Timoara v South Pacific Marine Service [2015] KIHC 56; Civil Case 207 of 2010 (10 July 2015)

IN THE HIGH COURT OF KIRIBATI 2015

CIVIL CASE NO. 207 OF 2010

BETWEEN

TEREREI TIMOARA
PLAINTIFF

AND

SOUTH PACIFIC MARINE SERVICE
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

30 June 2015

Mr Banuera Berina for Plaintiff
Ms Botika Maitinnara for Defendant

JUDGMENT

Muria, CJ: This matter first came before Commissioner Tetiro Semilota in November 2012 to determine the meaning of "accident" in Clause 21(1) of the Collective Agreement between the South Pacific Marine Service and Kiribati Islands Overseas Seamen's Union ("the Agreement"). As further evidence was needed before the Court can decide on the issue, the matter was adjourned and expert evidence was called byboth parties.

BRIEF BACKGROUND

The plaintiff was employed by the defendant at the time he fell ill in December 2005. At the time he was on board the vessel "MV Hanjin Pretoria" which, at the time, was in port in one of the ports in China. He was diagnosed to have contracted 'Guillain-Barre syndrome'.

On arrival in Kiribati, the plaintiff sought assistance with a view to claiming compensation under Clause 21 of the Agreement. He sought a declaration that SPMS is obliged to pay compensation to him under Clause 21 of the Agreement. His claim has not yet been determined by the Court since the defendant now seeks to have the Court decide first, the issue of whether the sickness 'Guillain-Barre syndrome' suffered by the plaintiff was 'accident' or not. This judgment is on the interpretation of the meaning of "accident" as appears in Clause 21(1) of the Agreement.

Clause 21(1) of the Agreement

I feel it is necessary that I set out the provisions of Clause 21 of the Agreement at this stage. Article or Clause 21 is as follows:

"Article 21. Disability

21.1 A seafarer who suffers permanent disability as a result of an accident whilst in the employment of the company regardless of fault but excluding permanent disability due to wilful 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.

21.2 The disability suffered by the seafarer shall be determined by a doctor appointed by the company. If a doctor appointed by or on behalf of the seafarer disagrees with the assessment a third doctor may be nominated jointly between the company and the seafarer and the decision of this doctor shall be final and binding on both parties.

21.3 The company shall provide disability compensation to the seafarer in accordance with Annex 3, with any differences, including less than 10% disability, to be pro rata.

21.4 The degree of disability table which is also acceptable usually to London Maritime Insurance shall apply.

The above provisions, in particular Article 21.1, clearly establish that for the plaintiff to be entitled to be paid compensation for his disability, he must show that his disability is permanent, he must show that his permanent disability is a result of an accident and that the accident occurred whilst in the course of employment of the defendant. I do not think that there is any dispute that the plaintiff was in the employment of the defendant in China when he contracted the illness "Guillain-Barre syndrome" in December 2005.

The more pressing question is whether the contraction of the disease 'Guillain-Barresyndrome' which resulted in the plaintiff's permanent disability can be regarded as 'an accident' within the meaning of Article 21.1 of the Agreement. Ordinarily, as Lord Macnaghten stated in Fenton –v- J Morley & Co. Ltd [1903] UKLawRpAC 48; [1903] AC 443 at 448:

"the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed".

Lord Shand, in the same case, while concurring that the word 'accident' is to be given its popular and ordinary meaning also adds that the word includes

"any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence".

This definition has been continuously applied in a long line of cases since Fenton's case. See Welsh –v- Glasgow Coal Co Ltd (above); Puh –v- The London Brighton and South Coast Railway Co [1896] 2QB 248 and Chief Adjudication Officer –v- Faulds.

Mr Berina of Counsel for the plaintiff submitted that the plaintiff, while in the course of his employment, in China, contracted the Guillain-Barre syndrome. The weather was cold in China at the time but that the plaintiff had to be there for work. He did not expect to catch the Guillain-Barre syndrome. However the plaintiff accidentally contracted the disease while he was working in that part of the world. Counsel submitted that in those circumstances, it was an 'accident' that the plaintiff caught the disease in China.

The defendant's submission on the other hand is that the Guillain-Barre syndrome is a disease caused by viral infection and not necessarily due to cold weather or environmental change. Further, Ms Maitinnara of Counsel for the defendant submitted that the disease contracted by the plaintiff in this case was not an accident nor was it work related.

The substance of the defendant's argument is that the Guillain-Barre syndrome is a disease contracted by the plaintiff not by accident. It is accepted that the Guillain-Barre syndrome is a disease. But to my mind, to speak of 'accident' only applicable on the face of the harm or injury sustained, is to ignore the cause of the harm or injury, unless it is shown that the disease contracted by the plaintiff was unconnected with the accident.

I think the answer to the defendant's argument in this case can best be found in the words of Lord Kinnear in Welsh –v- Glasgow Coal Co. Ltd [1916] AC 1 at 9:

"I apprehend it must now be taken as settled that while a disease is not in itself an accident it may be incurred by accident, and that that is enough to satisfy the statute. On this point, indeed, the statute is its own interpreter. For the section which enables certain industrial diseases to be treated as accidents, although in fact they are not accidental, provides that this is not to affect the right of a workman to recover compensation in respect of a disease to which the section does not apply, "if the disease is a personal injury by accident in the sense of the Act".

The plaintiff in the present case led evidence that he contracted the Guillain-Barre syndrome while working in the cold weather in China. He gave evidence and he is supported by his expert witness, the late Dr Tetaua Taitai. The effect of the environmental or change of climatical condition had an impact on his health, something which he didnot expect. It was an unlooked-for mishap or occurrence in the course of his employment.

In my judgment the definition of "accident" stated in Fenton –v- J Morley & Co. Ltd covers the present case. Consequently I declare that the sickness suffered by the plaintiff in the cause of his employment is an accident. The plaintiff is entitled to compensation under Article 21 of the Agreement entered between the defendant and the Kiribati Overseas Seamen's Union.

Rule accordingly.

Dated the 10th day of July 2015

SIR JOHN MURIA
Chief Justice