South Pacific Marine Service v Timoara [2012] KIHC 25; Civil Case 207 of 2010 (5 November 2012)

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

HIGH COURT CIVIL CASE 207 OF 2010

BETWEEN:

SOUTH PACIFIC MARINE SERVICE
APPLICANT

AND:

TEREREI TIMOARA
RESPONDENT

FOR APPLICANT: BOTIKA MAITINNARA
FOR RESPONDENT: BANUERA BERINA
Date of Hearing: 18 July & 31 August 2012

JUDGMENT

By Originating Summons, the applicant has sought the Court's interpretation of the word 'accident' used in clause 21(1) of the Collective Agreement between the South Pacific Marine Service, hereinafter called the applicant and the Kiribati Islands Overseas Seamen's Union in which the respondent is a member, and prays for the following declaration:\

'That the sickness suffered by the plaintiff is not an accident and therefore SPMS has no case to answer.'

Clause 21(1) of the said agreement states as follows:

"A seafarer who suffers permanent disability as a result of an accident whilst in the employment of the company regardless of fault by excluding permanent disability due to willful acts, including accidents occurring while travelling to or from the ship, and whose ability to work as a seafarer is reduced as a result thereof, shall in addition to sick pay, be entitled to compensation according to the provisions of this Agreement."

The applicant, who is the defendant in this case, submitted that the meaning of the word 'accident' in cases where employees are insured is that defined in Volume 25 paragraph 569 of the Halsbury's Laws of England, 4th edition as quoted below;

" The word 'accident' or its adjective 'accidental', is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease or the natural progression of some constitutional physical or mental defect"

After referring to the above reference paragraph 569 I note that the paragraph went further to say that '...it covers any unlooked for mishap or an untoward event which is not expected or designed, or unexpected personal injury resulting from any unlooked for mishap or occurrence'
The applicant argued that the condition (gullain-barre syndrome) suffered by the plaintiff or respondent in this application is an insidious disease and therefore it cannot be regarded as an accident.

On the other hand, Mr Berina for the respondent, submitted that the ordinary meaning of the word 'accident' should be considered as the proper definition in this case. Counsel also quoted the definition of 'accident' from the Australian Basic School Dictionary as 'an unexpected happening, especially one causing injury or damage'.

Mr Berina also referred this Court to a case of Chief Adjudication Officer v Faulds [2000] 1WLR 1035. In Faulds the Claimant was a senior fire officer, diagnosed as suffering from post traumatic stress disorder. He had been exposed to a series of shocking sights in his work. The House of Lords by a majority had said that one critical requirement for the satisfaction of Section 94(1) of 1992 Act was the establishment of an accident. The accident must have caused personal injury to the Claimant, and it must have arisen out of and in the course of the Claimant's employment. The mere fact of suffering stress or developing some illness or disorder resulting from being engaged in a stressful occupation would not bring the sufferer within the purview of the 1992 Act for the purposes of injury benefit. It could not be the personal injury which was the cause of the accident. It had to be something external which had some physiological or psychological effect upon that part of the sufferer's anatomy.

It was concluded by the House of Lords in Fauld s that the Claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which the Claimant referred caused his post traumatic stress disorder. However they remitted the case to the Commissioner for a full investigation of those particular events.

There was an extensive discussion of the meaning of the word 'accident' in Faulds. It was mentioned in that case that for the purposes of Workman's Compensation Acts the word 'accident' was given a wide meaning according to its use in ordinary and popular language. Several case authorities were referred to when trying to ascertain the meaning of the word 'accident'. One of the cases referred to was Fenton v J. Thorley & Co Ltd. [1903] A.C. In Fenton 'accident' was taken to mean 'an unlooked for mishap or untoward event which is not expected or designed; or any unexpected personal injury to the workman in the course of employment from any unlooked for mishap or occurrence; or any unintended and unexpected occurrence which produces hurt or loss apart from its cause and if the cause is not known the loss or hurt itself would certainly be called an accident.' And this was the definition that was adopted by the Court in Faulds.

After careful consideration of submissions from both sides in this case at hand it is this Court's view that both parties do not differ in their definition. The definition of 'accident' in Volume 25 paragraph 569 of the Halsbury's Laws of England, 4th edition is also applied and further demonstrated in Faulds. This Court is therefore of the view that the definition of 'accident' as stated in Halsbury and demonstrated in Faulds is to be adopted in this case.

Declaration Sought:

The applicant sought the following declaration:

'That the sickness suffered by the plaintiff is not an accident and therefore SPMS has no case to answer'

During the hearing both Counsels submitted that at this hearing this Court would only define the meaning of the word 'accident' first before looking at the sickness or before applying it to the fact of the case, therefore at this point in time this Court would not consider the declaration sought as further evidences would need to be looked at before coming to a decision as to whether the sickness suffered by the respondent is an accident or not.

This case is to be heard again on Wednesday 21st of November 2012, at 9:30 am for hearing of the substantive matter and consideration of the declaration sought.

Dated 5th November 2012.

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TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT