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Pomat v Consort Express Lines Ltd [2020] PGNC 109; N8300 (8 May 2020)

N8300
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1654 OF 2016 (CC4)

BETWEEN
DANIEL POMAT
Plaintiff

AND
CONSORT EXPRESS LINES LIMITED
Defendant

Waigani: Makail, J
2019: 9^th December
2020: 8^th May

CIVIL – LIABILITY – Negligence – Duty of care – Duty of employer – Duty to provide safe system of work – Breach of – Safe protective gears – Failure of employee to wear safety hat – Contributory negligence – Duty of employee to protect from injury – Proof of

CIVIL – CAUSE OF ACTION – Negligence – Statutory breaches under statute – Separate and distinct causes of action – Causes of action based on same injury – Election must be made which cause of action to bring – Duplicity of damages – Unjust enrichment – Merchant Shipping Act – Sections 120, 124 and 159 – Employment Act – Section 61

ASSESSMENT OF DAMAGES – General damages – Pain and suffering – Head injury – Loss of function of limb – Loss of body function – No permanent disability – Economic loss – Past loss – Future loss – Loss of income – Loss of employment – Mitigation of loss – Alternative employment – Proof of

Cases Cited:

Karawari Lodge Pty Ltd v. Bernard Luck (1998) SC555
Colbert v. PNG [1988-89] PNGLR 590
Raim v. Korua (2010) SC1062
Lewis v. The State [1980] PNGLR 219
Jennifer Eldik v. Motor Vehicle Insurance (PNG) Trust [1994] PNGLR 467
Makai Tom v. The State (1999) N1932
Andrew Moka v. Motor Vehicle Insurance Limited (2004) SC729
Andrew Caswell v. National Parks Board [1987] PNGLR 458
Jack Dinogo v. Motor Vehicle Insurance Limited (2005) N2839
Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183
Motor Vehicle Insurance (PNG) Trust v. James Pupune [1993] PNGLR 380
Goma v. Protect Security & Communication Ltd (2013) SC1300

Counsel:

Mr. J. Ilaisa, for Plaintiff
Mr. M. Goodwin & Mr. T. Ivano, for Defendant

JUDGMENT

8^th May, 2020

1. MAKAIL, J: This is a trial on liability and assessment of damages arising from negligence and statutory breaches by the defendant for a workplace injury on 27^th January 2014.

2. The plaintiff, aged 31, at the time of trial and, from the island Province of Manus and based on Manus island was employed by the defendant as a seaman or seafarer on board the defendant’s vessel. On the said date, he was on duty on board the defendant’s vessel called “MV Niu Ailan Coast”.

Negligence

3. The action for negligence may be summarised as follows; the defendant as an employer had a general duty of care to its employees in terms of providing and maintaining a safe system of work to prevent risk of injury to an employee.

4. It adopted and maintained a safety procedure for operations on the top deck of container ships. There are three indispensible safety procedures:

(a) Tool box meeting,
(b) Lose gear check, and
(c) Supervision of deck operations by Chief Officer.

5. The defendant failed to comply with this safety procedure when the Chief Officer of the defendant did not:

(a) hold a tool box meeting prior to the operation,

(b) did not ensure that the lose gear procedure was carried out prior to moving the container and

(c) did not ensure that the employees adhere to and proper warnings are given to employees on the top deck during operations.

6. The reason is that, the Chief Officer was not present at the material time or at all.

7. The procedure for removal of containers involved a procedure of opening the hatch cover so that the containers could be removed from the below deck. It involved the deck crew identifying any lose gear left on deck under supervision.

8. Without ensuring that the top deck was free of lose gear, the hatch was opened and the container shoe which was not spotted by the crew fell and struck the plaintiff on his head and was injured.

Statutory Breaches

9. As to statutory breaches, the defendant owed a duty of care to comply with the statutory obligations under the Merchant Shipping Act, 1975 particulars of which are as follows:

(a) Reporting any occurrence of maritime incident to the National Maritime Safety Authority under Section 159.

(b) Ensuring compliance with Code of Safe Working Practices in respect of operations and activities on board a ship under Section 145.

(c) Paying wages to the employee during hospitalisation under Section 124.

(d) Providing relief and maintenance during an employee’s recovery period until his return to his proper return port under Section 134(1).

(e) Paying an employee his wages in full at the time of arrival at his proper return port under Section 120.

10. It is further alleged that the defendant owed a duty of care to pay an employee his termination pay including recreational leave upon his termination of his employment under Section 61(4) under the Employment Act.

11. The defendant breached its statutory duties when it failed to:

(a) Report the occurrence of plaintiff’s maritime incident to the National Maritime Safety Authority under Section 159.

(b) Ensure compliance with Code of Safe Working Practices in respect of operations and activities on board a ship under Section 145.

(c) Pay wages to the plaintiff during hospitalisation under Section 124.

(d) Provide relief and maintenance during the plaintiff’s recovery period until his return to his proper return port under Section 134(1).

(e) Pay the plaintiff’s wages in full at the time of arrival at his proper return port under Section 120.

12. Secondly, the defendant failed to pay termination pay including recreational leave to the plaintiff upon termination of his employment under Section 61(4) under the Employment Act.

13. Finally, the plaintiff pleaded breach of the Workers Compensation Act but did not pursue it in submission. It will not be considered then.

Parties’ Evidence

14. The plaintiff relied on the following affidavits which were tendered unopposed subject to weight:

(a) His affidavit filed 8^th January 2019 (exhibit “1), and
(b) Affidavit of Dr Benjamin Thomas filed 19^th June 2019 (exhibit “3).

15. Similarly, the defendant tendered the following affidavits which were unopposed subject to weigh:

(a) Affidavit of Cletus Yendetuo filed 1^st October 2019 (exhibit “2),

(b) Affidavit of Dr Benjamin Thomas filed 19^th June 2019 (exhibit “3) and
(c) Affidavit of Cletus Yendetuo filed 3^rd December 2019 (exhibit “4).

16. From the affidavits, the parties have signed a statement of agreed facts filed 30^th August 2017.

Findings of Fact – Agreed Facts

17. I make the following findings based on the affidavits and statement of agreed facts referred to above:

• On 27^th January 2014 the plaintiff was working on the defendant’s vessel, MV Niu Ailan Coast (vessel), which was docked alongside berth No 1 at port, Port Moresby.
  
• At around 11:00 pm the hatches to bays 15 and 17 of the vessel were being opened, as they were at full vertical position, or approaching the full vertical position, a container shoe on one of the hatches dislodged and struck the plaintiff on his head as he was standing on the deck.
  
• The plaintiff was not wearing a safety hat when he was struck on his head.
  
• Two other crew members were on the deck. They were Joshua Bakarum (Cadet Officer) and Ridley Isikeli (Bosun- an officer on a ship who takes care of the equipment and people who work on the ship).
  
• The Chief Officer Paul Posin was not present to supervise the deck crew.
  
• After the incident, the plaintiff was taken to the Pacific International Hospital (PIH) for initial medical treatment, including a CT scan.
  
• The defendant paid for the plaintiff’s medical treatment at PIH without admission of liability.
  
• Then he was transferred to the Port Moresby General Hospital (Pom Gen). After he was discharged from Pom Gen, the defendant paid for his airline ticket and his parents to return to Manus Island.
  
• The plaintiff was paid for all the hours he worked for the defendant until the injury. He was subsequently removed from the defendant’s payroll after his employment was terminated.
  
• At the time of his employment, he received a wage of K303.20 or an hourly rate of K3.75 per hour.
  
• The defendant maintained a safety procedure for operations on the top deck of container ships. There are three indispensible safety procedures:
  

(a) Tool box meeting,
(b) Lose gear check, and
(c) Supervision of deck operations by Chief Officer.

18. It is trite law in tort of negligence that the plaintiff must prove that:

(a) The defendant owed him a duty of care,
(b) The defendant breached that duty, and
(c) The plaintiff suffered harm or injury.

Duty of Care

19. In the context of employer/employee relationship, an employer owes a duty of care to an employee. The duty of care is to devise and maintain a safe system of work to prevent risk of injury to the employee: Karawari Lodge Pty Ltd v. Bernard Luck (1998) SC555; Colbert v. PNG [1988-89] PNGLR 590 and Raim v. Korua (2010) SC1062.

20. There is no dispute that the plaintiff owed a duty of care to the plaintiff. The duty of care is to devise and maintain a safe system of work to prevent risk of injury to an employee.

21. The defendant maintained a safety procedure for operations on the top deck of container ships. There are three indispensible safety procedures:

(a) Tool box meeting,
(b) Lose gear check, and
(c) Supervision of deck operations by Chief Officer.

22. These procedure is applied to ensure safety of its employees or crew when unloading cargoes in shipping containers from the vessel on to the wharf.

Breach of duty of care

23. However, the defendant denied breach of that duty. It alleged that injury was caused solely by the plaintiff or alternatively was contributed to by the negligence of the plaintiff.

Findings of Fact – Disputed Facts

24. The plaintiff deposed in his affidavit (exhibit “1”) that he stood at the gangway about 6 to 7 meters from the hatch. He did not see or spot the container shoe prior to the opening of the hatch.

25. The other crew members Josh Bakarum and Ridley Isikeli were on the deck and were in a position to give the final clearance. Neither saw or spotted the container shoe.
26. Mr Bakarum gave the clearance of the lose gear on the hatch and informed the plaintiff that they were ready to open the hatch. When the hatch was opened, the container shoe slipped and struck him on his head.

27. For the defence, in his affidavit, Cletus Yendetuo, the Human Resource Manager of the defendant deposed in his affidavit (exhibit “2”) that the plaintiff:

(a) failed to wear full protective personal protective equipment (PPE),

(b) failed to observe safety procedure,

(c) failed to ensure all containers were in a secure position before hatches to bays 15 and 17 were opened to discharge cargo, and

(d) failed to take a safe position to avoid the incident.

28. Except for the plaintiff’s admission that he was not wearing a safety hat when he was struck by the container shoe, Mr Yendetuo was not an eyewitness and his account of the events are second hand information. No weight will be given to his evidence.

29. As to his supplementary affidavit (exhibit “4”), Mr Yendetuo deposed that according to Volume 2 of the defendant’s Safety Management System Manual (Manual), the defendant:

(a) provided the plaintiff with PPE which included boots, reflective overalls and a helmet,

(b) during stevedore operations and opening and closing hatches on board the vessel, the defendant required its employees to wear their PPE, and

(c) Provided drills on a monthly basis regarding emergency and safety procedure to the crew members, and

(d) Provided all relevant lighting for night time stevedoring operations and related operations.

30. Except for the provisions of PPE, in particular, the helmet or safety hat, the assertions by Mr Yendetuo are not based on an eyewitness account because he was not present and did not see what had happened on that night. They are second-hand information and no weight will be given to them.

31. The another reason is that he does not state that he was the person who took the plaintiff and other crew members on emergency and safety drills to ensure that they were prepared for this type of work.

32. Moreover, Mr Yendetuo is restating the defendant’s emergency and safety procedure policy and his assertions are of general application. Some of them are relevant and give the Court an understanding in relation to the defendant’s emergency and safety procedure but otherwise, the rest do not assist in identifying what happened that night.

33. The defendant also relied on a report it prepared dated 27^th January 2014 to deny breach of duty. It stated in part:

“After the hatch top was cleared of all deck cargo, the duty crew members at the time commenced preparation to open the hatches. Bosun as interviewed, he initially cleared the deck then Joshua and Daniel went on the hatch too again the 2^nd time and have not noticed any items then Joshua Bakarum and Ridley Isikeli checked around the hatch coaming. Daniel Pomat was still on the hatches and when Joshua asked Daniel is all is good. Daniel confirmed and Daniel went to the side of the hatch coaming to operate the control to open hatches Bays 15 and 17 while Joshua and Ridley stood on deck on each side monitoring the use of the hatches. A container shoe was still in the slot on the furthest side slot to starboard on Bay 17 not noticed by Daniel prior to opening the hatches. As the hatches raised to the vertical stow, the slot where the container shoe was still in is about directly below the person operating the controls.

The container shoe slipped off the slot and bumped of the top of the hatch coaming toward Daniel hitting him on the head causing him a head injury.

The said slot was in clear view however, Bosun, Ridley and Joshua even Daniel did not notice the shoe in the slot is the question will un-answered..........”.

34. The account in report is slightly opposite to the account given by the plaintiff. It stated that the plaintiff failed to check thoroughly the deck to ensure it was free of lose gears before giving the clearance for the hatches to be opened. However, the Court is not bound to adopt it. It is subject to the rules of admissibility.

35. It may be found at annexure “C” to the affidavit of Mr Yendetuo (exhibit “2”) and is its three pages are almost illegible, in fact, the last page is illegible. At page 1, there is a reference to “Manager DPA informed MSO Gilbert Amoniu copied via email”.

36. At page 2 under details of accident, it stated this: “BY WHOM REPORTED: Deck Cadet Joshua Bakarum”.

37. Except for the reference to Deck Cadet Joshua Bakarum reporting, the report does not state the name of the person who investigated the accident. Even Mr. Yendetuo does not name the person who conducted the investigation and prepared the report.

38. Mr Yendetuo does not state if it is an investigation report. It appears to be a report of the accident. It is unclear whether there will be a full investigation into the incident and a report prepared after receiving the statements from the plaintiff, Mr Bakarum and Mr Isikeli including other persons of interest such as the Chief Officer Mr Posin and Emergency and Safety Officer.

39. I find the report inconclusive and give no weight to it. In any case, the defendant neither called oral evidence nor tendered affidavits from Mr Bakarum and Mr Isikeli to contradict the assertions made by the plaintiff in his affidavit (exhibit “1”). This leaves the plaintiff’s assertions uncontroverted and I uphold them.

40. I make these following findings:

• As a standard safety procedure on board all merchant ships, a tool box meeting is a meeting held by the Chief Officer with all deck crew prior to any deck operations to ensure that all safety gear and other safety procedures are in place before the deck operations commences.
  
• As the Chief Officer Mr Posin was absent, no tool box meeting was conduct prior to the operation and throughout the operation.
  
• Prior to the accident, the plaintiff was standing at the gangway about 6 to 7 metres from the bulwark area of the vessel. Mr. Bakarum and Mr Isikeli were standing on the deck.
  
• Mr Bakarum went over to him and told him that the cargo from bays 15 and 17 had been removed and the deck was cleared and therefore they were to open the hatch over to remove the cargo inside the cargo hold below the vessel’s deck.
  
• The plaintiff stood at the gangway for about five minutes and then proceeded onto the deck and stook at the bulwark. By then he noticed that the switch to the hydraulic pump was turned on.
  
• Mr. Bakarum stood at a small platform in preparation to open the hatch cover. The plaintiff stood at the bulwark to watch the track which guides the roller whilst in motion when opening the hatch cover of the cargo hold.
  
• Mr Bakarum took control of the hydraulic lever. His two colleagues were on the deck and were in a position to give final clearance of any loose gear or objects on the hatch before giving clearance for the opening of the hatch cover.
  
• The plaintiff moved to the starboard on the right side of the hatch cover while his colleagues were at the port side (left side of the vessel). The bulwark was about 3 meters below the hatch coaming which supported the hatch cover and the roller.
  
• After the stevedoring personnel cleared bays 15 and 17, Mr Bakarum took control of the lever opening the hatch cover operated the hydraulic pump and proceeded to open the hatch.
  
• As the hatch cover opened upwards and, almost at a 60 degree angle, a container shoe which was not noticed on top of the hatch cover fell off the hatch cover onto the hatch coaming and struck the plaintiff on his head. The plaintiff was instantly knocked unconscious. He regained consciousness at the hospital.
  

41. Based on these above findings, I am satisfied on the balance of probabilities that the defendant failed in its duty of care when the Chief Officer was absent and did not conduct a tool box meeting, lose gear clearance check and supervised the deck operation on the night of the incident. It was his duty to make sure that safety procedures were undertaken or complied with before the opening of the hatch cover and unloading of cargo containers from the vessel onto the wharf.

42. And more to the point, the Chief Officer was to make sure that the plaintiff and the other crewmen wore their safety hats and cleared the deck of any lose gear before the hatch was opened. And I accept that these are indispensable safety procedures. Yet he did not. As a result, the plaintiff and his colleagues embarked on their duties without supervision and the plaintiff was injured. I find the defendant liable in damages for the injury sustained by the plaintiff.

Statutory Breaches

43. As to the question of cause of action, the plaintiff relied on the Supreme Court case of Goma v. Protect Security & Communication Ltd (2013) SC1300 and submitted that where a statute imposed obligations on a public official or private person to perform a function, a cause of action is available to an aggrieved person to seek enforcement or relief where the public officer or private person breaches or fails to comply with the duty.

44. I uphold the plaintiff’s submission. I am satisfied that a cause of action is available to a party for breach of duty under statute subject to proof of a duty imposed by the statute, its breach thereof and damages. In other words, not all statutory breach will give rise to a cause of action. It is decided on a case by case basis and subject to statutory construction. It is a separate and distinct cause of action from the tort of negligence and open to the plaintiff to bring. However, the plaintiff must elect one of them to bring against the defendant.

Breach of Duty to Report Incident

45. First, he submitted that Section 159 imposed a duty on the defendant to report occurrence of maritime incident to the National Maritime Safety Authority (MSA) and the defendant failed to report it in order to conceal it from the MSA.

46. The plaintiff’s lawyers wrote to the MSA requesting if it had received a report from the defendant on 20^th July 2016. The legal officer of MSA replied advising that the SMA did not receive a report of the incident on 25^th August 2016. These letters may be found at annexures “S” and “T” to the plaintiff’s affidavit (exhibit 1”). I note the defendant tendered the report referred to at [33] (supra). However, there is no evidence to prove that the defendant served it on the MSA.

47. Secondly, there is no evidence of an injury held into the incident under Section 159(2). Furthermore, there is no written report of the findings of the Labour Shipping Officer or a person authorised by the MSA who conducted the injury under Section 159(5).

48. The evidence based on the email from the Master Mr Emos Penea to the Manager Mr Andy Proud dated 28^th January 2014 show that an internal report in relation to the incident was made to the Manager but nothing further in terms of an inquiry was held under Section 159(2).

49. Section 159 states:

“159. Inquiries into death or serious injury.
(1) Where—

(a) a person dies or suffers a serious injury in a ship; and

(b) the master of the ship fails, without reasonable cause, to notify the Authority of the death or serious injury,
the master of the ship is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.
(2) Subject to Subsection (4), where—

(a) a person dies or suffers a serious injury in a ship; or

(b) a crewman belonging to a ship dies or suffers a serious injury away from the ship,

an inquiry into the circumstances surrounding the death or serious injury shall, unless the Minister otherwise directs, be held by the Labour Shipping Officer or by a person so authorized by the Authority at the next port in Papua New Guinea at which the ship calls.

(3) For the purpose of holding an inquiry under Subsection (2), the Labour Shipping Officer, or the person authorized by the Authority, may—

(a) go on board a ship at any time and inspect the ship or the machinery or equipment of the ship or any article on board the ship; or

(b) summon any person before him and require that person to answer questions relating to the death or serious injury; or

(c) require the production of any document that in his opinion is relevant to the inquiry.

(4) No inquiry shall be held under this section in a case where an inquest by a Coroner is being held, is to be held or is required to be held, under any law of Papua New Guinea.

(5) The Labour Shipping Officer or the person authorized by the Authority who has held an inquiry under Subsection (2) shall make a written report of his findings to the Authority and the Authority may make a copy of the report available in the case of a person who has—

(a) died—

(i) to the next of kin of the deceased person; or

(ii) to any other person who requests such a copy and who appears to the Authority to be interested; and

(b) suffered a serious injury—

(i) to that person, or to a person acting on his behalf; or

(ii) to any other person who requests such a copy and who appears to the Authority to be interested.”
50. Section 159, in my view, has a broad application intended to include an inquiry into deaths and serious injuries in a ship. A Master of a ship must first notify the MSA of any deaths or serious injury in a ship and failure will result in imposition of a fine not exceeding K1,000.00.

51. Secondly, a copy of the report will be given to the next of kin of the deceased person in the case of a death and in the case of a serious injury, to the injured person or a person acting on his behalf. In the context of this case, the report will provide information as to the cause of injury to enable the plaintiff to decide what to do in future. The plaintiff might accept the report and move on with life or take legal action for his injury. In essence, Section 159 imposes a huge responsibility on ship owners and operators to comply with especially, the duty to notify MSA of the incident.

52. I am satisfied that the defendant owed a duty of care to the plaintiff and failed to report the incident to the MSA. Consequently, the MSA did not have a record of the incident and was not in a position to decide whether an inquiry was required and if so, was able to organise one.

53. I uphold the plaintiff’s submission that the defendant’s failure was deliberate to conceal the incident in the hope that it would not be taken to task on it. I find the defendant liable in damages for breach of duty imposed on it under Section 159.

Breach of Duty to Pay Employees Wages during Hospitalisation

54. The plaintiff submitted that the defendant owed to him a duty of care to pay his wages while he was hospitalised under Section 124. It failed to pay his wages while he was hospitalised and breached the duty imposed on it under Section 124.

55. Section 124 states:

“124. Entitlement to wages for sick or injured crewman left behind.

(1) Where a crewman belonging to a ship is left behind at a port other than his proper return port by reason of a circumstance referred to in Subsection (2), he is entitled to wages, at the daily rate fixed under the agreement, in respect of each day during the period—

(a) commencing on the date on which he was so left behind; and

(b) ending on the—

(i) date of his return to his proper return port; or

(ii) expiration of a period of two calendar months after the date referred to in Paragraph (a); or

(iii) death of the crewman,

whichever first occurs.

(2) A circumstance referred to in Subsection (1) is the illness, hurt or injury of a crewman where such illness, hurt or injury is—

(a) not due to the—

(i) wilful act or default; or

(ii) misbehaviour,

of the crewman; and

(b) such as to incapacitate him wholly from the performance of his duty.”

56. I uphold the plaintiff’s submission. I add that, crewmen on ships travel wherever the ship goes but they have a proper port of return which is commonly the port where they were recruited. The ship owner is responsible for their welfare on the ship until they return to shore at their proper return port.

57. In this case, I find that the defendant owed a duty of care to the plaintiff while he was injured and hospitalised in Port Moresby. This duty included payment of his wages in particular, where he is not based in Port Moresby and until he is returned to his proper return port which is Manus. I find the defendant liable in damages for breach of duty imposed on it under Section 124.

Breach of Duty to Provide Relief and Maintenance during employee’s recovery

58. The plaintiff submitted that the defendant owed to him a duty of care to provide relief and maintenance to him while he was recovering from his injury in Port Moresby until his return to his proper return port under Section 134. It failed to provide relief and maintenance to him while he was hospitalised and breached the duty imposed on it under Section 134:

“134. Return of distressed crewmen.

(1) Subject to Section 137, where a person is a distressed crewman, the person who last employed him as a crewman, must make such provision as is prescribed for his—

(a) return to his proper return port; and

(b) relief and maintenance until his return to his proper return port.

(2) A person who fails to make the provision referred to in Subsection (1) is guilty of an offence.
Penalty: A fine not exceeding K20,000.00.”
59. In my view, this provision reinforces the duty of the employer to provide for the welfare of the distressed crewman. However, I am not satisfied that it has a duty of care which is enforcement by an action for breach of statutory duty. On the other hand, it creates an offence for a person (employer) who fails to make provision for the distressed crewman for his return to his proper return port and relief and maintenance. The penalty is a fine not exceeding K20,000.00.

60. This does not mean that the plaintiff has no recourse to a claim for hospitalisation costs, transportation costs (airfares from Port Moresby to Manus) and wages in a negligence action. He does and has precisely done that in this proceeding. No cause of action is being established under Section 120 and the claim is dismissed as being misconceived.

Breach of Duty to Employee’s Wages during arrival at proper return Port

61. The plaintiff submitted that the defendant owed to him a duty of care to pay his wages during arrival at proper return point under Section 120. It failed to pay his wages during arrival at Manus from Port Moresby and breached the duty imposed on it under Section 120.

62. Section 120 states:

“120. Payment of wages.

(1) Subject to this Act, the wages due to a crewman under an agreement shall be paid in full on the termination of the agreement.

(2) Where an employer fails, without reasonable cause, to make payment in full to a crewman as provided in Subsection (1) he shall, in respect of each day for which payment is delayed, pay to the crewman a sum equal to double the daily rate fixed under the agreement.

(3) Where the amount required to make payment in full as provided in Subsection (1) is less than the amount fixed by the Minister responsible for labour matters and published in the National Gazette, the number of days in respect of which payment is to be made under Subsection (2) shall not exceed seven.

(4) A sum payable under Subsections (2) and (3) is deemed to be wages due to the crewman.” (Emphasis added).

63. I uphold the plaintiff’s submission. I repeat what I said earlier. Crewmen on ships travel wherever the ship goes but they have a proper port of return which is commonly the port where they were recruited to return. The ship owner is responsible for their welfare on the ship until they return to shore at their proper return port.

64. I have not received any submission from the defendant on the use of the term “reasonable cause” and why it ceased payment of wages to the plaintiff except for the assertion that the plaintiff was terminated and paid his termination pay on date of termination. However, it would appear that the defendant as the employer must justify non-payment of wages during the hospitalisation period, failing that, it will pay wages at double daily rate under Section 120(2).

65. In this case, I find that the defendant owed a duty of care to the plaintiff to pay his wages during his arrival at his proper return port which is Manus. I find the defendant liable in damages for breach of duty imposed on it under Section 120.

Breach of Duty to Pay Employee’s Termination Pay

66. The plaintiff submitted that the defendant owed to him a duty to pay his termination pay including recreational leave under Section 61(4) of the Employment Act. It failed to pay the plaintiff his termination pay including recreational leave upon termination of his employment under Section 61(4).

67. Section 61 states:

“61. Entitlement to leave.

(1) Subject to the provisions of any registered award, an employee is entitled for each year of continuous service to a period of 14 consecutive days paid leave including non-working days occurring within that period of paid leave, and where any public holiday falls within an employee's period of paid leave and is observed on a day that, in the case of that employee, would have been an ordinary working day had he not been on leave, there shall be added to that leave period one extra day being an ordinary working day, for each day of that public holiday.

(2) Subject to Subsections (3), (4) and (5), the right to recreation leave accrues at the end of each period of 12 months continuous service.

(3) Recreation leave credits may be accrued, by agreement between the employer and employee, for any period of continuous service to a maximum of four years.

(4) An employee whose employment terminates or is terminated is entitled to be paid recreation leave, if he has completed not less than six months continuous service, at the rate of one day for each completed month of service.

(5) Where an employee's contract of service expires or is terminated and he is entitled to be paid recreation leave under this section, an employer may, instead of the grant of the period of leave, pay to the employee an amount equal to his wages for the period of leave to which he is entitled.”

68. In my view, Section 61(4) entitles an employee to be paid recreational leave upon termination of employment if he or she completed six months of continuous service. However, under Section 61(5), he or she may be paid money in lieu of leave.

69. In this case, I am satisfied that the defendant owed a duty of care to the plaintiff to grant recreational leave to the plaintiff or pay money in lieu of leave to the plaintiff and breached the duty imposed on it under Section 61. Accordingly, I find the defendant liable in damages.

Assessment of damages

70. It is trite law that judgment on liability does not establish damages. The plaintiff still bears the onus to prove his losses. He sought:

70.1. General damages

70.2. Economic loss (Past & Future)

70.3. Loss of future earning capacity

70.4. Economic loss of Parents

70.4. Loss of overtime benefits and industrial awards

71. The plaintiff relied on his affidavit (exhibit “1”) in support of his claim for damages. Apart from his admission and concessions made by the defendant in relation to paying the medical treatment for the plaintiff at PIH and repatriation airfares from Port Moresby to Manus for the plaintiff and his parents, the defendant tendered no evidence to rebut the evidence of the plaintiff.

72. As to the details and extent of the head injury, the medical report by Dr Eri Ebos dated 21^st March 2014 and another by Radiologist, Dr Mosunivi Kuta dated 31^st October 2014 which were annexed to the plaintiff’s affidavit (exhibit “1”) were not tendered because none of the doctors were available at trial for cross-examination.

73. The remaining doctor whose report dated 3^rd June 2019 was tendered was Dr Benjamin Thomas. It is marked letter “A” to his affidavit (exhibit 3”). There is no contest as to its content in terms of the diagnosis and prognosis by Dr Benjamin. I accept it as it is the most recent medical report of the plaintiff’s injury and loss of limb function. Based on this report, I find that the plaintiff suffered the following:

• Depressed right front parietal skull fracture with cerebal infarction and sequel,
  
• As to his neurological condition;
  
  • ➢ 10% loss of muscle strength on the left upper limb, and
    
  • ➢ 20% loss of strength on the left lower limb,
    
• 37.5% permanent loss of functional status.
  

General Damages

74. General damages are generally awarded in monetary form to compensate the plaintiff for pain and suffering as a result of the defendant’s wrong caused to the plaintiff. Its objective is to put the plaintiff in a position he was immediately prior to the accident or injury.

75. A claim for general damages will be awarded if it is proved that it is directly attributed to the wrong and that it is not too remote. The measure of damages is not based on a fixed sum or scale but may vary from case to case depending on the type of wrong and degree of loss.

76. The plaintiff relied in Dr Benjamin’s final overall prognosis of 37.5% permanent loss of functional status and submitted that K200,000.00 is a fair and reasonable sum to award to compensate the plaintiff for pain and suffering.

77. The defendant submitted that K28,000.00 is a fair and reasonable sum to award for general damages when past comparable awards and 30% contributory negligence are taken into account.

78. I have considered the submissions and awards made in past cases cited by parties and make these observations by way of assessment of a fair and reasonable sum to award under this head of claim. The awards ranged from K12,000.00 to K125,000.00.
79. In Lewis v. The State [1980] PNGLR 219 the plaintiff suffered psychological and personality disorder including progressive memory loss as a result of serious brain damage from head injuries. He was awarded K125,000.00 in general damages.

80. In this case, the plaintiff did not suffer psychological and personality disorder including memory loss. For this reason, the award will be less than the sum awarded in the Lewis case (supra).

81. The award of K12,000.00 in Maipen v. Motor Vehicle Insurance (PNG) Trust [1990] PNGLR 559 was to a 10 year old boy who suffered a depressed skull fracture in a motor vehicle accident. This sum was awarded about 30 years ago and if inflation is included in today’s assessment, it will be outdated.

82. For a head injury and degree of loss of function to the limbs between 20% and 40%, past reported cases between the years of 1994 and 2004 such as Jennifer Eldik v. Motor Vehicle Insurance (PNG) Trust [1994] PNGLR 467; Makai Tom v. The State (1999) N1932 and Andrew Moka v. Motor Vehicle Insurance Limited (2004) SC729 show that general damages between K21,942.80 inclusive of interest, less contributory negligence and K35,000.00 have been awarded by the Courts.

83. Cases which are not directly related to the case under consideration because they are not head injury related but offer some guidance in terms of degree of loss of function of body limbs are:

• Andrew Caswell v. National Parks Board [1987] PNGLR 458. It was decided more than 30 years ago and is outdated if inflation is applied. The plaintiff was awarded K22,000.00 for 20% loss of function of right lower limb and 20% loss of function of right upper limb and 10 to 25% loss of function of whole body from a tree fall.
  
• Jack Dinogo v. Motor Vehicle Insurance Limited (2005) N2839 where the plaintiff suffered 25% total disability of the lower limb and 5% for dysfunctional disability with disability of 30% directly attributed to other spinal injuries as a result of a motor vehicle accident and was awarded K24,610.00 after 15% appointment for contributory negligence.
  
• Jack Dinogo v. Motor Vehicle Insurance Limited (2005) N2839. The plaintiff was awarded K15,000.00 for permanent injury to his right shoulder, arm and hand after the defendant deliberately rammed the plaintiff with the vehicle he was driving.
  

Contributory Negligence

84. The defendant raised the defence of contributory negligence and contended that, the injury was contributed to by the negligence of the plaintiff when he failed to wear a safety hat and damages be apportioned. Where a party relies on contributory negligence, the reverse burden of proof applies and the party must tender evidence to prove contributory negligence.

85. In the words of the Court in Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183, the defendant must establish a causal link between the injury and the approach taken by the plaintiff in that particular task or operation during which he was injured. A foreseeable risk is not sufficient.

86. Except for the plaintiff’s admission that he did not wear a safety hat, there is no evidence from the defendant to prove that wearing a safety hat would have prevented the injury. In other words, it is foreseeable that the plaintiff will be injured if he did not wear a safety hat. However, I cannot be certain about it because it has not been established on the balance of probabilities how a safety hat will prevent the injury to the plaintiff’s head. The other proposition is that, the safety hat may reduce the severity of the injury but again, there is no expert evidence from a hazard and risk management expert to verify it.

87. Perhaps case law might give some answers to this lingering doubt I have but the defendant as the party who has alleged contributory negligence did not cite any local or overseas cases to erase the doubt. It proposed 30% reduction of the total sum to be awarded for contributory negligence but it is unsupported by evidence and/or case law.

88. It adopted the rate of 30% contributory negligence from the Eldik case (supra) where K28,000.00 was awarded in general damages less 30% for contributory negligence. However, the injury sustained by the plaintiff in that case was not a work place related injury and required no safety hat to be worn by the plaintiff. It is of no relevance.

89. The defendant’s defence of contributory negligence is dismissed.

90. To sum up, cases of less serious to severe nature generally attract an award of general damages within the range of K20,000.00 to K35,000.00 while the more serious head and limb injuries with permanent functional loss attract a range of between K70,000.00 to K150,000.00.

91. The injuries and degree of loss of function to the plaintiff’s limb brings his case within the group of cases between K20,000.00 and K35,000.00. I take into account inflation and, the fact that the above awards were made 10 to 30 years ago and I award K35,000.00.

Economic loss

92. There are two forms of economic loss: (1) Past economic loss and (2) Future economic loss.

93. The plaintiff claimed past and future lost wages at K303.30 per fortnight. The defendant submitted that the plaintiff is under an obligation to mitigate his loss and has not tendered evidence to prove that he has made attempts to secure alternative employment.

Past Economic loss

94. For past economic loss, the plaintiff claimed a total sum of K45,959.10 representing 26 fortnights per year for 5 years and 10 months from date of injury.

95. I uphold the defendant’s submission in part. The plaintiff has a duty to mitigate his loss after his services was terminated by the defendant. He did not tender any evidence of attempts made to secure alternative employment during the last 5 years and 10 months.

96. However, that does not mean that the plaintiff should get nothing for past economic loss. He will but not the sum he is claiming. Put it this way, he would be still working for the defendant had it not been for the injury. As he has left the defendant’s employment, he should have found another job or at least made attempts. He did not but will get something anywhere: see Motor Vehicle Insurance (PNG) Trust v. James Pupune [1993] PNGLR 380.

97. A fair and reasonable approach is to reduce the sum claimed by the plaintiff by half to allow for his failure to mitigate his loss, re: obtaining or seeking alternative employment. I award K22,979.55.

Future Economic Loss

98. For future economic loss, he claimed a total sum of K189,196.80. This sum was arrived at by multiplying K303.20 per fortnight by 26 fortnights in a year to get the total wages per year and multiplying it with 24 years being the number of years remaining out of the average life expectancy of 55 years.
99. I assess it by adopting the approach used in the claim for past economic loss; reducing the claim for failure by the plaintiff to mitigate his loss, re: obtaining or seeking alternative employment.

100. In addition, I further reduce the sum by 10% for future contingencies such as early resignation, termination, retirement or death. This works out as follows: K189,196.89 reduced by half gives K94,598.40. K94,598,40 less 10% for contingencies gives K85,138.56. I award this sum.

Loss of future earning capacity

101. The plaintiff claimed loss of future earning capacity in the global sum of K150,000.00. He submitted that as a result of the injury, he is effectively inhibited from gainful employment with shipping companies in the capacity that he used to work immediately prior to the accident and injury.

102. However, lost earning capacity covers future missed income that the plaintiff has not yet earned and can also be called future loss of earnings or future economic loss. In other words, it is the same thing as future economic loss. In my view, this head of claim is a duplication of claim for future economic loss. It is dismissed.

Economic loss of Parents

103. The plaintiff claimed damages in the form of economic loss of parents as a result of the defendant’s failure to comply with its statutory duty to provide relief and maintenance to the plaintiff. Its failure caused the plaintiff’s parents to seek funds to travel from Manus to Port Moresby to take care of the plaintiff. The funds also covered food, medical and lodging expenses after the plaintiff was discharged from Pom Gen.

104. The plaintiff referred to Andrew Caswell case (supra) and submitted that the Courts have recognised claims for third party family members who incur financial losses on account of an injured relative like that case where the Court awarded damages to the plaintiff for his wife’s financial losses on his account.

105. If the Court were to award it, he further submitted that, it can be subsumed into the claim for damages for statutory breaches since they had occurred as a result of failure by the defendant to comply with its statutory duties.

106. I accept the proposition that the Courts have recognised claims of third party family members who incur financial losses on account of an injured relative. This head of damages is, however, subject to the principle of remoteness of damages. The real issue is whether the plaintiff’s parents’ losses are directly attributed to the plaintiff’s injury.

107. In this case, subject to proof, I am satisfied that the plaintiff’s parents’ losses are directly attributed to the plaintiff’s injury and it is open to the plaintiff to claim them. For this reason, he does not need to make a separate claim for these losses under the claim for statutory breaches. I consider the claim below:

(a) Costs of Airfares from Manus to Port Moresby

The uncontested evidence of the plaintiff in the form of Air Niugini Airline tickets for both parents dated 20^th March 2014 at annexures “I” and “J” to the affidavit of the plaintiff (exhibit “1”) is K1,441.80 or K720.90 per person. I award K1,441.80.

(b) Personal Loans from Moni Plus

The uncontested evidence of the plaintiff is that the plaintiff’s father Mr Roy Pomat borrowed K4,000.00 on 13^th March 2014: see annexure “I” to the plaintiff’s affidavit (exhibit “1”).

Similarly, the uncontested evidence of the plaintiff is that his mother Mrs Duwet Pomat borrowed K7,500.00 on 20^th February 2014: see annexure “J” to the plaintiff’s affidavit (exhibit “1”).

However, while they may have borrowed money from Moni Plus and the purpose was to fund their travel and stay in Port Moresby for the plaintiff’s hospitalisation and recovery, there is no evidence of receipts of payment or details of expenses incurred to establish how they spent the money they borrowed from Moni Plus and importantly, for the said purpose.

For example, it is not known how much was spent on food, transport and accommodation in Port Moresby. In my view, a general description is not sufficient to prove this type of damages which is a form of special damages and required strict proof.

However, as the evidence on the loans and their purpose is uncontested, I will make an allowance and award some damages by reducing each sum by half.

For the plaintiff’s father, the claim of K4,000.00 is reduced to K2,000.00 and for the mother, from K7,500.00 to K3,750.00. It gives a total sum of K5,750.00.

108. For economic loss of parents (K1,441.80 and K5,750.00), I award a total sum of K7,191.80.

Loss of overtime benefits and industrial awards

109. The plaintiff also claimed loss of overtime benefits and industrial allowances. He submitted that as a result of his injury and unemployment, he will lose out on overtime and industrial allowances such as risk allowances he would have been otherwise entitled to receive.

110. He conceded that he did not produce evidence of rates for overtime allowance and risk allowance and period of overtime duties but submitted that an award of K7,276.80 is reasonable. He submitted that this sum is based on his pay rate of K303.20 for 24 fortnights.

111. The defence submitted that the claim should be dismissed for lack of evidence. I uphold the defence submission. This form of damages is one form of special damages and must be strictly proven. Where the particulars and nature of claim are missing, it is difficult to verify the claim. For this reason, it is dismissed.

Damages for Statutory Breaches

112. The plaintiff submitted that a sum of K5,000.00 for statutory breaches under Sections 120, 124 and 159 of the Merchant Shipping Act and Section 61 of the Employment Act, is reasonable to award for each instance of breach. He sought a total sum of K30,000.00. As four cases of breach have been upheld, an award of K5,000.00 for each case will give a total sum of K20,000.00.

113. Before assessing an appropriate sum to award, it is important to reflect on the purpose of awarding of damages. The principle of restitutio in integrum states that a plaintiff is only entitled to be restored to as close a position as if the tort or grievance complained of had not occurred.

114. Applying this principle to the present case, the plaintiff brought two different actions for damages against the defendant for the injury sustained on the vessel. The first is negligence and second is statutory breaches under the Merchant Shipping Act and Employment Act.

115. In the action for negligence, the defendant has been held liable in damages comprising of general damages and past and future economic losses. By their very nature, general damages are awarded to compensate the plaintiff for the pain and suffering caused by the injury. Significantly, the plaintiff was awarded past and future economic losses.

116. The purpose for awarding damages for past and future economic losses is to compensate the plaintiff for lost wages or income he would have earned had it not been for the injury. Similarly, the finding of a duty owed and its breach to pay wages, provide relief and maintenance to the plaintiff while he was hospitalised and, receiving treatment and recovering under Sections 120 and 124 of the Merchant Shipping Act and Section 61 of the Employment Act are entitlements that should have been paid or provided to the plaintiff but were not.

117. They serve the same purpose as damages for past and future economic losses. It is pretty much the same type of damages awarded to compensate the plaintiff for the same injury. For example, the plaintiff submitted that for breach of duty under Section 124, the unpaid wages at the daily rate under the employment contract with the defendant during the period he was left behind in hospital at Port Moresby on 27^th January 2014 to 22^nd March 2014 when he was repatriated is about 4 weeks of unpaid fortnights. Multiply 4 fortnights by K303.20 gives K1,212.30 which he claimed is the unpaid portion of his wages during the recovery period. However, this unpaid portion of his wages has been covered under the damages for past economic loss and would amount to duplicity of damages.

118. As to the claim for recreational leave monies, apart from it not sought in the negligence action, there is no evidence to show if he was due for leave and how much was due in lieu of leave. It is dismissed for this further reason.

119. Overall, in my view, to award damages for statutory breaches will constitute duplicity of damages and unjust enrichment. It is also contrary to the principle of restitutio in integrum. The claim for damages for statutory breaches is dismissed.

Summary

120. To sum up, there will be a judgment for the plaintiff in the total sum of K150,309.91 comprising of:

120.1. General damages – K35,000.00

120.2. Past economic loss – K22,979.55

120.3. Future economic loss – K85,138.56
120.4. Economic loss of parent – K7,191.80

121. The plaintiff sought interest at 8% on the total judgment sum under the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. The submission is upheld. The plaintiff shall have 8% interest on the total judgment sum of K150,309.91 which will run from the date of issue of writ to the date of judgment.

122. Costs is discretionary and as the plaintiff has proven negligence and breach of statutory duties against the defendant, costs will be awarded to him, to be taxed, if not agreed.

Order

123. The final orders are:

1. Judgment on liability is entered against the defendant.
2. The defendant shall pay damages in the total sum of K150,309.91 comprising of:
   

2.1. General damages – K35,000.00

2.2. Past economic loss – K22,979.55

2.3. Future economic loss – K85,138.56
2.4. Economic loss of parent – K7,191.80

3. The orders sought for the following damages are dismissed:
   

3.1. Loss of future earning capacity.

3.2. Overtime allowance and Industrial allowance.

3.3. Damages for breach of statutory duty under Sections 120, 124, 134 and 159 of the Merchant Shipping Act and Section 61 of the Employment Act.

4. The defendant shall pay 8% interest on the total judgment sum of K150,309.91 under the Judicial Proceedings (Interests on Debts and Damages) Act from date of issue of writ to date of judgment.
5. The defendant shall pay the plaintiff’s costs of the proceeding, to be taxed, if not agreed.
6. Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Public Solicitor: Lawyers for Plaintiff
O’Briens Lawyers: Lawyers for Defendant