I make a 50% deduction from the above award of $30,000 to arrive at $15,000. The total General Damages for pain and suffering now stands at $15,000.

66.	In the instant case, it is noted that the medical evidence dated 20th August 2019 before the Court provides that the Plaintiff was examined and did not have any significant limitation in range of motion or strength to the left thumb. His scars measuring 4cm was noticeable with minimal limitation to activities of daily living. Hence a score of 2% whole person impairment was confirmed. The Report further said that the Plaintiff has reached the maximum medical improvement and no further surgical intervention was envisioned for the Plaintiff.

 Punitive Damages

67.	The Plaintiff also claimed for Punitive Damages. These are damages exceeding simple compensation and awarded to punish the defendant

68.	The claim for punitive damages is difficult to maintain, as this has not been pleaded rather appears in the prayer in the Plaintiff’s Statement of Claim. Further, no evidence was lead at the trial with regards to this claim. 

69.	The claim for Punitive Damages fails. 

Special Damages

70.	This normally consists of 'out of pocket' expenses incurred by the Plaintiff.

71.	The Plaintiff claimed $500 for transportation expenses; $300 for medications and $54-50 for the medical report. A total sum of $854.50 as Special Damages.

72.	However, he failed to produce any receipts in order to substantiate the claim for Special Damages. 

73.	I make reference to the case of Narendra Kumar v Sairusi Drawe, Minister for Home Affairs    and Auxillary Army Services and the AG [1990] 36 FLR 90 at page 95, Palmer J stated:

“Not withstanding that not a single receipt had been produced in evidence, I am satisfied from the Plaintiff’s evidence that he paid those amounts.”

74.	Bearing in mind the aforesaid case authority, I will proceed to deliberate on the same:

For transportation expenses; He told court that he travelled by a taxi from home at Soasoa to the Labasa Hospital on a return fare of $20 per trip for 15-20 trips. He did not confirm as to how many trips he made. It will only be appropriate and fair to allow for minimum 15 trips @$20 = $300.
  
For medication expenses; He explained that he bought pain killers, Panadol and Zhandu Balm. A claim of $300 for the type of medication bought is obviously excessive. I will allow a sum of $100 only. 

For the medical report, he claims a sum of $54.50, which is obviously fair and is accordingly allowed.

75.	Therefore, I will grant a total sum of [$300 + $100 + $54-50] = $454-50 in Special Damages. 

Loss of Earnings 

76.	The Plaintiff claims loss of earnings for the period 08th of June 2017 to 26th August 2019 (Date of hearing of the Substantive matter). 

77.	However, the Defendant submitted that any loss of earnings should be confined for the period 08th of June 2017 to 29th August 2019.

78.	It is ascertained from the Plaintiff’s evidence that 2 years after the Plaintiff sustained injuries on 08th June 2017 that he had worked for Munaf Motors for a period of 2 weeks. Thereafter, he left the work since he could not continue due to his pain and remains unemployed. It can be concluded that he was gainfully employed for 2 weeks which needs to be taken into consideration. It is also notable that the Plaintiff in his evidence also told court that he did fishing with his father after sustaining the injuries on 08th June 2017.

79.	The Medical Report dated 20th August 2019 States that the Plaintiff had limitation in range of motion or strength to the left thumb.

80.	The Plaintiff has 2% incapacity and it will not affect his ability to work gainfully.

81.	The Plaintiff whilst employed by the Defendant in his capacity as a Store man earned a Gross wages of $ 196-35 and Net wages of $180 including overtime worked.

From 08th June 2017 to 26th August 2019 = 114 weeks – 2 weeks [Plaintiff worked for Munaf Motors] = 112 weeks.

112 Weeks  x  $180   = $ 20,160.

82.	The above sum of $20,160 is granted to the Plaintiff as Loss of earnings for the period from 08th June 2017 until 26th August 2019. 

Costs 

83.	This matter proceeded to hearings. It took almost one (1) day for the matter to be heard and completed. It could have been concluded earlier if the Plaintiff’s witness PW3 – Doctor was present in court in time.  The matter had to be stood down for a while until PW3 turned up to court. A total of 5 witnesses testified, 3 for the Plaintiff and 2 for the Defendant. Bothe parties furnished court with written submissions. 
 
84.	In light of the above, the Plaintiff is entitled to costs and at courts discretion; I grant a sum of $750 as summarily assessed costs to the Plaintiff.

Interest 

85.	In the exercise of my discretion, I award interest at 6% per annum on General Damages awarded for the period of 08th June 2017 until 26th August 2019 and 3% per annum for the period of 08th June 2017 until 26th August 2019 on Special Damages accordingly.

Workmen’s Compensation

86.	Finally, the Plaintiff in the Alternative claimed for compensation under the Workmen’s Compensation Act.

87.	In evidence, the Plaintiff confirmed to court that he was not paid any Workmen’s Compensation of $2752-50 when being cross examined by the Defence Counsel. This is indicative of the fact that the Plaintiff chose to proceed with General damages and Loss of Earnings. 

88.	This Court has already assessed the Quantum for General Damages and Loss of Earnings in favour of the Plaintiff. 

89.	In light of above, this claim in the Alternative fails.

90.	Orders

The total sum awarded to the Plaintiff as damages is $36,528.14 made up as follows: 

a.	General Damages	$ 15,000.00	
b.	Interest on General Damages 	$      900.00	
c.	Special Damages	$     454.50	
d.	Interest on Special Damages	$        13.64	
e.	Loss of Earnings	$ 20,160.00	
	           Total	$36,528.14	

91.	Hence, there will be Judgment for the Plaintiff against the Defendant in the sum of $36,528.14 together with a sum of $750 summarily assessed costs payable by the Defendant to the Plaintiff accordingly.  

Dated at Suva this  06th day of January, 2022.

…………………………………………
Vishwa Datt Sharma
Judge

cc: Messrs Samusamuvodre Sharma Law, Labasa.
Messrs Kohli & Singh Solicitors, Labasa.