Mikaere v Attorney General [2024] KIHC 36; Civil Case 3 of 2018 (30 October 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 3 of 2018

BETWEEN: Tabera Mikaere for himself and his family
Plaintiff

AND: Attorney General iro Ministry of Education
Respondent

Date of Hearing: 23 Aug, 16 Sept, 18 Sept, 23&24 Sept (w/sub)
Date of Judgment: 30 October 2024

Appearances: Ms Taoing Taoaba for the Plaintiff
Ms Bitarana Yeeting for the Defendant

JUDGMENT-LIABILITY

Introduction

1. The plaintiff is a schoolteacher and sues the defendant, his employer, for negligence when his daughter died on their journey via ship from Kiritimati Island to Tarawa, his new working station.
   
2. The defendant denies liability and pleads contributory negligence on the part of the plaintiff when he chose to travel with his family by ship.
   
3. The incident happened sometime in 2017.
   

The law of Negligence

4. There are three elements of Negligence as follows;

-the existence of the duty of care owed by the defendant to the plaintiff,

-the defendant breached the duty of care owed, and

-the plaintiff has suffered relevant damages because of the breach.

Analysis

(a) Did the defendant owe a duty of care to the plaintiff?

5. The defendant submitted that they owed the duty to provide decent transport for the plaintiff to travel from Kiritimati Island to Tarawa. The standard transport provided to all teachers on transfer is the ship, and the plaintiff was also provided with the same.
   
6. It was a standard practice for teachers who wanted to travel by air to send a request to the Ministry of Education and provide a medical report supporting their request. The plaintiff asked for this because his wife was pregnant. The medical report stated that the wife could not travel by air since she was at her last stage of pregnancy. That was the only medical report that the defendant received. This is not disputed, so I accept this evidence.
   
7. The plaintiff submitted that he also requested, the second time, to travel by air because his wife had just given birth, and their child was only a few days old, including his other small children. He communicated this request via Nei Teue, the Acting IEC for Kiritimati Island, on the day of boarding when passengers boarded the ship. He testified that Nei Teue went back to her office to contact the ministry by phone for his request, but it was turned down, and he was told that that was the only ship to take back to Tarawa, so he and his family boarded it. This is disputed.
   
8. Through cross-examination of the plaintiff, the defendant stated that they were unaware of this request because it was made to the SRO Kiritimati instead of the SRO for the Ministry of Education, who was in charge of the teachers. Paragraph 17 of the plaintiff’s affidavit talked about the SRO, and the plaintiff confirmed that it was the SRO of Kiritimati. When re-examined by his Counsel, the plaintiff made it clear that it was Nei Teue whom he spoke with, not the SRO in Kiritimati. I accept the plaintiff’s evidence; he was confident that it was Nei Teue whom he spoke with regarding his request not to travel by ship. The defendant also agreed that communication had occurred between Nei Teue and the plaintiff before the trip.
   
9. Through their first witness, Rakentai, the defendant claimed that the plaintiff was not yet told to board the ship as the ministry’s response to his request was still pending. I accept this evidence, but this communication between this witness, Rakentai, and the plaintiff occurred before the wife gave birth. This conversation referred to the first request mentioned in paragraph 6 above. I accept the evidence that this witness, Rakentai, was not on the island when Tabera boarded the ship. She confirmed this when she was cross-examined.
   
10. Rakentai also testified that she knew the plaintiff and his family would need a long time to recover before they could travel after the wife’s birth, so she told the plaintiff to send his request to the ministry and to support it with a medical report. The plaintiff did not send any written request or medical report other than the first medical report that did not support their request.
    
11. They had no saloon, so they bunked in the room booked for one passenger. It was a very tiny room, and there were 11 of them. The defendant did not deny that there was no saloon available for the plaintiff, but their position is that the plaintiff chose to travel when he should not because he was entitled to a saloon, and there was no saloon available for him.
    
12. The defendant further submitted that the plaintiff had the chance to seek help on the island of Kanton when the ship reached there to pick up and disembark passengers. He knew his child was sick and that the trip would take days, but he took the risk of continuing their journey to Tarawa. The ship arrived in Tarawa on time; there was no delay.
    
13. The plaintiff did not inform the defendant from the ship about his sick child, or when they reached Kanton, so the defendant was unaware of the situation.
    
14. The defendant denied that they owed the plaintiff a duty of care to provide air transport because of his young family. Rakentai testified in her affidavit that they received the second request through Nei Teue, but he was told that he could only board the ship if a saloon were available for him and his family. There was no saloon available. He should not have boarded the boat. This part of the evidence is disputed; the plaintiff said he was only told by Nei Teue that that was the only transport, so he should take it. I accept the plaintiff’s evidence as Rakentai did not know the content of the conversation between Tabera and Teue; what she knew mainly was hearsay.
    
15. I accept the contention that no medical report supported the second request, but as stated above, I accept that the second request was received through their Acting IEC, Nei Teue.
    
16. The defendant’s witnesses did not deny that the child would not have died had she traveled by air.
    
17. From the above evidence, I find that the defendant owed a duty of care to the plaintiff and his family to provide a suitable means of transport, which is by air, given the circumstances of his family, especially his very children, at the time of travel. When they refused his request, the plaintiff agreed to travel by ship with his small children. The children were at a vulnerable age. It is foreseeable that anyone, adult and young children, could suffer sea sickness when traveling at sea. It is also foreseeable that small children will suffer more and that anything could happen in the seven days of travel without proper medical assistance on the ship.
    
    • (b) Was there a breach of that duty of care?
18. Based on the above reasons, I find that the defendant had breached their duty when they told the plaintiff to travel by ship.
    
    • (c) Was there contributory negligence on the part of the plaintiff?
19. The defendant pleaded contributory negligence.
20. In paragraphs 13 and 14 above, the defendant did not know about the sick child on board the ship. The plaintiff did not inform them. They could have done this when they reached Kanton using the ship’s communication device or from the island (Kanton).
    
21. The defendant also submitted that the plaintiff could have gotten off the ship in Kanton to seek assistance, as the child was already sick when the ship stopped at Kanton. Because of this evidence, I agree with the defendant and find that the defendant contributed to their loss.
    
22. As per Sua v Attorney General [2013] WSSC 1 (15 January 2013), ‘contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might be hurt himself.’
    
23. A reasonable man would have sought assistance for his daughter in Kanton when the ship stopped there. The plaintiff had foreseen the risk because he asked not to travel by boat in the first place. Yet he failed to act when they reached Kanton. The child got sick during the first few days of the journey. When they stopped there, he did not act promptly by getting off the ship or seeking medical assistance on land in Kanton. He chose to continue their journey to Tarawa, which he knew would take a few more days. He was guilty of contributory negligence.
    

Conclusion

24. Having found the plaintiff guilty of contributory negligence, I shall now give a chance to parties to make submissions on whether damages should be reduced or barred.
25. The plaintiff must request a hearing date through the PTC within two weeks.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice