Ioane v Ioteba [2004] KIHC 49; Civil Case 08 of 2003 (18 March 2004)

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

Civil Case 8 of 2003

Between:

BAUA IOANE
Plaintiff

And:

TEKABAIA IOTEBA T/A AVETEBA
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Ms Jacqueline Huston

Date of Hearing: 6, 7 & 18 March 2004

JUDGMENT

The plaintiff is the widow of Ioane Iennang who was drowned on 21^st February 2000. He used to dive for pet fish. She is claiming compensation from the defendant on behalf of herself and the four children of the marriage. The defendant Tekabaia, was Ioane's employer.

I considered at the beginning of the hearing the question as to whether the action was maintainable at all pursuant to section 15 of the Workmen's Compensation Ordinance and decided it was. I have given reasons for that decision.

There is remaining only one other matter in contention. The defendant pleaded it in paragraph 7 of his defence:-

The defendant states that at the time of the accident Ioane was acting entirely on his own without any authority from the defendant and in complete contradiction with the defendant's instructions. Ioane had taken the defendant's boat and equipment for his own purposes without any colour of right and against strict instructions not to do so. All his actions were outside the scope of any employment with the defendant and were not done for the purposes of and in connection with the defendant's trade or business.

On the day of the tragedy the deceased and other divers, Betero the supervisor, Eria and Boiaki, wanted to go to a buoy some distance from the shore, to retrieve pet fish caught in the preceding days but left in cages tethered to the buoy. [The aim is to retrieve the catch as late as possible before being packed and sent off by plane to Honolulu. This catch would have gone off the next day.] The men were paid by piece work. Their wage dependant on the number of pet fish they caught to Tekabaia.

The sea was rough. Tekabaia, the men's employer, told them not to go. Yet the four went to the wharf. Betero the supervisor said they should not go but the others were intent on going: their rivals, working for other employers, were putting out to collect their catches. Betero stayed behind but stood by and did not prevent the three others from preparing their equipment and boat (all the property of their employer) and setting out for the buoy. Betero waited on the wharf for them to return.

On their way back from the buoy the boat capsized and Ioane was lost. Another boat rescued Eria and Boiaki.

On those facts is compensation payable? Section 5(2) of the Ordinance:-

....an accident resulting in the death .... of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time the accident happened acting in contravention ...... of any orders given by or on behalf of his employer ..... if such act was done by the workman for the purposes of and in connection with his employer's ..... business".

No doubt about it. Section 5(2) contemplates this very situation.

Ioane's death arose out of and in the course of his employment. His widow and children and entitled to compensation.

Since we have returned from Kiritimati, Ms Huston and Ms Taoaba, by use of the defendant's payroll records (they tell me there are no others) have been able to agree the amount of compensation which should be payable. The agreed amount is $5,293.44.

There will be judgment for the plaintiff for $5,293.44. I shall hear Ms Taoaba as to whom it should be paid and on what conditions.

Dated the day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice