New trial refused in damages for driver

Press, 19 May 1984, Page 4

New trial refused in damages for driver

An application by 11 members and former members of the Canterbury Drivers’ Union for a new trial in the claim for damages against them by Patrick Martin O’Boyle has been refused by Mr Justice Roper in a reserved decision given in the High Court yesterday. Mr O’Boyle, aged 46, unemployed, was awarded damages of $52,400 against 11 defendants for incidents which occurred after Mr O’Boyle refused to pay what was later ruled as an illegal levy of 25c a week which was later increased to 95c.

At the time Mr O’Boyle was employed as a tanker driver at the Mobil Oil depot in Linwood and was subjected to systematic harassment by members of the union over a considerable period, according to evidence given during the seven-day trial. The jury found that the 11 defendants had conspired to injure Mr O’Boyle by making him pay an unlawful levy, by causing him mental and physical suffering, having him lose the right to attend union meetings and exercise the privileges of members, and putting his job with the Mobil Oil Company in jeopardy.

The defendants were Peter Reginald Liggett, secretary of the Canterbury Drivers’ Union, Daryl Collins, former president of the union, Rodney Kennedy Root, Ronald John Rogatski, Murray Allan Rayner, Kevin Maxwell Penn, Roger Frank Carson, Brian Richard Bennison, Robert William Michael Taylor, William Douglas Lynn and George Edward Bloomfield.

The hearing of the claim for damages of $66,000 against the 11 men was held in December, last year. On March 12, 1984, the defendants applied for a non-suit or alternatively an order for a new trial.

Messrs A. A. P. Willy and I. Brooks appeared for Mr O’Boyle, and Messrs B. McClelland, Q.C., and P. H. B. Hall for the defendants.

In his decision, Mr Justice Roper said that Mr O’Boyle was employed as a tanker driver at the Chapmans Road depot of Mobil Oil, Mr Liggett was secretary of the union, Mr Collins, who worked for B.P. Europa, was at one time president of the union, and the remaining defendants were tanker drivers employed by either Mobil or Shell operating from the Chapmans Road depot. Some held positions in the union such as delegate.

Although tanker drivers had their own award they had no separate union and were simply members of the general Drivers’ Union.

“I understand that the position has now changed and tanker drivers work on their own account on contract, but that is by the way,” His Honour said. After outlining the jury’s award his Honour said that the result was an over-all award of $46,000 general damages and $6400 punitive damages. Judgment was entered for Mr O’Boyle in accordance with the jury’s verdict and the question of costs and interest was reserved.

Dealing with the issue in the defendants’ motion that there was insufficient evidence as to damage, Mr Justice Roper said that Mr O’Boyle’s problems began when, at a union meeting in August, 1980, he challenged the validity of a union levy and the uses to which it was being put. It was established at the hearing that the levy was indeed unlawful. Matters came to a head when Mr O’Boyle accused Mr Liggett of misapplying the proceeds of the levy in the sense that instead of the money being used as a welfare fund it was used to defray the cost of union delegates’ attendance at meetings in Wellington. “Mr Liggett and Mr O’Boyle’s fellow tanker drivers for no valid reason I could see, chose to regard Mr O’Boyle’s accusation in a much more seriousl light, namely misappropriation by Mr Liggett,” said his Honour.

In a letter to Mr Liggett of October 7, 1980, Mr O’Boyle made it perfectly clear that misappropriation was certainly not alleged and had expressed regret that such an inference might have been drawn. “Despite that, Mr Liggett, in a conversation with a Mr Sadler on March 23, 1981, was still asserting that Mr O’Boyle had called him “a — thief.” It might be inferred that Mr Liggett chose the continued adoption of that stand as justification for the treatment Mr O’Boyle suffered,” Mr Justice Roper said.

From August 1980 until he left the Chapmans Road depot in January, 1982, Mr O’Boyle was under siege. No- one would work with him and any verbal communications were more often than not in the form of the most foul and menacing abuse, as was clearly demonstrated in the tape recordings produced at the hearing. On occasions Mr O’Boyle was physically assaulted

and his tanker was interfered with. He was barred from some union meetings. The other drivers went on strike in an attempt to get him dismissed. In January, 1982, the oil company initiated a tanker owner-driver scheme, but Mr O’Boyle was not offered a contract because of his length of service. He was transferred to Lyttelton as a stock control clerk and, although there were no tanker drivers employed there, his ostracism continued to the extent that management suggested that he take meal breaks at different hours to avoid the situation where everyone in the canteen walked out when Mr O’Boyle entered.

Because he could not continue to face the isolation, Mr O’Boyle left the job in June, 1982. Up to the time of the hearing in December, last year, he had not succeeded in obtaining employment. There had been considerable coverage in the media regarding Mr O’Boyle and his union problems and it seemed that employers were wary of engaging him.

As for mental and physical suffering Mr O’Boyle accepted that the various assaults caused no great physical harm, so that mental suffering was the main issue, and the jury was entitled to infer on the evidence that the quality of Mr O’Boyle’s life had been seriously affected over a prolonged period. Evidence had been given by Dr Reece, Mr O’Boyle’s family doctor, that he had deteriorated from “a very healthy man with few ailments” to one who became tense and depressed, insomniac, with no interest in life, unhappy, agitated, and who became thinner and thinner.

Mr O’Boyle gave evidence to the same effect and Mrs O’Boyle referred to his nightmares and to his deteriorating physical and mental health. There could be no doubt that Mr O’Boyle’s employment was placed in jeopardy, particularly by the strike, and the unlawful interference with his tanker and generally by the tension and ostracism generated in the workplace. After some initial problems Mr O’Boyle was allowed to attend union meetings, where he was subjected to abuse, but was excluded from industry and job meetings. “I therefore conclude that there was ample evidence to support the jury’s findings that Mr O’Boyle suffered injury at the hands of the defendants,” Mr Justice Roper said.

After Mr O’Boyle had challenged the legality of the levy a message was passed to him by Mr Rogatski to the effect that Mr Liggett had said that if Mr O’Boyle did not pay the levy they would “have his ticket and have him down the road.”

At a meeting after the strike Mr R. Campbell of the Drivers Federation had indicated that the union was close to being deregistered and that there was no way that Mr O’Boyle could be legallj’ dismissed from the union.

During the discussion as to how Mr O’Boyle could be removed there were comments as to what had happened to “scabs” in the 1951 waterfront strike. At one stage Mr Liggett had said: “I’ll give him three months before his wife is on his back begging him to leave. He will have a few sleepless nights, I can tell you that.” Later a letter Mr O’Boyle sent to Mr Liggett advising that he was not going to pay the levy found its way onto the noticeboard at Mobil. An inference could be drawn that Mr O’Boyle’s conciliatory letter of explanation to Mr' Liggett concerning the use of the word “misapplied” was deliberately kejpt from at least some of the g324union members, including Mr Rogatski. From remarks made by Mr Collins, a tanker driver who was president of the union at that stage, it could reasonably be inferred that anything the drivers could do to hasten Mr O’Boyle’s departure had Mr Collins’ support and the drivers knew it.

Mr O’Boyle was awarded $46,000 general damages and $4600 punitive damages, his Honour said.

“Having regard for the quite outrageous manner in which the defendants conducted themselves over a prolonged period I believe it is impossible to say that the punitive damages awarded cannot be supported,” said Mr Justice Roper. It had been said that immoderate awards of punitive damages were to be discouraged, but he saw nothing immoderate in the present award. Dealing with general damages his Honour said the award was somewhat higher than he would have made. That in itself was no basis for finding the award excessive.

The case was an unusual one with no ready guidelines available. He was not satisfied that the jury failed to take a reasonable view of the evidence and so reached a verdict no reasonable jury could find, said his Honour.