Attorney General v Toiraena [1987] SBHC 14; [1987] SILR 68 (29 June 1987)

[1987] SILR 68

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 57 of 1987

ATTORNEY GENERAL

v

TOIRAENA

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 57 of 1987

Hearing: 16 June 1987
Judgment: 29 June 1987

Statutory interpretation - Workmen’s Compensation Act, section 5 - "accident arising out of and in the course of the employment"

Facts:

Patrick Toiraena was employed by the Ministry of Natural Resources. After a party at head office outside working hours, he stayed on to clear up. Shortly after finishing, he was attacked and killed outside the office. The parties asked the High Court to determine whether the Government was liable to pay compensation under the above Act to the dependants of the deceased.

Held:

The end of the deceased’s work was when the premises were secure; having only just finished that work and being still in the grounds on his way home when attacked, he was there because of his employment and the accident arose out of and in the course of his employment.

Cases referred to:

Trim Joint District School Board of Management v. Kelly [1914] UKLawRpAC 15; [1914] AC 667
Lucas v. Postmaster-General [1939] 3 All E.R. 660
Smith v. South Normanton Colliery Co. Ltd [1902] UKLawRpKQB 171; [1903] 1 KB 204
R. v. Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union [1966] 1 All E.R. 97

Reginald Teutao for the Attorney General
Andrew Radclyffe for the Defendant

WARD CJ: A writ of summons taken out in the Central Magistrates’ Court by the Attorney General, under section 21 of the Workmen’s Compensation Act, sets out the following matters for determination:

"CLAIM: The Defendant is the widow of Patrick Toiraena and claims that the Solomon Islands Government as the employer of her late husband is liable to pay compensation under the Workmen’s Compensation Act.

The Plaintiff refers this matter to the court under the Act for the determination of the following question: Is Solomon Islands Government, as the employer of Patrick Toiraena deceased, liable to pay compensation under the said Act to the dependants of the deceased given the following agreed facts:-

1. Patrick Toiraena was employed by the Geology Department of the Ministry of Natural Resources.

2. Patrick Toiraena was killed by Wilson Tafea on 30th September 1986 outside the head office of the Ministry of Natural Resources at Lengakiki, Honiara between 8 and 9 pm.

3. The said Wilson Tafea was convicted by the High Court of the murder of Patrick Toiraena on 29 October 1986 (Criminal Case No. 39 of 1986).

4. On the 30th September 1986 Patrick Toiraena and other employees of the Ministry of Natural Resources attended a farewell party for a colleague at the Ministry’s head office. The party was held outside normal working hours.

5. At the end of the party Patrick Toiraena and a colleague stayed on to clear up after the other guests had left. It was shortly after he had finished clearing up that he was attacked and killed."

At the request of the parties, the question of law was referred to this Court for consideration under section 22, the stated case simply repeating the claim set out above.

In amplification of the agreed statement of facts, the applicant called one witness, the Senior Geologist, Steven Danitofea, and it was also agreed by counsel that I should be able to refer to my judgment and notes of evidence in the murder trial of Wilson Tafea to ascertain any further details of the incidents that night if necessary.

The relevant part of the Workmen’s Compensation Act is section 5(1) and (2)

"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, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act. For the purposes of this Act, 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:

Provided that –

(a) the employer shall not be liable under this Act in respect of any injury, other than an injury which results in partial incapacity of a permanent nature, which does not incapacitate the workman for a period exceeding three days from attending at the work at which he was employed; and

(b) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent incapacity, be disallowed.

(2) For the purposes of this Act, an accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, if such act was done by the workman for the purposes of and in connection with his employer’s trade or business."

When referring to the section, I found some confusion over the wording of subsection (1) because of differences in the amendments of the various copies of the Laws in Court.

The position appears to be that section 4 of the Workman’s Compensation (Amendment) Act, 1979, deleted a large part of subsection (1) and changed some other words in that and subsequent subsections. However, paragraph 15 of Schedule 3 to the Employment Act 1981 rather remarkably reads:

"15. The Workmen’s Compensation (Amendment) Act 1979 shall have effect, and shall be deemed always to have had effect, as if -

(a) in section 4, paragraphs (a) and (b) were omitted; and

(b) section 8 were omitted."

Thus it would appear the principal Act is to be read in its original form and I proceed on that basis with a degree of relief that the cause of action in this case did not arise between the 1979 and the 1981 Acts.

By section 5, it is necessary to show that the deceased man died as the result of an accident arising out of and in the course of his employment.

There is no dispute that the murder can be considered an accident and counsel, basing their opinion on numerous authorities, do not seek a ruling on that. Such a view is clearly correct and I only quote the dicta of Viscount Haldane L.C. in Trim Joint District School Board of Management v. Kelly [1914] UKLawRpAC 15; [1914] AC 667 @ 678 that "accident is used in (the English act) as including a mishap unexpected by the workman, irrespective of whether or not it was brought about by the wilful act of someone else." Similarly at 679, "if the object of this statute be as wide as I gather from the study of its language, its construction must, as it appears to me, be that accident includes an injury which is not expected or designed by the workman himself."

Thus the only matter to be decided is whether it arose out of and in the course of his employment.

Patrick Toiraena, the deceased man, was employed by the Ministry of Natural Resources and worked in the Geology Department as a Level 6 Supervising Assistant Geologist (Mapping).

His job description was exhibited and set out the following duties:

"(i) Responsible to the Senior Mapping Geologists for the overall supervision and co-ordination of Junior Staff, office and field activities.

(ii) Take overall charge over all divisional equipment and store.

(iii) To take overall charge of field parties and independent Geological and Geochemical investigations.

(iv) To supervise the plotting of Geological, Geochemical and topographic traverses.

(v) To train Junior Staff on Geological, Geochemical and sample preparation techniques."

(The underlining was on the original and its significance was not explained.)

On the evening of his murder, there had been a party to bid farewell to one of the expatriate members of the department. At the request, the previous day, of the Chief Geologist, the deceased organised the party and collected contributions from the rest of the staff. The Ministry did not contribute anything out of official funds but the reception was attended by the Minister, the Chief Administrative Officer and the Geologists and was held in the Geology Department.

The deceased had "checked with the Ministry and the Permanent Secretary" according to the witness and was told to start the party at 4.30 pm; the time normal working hours finish.

It is impossible to be precise about the time the party ended but the evidence in the murder trial showed that, after the others had left, the Minister and the departing expatriate stayed and chatted for some time. After that, the deceased tidied up and ensured the premises were secure. Immediately thereafter, he sat down and chatted to another man and was, very shortly afterwards, murdered - probably some time before 9.00 pm.

The Chief Geologist explained to the court that the deceased was a very good organiser and they had always taken his job to include organising various activities even though that did not appear on his job description. It would seem that his ability in this field led to the deceased being asked to organise previous farewell gatherings, functions in the Ministry and even international meetings.

His duty to take overall charge of all divisional equipment and stores included the need to ensure the premises were secure. Thus, on the night of his murder, the Chief Geologist felt secure in the knowledge that the deceased would tidy up and lock the premises. Counsel for the Attorney General urges that this incident did not arise out of and in the course of his employment because the organisation of the party was not part of his job description and the length of time after normal working hours was too long.

He relied mainly on the case of Lucas v. Postmaster-General [1939] 3 All E.R. 660. In that case the injured workman had, as a condition of his employment, to attend classes in his own time. During the course of one of these classes in a gymnasium, he was injured. The injury occurred between 6.15 and 7.15 pm and the injured man had finished work at 5.45 pm.

Finlay LJ at p. 662 stated "It seems to us to be impossible to contend that this accident arose out of and in the course of the plaintiff’s employment. The plaintiff was employed to repair telephone apparatus. It is quite true that, as a condition of obtaining the employment, he was required to attend amongst other classes, this gymnasium class. When performing gymnastic exercises, however, he was not doing the work which he was employed to do - namely, repairing telephone".

He quotes from the judgment of Collins MR in Smith v. South Normanton Colliery Co. Ltd [1902] UKLawRpKQB 171; [1903] 1 KB 204 @ 207 to support his argument that a line must be drawn somewhere and where it should be is a question of fact. I accept that proposition and apply it to the facts of this case. However, Lucas’ case is one of a line of cases which are not, as Salmon LJ said, conspicuously consistent with each other. They also show a tendency to modify, in later cases, the harsher interpretation placed on the law by the earlier judgments. I would place Lucas’ case clearly in the earlier group. What is consistent in all the cases is that it is a question of fact for the judge to decide on the evidence before him.

A much more recent case (from which I quoted Salmon LJ above) is R. v. Industrial Injuries Commissioner, exp. Amalgamated Engineering Union [1966] 1 All E.R. 97. Denning MR there deplores the older decisions, the "old narrow interpretations" as he described them. "Those decisions give me a shock even now, that the House should have decided them as they did."

In that case, the applicant had been injured when overstaying his tea break. The Court of Appeal found that he had overstayed to such an extent that he could be considered to be outside his employment. Again it was decided on the facts before the court.

At p. 105, Salmon LJ states the principle which, with respect, I feel is the proper approach. "I assume that in law a man is working in the course of his employment not only when he is doing what he is employed to do but also when he is doing something for purposes of his own which is reasonably incidental to his employment."

Davies LJ at 105 pointed out that a man having lunch in the worker’s canteen is not working but he is "doing something which he is permitted to do by his contract; and although he is not working, he is doing something incidental to his contract and therefore is still within the course of his employment. ..... The question was whether he was at the relevant time working for his employers at all or whether he has abandoned temporarily the work which he was employed to do. As I say that is a question of fact....."

It has been suggested that, as the party at the Geology department was not subscribed to by the department, it was nothing to do with the deceased’s employment and the fact his job description makes no mention of such things means his organisation of the party was not part of his employment.

On the facts before the Court, that cannot be correct.

It had clearly been accepted by the deceased and by his superiors over a considerable period of time that he was good at organising such functions and that he should be the person to do it. As a result, it became part of his usual work.

On the day of his death, the party was after normal working hours but he was instructed by a superior, the Chief Geologist, to organise it. He sought clearance to use the premises after hours from the Permanent Secretary and, I am sure, felt that he was obeying normal orders in the course of his employment.

Even if the party was not part of the employment of the others there, and I do not need to rule on that, the fact that the deceased’s work had always included responsibility for the security of the equipment under his charge made it necessary for him to stay to the end of the party. Indeed, had he refused to do so, I am sure the Chief Geologist would have considered he was failing to do his job.

As far as he was concerned, the end of his work that day was when he had ensured that the premises were secure. He had only just finished that work and was still in the grounds on his way home when he was attacked.

On those facts, he was there because of his employment and the accident arose out of and in the course of his employment.

I answer the question asked in the affirmative and the case is returned to the Magistrate’s Court.