N992

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TIMSON NOKI

V

FRASER AND BARCLAY BROS

Mount Hagen
Woods J

14 May 1991
26 July 1991

NEGLIGENCE - Duty of care - Particular relationships - Master and servant - Duty commensurate with risk - Dangerous activity - Unreliable worker - Pile driving activity - Liability for injury to worker.

MASTER AND SERVANT - Liability of master for injury to servant - Safe system of work - Duty of care - Duty commensurate with risk - Dangerous activity - Unreliable and nervous worker - Pile driving activity - High standard of care required.

DAMAGES - Personal injuries - Particular awards of general damages - Crush injury to right arm - Loss of 100 per cent efficiency - Unskilled male labourer aged twenty-seven (twenty-nine at trial) - Award of K25,000.

The plaintiff claimed damages for personal injuries suffered in an accident while working on a pile driving barge. The plaintiff was employed to hold a surveyor’s prism against the pile while it was being driven in. A sudden change of direction of the barge resulted in the plaintiffs right arm being crushed between the crane mast and the pile.

The plaintiff, an unskilled labourer aged twenty-seven (twenty-nine at trial), suffered full impairment of his right arm.

Held

(1) An employer has a duty to provide a safe system of work, the duty of care in respect of which is to be measured against the risk being created: this risk includes both the nature of the work undertaken and the experience of the worker.

Smith v National Coal Board [1967] 1 WLR 871; [1967] 2 All ER 593 and General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189-190, followed.

(2) In circumstances where an unreliable and nervous worker was placed at risk in a position where any sudden movement could and did affect his balance resulting in a crush injury to his arm, the employer was liable.

(3) In the circumstances, general damages for pain and suffering and loss of amenities should be assessed at K25,000.

Cases Cited

General Cleaning Contractors Ltd v Christmas [1953] AC 180.
Harvey v Singer Manufacturing Co Ltd [1960] SLT 178.
Kopun v The State [1980] PNGLR 557.
Pep v Bakri Yamba [1987] PNGLR 485.
Rushton v Turner Bros Asbestos Co Ltd [1960] 1 WLR 96; [1959] 3 All ER 517.
Smith v National Coal Board [1967] 1 WLR 871; [1967] 2 All ER 593.

Statement of Claim

These were proceedings in which the plaintiff sought damages of personal injuries suffered in a work related accident.

Counsel

P Dowa, for the plaintiff.
K Kua, for the defendants.
Cur adv vult

26 July 1991

WOODS J: This is an action by a plaintiff, Timson Noki, against the defendants for negligence in the provision of a safe system of work as a result of which the plaintiff suffered severe injuries.

This plaintiff was employed by the second defendant as an unskilled labourer at Bialla in the West New Britain Province where the second defendant was constructing the Bialla Wharf. On 3 October 1989, the plaintiff was on a pile driving barge holding a surveying prism against a pile to enable a surveyor located some distance away to obtain a reading of the correct alignment of the pile before it was driven into the seabed. Whilst standing in the position the plaintiff alleges that the first defendant who was the site supervisor negligently caused the pile driver to be driven forward thereby crushing the plaintiffs right arm between the crane mast (leader frame) and the pile.

It is clearly established that employers owe a duty of care for the general safety of their work people in all the circumstances of the work. An employer must visualise that there is a real risk of injury to the worker if he, the employer, does not conduct his operation or manage his property and machinery with due care.

In the case before me now there was clearly a dangerous operation. The witnesses agreed that the plaintiff was in a situation which could be dangerous and the dangers of which the first defendant said he had warned the plaintiff. I was supplied by the defendants with a model of what I will call the pile driving barge and also with photographs and as well there were sketches of the critical sections of the pile driving machinery where the plaintiffs arm was crushed.

The first defendant was quite frank in his evidence when he said that:

"It is a dangerous job where the hammer is. There is no problem holding the reflector but he is directly in line if anything goes wrong. This is a danger in pile driving."

However the first defendant then went on to point out that the plaintiff was in no danger in a raking pile if his hand was on the barge.

The plaintiff was an unskilled labourer who had to stand on a plank jutting out from the barge next to the pile that was then being driven in and while holding the surveyor’s reflector with one hand against the actual pile had his other arm free to balance himself or hold onto the barge to avoid falling off the plank into the sea. Whilst the safer practice would be to check the alignment and then move the labourer off from beside the pile so the hammer could then continue driving, because the surveyor often wanted to keep a continual monitor of the alignment the labourer was often left out there standing next to the pile being driven whilst the heavy hammer was being lifted up and driven onto the pile. However this was not the actual situation when the accident happened; it was not the operation of the hammer being lifted and driven onto the pile but rather whilst the plaintiff was holding the reflector for the surveyor someone operated some winch machinery on the barge presumably in preparation for the operation of the hammer and the effect was that the barge moved forward against the pile and the plaintiff apparently had his arm in between the mast and the pile.

The law exacts a degree of care commensurate with the risk being created. Thus where there is a grave risk to life which cannot otherwise be avoided, reasonable care may involve great expense and/or trouble, but the responsibility cannot be avoided. Also more care may be owed to a person who is less experienced. Thus it can be said here that by shortcutting the normal safety practice by not bringing in the plaintiff off the danger area the defendant was clearly accepting the greater risk for which he could be liable.

Whilst witnesses for the defendant clearly emphasise that the plaintiff was warned of the dangers of letting his arm get into the position where it could be caught between the mast and pile, if the barge moved, an employer always has to face the fact that within the limits of what is foreseeable human behaviour must be taken into account. Thus, for example, when a dangerous operation is continually repeated or a person is left standing in a dangerous position there will be mistakes and accidental slips due to wavering attention or the urgency of completing the work. An employer must have in mind not only the careful man but also the man who is inattentive to such a degree as can normally be expected: see Smith v National Coal Board [1967] 2 All ER 593 per Lord Reid. And in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 189: "It is, I think, well known to employers ... that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve."

The plaintiff was already regarded by the defendant as unreliable. The first defendant said in evidence that the plaintiff was a bit afraid at times to do things and a week before the incident he had given him notice to get off the barge and the next day one of the defendant company’s other senior employees had said they still need him so he was given his last chance. So the defendant therefore kept on what could be deemed an unreliable worker and placed him in a position of some danger. It cannot therefore be said that the employer was not aware of the limitations of the plaintiff and also the risks that could be involved in such a dangerous situation.

At the beginning of the trial I allowed the plaintiff to amend his claim to plead the doctrine of res ipsa loquitur. However having allowed him to do that I find that that doctrine does not apply in the circumstances here. Res ipsa loquitur is no more than a rule of evidence based on commonsense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and commonsense says there must have been negligence. On the evidence before me there is an explanation of what went wrong. The plaintiff was working in a position of possible risk, someone operated some machinery which operated the barge winches and the barge thereupon moved forward and the plaintiffs arm was caught between something that was a part of the barge and the pile that was being driven.

It is submitted that because the plaintiff knew of the danger of the situation and had been warned a number of times he was the sole cause of his injuries because he had his arm where he was told not to put it. A good example of that would be where a man put his hands inside a moving machine to clean it which was the situation in the case of Rushton v Turner Bros Asbestos Co Ltd [1959] 3 All ER 517; but compare the case of Harvey v Singer Manufacturing Co Ltd [1960] SLT 178 where a demonstrator put his hand to a dangerous gap and Lord Patrick said (at 184):

"I do not see how it could be said that the sole cause of the accident was the negligence of the pursuer since the accident would not have occurred but for the continued existence of the nip."

So in the case before me now whilst the plaintiff may have had his arm in a position he had been warned about it was clear that he was an unreliable and nervous worker who was placed in a position of some risk where there could be sudden movement which could affect his balance so the employer must accept responsibility for the situation and the result when things did go wrong. I am satisfied that I can find that the employer took a risk in insisting on the system of work which left this particular plaintiff out where he was so that if something went wrong he could be injured and this was negligent.

I therefore find the defendant company liable for the injuries suffered by the plaintiff and I find no contributory negligence in the plaintiff.

On damages: The injuries suffered by the plaintiff were a severe crushing compound fracture of the right distal radius and arm and an open wound with large area of skin loss. He was hospitalised from 3 October to 6 December 1989. The plaintiff was left with a permanently useless right arm with 100 per cent loss of efficiency. His enjoyment of life and ability to live independently must be serious impaired. He would have suffered great pain at the time of the accident and will continue to suffer pain. This would be similar to the case of Kopun v The State [1980] PNGLR 557 where K18,000 general damages was awarded and Pep v Bakri Yamba [1987] PNGLR 485 where for 50 per cent loss of efficient use of left arm K15,000 general damages was awarded. I would assess K25,000 general damages.

The plaintiff had been employed as an unskilled labourer earning K147.85 per fortnight although I note he had no permanency of employment. However he will be unable to secure any further employment as he has no skills and further he will be limited in assisting with any subsistence activity in his home.

He is now twenty-nine years of age and would have a life expectancy till sixty years of around thirty-one years, but a working life of twenty-six years.

Whilst he was earning K147.85 per fortnight that is not the normal wage for an unskilled labourer and I note from the plaintiffs evidence that the wages included a lot of overtime. Further it appears from the evidence that he would be terminated if not before at least when the particular job was finished. Allowing what he was paid following the accident and accepting that he may not have been terminated before March 1990 his loss was K841.94.

From April 1990 on he may have been able to secure some employment but if so there is no evidence to suggest it would be any more than the minimum rate of pay as per the evidence of A Joel namely K116 per fortnight.

So I would allow an amount of K116 per fortnight from 1 April 1990 to the date of judgment being K4,002.00.

Future economic loss would start at the figure of K116 per fortnight for twenty-six years using the 3 per cent tables. This totals K54,926. However this amount must be discounted for contingencies. The plaintiff was an unskilled labourer and the defendant had already found him unreliable and had proposed terminating him so there would be the very real prospect of periods of unemployment. There would also be the prospect of early retirement or death. With the shortage of jobs I see little or no prospect of an unskilled man with a permanently useless right arm gaining employment. I therefore assess the contingencies against the plaintiff at 30 per cent and this would reduce the above figure to K38,448.20.

Interest would be due on the loss to date at 8 per cent on K841.94, at 4 per cent on the K4002.00 and at 4 per cent on part of the general damages namely on K5,000.
To summarise the damages:

General damages K25,000.00 
Loss of salary 841.94 
Loss of income to date 4,002.00 
Future economic loss 38,448.20 
Interest 435.84 
 K68,727.98 

I order judgment for the plaintiff in the sum of K68,727.98.

Judgment for plaintiff

__________________

Lawyer for the plaintiff: Henao Cunningham Priestly.
Lawyer for the defendant: Blake Dawson Waldron.