Browne v Ciliam Ltd
| Jurisdiction | Turks and Caicos Islands |
| Judge | Ramsay-Hale, J. |
| Judgment Date | 30 March 2017 |
| Docket Number | CL-163/13 |
| Court | Supreme Court (Turks and Caicos) |
| Date | 30 March 2017 |
Supreme Court
Ramsay-Hale, J.
CL-163/13
Mr. Martin Green for the plaintiff.
Mr. Stephen Wilson QC for the defendant.
Tort - Vicarious liability — Safe system of work — Personal injuries — Whether connection between employment and wrongful act of employee — Whether defendant failed to provide safe system of work — Whether plaintiff entitled to damages — Claim dismissed.
By Writ dated the 9 October 2013, the Plaintiff, Ms. Kara Browne, claims inter alia damages for personal injury in respect of a laceration to her forehead sustained on the 4th March 2013 while she was employed by the Defendant company, CILIAM Limited, as chef aboard its luxury catamaran of the same name. She claims damages in negligence, in that the defendant, breached a duty of care owed to her as an employee to provide a safe system of work, a component of which is to provide safe and competent employees. Alternatively, she asserts that the Defendant was vicariously liable for the several assaults carried out by its employees. Also in the alternative, she pleads the breach of an implied term of her contract of employment that the Defendant would provide a secure, safe and healthy environment for her as its employee.
The principal of the Defendant Company is Swiss businessman, Pierre-Yves Firmenich. The captain of the sly CILIAM is Andre Luthy, a Swiss national, who has served as captain of the vessel since 2002 and was still so serving when this matter came on for trial in 2016.
Between February 2012 and March 2013 when the various incidents complained of by Ms. Browne are said to have occurred, the other members of the crew were Jaan Soon, an Estonian, who was the engineer on board, Sofia Rudback, a Swedish national, who was the stewardess and Achille Lefrere, a French national from Corsica, who was the deckhand. Also on board at divers periods of time were Ms. Sophie Sovany, a French national, who was the former chef on the CILIAM and the partner of Mr. Soon with whom she has a child.
On the 5th March 2013, Ms. Browne went to the police and sought their assistance in pursuing her complaint that she had been assaulted by Ms. Rudback and Mr. Soon in separate incidents and her property destroyed by Mr. Soon who threw them into the sea. With the assistance of her lawyer, Ms. Browne negotiated a settlement with Mr. Soon and the Defendant. The document in which the terms of the settlement were recorded was exhibited.
The English translation is rather tortured but the gist of it is that Ms. Browne sought payment of Thai Baht (“THB”) 150,000 from Mr. Soon as compensation for several personal items which she said he threw overboard, 4 months' salary from her employer and a referral to CILiAM's insurers to settle her medical expenses arising from an injury to her forehead suffered on the night which required stitches and, as it transpired, left her with a permanent scar. They settled on a payment of THB 139,000 for the lost items and the sum of 16,800 Euros representing 4 months' salary, all paid by the Defendant.
The document records that,
“Both dispute parties and the employer have all agreed that once the parties have followed up and acted upon the agreements that have been pledged above, then Ms Kara Browne is pledging that she will not be demanding for any more compensation whatsoever Incurred from such incident.” [emphasis mine]
Mr. Wilson submits in limine that the action is an abuse of process as Ms. Browne had released the Defendant from further liability arising from the assault allegedly committed by Mr. Soon on 4 March 2013, which is the primary allegation of assault made in the Writ. I agree that pursuant to the settlement agreement she is not entitled to claim in these proceedings for any loss or damage resulting from the incident of 4 March 2013. I reject Mr. Green's submission that the Defendant was not a party to the agreement as that assertion is contradicted on the face of the document. I also reject his submission that to hold her to that agreement would be unconscionable. It is a submission Counsel did not seek to support by reference to any authority or evidence. The authorities I have looked at suggest that a settlement agreement will be held to be unconscionable where the parties were of unequal bargaining power or where the party complaining was not represented by Counsel as a consequence of which the amount of the settlement was substantially lower than the claimant would otherwise have obtained.
On the evidence, Ms. Browne was represented by Counsel and expressed herself to be satisfied in correspondence with her employer, Mr. Firmenich, after matters had been dealt with at the police station, saying,
“…Andre was completely fair in my dealings today and 1 do appreciate his co-operation.”
The Captain and Mr. Soon, on the other hand, had no independent legal advice and their passports had been seized by the Thai police. They believed that if they did not sign the document presented to them, their passports would not be returned. The evidence would, if anything, suggest that it was the Captain and Mr. Soon who had entered into the agreement under duress.
In my view, the Agreement would not bar her claim for the cost of treatment for her scar if those costs were not covered by the Insurance policy to which she had been happy to have recourse as part of the compromise. There is evidence before the Court that there are divers interventions short of surgery which could be employed by the plastic surgeons to minimize the appearance of the scar on Ms. Browne's forehead, which appear to fall outside the policy, and there is an email from Mrs. Firminich offering to cover expenses related to the scar if they were not covered by the insurance. I invite Counsel to consider whether and how her claim for these interventions could be addressed.
Insofar as she claims against the Defendant for damages for psychiatric injury suffered as a result of bullying and abuse meted out to her by the members of the crew, the claim is not, in my judgment, caught by the settlement and the action for damages under that head is not barred as an abuse of the Court's process.
As chef on board the vessel, Ms. Browne's duties included preparing three meals a day for the crew in addition to preparing meals for the owners and guests whenever they were on board. The Defendant admits two confrontations between Ms. Browne and Mr. Soon in 2012 which they say were both in relation to Ms. Browne's failures with respect to crew meals, but they deny that Mr. Soon assaulted Ms. Browne on either occasion.
The first incident occurred in February, 2012 while the vessel was docked at the Marina Yacht Haven in Thailand.
In her viva voce evidence, Ms. Browne says that she was running late from her trip to the market to pick up provisions for an upcoming charter with the result that she did not prepare lunch for the crew. She said she called ahead to the crew and to the engineer to let them know she was running late and that they should help themselves to something in the galley or she would pick up something along the way.
When she got back to the boat with the shopping, she announced “Lunch is here” then went to move the car. She does not say what she bought for lunch that day but says that when she returned to the vessel she was confronted by Mr. Soon who asked her, “You f…ing think I'm Thai?” grabbed her by the neck and pushed her down the galley stairs.
Mr. Soon denies the allegation. It is his evidence that Ms. Browne had on three previous occasions bought poor quality take away food for the crew rather than cook for them. On this, the fourth occasion when she had brought food which was unacceptable, he was clearly not pleased and asked her if she was going join the crew in eating it. She stumbled backwards, missed the first step and fell down the galley stairs. It was, he says, “Not a big fall. Nothing dangerous. And not any fault on my part.”
Mr. Lefrere recalls that Ms. Browne had brought back dry salted fish wrapped in newspaper for the crew's lunch. When asked by Mr. Soon if she would eat it, she responded, “No way, it is for the stupid crew.” He says that both he and Mr. Soon became upset at this and that Mr. Soon yelled at Ms. Browne. Mr. Lefrere was adamant, however, that Mr. Soon did not hit Ms. Browne and says that he had Mr. Soon within his sight throughout the confrontation. He couldn't see Ms. Browne and didn't see her fall but did hear her scream that she was hurt.
Having considered the evidence in the round and the demeanour of the witnesses, I say that the weight of the evidence is against Ms. Browne. I accept Mr. Lefrere's evidence that Mr. Soon did not assault Ms. Browne and say that I am not satisfied on a balance of probability that Mr. Soon assaulted her as she alleged.
The second incident is said to have occurred in April of that year when the owner and his guests were on board. According to the Captain's log, this was between April 5 and 15 and the incident is said to have taken place on the first or second night of the voyage. Ms. Browne states that Mr. Soon was unhappy that he had been served his starter and main course together as he had arrived to eat with the crew later than usual and he assaulted her by smashing her head twice against the CILIAM's galley door.
Mr. Lefrere's says that the argument between Mr. Soon and Ms. Browne arose because Ms. Browne had kept them waiting for their meal, saying that the food was not ready. On his evidence, after they had been made to wait for some time, Mr. Soon got impatient and went into the galley to confront Ms. Browne.
His evidence is supported by Ms. Rudback who recalls that Ms. Browne made Mr. Soon and Mr. Lefrere wait for about an hour for their...
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