In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case No. 48 of 2005

Between:

Tonaa Angatiri
Applicant

And:

United Marine Products Ltd
Respondent

For the Applicant: Ms Fleur Hamilton
For the Respondent: Ms Botika Maitinnara

Date of Hearing: 4 May 2006

ASSESSMENT OF DAMAGES

This is an assessment under the Workmen’s Compensation Ordinance following finding that the plaintiff’s late husband, Angatiri Toantabanga, was an employee of the defendant and died as a result of and in the course of his employment. Angatiri had been employed by the defendant only for one month before he died. During that month he earned $1,901.00.

When Ms Hamilton opened she argued strongly that it was a simple calculation: I should use $1,901 as a basis of calculating earnings in the previous two years. She based her argument upon the wording of Section 6(a) of the Ordinance:-

6.	Where death results from the injury -

(a)	if the workman leaves any dependants wholly dependent on his earnings, the amount of compensation shall be a sum equal to 48 months’ earnings or $25,000 whichever is less:

Provided that in no case shall the amount of compensation under this paragraph be less than $250.

Ms Hamilton argued that using $1,900 per month as the yardstick his earnings in two years would be over $40,000 - certainly more than $25,000. Compensation should be fixed at $25,000.

Ms Hamilton referred to Section 12(1):-

12(1)	For the purposes of this Ordinance the monthly earnings of a workman shall be computed in such manner as is best calculated to give the rate per month at which the workman was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any less period during which he has been in the employment of the same employer.

The proviso to section 12(1) allows for the calculation to be based on the earnings of someone doing similar work:

"where by reason of the shortness of the time during which the workman has been in the employment of his employer or the casual nature of the employment or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration".

Given the average income in Kiribati it would be unreal to calculate on the basis urged by Ms Hamilton unless there were evidence that Angatiri had spent most of his time diving. It would be absurd - and very unfair to the Respondent - to calculate earnings for 48 months on one month only, a month in which Angatiri earned a very large amount in comparison to the other 47 months. 

I allowed an adjournment for Ms Hamilton to bring her client to court.

Nei Tonaa’s evidence was to the effect that in the last two years of his life Angatiri had spent all but the last month as a fisherman and doing welding work about a day a week. This was sufficient to provide for his family - himself, his wife, his mother, his three children, his brother (who sometimes went out fishing with him) and his brother’s family. In a poor week he could earn from selling the fish as little as $60: in a good week as much as $100. Nei Tonaa did not know how much he earned from welding. Angatiri had not been diving since before they were married in 2000.

That is the only evidence I have to go on in making the assessment. I shall have to "wield the broad axe".

I should remember that some of the catch would have been used for food for the family: averaging income from fishing I should use a figure rather more than halfway up the bracket $60 to $100. I allow $85 per week. Angatiri also would have earned something from welding: it is a guess but I allow $15 per week. Coming to a final figure I take into account his much higher earnings in the last month - $1,900.

I assess compensation at $11,000.

Dated the 8th day of May 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice