Chaparro v National Fisheries Developments Ltd [2023] SBHC 124; HCSI-CC 143 of 2022 (1 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Cesar Heglen Perez Chaparro v National Fisheries Developments Ltd
Citation:
Date of decision:	1 December 2023
Parties:	Cesar Heglen Perez Chaparro v National Fisheries Developments Limited
Date of hearing:	7, 8 and 17 August 2023
Court file number(s):	143 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 Judgment is for the Defendant. 2 The Claimant is to pay the costs of the Defendant in the sum of $40,000.00. That sum is to be paid from the funds deposited in the trust account of counsel for the Claimant for security for costs. The payment shall be made to counsel for the Defendant on or before 8 December 2023.
Representation:	Mr P Teddy for the Claimant Mr A Radclyffe for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Safety at Work Act S 4, S 4 (2), Schedule 1, S 11
Cases cited:	Donaghue v Stevenson [1932] AC 562, Speed v Thomas Swift and Company Ltd [1943] KB 557, Wilson and Clyde Coal Company Ltd v English [1937] UKHL 2

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 143 of 2022

BETWEEN

CESAR HEGLEN PEREZ CHAPARRO
Claimant

AND:

NATIONAL FISHERIES DEVELOPMENTS LIMITED
Defendant

Date of Hearing: 7, 8 and 17 August 2023
Date of Decision: 1 December 2023

Mr P Teddy for the Claimant
Mr A Radclyffe for the Defendant

Lawry PJ

JUDGMENT

Introduction

1. In 2018 the Claimant was employed as Chief Engineer on a commercial fishing vessel named Solomon Emerald. The Defendant was his employer. The Claimant had a written employment contract with the Defendant dated 27 May 2017.
2. On 25 December 2018 the Solomon Emerald was at sea in a position between Isabel and Western Provinces of Solomon Islands. The Claimant carried out his usual activities that day which he said was the usual practice for fishing vessels.

The Incident

3. One of the tasks the Claimant carried out was to modify storage shelves used to keep safety equipment out of the way. He used a power tool called an angle grinder to cut a two inch bar. The angle grinder has a cutting disc that spins at high speed. While carrying out this work the vessel moved. The Claimant did not know whether the movement was caused by the motion of the sea swell or a change of direction of the vessel.
4. The Claimant said he had been operating the angle grinder while he was in a standing position. He said the movement of the vessel caused him to shift his balance, the spinning cutting disc became stuck and broke. The grinder was still operating The Claimant was unable to turn it off. The grinder did not have a deadman switch. Such a switch enables the operator to immediately cut power to the tool. He said the broken disk while still spinning became tangled in the shirt he was wearing pulling the grinder towards him. The disc of the grinder cut him causing the injury to his right abdomen area.

The Claim

5. The Claimant has brought a claim alleging the Defendant was negligent and that the negligence has caused him to suffer the injury and loss resulting from that injury. The losses claimed are said to be for the loss of earnings, the loss of future earnings, monthly disability payments and out of pocket expenses. This judgment is limited to the issue of liability following an interlocutory hearing on 12 December 2022 and the subsequent ruling dated 16 December 2022.
6. The injuries are particularised in paragraph 23 of the amended claim. In the same paragraph of the claim it is recorded: “It is worth noting that the accident took place whilst in the course and scope of the Claimant’s employment on board the fishing vessel Solomon Emerald, the claimant sustained severe injuries to the abdomen which lead to severe and permanent disabling injuries whilst the vessel was in the Solomon Islands waters.”
7. The negligence alleged is set out in paragraph 7 of the amended claim as: “On 25 December 2018, the Claimant was instructed by Mr Mike Wisneske to make storage racks/old shelves at the forepeak on the fishing vessel Solomon Emerald whist the vessel was out fishing. A work that should have been done at the port and not in an open sea whilst out fishing. The incident was and is in direct proximate result of the negligence of the Defendant and/or the seaworthiness of the fishing vessel.”
8. Negligence is a basis of liability created by the common law. In Solomon Islands clause 2(1)(a) of Schedule 3 to the Constitution provides as follows:
   • “2.-(1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-
   • (a) they are inconsistent with this Constitution or any Act of Parliament;”
9. Counsel for the Defendant has referred the Court to the Safety at Work Act. Section 4 of that Act creates a duty on every employer to ensure as far as reasonably practical, the health and safety at work of all his employees. At section 4(2) of the Act are examples of that duty by reference to Schedule 1 of the Act. Included in Schedule 1 at paragraphs 1 and 2 is the following:
   • “1. It is the employer's duty to provide plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health and to maintain them in that state.
   • 2. It is the employer's duty to make arrangements for ensuring, so far as is reasonably practicable; safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances.”
10. Section 11 of the Act provides:
    • “11. The duties imposed by the preceding sections have effect in place of the corresponding duties at common law; but do not affect any other liability at common law (such as the liability of an employer for the acts of his employees).”
11. Counsel for the Claimant has relied on the principles set out in the House of Lords case of Donaghue v Stevenson [1932] AC 562. Counsel set out the principles on which the Claimant relied at paragraph 15 of the closing submissions filed on behalf of the Claimant. The first is proof of a duty of care, then proof of a breach of the duty of care, then proof that the breach of the duty of care cased the harm and finally proof of the losses (or damages) that have been suffered.
12. Counsel for the Defendant has submitted that any common law remedy requiring proof at a duty by and employer towards an employee has been specifically excluded by section 11 of the Safety at Work Act. He submits that the claim has not pleaded a breach of a statutory duty arising under the Safety At Work Act. As section 11 of that Act excludes the common law duty from applying in Solomon Islands, he submits that the claim must fail at that point. The Court will return to this later in the judgment.

The Evidence

13. The Claimant relies on his sworn statements listed as documents 9 and 10 in the Court Book and the evidence he has given in Court. The Defence relied on the evidence extracted in cross examination of the Claimant and the evidence of Frank Wickham and John Wheipe whose evidence was tendered by way of sworn statements filed on 7 October 2022. Neither were required for cross examination.
14. The defence had filed five sworn statements and no notice to cross-examine had been served in accordance with directions of the Court but a very late notice to cross-examine was served requiring all five witnesses. The Court gave a ruling that the Claimants were to be given the opportunity to cross-examine the witnesses notwithstanding the failure to serve the notices as ordered. In order to do so meant that witnesses would need to be brought from a distance. Counsel conferred and reached agreement that the evidence of Mr Wickham and of Mr Wheipe could be admitted by consent and the evidence of the remaining witnesses would not be relied on by the defence.
15. The sworn statements of the Claimant were consistent with the claim filed. The Claimant confirmed his sworn statements then was cross examined. He confirmed he was the chief engineer on the vessel Solomon Emerald and the vessel was out fishing when the incident occurred. He said that Mike Wisneske was the General Manager, a superior staff and his immediate supervisor. He said on 25 December 2018 he was making storage racks at the forepeak of the vessel while the vessel was out fishing, as instructed by Mike Wisneske. He said the fishing vessel did not have stabilisers to stabilize the vessel. He said without them the vessel would roll uncontrollably and be unbalanced even with a one metre swell. He said that on 25 December 2018 he carried out the instructions of Mike Wisneske by cutting and removing the storage racks using a portable Makita 100mm electrical grinder model GA4030. He said the tool was provided by the Defendant. It did not have a deadman switch that would cut the power when the finger is released from the trigger.
16. He said that while the vessel was at sea and unbalanced he was cutting a two inches angle bar in a standing position. He used a new cutting disc provided by the Defendant. The disc got jammed in between the angle bar and broke. As a result the grinder forcefully kicked back from the rotating disc becoming twisted in his shirt which became entangled around the grinder. He said the likelihood of being jammed would be much less in port because his body would not be unbalanced by the rolling of the vessel. He said his left hand held the grinder’s side handle and his right hand held the grinder’s housing. He tried to turn the grinder off but his thumb could not reach the switch. The witness John Wheipe then unplugged the extension cable from the power source. He said that the power stopped too late as the remainder of the rotating disc hit the right part of his belly and made a deep cut into his skin. He then detailed the events that followed including reporting the incident, receiving treatment when the vessel called into Munda, then at Honiara, where he had xrays taken which he was told did not show any foreign substance. He said he continued to work until the end of January 2019 and then was asked to continue until March 2019 when a replacement chief engineer would be available. He then detailed the pain he had suffered and continues to suffer and the treatment he received after returning to his home country of Mexico.
17. In cross-examination he said he started working at sea in 1984. He had been employed on fishing vessels since that time after qualifying as an engineer. The work had been as an engineer with increasing seniority and responsibility. He confirmed that his contract meant that the more fish that were caught the greater the amount he was paid. He said his main duties as chief engineer were to keep the vessel in good shape and provide the maintenance required. That included how the fish were caught and delivered to the cannery as well as refurbishment. He confirmed that while at sea the captain was in charge. However he said he carries on his work and said if he has something to do he just does it without needing instruction.
18. He confirmed he had expertise in using power tools and regularly uses them while on board, including when the vessel is at sea. He accepted that on 25 December 2018 his immediate supervisor as the general manager who was based in Noro. He said that Oliver Zamora was his immediate supervisor and that he was an assistant to Mike Wisneske. Neither were in fact the general manager. Communication with shore was via email. He confirmed he had received no instruction on Christmas Day. When asked about the instruction to do certain work he said that it was when he was in Noro he was told about the need to carry out the work for the shelving. He said he started the work when the vessel was in port. He agreed that he was not told when to do the work and specifically was not told to do the work on Christmas Day. He said that Oliver Zamora had told him and the other chief engineers that the work should be done as soon as possible. The instruction was to remove the old shelves and replace them with the new shelves. He was not told how that was to be done. The tools were supplied by the Defendant.
19. He said Christmas Day was just like any other day. He said that was usual on fishing vessels. The weather was generally fine. He said there were light swells. It was suggested that he was told the work that needed to be done. He could not remember when he was told that and it may have been in the previous trip to Noro. When asked why he did the work on 25 December he said: “Because it is Christmas Day it does not mean you don’t have to keep working”.
20. He confirmed the grinder was new and had a handle. It also had a guard. There was a crew member helping him. That person was present at the time of the injury. He said on that day after the net went out he continued with his daily duties. In this case he continued the work of remodeling. He said the movement of the ship put him off balance. He did not know if it was the result of the swell or a change of course. He demonstrated how he was standing and how he held the grinder. It was suggested to him that the decision to work was his own. He said he followed orders. He did not communicate with those in Noro and he did not recall when they had left Noro. It was put to him that it was his decision when to work and how to do it. He did not disagree with that but said he was told to “do it fast”. He said he had spare parts on the floor and had to work around them
21. He was specifically asked whether he thought what he was doing was safe. He said he had to carry on. When pressed he said yes he thought it was safe. It was a perfectly normal thing to do. When asked if he had thought it was dangerous he would not have done it, he said if he thought it was dangerous he would not be fishing. He confirmed when the work colleague pulled out the electric plug he went to the bridge and reported the incident. He was asked whether an issue with his knees had caused the problem. He denied that. By this time the Claimant had become quite evasive. He was asked if he thought he needed stitches. It was suggested that the master had offered to give him stitches which he denied. The vessel then returned to Noro although it carried on fishing but they were in Noro by 28 December2018. On 29 December he went to the hospital in Munda where his wound was checked and he received a tetanus shot. He said he was sore but continued to work. He was told he would be taken to Honiara. He did not tell the others that he could not work and said he was asked to wait for a replacement. He kept working until a replacement came in March2019. When it was suggested that he decided to keep working he said the doctor had told him he could work. He then said the doctor had sent him back to work. He said the only reason for the accident was that the vessel moved suddenly. When specifically asked whether the Defendant made him do the job while out fishing he said they gave general instructions. In his second sworn statement he said that when there are repairs to be done they can be done in port. So far as what he was wearing was concerned he said he had boots, working shorts, working shirt, safety gloves and safety goggles.
22. In re-examination he said when they were in Noro before the vessel went out fishing they had been in port for four days. During that time the boat was unloaded and preparations were made for going to sea. He confirmed that the vessel did not have a double bottom, explaining that the bulkhead goes all the way to the keel. That provides space for storage water. This vessel did not have a stabiliser.
23. The evidence from the defence which was not challenged confirmed that the Claimant was subject to the general direction of the Defendant’s management but the Claimant was responsible for supervising and directing the engineering department on the vessel while at sea, subject to any directions that may be given by the captain. Frank Wickham was the general manager at the time and not Mike Wisneske. From Frank Wickham’s evidence it was the Claimant’s choice whether he went back to sea after the incident. It is also clear that the Claimant was in charge of engineering activities at sea. The management did not give directions as to time, place or method of work while at sea.
24. John Wheipe was also not challenged. He was the assistant helping the Claimant that day. He was the one who pulled the pull from the power source. He said the sea was not rough at the time. He gave no evidence of any sudden movement of the vessel.

Facts

25. The evidence has been set out in some detail because it is clear that the Claimant had not been instructed to carry out the alterations to the shelves on 25 December 2018. It is clear that he is a very experienced engineer in particular on fishing vessels. He also knew that the vessel was one that did not have the stabilisers as some others had, but there was no suggestion the vessel was unseaworthy. It is clear that he decided on the work to be done that day and how to do it and what equipment to use. He as an experienced seaman and engineer consider it was safe to do the work as he did it. He considered the equipment was the right equipment for the task he was carrying out. What has not been explained is why he would have operated the grinder without keeping his thumb on the on-off switch. Similarly knowing that the vessel was at sea it seems odd that he had no protective clothing between the grinder and his shirt. Little wonder that when he lost his balance he could not turn the grinder off and it became tangled in his shirt that was not protected in any way.
26. The Court finds that the decision of carrying out the work at the time he did was the Claimant’s choice. He has confirmed he had not received instruction as claimed to do the work on Christmas Day. There clearly had been no instruction to do the work while the vessel was fishing. Knowing the vessel as he did and being very experienced in using an angle grinder and being the chief engineer on board he was clearly in the best position to determine what was safe to do and what was not.

Discussion

27. The submissions from counsel for the Claimant largely ignored the evidence extracted in cross-examination that contradicted what had been set out in the Claimant’s sworn statements. Counsel submits that the Claimant was not told that Christmas Day was a public holiday. This is irrelevant. It is clear from the evidence of Mr Wheipe that it was known it was a public holiday. His counsel said at paragraph 30.8 “When asked is it safe to do the work? The Claimant maintains it is not”. That was not the evidence that he gave. The Claimant in cross examination eventually accepted that he considered it was safe to do the work as he did. Counsel criticised the defence for not having their witnesses present at the trial. That submission must be rejected. There had not been compliance with the order about providing notice to cross examine within the time directed and the time required to bring witnesses from places as far away as the Philippines and Fiji and New Zealand were exactly why the order was made. Counsel nevertheless agreed that two of the defence witnesses could have their evidence admitted by consent. The Court places no weight on the evidence of Mr Wheipe’s opinion. Similarly the Court disregards the evidence of Mr Wickham that goes beyond that which was within his knowledge.
28. Counsel submits that negligence arises from the failure to provide a safe work place and the breach of the statutory duty. Counsel acknowledges that the claim pleads negligence as the cause of action and not a claim under the Worker’s Compensation Act.
29. Many employment roles have dangers involved especially where power tools are involved. In the present case the Claimant was given a general direction to replace the shelving. How and when and in what circumstances was up to him. There is no evidence that he was directed to use the angle grinder and specifically to use it when the vessel may be subject to movement. The choice to do so was the Claimant’s. In the facts of the present case what the Claimant must be relying on is a submission that to ask the chief engineer to modify the shelving amounted to negligence. Even if he was told to complete the task quickly that is far from proving he was required to take a risk and that personal injury was reasonably foreseeable by an experienced seaman and engineer carrying out the task.
30. Counsel has referred to the case of Speed v Thomas Swift and Company Ltd [1943] KB 557 quoting the Court as saying:
    • “The employer has a duty to devise, institute and maintain a safe system of work, and this duty is personal to himself and cannot be delegated”
31. Similarly he referred to Wilson and Clyde Coal Company Ltd v English [1937] UKHL 2. While there is no doubt that an employer must ensure that there are safe systems for work. That must necessarily vary from work place to work place. On a ship the Defendant has provided the engineering team with an experienced chief engineer who was in the best position to determine safe working procedures. He was after all, the engineer and was entrusted to ensure the work was carried out in a safe manner. He was the person on the spot with control over the situation. He was the one who should be providing the instruction and training for others in the team. The submission of counsel is similar to suggesting that the management of a hospital is required to direct an experienced surgeon how to perform a surgery and what equipment to use to do so. Clearly such an argument cannot succeed. In any event the principle in Wilson and Clyde Coal Company Limited is not what is pleaded. The negligence that is pleaded is that on 25 December 2018 the Claimant was instructed to make storage racks at the forepeak of the fishing vessel while the vessel was out fishing. The work should have been done at the port and not in the open sea. This is what the Claimant needed to prove. His evidence does not prove this allegation.
32. Returning now to the submissions by counsel for the Defendant. The duty imposed by the Safety at Work Act on an employer to an employee specifically excludes the common law duty. Counsel for the Defendant is correct that the claim does not plead that a statutory duty has been breached. The common law of negligence cannot apply in these circumstances. Even if that were not so the Claimant although he has clearly suffered painful and long lasting injury, has fallen well short of proving negligence as pleaded in the claim. Simply because an injury occurs in the course of employment does not mean that an employer has been negligent. The Court is not persuaded on the evidence that the alteration to the shelving need to be carried out when the vessel was at sea. There would have been financial incentives to get the vessel out to sea as soon as possible however the recognition that repairs can be carried out when the ship is in port indicates that if that was necessary to modify the shelves safely it could have happened in that way.
33. Similarly the Court accepts the decision to remain with the ship instead of seeking assistance in Honiara if the Claimant was dissatisfied with the advice he received from the hospital in Munda, was the Claimant’s choice. There is an airport with regular flights to Honiara that could have been used.
34. The Claimant has not satisfied this Court on the balance of probabilities that a claim of negligence was open to the Claimant. Nor has he satisfied the Court, to that standard, that the Defendant has breached a duty of care owed to the Claimant. The Claimant has accepted that he had the correct equipment to carry out the task and that he considered it was safe to do what he did. Management in Noro cannot in those circumstances have reasonably foreseen that to replace the shelving would expose the Claimant to the sort of risk that resulted in the injury that occurred. It follows that the claim must fail.

Orders

1. Judgment is for the Defendant.
2. The Claimant is to pay the costs of the Defendant in the sum of $40,000.00. That sum is to be paid from the funds deposited in the trust account of counsel for the Claimant for security for costs. The payment shall be made to counsel for the Defendant on or before 8 December 2023.

By the Court
Hon. Justice Howard Lawry
Puisne Judge