JUDGMENTS

Civil-personal injuries. Appellant-international consultant marine engineer. Appeal from Judge’s dismissal with costs of Appellant’s claim for damages for injuries suffered from fall to ground from Respondent’s vessel in dry dock in third-party’s shipyard, dismissed with costs, to be taxed if not agreed. Vessel in care, custody and control of third-party shipyard. Respondent required third-party’s consent to enter shipyard and access vessel; facilitated Appellant’s entry. Relationship between Appellant and Respondent. Judge’s findings upheld: Appellant was not employee and/or independent contractor of Respondent; Appellant inspecting vessel in hope his resulting report/quotation would secure acceptance of his future services by Respondent. Respondent’s duty of care to Appellant. Even if Respondent owed a duty of care to Appellant and third-party shipyard was in breach of its own duty of care to Appellant, Respondent not in breach of its duty of care to Appellant: (i) third-party shipyard was competent and experienced, of which Respondent had personal knowledge; (ii) Appellant was experienced international consultant marine engineer; Respondent entitled to expect Appellant would recognise circumstances of compromised safety and act accordingly.

Civil Law- Appeal allowed: Judge’s dismissal of A.’s claim for loss and damages for wrongful termination of contract of employment set aside. A.’s claim for B$180,000 allowed. Costs: R. to pay A.’s costs below and on appeal, to be taxed if not agreed. A. employed on five-year fixed term contract: no express termination clause; incomplete/missing text. R’s letter to A. of termination of employment asserted A. redundant. Now, R asked Court to imply term in contract of right to termination of employment without cause on notice payment in lieu. Implying term in contract as a matter of fact: test is ‘necessity’; reasonableness is a necessary requirement, but not of itself sufficient to imply a term. Judge erred in relying on s. 92(f) of Evidence Act, Cap.108; written contract not required for contract of employment. Judge erred: in considering terms in contracts of employment of two other employees; finding them to have ‘standard and uniform’ terms; and implying the termination clause there provided into A.’s contracts of employment. Those contracts were different from each other and were not standard and uniform terms. No evidence A. had any knowledge of any of those terms. Term implied by judge, that Respondent had right to terminate Appellant’s employment without cause, not justified in law and failed to meet ‘necessity’ test of implication of terms in fact.

• Default judgment regularly obtained – Allowing appeal from Registrar, Judge set default judgment aside; O. 13, r.8;
• Test in law in Brunei for setting aside default judgment regularly obtained – without fettering Judge’s wide discretion and save very exceptionally, a default judgment regularly obtained will not be set aside unless the defendant demonstrates a defence with a ‘real prospect of success’ – there is no point otherwise in setting aside the default judgment;
• Test derived from application of English and Brunei authorities – Application of Laws Act (Cap. 2) considered;
• Judge mis-stated test but any error of law on the part of the Judge was neither material nor, still less, crucial;
• Judge erred in fact in determining that: there was a triable issue; Appellant bore burden of proving existence of Sub-Contract between parties; Appellant was required to do so at trial. The Appellant having adduced the Sub-Contract in evidence, and the Judge having rejected the allegation of forgery, there was nothing to impugn its existence;
• Court of Appeal entitled to intervene;
• Appeal allowed – default judgment restored.

Civil: costs of trial; A. awarded damages against Rs for personal injuries but A. 30% contributorily negligent.; Judge ordered costs to A.; O. 59, r. 3(2), RSC-Court’s power to order that part of the costs should not follow the event. Court ordered discount of 10% from Order of costs to Rs for increased costs of trial of contested contributory negligence.
Order: Rs to pay A. 90% of A’s costs.

Civil Procedure-Costs:

(i) Trial-Order 22A, r. 9(3) of Rules of Supreme Court, Cap. 5 not applicable – only offer to settle proceedings was from 2nd R. for BND 85,000; judgment for A. for BND 124,529.92, with interest and costs, more favourable than terms of offer; 1st / 2nd R.’s claim for discount of costs- relevance of J.’s contested finding of A.’s contributory negligence / rejection of some heads of claim; Directions: parties to file submissions in 7 days.

(ii) Court of Appeal – A’s appeal dismissed; A. to pay Ast / 2nd Rs’ costs on standard basis, to be taxed if not agreed.

Headnote: Civil Law A.’s appeal dismissed. Appeal against J.’s finding of contributory negligence and assessment of 30% liability; failure to award damages for Future Loss of Earnings, Loss of ability to carry out DIY, Loss of salary-2018 to 2023; quantum of damages for Loss of Earning Capacity too low

Held: Appellate Court does not interfere with judge’s findings of facts, unless judge is wrong in principle, having heard all the witnesses, has misapprehended the facts or is otherwise plainly wrong.

Contributory negligence: 2nd R. conducted safety briefings-warning to stay 3-5 from operating excavator; in standing 1 m. from operating excavator A. in dangerous position- careless. J.’s assessment of 30% liability not plainly wrong.

Loss of Future Earnings; in choosing to resign from R.’s employment, leaving Brunei to return to Indonesia, two years after returning to work on full salary performing ‘light duties’, A. chose ‘risk of unemployment’, which occurred: A. did not mitigate his loss. J entitled to dismiss his claim.

Loss of ability to carry out DIY- J. entitled to find no evidence to support claim.

Loss of salary, overtime and benefits- September 2018-2023: J entitled to reject claim on basis of A’s choice to resign from R’s employment, leave Brunei and return to Indonesia with associated ‘risk of unemployment’.

Loss of Earning Capacity-quantum: J.’s award of B$40,000 was amount sought by A. at trial. J.
not plainly wrong.

Costs: parties directed to file written submissions.