Lune v Van Fleet [2003] PGDC 37; DC278 (12 June 2003)

DC278

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 80 OF 2001

BETWEEN

Pes Nau Lune
Plaintiff

V

Peter Van Fleet
First Defendant

Bundowa Investments Pty T/A As Minj Tribal Tops
Second Defendant

Mt Hagen: Appa - Pm
2002: 4th June, 12 Sept, 30th October
2003: 12th June

JUDGMENT

This complainant was employed by the second defendant Company at one of its businesses known as Plumes and Arrows at Kagamuga which was burnt to ashes. He claims that he was on night duty when assaulted by some drunken PNGDF Soldiers. He was employed as a security guard at the gate. He said in his affidavit that it was about 10pm on 20th July, 1997 when certain drunken soldiers were at the gate requesting to be served beers but could not be served because the bar was closed. The soldiers got angry and attacked the Security Guards. Complainant was one of them who received injuries from a sharp object and became unconscious, bleeding and had to be hospitalized for three days. (Refer to his medical reports attached).

Liability was denied so the case went to a short trial. Complainant relied on his own affidavit and that of his one witness Simon Mond, another employee of the company. During cross – examination by the first defendant, it turned out that Workers Compensation claim was lodged but nothing eventuated ever since. Neither parties were able to produce copies of such claims lodged with the Workers Compensation. The onus was on the employer to give notice of injuries and follow up. In the absence of which, the complainant is entitled to sue the employer instead.

The defence, as it appeared in the affidavit of the first defendant sworn on 21st November 2001 was the wrong naming of the employer and 2nd July the claim was time barred under the Workers Compensation Act ie exceeding one year. For the naming of the second defendant it was already resolved in D/C 110/2001 (Peter Palme v. Peter Van Fleet & Or) that the naming was in order. As for the issue of jurisdiction, the claim is not under the Workers Compensation Act but comes under the general jurisdiction which is still within the six year statutory time limit. The first defendant is being sued in his capacity as Secretary of the company in 1997 and now Director.

In the circumstance, I find that liability was established in that complainant was injured while in the course of duty with the employer and since he was not compensated for under the Workers Compensation Act, the employer is liable for its negligence.

The nature of injury was that he was knifed around the left ribs area, fracture at the 4th ribs. During cross-examination of the complainant (by the first defendant) on 12th September 2002, complainant tendered two medical reports of 1997 and 1998 respectively in court and were noted.

The complainant claims that his injury was commensurate to K10,000.00 in damages. Unfortunately we have no yard stick to do a proper assessment so we cannot go that far. Generally, in serious fractured bone cases, the awards made by higher courts were between K8,000.00 to K15,000.00. Complainant’s case falls far below that. Its really a guess work now. One thing to bear in mind is that the defendants were so confident of winning the case so provided no alternatives in mitigating of damages. That was risky. The medical report dated 28/10/98 rated the injuries at 10% disability of the left chest.

In my view the award cannot exceed K5,000.00 so I would settle at K5,500.00. There is evidence that it took two months for full recovery so he did go through some pain and suffering and inconveniences which no monetary value can be attached. This is reasonable because an award made for 15% disability to leg was K14,000.00. see Pendagi Ban v. The State N827 – 19/3/90.

I enter judgement for the complainant for a sum of K5,500.00 plus 8% interest to start from date of summons to judgement date and cost of the proceeding to be taxed if not agreed.

The judgement debt is to be settled by the second defendant.

Dated this 12th day of June 2003 at Mt. Hagen.

.......................
RAPHAEL APPA
By the Court