Whitford v Bohn [2001] VUSC 42; Civil Case 018 of 2000 (22 April 2001)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

HELD AT PORT VILA

Civil Jurisdiction
Civil Case No. 18 of 2000

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BETWEEN:

BRYAN WHITFORD
First Plaintiff

AND:

DONNY MACLEOD
Second Plaintiffs

AND:

ROBERT MURRAY BOHN
T/A WESTERN PACIFIC MARINE
Defendants

Mr. Robert Sugden for the plaintif> Mr. Nigel G. Morrisorrison for the defendant

Clerk. Mrs Veronique Teitoka

JUDGMENT

The Lih Peng, a boat, had sunk in Port Vila harbour. The defendants won the contract to raise and remove it and another vessel. Guy Benard worked for the defendants to do this. The two plaintiffs are divers; they worked on the Lih Peng during the unsuccessful operations to raise it.

The plaintiffs claim they were employed by the defendants, as employees, to help with the work. They were to be paid Vatu 3 million overall or, after a variation, at the rate of Vatu 33,000 per day. The period in question was from 3 June 1999 to 31^st December 1999 or 10 January 2000. The plaintiffs had received a total of Vatu 1,225,000. They claimed for the unpaid days, on a normal working week, at Vatu 33,000 per day each.

The defendants responded in their further amended defence, set off and counter claim that no contract of employment for services or of service was made with the plaintiffs. The contract for the engagement of divers was with Sea Qualified Underwater Industrial Divers Inc (Squid). The second plaintiff was looking after that business, in the absence of its proprietor, Greg Lott, and the second plaintiff on behalf of Squid agreed to supply the divers. Any claim the two divers have in respect of wages should be addressed to Squid. Even if the contract was with the two plaintiffs, it was one for services and they have been paid for the days they worked.

There is a set off and counterclaim pleaded based on the alleged misrepresentations by the plaintiffs namely that they falsely represented themselves to have the experience, skill, knowledge and experience of salvage divers. They alleged that other divers had to be brought in to correct mistakes, complete the work and replace lost equipment and they claimed compensation for payments withheld under the salvage contract.

Consideration of this case can be divided in to a number of headings.

1. Was the Defendants’ Contract with Squid?

This is part of the defence but should be considered first. If the defendants are right it would put an end to the action. The evidential burden is, as counsel agree, on the defendants to show the contract was specifically with Squid.

Mr. Bohn said he wanted Squid as he knew their reputation and the job required experienced divers. Mr. Benard says he spoke to the second plaintiff, whom he understood represented Squid, and he engaged Squid to supply the divers.

I have not heard evidence from the second plaintiff. He did not attend the hearing. The first plaintiff said as far as he was aware Squid were not contractually involved. He was the first diver to be approached and said he was interested and wanted the second plaintiff as his buddy diver. His only knowledge of any possible Squid involvement was a receipt for a payment which Benard asked to have Squid’s heading on it. This was done for Value Added Tax reasons and nothing else.

Mr. Bohn is the proprietor of the business of Western Pacific Marine (WPM). The salvage contract was won by WPM and Mr. Bohn appointed Guy Benard to be, in effect, the “project manager” Mr. Bohn wanted Squid to do the diving work.

There is simply a lack of clarity as to whether WPM contracted with Squid or the plaintiffs individually. A more business like approach to matters at an early stage would have meant this dispute did not arise.

The only evidence existing before the dispute arose, that points to a contract with Squid is the document headed receipt and the use of some Squid equipment. There are no invoices from Squid, no other documents whatsoever headed ‘Squid’, the payment cheques were made out to cash or a plaintiff and not Squid, no letter or other document from WPM to Squid confirming requirements, rates of pay or indeed suggesting the very existence of an agreement.

I do not reject the evidence on this point of Mr. Bohn and Mr. Benard. However, I do find that the defendants may well have thought they were contracting with Squid, the plaintiffs were contracting and intended to contact on their own behalf. The documentation and actions of the parties points almost entirely to there not being a contract with Squid.

In these circumstances I do not find the defendants have shewn their contract was with Squid.

2. A Contract of Service or for Services ?

I have considered the evidence of Bryan Whitford. I accept his evidence. He detailed the preliminary discussions with Guy Benard on the Tongoa trip. He stated how he wanted the second plaintiff to dive with him. At first he understood there was a fixed sum for the job, then a rate of Vt 33,000 per day. He then carried out various tasks at the direction of Guy Benard.

I do not find either plaintiff was hired principally to do a variety of tasks to which diving was incidental. This was argued in closing submissions by the plaintiffs’ counsel. They were clearly hired as divers.

It is difficult to see how, even on the face of Bryan Whitford’s evidence, a contract of service can be founded. First there is a fixed price for the whole job. Second, that is amended to a per day rate. The second plaintiff had another job which took much of his time and sometimes on an irregular basis. The first plaintiff had other, though less demanding, commitments. Payments were made on a spasmodic and not regular basis. The plaintiffs attended on the days they were requested to be there. Benard’s direction and control of the plaintiffs is equally consistent with their being individual contractors as it is with being employees. WPM did not want either plaintiff as an integral part of their business; they wanted diving assistance at various stages in their operation to raise the Lih Peng. WPM utilised other divers on an occasional basis. The first plaintiff did some work on Benard’s boat for which he was paid separately.

I look at all the evidence and the ‘indicators’. I cannot find any evidence which begins to suggest that either plaintiff was taken on by the defendants as an employee. I find the two plaintiffs agreed to work as independent contractors for the defendants supplying diving services at a rate of Vt. 33,000 per diver per day.

The record keeping of the plaintiffs and the defendants was unbusiness-like. The first plaintiff’s records were held on a dive computer and did not produce clear accounts of time spent. The defendants through Guy Benard stated they had records, these were never produced. In cross-examination Bryan Whitford accepted approximately sixty tanks had been used. At a rate of three tanks per day this equates to twenty days work. That is the closest on the evidence I can come to arriving at an accurate figure.

This means the two plaintiffs were entitled to Vt 660,000 each; 1,320,000 together. A total of Vt. 1,225,000 has been paid. There is a difference of Vt.95,000. It is for the plaintiffs to prove their case. Given the haphazardness of their records and the fact the defendants disagreed them, although without producing any of their own, I cannot on the evidence find the plaintiffs have proved on the balance of probabilities that they are entitled to any more money than they have received. In these circumstances I must dismiss this claim.

The Counterclaim :- Misrepresentation?

I have accepted the evidence of Bryan Whitford. I am satisfied that, whilst eager to get work as a diver, he did not misrepresent his experience or capabilities. There is little difference between his evidence and that of Guy Benard on this point, and where it does differ I prefer that of Bryan Whitford. Further, it must have been obvious by dint of his actual age and his looks to Guy Benard that he was a young man and could not have been qualified long or had great experience.

The issue is more difficult as far as the second plaintiff is concerned as I have heard no evidence from him. The plaintiffs allege there were two unplanned slips of the Lih Peng into successively deeper waters.

The reasons for this, they said, were inferior or unsuitable equipment and a ‘cavalier’ approach to the whole project by Mr. Bernard.

The defendants said the first slip was planned, the second not, and blamed the plaintiffs for the mishaps.

The only evidence bearing directly upon what happened in the water comes for Bryan Whitford. I cannot find evidence to show that either plaintiff was doing other than carrying out the instructions of the defendant’s project manager Guy Benard. They offered suggestions and advice from time to time but his was the overall direction and control of the project.

I have not found there was a contract between the defendants and Squid Inc. Any representation that might have come as a result of contracting in the name of Squid Inc therefore does not arise. As far as the second plaintiff is concerned I found that the defendants have failed to show any operable misrepresentations were made by the second plaintiff. Accordingly I dismiss the counterclaim.

Dated at Port Vila this 22^nd day of April 2001

R.J. COVENTRY
JUDGE