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Lala v Sully [2022] PGNC 141; N9597 (3 May 2022)

N9597

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 878 OF 2019

BETWEEN:
JOHN LALA
Plaintiff

AND:
MATHIAS SULLY AS PRINCIPAL OF MADANG TEACHER’S COLLEGE
First Defendant

AND:
LUCY NIAMAN AS REGISTRAR OF MADANG TEACHER’S COLLEGE
Second Defendant

AND:
DR SABASTIAN BAGRI AS CHAIRMAN OF THE BOARD OF MADANG TEACHER’S COLLEGE
Third Defendant

AND:
MADANG TEACHER’S COLLEGE
Fourth Defendant
Madang: Narokobi J
2021: 8^th October
2022: 3^rd May

TORTS – negligence – whether there was proximity of relationship between an employer and employee to establish a breach of duty of care to the employee to provide a safe system of work.

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether a failure to process workers compensation can amount to breach of human rights – proving that an act is harsh, oppressive or otherwise proscribed by Section 41.

HUMAN RIGHTS – Constitution, Section 58 Compensation – whether s 58(4)(b) provides for an employer to be responsible for the actions of the employee outside of the Wrongs (Miscellaneous Provisions) Act 1975.

The Plaintiff was employed as a painter by the Fourth Defendant, the Madang Teacher’s College. While he was painting a building in the College, the timber that formed part of the scaffold he stood on to paint, broke and he fell, injuring his back. He claims that the Defendants were negligent in that they did not provide a safe system of work for him and breached his constitutional rights. He says that because of this, the Fourth Defendant is vicariously liable for the actions of its employees.

Held:

(1) The proximity of relationship between the Plaintiff and the first three Defendants was too remote to find that the duty of care was breached. The evidentiary material indicated that it was the Plaintiff who was responsible for assembling the scaffolding, and at no time did he bring to the attention of the Defendants, the need to purchase superior timber to ensure a safe system of work. The claim for negligence against the Defendants is dismissed.

(2) In a human rights claim, the Court will take a liberal approach and consider the evidence in addition to the pleadings to determine whether the claim has been made out. Section 57(1) of the Constitution empowers the National Court on its own initiative, to protect and enforce human rights.

(3) There are insufficient pleadings and evidence to hold the Defendants responsible for breach of ss 36 and 37 of the Constitution.

(4) The Plaintiff has established that the Defendants are liable for breach of his rights under s 41(1) of the Constitution. He has pleaded in the Statement of Claim that the actions of the Defendants were “unlawful and unwarranted.” These terms are provided for in s 41(1) of the Constitution. The uncontested evidence is that the Defendants failed to process his claim for worker’s compensation. The failure was unlawful and unwarranted.

(5) Section 58(4)(b) of the Constitution, provides for governmental bodies to be responsible for the actions and or omissions of employees separately from the Wrongs (Miscellaneous Provisions) Act for breach of the human rights and freedoms under the Constitution.

Cases Cited:
Papua New Guinean Cases

Ambi v Rabi (1980) N279
Lulug v Michael (2020) N8585
Nola v Alipet (2019) N7939
Okona Meten v Mamu (2019) N7668
SCR No 1 of 1977; Re Rights of Persons Arrested or Detained [1977] PNGLR 362
Yalbees v Amaiu (2018) N7393

Overseas Cases Cited:

Anns v Merton L.B.C [1977] UKHL 4; [1978] AC 728
Donohue v Stevenson [1932] AC 562

Statutes Cited

Constitution
Education Act 1983
Workers Compensation Act 1978
Wrongs (Miscellaneous Provisions) Act 1975

TRIAL

This is a trial on liability.
Counsel

Mr B Wak, for the Plaintiff
Mr W Akuani, for the Defendants

JUDGMENT

3^rd May, 2022

1. NAROKOBI J: A. INTRODUCTION: The uncontested facts which form the background to the proceedings were that the Plaintiff was an employee of the Fourth Defendant as a painter, from 7 May 2007 until he resigned soon after an accident in 2016.
   

B PLEADINGS

2. On or about 16 June 2016, the Plaintiff had an accident in his workplace. He fell from a scaffold and suffered serious injuries from the fall. He alleges that the fall was from a scaffold that was not fit for purpose and as a result it broke, and he fell and injured himself.
   
3. Additionally, the Plaintiff says his rights under s 41(1) of the Constitution was breached. Although in his Statement of Claim, he claims other rights were breached, he does not appear to pursue them seriously in his submissions.
   
4. On the other hand, the Defendants deny the allegations and say that there are insufficient pleadings against them, and that the Plaintiff contributed to his own injuries.
   

C EVIDENCE

5. The Plaintiff relies on his own affidavit filed on 29 July 2022. He says that he was employed for nine years until around 16 June 2016, while painting a building, he fell off a scaffold from a height of 15m to 20m from the ground. He was taken to the hospital and medically examined. An x-ray to his back showed “subluxation at C6 vertebrae.” Subluxation is a term used in the chiropractic field to describe what happens when one of the vertebrae in the spine moves out of position. He was hospitalised for three weeks, discharged, and advised not to do heavy work. The medical report encloses a claim for workers compensation filled out by the hospital to confirm that it was a workplace injury. The Plaintiff says the form was provided to the Defendants, but they have not acted on it.
   
6. On the other hand, the Defendants’ evidence composed of the affidavits of Mathias Sully the Principal of the College, Lucy Niaman the Registrar of the College, Serongko Sondo the Deputy Principal and Dennis Taudi, a carpenter. They all essentially depose to the fact that the Plaintiff contributed to his own demise. He was responsible for ensuring that the scaffolding was of good material and did not bring it to the College’s attention that the timber for the scaffold was rotting or not strong enough to sustain his weight. The College was not aware of this and as a result did not do anything to replace the timber.
   

D ISSUES

7. There are three issues here. The first is whether the Defendants are liable for the tort of negligence for not providing a safe system of work for the Plaintiff and the second issue is whether the Defendants are liable for breach of the Plaintiff’s rights under s 41(1) of the Constitution. If the Plaintiff has established a cause of action for any of the two issues, then the third issue would be whether the Fourth Defendant is vicariously liable for the actions of the First, Second and Third Defendants.
   

E SUBMISSIONS

8. On the first issue, the Plaintiff relies on the authority of Yalbees v Amaiu (2018) N7393 and submits that the Defendants were negligent as they owed the Plaintiff a duty of care, breached that duty by not providing a safe system of work, and as a result the Plaintiff suffered damages. For this reason, they are liable.
   
9. On the second issue the Plaintiff submits, relying on the case of Okona Meten v Mamu (2019) N7668 that s 41(1) is a recognisable right, and if it is breached, the Plaintiff is entitled to remedies. Actions and or omissions which are harsh, oppressive, not warranted by the circumstances of the case, or disproportionate to the circumstances of the case would be regarded as unlawful acts. The Plaintiff submits that the way the plaintiff was treated was unfair and harsh.
   
10. On the third issue, the Plaintiff submits that since the First, Second and Third Defendants are employees of the Fourth Defendant and were acting in the course of duty, the Fourth Defendant should be liable for the actions of the first three Defendants. The Plaintiff relies on the statement of the principle of vicarious liability in Nola v Alipet (2019) N7939 to support its contention.
    
11. The Defendants on the other hand, submits on the first issue relying on the English cases of Donohue v Stevenson [1932] AC 562 and Anns v Merton L.B.C [1977] UKHL 4; [1978] AC 728 that there is no sufficient proximity of relationship between the First, Second and Third Defendant and the Plaintiff, such that they would have a duty of care to the Plaintiff. Since there is no duty of care, the Fourth Defendant cannot be held vicariously liable.
    
12. On the second issue of breach of human rights, the Defendants relies on the Supreme Court case of SCR No 1 of 1977; Re Rights of Persons Arrested or Detained [1977] PNGLR 362, to submit that titles of Constitutional Provisions do not form part of the law. Since the Plaintiff has only referred to the provisions of the Constitution in the Statement of Claim, he has not adequately pleaded a cause of actions against the Defendants. For this reason, the claim should be dismissed.
    
13. On the third issue the Defendants submits that as the Plaintiff has failed to establish a cause of action in tort and under Constitutional Law (breach of human rights), he has failed to prove that the Fourth Defendant should be vicariously liable.
    

F ADDRESSING THE ISSUES

14. In my view, on the first issue, both Counsels have correctly stated the position of the law on negligence from the various case authorities they have cited. Taking the evidence and the submissions into account, I am persuaded by the submissions of the Defendants. It is true that the employer has a duty of care to provide a safe system of work. However, in this case, the proximity of relationship between the Plaintiff and first three Defendants was too remote to find that a duty of care was breached in the circumstances. The evidentiary material shows that it was the Plaintiff was responsible for assembling the scaffolding, and at no time did he bring to the attention of the Defendants, the need to purchase superior timber to ensure a safe scaffold. The Defendants would not have known without the Plaintiff informing them. For this reason, I dismiss the claim for negligence against all Defendants.
    
15. Addressing the second issue, in a human rights claim, the Court will take a liberal approach and consider the evidence in addition to the pleadings to determine whether the claim has been made out. This is for the simple reason that under s 57(1) of the Constitution, the National Court can on its own initiative protect and enforce human rights.
    
16. I agree with the Defendants that there are insufficient pleadings and evidence to hold the Defendants responsible for breach of ss 36 and 37 of the Constitution. As I observed earlier, the Plaintiff did not seriously ress this claim. In relation to s 41(1), I accept the authority referred to by the Plaintiff on this point. The Plaintiff did plead in the Statement of Claim that the actions of the Defendants were unlawful and unwarranted. These terms are provided for in s 41(1) of the Constitution. Since it is a human rights claim, the Court will take a liberal approach and consider the pleadings and the evidence to see if the claim has been made out.
    
17. In my view, the actions and omissions of the Defendants were unwarranted and unlawful because they did not process his claim for workers compensation. The scope of s 41 of the Constitution is wide as Okona Meten v Mamu demonstrates. In that case the court was prepared to find a breach of the Plaintiff’s rights under s 41 of the Constitution if discrimination and unfairness was proven in the non-allocational of institutional housing to her (Plaintiff).
    
18. The Workers Compensation Act 1978, s 42 states:
    

“Section 42, Employer to Give Notice of Injury, Etc., to Registrar

(1) Where an injury to a worker results–

(a) in the death of the worker within one day after the occurrence of the injury; or

(b) in the total or partial incapacity of the worker for a period exceeding one day,

whether or not the injury gives rise to any claim for compensation, the employer must–

(c) not later than seven days after the occurrence of the injury; or

(d) where the employer had no immediate knowledge of the injury, not later than seven days after the occurrence of the injury first came to his notice,

forward to the Registrar a notice in the prescribed form.

(2) Where an injury to a worker results in the death of the worker more than one day after the occurrence of the injury, the employer must, whether or not the death of the worker gives rise to any claim for compensation–

(a) not later than seven days after the death; or

(b) where the employer had no immediate knowledge of the death, not later than seven days after the death first came to his notice,

forward to the Registrar a notice in the prescribed form.”

19. In the Plaintiff’s uncontested evidence, he discloses a copy of a claim form for insurance under the Worker’s compensation scheme. It is inferred that this was brought to the attention of the Defendants. In any case the Defendants are obligated by law to process it for the Plaintiff as it was a workplace injury. Here the Plaintiff was incapacitated for three weeks. Section 42(1)(c) required the employer to process the claim within seven days. They failed to do that. This omission was unlawful and unwarranted. I have found in Lulug v Michael (2020) N8585 that the failure of an employer to comply with the Workers Compensation Act amounts to breach of s 41(1) of the Constitution.
    
20. Turning my mind now to the final issue, that is, whether the Fourth Defendant is vicariously liable for the actions and omissions of its employees? I find that it is vicariously liable under s 58(4)(b) of the Constitution, and not the provisions of the Wrongs (Miscellaneous Provisions) Act. Constitution, Section 58, Compensation, at paragraph (4)(b) states:
    

“(4) Where the infringement was committed by a governmental body, damages may be awarded either-

...(b) against the governmental body to which any such person was responsible, or against both, in which last case the court may apportion damages between them.”

21. I consider that Madang Teachers College, the Fourth Defendant is a governmental body as it is established by statute for a public purpose (Education Act 1983) and funded by the State. The first three Defendants are responsible to the Fourth Defendant.
    
22. I adopt what the National Court did in Ambi v Rabi (1980) N279. In that case, compensation was awarded under s 58(4)(b) of the Constitution to three appellants to be paid by the State on account of the actions of a magistrate imprisoning them under a non-existent law which constituted a breach of their rights under s 37(2) of the Constitution. In a sense it was a case of vicarious liability where breach of human rights was involved.
    
23. It is not disputed that the accident occurred during employment. It is safe to infer that the claim form was provided to the Defendants along with the medical report. The failure of the first three Defendants to process the Plaintiff’s claim for workers compensation was as I found unlawful and unwarranted. They were acting in the course of employment. They are responsible to the Fourth Defendant. I therefore find the Fourth Defendant responsible for the actions of the first three Defendants in breaching the Plaintiff’s rights to s 41(1) of the Constitution. The claim for negligence is however, dismissed.
    
24. A trial on assessment of damages under s 58(1) of the Constitution shall now ensue.
    

Judgment and Orders accordingly

Bradley & Co Lawyers: Lawyers for the Plaintiff
Akuani lawyers: Lawyers for the Defendant