Employer's Duty to Provide a Safe System of Work: Walter Roth v. Ok Tedi Mining Limited (1998) N1788 [1998] MLJ 7; [1998-99] 26 MLJ 171 (1 January 1998)

Employer’s Duty to Provide a Safe System of Work: Walter Roth v Ok Tedi Mining Limited (1998) N 1788

Lawrence Kalinoe^[*]

Introduction

Sefti PNG, the Papua New Guinea Occupational Health and Safety Association Inc, is a non-profit industry based group that has been at the forefront in recent times in generating awareness and improving work place safety in Papua New Guinea. My own involvement in this area of the law has been inspired by their work and efforts. This casenote therefore is directed to a similar purpose, by making available to a wider audience the implications of recent and excellent decisions of our superior courts. In my opinion, proper and effective enforcement of workplace safety laws by safety practitioners, lawyers, and the courts can make a significant contribution towards improving work place safety in Papua New Guinea.

The recent decision of Jalina J in the National Court case of Walter Roth v Ok Tedi Mining Limited (1998) N 1788 (27 November 1998) gives us an opportunity to reflect on how the courts have been dealing with the law workplace safety. Before considering the recent decision, I will present a brief general discussion of the relevant law.

Employer’s Common Law Duty to Provide a Safe System of Work

I have elsewhere stated that “at common law, employers have a duty to take reasonable care for the safety of their employees in all the circumstances of the employment”.^[1] This general duty has been elaborated upon by the courts over the years, to involve the following four categories of specific responsibilities: the duty to provide competent staff; the duty to provide proper plant and work appliances and apparatus; the duty to provide a safe work place; and the duty to provide a safe work system. The duty to provide a safe work place relates to the employer’s responsibility imposed by the common law to ensure that the work site is reasonably safe, while the employer’s duty to provide a safe work system relates to the responsibility to ensure that the actual mode of conducting the work is safe.

Since the case of Colbert v State of Papua New Guinea [1988-89] PNGLR 590, it appears that the employer’s responsibility to provide a safe place of work is not only restricted to the actual work site but may also include any area that the employee uses in connection with and in furtherance of the employment, such as an on-campus technical college lecturer’s house, when the house is provided as a necessary part of the terms and conditions of the employment in view of the lecturer’s duties which may involve supervision of night study.

Concerning the employer’s duty to provide a safe system of work, the National Court in Wilhelm Lubbering v Bougainville Copper Limited [1977] PNGLR 183 has stated that “an employer has a duty to devise, institute and maintain a safe system of work” and this duty entails “such matters as the layout of the job, the sequence in which the work is to be carried out and the provision of special warnings and notices”. The court has gone on to expound on the nature of the duty in the following terms:

“The employer’s duty to provide a safe system of work imposes a responsibility upon him to co-ordinate his employees’ activities in any given operation, the methods in which those operations are to be executed and the use of particular equipment and machines. It also requires the provision of proper equipment and safety devices, the arrangement of their use and the giving of adequate warnings and instructions in relation to the operations in which an employee is engaged.”

This statement of law has been accepted in subsequent cases in Papua New Guinea, such as that of Edwards v Jordan Lighting and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273. The court there went further and stated that:

“[A]n action based on an unsafe system of work must establish four separate issues of facts, viz:

(i) that the defendant’s operations involved a risk of injury which was reasonably foreseeable;

(ii) that there was a reasonably practicable means of obviating such risk;

(iii) that the plaintiff’s injuries were caused by the risk in question; and

(iv) that the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.”

In determining whether an employer is in breach of the duty of care, the test to apply is as proposed by Diplock J in Houghton v Hackney Borough Council [1961] 3 KB 615 (at 618), namely “has the employer taken reasonable care, paying special attention to the risk and paying reasonable attention to other circumstances?”.

The Australian High Court in Turner v South Australia (1982) 56 ALJR 839 has further amplified the test, by stating (at 840), that:

“where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will, in general, be negligent.”

In this jurisdiction, the National Court has accepted and applied this test in determining liability in Colbert v State of Papua New Guinea [1988-89] PNGLR 590. In the particular circumstances of the Colbert case, the court found that the security measures which the defendant failed to adopt such as erecting a perimeter fence and floodlighting, were measures which were readily available with little or no difficulty and within reasonable cost to the defendant, and therefore held the defendant negligent and hence liable to the plaintiff.

The employer’s duty in Papua New Guinea to provide a safe system of work has two primary bases: statute and common law. Having considered the common law duty, I now turn to the relevant statutory material.

Statutory Duty to Provide a Safe System of Work

The statutory bases of the employer’s liability is mainly to be found in the Industrial Safety, Health and Welfare Act (Ch 75 of the Revised Laws), the Mining (Safety) Act (Ch 195A), and the Workers Compensation Act (Ch 179, as amended). The Occupational Health, Safety and Welfare Act 1991 (No 12 of 1992) must also be mentioned in this context, but at the time of writing the legislation has not yet been brought into force.

The Industrial Safety, Health and Welfare Act is part of a legislative scheme in which the Act is supplemented by industry specific codes, referred to as Orders, which then prescribe certain minimum safety standards relative to the type of work conducted in the given industry sector. There are in all eight such Orders under the Act. One of these is the Industrial Safety (Building Works) Order which addresses specific safety issues pertinent to the building industry sector, and amongst a host of matters imposes minimum safety conditions for the use of ladders in building works (see s 11 of the Order, which is cited below).

The legislation referred to, together with the accompanying regulations and Orders, impose on employers certain statutory duties to provide a safe system of work. Some of these statutory duties imposed are in fact “strict” – in the sense that proof of fault or negligence on the part of the employer is immaterial. What matters is the fact that the accident has occurred, and that in itself renders the employer liable. An example of such a provision is s 21 of the Mining (Safety) Act that says that the occurrence of any accident at a mining work place is “prima facie evidence of negligence on the part of the owner of the mine and manager of the mine”.

Breach of statutory duty is in itself an actionable tort, quite apart from either a claim for damages at common law (for failure to provide a safe system of work) or any existing statutory remedy or compensation scheme such as those under the relevant legislation, including the Workers Compensation Act. In an action for negligence at common law, moreover, “a breach of the regulation is no more than a piece of evidence of want of reasonable care to be taken into account with all other evidence in the case”: Tucker v Mc Cann [1948] VicLawRp 20; (1948) VLR 222 (at 227). In other words, a breach of statutory duty is good evidence for the plaintiff in an action for negligence at common law.

The exact nature of an employer’s duty is determined by the wording of the relevant statutory provision. In some cases, the employer’s duty may be limited to taking measures “as far as practicable”, or to take reasonable care. In other instances, the duty imposed by statute may be an absolute duty – if so, the employer will be in breach of such statutory duty not withstanding having taken all reasonable steps to ensure compliance. For example, the duty imposed by s 11 of the Industrial Safety (Building Works) Order of the Industrial Safety, Health and Welfare Act for an employer to provide a securely fixed ladder is an absolute duty, given the use of the word “shall”, in the wording of the provision. This was a relevant issue in the Re Walter Roth Case, now to be considered.

Walter Roth v Ok Tedi Mining Limited

In this case, the plaintiff had been erecting speakers in the mill plant of the defendants with two assistants. The procedure followed was to mount the speakers about 3 to 5 metres above the ground. Each speaker weighed between 5 to 10 kilograms. The procedure adopted was for each speaker to be carried up the ladder and mounted by a person working from the ladder. Sometimes, if there was a walkway above, a rope was attached to the speaker to take some weight. Even with the rope attached, however, it was still necessary for someone to climb the ladder and also use a rope to take some of the weight. When the plaintiff was working with the assistants, it was the practice for one of them to hold the ladder at the base as an anchor.

On 25 February 1989, the fateful day that the accident occurred, the plaintiff’s two assistants were taken away by another employee with the consent of the supervisor. When the plaintiff protested, he was ordered to get on with the job, and given a further warning that otherwise he would probably have no job. The plaintiff then continued without any assistant holding the ladder as anchor. Although the ladder had rubber shoes, it was standing at an angle on a smooth concrete floor, with the top of the ladder resting on one of its rungs (steps) against a metal column. The ladder was too wide for the outside rail to rest against the column. On the plaintiff’s third ascent, the ladder slid from under him. He fell to the floor, with his left knee landing heavily on one of the rungs. He consequently suffered a fractured knee and severe injuries which ultimately resulted in a permanent disability of 15 percent loss of the use of his left knee.

In finding the defendant negligent, the court referred to and adopted the approach taken in the Edwards v Jordan Lighting Case, referred to above. After addressing “the four separate issues of facts” set out in that case to determine negligence, Jalina J found in the circumstances of the Walter Roth case that the defendants had failed to provide a safe system of work and therefore had been negligent.

On the issue of statutory duty, the court found that the defendants were in breach of a statutory duty imposed upon them as employer by s 11 of the Industrial Safety (Building Works) Order of the Industrial Safety, Health and Welfare Act (Ch 175). This Order provides:

“A ladder shall, as far as practicable, be securely fixed so that it cannot move either from the top or from its bottom points of rest, or if it cannot be so securely fixed:

(a) it shall, when practicable, be securely fixed at the base; or

(b) if fixing at the base is impracticable, a person shall be stationed at the base of the ladder to prevent it from slipping.”

From the evidence, Jalina J reasoned that the plaintiff had been using the ladder and carrying out the work in safety for as long as the two assistants were with him. There was no evidence from the defendants that the ladder was securely fixed either at the top or the bottom. As long as the assistant stood at the base of the ladder and supported it, the defendants complied with s 11(b) of the Order. As soon as the assistants were taken away, on the other hand, the system of work became inherently dangerous, resulting in the breach of their statutory duty. The defendants were therefore both negligent and liable for breach of a statutory duty.
On the issue of the plaintiff’s contributory negligence, as alleged by the defendant, the court applied the decision of O’Hill v Kayel Shipping [1980] PNGLR 361, holding that it does not amount to negligence on the part of an employee to follow a system of work accepted by the employer even if it involves obvious risks. Nor is it contributory negligence for an employee to take a deliberate risk in the interest of the employer. This point was emphasized by Jalina J (at 11):

“If the risk of injury arises from a failure to provide safety equipment or the need to work at height with a precarious hand hold or a dangerous system of carrying out electrical tests or the failure to equip trucks used on an inclined track with proper brakes, there is no contributory negligence to carry out the employer’s system. The plaintiff is not expected to break away from the system and devise another for himself.”

Damages for the plaintiff were assessed in the amount of AUD$269,976, under the various heads of pain and suffering, loss of amenities, past loss of income, future loss of income, out of pocket expenses, and interest at 8 percent from the date of issue of the writ.

Conclusion

The blatant disregard for safety demonstrated by the actions of the defendants’ supervisor and other employees in the circumstances of the Walther Roth case are quite extraordinary. To threaten an employee with dismissal when an employee raises legitimate questions of safety is, in my view, being wantonly reckless. Under these circumstances, the defendants were lucky to have escaped exemplary damages being awarded against them, as a punitive measure, in response to their reckless behaviour (through their agent, the plaintiff’s supervisor). That issue aside, the judgment is an excellent one, clearly setting out the relevant issues and principles without deviating from the otherwise established doctrines of law in this area of workplace safety and employer’s liability.

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^[*] Lecturer in Law, University of Papua New Guinea.

^[1] L Kalinoe, “A PNG Account on Employers’ Liability at Common Law”, in L Kalinoe and A Mellam (eds), Occupational Health and Safety Issues in Papua New Guinea (Law Faculty, University of PNG,1997), pp 94-104 at p 94.