Saumi v Air Pacific Ltd [2001] FJHC 140; Hbc0146j.2000s (7 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 146 OF 2000S

Between:

LICE ELENIVULA SAUMI
(as Administratrix of the Estate of
Nacanieli Saumi deceased)
Plaintiff

and

AIR PACIFIC LIMITED
Defendant

R.I. Kapadia for the Plaintiff
R. Smith with Ms. G. Phillips for the Defendant

JUDGMENT

Captain Nacanieli Saumi was a senior international airline pilot employed by Air Pacific which has its headquarters at Nadi Airport. Captain Saumi and his wife lived at Namadi Heights.

Towards the end of June 1999 Air Pacific issued a roster for its pilots for the following month. This document, a copy of which is Document B1-5 shows that Captain Saumi was on standby from 12.30 to 18.00 on 23 July. On 24 July he was to pilot FJ211 from Nadi to Tonga leaving Nadi at 7.00 a.m. and arriving at Tongatapu at 9.20 a.m. The same day he was to fly FJ210 back to Fiji leaving Tongatapu at 10.20 Tonga time and arriving back at Nadi at 10.50 Fiji time.

In order to get from his home at Namadi Heights to Nadi on the morning of the 24^th Captain Saumi travelled by motor car to Nausori where he boarded Air Fiji flight PC 121 bound for Nadi. Shortly after take off PC 121 crashed with the loss of life of all aboard.

The Fiji Airline Pilots Association of which the late Captain Saumi was a member has a collective agreement with Air Pacific which was entered into on 20 July 1990. A copy of this agreement is Document B1-1. Clause 18 of the agreement is headed “Indemnity and Insurance Cover”. Clause 18.2 which is the subject matter of this action is as follows:-

“18.2 DEATH COVER

18.2.1 The Company shall provide a death cover insurance for each pilot killed in the course of his duty with the Company or in the course of his employment or while he is based, slipping (sic) or travelling overseas in the course of his employment. However this death cover shall not apply if injury or death is attributable to misconduct or death resulting from a self inflicted injury.

18.2.2 Such death cover shall be on a “door to door” basis and shall be in accordance with the following table:”

The question before the Court is whether at the time of his death Captain Saumi was covered by paragraph 18.2 of the collective agreement.

On 10 October 2001 two bundles of documents marked B1 and B2 were tabled by consent. I also heard 4 witnesses, all called by Mr. Kapadia. The first was the Plaintiff, the second was Nitin Chandra Hiralal, another senior pilot. At the conclusion of the evidence Mr. Kapadia filed a comprehensive and learned written submission. This was followed by Mr. Smith who filed his equally helpful submission in answer on 24 October. In my experience the prompt filing of such written submissions greatly assists not only the trial judge but the expedition of any appeal.

Counsel were agreed that by virtue of Clause 18.2.1 Air Pacific was obliged to provide death cover insurance for any pilot, including Captain Saumi, killed in any of the three following situations:

First: In the course of his duty with Air Pacific; or

Secondly: In the course of his employment with Air Pacific; or

Thirdly: While based, slipping (sic) or travelling overseas in the course of his employment.

The dispute between the parties concerns the meaning and application of the words “such death cover shall be on a “door to door” basis”.

Since the accident occurred in Fiji it is clear that the third situation envisaged by clause 18.2.1 has no application.

On pages 6 to 12 of his written submission Mr. Kapadia first suggested that the accident occurred while Capt. Saumi was in the second situation envisaged by Clause 18.2.1, in other words that he was “in the course of his duty” with Air Pacific at the time.

Clause 2 of the collective agreement contains a number of definitions which I find immediately to be relevant. Clause 2 (11) defines “duty period”. Clause 2 (12) defines “split duty”. Clause 2 (13) defines “tour of duty”. Clause 2 (14) defines “standby duty”.

“Duty period” is defined to mean:

“any continuous period throughout which a crew member flies in any aircraft whether as a crew member or as a passenger at the behest of his employer or otherwise does any work in the course of his employment. It includes any flight time, pre-flight and post flight duties, positioning at the behest of the operator, ground training, ground duties and standby duty”. (emphasis added)

Clause 2 (46) defines “Travelling time”. It means:

“that period of time at the commencement or end of a tour of duty which is spent in transit between the place of duty and the place of accommodation and vice versa and may not be regarded as either rest or duty time”. (emphasis added)

“Travelling time” is not to be confused with “Dead head travel” which may be included in a tour of duty (Clause 2(13)).

Taking the above provisions together I am satisfied that the phrase “in the course of his duty” comprises more than the phrase “in the course of his employment”. It must involve at least one of the ingredients included in clause 2 (11) and may not merely consist of “travelling time”.

At the time of the accident Captain Saumi was travelling to work. He was not flying on PC 121 at the behest of Air Pacific or performing any other duties on its behalf. On the evidence and agreed facts I find that he was not killed in the course of his duty with Air Pacific and that therefore the first situation envisaged by clause 18.2.1 does not apply.

In paragraph 8 of his written submission Mr. Smith acknowledged that Air Pacific was bound to cover the Plaintiff if the accident occurred in the second situation envisaged by clause 18.2.1 taken together with clause 18.2.2 if, in other words the accident occurred while Captain Saumi was:

“in the course of his employment on a door to door basis”.

While this formulation rather puts one in mind of a hawker or travelling salesman I accept its value. The problem is to give the phrase a meaning.

As just seen, the phrase “in the course of his employment” does not amount to the same as the phrase “in the course of his duty”. At the same time it is obvious that the phrase “in the course of his employment” as used in the collective agreement must involve more than the mere status of being employed by the airline since the death cover which is extended is only extended to pilots who are in the employ of Air Pacific. It is only while those employed pilots are additionally “in the course of (their) employment” that the second limb of clause 18.2.1 extends cover to them.

To my mind the purpose of requiring pilots to be “in the course of (their) employment” before they can be covered under this limb is to exclude cover from pilots who lose their lives in circumstances wholly unconnected with their work. An example of this might be an accident at home or while undertaking some sporting activity. Where the accident occurs in circumstances which are not wholly unconnected with the pilot’s work but the pilot is not on duty then the pilot may still be “in the course of his employment” with Air Pacific. An example of this situation would be an accident occurring in mid flight while the pilot, having been relieved of his duties was enjoying a “rest period” as defined by clause 2 (39). As I see it the question which falls to be answered is whether travelling to work should be included in the same category.

The rules for construing contracts, the precise meaning of which is not clear, are well established. While extrinsic evidence cannot be admitted to vary or contradict a written agreement it is admissible in some circumstances to explain it. “Where any doubt arises upon the true sense and meaning of the words themselves or (there is) difficulty as to their application under the surrounding circumstances the sense and meaning of the language may be investigated and ascertained by evidence (outside) the instrument itself” (Shore v. Wilson (1842) 9 Cl & Fin 355, 565). Where an ambiguity arises when it is sought to apply the language of the contract to the circumstances under consideration whether because of the vagueness, generality or inaccuracy of the words in question then extrinsic evidence will be admitted to explain the meaning of the words used (Hitchin v. Groom [1848] EngR 163; (1848) 5 CB 515, 520).

In the present case I heard four witnesses for the Plaintiff. The evidence of the Plaintiff and of Mr. Hiralal usefully described the way in which rosters work. A pilot on standby (not the same as having a day off) is merely required to be able to report to his base (usually Nadi Airport) within one hour. Where a pilot is rostered to report for a particular flight then, if he lives no more than 2 an hour’s distance from the airport Air Pacific will fetch him from his home in company transport and, at the end of the tour of duty drop him back (see clause 16.1.1 of the collective agreement). Where the pilot lives further than this he has a choice either to make his own way or the way to his base or to make his own way to an agreed spot within the distance limit there to be met and taken the rest of the way by the company. As already noted this “travelling time” which takes place either before commencing a tour of duty or after completing a tour of duty is not regarded either as rest or duty time (clause 2 (46)).

“Travelling time” must be contrasted with “waiting time” since waiting time, as defined by clause 2 (47) may well include time spent travelling.

As explained by Mr. Hiralal, a pilot will typically travel from his home to his base, in this case Nadi. His tour commences when he reports for duty. He flies, as an example, to Tonga. There he has two hours to wait until be is due to fly back. How he spends this waiting time is up to him; he can either stay at the airport and read a book or he may decide to take a taxi and go into Nuku’alofa. However he spends this time he remains on duty and the time waited is considered “waiting time” whether or not travelling is involved. It is common ground that if an accident occurs during this “waiting time” then since it occurs while the pilot is on a tour of duty he will be covered.

Mr. Hiralal also explained that while a tour of duty would most frequently involve waiting for a return flight back to Nadi it is also fairly common for pilots to be waiting in Fiji to take a flight back overseas. Whether or not the waiting takes place in Fiji or overseas the pilot is free to spend the waiting time as he wishes. He might, if he is waiting in Nadi and lives nearby decide to drive home.

In these general circumstances Mr. Kapadia’s case is that the words “such death cover shall be on a “door to door” basis” must mean that a pilot setting out to work is covered from the moment he leaves the front door of his residence until the moment he returns to it. In support of his argument Mr. Kapadia referred me to a number of authorities mainly arising from consideration of the Workmen’s Compensation Acts. Some of these authorities such as Smith v. Stages [1989] 2 WLR 529 tend to lend support to Mr. Kapadia’s proposition but other authorities such as Vandyke v. Fender [1970] 2 All ER 335 are less helpful to him. None of the authorities however deal with the “door to door” concept introduced by clause 18.2.2 and for this reason I do not find any of the authorities cited to be determinative of the issue before me.

Mr. Smith’s position is encapsulated in paragraph 9 of his written submission:

“in the absence of specified doors the phrase “door to door” can never have anything other than a figurative meaning derived from reference to metaphorical doors .... The Defendant, though recognising no need to do so says that the phrase here is no more than a metaphor for “from start to finish”: sometimes involving specific doors, others not.”

One difficulty about this approach, as it seems to me, is that it immediately raises the question: start to finish of what?

If the intention of the parties was to extend cover only for the duration of a tour of duty then it would have been a simple matter to state that intention particularly since, as has been noted, the phrase “tour of duty” is precisely defined by Clause 2 (13), any lingering doubt about cover while travelling being dealt with by clause 2 (45).

It is a fundamental rule of the construction of contracts that the words used are “to be understood in their plain ordinary and popular sense unless the context in which they are used evidently points out that they must, in the particular instance and in order to effectuate the intention of the parties to the contract be understood in some other and peculiar sense” (Beard v. Moira Colliery Co. [1915] 1 Ch 257, 268).

While I agree with Mr. Smith that no particular door is specified it is clear to me that the doors in contemplation were not the doors of the head office of Air Pacific and that the words “door to door” would not have been used if the start and finish of each tour of duty was all that was in contemplation.

Major advantages which flow from Mr. Kapadia’s approach are certainty and predictability. On his analysis it simply follows that whenever a pilot leaves his place of abode (whether permanent or temporary) in order to travel to work he becomes covered from the moment he leaves until the moment he returns home. This will be so whether actually travelling on duty or whether travelling to assume duty and whether or not the travel is at home or abroad.

On Mr. Smith’s analysis, on the other hand, a pilot travelling to work would not be covered if he had not yet commenced his tour of duty but he would be covered if he was travelling home while waiting part of the way through his tour of duty. He would always be covered while travelling overseas but only sometimes while travelling in Fiji. Whether he would be covered while travelling after being summoned while on standby is not clear. Mr. Smith appeared to concede that a pilot travelling home in company transport under Clause 16.1.1 would be covered since Air Pacific is obliged to provide this transport and has control of it but if a pilot happens to live 35 minutes away from his base then apparently he would be covered for 30 minutes of the ride home with the company but not for the 5 remaining minutes in his own transport.

If a pilot wished to cover himself for that portion of the journey which, on Mr. Smith’s analysis was not covered by the collective agreement, how could he go about explaining what he wanted to his private insurer? Given the uncertainties which are the inevitable consequence of Mr. Smith’s approach I find it hard to imagine that this was what the parties intended. In the absence of anything to suggest why the phrase “door to door” should be understood metaphorically rather than literally I find nothing to favour this approach.

In the circumstances in which I find that the collective agreement was intended to operate I am of the opinion that there was an obligation on Air Pacific to provide insurance cover for a pilot travelling between his home and his place of work and between his place of work and his home from the moment he commenced his journey to work until he reached home again at the end of his tour of duty. There being no argument as to the quantum of Captain Saumi’s entitlement under the table following clause 18.2.2 I grant declarations (a), (b) and (c) sought by the Plaintiff. There will be Judgment for the Plaintiff against the Defendant in the sum of $457,690.50. I will hear counsel as to interest and costs.

M.D. Scott
Judge

7 November 2001