Baravi v Fiji Fish Marketing Group Ltd [2009] FJHC 229; Civil Action No 43.2006 (20 January 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: 43 OF 2006

BETWEEN:

LESI BARAVI of Jittu Estate, Veiquwawa,
Raiwasa, Boson for Fiji Fish Marketing Group Limited
(Plaintiff)

AND:

FIJI FISH MARKETING GROUP LIMITED
a company duly incorporated in Fiji and having its
registered office at Zarin Ali Chartered Accountants,
P 0 Box 2475, Government Buildings, Suva
(First Defendant)

THE DIRECTOR FIJI MARITIME AND SAFETY ADMINISTRATION,
FIMSA House, Amra Street, Walu Bay
(Second Defendant)

FIJI MARINE BOARD
a body established under Section 56 of the Marine Act No. 35 of 1986
(Third Defendant)

Ms P. Salele for Plaintiff
Mr. A. Sudhakar for First Defendant
Ms M. Rakuita for Second & Third Defendants

Date of Hearing: 15^th & 16^th October 2008
Final Date for Submissions: 19^th November 2008
Date of Judgment: 20^th January 2009

JUDGMENT

[1] Fiji Fish is a company engaged in catching and marketing fish. It owns fishing vessels. One of the vessels it owns is "Omjoo 1". The plaintiff is a fisherman. On 6^th August 2005 he was working on "Omjoo 1" in waters in Kadavu Passage. While the plaintiff was relieving himself in the toilet, he was struck on the eye by a snapped fishing line resulting in him losing sight from the eye. The toilet was an open toilet with no walls and located close to the main fishing line.

[2] He is claiming damages for injuries suffered during the incident. He claims the first defendant was negligent in having an unshielded toilet close to the main line.

[3] The first defendant Fiji Fish in its defence states that the plaintiff was employed under a share fisherman contract as a boson. It denies negligence but alternatively says that even if negligence was proved, its liability under the share fisherman contract was limited to $10,000.00. It also pleaded contributory negligence on part of plaintiff for failing to wear safety goggles.

[4] The second and third defendants are sued by the plaintiff for failing to perform their statutory duties as they failed to take due care in survey inspection and by allowing the vessel to sail when it did not meet safety standards.

[5] The second and third defendants stated that their statutory duty is confined to survey of vessels and their seaworthiness and not with the type of safety the plaintiff alleges is their duty.

LIABILITY OF FIRST DEFENDANT;

Share Fisherman Contract:

[6] The share fisherman contract signed by the plaintiff with the defendant forms part of the agreed bundle of documents. It is dated 16^th January 2003. Ms Salele submitted that even though the contract is called share farming it in essence creates an employer employee relationship. The first defendant made no submissions even though additional time for submissions was granted and a verbal reminder by phone made on 6^th January 2009. I presume that the first defendant does not intend to make submissions. To decide whether it is a share fisherman contract or in reality an employer employee contract, one must determine the nature of relationship set up by the contract.

[7] The contract has ten clauses which provide as follows:

[1] Share Contracted Position: Bosun will entitle you to a share (profit sharing) that is linked to total catch weight as outlined in the attached schedule (Schedule 1).

[2] To carry out duties associated with the assigned share contracted position as outlined in 1.

[3] Depending upon work performance a share fisherman maybe reassigned to a higher level on the vessel with an associated increase in share (profit) for that level. This will be based upon the recommendation of the Captain and approval of change of level from Operations Manager.

[4] Profit share due to fisherman shall be normally paid for each trip in arrears to allow for calculation of share based upon catch.

[5] A deduction of 15% for Provisional Tax will be deducted from all shares when paid.

[6] FFMGL undertakes to provide fisherman with adequate standard of rations from when vessel departs port until returning to port.

[7] This contract is to remain enforce until 31 December 2007 or until section 7 is invoked.

[8] Termination of this contract maybe affected by either party by giving notice in writing of intention to terminate contract of service 7 days before the date of intended termination or immediately if Captain of vessel recommends.

[9] Other conditions such as remuneration Shark Fin money is at the discretion of the Captain.

[10] I acknowledge and accept the inherent dangers and risk of possible injury associated with work on a fishing vessel in respect of which I waive all my rights of legal recourse against FFMGL unless negligence on its part is proved in which case maximum liability shall be fixed at $10,000 less any contributory factor on my part or other lower amount for less severe injuries as shall be payable.

[8] The ownership of the vessel remained with the Fiji Fish. I presume it would be employing the Captain. All the equipment on the vessel would also belong to Fiji Fish. The only input from the plaintiff would be his time and labour. For that effort according to the plaintiff he got paid a minimum of $10.00 per day but that basic sum went up if the catch exceeded three tons. Russell Dunham a representative of Fiji Fish told the court that to encourage productivity the company paid more money if more fish were caught.

[9] This is like a bonus payment for productivity and such payments can occur within an employer-employee relationship. An independent contractor is normally on a fixed payment. Russell Dunham stated that the fishermen were self employed and the crew is free to get out of the contract when they want.

[10] The common law courts have recognized and enforced contracts by which one party performs work for another. Courts have also recognized that not all such contracts involve the relationship of master and servant. The Supreme Court in Ali Hassan v. Transport Workers Union – CBU0006.2005 favoured looking at the totality of relationship between the parties. It said that the expression in a contract that a party is an independent contractor is not conclusive. One has to consider the character of the relationship and the rights and duties imposed by the contract. It concluded that "the primary consideration must be the degree of control, direction or constraint exercised or entitled to be exercised by the person receiving services over the person providing them".

[11] So control is one of the factors albeit the most important factor in discerning the nature of relationship.

[12] In the present case the vessel and equipment is owned by the first defendant. One could not go onto the vessel unless one first signed a contract. The contact was to last for roughly five years unless terminated earlier. The ship of course would be in charge of the Captain who would I assume be appointed by the first defendant. The captain could recommend immediate termination of the contracted person - Clause 8 of the agreement. All expenses incurred in running the vessel would be borne by the first defendant.

[13] The contract prescribes remuneration based on total catch weight as outlined in the schedule which was not attached to the contract. The plaintiff told the court that he was paid $10.00 a day plus extras if catch exceeded certain tonnage. This was a fact not challenged by the defendant but I accept that the plaintiff was so paid. Russell Dunham also confirmed if an employee had a FNPF number, then FNPF was also paid.

[14] If the plaintiff's share was really profit sharing as the written contract says, then he is more likely to be paid after the sale of fish and after profit had been calculated. However, there is no evidence to that effect. The first defendant provided adequate standard of rations while the vessel was on voyage something unusual for a self employed person as Mr. Dunham asserted.

[15] The plaintiff was not acting his own behalf. He could not say "this is my share of fish. I will sell my share myself". The fish once caught belonged to the first defendant. Further after the incident, the plaintiff was assigned by the first defendant to do work on the land at the workshop. This is despite the fact the agreement was not varied. I am of the view that this alternative work was given because the first defendant felt obliged to look after the welfare of an injured employee. I am of the view that this was an employer-employee relationship and not that of a share contract.

Was the plaintiff aware of the terms of contract?

[16] The plaintiff does not deny signing the contract. In his statement of claim he says that he did not understand the term regarding liability or given an opportunity to seek independent advice.

[17] The general rule is that a person of full age and understanding is bound by his/her signature to a document whether he/she reads or understands it or not: Gallie v. Lee - (1971) AC 1004; Hewitt and Another v. Habib Bank Ltd. – ABU0007.2004.

[18] The plaintiff must have known that the document he was signing had something to do with working on the vessel. Russell Dunham told the court that one Hargrove signed on behalf of the company and he was conversant with Fijian language.

[19] The plaintiff had signed the agreement in January 2003. He had been working on the basis of that agreement for over two and half years. Therefore by the time of incident he had ample opportunity to discuss the contract with a solicitor if he wanted to.

[20] On 6^th January 2006 he got his solicitors to write a letter to the first defendant in which the solicitors state that the plaintiff was employed under Share Fisherman Contract, reminding it of the unfortunate incident and seeking compensation of $8,500.00 being balance due under clause 10 of the agreement.

[21] This letter only goes to confirm that the plaintiff was not only aware of contents of the contract but was asserting his rights under it as well. The letter says that "we believe that you have denied him the balance sum of $8,500.00 when requested by him". This shows that at some stage the plaintiff did seek payment of balance sum of $8,500 from the first defendant.

[22] I find that the plaintiff knew of the contents of the agreement at the time of the signing of the agreement.

Health & Safety at Work Act raised but not pleaded:

[23] Ms Salele in her final submissions submitted that since the plaintiff was an employee, the provisions of the Health & Safety at Work Act 4 of 1998 applied. This particular Act was not pleaded. There was nothing in the statement of claim alleging breach of duties under this Act or Compensation Act. The importance of thorough pleadings can never be over emphasized. The defendants had no opportunity to consider this. So I do not intend to consider whether the Clause 10 of the contract is an attempt to contact out of the provisions of Health & Safety at Work Act.

Was the first defendant negligent in placing the toilet close to the main line?

[24] Mr. Dunham explained that Omjoo No. 1 was built in 1979. It was a fishing vessel which had no toilet not until as recently as six years ago. Most fishing vessels he said had no toilets.

[25] The toilet as placed was close to the main line. The pictures show that. There was also evidence before the court that main lines snap. Dunham himself had seen main line snap but not seen anyone get injured. A main line, which is about 50 to 60 kilometres long, with load of fish would on snapping swing with great force. Serious injury from it is easily foreseeable. The erection of the toilet close to the main line was clearly a negligent act. The toilet could easily have been shielded both for privacy and for safety. That would not have cost very much. Secondly, it could have been placed further away from the main line.

[26] Russell Dunham had explained that Fiji Fish had become conscious of injuries from hooks to the fisherman and the company had made provision for goggles. I accept that there were goggles on the vessel.

[27] The risk of injury from snapping fishing line would be obvious to fishermen. The need to wear goggles within the vicinity of the mainline would be equally obvious to an employee. An employer does not have to alert an employee to obvious danger; for example not to put kerosene on embers and blow on the embers from close range.

[28] An employer does not have to keep repeating to the employees of the need to wear goggles. A certain level of common sense and responsibility can be expected from an employee. In the present case the plaintiff was a bosun and not an ordinary crew on his first voyage. Given his experience, he should have realized that fishing lines could snap at any time and fly in any direction. Therefore, he should have realized as a reasonable person that the risk of a fishing line hitting somebody while sitting in the exposed toilet was always there. It would not have required great effort on his part to put on the goggles even when visiting the toilet. The plaintiff has failed to meet the standard of care required for his own protection. That failure to wear goggles is a contributing cause together with first defendant's act in placing the toilet where it was in bringing about the injury. I would place the plaintiff's contribution at one third.

Injury:

[29] The plaintiff has lost sight of one eye. Doctor Jai Narayan's report states that vision in the left eye is unlikely to be restored and it can be treated as a blind eye. General damages for pain and suffering and loss of amenities for total loss of sight in one eye normally range from $40,000.00 to $45,000.00 unless there are some aggravating features like delay in reaching a hospital: John v. Tebara Transport Ltd. – HBC0396.2005, Vinita Mala Chand v. Ba Gujerati Education Society & Others – HBC0295.2000. I see no reason why plaintiff in normal circumstances would not have received $45,000.00. However, he is caught by the provisions of Clause 10 of the agreement which limits the first defendant's liability to $10,000.00.

[30] There was payment by Fiji Fish of $1,500.00 which was to assist the plaintiff financially during the trauma. That appears to be a good will gesture and really not intended as compensation for injury. Accordingly I enter judgment against the first defendant for $10,000.00.

LIABILITY OF SECOND AND THIRD DEFENDANTS:

[31] The plaintiffs claim against the second and third defendants is for failing to perform statutory duties. Neither the statute itself nor the particular sections have been referred to in the statement of claim. This type of omission from pleadings occurs on a regular basis in many civil actions and is a matter of concern to those who sit on trials. Reference to particular sections enables a judge to read the sections and the law on it prior to trial and be better focused on key issues and to prevent parties from straying over a wide horizon.

[32] Reference was made to the Marine Act in the pre-trial conference minutes but again there was singular lack of reference to any particular section. The plaintiff submitted that the second defendant inspects surveys and issues certificate of seaworthiness and safety of vessels. He submits that the second defendant overlooked the closeness of toilet to the main line during his inspection. The plaintiff submitted that under Section 63 of the Marine Act the marine surveyor is given certain powers to "go on board a vessel and survey or inspect the vessel and its equipment or any part of the vessel or its equipment".

[33] This, the plaintiff submitted, would obviously include inspection of the toilet. The plaintiff submitted that the unsafe positioning of the toilet in relation to the main line should have been obvious to the surveyor.

[34] Ms Rakuita submitted that one has to look at the legislative intention. The legislative intention was not to impose liability on the Board for the type of accident suffered by the plaintiff. She submitted that there was no relationship of proximity between the plaintiff and the second and third defendants to found a duty of care at common law. The purpose of the Marine Act was to ensure seaworthiness of the vessels.

Marine Act and Regulations:

[35] Section 63 of the Act allows a surveyor to "go on board a vessel, including a vessel under construction, and survey or inspect, as the case may be (i) vessel and its equipment". The Director or Port Master can direct a vessel to be slipped or dry docked for purposes of inspection.

[36] Inoke Ratotodro, the Acting Director of Maritime Safety told the court that all fishing vessels are required to go through an annual survey. Annual survey he stated includes survey of life rafts, life jackets, flares, fire fighting equipment, pumps, anchors, the hull, machinery.

[37] The Marine (Fiji Maritime Code) Regulations 1990 contains a section on surveys and certificates. The Code requires all new vessels and existing vessels to undergo an initial survey to ensure that vessels comply with laws and Regulations of the Marine Board. The initial survey is conducted by Marine Board Surveyors who upon completion of survey write a report on the condition of hull, machinery and equipment.

[38] In addition to the initial survey there are what is termed periodic surveys, six monthly surveys and annual surveys. The itemized survey list for semi-annual sight survey and annual surveys show that the survey is limited to items such as safety equipment, engines, gear box, bilge pumps fire system, escapes from engine room and accommodation spaces, bulwarks and guard rails, operational test for main and emergency means of steering, examination of machinery and electrical installation, liquefied petroleum gas installation, cargo handling machinery, boiler and its mountings and fittings, hull, propellers, rudders and underwater fillings.

[39] These items show that the purpose and overall objective of the vessel survey is to ensure seaworthiness and ensuring safety during times of emergency like fire or vessel taking in water. It deals more with structure and safety equipment on board.

[40] The position of toilet hardly fits into above category or purpose. Simply because the second and third defendants did not look into the positioning of the toilet in relation to the main line does not mean that the survey was carelessly conducted or that there was breach of statutory duty when one considers the ambit of factors the surveys cover.

[41] Even if there was a breach of statutory duty, which I hold there was not, that breach by itself does not give rise to a private law cause of action. Such a cause of action can arise if it can be shown as a matter of construction of the statute, that the statutory duty was imposed for the protection of a particular class of public and further that the Parliament intended to confer on that class of public a private right of action for breach of that duty and a statutory liability to pay compensation: X Minors v. Bedfordshire County Council - [1995] UKHL 9; (1995) 2 AC 633.

[42] The plaintiff also in his statement of claim pleaded negligence in respect of inspecting the vessel thereby omitting to draw attention to the risk foreseeable in respect of location of toilet and main fishing line.

[43] To establish common law duty of care the plaintiff must show that damage to the plaintiff was reasonably foreseeable, that there was relationship of proximity and that it is just and reasonable to impose a duty: Caparo Industries Plc v. Dickman - 1990 1 All ER 518.

[44] The Marine Act and the Code impose certain duties regarding safety on the owner of vessel. The Health and Safety at Work Act is also designed to protect safety of workers at the workplace. For the type of injury under consideration, the owner is primarily responsible. It would not be reasonable to extend the duty of care to an administrative body whose responsibility is primarily to ensure structural and equipment safety of vessels. To sheet home liability on the second and third defendants could be counter productive as it might encourage owners of vessels to be less careful. Vessel owners would begin to treat Fiji Marine Board as some form of insurer on their behalf in injuries caused to seamen by negligence of ship owners and thereby become lax about safety matters. Accordingly I hold that the second and third defendants are not liable to the plaintiff for the type of mishap which has occurred here.

Final order:

[45] There shall be judgment for the plaintiff against the first defendant in the sum of $10,000.00 together with costs summarily fixed in the sum of $3,000.00. Plaintiff's action against the second and third defendants is dismissed with costs which I summarily fix in the sum of $3,000.00.

[JITEN SINGH]
JUDGE

At Suva
20^th January 2009