IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: ERCA 23 of 2013

BETWEEN:

SEA FRESH (FIJI) LIMITED
APPELLANT

AND:

LABOUR OFFICER for and on behalf of the dependants of the deceased TOMA BOUBOUA
RESPONDENT

Appearances: Mr. S. Singh for the Appellant.
Mr. N. Chand for the Respondent.
Date/Place of Judgment: Tuesday 2 February 2016 at Suva.
Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Workmen's Compensation Act – Appeal from an order of Tribunal - Time limitation to bring an action for compensation where the deceased is a seaman – Onus on the claimant to establish that there was an injury by accident which was work related and that the injury by accident occurred in the course of the employment – finding of fact on the question of whether personal injury by accident arose out of work was made by the ERT upon uncontroverted evidence which the appellate court has no basis or other evidence to interfere with the same- the claimant must also establish that there were dependants (full or partial) of the deceased for compensation to be payable under the WCA.
Cases:
Hodgson v. Owners of the West Stanley Colliery [1910] A.C. 229.

Legislation:
1.	The Workmen's Compensation Act Cap.94 ("WCA"): ss. 6; 13; 14; 28.

Cause and Background 

1.	The employer appeals against the decision of the Employment Relations Tribunal ("ERT") of 19 November 2013 wherein it heard the claim on behalf of the deceased under the WCA and found that the death of the worker arose out of work during the course of his employment and that compensation in the sum of $24,000 was to be paid to the respondent within 60 days.

2.	Mr. Toma Bouboua ("TB") died at work on 18 January 2009. A claim for compensation under the WCA was made by the Labour Officer ("LO") on 19 April 2011. The application stated that TB had died at work through an accident arising out of and in the course of the employment.

3.	At the material time, TB was employed by Seafresh (Fiji) Limited under a contract of service as a seaman. He was working on board a vessel known as "Zhong Sui # 610". 

4.	TB died on board due to a medical condition known as Acute Peritonitis. According to the claim, TB became sick on board and was lying on bed and resting before he passed away. 

5.	The employer at all times had maintained that the death was not work related and so the matter had to be heard and the question determined.

Evidence/Findings on the Claim

6.	Only one witness gave evidence for the deceased. He was Dr. Rauni Tikonayau. A person named Cama represented the employer and cross-examined the witness. No evidence was produced by the employer.

7.	On the question of the onus of proof and the elements of the claim, the ERT correctly found that the onus was on the claimant to establish that:

(i)	That the workman suffered personal injury by accident;
(ii)	That the injury arose out of the employment; and
(iii)	That the injury occurred in the course of the employment.

8.	On the first and second elements of the claim, the ERT found that there was no conflicting medical evidence to cast doubt on whether there was a personal injury by accident and that the same arose out of the work of the deceased. The employer had only asserted that the injury was not work related but did not provide any evidence to establish that it was not work related. 

9.	The doctor had stated that Acute Peritonitis meant that the deceased was suffering from an obstruction of blood flow to his appendix region. He stated that that is the condition or state of a ruptured appendix. He attempted to provide an explanation as to how this could have happened.

10.	The doctor stated that such obstruction of blood flow really happened when blood supply is cut-off causing organ injury. This can be attributed to the movement of the vessel in which the workman was travelling bound for the fishing trip. Since the vessel was out in the open sea, there was no doubt that vibrations and movement of the currents caused the ship to move. He stated that the vibration of the water can aggravate the situation or sickness in which the deceased was probably in. The ship's engine would also vibrate simultaneously causing the deceased's medical condition to off-set or worsen. In addition, he testified that certain food could also cause such condition and the fact that he was resting in bed during the trip meant that he was suffering from this condition at the material time. The situation could have been addressed if efforts were made to evacuate the deceased to the nearest hospital in time.

11.	Based on the medical evidence, the ERT found that the death was not expected or one that was designed by the worker. He fell sick on board and the movement of the ship due to whatever reasons caused his appendix to rupture which could not be addressed because the employer did not seek medical attention for the worker as soon as possible. There was no evidence that the employer acted quickly to seek medical attention for the deceased.

12.	On the question of whether the injury occurred in the course of the employment, the ERT found that it was because TB died when he was performing work under his contract of service and at the sea where his contract expected him to be. 

Grounds of Appeal

13.	Aggrieved at the decision, the employer appealed raising 6 grounds of appeal. It was asserted that the ERT erred in law and in fact:

1.	In finding that the deceased TB died as a result of personal injury by accident arising out of and in the course of his employment under s. 5(1) of the WCA.

2.	In failing to give any consideration to the submissions and documents presented by the employer.

3.	In not allowing the employer an adjournment to prepare its evidence though the ERT noted that the employer was represented by an unqualified person and did not have any witnesses present at the hearing whilst the deceased was represented by a lawyer from the AG's Chambers.

4.	In accepting the medical evidence of the doctor.

5.	In accepting that the claim had been commenced in time and not statute barred contrary to s. 28(1) of the WCA.

6.	In awarding the employee an excessive sum of $24,000 as compensation when there was no evidence of dependency adduced by the claimant.

Submissions 

14.	Mr. Shelvin Singh stated that the issue of whether the claim was statute barred or not ought to be decided first as this has the tendency of ousting the claim altogether if found in favour of the employer. He therefore argued ground 5 first.

15.	Mr. Singh argued that the claim by the LO was statute barred under s. 28(1) of the WCA. He argued that under s. 28(1) (b) of the WCA, the claim ought to have been brought within 3 months after the news of the death was received by the claimant.

16.	Mr. Singh said that the death occurred on 18 January 2009. The application for compensation was made on 19 April 2011 which is more than 2 years after the date of the death. This is outside the 3 months' time frame mandated by the statute. 

17.	It was contended that if the Court holds that the application was not required to be filed within 3 months, the claim is still statute barred because it was not filed within 12 months as required by s. 13 of the WCA. The time frame can be extended to six years if the failure to commence proceedings was for a good cause or mistake or because of failure on part of the employer to comply with the reporting provisions of s. 14.

18.	In this case, the accident happened on board at the sea. There was no requirement on the part of the employer to report the incident: s. 28 (1) (a) of the WCA. However the reporting was done on 20 January 2010. Even after the reporting, proceedings were commenced after a year. The claim therefore was statute barred.

19.	In responding to ground 5, Mr. Chand stated that whilst s. 28 of the WCA does state that the application shall be made within 3 months after the news of the death has been received by the claimant, there is nothing in the said section which says what is to happen if the claim is not filed within 3 months. This means that the other provisions of the WCA has to be analysed and one such provision is s. 13 0f the WCA.

20.	S. 13 states that the claim must be made within 12 months from the time of the death but the failure to make a claim within the period shall not be a bar to the maintenance of such proceedings if it is proved that the failure was occasioned by mistake or other good cause or that the employer had failed to comply with the reporting provisions of s. 14 of the WCA in which case the claimant has the right to bring the proceedings within 6 years. In this case although the claim was not brought within 3 months, it was brought within 6 years.

21.	Whether the failure to file the case within 3 months was occasioned by mistake or other good cause is a matter for the evidence and since this issue was not raised at the trial court, the claimant did not raise any such evidence. The ERT also noted that there was no contention as to the late reporting of the death of the workman by the employer. It will be prejudicial to the claimant's case if the issue is raised now.

22.	Mr. Chand said that the appellant cannot raise in the appeal court the question of time limitation when it did not raise it in the first instance. The appellant cannot show errors of law and fact on this issue which is the basis on which the appeal court has the powers to consider the decision subject to challenge.

23.	I will also summarise the submissions of both counsel on other grounds as well because I intend to deal with all the grounds irrespective of the result on the question of time limitation. The appeal was heard on all grounds instead of what normally happens is to hear the issue of time limitation as a preliminary point. It is essential that time is saved by not hearing issues on piece meal basis and since the appeal could be heard holistically, it was, and so must be addressed completely.

24.	Mr. Singh argued grounds 1, 2 and 4 together. He said that the death of the deceased appeared as an agreed fact. No death certificate was tendered to substantiate the death and the material cause of the death.

25.	It was also contended that apart from the evidence of the doctor connecting the death of the deceased to the employment, there was no other evidence to establish that the death was work related.

26.	The evidence of the doctor was wholly unreliable in that he did not see the post mortem examination result although one appears to have been requested by Dr. Sambekar who conducted the initial review when the deceased was brought in. Additionally, he was employed by the respondent and gave his opinion on the cause of the death a year after the deceased died. 

27.	It was argued that "Acute Peritonitis" could be caused by other things and not necessarily by the movement of the boat and the delay in evacuating the deceased for medical attention. 

28.	Mr. Singh said that the ERT seems to have placed a lot of weight to the evidence of the doctor that the death was work related as the workman was not evacuated to the nearest hospital in time. Whilst the employer did not adduce any evidence on this aspect, there were written statements from the boat captain on what had transpired between January 8 and 18 2009. The captain's notes clearly show that the deceased was given the opportunity to return to the shore but he refused so the evidence of the doctor that his life could be saved if he was evacuated should not be given much weight. The worker had voluntarily placed himself in that situation after knowing the risks. 

29.	Further, there was error of law when the ERT shifted the onus of proof on the employer to prove that the personal injury by accident was not work related when the law required the claimant to establish that the personal injury by accident arose out of work.

30.	In opposing grounds 1, 2 and 4, Mr. Chand argued that the death certificate was given to the ERT by the appellant itself. The death certificate was attached to the employer's reply to the application. The death certificate therefore appears in the records and since it is a public document the ERT can take judicial notice of the same. 

31.	Mr. Chand contended that s. 231 of the ERP states that in proceedings before it, the Tribunal may accept and admit the evidence as it thinks fit. It is not bound by the strict rules of evidence. It also has the discretion to dispense with adducing evidence on matters in respect of which the parties have reached an agreement in writing. Since the birth certificate was tendered through the submissions, the ERT was at liberty to take notice of the same and ascertain the cause of the death.

32.	On whether the personal injury by accident arose out of work, the ERT accepted the unchallenged evidence of the doctor. It was open to the ERT to do so as there were no other contrary medical findings. The appellate Court has no other evidence before it to disregard the evidence of the doctor or to easily and lightly interfere with the finding of facts made in this case.

33.	If the employer wanted to challenge the evidence of the doctor, it was open to it to do so. The employer was given a chance to cross-examine the doctor on his evidence and despite the opportunity granted and utilized, it could not be established that the doctor's assessment that the injury was work related was wrong. The doctor had immense experience and his credibility was not in question at any stage. The ERT assessed the evidence of the doctor and made a finding of fact that the death was work related. 

34.	During the trial the employer did not ever make a request for a second medical opinion. The employer only wrote to the ERT after the hearing was completed and rightfully, the ERT could not consider that request. Although the rules of evidence are not strictly followed, to maintain fairness, the evidence was still required to be produced in a fair and proper way. 

35.	Further, despite not having any witnesses on the trial date, the employer was prepared to go through the hearing. The employer therefore cannot complain that the ERT did not consider its submissions because no submissions to call witnesses to challenge the medical evidence were ever made at the trial. The ERT did state that if they did, at any stage of the proceedings, the employer could have been granted the application for a second medical opinion.

36.	Mr. Singh's concern through ground 3 was that the ERT erred in law and in fact in not allowing the employer an adjournment to prepare its evidence though the ERT noted that the employer was represented by an unqualified person and did not have any witnesses present while the employee was represented by a counsel from AG's Chambers. 

37.	The Court record does not have notes of what happened in every sitting leading up to the hearing. The parties only have the benefit of the hearing notes. The decision does not state that any adjournment application was made. However the record shows that towards the end of the hearing the ERT noted that "Any adjournment to get legal representation after hearing Mr. Chand is denied. The chance was given before proceedings. Concerned but waived by Mr. Cama". This notation shows that the employer applied for an adjournment and when such an application was made, the Tribunal ought to have considered the question on the established legal principles for adjournment. There is nothing in the record to show that the Tribunal approached the question of adjournment in reference to the legal principles established in this country through various authorities.

38.	The employee was only represented by a lawyer at the hearing date. The ERT ought to have realized that since the employee had been represented by a lawyer, it would be unfair for the employer to be unrepresented especially where legal representation was obtained without notice to the other side. In the interest of the employer to have raised a proper defence, an adjournment ought to have been considered and granted.

39.	Mr. Chand responded by asserting that the employer did not make an application for adjournment on the day. The Court record shows that he waived the right to ask for an adjournment.

40.	The ERT had also noted in the judgment that the employer's representatives had been warned to seek legal representations at various stages of the proceedings and that it chose not to have a counsel. The employer cannot complain now having waived its right to seek legal representation.

41.	Undoubtedly an adjournment could have been sought by the employer but it did not seek any adjournment. Instead the representative agreed that the hearing proceeds on the day.

42.	The final ground 6 was argued by Mr. Singh in reference to s. 6 (a) and (b) of the WCA. Mr. Singh argued that under s. 6 of the WCA, the claimant had to show that the deceased had either full or partial dependants. Compensation is payable only if it can be shown that there were dependants of the deceased. The amount of the compensation depends upon the degree of dependency. 

43.	The LO did not establish during the trial or through any other evidence that the deceased has dependants for whom compensation ought to be paid. Even the death certificate does not show that the deceased was married or had any children. In absence of any evidence of this issue, the Tribunal erred in law and in fact in granting the compensation.

44.	Mr. Singh also extended the argument to include that the amount of $24,000 is excessive as it was not based on the award prescribed under s. 6 but on the assessment of the LO. There is no provision in the WCA to award compensation on the assessment of the LO.

45.	In opposing ground 6, Mr. Chand submitted that the employer failed to raise this issue of dependency at the ERT and raising it at the appellate Court is prejudicial as it tends to affect the right of the claimant to adduce such evidence on the issue. The LO made the claim on behalf of the dependants and that is sufficient to show that the deceased had dependants.

Law and Analysis

46.	The First issue that the Court is faced with, and which ought to be decided first, is whether the claim before the ERT was statute barred. It is not in dispute that the death occurred on 18 January 2009. The employer reported the death on 20 January 2010 and the claim was filed on 19 April 2011.

47.	My attention was brought to two sections. The first section was s. 28 (1) (b) of the WCA and the second one was s. 13 of the WCA. S. 28 (1) (b) is material in determining whether the claim in the ERT was statute barred.

48.	Section 28 (1) (b) reads:

"This Act shall apply to masters, seamen and apprentices to the sea service, provided that such persons are workmen within the meaning of this Act and are members of the crew of any ship registered in Fiji or of any other British ship or vessel of which the owner, or (if there is more than one owner) the managing owner, or manager resides or has his principal place of business in Fiji, …

(a)…

(b) in the case of the death of the master, seamen or apprentice, the application for compensation shall be made within three months after news of the death has been received by the claimant;"

49.	Subsection 2 of s. 28 states that the WCA does not apply to such members of the crew of a fishing vessel as are remunerated wholly or mainly by shares in the profits or the gross earnings of the working of such vessel, except in such cases and subject to such modifications as the Minister by order provide. The workman is not caught by this exception as he was paid wages and not remunerated wholly or mainly by shares in the profits or the gross earnings.

50.	There is no argument that the deceased in this case is covered by the provisions of s. 28 (1) (b) of the WCA. I also find that since there is a separate provision in the WCA prescribing the time limitation for bringing claims on behalf of persons employed as seamen, that special provision being s. 28(1) (b) applies to this case and not s. 13 of the WCA. Therefore in order to decide the issue of time limitation, s. 28 (1) (b) is the proper provision to be analysed.

51.	What flows from s. 28 (1) (b) of the WCA is that the claim should have been brought within 3 months from the date the claimant received the news of the death. I reiterate that the LO received the notice of the death on 20 January 2010, a year after the death of the workman. From that date, the LO had 3 months to institute the claim but the claim was filed a year after and beyond the prescription period.

52.	Mr. Chand says that since s. 28 (1), unlike s. 13 of the WCA, does not have a proviso as to what happens if the claim is not filed within a year, the Court has to fall back on s. 13 to find out what is the solution to a claim barred under s. 28(1) (b) of the WCA.

53.	If the legislature wanted the Court to rely on s. 13 or its proviso for those covered under s. 28(1), there was no purpose of the enactment of s. 28(1) (b) prescribing a strict time limitation for filing of claims or s. 28 would otherwise have repeated the same proviso in s. 13. The reason why there is such omission is deliberate and the Court cannot and does not have powers to read into the legislation what is not there. On that basis, I find that this Court cannot rely on the proviso of s. 13 to decide the question of whether the claim is statute barred or not. I find that on s. 28(1) (b) the claim was statute barred.

54.	Mr. Chand also raised the argument that since the respondent failed to raise the issue of time limitation for bringing the claim in the ERT, it cannot raise the same here at the appellate level. This tends to prejudice his case as he is not able to rebut the issue with necessary arguments and evidence.

55.	On the question of prejudice, I have not deprived the respondent of the benefit of any argument on the question of limitation period to bring claims for compensation on behalf of seamen who die at work. I have also not been shown that there needs to be any further evidence than what was provided at the lower court to decide on the issue.

56.	Additionally, although the employer had not raised this issue at the trial, the LO had raised this issue specifically in its closing submissions. Paragraph 5 of the submissions of the claimant is headed "Limitation Period of the Claim". Since this was an issue that was raised by one party, the ERT went ahead and made a finding on whether the claim was maintainable.

57.	The ERT specifically made the following finding in paragraph 7 of its judgment as follows:

"…There was no contention as to the late reporting of the death of the workman by the employer. Indeed it is the responsibility of the employer to put the Permanent Secretary of the Ministry of Labour as to notice of any accident, injury or death within the twelve month period. However, it is still open to the Tribunal to determine in the event the employer fails with this mandatory requirement of the law whether the claim is maintainable with the time limitation of six years from the date of the accident. Here I am convinced that the claim satisfies the test of s. 13 of the WC Act in its entirety. This claim is maintainable".

58.	Since the question of limitation was determined, I have to make a finding whether that determination was correct in law and in fact or not. The claimant had the benefit of arguing this point at the first instance and an appeal arising of the findings is permissible in law and not in any way prejudicial to the claimant.

59.	Neither the LO nor the Court cast its mind to s. 28 of the WCA to determine the issue of time limitation. The issue was resolved in reference to s. 13 which I have found does not apply to seamen. However I will still go onto analyse s. 13 and find whether if it applied, the claim could survive under the said provision.

60.	S. 13 requires that proceedings for recovery of compensation under the WCA for an injury or death shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the injury or the death and unless the claim for compensation has been made within 12 months from the time of the incident. 

61.	S. 13(b) of the WCA states that the failure to make a claim for compensation within the 12 months period shall not be a bar to the maintenance of such proceedings if it is proved that the failure was occasioned by mistake or other good cause or the employer failed to comply with the provisions of subsections (1) and (2) of section 14. However, no proceedings for recovery of compensation shall be maintainable unless the claim for compensation is made within a period of 6 years.

62.	In this case, the claimant did not seek to rely on the proviso of section 13 to enable it to file the claim outside the 12 month period.

63.	In its judgment, the ERT found that there was no contention as to the late reporting of the death by the employer. It also found that the employer was required to give the notice of injury by accident within 12 months. Firstly, the requirement of giving notice of the claim under s. 13 is an obligation that is imposed on the claimant. It is the claimant who has to give the notice of the claim to the employer as soon as practicable and not the employer. 

64.	Under s. 14(2), where there is a death, the employer must give the notice of the death to the Permanent Secretary within a week. The s. 14(2) reporting provision does not apply to this employer because of the operation of s. 28(1) (a) of the WCA which states that if the accident happens on board, there is no need for the notice to be given by the employer. Since the death occurred on board, the employer was relieved from the obligations of giving the notice of the claim to the Permanent Secretary. The proviso under s. 13 is therefore of no assistance to the claimant.

65.	The claimant was therefore under s. 13 even, if it applies to this case, required to bring a case for compensation within 12 months and this did not occur. Definitely the family members of the deceased knew about the death and if the dependants wished to make a claim for compensation, they ought to have expedited the request to the LO. The claim was not made within the time limit prescribed by s. 13 and so was barred even under that provision.

66.	I have decided this issue on the question of statute of limitation and since I find the issue in favour of the employer I need not delve into the matter any further than this. I will nevertheless deal with the other issues raised in the other grounds. 

67.	The first one is whether the ERT ought to have allowed an adjournment to the employer to find legal representation when it realized that the claimant was represented.

68.	The records do not show that any application for adjournment was made by the employer. Neither is the issue raised in the judgment. What the record shows is that after the respondent did not adduce any evidence, Mr. Chand, the counsel for the claimant had put forward the question of the matter being adjourned to which the employer waived the right.

69.	The judgment also explicitly makes it clear that time and again the employer was reminded to seek legal representation. If that reminder was accorded to the employer and not taken heed by the employer, it has only itself to blame. 

70.	On the day in question, if the employer felt that the claimant was represented and it also needed some legal guidance, at least an application for an adjournment ought to have been made. However the employer indicated that it was prepared to go ahead with the hearing. The employer cannot complain now, having shown a lethargic approach to the way it handled the matter through the representative.

71.	Mr. Singh stated that the ERT shifted the burden of proof to the employer. This is not correct as the judgment makes it plain clear that the onus of proving that the injury by accident was work related was on the claimant.

72.	Much has also been said about the doctors evidence in that unfair weight was placed on it. The doctor stated that the appendix of the deceased ruptured and it could be caused by the boat movement and that the death could have been avoided if there was early medical attention. There was no admissible evidence to the contrary that something else caused the situation of the deceased. Mr. Singh says that the Captain of the boat had given a statement that the employee did not want to leave the trip in between and so on his choice medical attention was not given to him. The witness who gave the written statement did not even take stand to give evidence and his evidence was not tried for the Court to admit the same.

73.	On the available evidence of the doctor which was not contradicted at any point, it was open to the ERT to make a finding that on the balance of probability, the death of the deceased was caused due to the appendix being ruptured as a result of the movements of the boat and as a result of not seeking early medical attention. In absence of any contrary evidence, this Court cannot arrive at any other findings.

74.	The doctor's assessment on the cause of the death was late, but that does not indicate that his assessment was wrong based on what was available to him.

75.	Mr. Singh also stated that the medical certificate was not tendered in as evidence but the Court had the benefit of the same and even the notice of accident filed by the employer notes the cause of the death. The employer was therefore not prejudiced in not knowing what caused the death of the deceased.

76.	I agree with Mr. Singh that the claimant should have proved that the deceased has dependants for whom compensation was sought. Without the defendant raising this defence, it is for the claimant to establish that to qualify for compensation. Throughout the records, there is not a single evidence of anyone being dependant on the deceased. Even the death certificate where the name of the spouse and issues are to be filled shows blank. 

77.	I therefore find that the claim for compensation could not be sustained without it having being established that there were dependants of the deceased for whom compensation was sought.

s. 6 of the WCA.
Hodgson v. Owners of the West Stanley Colliery [1910] A.C. 229.

78.	The amount of compensation would depend on the degree of dependancy, that is, whether the dependancy was full or partial. The statutory maximum for full dependancy is $24,000: s. 6 (a) of WCA.

Final Orders

79.	In the final analysis, I find that the claim in the ERT was barred under s. 28(1) (b) of the WCA and if s. 13 applies, barred under s. 13 as well. The claim could not be maintained and as a result ought to be struck out ab initio. 

80.	I also allow the appeal on the ground that the claim for compensation was not sustainable without the claimant having established that the deceased had dependants for whom compensation was payable.

81.	I therefore set aside the judgment and orders of the ERT and strike out the claim filed in the ERT.

82.	On the question of costs, I do not find that any costs against the LO is justified even though the appellant is successful on appeal. I thus order each party to bear its own cost of the appeal proceeding.

Anjala Wati
Judge
02.02.2016
To:
1.	Mr. S. Singh for the Appellant.
2.	AG's Chambers for the Respondent.
3.	File: Suva ERCA 23 of 2013.