Kama v Dage [2009] PGDC 118; DC386 (22 May 2009)

DC 386

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCC 386 of 2008

BETWEEN

Barnabas Kama
Complainants

AND

Anis Dage Trading
as Jomba Trading
Defendant

Waigani E Wilmot
2009:

CIVIL - common law principle of duty by the employer to ensure a safe environment for its employee

Cases Cited
James Robert Colbert v The State [1988-89] PNGLR 590

References
None Cited

Complainant appearing in person
Defendant appearing in person

22 May 2009

This is the hearing of an application by the Defendant to dismiss a claim for damages resulting from a robbery on the defendants shop. as a result of the robbery the complainant’s hand was slashed off.

The Application

The application seeks the following orders:

The proceedings be dismissed in its entirety as it is frivolous vexatious and abuse of processthe respondent pay the cost of this application and other orders court deems fit.

The basis of this application relies heavily on the fact that form 17 of the Workers composition had been signed effectively closing his case for assessment thus ending this claim.

Further the defendant is claiming that between the time of accident to now he has been assisting the complainant for little needs. He brings to the court times of when these times he assisted the complainant. I note that from the affidavit supporting the application to dismiss from the figures he has quoted an amount of K12000.00 I calculate something in the vicinity of K6300.

Mr Dage has also brought three witnesses to support his application to dismiss. Each say pretty much the same. That Mr Dage has paid K4000.00 to the respondent and has helped him in his time of need and that they are surprised claim raised.

That in light of that he seeks orders to dismiss the matter.

In response the respondent states the following he is permanently injured. I defended the defendant’s property. That he had lied to him in that he gave assurance to the labour department assurance to compensate the complainant by K16000. Upon giving that assurance form 17 was filled.

My findings

This is a case where the common law principle of duty by the employer to ensure a safe environment for its employee. In a case where it shows there is a duty owed to the employer he must compensate the employee for the injuries he sustains. the caes of James Robert Colbert v The State [1988-89] PNGLR 590 reiterates this common law principle
I find that the application is premature. Only through trial proper can liability be determined or dismissed. To seek to dismiss on the basis that he has spent money on the respondent is not enough. The court notes the defendant's promise to settle by way of damages the injuries. The result was the signing of the form 17 of the workers compo act by the Respondent.

I note that the assessment from the labour office was K16000, from Steven's lawyers it was assessed at K20,000.00. the defendant has made compensation for K4000. I add no amount of money will ever bring the respondents hand back.

I add also although the defendant did not directly injure the complainant it raises the issue where there was care taken by the employee to safeguard his workers.

I do not find the claim frivolous, vexatious and an abuse of court process. In highlighting these points I find for the respondent and I dismiss the application and order that the matter go to trail proper.

E Wilmot: 22 May 2009

Complainant appearing in person
Defendant appearing in person