(a) &nbs; &nbbsp;
it fail failed to evacuate the plaintiffs from the defendant’s offices in
Port Vila and Luganville on the riot date within a
reasonable time period;
(b)
it failed to ensurensure that any or all appropriate steps were taken to
ensure that the defendant’s officers in Port Vila and
Luganville were safely
secured prior to requiring thintif retu work;
>
(c) &nbssp;
ipan>it failed to observe the physical and emotional strain upon the
plaintiffs by its requirement the plaintiffs work for hours
in excess
of the plaintiffs employment contracts and/or d/or as provided in section 22 of
the Employment Act (Cap 160) as amended.”
The claims set out at (b) and
(c) must fail for the reason set out above at and B-Z.
class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
I consider (a). This
necessarily links with parts A.1.b, section 45(1) Employment Act and B-X “
The Time of the Riot.”
Section 45 (1) requires the
“taking of appropriate steps as soon as possible to remedy” conditions.
Paragraph 12 of the
Statement of Claim (as expanded at 1a and 1d) speaks of
a breach of the implied term by failure to ensure health, safety and
welfare
“as a consequence of the riot” Paragraph 15, under the “Common Law Duties”
Section talks of taking “appropriate
steps to remedy” working conditions.,
And paragraph 16 alleges a breach by negligently failing to take steps to
remedy
the working conditions,… ‘as a consequence of the riot”
This is somewhat curiou wording for the formulation of the claims. The sense of all three heads of
claim aaim appears to be
a failure to remedy the working conditions, (i.e. being
besieged by rioters), by failing to evacuate rather than an allegation
of
failing to make plans for the staff should their safety be threatened. The
defendant took up this point at paragraph
6 (c) of the written closing
submissions.
The plaintiffs, in their
pleadings, have not alleged the defendant was responsfor the riot.
(Closinlosing written submissions
appear to come close but I disregard that).
However, the plaintiffs do state (Reply to submissions dated 29 January
2001)
at paragraph 3 (b)- “Negligent failure to evacuate?
p class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
“The defenknew or should
have known of the public unrest in the days immediately preceding 12th
January 1998 and the defendant was negligent in that-
(i) &nbp; &nnbsp; &nbssp;&nsp; &nbp; ;&nbpp; &nnsp;&
sp;
itan>it failed to ensure that it had in place an adequate evacuation plan
for the plaintiffs should the need arise;
(ii) &nbp; &nnbp;&&nbp;;&nbpp; &nsp; p;
s it left left the plaintiffs in an inadequate room…for approximately three
hours”
1">
&nt">
It is not in issue that tension
s rising in the early days of January 1998 and that there were were major
security concerns.
By the nature of the “ Micro Loan Scheme” and its
widening to all members it was inevitable the Fund, its building and staff
would become the focus of a large number of people (the members) seeking
return of their money. That was against the
back ground of the fear (well
founded or not) that monies had been wrongly dissipated and there might not
be enough to
pay back all the members.
The mounting tension was being
discussed by the Board and was clearly in the minds of the Chairman and
general manager.
Police and VMF assistance was obtained, complaint was made
about the adequacy of police action, a Court order was obtained
and private
security firms were engaged.
Whilst a full scale riot might
not have been forseen, clear the defendant foresaw the high risk of
seriousrious civil
disturbance and the fact that that disturbance would be
focused on its building and its staff. In the few days before the 12th
January both in Port Vila and Luganville staff were working “flat –out” to
distribute and process forms. Tents were erected
outside the Vila building
to facilitate this. Members seeking repayment were becoming demanding,
abusive and angry towards
the Fund’s staff who were dealing with them.
However, care must be taken to
ensure findings are not made “with the benefit of hindsight”. I find it was
reasonably
forseeable that a serious disturbance could occur and that the
focus of that disturbance would be the Fund’s building and its
staff. The
location of the Funds’ building was known to all, and the Fund’s staff were
easily identifiable by their uniforms.
The Fund took the measures set
out above. They were clearly aimed at securitside and around the
building both in
Port Vila and Luganville. There is no evidence of any
special instruction issued to staff as to what to do if a disturbance
should
break out. There was no prior identification of anyone (staff or security
officer) in the building who would be
in charge of and responsible for
staff, where they should go, what they should do, how they would be
protected and then
evacuated from the building. In particular, for the
purposes of evacuation and concealing identity how staff should dress.
The
simple expedient of instructing staff to go to and from work in ordinary
clothes and change at work would have assisted
and meant every member of
staff had a set of ordinary clothes at work.
p class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
In the event it was the quick
thinking and courage of security officers Nato Tawia and Willie Kaloris that
saved the plaintiffs
from physical injury, (save for Maxime Charley).
I find that in the unusual
circumes of this case it was forseeable that the “working conditinditions”
of these plaintiffs
could become dangerous and they did. Whilst the Fund was
not in a position to remedy the conditions as such by stopping the
riot they
were in a position to reduce or abate the effects of the riot upon the staff
by the prior formulation and promulgation
to staff of instructions and a
plan as to what to do. This they failed to do. The fact there would be and
were police
and VMF outside the building to deal with disturbances and some
security officers outside or inside did not mean the Fund could
leave the
matter there.
I have not heard evidence from
Willie Kaloris. The evidence of Nato Tawia, is that he attended voluntarily
at the building
after hearing about the riot. His security firm’s contract
was in fact for night time from 6p.m. to 6 a.m. Immediately upon
arrival he
advised evacuation of the staff. He considered a helicopter but rejected the
idea. “ I then instructed that
other security officers and VMF officers for
us to remove the staff to the strongroom of the building.
“Upon my instructions, we
ushered all the employees to the strongroom.” He ordered the power to be
switched off to prevent
fire.
Nato Tawia was on the island of
Ifira when he heard of the rioting. That meanshe defendant’s evidence
e
there was no
direction to staff for their safety from when the riot started
for the time it took for news to reach him and for him to reach
the
building.
It is pertinent to note that
most staff des the general manager as already being in the strong room
om
when they arrived
there.
Tawia helped escort some
loyees out of the building. A hole was cut in the wire to do this. His
estimation wasn was that
staff were in the strong room for about two hours before
evacuation.
In cross-examination he said it
was his decision to evacuate staff.he Court he said, “I got noot no
instructions as to
who was in overall charge. It was me and one of the
police officers who decided to remove them.” He was present when some staff
tried to leave but couldn’t. He said “Many staff put T shirts over their
uniforms. Many had turned their shirt (inside
out). The riot was still going
at 12. There were still staff inside… From my experience I decided we better
get the staff
up to the storeroom.”
This description of events coincides with the picture painted by the plaintiffs of much attention been
given toen to looking
after the building but a failure for minds to be directed
towards the safety and evacuation of staff, generally and should
a
disturbance break out.
The room the staff were taken
to was secure from the rocks and missiles. However there were no windows, no
air conditioning
or ventilation and it was crowded. They were in there for a
considerable time, knowing there was a riot going on outside and
that it was
partly directed at them. Prayers were said. One attempt was made to evacuate
them, but that failed. Several
plaintiffs said that as soon as the crowd saw
their (VNPF) uniforms the missiles and anger were directed at them and they
had to go back.
Some staff members escaped
through the wire, some escaped and hahide immediately, most were were
eventually led out and
buses obtained and they were sent home.
All plaintiffs descrhe
whole incident as terrifying and frightening. Several feared for their
liveslives. I accept that
evidence. There would have been a short time of fear
after the riot started until any prearranged plan could have been put
into
action. However, I find the failure to issue contingency instructions and
have any plan available greatly contributed
to the measure of fear and
fright felt and the duration of it. Whilst no employee (save Maxime Charley)
was physically
hurt and no specific sum is claimed under these heads, I find
the plaintiffs are entitled to damages for the consequences of
the
defendant’s failures as set out above. I award those damages for breach of
the implied contractual term and common
law duty.
I accept the evidence of Maxime
Charley concerning the injuries he received (left thigh hit by a missile and
right elbow
by glass). There is no evidence of any long term effects from
them.
Time estimates vary as to long the riot went on for and how long the employees were trapped in the
buildinilding. In circumstances
such as these that is not surprising. I find it
was between two and three hours. There must be some allowance for the fact
that even with a plan there would have been a period before it could be put
into action.
I have considered each
plaf’s case, there are factors in each for increasing and decr decreasing
the amount. I find the
correct course is to award the same fixed sum to each
plaintiff who was in Port Vila. I now consider the position in Luganville.
LUGANVILLE
class="Mss="MsoBodyText" style="margin-top: 1; margin-bottom: 1">
The employees at the
defendant’s Lugan office, Joel Tovor, William Vira and Jephlyne Nasse
were subject to the same
work pressure before, during and after 12th
January as their colleagues in Port Vila. There was a similar pattern of
increasing tension and gathering crowds up to
and on 12th
January.
The security of the staff at
Luganville was not ever consid Dinh Van Than accepted thid this in evidence
and nowhere is
there any reference to it in those Board Minutes that are
still available.
Luganville is much smaller than
Port Vila. There were only three staff there. For these reasons the
individual pressure
upon these plaintiffs and their feeling of isolation and
vulnerability must have been greater. They each describe the aggressive
and
abusive treatment they received from Fund members in those days. Their
houses and families were subject to threats
as well.
Major Aru and Inspector Boe
gave evidence of the request the Fund mor security assistance and and what
action they took.
It is pertinent to note here, though it is applicable
throughout these whole proceedings, that I have not heard evidence form
Denis Savoie or Ietonga Aiong, respectively the Board chairman and general
manager at the time. Denis Savoie was in Luganville
on 12th
January.
class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
News of the in Port Vila
reached Luganville about the middle of the day. There was a crowd of
f
somewhere between 500
and 800 people, first in Unity Park and later around
the Fund’s office. Tension was high, people were demanding money, there
were
drunks. The crowd started to disperse later in the afternoon, and up to that
time no damage had been done to the
building. A window was broken by a stone
in the later evening, and it was boarded up.
It must be to the credit of
or Aru and Inspect Boe that no major disturbance took placeplace, and only one
or two windows
were broken. Major Aru give evidence of the patrols he sent
out to look after the staff homes and the Fund building although
this did
not stop the threats and abuse and the need to temporarily move home.
There is disagreement between
the plaintiffs and the defts on some matters, e.g. whg. when the tent was
set up behind
the premises, exactly how many windows were broken. In the
light of my finding these are not of material relevance. This must
not be
taken as disguising the fact that for the three Fund employees in Luganville
this was a frightening and then a
tiring time. It should have been plain to
the Board members that the same tensions and risks were building in
Luganville
as were building in Port Vila. It was clear to Denis Savoie by 9th
January that assistance was required, this was when he contacted Major Aru.
Denis Savoie was alerted on 12th January to what was happening,
yet he spent most of the day away from the building and the staff.
It is probably through a
mixture of good fortune and the skill of Major Aru and Inspector Boe that
the staff in Luganville
were not subject on 12 January to the same fate as
their colleagues in Port Vila. However, there was a period when they were
in
the building, with a hostile crowd outside, there was no senior managerial
directive or plan, no contingency plan
for their evacuation, indeed they
were virtually on their own. In these circumstances, an award of damages
should be
made, albeit not as great as for those in Port Vila.
p class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
CONTRIBUTORY
NENCE and VOLENTI NON FIT INIURIA
Contributory negligence and
volenti non fit injuria have been pleaded in thence. I can find no
e evidence to support
either contention. This pleading might well be regarded
by the plaintiffs as insulting.
In the days before the riot the
plaintiffs continued to work and work hard in an atmosphere of gathering
hostility. Despite
the fact that there was a strong feeling, (whether or not
with real foundation) that the whole circumstance had come about
as a result
of the actions of the senior management and one or more members of the Board
of the defendant, they continued
working in buildings that were almost
besieged. Some of their number went out to tents at the edge of the crowd to
deal
with applications.
They were without direction and
reasonable personal proon for a substantial period at the start of the
riot.riot. They
were in an airless strong room for 2 to 3 hours, knowing there
was a hostile crowd outside and that police and VMF efforts
were not
adequate. There was an unsuccessful attempt to leave. Their uniforms and
their jobs made them targets. Some
later suffered threats and had to move
home.
THE WITNESSES
p class="MsoBodyText" style="margin-top: 1; margin-bottom: tom: 1">
I willider the evidence of
the plaintiffs’ and defendant’s witnesses in turn.
p>
  &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
The
Plaintiffs’ Witnesses.n>: 1">
<
(a)&t;"> &nnsp;&&nsp;;&nspp;
s The Plais
At the start of the trial there
were twenty plaintiffs. Nineteen gave evidence. One was overseas.
I have considered the evidence
of each plaintiff. With the exception of the matters below I accept the
evidence of each
plaintiff. I did not find they were trying to do other than
tell the truth about what happened as best they could remember.
lass="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
As far as hours worked are
concerned and in coming to my findings set out above I have relied upon the
time sheets and
not the affidavits of the plaintiffs. The affidavits were
made many months after these events, without having the time-sheets
and the
recollections of those times will have been ones of long hours worked and
tiredness.
The defence emphasised the fact
the plaintiffs were paid above the normal overtime rates and wages received
were the most
each plaintiff had ever received. The latter fact is not
relevant, and in any case it was too unquantifiable a factor to have
merit.
In evidence it was stated the overtime monies being paid were about 20 %
above the norm. It was not specifically
the rate being paid that was in
issue, it was whether or not the hours were excessive. Such extra payments
in any event
were in respect of the long hours and hard work. There was no
evidence the extra was directed to anything else. The plaintiffs
must accept
that overtime is paid as a percentage of the wage earned, the higher the
wage, the bigger the sum will be
for overtime per hour worked.
Many plaintiffs state the Board
or some of its membe the first day back at work made a promise of
compensmpensation. In
the atmosphere prevailing then it is perfectly possible
promises of compensation were made in respect of what had happened
or to
encourage the staff to work hard in the coming months. It was not pleaded
and in any case it is not a matter on
which the court can or should make a
finding.
I heard no evidence from Monica
Melve- She was overseas. It is clear from the face of her affidavit she was
in the Port
Vila building at the time of the riot. I cannot pay regard to
that as she was not present for cross-examination. No application
was made
to dismiss her case specifically. I do not dismiss it, nor make any finding.
It would seem sensible to treat
her in the same way as the other Port Vila
plaintiffs.
p class="MsoBoMsoBodyText" style="text-indent: -36.0pt; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&
sp;
The Defendant’s Witnesses.
The majority of the defendant’s
affidavits were filed late, and in several cases only days before the trial.
This placed
the plaintiffs at considerable disadvantage.
There are, in fact, on my
findings few areas of relevant, sntial disagreement in the ethe evidence
between the witnesses
of the plaintiffs and those of the defendants.
Whilst t of the scale that
eventuated, covering many commercial premises, might not have beee been
forseeable, the high
risk of serious civil disturbance was forseeable. It
was also forseeable that the focus of that risk would be the Fund, its
building and staff. Dinh Van Than felt it would be prudent to be prepared
and prevent any problems and secure the safety
of staff and the property.
The Board Minutes for vital
meetings (5 and 10 January ) are missing. There were alsoor more ad hoc
meetineetings over
lunch. The available Board Minutes show the fact the defendant
was aware of the deteriorating situation and the need for security.
There is
no record of any discussion re the specific position of the staff and their
security nor the making of any directive
to formulate contingency plans for
their safety.
I acceptrally the evidence
of Dinh Van Than. In reality there is nothing contentious in it. Hit. He says the
Board was
concerned for the staff as well as the building. The Board was
disappointed at the competence of the police. The issues came
up in the
meetings of 2nd January, a lunch meeting on a Saturday after 2nd
January, probably 10th, (no minutes) and on 5th and 10th
January (minutes missing). Nowhere is there reference to a specific
directive or plan concerning the staff. Their thoughts
in any event were
directed to Port Vila, “we didn’t talk about Luganville, we only talked
about Port Vila.”
Esley Charlie, Timothy Noviel,
Whitely Kenneth aulon Williams are members of the VMF. Their evidence
is not contentious.
They described the scene outside and inside the
building. Timothy Noviel epitomised the erroneous view, that the situation
was secure, in his affidavit, “At all material times, we were very confident
that the employees were safe as the VMF
were placed around the building and
there were other security officers as well. Therefore the rioters never came
into
the building. The rioters were only throwing stones and other materials
at the building.” Kenneth says the “staff were safe
in the strongroom”.
class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
I have dealte with the
evidence of Nato Tawia.
The evidence of William Tari
and Meto Chilia deals with theod immediately after the rihe riot and does
not bear specifically
on my findings.
Joses Kenneth was deputy
genmanager at the time. He detailed the concerns about securitcurity and the
conversations with
the Police and measures taken. He says at the meeting on
10th January “it was recognised that there could be trouble, but
no one anticipated the possibility of public rioting. He says after
the
meeting on 2nd January “ Mr. Willie Kaloris and four other men
working under his supervision were contracted on 5th January 1998
to assist with crowd control in processing of members Micro Loan Scheme
applications”. The 10th January meeting was for the Police
Commissioner to advise on his strategy for controlling members at both
offices coming
to file applications and receive loans. He accepted staff
were very busy through this period. Whilst he says security staff
escorted
everyone to the strong room he does not say when, or by whom. There is no
mention of a plan. Many plaintiffs
describe Mr. Kenneth as being in the room
when they arrived. When he says management provided T shirts to staff, I
prefer
the evidence of the plaintiffs in that for the most part they had to
make their own arrangements to disguise their uniforms.
He considered thatoris was
to give security for the staff”. Mr. Kenneth refers to Kaloris letter of
f
appointment dated
8 January 1998 (agreed bundle p 303) which speaks of the
mutual agreement on the 5 January when “the following points were
agreed
upon”. There is then nothing more the broadest description of being
recruited as a “security officer for the Fund.”
Deputy (now Acting)
Commissioner Api Jack described the situation from outside as far as the VMF
was concerned. Joshua
Bong (currently serving in East Timor) was, he stated,
in charge of police and VMF. He did say that in his opinion “the intention
of the crowd was to trap the staff.”
He remembered the lunch,
referred to by Joses Kenneth, and it was at the Park Royal, “al, “it was a
Saturday or Sunday
morning, Saturday morning,”. I accept his evidence.
I acthe evidence of Mark
Bebe. He described the great difficulties in paying the monies oies out after the
government’s
instructions to do so. He paid tribute to how hard the staff
worked “to fulfil what the Board and the Fund was required to
do by the
government”. Even in February “ the staff regarded the Board as a group of
people that were there to protect
them since the whole public was angry and
or cross with them”. He said no complaints were received from the staff.
Kelep Sandy’s evidence does not
bear directly on the substantial claims of the plaintiffs as I have found
them. He was
able to escape early from the riot. He took off his uniform and
hid in the garage of a Chinese man. He was very scared. Similarly
there is
nothing contentious in the evidence of Peter Bong that bears upon the
matters as I have found them.
The claim made by the staff in
the complaint letter of 16th May was for Vt500,000 for Port Vila
staff and 250,000 for Luganville staff. Whilst I have not accepted as a
matter of
law that they had claims for everything set out, the sum they
requested was modest, it was not inflated. It seems a pity that
the VNPF
could not have sat down with the staff and worked out some satisfactory
compensation or damages for its staff.
The idea of a thank-you dinner was
mooted by the Board, but there it stopped. I award damages for Port Vila
staff in
the sum of Vt 200,000 and 100,000 for the Luganville staff.
DATED AT PORT VILA this 28th
day oust 2001.
p>
R.J. COVENTRY
JUDGE
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