Takaio v Schutz [2009] KIHC 69; Civil Case 115 of 2009 (15 October 2009)

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

HIGH COURT CIVIL CASE 115 OF 2009

BETWEEN:

TOOM TAKAIO
PLAINTIFF

AND:

EMIL SCHUTZ
DEFENDANT

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Botika Maitinnara

Date of Hearing: 15 October 2009

JUDGMENT
(Ex Tempore)

Late last year a film company from the UK, Ricochet, came to Kiribati, to Anariki Islet close to Abaiang, to do filming. The plaintiff was engaged as a watchman during the time the crew was on the islet. Nothing was said to him at that time by anyone about his wages. For the purpose of the filming some huts on Anariki were removed: one hut belonged to the plaintiff: it was dismantled, the thatch burnt and the rest scattered about. The plaintiff is not a well educated man and not, I assess, well versed in the ways of the world. The defendant on the other hand is a well educated, experienced businessman. The defendant was engaged by the film company to assist in the project. He and Ricochet entered into a contract (Exhibit D1). The plaintiff knew nothing of this. From a glance through D1 and after hearing the defendant I find with confidence that the defendant was an agent of the film company. By his actions towards the plaintiff – I have come to this conclusion from the evidence of both plaintiff and defendant – he held himself out to the plaintiff as the film company’s agent. Certainly the plaintiff looked to him and to no one else after the film crew left for payment. And the defendant did pay him - $864.00 in all for wages and made an offer of $150.00 compensation for the destruction of the hut. Strong evidence of the defendant’s acceptance of liability. The plaintiff was entitled to do as he did and to look to the defendant. There was no need for him to look beyond the defendant. Indeed it is unrealistic to expect a man like the plaintiff to look further, to Brighton in the UK, where Ricochet has its office.

The same conclusion, that the defendant is liable to the plaintiff, may be reached in another way. The defendant asserted that he was the service provider for Ricochet and that is how he is described in D1. One of the services to be provided was that of watchman: the defendant employed the plaintiff to be a watchman: the plaintiff was an employee of the defendant.

On the whole of the evidence and on the balance of probabilities I find the defendant liable to the plaintiff for whatever is a proper amount for damages.

THE HON ROBIN MILLHOUSE QC
Chief Justice