Santo Veneers & Timber Ltd v Stephens [2005] VUCA 16; Civil Appeal Case 05 of 2005 (18 November 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 05 of 2005

BETWEEN:

SANTO VENEERS AND TIMBER LIMITED
Appellant

AND:

JOHN STEPHENS
Respondent

Coram: The Hon. Chief Justice Vincent Lunabek
The Hon. Justice Bruce Robertson
The Hon. Justice Daniel Fatiaki
The Hon. Justice Treston
The Hon. Justice Hamlison Bulu

Counsels: Mr. Saling Stephens for Appellant
Mr. Hilary Toa for Respondent

Hearing Date: 11 November 2005
Judgment Date: 18 November 2005

JUDGMENT

This is an appeal against the decision made by the Primary Judge in the Supreme Court at Luganville on 22 October 2004.

The Claimant had been a chainsaw operator employed by the Appellant. In a Writ of Summons filed on the 9 August 2001 he claimed damages of VT 4,140,000 for significant personal injuries which he sustained on 8 March 2001 (although the evidence and the judgment recorded that the incident occurred in 2000) when he was hit by a tree which he felled during the course of his employment.

The claim alleged that the Appellant had been negligent in the following ways:-

(a) In failing to provide safety instructions and proper directions in the felling of timber logs;

(b) In failing to provide safety equipment and protective gear at the work premise and work environment; and

(c) In failing to provide backup and support systems to assist workers in times of injury at the work premises when cutting timber.

In a statement of defence the Appellant claimed that the Respondent had been contributorily negligent and that he had been fully compensated for the injuries which he received by a payment of a small amount by the Insurance Company.

In his decision the Primary Judge correctly set out the law that the Respondent had the burden of proof on the balance of probabilities. He then analyzed the evidence of witnesses and found that the issues to be determined were as follows:-

(1) Whether it was raining on 8 March 2000: - The Primary Judge found on the evidence that it was raining and that the Respondent had been compelled to fell logs on that day contrary to Forestry Department advice.

(2) Whether the Appellant company provided protective work gear to the Respondent: - The Primary Judge found that the Appellant company had failed to provide the necessary protective gear to the Claimant and had failed to supervise the logging operation at all.

(3) Whether the Appellant was negligent: - The judge found that that was the case.

(4) Whether the Respondent was guilty of contributory negligence: - The judge accepted the Respondent's evidence and rejected that called by the Appellant Company and found that there was no contributory negligence.

(5) Whether the Claimant was entitled to damages: - The Primary Judge found that that was the case and that that was not in dispute by the Appellant.

(6) The amount of damages. The Primary Judge found that VT339,220 had been paid to the Respondent by an insurance company and that such amount should be deducted from the damages awarded. The Primary Judge went on to consider the relevant provisions of the Workman's Compensation Act No. 2 of 1987 ("the Act")and earlier personal injuries claims and set the amount of damages at VT2,000,000 less the amount already paid leaving a balance of VT1,660,780.

The grounds of appeal were largely on the basis that the Primary Judge had erred in fact and law or in questions of mixed fact and law on various factual grounds which were set out in the Notice of Appeal dated 22 November 2004. The Appellant further contended that the Act had been misconstrued and misapplied and asked this Court to find contributory negligence on the part of the Respondent, and to order that the judgment of the Supreme Court be set aside and that costs should be ordered in favour of the Appellant.

At the hearing of the appeal, counsel for the Appellant accepted that the appeal could be reduced to one issue which related mainly as to quantum. Counsel accepted that the question as to whether or not the Respondent had been contributorily negligent was the real issue and that if this Court found contributory negligence, the amount of the award should be reduced accordingly but if there was no contributory negligence, the Appellant would not take issue with the quantum of the claim as fixed by the Primary Judge. In other words, the Appellant abandoned his challenges to the decision of the Primary Judge in relation to the Workers' Compensation Act No. 2 of 1987.

As to the findings of fact by the Primary Judge, the test for this Court is to consider whether there was an evidential basis on which the Judge could make the findings which he did. Clearly in this case there was such a basis. We find that it can not be argued that there was no duty of care on the part of the Appellant towards the Respondent. In addition, there was ample evidence, which the Judge accepted, that the Appellant had negligently performed or omitted to perform the duties that it had towards the Respondent particularly in requiring the Respondent to work on a rainy day without suitable gear and without proper or any supervision. It is equally clear that the negligence of the Appellant was the effective cause of the Claimant's injuries and there was ample evidence to support the findings of the Primary Judge in that regard.

As to contributory negligence, the trial judge quite properly rejected the evidence of the sole defence witness called in that regard. The witness Tara Karai, a Forestry Officer with the Forestry Department failed totally to qualify himself or give evidence of his work experience, and the report that he prepared and produced was singularly inaccurate in failing to mark the escape route which the Respondent, it is accepted, had cut for himself at the site of the accident. The Primary Judge, quite rightly in our view, rejected his evidence as unreliable and indicated that he accepted the Claimant's as reliable. His Lordship found that the Respondent was "not guilty of contributory negligence" and that, if there had been a supervisor present (which there was not) and had logging been abandoned in the first place because of the rain there would not have been an accident and the case would not have arisen at all.

We agree with the Primary Judge that contributory negligence was not established and the appeal against quantum accordingly fails. The Respondent took no issue with the quantum awarded particularly the VT2,000,000 ceiling under the Act and did not cross-appeal in that regard. Although the trial judge held that Act applied we have not been asked to consider the point and refrain from expressing any view as to its applicability generally to a claim for personal injuries.

For those reasons, we dismiss the appeal and award costs to the Respondent against the Appellant on a standard basis.

Dated at Port Vila, this 18th day of November 2005

BY THE COURT

Hon. Chief Justice Lunabek
Hon. Justice Robertson
Hon. Justice Fatiaki
Hon. Justice Treston
Hon. Justice Bulu