Kurum v Opa (No 2) [2002] PGDC 5; DC140 (14 February 2002)

DC140
PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 21 OF 2001

BETWEEN

BEPI KURUM

Complainant

AND

MOLSON OPA & 6 OTHERS
Defendant

Mt Hagen: M Pupaka
2002: 14 February

Master and Servant - Injury in the course of employment - Liability for damages - Claim in common law and workers' compensation alternative remedies - Workers' Compensation Act Chapter No. 179, section 84.

Workers Compensation Act Chapter No. 179 - Injury to worker -Requirement for notice to be given by employer to the Registrar of Workers' Compensation Office - Notice not given - Injured worker not eligible to claim under the Act.

Workers Compensation - Injured worker to pursue claim for damages for injuries against employer within 3 years from date of injury.

Negligent conduct - Also breach of section 42 of Workers' Compensation Act - An offence under section 45 of Act - Claim based on negligence not subjected to a 3 year limitation - Frauds and Limitations Act (1988), section 16(1) applicable.

Cases Cited
Joseph Tonava v Electricity Commission of PNG [1987] PNGLR 81.

Counsel
The Complainant in person

Mr Peri for the Defendants

M.M. PUPAKA: The complainant sued for damages or alternatively a sum of K4831.50, principally against the 7th defendant - WR Carpenters & Company Estates - on the basis that the 7th defendant or its employees and servants failed to give the required notice to the Registrar of Workers' Compensation within time. This failure of the 7th defendant was subsequent to the complainant suffering injury to her eye whilst in the employ of the 7th defendant. The alternative claim of K4831.50 seems to be based on calculations made by the Workers Compensation Office as the amount the latter would otherwise have awarded to the complainant had the 7th defendant given notice of the complainant's injury within time to that Office.

This matter comes before me for hearing after Magistrate Koi had it fixed for ex parte hearing on the 30/12/01, when only the complainant attended in court and there was no appearance by the defendants. Hence the matter was fixed for ex parte hearing today. A perusal of the endorsements on the file reveals that the matter has been ready for hearing for a relatively long time. Affidavits from the parties had been filed. Various hearing fixtures were vacated, for one reason or other. In fact the parties filed final submission for the Court's consideration. Whether the final submissions were filed at the request of the Court is not certain. The complainant and the 1st, 2nd, & 3rd defendants who have appeared before me today request that the Court proceed to consider what is already on file, including the previously filed submissions and hand down a decision. I am of the view that there is nothing wrong or unfair with this Court adopting that approach. After all a final submission from Mr. K Peri of counsel for the 7th defendant is already on the court file.

I must note one pertinent observation at this juncture. It seems the 1st, 2nd, & 3rd defendants are all in support of the complainant. They each have filed affidavits affirming that the complainant was injured as alleged. They also say that since the 7th defendant defaulted in giving the requisite notice to the Registrar as per section 42 of the Workers Compensation Act Chapter No. 179 (herein after referred to as the Act), the 7th defendant ought to be held liable on the basis of its negligence. It seems the 7th defendant is alone on the other side whereas at least the first 3 defendants are conceding to the complainant's case.

The complainant alleged that she was picking tea leafs on or around the 23rd May 1995 at the 7th Defendant's No. 8 Block and in the course of it she pulled off some "juicy ropes and the juices went into" her eyes. The injury was reported to the 7th defendant but the complainant says her employer and its servants did not notify the Registrar of Workers' Compensation. She says she has suffered 100% loss of vision in her left eye as a result of the injury. The only evidence of this 100% loss of vision is a copy of a Labour Office medical form (injury assessment), which was part of the documentation she sent by herself, as it seems far too late, to the Workers Compensation Office. On the form, a Dr. F. Takitaki of P. O. Box 3910, Morobe Province noted 100% disability of the complainant's left eye. The complainant has therefore sued the defendants, particularly the 7th defendant, for neglecting to notify the office of Workers' Compensation, as it is duty bound under section 42 of the Act.

The defendants seem to have denied liability on all aspects. Yet, despite the formal defence filed the defendants have provided little or no evidence contradicting evidence adduced by the complainant that she was a casual employee of the 7th defendant at all relevant times, and that she was injured in the manner alleged by her. She specifically charges that the 7th defendant failed to give notice to the Registrar of Workers' Compensation, thereby rendering her claim against that office out of time by virtue of section 41 (2) of the Act. There is no evidence that the 7th defendant did in fact notified the Registrar of Workers' Compensation and so I am compelled to agree with the complainant that the 7th defendant failed to give notice thereby possibly committing an offence. An employer who fails to give notice under section 42 of the Act is guilty of an offence as further stipulated in section 45 of the Act.

The defendants, particularly 7th defendant, seem to deny liability on the bases that the complainant had not commenced this proceeding within 3 years as stipulated in section 84(2) of the Act. It is necessary to restate the whole of section 84:

"84 Liability independently of Act

(1) This Act, except as expressly provided in it, does not affect any liability, which exists independently of it.

(2) Where a worker or his dependants, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the date on which the injury occurred.

(3) Where a worker has recovered judgement against an employer independently of this Act for damages in respect of an injury, he shall not commence or continue any proceedings for or in relation to compensation under this Act in respect of the same injury.

(4) A worker shall not commence or continue any proceedings against his employer for damages independently of this Act in respect of any injury after he has obtained a final award against his employer, under which his employer is liable to pay compensation under this Act in respect of the same injury.

(5) Any sum received by a worker from an employer by way of damages in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of compensation under this Act in respect of the same injury.

(6) Any sum received by a worker from an employer by way of compensation under this Act or under a law of any other country in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of damages in respect of the same injury." (Underline added).

It seems the scheme of things in this section serves three distinct purposes. First of all it acknowledges that liability independent of the Act is not restricted or excluded. To that end the words of subsection (1) are only clear and exact. Secondly the section seeks to protect employers from injured employees who have received final payments for the same injury under the Act or under a law of any other country. A reading of the whole section, (subsections (1) to (6) therein), clearly shows this second intention and purpose of the section. Thirdly, the section - specifically in subsection (2) - places a time limitation of 3 years within which claims for damages in respect of personal injuries may be brought against employers by those who are entitled to receive compensation or have received compensation (but not final compensation) under the Act.

Incidentally the 7th defendant also filed a motion upon notice to have this proceeding dismissed. To date that motion has not been moved. The application for summary dismissal of this proceeding was to have been based on section 84 of the Act. A case precedent referred to in the affidavit in support of that notice of motion was said to support the proposition advanced by the defence council in the application, and the whole thrust of the defendants' defence. The case is that of Joseph Tonava v Electricity Commission of PNG [1987] PNGLR 81. The facts of that case reveal that the plaintiff was a labourer with the defendant. He suffered injuries in the course of his employment. A claim under the Act was lodged and he was paid an award. Thereafter he commenced proceedings to make further claims under section 84 of the Act. In an application to have the statement of claim struck out on the basis that it did not disclosed any reasonable cause of action, the National Court, whilst granting the application, said following:

"A worker injured during the course of his or her employment has the right to claim compensation under the Act or sue his/her employer for damages independently of the Act. Section 84 preserves this right. It also ensures that an employer does not pay compensation under the Act as well as damages outside the Act for the same injury (or injuries).

Subsection (2)

Mr. Tedor for the respondent relied on this provision and submitted that it allowed his client to sue for damages for injury for which he has been finally awarded K13140.24 under the Act. Reading the provision in isolation one gets that impression. But reading it in the context of the whole section a different impression is very clearly presented. I consider that subs has one clearly defined purpose - to advise workers that if they wish to claim for damages for personal injury outside the Act their claims must be instituted within three years from the date of injury. To read the provision the way Mr. Tedor suggested would render sub ss (3) and (4) meaningless and I do not consider that Parliament intended to do this.

Subsection (4)

This provision does not conflict with subs (2). Its purpose is the protection of the employer from having to pay the worker twice for the same injury. If a worker obtains a final award for an injury under the Act he/she is prevented from seeking damages independently of the Act for the same injury. And it is categorically stated that a worker "... shall not commence or continue any proceedings against his employer""

The above adequately sums up section 84 of the Act. It confirms the law as it stands.

So where does that leave this complainant?

In my view the 7th defendant has misunderstood the whole of this proceeding. It has not understood the complainant's claim, which, as alluded to above, is on the basis of the 7th defendant's negligence. The complainant's statement of claim quite adequately sets out her claim against the defendants. It is not necessary to set out here the whole of the statement of claim but I restate the last part of it, just to highlight the nature of the complainant's cause of action in this proceeding:

"12. The seventh defendant is vicariously liable for the conduct of its servants agents who were at the material time and place purportedly executing, reporting, compiling of an accident report which on official duties plucking tea leaves under employment by the seventh defendant, and negligently did not compile a workers compensation claim on time. (sic)

13. The seventh defendant negligently failed within a reasonable time and period justifiable as to the labour laws of its duty as an employer to take care of its employees. (sic)
14. Furthermore the seventh defendant is vicariously liable for the conduct of its servants or agents negligence." (sic)
    

I would reiterate that liability of the 7th defendant and indeed any other employer for that matter, outside of the Act is not excluded by the Act. The restrictions in section 84 only amount to limitation for liability under the Act, - and might I add also independently of the Act - for claims for damages for personal injuries sustained in the course of employment.

Secondly I would again refer to the underlined part of the section 84 (2) quoted above. I think what this provision is referring to, especially the 3 year limitation, is limitations on employee claims for personal injuries per se. In my respectful view the provision does not refer to suits based on negligence of an employer or its servants. The complainant herein has specifically sued for damages based on negligence of the 7th defendant, on the subsequent inaction and breach of a statutory duty. It is different and separate from a claim for damages wholly on the bases of personal injuries, a claim that can only be commenced within 3 years from the date of injury. Section 84(2) refers to a worker or his dependants "having received or is entitled to receive..." However this complaint is neither entitled to receive nor has she received any compensation under the Act. She is not entitled to so receive because her injury was not reported, as it should have been in order for an award to be considered. The claim lodged by her self was filed too late and outside the 12 months limit in any event. Ultimately she can not claim under the Act. She can not now, in my view, commence proceedings against her employer for damages in respect of her eye injury under the Act. She could have done so only within the stipulated 3 years. The words of section 84(1), which provide open exceptions for liability outside the Act, and (84(2) which places a time limitation for suits against the employer, when read together with the rest of the section would, I think, only support this view.

The 7th defendant has not said if the complainant does not have a right of suit against it in torts. In the formal defence filed the issue of negligence has been left untraversed. I can only think this reflects the apparent misconception of the defendants that I alluded to earlier on. Further it is apparent on the evidence that the complainant has lost an opportunity to be compensated under the Act directly because of the negligence of the 7th defendant, and that neglectful act, by statute, is a criminal conduct. A claim for damages for personal injuries under the Act may not have been possible at the time this suit was commenced (for it would have been over 3 years by then). However the complainant's rights in torts were still exercisable by virtue of section 16 of the Frauds & Limitations Act (1988) - it was still within the 6 years allowed by this Act. This suit for negligence committed subsequent to the injuries was, at the time of commencement of this proceeding, not only feasible but was and still is a valid and justifiable claim against the complainant's employer - the 7th defendant.

Further more, the facts and circumstances of the instant case and the Joseph Tonava case (supra) are different. The two cases paint a contrast between what section 84 allows and what it prohibits. Joseph Tonava's case (supra) was the sort of claim that is prohibited by the provision. This complainant's (Bepi Korum's) claim is not, for it does not fall into the restricted or prohibited instances listed under the section, which therefore must necessarily mean that it must be one of the scenarios envisaged under subsection (1). The complainant's right to sue her former employer on the bases of the latter's negligence, which negligence is an offence under the Act itself, is neither restricted nor prevented by section 84. Therefore I hold that the 7th defendant - WR Carpenters & Company Estates - is liable to the complainant for its subsequent negligent conduct which was to the detriment of the complainant.

Damages

Had the 7th defendant sent the required notification and that within time, the complainant would have been paid about K4680.00 in worker's compensation. She would have received a total of K4831.50 allowing for a medical receipt of K150.50. Due to the negligence of the 7th defendant she missed all that and thus has suffered a loss of about that much. The defendants have not said if the suggested figure of K4680.00 plus the special K151.50 is otherwise excessive. I certainly would not think it is excessive in the circumstances. I would therefore assess general damages accordingly and enter judgement for the complaint in the sum of K4831.50 plus costs (only basic and nominal costs) of this proceeding. I order that interest on the principal award of K4680.00 be paid at the statutory 8%.

Complainant: In Person
Defendants: Warner Shand Lawyers