Karibauriri v Central Pacific Producers Ltd [2010] KIHC 77; Civil Case 39 of 2010 (30 July 2010)

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

High Court Civil Case 39 of 2010

BETWEEN:

TEKIMAUA KARIBAURIRI FOR ESTATE OF
TEATA TEITIKAI
PLAINTIFF

AND:

CENTRAL PACIFIC PRODUCERS LIMITED
DEFENDANT

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Botika Maitinnara
For the Third Party: Ms Tumai Timeon

Dates of Hearing: 28 July 2010

JUDGMENT

The late Teata Teitikai was a seaman employed by the Defendant on MV "Fair Victory". On 3 March 2008 he disappeared from the vessel, it being presumed that he jumped overboard and was drowned. The plaintiff is the Administratrix of his estate and has brought a claim for compensation under the Workmen's Compensation Ordinance: the claim is for the benefit of Teata's estate.

The Defendant employer, CPPL, does not deny the claim but claims indemnity from the Kiribati Insurance Corporation, its insurer. The defendant has joined the Corporation as a Third Party. In its Defence to the Third Party claim the Corporation has "averred that the cause of death of the plaintiff (sic) is not insurable under the policy of the Third Party" as "the cause of death is not related to work but a result of the mental condition of the" deceased.

I have come to a conclusion after informal discussion with counsel and after reading the pleadings, the Workmen's Compensation Ordinance, Workmen's Compensation Policy and a Report handed to the Court by consent, on the circumstances of the death. There being no challenge to the accuracy of the Report I accept the facts set out.

Ms Timeon did ask to call one witness. Since the date of the hearing was set that witness, a seaman, has left the country and may not be back for about six months. I told Ms Timeon she should have made sure the witnesses were available on the date set: it would not be fair to the plaintiff to have to wait an indeterminate time really for completion of the hearing. Ms Timeon did not press the application.

The Report:-

On the way back to Kaohsiung Harbour on March 1st 2008 LT1000, a Kiribati crew member, TEITIKAI TEATA started to have a mental disorder. He laughed at this moment and cried at the next moment, and had the illusion that he was violated. Cadre on the ship not only comforted him verbally but also arranged a pilot room for him, and 5 Kiribati crew members were taking turns to take care of him. At the lunch time on March 3rd 2008, TEATA took the chance when the crew who took care of him was away for his lunch, and was suspected to jump into the ocean ..... After searching the ship and found no TEATA it is analyzed and interpreted he might have fallen into the water.

The Workmen's Compensation Policy:-

IT IS HEREBY AGREED that if ..... any workman of the Insured shall sustain, within the Republic of Kiribati any personal injury under the Workmen's Compensation Ordinance (Cap 102), ..... the Corporation shall indemnify .....

[The phrase "within the Republic of Kiribati" has caused me some concern. The deceased was not within the Republic of Kiribati when he disappeared. I have come to the conclusion that s.25 of the Workmen's Compensation Ordinance is sufficient to negative that qualification:

25(1) This Ordinance shall apply to an accident happening to a seaman employed on a Kiribati ship whether the accident happens in Kiribati or elsewhere or on board the said ship or elsewhere.

I am glad to have been able to come to this conclusion as any other interpretation than that the policy indemnifies the defendant would be unjust: it would mean that no employer of seamen working outside Kiribati had indemnity under the policy issued by the Kiribati Insurance Corporation].

The Ordinance:-

5(1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall ..... be liable to pay compensation in accordance with the provisions of this Ordinance; and for the purposes of this Ordinance, an accident arising out of the employment shall be deemed, in the absence of evidence to the contrary, to have arisen in the course of the employment and an accident arising in the course of the employment shall be deemed, in the absence of evidence to the contrary, to have arisen out of the employment: .....

(3) No compensation shall be payable under this Ordinance in respect of any incapacity or death resulting from a deliberate self-injury.

The argument advanced by Ms Timeon is that Teata Teitikai died "from a deliberate self injury": he jumped overboard and was drowned: nothing to do with his employment. Accordingly the Plaintiff has no claim for compensation under the Ordinance: the Defendant is not liable to the Plaintiff: the Third Party has nothing against which to indemnify the Defendant.

The crucial question is whether Teata with a mental illness – I have no doubt from the Report that he was suffering from a delusional mental illness – should be regarded as having caused himself a deliberate injury. I conclude that he should not be: he was not responsible for his actions: it was not "a deliberate self injury": he was acting under a delusion.

The Defendant is liable to compensate the Plaintiff and the Third Party is liable to indemnify the Defendant.

Dated the 30th day of July 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice