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Tabuia v Attorney General iro Ministry of Fisheries and Marine Resource Development [2012] KIHC 38; Civil Case 19 of 2011 (7 September 2012)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 19 OF 2011

BETWEEN:

MEREREI TABUIA, ADMINISTRATOR OF
DECEASED TABUIA TEKAIE
PLAINTIFF

AND:

ATTORNEY GENERAL iro
MINISTRY OF FISHERIES AND MARINE RESOURCE DEVELOPMENT
DEFENDANT

FOR PLAINTIFF: BOTIKA MAITINNARA
FOR DEFENDANT: MONOO MWERETAKA

Date of Hearing: 5 July 2012

JUDGMENT

This case is a claim for compensation under the Workmen Compensation Ordinance and for damages for negligence against the Ministry of Fisheries and Marine Resource Development, hereinafter referred to as the 'defendant'.

BRIEF FACT

The applicant, Ms Mererei Tabuia, is an administrator of her deceased husband's estate. Her deceased husband was one of the 'Observers' whose service was used by the Ministry of Fisheries and Marine Resource Development in 2009. On the 21st August 2009 the defendant picked up the deceased, Tabuia Tekaie, from his home and transported him to the Betio wharf where he boarded a foreign fishing vessel to be an observer. On the 3rd September 2009 while the deceased was still on board that fishing vessel, he was found dead.

THE ISSUES

Both Counsels agreed that the issue to be decided by this Court is as follows;

'Whether or not there is a contract of service between the deceased, Tabuia Tekaie, and the defendant'

Plaintiff's Argument

The plaintiff submitted that there was a contract of service existing between the parties. This was not in a written form as there was no signed contract but the contract could be inferred or implied from the relationship between the deceased and the defendant. Counsel for the plaintiff referred this Court to two case authorities to support this argument. The cases are Gould v Minister of National Insurance (1951)1KB 731 and Short v J & W Henderson Ltd (1946) 39 BWCC 62. From these cases there are four factors to be considered when determining the existence of the contract of service and these are as follows;

• The master's power of selection of his servant;
• The payment of wages or other remuneration;
• The master's right to control the doing of the work; and
• The master's right of suspension or dismissal.
  

The plaintiff submitted that the defendant has the power to select its servant as they had selected the deceased to be an observer. They picked him up from his house and drove him to the port where he boarded this foreign vessel to be an observer. They paid him wages. They controlled what he was going to do on the boat and how to do it. They did this by training him on how to do the job on these foreign ships. The plaintiff also submitted that the defendant also has the right to suspend and dismiss the deceased's services as they could have refused to employ or pay him at any time. Since all of these factors existed between the deceased and the defendant, the contract of service was therefore existed.

The Defendant's Argument

The defendant submitted that there was no contract of service as there was no written contract signed between the parties. They brought up a general principle on contract to support their argument which is that 'a person will be bound by a written document which he has signed whether or not he has read or understood it.' From this general principle they submitted that an implied rule existed that where a written document is not signed it is not binding on the parties. Therefore since there was no contract signed by the deceased and the defendant, no terms ever existed between them.

Court's finding:

Counsel for the applicant correctly submitted that where there was no written contract, the relationship between the parties must be considered. The evidence as deposed by the plaintiff in her affidavit showed that the defendant did recruit the deceased from his house to work on the foreign vessel as an observer. He also received wages from this work. Following the principle in the cases of Gould v Minister of National Insurance (1951)1KB 731 and Short v J & W Henderson Ltd (1946) 39 BWCC 62, this Court is of the view that a contract of employment existed between the defendant and the deceased. It was not a written contract but an oral one.

Section 2 of the Employment Ordinance, Cap 30 states that a contract of employment is 'any contract whether oral or in writing whether express or implied to employ or to serve as an employee'. This provision clearly states that in law an oral contract is also binding.

Having found that there was a contract of employment between the defendant and the deceased, the next issues to be considered by this Court are the claim under the Workmen's Compensation Ordinance and the claim for negligence.

Claim under Workmen's Compensation Ordinance

The plaintiff is claiming for the sum of $25,000.00 under the above Ordinance for the death of her husband together with a running interest from September 2009 till the date of payment. The plaintiff's position is that should the Court found that there was a contract of service, the terms of the standard contract for Observers will be equally applicable to the contract between the deceased and the defendant. They submitted that clause 7.5 of the standard contract set out that a rate used by the Ministry of Labour is to be paid to the deceased's family as compensation and that the Workman Compensation Ordinance is applicable to this case.

The defendant, on the other hand, contended that the Workman Compensation Ordinance is not applicable. That there is nothing in the standard contract that states this point. Clause 7.5 only states a rate to be used. They further submitted that the Ministry of Labour also uses rates other than those from the Workman Compensation Ordinance.

Since I have found that there was a contract of employment, I agree with the plaintiff that the terms of the standard contract for observers existing after the deceased's time is to be taken as relevant. It is the only fair thing to do.

Looking at clause 7.5 when it refers to the rate used by the Ministry of Labour for compensation, the only meaningful inference is that compensation rates are those rates under the Workman Compensation Ordinance. Therefore, the Workman Compensation Ordinance is applicable.

Counsel for the defendant further submitted that even if the plaintiff claimed that the Workman Compensation Ordinance is applicable, there were two issues under the Workmen Compensation Ordinance that that were not met. These issues are dealt with under section 15(1) and 5 of the Ordinance. Section 15 (1) deals with the requirement of notice of the accident as soon as practicable and the application for compensation within 6 months from the time of death. Ms Maitinnara for the plaintiff responded that her client did notify and make her application for compensation within the 6 months period, that is, a month after his death. This was evidenced by a letter from the plaintiff dated the 6 October 2009 to the defendant. By affidavit, the plaintiff deposed that on 6 October 2009 she wrote to the deceased's employer asking for money for her deceased husband.

I agree with the plaintiff, that the notice and application were submitted to the defendant well within the time frame of the Ordinance.

Section 5 provides that "If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject thereinafter provided, be liable to pay compensation....."

The argument advanced by Mr Mweretaka is that because the deceased was found death in his sleep, sleeping did not form part of his work therefore his death did not arise out of and in the course of his employment. On the other hand, Ms Maitinnara argued that the death of the deceased happened on the ship therefore it was still during the course of the employment.

I cannot accept Mr Mweretaka's argument. There is a long standing case law that an employee continues in the course of his employment until he has left his place of employment. In the case of Wong Bar v Suburban Petroleum Transport, Inc.119 F2d 745 it applied this law to say that a seaman is in the course of employment until he has left the place of employment. In another case of Adams v American President Lines, 23 Cal.2d 681 there was a long discussion about the principle relating to seamen in the course of their employment. It was stated in that case that necessary incidents of life of a seaman on a vessel enter into the course of employment. Necessary incidents of life therefore such as sleeping, eating, washing, etc are contemplated to be within the scope of the employment. Applying this principle to the present case, the deceased was found dead in his sleep on a vessel at sea, he has not left the place of employment, therefore it should be considered to be within the scope of or in the course of the employment.

In view of the above, the defendant is liable to pay compensation under the Workman Compensation Ordinance.

Claim for negligence

It was put forward on behalf of the plaintiff that the defendant is negligent in failing to satisfy the requirement of section 59 of the Employment Ordinance which reads as follows;

" (1) The employer shall cause every worker who enters into a contract to be medically examined by a medical officer or a person approved for that purpose by the Health Officer.

(2)Such examination shall be made and a medical certificate of fitness for the type of work upon which he is to be engaged issued before the attestation of the contract.

Provided that, where it has been impracticable to have the worker so medically examined before the attestation of the contract, the attesting officer may dispense with the requirement but shall in such case endorse the contract to this effect, and the worker shall be examined at the earliest possible opportunity thereafter."

After considering this provision, it is my understanding that it is only applicable to written contracts, which is not the case in the present case, therefore the plaintiff's contention on this point is irrelevant. Other issues raised under this claim are therefore not to be considered.

Judgment for the plaintiff for a claim under the Workman Compensation Ordinance, to be agreed or assessed by Court.
As the claim has succeeded in part and failed in part, I make no order for cost.

Dated 7th September 2012.

...........................................
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT