British New Guinea Development Company Ltd v Taritna [1980] PGNC 42; N272(L) (19 December 1980)

N272(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 467 OF 1978

BETWEEN

BRITISH NEW GUINEA DEVELOPMENT COMPANY LIMITED
APPELLANT

AND:

ARARA TARITNA
KIWINTAVE KIROKANDE
A’NATA KIROKANDE
IMARA KIROKANDE
KAFISE KIROKANDE
RESPONDENTS

Waigani: Pratt J
3 March 1980
19 December 1980

PRATT J: In this appeal I have had the benefit of oral and lengthy written submissions by both counsel and a closely reasoned judgment of the Arbitrator/Magistrate, Mr Paul Quinlivan. His final conclusion reads as follows:

"There is not the slightest possibility of doubt that Kirokande Konga had to live on the plantation, in the quarters provided by the plantation, as part of his conditions of employment and so that he could comply with his undertaking under the contract of employment. There is nothing to suggest that he had done anything which would, in law, have deprived him of the protection of the workers’ compensation law and, accordingly, I find that his death is compensable."

The learned arbitrator then went on to award compensation in the sum of K2,322.00 to the first of the dependants of the deceased, "together with 27% of the relevant amount for weekly payments for the children".

That decision and award the company now appeals. The case involves a mixture of fact and findings drawn by inference from those facts. The claimant, Arara Taritna, was the wife of the employee, Kirokande Konga, whose death arose out of a tribal fight on Doa Plantation on the 11th March 1970 between two labour lines made up of individuals from two separate and distinct districts (now provinces) in the Highlands Region - the Tari of Southern Highlands and the Okapa of what is now Simbu Province. The arbitration proceedings were commenced in December 1976 and after a series of adjournments at counsel’s request, the arbitrator’s decision was eventually handed down in November 1978. Although the considerable delay in the progress of this entire matter is a cause for some concern, the reasons for such delay do not affect the issues before me.

Apart from some short verbal evidence called before the arbitrator during the hearing, the whole of the material forming the basis for the claim must be culled from the depositions taken at the committal proceedings between April and July of 1970. In the absence of any indication to the contrary, I have taken these depositions to include the exhibits tendered therewith. Such exhibits mainly consist of statements taken by the police from each accused person concerning the death of one of the Okapa men, namely Tunke Wantina. He was one of several Okapa murdered at Doa Plantation Hospital where they had been transferred for medical attention to wounds sustained earlier from an attack on the Okapa quarters by the Tari. Kirokande was also one of the Okapa who died either en route to the hospital or at the hospital itself.

It is a matter of public record that seventeen Tari men were convicted of the wilful murder of Tunke Wantina by the then Supreme Court on the 22nd October 1970.

The events of the evening are best summed up in a statement taken by the police from one of the accused, Tereba Umugo.

"When I came from work I went to the mess. The Okapa cook had cooked the rice. Two men from Tari did not have rice. These men argued with the Okapas about the rice. The Okapa said he would go the European’s house. I went later with three Tari men to the Europeans house. We saw the Okapas at the Europeans house.

When we were walking back down the road the Okapa men were hding (sic) behind the rubber trees near the side of the road. The Okapas attacked us and cut HAME’S hand with an axe. He quickly ran to our house and the Okapas went and hit (sic) by the river. When we were near our house the Okapas fired a shot and hit one of our Taris in the neck and one in the chest. We took the two men into our house. We got our weapons when we saw that the two men were dead. I got my bow and arrows. Others took axes and bows and arrows. We went to the Okapa house and chopped a hold (sic) through the wall and knocked the door down. I shot my arrows into the house through the hole in the wall. It was dark, I don’t know where my arrows went. I shot many arrows into the house. Two Europeans came and took the Okapas out of the house and put them in the car. I shot 5 arrows into the car. The Europeans took the Okapas to the Hospital. In the morning at the time of the first bell I went with some of the Taris to where the injured men were. I carried an axe. We went into the Hospital and killed the men who were still living. I hit one of the Okapas with my axe. I hit him twice.

I saw that this man was moving so I just hit him with the axe. I do not know where I hit him with the axe. It was dark at the time. I ran back to the house."

The evidence also established that Doa Plantation employed over five hundred labourers made up mainly of Tari, but including men from Okapa and Chimbu. The living quarters of the Tari were some two to three miles from those occupied by the Okapa. The arbitrator took the following matters to be denied by the/then respondent company:

(a) Kirokande Konga was "in the capacity of an employee" at the time of his death, or that

(b) he was "engaged in the respondent’s work" at the time he was murdered, or that

(c) he was murdered by servants or employees of the respondent, or that

(d) he was "injured by any person or persons who was or were at the time of the accident employees of the respondent or workers" within the meaning of the Workers’ Compensation Act, or that

(e) at the time he sustained the injuries which resulted in his death, Kirokande Konga was a worker to whom the Act applied.

The question of dependency and the previously agreed amount of any award, if one were to be made, were not in issue.

The grounds of appeal before me were of somewhat more narrow compass, in the following terms:

1. That the learned magistrate erred in law in finding:

(a) that the deceased, at the time of his death, was a worker to whom the Workers’ Compensation Act 1950 (as amended) applied;

(b) that the death of the deceased was death by injury arising out of or in the course of the employment of the said Kirokande Konga.

The second ground of appeal, that the application had been barred by reasons of the provisions of the Statute of Frauds and Limitations Acts 1951 was abandoned by consent before me. The third ground was that the "findings of fact, namely that the deceased was at the time of his death a worker to whom the Workers’ Compensation Act applied and that the death of the deceased was a death by injury arising out of or in the course of the deceased’s employment were against the evidence and the weight of evidence".

The other relevant main facts come from the evidence of Van der Veen (an assistant manager on the Plantation) taken before the arbitrator, which included the following:

"There were a number of injured, about fifteen, both Taris and Okapas. Some had arrow wounds all over their bodies. Others just had single wounds. It was then decided to take the more serious cases to Doa Hospital. There were six or seven of them. We decided to get an aircraft to take them to Moresby. .....We put the badly wounded cases in the landrover and I worked on the others."

Prior to this stage being reached, the plantation manager had deposed to the fact that an attack by the Taris was in progress at about 11.00 p.m. when he and another assistant manager went down to the Okapa quarters to break up the fight. Whilst Van der Veen was working on some of the injured, the fight broke out again and the landrover itself was attacked. When the assistant manager returned with assistance, it was found that the landrover was out of commission and those six or seven in the landrover had sustained further injuries. Post mortem examinations were carried out on all of those who were found dead in the hospital the following morning and amongst those was the man Kirokande.

There is also evidence that some of the deceased who were taken to the landrover and then to the hospital walked either by themselves or were assisted to walk from the Okapa living quarters.

I find the following facts are established by the evidence or by admissions:

(a) Kirokande was a worker on Doa Plantation and thus a worker for the respondent company.

(b) He died on the plantation on the 11th March 1970.

(c) He was killed during a riot on the plantation between the Tari and the Okapa.

(d) He was an Okapa man.

(e) He was in the Okapa living quarters during the night and inferentially he was injured in those quarters.

(f) Doa Plantation employed about five hundred labourers under a manager and several assistant managers, and is thus inferentially a large plantation.

(g) The respondent is a company of some standing in the country and thus inferentially could be taken to be a party which would observe all the requirements of the Native Employment Act, including the provision of adequate food, housing, medical aid and wages.

(h) Kirokande received a monthly wage of $4.00.

Such other inferences which I consider can be drawn from these facts, and from other material, will emerge during the judgment. I propose now however to deal with the various major submissions made by counsel for the appellant company. He says that the origin of the riot is obscure although there appears to have been some dispute about food, and goes on to say "the evidence also indicates that any problem caused by short rations was alleviated by the issue of two further rations, apparently the number short. There is no evidence that the fight and riot later in the evening were in relation to the shortage of rations". It seems to me that Mr Quinlivan did not have the same difficulty in tracing the occurrences of the night in at least broad outline or the causes of the disturbance. His experience in fact finding within the context of Papua New Guinea is very considerable.

That experience has made my task so much the easier. Frankly, the submission has about it a certain air of sophistry. It is clear that the problem caused by short rations was certainly not alleviated by the issue of two further rations. The evidence shows that the Taris went to complain to the management and on their return therefrom, they were attacked by the Okapas. It is just as clear that the Okapas were either insulted by the fact that some allegation had been made of dishonesty against them or by the fact that the Taris had seen fit to take the matter to the management. On the way back from the laying of the complaint, some of the Okapa attacked some of the Tari and later on some of the Okapa took the matter further and continued the attack at one of the Tari quarters. As a result of that attack, two Tari men died. From that point onwards, the incidents that occurred that night followed as logically as night, the day. It may well have been that the row over the short rations was the straw that broke the camel’s back but from the point of view of this case, it is the real and only logical starting point from which everything else flows.

A little later on in his submission, the appellant says:

"In the present case however, there is evidence of a fight, a serious fight which could even be described as a riot and in my submission, such a fight is not incidental to the employment. There is no evidence that the fight arose out of any incident of employment or out of anything which was reasonably necessary for the worker to do the employer’s work."

For a Court to agree with such a submission, in my view, would be to fly in the face of logic and common sense. The fight clearly arose from a failure of the employer to properly supervise the distribution of food rations which he was obliged to supply under the Native Employment Act. As a direct result of that failure to supervise, a dispute over rations arose which as I have already said, was the final straw which led to the ultimate fatal clashes. It was necessary for the rations to be issued just as it was necessary for the employees to eat the food provided in order to carry out the work of their employer. It is just as obvious that where a large number of men are gathered together on a more or less semi-permanent basis, cut off from their own environment and who by nature and tradition, are likely to divide themselves between "us" and "them". As part of the system of operations, it is not uncommon for the "us" on any one day to be the physical suppliers and cooks of the food for "them". A dispute over short rations, whatever the cultural context, is likely to lead to trouble. Within the cultural context of Papua New Guinea, it is likely to lead to violence which itself will beget further violence. Although no question was put to the management of the plantation on the issue, I am quite prepared to find that the reason for the separation of the Okapa Compound from the Tari Compound was not purely a matter of accident. It was a time-honoured technique adopted as a solution to preventing friction between two distinct traditional "lines", even though historically they live too far apart to be traditional enemies.

The appellant then goes on to say that the Court should take judicial notice of the "pay-back" system which operates throughout Papua New Guinea. The killing of the Okapa men, says the respondent, was retaliation in the pay-back tradition. "If the Court does draw this inference, then the onus rests upon the applicants to prove that the deceased, Kirokande Konga, was not involved in the killing of the Tari men."

Whilst I take full cognizance of the pay-back system in Papua New Guinea, it is important not to overlook the second link in the chain following the dispute over the rice. If one refers back to the statement by Teraba earlier quoted in this judgment, it will be noticed that although the term "the Okapa men" were said to be "hiding behind the trees and cut Hame’s hand", there is no suggestion to my mind that the entire Okapa line had taken up the cause at this stage. It is one thing to say that the line would take up the cudgels where one of their number had been seriously injured or killed. It is another thing to say that the entire line took up the cause. (I note here, it was not the Tari who went to the Europeans’ house first, but the Okapa, and they were then followed up later by three Tari who saw the Okapa at the Europeans’ house when they arrived.) Thus whilst I am prepared to take account of the fact that the pay-back system is certainly a part of life in this country, I am not prepared to say that the whole of the Okapa line or even a goodly part of it was present behind the trees when the original attack on Hame was carried out. I think this is extremely unlikely and would be inconsistent with the way such situations develop. It is apparent also from the evidence that apart from the initial attack by the Okapa, they spent the rest of the time very much on the defensive. As the appellant says, "There is no evidence as to who amongst the Okapa killed the Tari men. There is no evidence as to whether the Tari men were killed by an individual or a group or whether or not the deceased whose dependants are bringing this action participated in those murders." In my view, this statement gets to the crux of the whole matter and shows that what this case really reduces itself down to, is a question of onus of proof. The respondent says that because I cannot be sure that Kirokande was not amongst the original assailants on the Tari, he therefore cannot succeed in his case. No authority has been cited to me to substantiate the submission that the Court is entitled to draw conclusions based on the premise that a party before the Court has been guilty of a criminal offence or indeed has even been guilty of misconduct in the service of his employer. It is one thing to suggest one may draw a general conclusion that such a thing as the pay-back system exists. It is quite another thing to suggest that a consequence is that an individual person was involved in the dispute or more particularly that it is necessary for him as plaintiff to show that he was not involved in it. As was pointed out in the judgment of the learned magistrate, the decision of Barwick C.J. in Danvers v. Commissioner for Railways (N.S.W.)^[1] is of great assistance to the Court on this aspect. His Honour says at p.535:

"But in this case there is no room for any finding that the deceased at the time of the receipt of his injury. Nor could any finding of misconduct be made adversely to him.....Thus, if the use of the van as his nightly residence whilst working at a place whence he could not reasonably be expected to return to his home was an incident of his employment, an injury attributable to that use and to no other activity could be regarded as occurring in the course of the employment."

The appellant has asked that I look at the whole of the judgment and not merely that part quoted by the magistrate, but I can find nothing in the remainder of the judgment to effect this particular issue. The appellant has also emphasised that part of the judgment I have quoted as underlining the fact that injury had to be attributable to the use of the residence as a place for sleeping on returning home from employment and to no other activity. In the present case on appeal he maintains that the death of the worker was not due to the fact he was merely sleeping in the quarters but to the fact that he was a member of a line which had previously committed an unlawful act. I cannot quite agree with the magistrate however that in this case one can simply omit further investigation because of surrounding circumstances. The term "and to no other activity" has a special significance in the present circumstances. It may well be that the reason why the various Okapa men were in their sleeping quarters at night was not for the purpose of sleeping following on a hard day’s work for their employer, but for the purpose of evading revenge logically anticipated from the Tari. That being said however, it again returns us to the question of onus of proof. Admittedly there were some Okapa in the house who were there not using it as a sleeping quarters provided by their employer for the purpose of refreshing themselves in order to carry out a full day’s work the following day, but were using it as a refuge from the anticipated reprisal by the Tari. The real point in issue here however, is whether or not the Court is entitled to draw an inference merely because of the pay-back system that the particular Okapa concerned in these proceedings was indeed using it for those purposes. I can see no justification at all in drawing such inference adverse to the claim before me. In the first place, the pay-back system had not really become implemented until after the two Tari men were killed. The Okapa themselves were not involved in the pay-back other than as recipients. It was the Taris who introduced into the equation the use of the pay-back. Consequently, on that basis alone, I cannot see how I can draw an inference adverse to the claimants but more particularly, I do not see how I can draw such an adverse inference merely based on the fact that the applicant was a member of a line, some of whom had initiated the second and third links in the chain by striking the hand of Hame and killing the two Tari men. Provided the applicants have shown that the deceased was a worker for the employer and that he was sleeping on the premises as part of his employment and that his death arose out of that sleeping on the premises, then it is clearly for the employer company to show that the worker took himself out of the Native Employment Act by committing illegal or unlawful and criminal acts. I know of no authority which allows me to make a presumption that because certain members of a group, even within the context of Papua New Guinea culture, were engaged in unlawful acts, that therefore the individual claimant was equally engaged. What has occurred here is an insidious reversal of onus brought about by a series of steps, each of which in itself is slightly off centre, leading to the final result which pro-supposes that it is the applicant who must discharge the onus, whereas in fact it has always been the task of the respondent to prove the performance of some illegal act once the employee has established his bona fide position as a worker and that the injury occurred to him in the course of his employment.

Unfortunately in this case the employment agreement between the company and the worker was never produced. It has been said on a number of occasions, for example in the judgment of the learned arbitrator, that the worker was "an agreement worker". I would certainly have no difficulty in finding that at the commencement of his period of employment, he must have been an agreement worker in 1970, for that is about the only method by which one could find a line of highlanders working on a plantation. The scheme was generally called "The Highland Labour Scheme". It has also been suggested that he may have been a casual worker and therefore one to whom other provisions of the Native Employment Act applied. In my view the answer is summed up by the respondent’s counsel when he points out that on $4.00 per month, it would be quite unrealistic to expect that he was anything else other than an agreement worker for whom accommodation and food had to be supplied. It is obvious from the proceedings that his wife and family were back in his home village and that he was living in single quarters with a number of others from his area. To suggest that he may have set up some quarters outside the plantation, having come to some arrangements with the local inhabitants for a piece of ground for his house and gardens, would be to engage not only in speculation but sheer fantasy. It is obvious that the arbitrator was left in the position where he had to decide whether or not Kirokande was an agreement worker within the meaning of Part VII of the Native Employment Act 1958. The evidence before the arbitrator showed Doa to be a large scale rubber estate with its own factory. There was a manager and several assistant managers with their own married quarters. The labour was employed in divisions, each division having its own hospital. Indeed, various references throughout the depositions tendered before the arbitrator all indicate that this was a large scale operation. I have no hesitation in accepting the arbitrator’s finding that Kirokande was an agreement worker, despite the lack of direct evidence on this point. It is against the probabilities that a company carrying on an enterprise of this magnitude would not act in strict compliance with the Native Employment Act and with the bias towards Highland labour, the probabilities are that the employment conformed to the standards of the "Highland Labour Scheme".

I have already dealt at some length with whether or not the death of the worker was occasioned in the course of his employment when considering the question of onus of proof. A large number of authorities have been cited to me by both counsel covering a wide area of fact and diverse statements of the law. With every respect to counsel however and for the considerable research and labours they have brought to their task, I rather feel a situation has been created where the wood cannot be seen for the leaves. I do not therefore propose to deal with each and every authority cited, but will merely content myself with ascertaining the legal principles which would apply to the facts as I conceive them to be found by the learned arbitrator. Obviously, the case of Danvers (supra (1)) referred to a little earlier is of particular significance. In the course of his judgment at p.536 of the report, His Honour the Chief Justice discussed the question of an employee residing in premises supplied or required to be occupied by him in the course of his employment. He may therefore be required to be in a place "at which the workman’s presence is so consequential upon or incidental or ancillary to the employment that, in being there, he is doing something in virtue, or in pursuance, of his employment". Considerable emphasis was laid by counsel for the applicant company on what was called the strict test in the case of Humphrey Earl Limited v. Speechley^[2]. To my mind, in that case, the facts therein have little if anything at all to do with the type of case before me. I cannot see the relationship between someone who is residing in premises allocated to him by his employer, who receives a wound which was either fatal whilst he was in the premises or placed him in a condition to sustain the fatal wound (albeit some of his "line" were responsible for starting the whole fracas), and an employee going off on a frolic of his own in order to obtain a fish lunch with a few beers instead of obtaining a repast from a vicinity much closer to his employer’s place of work. As Mr Justice Dixon (as he then was) states at p.134 of the report:

"The point in such case as this is not whether it is reasonable to eat lunch or reasonable to want fish for lunch. The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties."

The relevance of that statement of the law to the present facts of course is that the magistrate has found it was reasonably incidental to the performance of his functions that the employee remained on the premises provided for him and as I have already stated, there was no evidence put forward by the appellant company which indicates he was doing anything else other than residing in those premises when the fatal wounds were delivered or commenced. In Baudoeuf v. Department of Main Roads^[3], the claimant although not required to stay in a hotel close to his work, did have his accommodation fees paid by his employer. In the process of residing at the hotel, he was injured whilst in the bath. As taking a bath was regarded a reasonable incident of living in an hotel and staying at an hotel was part of his employment, the Court had no difficulty in finding that the injury was incurred in the course of his employment. Perhaps however the most apposite statement of the law to the present case appears in Sconce v. James Sandy Pty. Ltd.^[4] which was agreed to by Mr Justice Jacobs in Baudoeuf’s case (supra (3)) at p.263:

"It is incorrect to say that all injuries sustained by a worker whilst living for employment purposes away from home are compensable. It is still the law that even in the case of such workers, the injury must be received whilst doing something incidental to the requirements of employment. A camp worker who receives injury whilst returning to camp with necessary food is entitled to compensation. If, after an evening meal, and whilst returning to camp from a visit to the local cinema, he receives an injury, he should not receive compensation. Between these two somewhat extreme cases, there will be a field of circumstance and fact which is for the exclusive determination of the Commission."

As the appellant himself says, after citing this particular authority, where an employee is living in the premises between periods of work and is injured as a result of an incident of so living, then such injury would be compensable. However, he claims that the present respondent’s husband cannot be so classified because he was engaged in criminal conduct. Yet, as I have said before, on the balance of probabilities the only real evidence seems to indicate that the worker was staying in the premises because that was the only place which he could go to at night-time. To use the appellant’s own words (from page 3 of the original submissions), the worker was "not actually in the middle of a working day as in Kavanagh’s case but was resting in accommodation supplied by the employer".

Bertram v. Australian Shipping Line^[5] was a case involving the murder of a seaman on board his ship whilst the ship was berthed. When the seaman was off duty, he was free either to leave the ship or remain on board. The District Court held that the term "accident" extended to death by murder and that it was no longer necessary there should be a causal connection between the injury and the employment of its incidents in order to establish personal injury by accident arising in the course of employment. Whilst dealing with submissions of counsel, it is obvious from the comments of His Honour (Judge Head), that a major distinction arose between the present case before me and that before His Honour, namely the choice given to the seaman to remain on board or reside ashore. That choice of course does not exist in the present case, and in my view, makes the position of the present applicant even stronger than that in the case before the District Court. The decision was given in favour of the seaman and apparently no appeal was successfully launched in a superior court. With respect to His Honour, it seems to me that his conclusions are correct and I would adopt the general line of reasoning which His Honour has followed in that case.

A great deal of emphasis was laid by the respondent on Kavanagh v. The Commonwealth^[6] where a Commonwealth employee left his place of employment to go to a nearby convenience and subsequently vomited as a result of which he ruptured the oesophagus. The cause of the vomiting was never explained but he died six days later from broncho-pneumonia and heart failure. At pp.256 & 257 of the report, Dixon C.J. discusses the general principles applicable to workers’ compensation cases and especially the contrast that has arisen between the term "out of his employment" and the term "in the course of his employment":

"Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connection between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression ‘in the course of the employment’ there had been discovered any element of causal relation with the employment and its incidents.....But throughout the long history of the expression it seems to have been understood as directed to the scope of the operations authorized or allowed or growing out of the employment and not to any causal relation otherwise with the employment."

At p.558 of the same case His Honour Mr Justice Fullager succinctly puts the matter thus:

"But what does emerge from a consideration of the cases, is, I think, a significant fact that the effect of requiring a causal connection between employment and injury is always attributed to the words "out of" and not to the words "in the course of" .....The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connection."

During argument and in the arbitrator’s decision, reference has been made to those cases where the employment required the worker to remain on certain premises, for example at a military base or a vessel. Here I suppose there is an obvious analogy where a large number of labourers are required by the very nature of their employment and the distance of their home area from the place of such employment to reside in barrack style accommodation. In Adcock v. The Commonwealth^[7] counsel for the respondent/applicant has pointed to part of a judgment of Windeyer J. at p.212 where His Honour says:

"But ordinarily members of the services who are serving in a ship or quartered in barracks or camp live there because of the nature of their employment, even though they might have had permission to live out had they wished. The ship to which a sailor belongs, the camp or barracks where a soldier is stationed is not just the place where he works or the place where he is given board and lodging. Once a sailor comes aboard, once a soldier passes the quarter-guard, he becomes and remains subject to the discipline of the ship or station, whether he goes on duty forthwith or becomes a member of the watch below or is off-duty in his lines. It is specially clear that men in the services are, while within the precincts of their establishments, within the sphere of their employment."

I do not for one moment consider if one of the soldiers or sailors engaged in an unlawful act whilst in the barracks or on board ship which resulted in a reprisal, he would still be covered by the Workers’ Compensation Act. Mr Justice Windeyer contemplated no such thing. But certainly the decision is clear and obviously persuasive authority to establish that in the ordinary course of things, where a person must by virtue of his employment live on the premises, then he is still a worker within the terms of the Workers’ Compensation Act. It seems however to me that once it is conceded or, as in the case of the arbitrator in the present matter, found, that there is no evidence to suggest the applicant was engaged in any unlawful enterprise, that the principle of pay-back applies in Papua New Guinea and that the applicant was a member of a line some of whom engaged in an unlawful attack in the first place, then all the authorities point one way. If it is the appellant company’s contention that the worker is taken out of the ordinary principles of law applying in such circumstances where he is residing on the premises of his employer, then it is for the employer to show the circumstances which would justify such a course. I do not consider the fact that the court may take judicial notice of the operation of the pay-back system in Papua New Guinea means that the onus of proof is reversed and that such acknowledgement by the Court carries with it an inference that an individual claimant has the duty of proving that he was not a member of the party which carried out the payback. In any case, as I have said, the Okapa were not the pay-back line. Who or how many of the Okapa engaged in the initial attack on the three Tari men will never be known but it is not for the applicant to prove that he was not a member of that group. It is the appellant who carries such onus. I would with respect adopt the words appearing on the final page of the learned arbitrator’s judgment where he says:

"There is absolutely no suggestion that he (Kirokande) became ‘involved’ in anything except, some years previous to his death, in a contract of employment which required him to work in a far distant place where an ‘incident of the employment’ was the necessity that he be where he was, whether sleeping or sitting, talking or waiting in apprehension, when the attacking arrows came and hit him. It is this fact, the fact that because it is an ‘incident of the employment’, that he be where he was when the arrow struck him - both on the first occasion and on the second, after he had been placed, defenceless, in the landrover which alone is important."

At the outset of this judgment I set forth the final conclusion reached by the learned arbitrator/magistrate. I find nothing in the law or on the facts which convinces me that there is any error in the magistrate’s conclusions or in the final order which he made. Specifically I consider that the magistrate was entitled to find that at the time of his death, the deceased was a worker to whom the Workers’ Compensation Act applied and further, that the injuries which he received arose in the course of his employment by British New Guinea Development Company Limited on Doa Plantation. Further, I do not consider that either of the findings of fact by the magistrate referred to in the notice of appeal was either against the evidence or against the weight of the evidence. Consequently, I would dismiss the appeal and affirm the original order made by the arbitrator on the 16th November 1978. I shall leave the question of whether or not interest is due and payable and if so, at what rate, for further submission, if either party applies.

Solicitor for the Appellant: Beresford Love & Co.
Counsel: T. Glen
Solicitor for the Respondents: D. J. McDermott, A/Public Solicitor
Counsel: D. J. McDermott

---

^[1] 122 C.L.R. 529
^[2] 84 C.L.R. 126
^[3] 87 W.N. (Pt. 2) (N.S.W.) 257
^[4] (1967) 1 N.S.W.R. 699
^[5] 1 D.C.R. (N.S.W.) 200
^[6] 103 C.L.R. 547
^[7] 103 C.L.R. 194