N4066

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1335 OF 2004

BETWEEN:

TONY DAVID RAIM
Plaintiff

AND:

SIMON KORUA
Defendant

Waigani: Hartshorn J.
2009: 14th July,
: 12th October

Negligence – Employer Employee – Duties of Care owed by an Employer to his Employee

Facts:

Mr. Tony Raim was injured when he was shot during an armed robbery. He is claiming damages from Mr. Korua his employer, for loss suffered as a result of Mr. Korua's failure to insure him under the Workers Compensation Act and Mr. Korua's failure to pay him just compensation for the injuries he received. Mr. Korua denies that he was Mr. Raim's employer and says that he is not liable as alleged.

Held:

1. An employer does not owe to his employee the duties of care alleged by the plaintiff including a duty of care to insure his employee.

2. The plaintiff's claim against the defendant is refused.

Cases cited: 

Papua New Guinea cases

Colbert v. PNG [1988-89] PNGLR 590 
Karawari Lodge Pty Ltd v. Bernard Luck (1998) SC553 

Overseas cases:

Turner v. South Australia [1982] 56 ALJR 839

Counsel:

Mr. A. Kwimberi, for the Plaintiff 
Mr. C. A. Kuira, for the Defendant

12th October, 2009

1. HARTSHORN J. Mr. Tony Raim was injured when he was shot during an armed robbery. He is claiming damages from Mr. Korua his employer, for loss suffered as a result of Mr. Korua's failure to insure him under the Workers Compensation Act and Mr. Korua's failure to pay him just compensation for the injuries he received.

2. Mr. Korua denies that he was Mr. Raim's employer and says that he is not liable as alleged.

3. Both counsel submitted to the court that the primary issue to be determined was whether Mr. Raim was employed by or was merely seconded to Mr. Korua.

4. Before that issue is determined however, the question arises as to whether Mr. Raim would be entitled to the relief he seeks even if it was determined that Mr. Korua was his employer.

5. Mr. Raim's claim appears to be that Mr. Korua is liable under the tort of negligence in failing to discharge his duty of care to Mr. Raim. It is pleaded in paragraph 16 of the statement of claim that Mr. Korua owed a duty of care to his employees including Mr. Raim to ensure that:

•	their safety is guaranteed,

•	they are covered for any work related accidents,

•	appropriate insurance cover is taken out to protect them from any work related accidents or deaths,

•	all medical expenses are paid for in the event that they are injured in the course of their employment,

•	they are appropriately compensated for the injuries or disabilities sustained during their course of employment,

and that these various duties were breached as a consequence of the alleged failure by Mr. Korua to comply with the Workers Compensation Act. 

6. If it is alleged that Mr. Raim suffered loss as a consequence of a non-compliance with the Workers Compensation Act, he may have a claim against Mr. Korua in tort for breach of statutory duty but that has not been claimed in this instance.

7. As to the duty of care of an employer in respect of his employees, in the Supreme Court case of Karawari Lodge Pty Ltd v. Bernard Luck (1998) SC553, the Court said that the principles are clear. There is a general duty of care imposed by the common law owed by an employer to its employees to provide a safe system of work. The Court considered the principles and noted that they had been adopted and applied in other National Court cases including Colbert v. PNG [1988-89] PNGLR 590, which had adopted and applied the High Court of Australia decision of Turner v. South Australia [1982] 56 ALJR 839.

8. In Turner's case (supra), at 840, Gibbs CJ said:

"The duty of an employer is to take reasonable care to avoid exposing his employees to an unnecessary risk of injury: Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18 at 25. The employer is not an insurer of his employees against danger."

9. Counsel for Mr. Raim has not cited any authority in support of his submission that an employer owes the duties of care as pleaded in the statement of claim and I am not satisfied that an employer owes such duties.

10. Counsel for Mr. Raim further submitted that if the common law duty of care that an employer owes to an employee does not extend to those pleaded in the statement of claim, this court should use the provisions of the Underlying Law Act 2000 and Schedule 2.2 Constitution to develop the principle that where an employer does not comply with his statutory duty, resulting in an employee missing out on compensation under the Workers Compensation Act then the employer should be held liable to pay just compensation.

11. Full submissions were not made by counsel on this point and insufficient evidence or information was before the court for it to be properly considered. In my view however, it does not appear necessary for such a principle to be developed as submitted, as the written law and common law already considered and adopted by the Supreme Court, apply to the subject matter of this proceeding. As mentioned, Mr. Raim may have a claim against Mr. Korua for breach of statutory duty for failure to comply with the Workers Compensation Act but that claim has not been made here. In addition, Mr. Raim was entitled to proceed against Mr. Korua independently of the Workers Compensation Act pursuant to s.84 of that Act.

12. Given the above, I am of the view that even if Mr. Korua was the employer of Mr. Raim, Mr. Raim would not be entitled to succeed against Mr. Korua for the relief that he seeks, as I am not satisfied that an employer owes the duties of care to an employee that Mr. Raim alleges were breached by Mr. Korua.

13. Consequently, the plaintiff's claim against the defendant is refused. Judgment is ordered for the defendant. The plaintiff shall pay the costs of the proceeding to the defendant.

____________________________________
Kwimberi Lawyers: Lawyers for the Plaintiff 
Ketan Lawyers: Lawyers for the Defendant