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Kisifa v Office of Workers' Compensation [2024] PGNC 75; N10728 (16 April 2024)

N10728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 21 OF 2023

RICKY KISIFA
Plaintiff

V

OFFICE OF WORKERS’ COMPENSATION
Defendant

Waigani: Cannings J
2024: 12^th March, 4^th, 16^th April

HUMAN RIGHTS – enforcement – plaintiff injured in criminal attack in course of employment – workers’ compensation claim – insurer company placed in liquidation – whether Office of Workers’ Compensation acted sufficiently to protect plaintiff’s rights – right to the full protection of the law, Constitution, s 37(1).

The plaintiff was injured in a criminal attack in the course of his employment. He lodged a claim with the Office of Workers’ Compensation and his claim was accepted and processed in the normal way. The plaintiff signed a form that he would accept K8,340.00 in settlement of the claim but before his employer’s insurer counter-signed the form and the settlement was ratified under the Workers’ Compensation Act, the insurance company went into liquidation. The Office of Workers’ Compensation notified the liquidator of the claim, but there was no response. Six years after signing the consent form, the plaintiff has been paid nothing, so he commenced these proceedings against the Office of Workers’ Compensation, claiming a breach of his human rights.

Held:

(1) The plaintiff was in a predicament not of his own making. Many years after the incident in which he was injured and after persistent pursuit of his rights, he was told that nothing could be done but wait for a response from the liquidator of his employer’s insurance company. Nothing happened.

(2) Though the Office of Workers’ Compensation had complied with its statutory obligations in accepting and processing the plaintiff’s claim, it failed to take pro-active steps to assist or guide him.

(3) There has been a general and institutional failure on the part of the State to afford the plaintiff the full protection of the law as he has been left alone without a remedy. A breach of human rights was established under s 37(1) of the Constitution.

(4) The State was ordered to pay reasonable damages to the plaintiff under s 58 of the Constitution in the sum of K10,000.00.

Cases Cited

None.

Counsel

R Kisifa, the Plaintiff, in person
E Wungi for the Defendant

16^th April 2024

1. CANNINGS J: The plaintiff, Ricky Kisifa, makes a human rights claim against the Office of Workers’ Compensation (the defendant). He maintains that it has not helped him properly with a workers’ compensation claim that he has been pursuing for more than eight years.

BACKGROUND

2. The facts are uncontentious. The plaintiff was a driver employed by Pacific Star Ltd (publisher of The National newspaper), when he was injured by criminals in an armed hold-up that occurred late on the night of 8 December 2014. He was driving a company vehicle and doing staff drop-offs in the June Valley area of National Capital District when he and the staff were held up by an armed gang. He was assaulted badly and the company vehicle was stolen. The incident was reported to the police and the company vehicle was later recovered but the criminals were never caught.

3. The plaintiff lodged a workers’ compensation claim with the Office of Workers’ Compensation (the defendant) on 25 August 2015, claiming compensation for the head, arm and cervical injuries he sustained in the incident. His claim was accepted and processed. Based on the medical reports he provided, the defendant’s acting claims manager for the southern region decided under s 66 of the Workers’ Compensation Act on 21 June 2017 that the plaintiff should be awarded K25,800.00.

4. The plaintiff’s employer’s insurer, Pacific Assurance Group (PNG) Ltd, thought that was too much and the plaintiff was required to undergo a further medical examination. A final medical report by Dr Kaminiel, orthopaedic consultant, Paradise Private Hospital concluded that:

Mr Ricky Kisifa suffered a major head injury including musculoskeletal injuries (soft tissues). His memory status is expected to improve over time but sometimes it may not improve from the current status. He is awarded a total of 60% (combined value) disability status.

5. On 28 November 2017 the plaintiff signed a form prepared by the insurer that he would accept K8,340.00 “as full and final payment for 60% disfigurement to head injury sustained during course of my duties on the 8^th December 2014” [sic].

6. The plaintiff has given evidence that he was misled as to the nature of the document and did not know what he was signing. However, there is no evidence to corroborate or elaborate on this allegation, and I disregard it. I will deal with the evidence as it is: there was a proposed agreement between the plaintiff and the insurer that the plaintiff’s claim would be settled in the sum of K8,340.00.

7. It transpires that the National Court had, unbeknown to the plaintiff and the defendant, on 16 November 2017 upheld a petition for the winding-up of Pacific Assurance Group (PNG) Ltd, and all the company’s affairs were put in the hands of a liquidator.

8. The upshot is that the plaintiff has received nothing. He commenced these human rights proceedings by filing a form 124 (human rights enforcement application form) of the National Court Rules on 26 September 2023.

9. An affidavit by Acting Commissioner of Workers’ Compensation, Chris Kolias, sworn on 29 February 2024, has been admitted into evidence. Mr Kolias explains the steps taken by the Office of Workers’ Compensation to deal with the plaintiff’s grievance:

PAG [Pacific Assurance Group] upon its liquidation owes OWC [Office of Workers’ Compensation] and claimants a total of 461 workers’ compensation claims with a total value of K5,469,116.30 inclusive of this claim.

All outstanding PAG claims were submitted to the appointed liquidator Pini Accountants and Advisers by OWC on 14 May 2021 using the normal form 43 under the Companies Act 1997 as part of the liquidation process.

OWC continues to do follow ups with the liquidator Pini Accountants and Advisers with no favourable response to date. The last follow up made by the office was on 9 November 2023.

OWC in its administration of its claims process did not infringe the constitutional rights of the plaintiff as it was still undertaking its administrative process when PAG (the insurer) went into liquidation.

HAS THERE BEEN A BREACH OF HUMAN RIGHTS?

10. That is the critical question but before addressing it I make two comments. First, there are many reasons this case could conceivably be summarily dismissed, such as:

• the Office of Workers’ Compensation is not a legal entity capable of being sued;
  
• the plaintiff has not joined the State as a defendant;
  
• the plaintiff – if he is wanting to seek compensation from the State – has not given notice of his intention to make a claim against the State under s 5 of the Claims By and Against the State Act;
  
• the plaintiff should have sued his employer, Pacific Star Ltd, which arguably remains liable notwithstanding the liquidation of its insurer under s 54 of the Workers’ Compensation Act to pay compensation to its worker, the plaintiff.
  

11. Secondly, the plaintiff is in an unfortunate predicament, which is not of his own making. He was injured in a serious criminal attack that occurred in the course of his employment in December 2014. That was more than nine years ago. He made his workers’ compensation claim promptly in 2015. It took the Office of Workers’ Compensation two years to process it until in 2017 the plaintiff agreed to accept K8,340.00. Then the insurer went into liquidation. That happened also in 2017. Six years later the plaintiff has still received nothing. He has been denied justice.

12. I would be adding to the injustice if I were to summarily dismiss this case. I am obliged by s 158 of the Constitution to give paramount consideration to the dispensation of justice. So, how do I dispense justice in these circumstances?

13. These are protections of the law, which are incorporated within the rights of all persons in Papua New Guinea under s 37(1) of the Constitution, which states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

WHO IS RESPONSIBLE?

14. I find that it is the defendant, Office of Workers’ Compensation that has denied the plaintiff the full protection of the law. It has failed to diligently pursue the plaintiff’s case with the liquidator of Pacific Assurance Group. For Commissioner Kolias to say that the Office of Workers’ Compensation submitted the plaintiff's claim amongst many others to the liquidator in May 2021 is rather self-incriminating. The Pacific Assurance Group went into liquidation in November 2017. So what did the Office of Workers’ Compensation do for three and a half years before submitting the plaintiff’s claim to the liquidator? Nothing it seems.

15. This is not good enough. The Office of Workers’ Compensation is established by s 2(1) of the Workers’ Compensation Act. Its function is to administer that Act, which according to its long title, is an Act “to provide for compensation to workers and their dependants in respect of injuries suffered by workers arising out of or in the course of their employment and for related purposes”.

16. I consider that the Office of Workers’ Compensation has let the plaintiff down. Though it complied with its statutory obligations in accepting and processing the plaintiff’s claim, it failed to take pro-active steps to assist or guide him.

LIABILITY

17. The Office of Workers’ Compensation is a governmental body. It is a part of the State. Its failure to act diligently has meant that it, as a representative of the State, has failed to afford the plaintiff the full protection of the law under s 37(1) of the Constitution.

18. In these circumstances, I invoke s 57(1) of the Constitution, which states:

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

19. I will enforce the plaintiff’s right to the full protection of the law. There has been a general and institutional failure on the part of the State to afford the plaintiff the full protection of the law as he has been left alone without a remedy.

20. I also invoke s 58(2) (compensation) of the Constitution, which states:

A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in [Division] X.5 (internment) on the use of emergency powers in relation to internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

21. The plaintiff is a person whose rights and freedoms declared and protected by Division III.3 of the Constitution (basic rights) have been infringed. He is entitled to an award of reasonable damages. Taking into account the amount the plaintiff agreed to accept from his employer’s insurer, I award reasonable damages, which the State is liable to pay the plaintiff, of K10,000.00.

ORDER

(1) It is declared that the plaintiff has established a cause of action in breach of human rights against the State, constituted by a breach of the plaintiff’s right under s 37(1) of the Constitution to the full protection of the law.

(2) The State shall, on behalf of the Office of Workers’ Compensation, under s 58(2) of the Constitution, pay to the plaintiff reasonable damages in the sum of K10,000.00.

Judgment accordingly.
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Solicitor-General: Lawyers for the Defendant