Mr. V. Parmanandam for the Plainbr> No Appearance for the Dthe Defendant
JUDGMENT
In this action which was instituted in 1985 the plaintiff claims damages for an assault committed on him by a fellow employee of the defendant agency and for wrongful dismissal.
In particular the plaintiff claims:
(a)"... that the assault was committed by the servant or agent (of the defendant company) in the course of his employment ...";
(b)"... as owners of the ship (the defendant company) failed and/or neglected to provide adequate and sufficient security for
the welfare of the plaintiff on the ship." and lastly
(c) "that ... the defendants illegally, unlawfully and wrongfully terminated (his) employment ..."
At the outset it should be noted that the plaintiff's evidence in the case was not contraverted or seriously tested owing to the failure
of counsel to appear for the defendant agency at the trial of the action.
The plaintiff testified that in 1980 he had worked as an engine room assistant on a vessel belonging to the defendant agency and was re-engaged by the defendant on the
20th of April 1982 on a '9 month contract' to work on another vessel of the defendant's, the "M.V. Kolle-D" which was involved in the cartage of phosphate from the island of Nauru.
On the 22nd of December 1982 whilst the ship was berthed at the port of Taranaki in New Plymouth, New Zealand he was assaulted on board the ship by a fellow crewman armed with a broken bottle.
As a result of the unprovoked assault on him the plaintiff sustained severe lacerations to his left shoulder, back and chest. He was
taken to the Taranaki Base Naval Hospital where his wounds were stitched and treated and he was discharged.
The following day he was flown back to Suva ostensibly to allow him time to recover from his injuries. After recuperating for 2 months the plaintiff returned to the Suva Office
of the defendant agency with a view to rejoining the ship but instead was told that he had been discharged from the defendant's employment
with effect from the 22nd of December 1982. (i.e. the day on which he had been attacked and injured.)
The plaintiff also called as a witness the 'bosun' on board the "M.V. Kolle-D" at the time, Taniela Mafi. He testified that as 'bosun' it was his duty to supervise and look after the welfare of the crew on deck and included investigating any 'incidents' that occurred on board the ship.
In this latter regard he had investigated the 'incident' involving the plaintiff and, in particular, had questioned another Nauruan crew member Raphael Akubor as to why he had stabbed the plaintiff with a broken bottle. He was told that it was an 'act of vengeance' for an assault committed by a group of Fijians (not including the plaintiff) on Raphael whilst he was ashore earlier in the day.
Dealing then with the plaintiff's first head of claim, and the legal principles pertaining thereto, I would respectfully adopt the
statement of Lord Thankerton when he said in delivering the judgment of the Privy Council in Canadian Pacific Railway Co. v. Lockhart [1942] AC 591 at p.599:
"The general principles ruling a case of this type are well known, but, ultimately, each case will depend for decision on its
own facts. As regards the principles, their Lordships agree with the statement in Salmond on Torts, 9th ed., p.95, namely: "It
is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the
relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of
an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he
has authorised that they may rightly be regarded as modes -although improper modes - of doing them. In other words, a master is responsible
not merely for what he authorises his servant to do, but also for the way in which he does it ... On the other hand, if the unauthorised
and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act,
the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside
of it."
The question which this court must determine on the paucity of evidence led before it is whether Raphael did what he did 'in the course of his employment' bearing in mind the ruling principles.
In this regard even accepting that the plaintiff and his assailant were fellow crew-men employed by the defendant on the same ship
and therefore presumably entitled to be on board the ship, in the absence of any evidence whatsoever as to the particular duties
(if any) that the assailant might have been or was performing at the time, I find it not proved that the unprovoked assault on the plaintiff
was committed 'in the course of the (assailant's) employment' with the defendant or in order to protect and advance the interests of the defendant nor within any express or implied authority which the assailant may have had at the time such as to render the defendant vicariously
liable for the assault. Accordingly this claim is dismissed.
Indeed in the circumstances prevailing at the time with the ship unloading cargo one would have thought that the incapacitating of
an able-bodied crew member would prima facie have been an act contrary to the interests of the defendant.
In Warren v. Henleys Ltd. [1948] 2 ALL E.R. 935 in dismissing the claim of a motorist, who had been assaulted by a bowser attendant, against the latter's employers, Hilbery J. held:
"The defendants were not liable for the wrongful act of their employee since that act was one of personal vengeance on the employee's
part and was not done in the course of his employment, it not being an act of a class which the employee was authorised to do or
a mode of doing an act within that class."
(See also: the more recent decision of the Privy Council in Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad [1974] UKPC 2; (1974) 1 WLR 1082 in which a passenger was seriously assaulted in the eye by a bus conductor.)
In so concluding I am also mindful that the ship's 'bosun' was present on board at the time; that the assailant was taken to the Taranaki police station and then repatriated by the defendant at the earliest opportunity after the incident and, more particularly, the avowed
reason proffered for the assault which was elicited by learned counsel for the plaintiff and which I have no reason to reject as
untrustworthy.
I turn next to deal with the plaintiff's second claim which is based on the "... duty which rests on (an) employer 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". (per Lord Wright in Wilson & Clyde Coal Co. Ltd. v. English [1937] UKHL 2; [1938] A.C. 57 at p.79).
Again even accepting that the defendant agency did owe such a duty to the plaintiff, the evidence led by the plaintiff (or rather the lack of it) is such that this court is unable to find that there was any breach of that duty by the defendant in the particular circumstances
of this case.
Needless to say, this was not a case of faulty equipment or unusually dangerous work nor of a complete stranger being allowed through a lack of security measures to board the defendant's ship and attack a crew member.
Neither is there any evidence to suggest that any 'hostility' existed between the different ethnic groups of crew members on board the ship or between the plaintiff and Raphael in particular, nor is it suggested that Raphael had a known propensity for violence or a history for unprovoked assaults on fellow crew-members.
In this latter regard in not dissimilar circumstances and with a great deal more evidence, Gorman J. in Smith v. Ocean Steamship Co. Ltd. [1954] 2 Lloyds Rep. 482 dismissed as 'unestablished', the claim of a mother whose son was fatally stabbed by a native labourer employed by the defendant company for the purpose of loading
their vessel.
In the circumstances this second head of claim is also dismissed.
The plaintiff's final claim against the defendant is for damages for 'wrongful dismissal'. Now in order to succeed on such a claim the plaintiff must establish 2 conditions: (in this case).
(1) that he was engaged for a fixed period or that his employment was only determinable on notice and he was dismissed before the
expiration of the period or without the requisite notice as the case may be; and
(2) that his dismissal was wrongful in the sense that it was without just cause or excuse on the part of the employer.
The plaintiff's evidence was that he had been engaged by the defendant agency on the 20th of April 1982 for a fixed contract period of 9 months, that he was discharged with effect from the 22nd of December 1982 (i.e. almost a month before his fixed contract period was due to expire) and he was given no reason for his dismissal.
There can be no doubting that the plaintiff's dismissal took effect from the date of the 'incident' in which he was injured and his return to Fiji, but merely because an employee has been injured and is unable to work is not in my
view sufficient cause or excuse to warrant his dismissal unless the injury was self-inflicted.
In this instance the plaintiff's injuries were caused by a fellow employee in circumstances which the court finds would not furnish
the defendant with grounds for the premature determination of his fixed contract of employment.
The evidence does not disclose any 'misconduct' on the part of the plaintiff nor has the same been pleaded in the defendant's Statement of Defence which unhelpfully contains a bare denial.
In Acklam v. Sentinel Insurance Co. Ltd. [1959] 1 Lloyds Reps 683 Salmon J. in upholding the plaintiff's claim for wrongful dismissal said at p.589:
"Misconduct is a very serious matter: you cannot get rid of a man under a contract ... merely because he turns out to be rather
awkward or you find it exasperating to work with him. One can well understand the position where the employer will come to the conclusion
that he cannot go on with the man any longer. It may be the man's fault, it may be the employer's fault; it may be the fault of both
of them or neither of them; but that situation can arise. Unless, however, the employer can prove misconduct or negligence, he has
to pay the man damages if he gets rid of him."
Accordingly I find that the plaintiff was wrongfully dismissed and the defendant is therefore liable to pay him reasonable damages
which I base on the plaintiff's tax-free wages at the time.
In the absence of any documentary evidence and mindful that the bosun received wages of $700 Australian a month I would fix a reasonable estimate of the plaintiff's monthly wages at the time as $400 Australian.
Bearing in mind the rather crude circumstances in which the plaintiff came to learn of his dismissal and the time which remained before
his fixed term contract was due to expire, I think the correct figure to award the plaintiff by way of general damages for wrongful
dismissal is $2,500 taking into account the change in the relative value of money over the past 10 years.
I also allow the reduced sum of $100 for the plaintiff's medical and travelling expenses during his period of recuperation in Suva which expenses in my view ought properly
to be borne by the defendant his employer.
The total sum awarded to the plaintiff is $(2,500 + 100) = $2,600 together with costs of the action to be taxed if not agreed.
D.V. Fatiaki
JUDGE
At Suva,
13th May, 1992.
Hbc0819j.85s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1992/5.html
