Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Tenda v Vessel MV Uta Princess [2025] SBHC 30; HCSI-CC 113 of 2017 (21 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 113 of 2017

BETWEEN

JOHN TENDA
Claimant

AND:

THE VESSEL MV UTA PRINCESS
First Defendant

AND

HOGRANO PEOPLE ASSOCIATION
Second Defendant

AND:

UTA SHIPPING COMPANY LIMITED
Third Defendant

Date of Hearing: 17, 24 July & 16 October 2024
Date of Decision: 21 February 2025

Mr Bitibule Kaehuna for the Claimant
Mr Jack To’ofilu for the First, Second & Third Defendants

JUDGMENT

Bird PJ:

1. This is an admiralty case commenced by John Tenda (Claimant). It involves the taking into possession of MV Uta Princess (First Defendant) by the Admiralty Marshall. The claim is also for personal injury. I have jurisdiction to deal with this case pursuant to rule 15.4.2 (i) and (v) of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).
2. The Claimant is a shipping engineer. He was employed by Uta Shipping Company Limited (Third Defendant) as an engineer on board the vessel MV Uta Princess. The vessel is owned by Hograno People Association (Second Defendant). Whilst the Claimant was so employed, he sustained injuries to his left index figure which was amputated. He is now claiming general damages, special damages, together with interest and cost.

The Claimant’s case

3. This case was tried by the court on the above dates. In support of his claim, the Claimant filed three sworn statements. The summary of his evidence is that he was an employee of the Third Defendant. He worked as the chief engineer. He has been working on board the First Defendant for a period of about 5 years. He is 60 years old and has been working as a shipping engineer on a number of ships including the First Defendant for a total period of about 30 years.
4. On 11 April 2016, being in the employ of the Third Defendant, he sustained injuries to his left index figure. He was part of the First Defendant’s crew that took the vessel to Taroniara shipyard for maintenance. The Claimant assisted the Taroniara shipyard employees and Mr Hato to remove the rudder for maintenance works.
5. The Claimant had successfully removed all of the eight bolts affixed to the rudder. The bolts were out of shape and were worn and needed to be replaced or grinded so they could be reused. The Claimant managed to grind seven bolts. It was during the process of grinding the last bolt that he sustained the injuries. He states that he sustained the injuries during the cause of his employment and is entitled to damages and other consequential orders.
6. In cross-examination, the Claimant told the court that in order to remove the rudder, bolts must be firstly removed. He removed the bolts inside the Taroniara workshop. He said that normally, the Taroniara employees would carry out some job specifications and as the engineer, he would also assist in carrying out other jobs.
7. What he was required to perform on that occasion was to remove the bolts. Mr Hato, whom the Defendants claimed to be the chief engineer was present when he performed the works. No one told him to stop removing the bolts and or grinding them. He was also not told to leave the workshop.
8. He further said that Mr Hato was not the chief engineer at the material time. He was the chief engineer. He was granted an exemption to work as chief engineer. He further said that Mr Hato merely joined them just before the vessel departed for maintenance. In any event, he also stated that before he went to the workshop, he had sought Mr Hato’s permission.
9. He denied the suggestion that he performed the job without permission and authority from Mr Hato. He also denied that he did not seek permission from the Third Defendant. He reiterated that Mr Hato was present but did not remove him from the workshop. He also did not stop the Claimant from doing the job as required. He had to perform the job because he was the only experienced person that could assist in removing and grinding of the bolts. It took him three days from 9 April, to remove and grind all the eight bolts. He was injured on the third day into the job.

The position of the First, Second and Third Defendants

10. As for the First, Second and Third Defendants, three witnesses were called. All three witnesses deny that the Claimant was authorised and or permitted to perform the job of removing the eight bolts from the rudder and grinding them. They say that the job should have been carried out by Mr Hato as chief engineer, together with employees of Taroniara shipyard.
11. In summary therefore, they deny that the Claimant is entitled to any damages. He was not authorised and or permitted to remove the bolts from the rudder and had them grinded. They say, he was not the chief engineer and he had undertaken the job at his own peril.
12. The First, Second and Third Defendants had a counter-claim against the Claimant. Their counter-claim is premised upon the basis that because default judgment was entered against them, they were unable to operate their normal business for three days. They claim business and financial loss of $877,823.24.

Discussion

13. As alluded to above, the claim is for personal injury occasioned by the Claimant as an employee. On 3 October 2023, parties filed their agreed facts and issues and I have noted them.
14. There are six agreed issues. From the evidence and closing submission of the Defendants, the first issue is uncontested. I therefore need not rule on it. The remainder of the issues are the following:
    • Issue 2: Whether the injuries sustained by the Claimant occurred in the cause of his employment;
    • Issue 3: Whether the Claimant was authorised by the Third Defendant to carry out the work that resulted in the injury;
    • Issue 4: Whether or not the Third Defendant was negligent by failing to provide proper safety equipment and or wears to the Claimant when he carried out maintenance on the rudder of the First Defendant;
    • Issue 5: Whether or not the Claimant is entitled to general damages for negligence;
    • Issue 6: Whether or the First, Second and Third Defendants should be liable to pay the sum of $95,660.00.
15. In his evidence the Claimant stated that he was the chief engineer. In paragraph 13 of his sworn statement filed on 11 July 2017 at page 52 of the court book, he was ordered by the Defendants to have the rudder fixed before the ship could set sail and leave.
16. He said if the rudder has to be repaired, the bolts affixed to it must be removed. There were a total of eight bolts. All the bolts were not of normal shape. The threads were worn and rusty. They were improperly removed by previous employees of the Third Defendant. The Claimant requested the Defendants to replace the bolts but nothing was done. In effect therefore, the Defendants were very much aware of the status of the bolts but failed to do anything to mitigate and or to resolve the issue. No one else could perform the job but the Claimant because of his long term experience as shipping engineer.
17. In this discussion, I intend to deal with issues 2 and 3 together as they are related. On the outset, I must state that the nature of injury sustained by the Claimant is not an issue between the parties. There is also no issue that the Claimant was part of the crew that was dispatched by the Third Defendant to take the First Defendant to Taroniara shipyard for general maintenance. There is further no issue that the vessel’s rudder needed to be fixed and or repaired during that trip.
18. The Claimant holds a Class 5 Certificate. On various occasions, he was granted exemptions by the relevant authority to act as chief engineer. He was a very experienced person in his field of expertise. From his sworn statement on pages 63 to 76 of the court book, he was granted more than one exemption to act as chief engineer. In the document on pages 72 to 74 of the court book, he was regarded as chief engineer of the First Defendant.
19. It is therefore highly likely that in situations when the First Defendant is without a qualified chief engineer, the Claimant is called upon to act as chief engineer. Putting that into perspective, the Claimant’s evidence to the effect that he was chief engineer during the trip to Taroniara is highly probable under the circumstances. It is also noted that the Defendants did not raise any issue in cross-examination.
20. Even if on the other hand, the Claimant was not the chief engineer, he was part of the authorised crew that were dispatched by the Third Defendant to take the vessel to Taroniara shipyard for general maintenance.
21. There is also evidence from the Claimant that he had sought permission from Mr Hato to use the Taroniara workshop to remove and grind the eight bolts. Also of essence on the two issues is the evidence of Mr Hato during cross-examination and questions from the court.
22. In cross-examination, Mr Hato stated that he was chief engineer for a period of about five years. He further said that if he is unavailable as chief engineer, the vessel does not sail. That piece of evidence is contrary to the exemptions granted to the Claimant discussed in paragraph 18 above. Mr Hato also stated in cross-examination that he did not stop the Claimant to grind the bolts. He was present when the Claimant was grinding them.
23. From my questions to Mr Hato, he said, the Claimant was present on site at the workshop. He was assisting them. He assisted them to remove the bolts and nuts from the rudder. He also saw that the bolts were out of shape and rusty. He discussed with the Claimant to have the bolts grinded. He further said he told the Claimant that they needed new bolts. He could not remember what time any new bolts were provided by the Third Defendant.
24. The effect of the discussions in the above paragraphs clearly show that Mr Hato had full knowledge that the Claimant was in the workshop the whole time work was performed. He even discussed with the Claimant that the bolts needed to be grinded. There were no new bolts provided to them by the Third Defendant.
25. With full knowledge that the Claimant was in the workshop performing engineering jobs, there is no evidence that he instructed the Claimant not to perform what he did that directly led to the accident. In fact, Mr Hato discussed with the Claimant the possibility of grinding the bolts. That was exactly what the Claimant was doing and got his left index figure injured. The Claimant was never told by Mr Hato to leave the workshop. He was also not told that it was not part of his job to remove and grind the bolts.
26. It is therefore obvious that what has transpired from 9 April to 11 April 2016 was the workshop manager and employees as well as Mr Hato had allowed the Claimant through their actions and or inactions to remain therein and grind the bolts into shape. None of them had expressly informed the Claimant that he was not allowed into the workshop to carry out all the works that he did during that period of time.
27. In fact, the Claimant had worked in the workshop in their presence for about three days before he was injured. He was in the process of completing his job. By implication therefore, the Claimant was permitted by Mr Hato, the workshop manager and other employees of Taroniara shipyard to remain in the workshop to carry out and complete the grinding of the bolts. It is also pertinent to note that the vessel would not be able to set sail until the rudder was repaired and or fixed.
28. I have taken time to peruse and note the letter from Cecil Goti, the Site Manager of Taroniara shipyard on pages 165 and 166 of the court book. The summary of that letter is that the Claimant was not authorised to remove and grind the bolts. That job belonged to the shipyard employees. He further stated that the Claimant injured himself through his own accord.
29. In the third paragraph of the letter, he mentioned that the Claimant was in the workshop with his staff and the First Defendant’s shipping staff. He confirmed, it took them two days to remove all the bolts. There is nothing in his letter to say that the Claimant was not permitted to enter the workshop. He also did not state that the Claimant was not authorised and or permitted to be present inside the workshop.
30. Mr Goti merely stated, it took them two days to remove all the bolts. The Claimant was present and it could rightly be implied that he also took active part in the removal of the bolts and grinding them. Mr Goti was not in the workshop on 11 April 2016 when the accident occurred. His evidence on what had occurred on that day are not admissible as they amount to hearsay.
31. The Third Defendant is the Claimant’s employer. Mr Selwyn Riumana is a Director. He gave evidence during trial and relied upon two of his sworn statements on pages 144 to 150 and 158 to 166 of the court book. The summary of his evidence is that the accident occurred at Taroniara workshop. The Claimant was not injured inside the vessel.
32. He stated that he did not authorise the Claimant to go inside the workshop and grind the bolts. He also did not obtain the consent and authority of Mr Goti, the Site Manager. He concluded that the Claimant’s injury was sustained upon his own action and negligence. They deny liability.
33. The Third Defendant is a registered company. Mr Riumana is a Director and could be one of the controlling mind of the company. Under company law, company managers and in this case, the master of the vessel and or the chief engineer could also be included in the list. That is essential in this proceeding because I must also be able to identify and determine the individuals within the company whose actions can be attributed to the company.
34. It is therefore important to note that not only a Director can be said to be the controlling mind of a company. It can also include senior executives and or persons incharge of shipping vessels as is the case here.
35. In cross-examination, Mr Riumana told the court that Mr Hato should have been the person to grind the bolts. He was the chief engineer. From this piece of evidence, Mr Hato could be held responsible for works carried out by the Claimant.
36. As discussed in paragraphs 20 to 27 above, Mr Hato was fully aware of the Claimant’s presence in the workshop. He allowed the Claimant to carry out works therein, including removing and grinding of the bolts. The Claimant was not informed and or instructed to leave the workshop. He was also not instructed to cease performing the works.
37. As the responsible officer as per the evidence of Mr Riumana, Mr Hato had through his actions and inactions permitted, allowed and authorised the Claimant to remove the bolts from the rudder and had them grinded. That was the only way to enable them refit the rudder inside the vessel.
38. In any event and in assessing the Defendants witnesses in court, I find them as unsatisfactory witnesses. I am unable to place reliance in their evidence. Mr Hato has given inconsistent evidence in court. Mr Riumana was very evasive in his answers. It was obvious and the witnesses were trying to conceal the real story.
39. Quite apart from the above discussions, I am also able to get assistance from the provisions of the Workmens’s Compensation Act (Cap78). The Claimant’s claim of $ $95,660.00 is premised upon an assessed value by the Commissioner of Labour under the Act. The relevant provision here is section 5 (2) of the WCA which states:
    • s. 5 (2) -“For the purpose 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 cause 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, or that he was acting without instructions from his employer, if such actions was done by the workman for the purposes of and in connection with his employer’s trade or business”.
40. The above provision is a deeming provision and could be read in favour of a workman. The Third Defendant was and is operating business in the shipping industry. If there are operational, mechanical and maintenance problems affecting the efficient operation and management of their main cause of business, it would cause them financial problems and hardships. That problem is evident in the First, Second and Third Defendants’ counter-claim.
41. In this instant, the First Defendant is the vessel that the Third Defendant is using and relying upon to operate their normal shipping business. The vessel was sent to Taroniara shipyard for general maintenance. Before the vessel can set sail again to carry out its normal business, the rudder must be fixed. That was exactly what the Claimant was doing since 9 April to 11 April 2016. So even if his entry into the Taroniara shipyard workshop was not authorised by the Defendants, s.5 (2) is able to be used in his favour.
42. In applying s. 5 (2) of the Act, the injury sustained by the Claimant on 11 April 2016 could be deemed to have arisen out of and in the cause of his employment notwithstanding that at the time when the accident happened he could have been acting without instructions from his employer. The qualification is that such actions were carried out by him for the purposes of and in connection with his employer’s trade or business. As discussed above, without the rudder being fixed, the vessel could not set sail to allow the Defendants operate their normal shipping business.
43. In view of the above discussion, I can confidently say that the injuries sustained by the Claimant on 11 April 2016 inside Taroniara shipyard workshop occurred in the cause of his employment. I can also say that taking into account the evidence of Mr Riumana and Mr Hato, the Claimant was authorised by the Third Defendant and Mr Hato to carry out the works that directly resulted in his injury.
44. In relation to issue 4, it is conceded by the parties that the Claimant was an employee of the Third Defendant. Upon that concession, it follows that the Third Defendant owes a duty of care to the Claimant. Generally, as a shipping engineer, the Claimant’s duty included looking after the engine room and the entire operations connected thereto. The duty also extends to maintenance and repair of damaged equipment and parts.
45. I will now discuss the duty of an employer under the Safety at Work Act (Cap 74) (SAWA). Under section 4 (1), it is the duty of every employer to ensure, so far as is reasonably practicable, the health and safety at work of all his employees. This is a general provision that applies to all employers. Under this provision, the Third Defendant owes a duty of care to all of their employees, including the Claimant. Schedule 1 of the SAWA is also of relevance to the issue at hand.
46. Coming back to this proceeding, the vessel’s rudder needed repair. The rudder has to be removed from the vessel and taken to a private workshop for that purpose. Work on the rudder was done in Taroniara shipway workshop. It is a private workshop and owned by the Anglican Church of Melanesia. Nonetheless legal principles has it that an employer’s duty of care can extend to private workshops as long as it is considered part of their work duties.
47. Apart from the above discussions, the employer’s duty of care also included providing appropriate safety equipment and wears and also ensuring employees are properly trained on relevant safety procedures. In his evidence, the Claimant stated that he used hand gloves. The hand gloves were unable to contain the cutting disc that he used to grind the bolts.
48. Taking into account what was stated by Mr Goti in paragraphs 5 and 6, (page 165 of court book), it is also equally possible that the Claimant’s employer might not have ensured that he was properly trained on relevant safety procedures. It is further noted that Mr Hato was present at the workshop during the relevant times but he failed to instruct the Claimant on procedures he ought to have used on the job.
49. Upon the above discussion, I am satisfied on the balance of probabilities that the Third Defendant was negligent in failing to provide proper safety equipment and or wears to the Claimant when he carried out maintenance works on the rudder of the First Defendant. The Defendant was also negligent by failing to properly supervise the works done by the Claimant.
50. Having discussed issues 1, 2, 3 and 4, I am also satisfied that the Claimant is entitled to general damages for negligence as per issue 5. Assessment of damages shall be done on a date to be fixed.
51. As per issue 6, the assessment done by the office of the Commissioner of Labour was put into evidence by the Claimant on pages 59 to 60 of the court book. There is no stated position by the Defendants in respect of that assessment. The value of the assessment is based upon the finding of a medical doctor, on pages 57 and 58 of the court book. The total assessed sum is $95,616.00.
52. As there is no stated position of the Defendants on the assessed value by the office of the Commissioner of Labour and noting that I have ruled in favour of the Claimant in all issues raised, I hereby order that the Claimant is entitled to be paid the assessed value of $95,616.00.
53. In awarding the sum of $95,616.00 as workmen compensation, it follows that the said sum shall be deducted from an assessed value for general damages as per paragraph 50 above. See the case of Liliau v Trading Company (Solomons) Limited (1983) SILR 10.
54. In view of the above discussions, I hereby make the following orders:
    1. The case for the Claimant is proved on the balance of probabilities;
    2. The Third Defendant owes a duty of care to the Claimant;
    3. The Third Defendant has breached that duty of care;
    4. Consequently, the Claimant has suffered damages;
    5. The Claimant is entitled to be paid special damages to be assessed;
    6. The Claimant is further entitled to be paid the sum of $95,616.00;
    7. The above sum is to be deducted from an assessed value for general damages;
    8. The Claimant is entitled to interest and cost.

THE COURT
Justice Maelyn Bird
Puisne Judge