The wife of a man who died three years ago after falling into a cesspit at the Robin Hood Pub and Restaurant yesterday launched a lawsuit against his cousin and the pub.

Marcia Grant's lawyer Mr. Darcy Lord told Supreme Court his client was seeking damages on behalf of herself and her nine-year-old daughter.

They were entirely dependent on the income of Melbourne (Willie) Grant, a mechanic and part-time sanitation worker.

The 46-year-old's death had caused his family financial hardship, he said.

Mrs. Grant was suing the Robin Hood Restaurant and Pub, Robin Hood Enterprises for breach of statutory duty and Charles Grant for breach of statutory duty and negligence.

Grant died after being overwhelmed by toxic fumes trying to rescue his cousin Charles Grant, owner of Highland Sanitation Services, and another worker who had fallen into the highly toxic cesspit on the afternoon of August 13 1991.

The trio had been cleaning the Robin Hood's cesspit.

While attempting to rescue Grant and sanitation engineer Antoine Burgess, who had become immersed in the sewage, he was exposed to a high concentration of hydrogen sulphide causing him to collapse into the cesspit and become unconscious.

He later regained consciousness after being rescued from the pit and taken to King Edward VII Memorial Hospital, where he died 11 days later.

Burgess, 22 also died from the incident.

Charles Grant survived.

The cause of Grant's death was adult disporatory distress syndrome associated with septicaemia and acute hepato renal failure associated with toxin immersion, Mr. Lord said.

Statutory duty, he told the court, was certain statutes which provide for an individual to do certain things.

"Under the Occupiers Liability Act, the occupier is under the duty to make sure that visitors coming onto the premises which, include workmen, are safe,'' Mr. Lord said.

He added: "And if the employer does not ensure the safety of the visitor then he is in breach of the statute.

"Robin Hood is in breach because their cesspit was in such a condition that it was unsafe for anyone to work in it.

"As far as Charles Grant is concerned, under the Health and Safety at work Act an employer has certain duties to his employee and one of the requirements is that he provide a safe system of work so that if an employee is working in a dangerous atmosphere he must provide the employee with proper equipment.

"Melbourne Grant was exposed to a dangerous situation without proper equipment.'' Mr. Lord also said that Charles Grant was also being sued on the grounds of negligence because he did not have rescue equipment in place after the accident.

At the time of the fatal accident, Charles Grant had a contract with the Robin Hood to clean its cesspits.

"Charles Grant regularly asked Mr. Grant to help him out whenever he had spare time from his other job at Webb's Paint and Body Shop,'' Mr. Lord said.

The court heard from self-employed sanitation worker Derek Crockwell who was helping Charles Grant clean the cesspit at the restaurant.

"Charles and Antoine were in the pit and something went wrong, I could see Charles holding Antoine up, then Charles blacked out.

"Willie went in to help and was overwhelmed by the fumes in the pit. He told me that everyone in the pit was dead.'' Government health and safety officer Doris Foley Millett said that after investigating Charles Grant's cleaning procedure for a sewage pit, it was found that he did not require his workers to use rubber gloves, because they get in the way, and a respiratory canister was available but was never used.

"Charles Grant, who has been in the sanitation for 20 years, did not require his men to wear certain protective clothing and the men just used ordinary clothes.

"He had no emergency equipment and no first aid equipment, and none of his workers were trained in CPR and there was also no rescue plan.'' She added: "It was not a normal practice for his workers to wear a harness or a rope as a life line in the event of an emergency.

"Charles Grant did not fully understand the scientifics of oxygen and hydrogen sulphide in the sense that when oxygen diminishes and is replaced by Hydrogen sulphide the atmosphere begins to be toxic and a threat to life.'' The case continues today before Puisne Judge the Hon. Justice Meerabux and defence is being represented by Mr. Richard Hector.