Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 163 of 2013

Browne v. Ciliam Ltd. (CL 163 of 2013) [2017] TCASC 17 (30 March 2017);

Law report citations
Media neutral citation
[2017] TCASC 17
Coram
Ramsay-Hale, CJ

Action No. CL-163/13 IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS

BETWEEN:

KARA LOUISE BROWNE

Plaintiff

and-

CILIAM LIMITED

Defendant

Mr. Martin Green for the Plaintiff

Mr. Stephen Wilson QC for the Defendant

Heard on the 18-25 February 2016

BEFORE THE CHIEF JUSTICE, THE HON. MARGARET RAMSAY-HALE

JUDGMENT

1.             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.

2.             The principal of the Defendant Company is Swiss businessman, Pierre-Yves Firmenich. The captain of the s/y 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.

3.             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.

4.             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.

5.             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.

6.             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]

PRELIMINARY SUBMISSION

7.             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.

8.             On the evidence, Ms. Browne was represented by Counsel and expressed herself to be satisfied in correspondence with her employer, Mr. Firmenich,1 after matters had been dealt with at the police station, saying,

"...Andre was completely fair in my dealings today and I do appreciate his co-operation."

9.             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.

1B/80B

10.          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.

11.          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.

THE FACTS

12.          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.

13.          The first incident occurred in February, 2012 while the vessel was docked at the Marina Yacht Haven in Thailand.

14.          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.

15.          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.

16.          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."

17.          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.

18.          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.

19.          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.2

20.          Mr. Lefrére'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.

21.          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 dinner. During that time, she says, and I accept, Ms. Browne baited Mr. Soon, calling him an alcoholic and challenging him to come and show her his strength, telling him he wasn't a man. At the end of it, she says, Mr. Soon entered the galley where he and Ms. Browne got into an argument.

22.          Ms. Browne's screaming brought the Captain from the deck, where he was having dinner with the owner and his guests, to the galley. Ms. Browne says she told him that Mr. Soon had just smashed her head against the galley. The Captain, however, recalls that she told him Mr. Soon had pushed her against the galley wall and grabbed her throat. Mr. Green invites me to find that Mr. Soon admitted the allegation by silence as the complaint was made by Ms. Browne to the Captain immediately and in Mr. Soon's presence, and Mr. Soon failed to deny it. Mr. Soon explained the failure, saying that although he hadn't touched Ms. Browne, he accepted the warning as he had been at fault in creating a situation at a time when the owners were on the boat: "It was not professional."

23.          No-one witnessed the alleged assault. Although Ms. Browne asserts that Ms. Rudback was present and told the Captain she had seen it happen, Ms. Rudback in her evidence says she wasn't present and had only heard Ms. Browne say she had been hit.

24.          Mr. Lefrere didn't see Mr. Soon assault Ms. Browne either but he said that the incident ended with her running to her cabin, crying that Mr. Soon had hit her.

25.          In support of her case, Ms. Browne relied on the evidence of Riccardo Benoni, who was a member of the crew on the Silandra V, and who gave evidence on her behalf in which he stated that he saw her after that cruise, when the CILIAM docked in Keppel Bay Marina. He says she visited him on board his vessel and told him that she had been assaulted again by Mr. Soon. He says that he noticed a big red bump on her head and told her to report it but she said she preferred to keep the situation private for the sake of her boss. The startling thing about that evidence is that nobody saw or mentioned any mark on or injury to her face, not even Ms. Browne. Further, as Mr. Wilson submits, he would have seen Ms. Browne some 8 to 10 days after the assault by which time any redness would have resolved. I reject his evidence and reject, too, Ms. Browne's assertion that Mr. Soon grabbed her head and banged it into the galley wall which conflicts with the complaint she made to the Captain on the night of the incident.

2 Para 6 Witness statement

26.          Notwithstanding her exaggeration of the incident and misplaced reliance on Mr. Bennoni, I find that Ms. Browne's contemporaneous statement, that Mr. Soon had hit her, taken together with Mr. Soon's silence when she told the Captain that he had grabbed her, is evidence which supports a finding that she was assaulted by Mr. Soon. I say I am satisfied on a balance of probability that Mr. Soon pushed her against the wall as she told the captain.

27.          After that incident, according to Ms. Rudback, they were all getting tired of her and her behaviour so she, Mr. Lefrere and Mr. Soon began spending more time together without her. Indeed, Ms. Browne in her evidence stated that Ms. Rudback spent all her time on the deck with the rest of the crew, smoking, instead of helping below.

28.          There were no more conflicts and at the end of 2012, Ms. Browne presented Mr. Soon with a photo album memorialising all the good times they had on board, and heaping him with praise, as a memento mori as he was due to leave the CILIAM in January.

29.          In January 2013 when the boat was in Sulawesi, Indonesia, Ms. Browne says that she and Mr. Lefrere went ashore. When they returned to the boat several hours later, an argument broke out between the Captain and Mr. Lefrere during which each, according to Ms. Browne, had the other by the throat. In the course of the altercation, Mr. Lefrere smashed his guitar over the Captain's head and then threw it overboard.

30.          Ms. Browne alleges that as the Captain left the aft deck, he grabbed her by the throat and said, "You're next."

31.          Both the Captain and Mr. Lefrere disagree with her account of their quarrel. Mr. Lefrere says that the Captain had been expecting him to return with the tender shortly after he took Ms. Browne to shore, but there was a party at the resort near the beach where they had anchored and he returned to the vessel only long enough to pick up his guitar and head to the shore again. When he returned to the boat hours later smelling of alcohol, the Captain was angry and upset and they quarreled. He accepted that during the quarrel he threw his guitar overboard and explained that he was quite "sensitive" at the time because he had had news that his father was ill, he was a little bit tipsy and he was having an argument with his Captain which he had never had before. He rejected the suggestion that he hit the Captain over the head with it.

32.          The Captain's own account of the quarrel with Mr. Lefrere is on all fours. Of the allegations made him against Ms. Browne he says, '’I have never touched or assaulted anybody in my life and certainly not in the working environment of CILIAM.3"

3Para 8 Witness Statement

33.          During the confrontation between the Captain and Mr. Lefrere, the three were at the back of the boat. The argument came to an end when Ms. Rudback and her friend Neerlosh intervened. No-one in the group saw the Captain grab Ms. Browne's neck and Ms. Browne did not cry out or otherwise protest.

34.          There is nothing in Ms. Browne's narrative which would explain the attack upon her by the Captain or the seeming threat that he issued. In the absence of any reason or motive for his conduct being suggested in the narrative, the allegation is that he was guilty of a bizarre act of random aggression. Mr. Green suggests that her narrative is supported by the Captain's acceptance that a minor confrontation had taken place between him and Ms. Browne 4 on that occasion. This is not, to my mind, a fair characterisation of the Captain's evidence which was that he might have spoken to her, might have said something like "leave me alone" "don't bother me with anything" "I've had enough," as he was very agitated after speaking with Mr. Lefrere.

35.          From the Captain's evidence and his demeanour in Court, I formed the view that he was a man who measured his words and his actions and was someone who was unlikely to have committed the sort of random aggression against a member of his crew that was described by Ms. Browne. In determining what weight to give to his evidence, I also took into account the fact that he was a man of mature years who had been, up to the time of hearing of this action, Captain of the vessel for some 12 years and that he successfully retained members of his crew: Mr. Soon had sailed with him for some 7 years, and Ms. Rudback had remained on the boat after Ms. Browne left and was still there as at the date of trial as was Mr. Lefrere, who had returned to the boat in 2015 as engineer. Given his crew's and his employer's confidence in him and Ms. Browne's own earlier good opinion of him "as being completely fair" as she said in her email to Mr. Firminich,5 I say I accept him as a witness of truth and wherever their narratives conflict, I prefer his evidence.

36.          In February 2013, the vessel sailed from Langkawi, where it had been in a shipyard for maintenance work to be done, to Phuket in Thailand. Ms. Rudback was joined by her friend Sonia. When they were at anchor, Ms. Rudback, Sonia, Mr. Lefrere and Mr. Necheb headed to shore to have drinks. Ms. Browne accompanied them.

37.          Ms. Browne's evidence is that after visiting a few bars they headed back to the boat. She and Ms. Rudback had an argument on the beach during which she called Ms. Rudback names. Mr. Green suggested in cross-examination that the assault was unprovoked as Ms. Browne was doing yoga on the beach when Ms. Rudback hit her, but this suggestion found no support in either Ms. Browne's witness statement or her viva voce evidence.

38.          According to Ms. Rudback, she was provoked - had reached her limit, as she says - by Ms. Browne who had been insulting towards her the entire evening, continuing a pattern of antagonistic behaviour which Ms. Rudback and Mr. Lefrere both say began shortly after the women joined the boat in 2011. In answer to Mr. Green, she said,

"I gave her a black eye. I think it was the build up from the year of Ms. Browne being horrible to me. That evening she would not let anyone of us be calm. She went from me to Achille (Mr. Lefrere), insulting us.

4Para 4 Submissions on Liability

5Supra para 8

"To me she said, "You fucking slut" pointing at me.

"She would be in my face when she was drinking....

"She got bored and went on to Achille. He was very tired after 45 minutes of it and wanted to go home so we left."

39.          When they got to the beach, Ms. Rudback says that Ms. Browne was following her as they went, screaming names at her and persisting in the abuse even after she asked her to stop. Ms. Rudback said,

"She wouldn't stop. I could feel her in my neck. I had been drinking as well. I had a bad reaction. I turned around and I hit her in her face."

40.          Mr. Lefrere supported Ms. Rudback's version of events. According to him, Ms. Browne was insulting Ms. Rudback using Australian slang, saying,

"You f...ing slut. You shag everyone you see. You're a cow. You have no respect. You shouldn't be in the industry. You're not strong enough. You're a bitch."

41.          He said that the whole way back to the beach she continued her insults, saying that Ms. Rudback “shouldn't be on board, that the owner liked her and that they would all have to f..k off."

42.          He observed that when she was drunk, Ms. Browne repeated things on a loop. At the beach, he couldn't raise the Captain so he swam to the boat to get the tender. When he returned to the beach, he saw that Ms. Browne had been injured and said that she kept repeating, "She hit me, she hit me, she hit me."

43.          Ms. Browne suggested6 that the incident with Ms. Rudback occurred because of the tension which had sprung up between Ms. Rudback, Mr. Soon and herself in consequence of her discovering them in bed together. In her testimony, however, Ms. Browne confessed her antipathy towards Ms. Rudback from the very beginning which on Ms. Rudback's evidence led to tensions within two weeks of their joining the CILIAM. She blamed their inability to get on, on personality differences but the evidence suggests that the more cogent reason for Ms. Browne's dislike of Ms. Rudback was that she didn't give her the respect she felt a stewardess should accord the chef and spent all her time on the deck with the crew, while she remained in the galley.

44.          From Ms. Browne's evidence, I draw the conclusion that she resented Ms. Rudback's easy relationship with the rest of the crew and the many hours she spent on the deck in their company. It is likely that that resentment was the impetus behind her attempts to denigrate Ms. Rudback, repeatedly asserting that she was a slut who had shagged everybody on the boat and was only able to make friends by opening her legs. Having had the advantage of observing the demeanour of the witnesses as they gave evidence and having considered the evidence as a whole, I reject Ms. Browne's evidence that Ms. Rudback and Mr. Soon had a sexual relationship which is denied by both of them and unsupported by any evidence and I reject her evidence that she was the victim of an unprovoked attack.

6Para 10 Witness statement

45.          Having reviewed the evidence, I say I prefer Ms. Rudback's evidence that she hit Ms. Browne because she had been pushed to her limits by Ms. Browne.

46.          The night ended when Mr. Lefrere took Ms. Browne back to the boat. His evidence is that she told him that Ms. Rudback had assaulted her, then said, "Nobody believes me," and threw herself off the tender into the sea. He and Mr. Necheb struggled to get her back on the tender as she was drunk and agitated. Eventually, he pulled her aboard, returned to the boat and she went to bed.

47.          The next day Ms. Rudback reported the incident to the captain. The captain says he spoke to both women and sent both ashore. Ms. Browne states that she went to see a local doctor and reported the incident to the police7 and on the 26th, she went to see the Captain on the boat which she claimed was now berthed at the Marina Yacht Haven. She said he didn't want to speak to her and told her that he was taking her conversation with him as giving three months' notice of her resignation.8

48.          The Captain says that the boat was not at Marina Yacht Haven on the 26th as they left Na Hang on the Monday to clear immigration at Challong Bay, some 4 hours away, and that they sailed in Marina Yacht Haven on 4 March 2013 when Ms. Browne rejoined the boat. Adapting his cross-examination to the Captain's evidence, Mr. Green suggested that she took a tender to the vessel at anchor on the 26th and tried to speak with him. It is difficult to understand this line of cross-examination as it contradicts Ms. Browne's version of events and has the effect of undermining her evidence of the conversation which she says took place on board on the 26th.

49.          Mr. Green also suggested in his cross-examination of the Captain that on the 27th February, he and Ms. Browne had a rendezvous at a café to discuss the incident between the two women, but this suggestion was also inconsistent with Ms. Browne's evidence that she met the captain at a café after the first occasion on which she alleges she was assaulted by Mr. Soon.

50.          Having reviewed the evidence I say I prefer the Captain's evidence and find that he told her to leave the boat after the incident with Ms. Rudback was reported to him and that he spoke to her by phone at some later stage and told her to stay at the hotel for a week. I am also satisfied that, when he spoke to her the day after the accident, he told her if she was going to behave like that then they would have her resignation and invited her to consider resigning, calling it commonsense for her to resign as she was9 responsible for the problems on board.

51.          Ms. Browne was unhappy with the Captain's response and emailed the owners to advise that she had been beaten by Ms. Rudback. She stated that,

"This physical abuse is not the first time my your (sic) crew members or Captain (sic) and I am composing another email for you in which I will have you understand how I have been treated whilst crew member on board your boat.

"I want to discuss all matters at the soonest as I believe you may want to solve this issue privately."

7Para 9 Witness statement.

8Para 10 Witness statement

9In his viva voce testimony he described her as being “in the middle” of most of the situations on board whenever there were arguments or problems.

52.          On one construction of that last sentence, it would appear that she was seeking a financial settlement from Mr. Firmenich for the injuries inflicted by Ms. Rudback and what is clear from her reply is that she was disappointed that he responded by urging her to act professionally and to continue working with Ms. Rudback in the best interest of the CILIAM: "FYl-now I didn't expect this."

53.          On 4 March, she rejoined the vessel. She tried to speak with Captain Luthy but he said he had no time as they were very busy docking the boat. She spent the day in her cabin, packing and later went to the aft deck. The crew finished work at around 7, 7:30 pm. Guests came on board as they hosted a party for Mr. Lefrere who was leaving his employment on the boat. Ms. Browne went on the deck and had drinks with the guests.

54.          She says that Mr. Soon approached her and asked to see the email she had sent to the owner as the Captain had told him that she had told Mr. Firmenich about this relationship she said he was having with Ms. Rudback. She said she hadn't sent any such email and she showed him the email that she had sent on the 27th. She said she felt terrified by Mr. Soon and went to speak with her friend Jonathan who was one of the guests on board.

55.          At 9:30, the group went ashore for dinner leaving Ms. Browne on the deck with Ms. Sovany who remained on board as her son was sleeping in their cabin.

56.          In her witness statement, Ms. Sovany states that Ms. Browne drank a lot of alcohol that evening and wasn't able to control herself. In her viva voce evidence she says that, during that conversation, Ms. Browne talked about the incident with Ms. Rudback and grew "a bit aggressive" towards her because she wouldn't take her side. Ms. Browne said that "her story on the CILIAM wasn't going to finish like this" and that she would go to the police and report the incident and make a complaint about Mr. Soon, too, "as it was his fault". The mention of Mr. Soon upset Ms. Sovany who told her "it was bad to say things like that."

57.          She said Ms. Browne started to speak loudly and to gesticulate, saying that she already had a lawyer and everybody on the boat would get fired and she wasn't going to leave the CILIAM. She would not stop talking and Ms. Sovany no longer felt comfortable with her. She began to wonder if Ms. Browne was trying to start a conflict with her because Ms. Browne then told her that Mr. Soon and Ms. Rudback were having an affair. At this point she called Mr. Soon to ask him to come back to the boat.

58.          Ms. Browne, when cross-examined by Mr. Wilson, denied saying the words attributed to her by Ms. Sovany. She denied, in particular, that she told Ms. Sovany that Mr. Soon and Ms. Rudback were having an affair. She said she would never do so. She contradicted herself later in cross, saying that the Captain had asked her if she had told Ms. Sovany and, when she told him she hadn't, he told her that she should. This assertion sits uneasily with her earlier evidence that only she knew of the relationship between Ms. Rudback and Mr. Soon. Having denied telling Ms. Sovany of the relationship, she appeared to contradict herself again in cross-examination, saying that what she said to Ms. Sovany was, "I think you know," because Ms. Sovany had asked her about Mr. Soon and Ms. Rudback's relationship throughout the year. Her evidence is contradictory and I reject it, preferring Ms. Sovany's account.

59.          Ms. Browne says when she realised that Ms. Sovany was calling Mr. Soon, she asked her not to call and told her that she wanted to leave as she was getting really scared. She said,

"I knew Jaan was already drunk and believed he would try to hurt me,"

60.          She gave no reason why he should do so, as on her case, she hadn't told Ms. Sovany about the alleged affair and she had shown him an email that made no mention of it.

61.          Despite this fear, she made no attempt to leave the deck and seek the safety of her cabin. Instead, she remained on the deck until Mr. Soon returned to the boat. On her case, when Mr. Soon came on the deck he started arguing with and pushing Ms. Sovany who he then pushed aside before he came running down the boat towards her, screaming, "You fucking bitch" and that, scared for her safety, she ran and "instinctively jumped into the water."

62.          She says that while she was in the water, Mr. Soon attempted to release the line on which she was holding on to and was stopped by Ms. Sovany. Then Mr. Lefrere suggested they take her stuff out of her cabin and both men then removed personal items including her computer and her Ipad and threw them at her while she was in the water. Mr. Soon, she alleges, threw her camera case at her, which hit her in the face which caused her to cry in pain and bleed profusely. She said that Mr. Soon would not let her get out of the water and threatened to beat her if she did.

63.          This allegation against Mr. Lefrere was made for the first time in cross-examination. She did not report him to the police as she did Mr. Soon, Ms. Rudback and the Captain and in her correspondence to Sophie Firmenich on the 18 March 2O1310, she wrote that she wanted to be compensated by Mr. Soon - and no-one else - for all the other items that she discovered were missing after that night. It was an inconsistency in her evidence that remained unexplained and unresolved at the end of the trial.

64.          Mr. Soon and Ms. Sovany both deny that Mr. Soon threw anything at Ms. Browne who was in the water. Both Ms. Sovany and Mr. Soon accept that they didn't go to Ms. Browne's aid immediately even though she was screaming for Ms. Sovany to come and help her. Eventually, Ms. Sovany did go down to the dock and helped Ms. Browne out of the water. She said she noticed that Ms. Browne had a cut over her right eye and told her she was bleeding. Ms. Browne then ran to her cabin. Ms. Sovany followed and gave her a towel packed with ice for her head.

65.          Ms. Browne is described by everyone who was on board as being hysterical after she came out of the water. She demanded that the Captain telephone her mother in Australia, which he did. She spoke to her mother briefly then he and Ms. Sovany tried to calm her down and get her to change out of her wet clothes before taking her to the hospital.

66.          Ms. Browne insists that during this time they were all barring her cabin door to stop her from leaving her cabin while Mr. Soon was at her door, trying to force his way in. She says she was frightened for her life and screaming for security. Eventually she left with the Captain who was going to take her to the hospital but she jumped into a taxi and went to the hospital alone where she was treated for her head injury. She returned to the boat, packed some clothes and checked into a nearby hotel. She emailed Mr. Firmenich, and then telephoned her friend Michelle, who was a lawyer, before going to the police station to report the incident.

67.          At 9:30 the next morning, she attended at the boat with the police and an attorney in tow. The police invited the Captain, Mr. Soon and Ms. Rudback to attend the station which they did. Their passports were confiscated. Ms. Browne's evidence is that the local lawyer which she had retained sought to mediate for all of them. A document was drawn up which made provision for compensation to Ms. Browne for the items which were lost and four month's remuneration. It was also agreed that she would have her airfare back to France and that the Captain would contact the Insurance Company to settle her medical expenses occasioned by the injury. The Captain says he signed the document not as an admission that Ms. Browne was injured as alleged or that members of his crew had thrown items of her property into the sea, but because their passports had been seized. When the transaction was complete, the passports were returned.

10Bundle B. Page 29

68.          I reject Ms. Browne's evidence that she jumped off the back of the CILIAM because Mr. Soon advanced on her in a threatening way. Commonsense would suggest that if Ms. Browne were truly afraid of Mr. Soon, she would have gone back to her cabin rather than running past him to jump overboard. I say that I am satisfied on a balance of probability that Mr. Soon did not threaten or attack Ms. Browne but rather, that agitated by drink and her conversation with Ms. Sovany, she threw herself off the back of the boat, just as she had thrown herself off the back of the tender, careless that night, as she was on the other, of the possibility of causing harm to herself.

69.          I also reject her evidence that Mr. Soon caused her injury in the manner described. She was intoxicated and overwrought and, on Ms. Sovany's evidence which I accept, she was unaware that she was injured until Ms. Sovany told her. As she was unaware that she had been injured, it follows that she cannot identify when or by what means she came by her injury. Although the Defendant cannot say how she sustained her injury, the evidence was that the tender was pulled up at the back of the boat with its propeller protruding into the space where Ms. Browne had jumped.

70.          As she had compromised her claim for any lost or missing items, I need not go on to decide the veracity of her claim that anyone threw her things overboard but will say that I reject, outright, her evidence that Mr. Lefrere threw any items overboard as she did not say so in her witness statement or at the police station or in her email to Mrs. Firmenich. It was said for the first time in Court and appears to me to be a recent invention.

THE LAW OF VICARIOUS LIABILITY

71.          An employer can be held vicariously liable for an assault if the tort is "so closely connected with his employment that it would be fair and just" to do so: see Lister v Hesley Hall [2001] UKHL 22, per Lord Steyn, at para 28D.

72.          Mr. Green correctly submits that the notion that an employer cannot be vicariously liable for a deliberate tort of an employee is no longer good law but, as Lord Steyn was astute to observe, in Lister's case, Lord Salmond's formulation of vicarious liability does not cope ideally with cases of intentional wrongdoing: see para 20 D-E. Lord Steyn cited with approval the decision of the Canadian Supreme Court in Bazley v. Curry [1999] 2 S.C.R. 534 which had two central public policy considerations in mind, namely the provision of a practical and just remedy, and secondly on the desirability of deterrence. In Bazley, McLachlin J held that,

"The appropriate inquiry in a case such as this is whether the employee's wrongful act was so closely connected to the employment relationship that the imposition of vicarious liability is justified in policy and principle. From the point of view of principle, a prime indicator is whether the employer, by carrying on its operations, created or materially enhanced the risk of the wrong that occurred, such that the policy considerations of fair recovery and deterrence are engaged. In answering this question, the court must have regard to how the employer's enterprise increased opportunity to commit the wrong, and how it fostered power-dependency relationships that materially enhanced the risk of the harm."

73.          This theme was taken up again by the House of Lords on the last occasion on which it considered the issue in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 at para 34,

"The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability. Where the criteria are satisfied the policy reasons for imposing the liability should apply."

74.          The criteria for imposing vicarious liability on the employer was set out by Lord Phillips at para 35 of the judgment:

(i)            the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against that liability;

(ii)           the tort would have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii)         the employee's activity was likely to be part of the business activity of the employer;

(iv)          the employer, by employing the employee to carry on the activity would have created the risk of the tort committed by the employee; and

(v)           the employee will, to a greater or lesser degree, have been under the control of the employer.

75.          Although the cases of Helsley Hall and Catholic Child Welfare Society involved the sexual abuse of children, the courts have applied the test of vicarious liability enunciated in those cases to workplace assaults, Weddall v Barchester Healthcare Ltd., Wallbank v Wallbank Fox Designs Ltd. [2012] EWCA Civ 25 and more recently Yeung Mei Hoi v Tam Cheuk Shing [2015] 4 HKC 1. The cases now even extend liability to workplace assaults by non-employees: see Cox v Ministry of Justice [2014] EWCA Civ 132.

76.          With respect to the assault on Ms. Browne by Ms. Rudback, I say there is no question of vicarious liability attaching to the Defendant as there is no connection between Ms. Rudback's employment and the wrongful act: see Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25 where the Court held there was no liability in the employer where the employee was "acting personally and for his own reasons."

77.          The claim against Mr. Soon has been compromised but I would hold, having considered the authorities, that, with respect to the incident on April 2012 in which he grabbed Ms. Browne, that although the confrontation arose out of the manner in which she was performing her job, vicarious liability would not attach as Mr. Soon was not at that moment engaged in any act remotely connected to his employment on the vessel as an engineer. He had no supervisory remit for the way Ms. Browne did her job and, in assaulting her as the Court found, he was not in any way acting in the course of his employment.

SAFE SYSTEM OF WORK

78.          It is settled law that an employer owes a duty of care to provide a safe system of work: see Wilsons and Clyde Coal Co. Ltd. v English [1938] AC 57.

79.          This will extend to protecting an employee from the effects of workplace bullying as stated by Lord Slynn in Waters v Commissioner of the Metropolitan Police [2000] IRLR 720 at para 35:

"I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence. In White v Chief Constable of South Yorkshire Police [1999] IRLR 110, 125, 117 Lord Steyn stated:

"The rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of tort... The duty of an employer to safeguard his employees from harm could also be formulated in contract. In that event, and absent relevant express provisions, a term is implied by law into the contract as an incident of a standardised contract... But such a term could not be wider in scope than the duty imposed by the law of tort."

80.          The duty and standard of care was set out by the House of Lords in Baker v Quantum Clothing Group [2011] UKSC Civ 17, para 9 which cited with approval the decision of Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783, 5 KIR 401 where Swanwick J described the position as follows:

"From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

81.          In seeking to set the background to these events, Ms. Browne described the Captain as a poor communicator except after he'd had a few, at which point he became abusive, Mr. Soon as an habitual drinker who started drinking at 9 am every morning and Ms. Rudback as promiscuous and engaged in a sexual relationship which led to conflict between Ms. Browne and other crew members.

82.          The Captain's continuous employment with the CILIAM from 2002 up until the time this action was heard, belies Ms. Browne's description of him as a poor communicator who was abusive when drinking. It is inconsistent with his remaining in the employ of the CILIAM for the 14 years and his success in the yachting industry for 27. It is also inconsistent with his ability to retain crew: Mr. Soon worked on the CILIAM from 2005 to 2013. He should have left in January 2013 but stayed until April 2013 at the request of the Captain and the CILIAM's owner. Mr. Lefrere, who left the boat in March 2013, rejoined the crew in May 2015 as the engineer. Ms. Rudback, who joined at the same time as Ms. Browne, continues to work on the CILIAM. In her witness statement, dated August 2014, she states, and I accept,

"We have a great captain that gives us trust, confidence and encourages us to keep CILIAM in the best condition. And it is truly a pleasure to do so for such an exceptional owner and such a great captain. I have been working for CILIAM for almost three years now and I'm living the best life in the world..."

83.          I reject her description of the Captain which I find was contrived for the purpose of lending support to her assertions that discipline on board the CILIAM was lax and that he tolerated drunkenness on board.

84.          As to the allegations that Mr. Soon was an habitual drinker, she relied in proof of her assertion on the evidence of one Marcus Ackle who gave a witness statement to the effect that he made it a sport, when docked beside the CILIAM, to record the number of beers Mr. Soon drank before noon which, he says, numbered between 4 and 5.

85.          Mr. Soon accepts drinking a beer or two before noon and he may even have had more, but - and this is the critical thing- there is no evidence that whatever he drank affected his work performance nor his relationships with the Captain or the other members of the crew nor did it prevent him from establishing a long term personal relationship and raising his son on board with his partner, all of which he appeared to do well according to Ms. Browne's photographs. In that album, prepared at the end of 2012, she described him as 'a legend' 'the boss' 'the best' and thanked him for 'the great times.'

86.          I would go further and say that Ms. Browne was the only person who was so affected by alcohol that it was implicated in the events that she has narrated: she was heavily under the influence when the incident occurred on the beach and threw herself off the tender and again heavily under the influence when she jumped off the boat.

87.          I have already dismissed her allegation that Mr. Soon and Ms. Rudback had a sexual liaison which was, in my view, motivated by her dislike for Ms. Rudback.

88.          The essence of the claim is that she was subject to bullying and divers physical assaults which were unprovoked. The evidence, however, paints a very different picture which suggests that Ms. Browne is, at worst, a liar or, at best, completely lacking insight into her own behaviour.

89.          In the two encounters between Ms. Browne and Mr. Soon in 2012, the evidence is that it was her cavalier attitude to providing crew meals and her disparaging comments addressed to Mr. Soon as given in evidence by Ms. Rudback that elicited his angry response. While the provocation directed at Mr. Soon is not a defence to an assault, it gives his conduct a context which is sorely lacking in Ms. Browne's narrative.

90.          As to the incident with Ms. Rudback, the evidence shows that it was Ms. Browne who consistently engaged in bullying behaviour towards Ms. Rudback. Ms. Rudback says, and I accept, that it only took two weeks of working with Ms. Browne for her to be impolite and speak rudely to her and that she had many episodes with her up until 2012. Ms. Browne's admitted antipathy towards her did not change and on the night of the assault, Ms. Browne was vulgar and tiresome to a degree which pushed Ms. Rudback so far that she hit back, but with fists rather than with words.

91.          Ms. Browne's account of the incident on the beach demonstrates her readiness to play "the victim card," if I may be permitted to use that phrase. Her instructions to Counsel, to be gleaned from his cross-examination, were that she was sitting on the beach doing yoga when Ms. Rudback assaulted her, a suggestion unsupported by her witness statement or her viva voce testimony. It not only undermined Ms. Browne's credibility but exposed her willingness to create a narrative that would show she was the victim of unprovoked assaults and bullying by the crew. It supports the characterisation of her offered by Mr. Lefrere, with whom Ms. Browne got on well when she first joined the crew, who said that they would have long discussions during which he discovered that "none of the problems Ms. Browne talked about were ever her fault no matter whether it was with people on board, in her flat or with her friends." His observation finds an echo in the evidence of Ms. Sovany who said that Ms. Browne became upset with her for not taking her side in the matter of Ms. Rudback's assault.

92.          In summary, although Ms. Browne complains that she had been bullied by several crewmembers, the evidence of Ms. Rudback and Mr. Lefrere suggests that Ms. Browne was the bully, always disparaging the crew, and to Ms. Rudback in particular, dismissive of their needs and careless of her obligations to prepare meals for them.

93.          As to the Captain's response to the incidents that are proved, I consider that he responded in an appropriate manner. It is right that Mr. Soon was not reprimanded after the shouting incident in the galley in February 2012, but this was, on the Captain's evidence which I accept, because Ms. Browne, when she finally told him of the incident, said it was not relevant. The Captain gave Mr. Soon a verbal warning after the incident in April 2012 which was plainly adequate given that there were no more incidents between them until March 2013.

94.          With respect to the incident between the two women on shore and on their free time, the Captain reprimanded both of them for what he said was unacceptable behaviour and sent them off the boat for the day. His response plainly did not satisfy Ms. Browne just as Mr. Firmenich's response asking her to be professional and encouraging her to continue working with Ms. Rudback did not satisfy her. But in the circumstances where it was Ms. Browne's bullying that had finally goaded Ms. Rudback to strike back, the Defendant is not liable for the injury suffered.

95.          The Plaintiff's claim for damages for assault and for breach of duty to provide a safe system of work is dismissed.

96.          I will hear Counsel on the form of Order and on costs.

DATED 30 MARCH 2017

CHIEF JUSTICE