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Peni v South Pacific Marine Services [2003] TVHC 13; Case No 12 of 2002 (11 April 2003)

IN THE HIGH COURT OF TUVALU
APPELLATE JURISDICTION

CASE NO. 12/02

TELOGO PENI

v

SOUTH PACIFIC MARINE SERVICES
(THROUGH THEIR AGENT SOUTH PACIFIC AGENCY)

James Duckworth for appellant
Respondent represented by Amuia Tapeva in person

Hearing: 9 April 2003
Judgment: 11 April 2003

JUDGMENT

This is an appeal from the decision of the Resident Magistrate under the Workmens Compensation Act (Cap 83).

It is not clear exactly what was determined at the Magistrate's Court hearing because there is no record of those proceedings on the appeal file. However, it appears to be accepted by the representative of the respondent that an application had been made under the Act to determine whether the claim had been made in time under the provisions of the Act.

Section 15 of the Act provides for notification of an accident. It provides that notification should be made as soon as practicable after the happening of the accident and before the workman has voluntarily left the employment. The section imposes a limit of 6 months but it further provides that lack of notice shall not be a bar to proceedings if it is proved that the employer had knowledge from any other source at or about the time of the accident.

It appears that, in this case the accident occurred at Pusan and the appellant was treated in hospital in Pusan the same day. He was later sent home by the company because of a complaint of continuing head pain.

I need go no further with the facts because it appears the magistrate did not hear any evidence before making his ruling.

Any decision under section 15 of the Act will depend on the facts of the particular case. The magistrate should have heard evidence of the circumstances before he reached any decision in this case.

The appeal is allowed and the case remitted to the Magistrate's Court for hearing de novo. The magistrate should first list it for directions in order to decide the evidence to be heard and the manner in which it shall be provided to the court and then fix a hearing date.

DATED this 11th April, 2003

Gordon Ward
Chief Justice