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Western Marine Ltd v Levakarua - Ruling [2011] FJCA 15; ABU0013.2008 (2 March 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

Civil Appeal No.ABU0013 of 2008
(High Court Civil Action No.611 of 2005)

BETWEEN:

WESTERN MARINE LIMITED
Appellant

AND:

KELERA LEDUA LEVAKARUA
Respondent

Date of Hearing: Wednesday, 16th February 2011

Counsel: Mr R Naidu for the Appellant
Ms S Narayan and Mr K Qoro for the Respondent

Date of Ruling: Wednesday, 2nd March 2011

RULING

1. On 7th April 2004 at 8.30 a.m. Taniela Vuli in the course of his employment with South Sea Engineering Limited, turned on the electrical welding machine that he was about to use. Unknown to him the coil inside the welding machine was wet. As a result Taniela Vuli was killed by electrocution. It was not instant but he was dead on arrival at hospital.
   
2. The administratrix of his Estate sued his employer South Sea Engineering Limited. The fact was that just prior to the incident the welding machine was loaned to another company Western Marine Limited. They returned the welding machine in the wet condition that caused the accident. So in the Court below there were two Defendants Western Marine Limited and South Sea Engineering Limited.
   
3. Surprisingly, since each company blamed the other, Mr O'Driscoll represented both Defendants. This joint representation lead to a joint submission that they were joint tortfeasors. Western Marine Limited should pay 75% and South Seas 25%.
   
4. Mr Justice Coventry on 28th January 2008 found the appellant should bear 75% on liability and South Sea Engineering Limited 25%. He then reduced liability on account of contributory negligence on the part of Taniela Vuli. So on liability he held that when the damages were awarded by the Court, the total figure would be reduced by 10% and then Western Marine Limited should pay 75% and South Sea Engineering should pay 25% of the remaining figure to the Estate.
   
5. Western Marine Limited instructed new lawyers and a Notice of Appeal was filed on 27th February 2009. It alleges that the Appellant should bear no liability and that South Sea Engineering Limited should bear all the liability. The Notice does not dispute quantum of damages. But the Court of Appeal is invited to review the 75% - 25% liability of joint tortfeasors assessment. If the Court of Appeal does so it might decide that neither side should bear any liability; this however is unlikely.
   
6. Just as a Plaintiff can join more than one Defendant; an appellant, if it is relevant to the result of the appeal can join all the other parties in the court below. For some reason a mistake was made by the new solicitors and they omitted to join the most relevant Defendant to their appeal as Respondent.
   
7. The Court of Appeal can only deal with litigation that is properly constituted in respect of relevant parties.
   
8. The finding of the Court below was that both Defendants were joint and several tortfeasors. In accordance with law the Plaintiff is able to execute for 100% against either tortfeasor. If so it is then up to the tortfeasor who has satisfied the Plaintiff's judgment to sue for contribution from the other tortfeasor. I am doubtful that the Plaintiff should need to be a Respondent to the appeal. Ideally the Court of Appeal should be invited to review not the fact of liability on the part of one or both. It should be invited to assume that one or both is liable to the Plaintiff and asked to apportion liability between them. Then the Plaintiff would not require to be involved. It is better however not to look for the ideal but to obtain the best order now that will facilitate a properly constituted appeal.
   
9. South Seas Engineering Limited have been served with the summons in this application but have failed to respond or to appear before the Court. They are free to do so but this Court will order their joinder as 2nd Respondent in any event. They will have to appear in the appeal; it is a matter for them but they should urgently, upon service, consider a Respondent's notice and, if advised, file it in accordance with the Rules.
   

Orders

10. I order:
    
    • (1) that South Seas Engineering Limited be joined as 2nd Respondent.
      
    • (2) that there be no order as to the costs of this application.
      

William R. Marshall
Resident Justice of Appeal