[1979] 25 FLR 1

SUPREME COURT OF FIJI

Civil Jurisdiction

ABDUL RAZAK

v

RAMESH

Williams, J.

31 January 1979

Workmen's Compensation–Award despite serious misconduct where permanent incapacity suffered–Application for negligence and alternatively Workmen's Compensation. 

S. Anand & M. Tappoo for the Plaintiff. 
B. K. Pillay and A. Balram for the Defendant. 

The plaintiff was a Blacksmith. Part of his duty was to light the fire in a forge. This was started by wood and a paraffin soaked rag to set the coals burning. It was alleged that plaintiff poured petrol on to the fire in mistake for diesel and the mistake arose as a result of the defendant's negligence in not taking care to prevent such an occurence by his servants in placing petrol in the diesel container. In a way described, the plaintiff became enveloped in f1ame, rushed outside and there the flames were extinguished. For reasons he gave on the facts the learned Judge rejected the claim for negligence. He then considered the Workmen's Compensation claim 

He concluded that in effect the plaintiff was guilty of serious and wilful misconduct in carrying out his duty.

However, the proviso to the Workmen's Compensation Ordinance (Cap. 77) s.5 (1) (b) referring to permanent incapacity was applicable and could be relied upon by the plaintiff. 

Held: There should be an order for compensation for the plaintiff assessed upon the basis of injuries other than those set out in .the schedule to the Ordinance. Award accordingly. 
Cases referred to: 

John George v. Glasgow Coal Company Limited [1909] AC 123. 

WILLIAMS. J. 

Judgment

The plaintiff, a blacksmith, was employed from time to time by the defendant. He first worked for the defendant in 1973.

On 24/6/76 he had been working for the defendant once again for a period of about 2 weeks. The plaintiff was the foreman of the smithy which had three other employees. 

It was the plaintiff's duty to light the forge's coal fire which was started by wood and a paraffin soaked rag to set the coals burning. He was doing this on 24.6.76 when he was severely burned. His right arm was severely burned from the hand up to the shoulder. The extensive scarring at the front, side and back of the lower part of his body and of his right arm is most unsightly and he has been left with only a weak grip in the right hand an inability to bend it at the elbow. One cannot help having a strong feeling of sympathy for him. 

His claim against his former employer is for damages on the ground of negligence and alternatively for workmen's compensation. It is alleged that the plaintiff's burns were due to his pouring petrol on the fire in mistake for diesel oil and that the mistake arose as a result of the defendant's negligence in not taking care to prevent such an occurrence or that of his servants in placing petrol into the diesel container. 

The plaintiff's account of what occurred is that he commenced to light the fire in the usual way with paraffin, wood and coal. Because the wood and coal was wet the paraffin burned away with little effect. Therefore he took some diesel oil as he thought, which he says was normally kept in a gallon metal container. When he poured this liquid on to the wood and coal flames shot upwards and so surprised him that he jerked his arm upwards. The container hit the funnel shaped metal chimney piece above the forge causing more liquid to spill out and upon the plaintiff. The was enveloped in flame and rushed outside where one of the employees extinguished the flames. 

One wonders why diesel should be kept in a blacksmith's shop. The defendant had no diesel engine. According to the plaintiff the gallon can in question kept dirty diesel oil which from the plaintiff's evidence that diesel oil was procured for the specific purpose of cleaning employee's hands and it had no other purpose. 

P.W. 2, Irmal Krishna also states that the diesel was kept for the sole purpose of cleaning employee's hands. He says that he did not see the plaintiff lighting the fire that morning but saw him in flame. 

The defendant and his two witnesses deny that there was diesel in the workshop. They deny that diesel was ever used for the purpose of starting the fire and state that it was always paraffin which was used for that purpose. 

I find it difficult to accept the plaintiff's evidence that diesel was kept specially for washing the hands of employees when paraffin, which everyone agrees was kept in the smithy, could be used for the same. Again I find it difficult to accept the plaintiff's evidence that because he was having difficulty in getting the fire started with paraffin he decided to use the less volatile diesel. Surely he would be inclined to continue with paraffin. 

If I accept the plaintiff's evidence that the can normally contained diesel then how did it come about that the diesel oil had been replaced by petrol and when did this occur? There is a drilling machine in the smithy which is driven by an old single cylinder petrol engine. It is common ground that that engine had not been operating on the morning in question. There is no suggestion from either side that anyone had been putting petrol into the petrol tank of the drilling machine and using the can in question for this purpose. Had diesel in the can been replaced by petrol on the previous day then employees washing their hands the previous day would probably have noticed the change and this would include the plaintiff. However, his evidence suggests nothing of that nature. Again, had petrol been put in the can the previous a day for washing hands much of it would have been splashed about and wasted and the rest may have substantially evaporated between 5.00 p.m. the previous day and about 10 a.m. the subsequent day. 

If petrol had accidentally found its way into the can then it seems to me that this would probably occur on the very morning that the plaintiff was burnt. In that case the person who put petrol into the can was probably handling petrol that morning. The drilling machine had not been working that morning and the plaintiff denies that he touched the machine. He says, although it is disputed, that he was the first person in the smithy that morning and that he actually opened up the place. The plaintiff also says he had given jobs to the other employees before lighting the fire. Accordingly if anyone was emptying diesel oil from the can and replacing it with petrol the plaintiff should have noticed it because the employee's jobs were not connected with the drilling machine. 

For the foregoing reasons I find the plaintiff's account to be lacking in probability and not impressive on the face of it. 

The can in question is cylindrical. It does not have a small orifice from which to pour. The opening at the top is the full diameter of the can. A person putting petrol into it would most probably have a reason for so doing. 

The defence case is that the plaintiff had been cleaning the single–cylinder engineer's parking plug that morning and that he used petrol for the purpose. It was the plaintiff, according to the defence witnesses who put the petrol into the can in order to clean the sparking plug. He than began to light the fire and when it did not burn he took the can containing the petrol which he himself had just placed in it and poured it on to the hot wood and coal. 

D.W.2, M. N. Khan, says that the defendant's son, Abdul Karim (P.W.3) warned the plaintiff about using the petrol and the plaintiff replied to the effect that he was the foreman and knew what he was doing. D.W.3 confirms that evidence. 

The explanation given by the defence witnesses seems to me to be the more probable and it is the one that I accept. I cannot in this case comment on the credibility of the witnesses for either side by reference of their demeanour. 

Accordingly the plaintiff's claim for damages based on negligence fails. 

Turning now to the claim under the Workmen's Compensation Ordinance the defence submit that the plaintiff in pouring petrol on to hot wood and coal was guilty of serious and wilful misconduct which disentitles him to compensation. I was only referred to one case of serious and wilful–misconduct which was John George and Glasgow's case reported in 1909 App. Cases 123. In that case a miner in G distinct breach of safety regulations pushed open a gate to a pit shaft and fell fifty feel. His wilful misconduct disentitled him to compensation. 

One may think that it should not be necessary to tell employees not to take chances with petrol. In particular it may be regarded as superfluous to have to warn employees not to pour petrol on to fires, or on to embers because the risk of danger is so obvious as to be universally known. In the instant case the forge fire was invariably lighted by soaking cloth in paraffin and igniting it among the wood and coal. There is no suggestion from either side that cloth was ever soaked in petrol to start the fire. The plaintiff's own evidence shows that he appreciated how dangerous petrol was; he intimates that had he known it was petrol and not diesel he would not have poured it into the forge. Even so he was prepared, on his own evidence, to risk pouring diesel, which after all is quite inflammable, on to the wood and coal which had already been heated by paraffin. There is obviously not the same risk in soaking a cloth with inflammable liquid putting it among wood in a fire place and then lighting it as there is in pouring the liquid on to wood which is probably glowing. In using a cloth the amount of liquid is limited and one cannot accidentally spill out of a cloth. Nevertheless the mode adopted in the smithy of lighting the forge with a paraffin soaked rag was unsafe. An employee may be tempted to follow this up by pouring paraffin on to a fire which seemed to be slow in starting and the result could be a flow of burning paraffin. A casual approach to the use of paraffin could induce a careless attitude to petrol. If one encourages an unsafe practice it may lead to something more unsafe. There is no evidence that the defendant forbade his employees to engage in dangerous ways of lighting the forge. In the circumstances I cannot say that the plaintiff deliberately disobeyed any rule or instruction issued by the defendant. 

Under S.5(1) (b) of the Workmen's Compensation Ordinance Cap. 77 the plaintiff is not entitled to compensation if his injury is attributable to serious and wilful misconduct. Following my findings on the plaintiff's unsuccessful claim for negligence I can only take the view that the plaintiff's conduct in pouring petrol on to the hot coals and wood was wilful. He knew just what he was doing and he did it although his subordinates had drawn his attention to the danger. His conduct was foolhardy and extremely dangerous and the consequences were almost inevitable. Had the defendant displayed an anxiety to ensure that the fire was lighted in a perfectly safe manner I would consider that the plaintiff's behaviour disentitled him to an award of compensation under S.5(1) (b). However there is a proviso to the sub–section which reads as follows: 

"Provided that where the injury results in death or permanent incapacity the court on consideration of all the circumstances may award the compensation provided for by this Ordinance or such part thereof as it shall think fit." 

My reasons are that the defendant not only tolerated but encouraged the unsafe practice of starting the fire with rag soaked in paraffin. It was a practice likely to induce indifference or a careless approach on the part of employees to the possibility of danger from the use of explosively volatile liquids. The use of petrol soaked rag instead of paraffin could have been the next step in an unsafe practice. The plaintiff went even further and poured petrol on to the stubborn fire. I do not think that that the plaintiff should be barred in the circumstances from receiving some compensation. It would, I think, be unfair to the defendant to award the full amount of compensation and I award the plaintiff 80% of the amount which he would otherwise have received

The injuries sustained by the plaintiff are not set out in the schedule to the Ordinance and I therefore have to assess the percentage incapacity caused to the plaintiff. It is permanent and therefore assessable under S.8(1) (b). Had the plaintiff lost his right arm completely the amount awarded would have been based on a 90% incapacity. He still has his arm although it is badly disfigured. He can raise it above his head although there is no flexibility at the elbow joint and he has a very weakened grip. To the best of my ability I would assess his disability at 80%. His wage was $18.00 per week and therefore his compensation would be $(18 x 266 x 8/100) = $3,744. 

The sum of $3,744 would be the sum assessable under the Ordinance if the plaintiff had not been guilty of the foolhardy and dangerous act of pouring petrol on the forge. I have already indicated that I would award him 80% of that amount under the provisio to S.5(1)(b).The figure which I finally arrive at is 80% of $3,744 = $2,996.00

In assessing the costs I have regard to the fact that the plaintiff failed in his claim for damages for negligence and the defendant was put to expense in defending that claim.

There will be judgement for the plaintiff for $2,996.00 and I fix the costs at $70.00

Judgement for the Plaintiff.