Roth v Ok Tedi Mining Ltd [1998] PGNC 115; N1788 (27 November 1998)

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EMPLOYMENT LAW - Employer’s liability for injury to employee - Common law duty of care - Safe system of work - Duty of employer to provide and maintain.

MASTER SERVANT - Liability for injury to servant - Breach of Statutory duty - Industrial Safety (Building Works) Order made under the Industrial Safety, Health and Welfare Act Ch. No. 175.

DAMAGES - Personal injuries - Particular award of general damages - knee injury affecting ability to squat, walk long distances & play sports - male electrician aged 47 at trial.

JALINA J: the Plaintiff, Walter Roth, seeks damages for personal injuries sustained on 25th February 1989 in the course of his employment with the defendant.

The version of facts presented by the plaintiff being unrebutted by failure of the defendant to adduce evidence from either Keith Folley or Andrew Patton (both its employees) I accept the facts put by the plaintiff and for convenience I adopt the summary of such facts as outlined by the plaintiff in his submission.

The plaintiff had been erecting speakers in the mill plant with two assistants. The work had been carried out for about 2-3 weeks. The procedure that was followed was to mount the speakers about 3-5 metres above the ground. Each speakers weighed between 5 and 10 kilograms.

On each occasion the speaker was carried up a ladder and mounted by a person working from the ladder. Some times, if there was a walkway above, a rope was attached to the speaker to take some weight. However, even with the rope attached it was still necessary for someone to climb the ladder holding the speaker. It was almost impossible for one person to both climb the ladder and also use a rope to take some of the weight. When the plaintiff was working with assistants, it was the practice for one of them to hold the ladder.

On 25th February 1989 (the day of the accident), the plaintiff was told by Keith Folley that he required the plaintiff’s two assistants. The plaintiff protested. Andrew Patton, the foreman/supervisor, was in a nearby office. Folley went into the office, spoke to Patton, and then came back to the plaintiff and told him (Plaintiff) that he was ordered to get on with the job, he would probably have no job. Patton and Folley no doubt knew what work the plaintiff had been carrying out for the last two weeks, and the manner he was carrying it out.

The plaintiff ascended the ladder without anyone holding it. Although it had rubber shoes, it was standing on an angle on a smooth concrete floor. The top of the ladder was 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 ascend the ladder slid from under him. He fell to the floor with his left knee landing heavily on one of the rungs.

In his Amended Statement of Claim, particularly paragraphs 4 and 5, the Plaintiff alleges that:

“4. It was an implied term of the contract of employment between the Defendant and the Plaintiff that:

(a) the Defendant would take all reasonable precautions for the safety of the Plaintiff during the course of his employment under the Contract;

(b) the Defendant would not expose the Plaintiff to a risk of injury or damage of which it knew or ought to have known;

(c) the Defendant would provide and maintain safe and adequate plant and equipment to enable the Defendant to carry out his employment in safety; and

“5. Further and alternatively, the Defendant owed the Plaintiff a duty, under the Industrial Safety (Building Works) Order made under the Industrial Safety, Health and Welfare Act (Chapter 175) of 1980:

(a) to take all reasonable and proper precautions for the safety of the Plaintiff during the course of his employment;

(b) not to expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known;

(c) to provide and maintain safe and suitable plant and equipment to enable the Plaintiff to carry out his employment in safety; and

The defendant denies liability and alleges contributory negligence by the Plaintiff by:

(a) the Defendant would take all reasonable precautions for the safety of the Plaintiff during the course of his employment under the Contract;

(b) the Defendant would not expose the Plaintiff to a risk of injury or damage of which it knew or ought to have known;

(c) the Defendant would provide and maintain safe and adequate plant and equipment to enable the Defendant to carry out his employment in safety; and

5. Further and alternatively, the Defendant owed the Plaintiff a duty, under the Industrial Safety (Building Works) Order made under the Industrial Safety, Health and Welfare Act (Chapter 175) of 1980:

(a) to take all reasonable and proper precautions for the safety of the Plaintiff during the course of his employment;

(b) not to expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known;

(c) to provide and maintain safe and suitable plant and equipment to enable the Plaintiff to carry out his employment in safety; and

The defendant denies liability and alleges contributory negligence by the Plaintiff by:

(b) exposing himself to a risk of damage or injuring of which he knew or ought to have known;

(e) failing to use adequate and suitable plant, tackle or appliances to enable the said work to be carried out safely;

(f) using a ladder which he knew or ought to have known was unfit for the purpose.

(g) failing to pay any or any sufficient heed to warning that the ladder was unfit for the purpose.

The plaintiff, in seeking to establish liability, relies firstly, upon the implied duty on his employers, the defendant, to provide a safe system of work under his Contract of employment. Secondly, he relies on the statutory duty owed to him by the defendant pursuant to the Industrial Safety (Building Works) Order made under The Industrial Safety, Health and Welfare Act Ch. 175.

The expression “safe system of work” was considered by Andrew, J. in Edwards -v- Jordan Lighting & Anor [1987] PNGLR 273 to mean “The ordinary or usual method of carrying out the operation in which the employee is engaged. It includes or may include, according tot he circumstances, such matters as physical lay-out of the job - the setting of the stage, so to speak the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and issue of special instructions”.

“What constitutes a system of work will vary from case to case. Speaking generally it includes the arrangement or organization of the operation or process, the sequence in which the various steps in the operation are carried out, the co-ordination of different parts of the operation, the methods of using particular equipment or machines or carrying out particular process, the supply of suitable appliances and adequate manpower, and the provision of proper instructions, warnings and notices before, during or after the operation or process in question. The system of work is, therefore, the usual method of carrying out the operation in which the employer is engaged. It is the method of during the work which, expressly or impliedly the employer must be taken to have approved.

The duty of the employer is a single undivided duty to take reasonable care for the safety of his employees in all the circumstances of the case. To charge an employer with failure to provide a safe system of work does no more than allege that the breach of duty sued upon has occurred in relation to the layout or organisation of the work to be performed. An alternative formulation of the duty is that the employer is under a duty so as to carry on his operation as not to subject those employed by him to unnecessary risk”.

To succeed in a case based on unsafe system of work, a plaintiff must establish four issues of fact and these are set out in Edwards -v- Jordan Lighting & Anor (Supra) at p. 284.

“1. That the defendants operations involved a risk of injury which was reasonably foreseeable.

4. That the failure of the defendant to eliminate the risk showed want of reasonable care for the plaintiff’s safety.”

The relation to the first requirement the plaintiff submits relying on Glass McHugh & Douglas, Liability of Employers, 2^nd edition at p.29 that “it is sufficient for the plaintiff to show that a class of injurious incidents, to which the actual incident belonged, should have been reasonably foreseeable notwithstanding that the precise manner in which the risk worked itself out may not have been foreseeable. He submits that in this instance it was plainly foreseeable that someone carrying a heavy speaker with one hand and climbing up the ladder could be injured by falling or that the ladder could slip if it was not supported.

In relation to the second requirement the plaintiff submits that it would have been easy and inexpensive for the defendant to provide a scaffolding ladder which is a steady structure with a platform for which he could work. A scaffolding ladder or any form of scaffolding would not slide from under his feet be submit.

In relation to the third requirement the plaintiff submits the injuries were caused by the risk in question which should be obvious.

In relation to the fourth requirement the plaintiff relies on what was said regard to a High Court case in Colbert -v- The State [1988-89] PNGLR 590 at 598 and submits in effect that” it was possible for the defendant to guard against a foreseeable risk even though it did not appear to be great, by adopting a means which involved little difficulty and expense and by its failure to adopt such means it would generally be taken to be negligent.

The defendant submits at the outset that it provided a safe system of work and that it was not negligent. The plaintiff, it submits, had been following an accepted and safe system of work for two to three weeks. On the day of the accident however, the safe system was changed when the plaintiff permitted his two assistants to be taken away. The Plaintiff then formed the opinion that the system was no longer safe. Despite this, it submits, he took no alternative measures to make the system safe again - he did not ask for further assistance, he did not ask for a scaffolding ladder, and he did not set up a rope or pulley system which he had been using in the past two to three weeks. Alternatively the defendant submits, he could have simply not carried out any further work on the job until his assistants were returned to him. Each of the measures were simple and easy to implement. The plaintiff did not do any of them, but instead, knowing that it was unsafe, he proceeded to attempt to carry out the job by himself thus failing to take reasonable care for his own safety and was therefore negligent.

With respect, I am not persuaded by the defendant’s submissions. While adept that the system of work was safe for the past two to three weeks, it was so because he was working with his two assistants. When the assistants were taken away, there was no one to support the ladder and assist him even to taken the speakers up the ladder for installation. It can be said that he should have taken steps to make the system safe to work by asking for further assistance, or asking for a scaffolding ladder or used a rope and pulling system. But one must be realistic about employer/employee relationship. An employee does not act against orders or instructions from his supervisors last he risks being terminated. In a multi-million enterprise such as that which the defendant was engaged in, time meant money and as such the plaintiff did not have much operation when Keith Folley, who was senior to him decided to take his assistants away. In fact he was required by his contractor to obey and comply with all lawful orders and directions given by the Company or by any official in authority over him. Clause 9(a)(b) of his Contract (see p.18 of Terms and Conditions of Employment 1984) provides:

(a) Skillfully and diligently perform all the duties and work considered by the company to be within the scope of or incidental to the employment under this contract or as may reasonably by regarded by the Company as being within the capabilities of a person engaged in such employment.

(b) obey and comply with all lawful orders and directions given by the company or by any official in authority over the employee ....”

I am satisfied on the evidence that the requirements stipulated in Edwards -v- Jordan Lighting & Another (supra) has been satisfied by the plaintiff. I am satisfied that the defendant failed to provide the plaintiff with a safe system of work. Accordingly the defendant was negligent. I also propose to consider breach of statutory duty.

As indicated earlier in this judgment the Statute that imposed a duty on the defendant as employer was the Industrial Safety (Building Works) Order made under The Industrial Safety, Health and Welfare Act; Ch. 175. Section 11 of the order provides:

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

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

The purpose of the Industrial Safety (Building Works) Order and what ensues from breaching of such regulations are clearly expressed by Andrew, J. in Edwards -v- Jordan Lighting (supra) at p.286:

“They are regulations which impose duties intended to safeguard the safety of persons engaged in building works and they are regulations which require specific precautions to be taken which I not observed may cause such persons to suffer injury. They confer civil remedies on persons injured by the breach thereof. The duty to observe these provisions is a strict one and once a breach has been established liability for injury caused as a result attaches to the defendant.”

The defendant, whilst conceding that it had a duty under The Industrial Safety Health and Welfare Act, to take care when using ladders and other equipment, and to have a man at the base of the ladder, it submits that the plaintiff also had a duty under s. 41 of the Act to take care, which he breached. The defendant further submits that he also had a duty to take care in his contract which he breached.

Again with respect, I am not persuaded by the defendant’s submission on this aspect. The plaintiff has been using the ladder and carrying out the work in safety with the two assistants. There is no evidence from the defendant that the ladder was securely fixed from either the top or the bottom. The fact that one of the two assistants had to stand at the foot of the ladder and support it clearly shows that it was not securely fixed from either the top or the bottom. As long as an assistant stood at the base of the ladder and supported it, the defendant complied with s.11(b) of the Order. The moment the assistants were taken away upon direction from Keith Folley, the work the plaintiff was required to carry out became inherently dangerous, thus resulting in breach by the defendant, of its statutory duty. On the evidence I find the defendant negligent as well.

The authorities on contributory negligence in an employer/employee relationship are clear. It is not negligent for a workmen to follow the method of work accepted by the employer, even if it involves some obvious risk. Munkman, Employers Liability, 9^th Ed. Pages 568-9. Nor is it contributory negligence for an employee to take deliberate risk in the employers interests O’Hills -v- Kayel Shipping [1980] PNGLR 361 at 368.

The participation of the employee in the practice (of the employer) cannot amount to contributory negligence relieving the employer of liability for breach of its resultant duty to safeguard. 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 dangerious 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 in carrying out the employer’s system. The plaintiff is not expected to break away from the system and devise another for himself. In such cases there is no evidence of contributing negligence fit for submission to the jury (Glass, Mchugh and Douglas, Liability of Employers 2^nd edition at 225 where the learned authors quote from decided cases).

The defendant’s submission on this aspect is along the line enumerated in paragraphs 4 (a) - (b) of its defence which I need not repeat here as I have already done so above. Again I cannot accept the defendant’s submission. The plaintiff was carrying out the work following the system which had been in place for about two to three weeks prior to the accident. The plaintiff proceeded to carry out the work himself when his assistants were taken away at the direction of the defendant’s representative. No reasonable person concerned about safe guarding his employment would go ahead and devise his own system of work. To say that he should have waited for his assistant to return or he should have asked for a scaffolding ladder or that he should have used adequate and suitable plant, tackle, or appliances to enable him to carry out his work safely is simply untenable according to the authorities referred to above. It would be like “digging his employment grave” to bury his employment with his employer the defendant. I find that the plaintiff is not guilty of contributory negligence.

The question now arises as to the amount of damages I should award to the plaintiff which I assess as follows:

The plaintiff suffered a fracture of the lower pole of the left knee when he fell from a ladder on 25 February 1989 whilst being employed as an electrician by the defendant. On 2 March 1989 partial patellectomy was performed in Cairns. He then went to Dr. Leigh Sampson in Brisbane where he was treated with intensive physiotherapy. On examination by Dr. Sampson on 16 October 1989 he found that the plaintiff had no symptoms referable to the left knee prior to the accident.

Residual complaints Dr. Sampson found related to the left knee pertaining to which the plaintiff complained of pain after prolonged standing, difficulty in squatting and there were episodes of giving way and swelling after prolonged standing.

On examination Dr. Sampson found a well-healed mid line scar on the left knee which measured 6 inches above the superior left patella pole such that the left side circumference was 191/2 compared with 21 inches on the right. Range of movement on the left knee was from 0 to 130 degrees compared with 0 to 145 degrees on the right.

On 16October 1989 Dr. Sampson also took X-rays which revealed that approximately one half of the lower part of the patella had been excised. There were some calcifications in the reconstituted patella ligament and on the sky line view there were calcific masses related to the medial and lateral edge of the patella.

Dr. Sampson examined the plaintiff about a year later on 24 November 1990 and found little change in symptoms to his left knee. He still suffered:

Findings on X Ray remained basically the same as on 24 October 1989. Although there was permanent disability, the plaintiff’s condition was more static and stable and he should be able to return to work as an electrician though with some difficulty. He did not indicate any further investigative or operative procedures.

Dr. Michael Gallagher examined the plaintiff on 7^th December 1992 and agreed with the Xrays and other reports carried out on the plaintiff. These would no doubt include the reports of Dr. Sampson and reports of Dr. Noud dated 25^th March and 2^nd December 1992 respectively. Dr. Gallagher found a 20-30% permanent disability in the knee involved.

The most recent medical report on the plaintiff was by Sr Rosemary Taylor Joseph (Surgeon) on 12 November 1996, which was in fact a couple of days before trial of this matter. For convenience I quote the pertinent parts of her report:

4. When sitting, he has to stretch out the leg at intervals or it gets very stiff and painful, this restricts his car driving, and makes air travel difficult. Trains are no problem.

5. When ascending a ladder he cannot easily climb it two legged, he has to use his good leg as the lead leg and follow with the other, ascending one step at a time.

8. He was a keen dancer, now he can only manage a couple of dances in an evening, if he does more, the next day the knee is swollen and painful and he has to rest it for 24 hours.

10. He has had to alter the pattern of his sexual activities because of the knee disability.

11. In 1978 he had his ankle pinned following ankle trauma. Now with the strain of the bad knee on the same side, the ankle aches and swells if he increases his activities.

13. He is unable to squat or kneel to pick up and play with his five month old daughter.

14. He cannot wear the shoes of his choice, but has to select ones that will cushion his knee, ie; trainers.

15. He finds the knee gives way occasionally when he is descending an incline, steps, stair, or uneven ground. This gives him a sense of insecurity.

16. Lack of the ability to squat precludes him from many jobs which an electrician can usually do, so his choice of job, and hence job satisfaction is severely limited.

On examination he is a big man, 5’10.1/2”, weighing 93 kg’s. At the time of the accident he was 85 – 87 kgs.

The legs are the same length. There is no visible swelling of the knee, but the patellar area looks wider on the left than the right side. There was no marked wasting on simple inspection, but on measurement at 22 cms above the knee the circumference on the right is 52 cms, on the left 50.5 cms., at 33 cms, the right is 60.5 cms, the left 57. This constitutes a considerable reduction in muscle bulk. There was no effusion in the knee joint. The broadening of the patellar was confirmed on palpation. All ligaments were intact. There was retropatellar tenderness only on the left side on gliding the patellar. There is full extension of the knee, but flexion lacks about fifteen degrees. He has strong quadriceps action but it is painful on resisted extension. There is a more marked medial side weakness over the vastus medialis. There is mild retropatellar crepitus over the right knee and more marked crepitus on the left side.

X Rays taken 12.1.1996 show the loss of the inferior pole of the left patella. There is mild ebumation of the subchondral bone of the medial tibial plateau, indicating early osteoarthritis; unchanged from the previous films. The medial and lateral fragments are not involved with the articulating surface so should not affect joint mobility.

In summary, Mr Roth suffered traumatic loss of the inferior pole of his left patellar. The overall loss of function of the knee is 15%. However, the resultant joint dysfunction has disabled him completely from pursuing his previous type of occupation which demands free mobility particularly for squatting and climbing ladders. His social and domestic life has been moderately disrupted. He has an increased risk of developing secondary osteoarthritis with the passage of time, which could necessitate further surgery i.e. complete patellectomy.”

On the basis of the above reports the plaintiff submits that whilst his injuries are not as severe as in Jones -v- Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 where K33,000 was awarded for pain and suffering and loss of amenities, he should be awarded a sum in that vicinity as it is almost 10 years since that award taking into account inflation. In that case some of the injuries included a punctuating injury to one knee which required Orthrodesis of the knee. I was also referred to Kiak -v- Tora Enterprises Pty Ltd [1986] PNGLR 265. No case involving knee injury only was referred to by the plaintiff. The defendant did not refer me to any case in its submission on general damages.

Taking Jones case as a guide as it also involved knee injury but bearing in mind that the plaintiff herein did not sustain multiple injuries as well as his permanent disability of 15% use of his left knee and inflation, I would not award the sum awarded in that case but consider a sum of K25,000.00 to be sufficient compensation to the plaintiff for his pain and suffering and loss of amenities of life.

Interest is awarded at 8% per annum on K25,000.00 over about 6 - 8 years from the date of service of writ up to now. This works out to K13,600.00. The total amount awarded for pain and suffering and loss of amenities of life is therefore K38,600.00.

There is no doubt that the plaintiff’s 12 months Employment Agreement (Part of Exhibit C) which he intend into on 17 June 1988 was due to expire on 17 June 1989. There is also no doubt that under Clause 20 of the Terms and Conditions (Part of Exhibit C) the Company was required to notify the employee three moths prior to the expiry of the Contract its intention to extend or renew the Contract and that the employee was required to inform the Company of his acceptance of the renewal within one month of receiving the Company’s offer. No such offer of renewal was made by the defendant herein to the plaintiff. In the absence of evidence from the defendant that because of such and such a reason it would not have renewed the plaintiff’s contract for a further 12 months, I infer that the defendant would have renewed the plaintiff’s contract for 12 months to 17 June 1990 and perhaps for a further 3 months thereafter like it did to Mr Eddie as the plaintiff had the experience in working in mines in remote areas.

From his payslip for period ending 19 February 1989 (part of Exhibit F) which was the pay day immediately prior to the accident on 25 February 1989, the plaintiff’s fortnightly pay was approximately K1600.

Since he received his base salary from 25^th February 1989 to the time of termination in August 1989, he received his salary for 25 weeks leaving 27 weeks of the further 12 months contract as well as 12 weeks of the additional 3 months contract he could have been given. This takes the period up to September 1990 which gives a total of 39 weeks which is 19.1 fortnights. The amount he would have earned over 19.1 fortnights at K1600.00 per fortnight would have been K30,560.00 which I award.

From September 1990 the plaintiff would have returned to Australia. He would have spent September to December 1990 searching for a job.

In about January 1991, he was able to find a relatively steady job in Australia from which he was earning $640 per week ($1280 per fortnight). This was about $320.00 per week less than what he could have earned if not for the injury. The difference in earning he missed out per annum would be $16,640 which over four years from January 1991 to January 1995 was $66,560.00. I award $66,650.00.

	$30,560.00
	$66,560.00
	$97,120.00
Interest at 8% pa x 6.8 years from service of writ to judgment	52,833.28
Total	$149,953.28

There is no doubt that the plaintiff has a permanent disability relating to the use of his left knee of 15 percent. The Plaintiff is therefore likely to suffer future loss. Consequently, I accept his submissions on this aspect of claim. His present employment will expire in 12 to 18 months and because of his injuries, he is likely to suffer periods of unemployment. Prospective employers may decide not to employ him or they may employ him and then terminate his employment when they become aware of his injuries.

He is likely to suffer at least 5 years of unemployment commencing in 13 years. He presently earns $33,000 per annum. That amount is discounted using the 3% discount tables approved in Pinzger v. Bougainville Copper Ltd [1985] PNGLR 160 is about $100,000. Allowing for contingencies such as early death, I would only award $80,000.00.

The plaintiff’s out of pocket expenses are set out in his amended statement of claim.

Dr Sampson -	$ 235.00
Dr Watson -	$ 200.00
Exercise Bike -	$ 119.00
Redcliffe Clinic -	$ 35.00
Dr Gallagher -	$ 190.00
X-Ray -	$ 213.00
Interest at 8% p.a. on $922 x 6.8 years is	501.56
	$1,423.56

The other items of out of pocket expenses have not been proved and are therefore disallowed.

I disallow his claim for nursing and domestic assistance as well as future medical costs for reasons advanced by the defendant in its submissions.

Pain, suffering and loss of amenities	$ 38,600.00
Past Loss of Income	$149,953.28
Future Loss	$ 80,000.00
Out of Pocket Expenses	$ 1,423.56
	$269,976.84

To enable errors in calculations, grammar etc. to be corrected, I order that this judgment shall not take effect until 18 December,1998.

National Court of Papua New Guinea

Roth v Ok Tedi Mining Ltd [1998] PGNC 115; N1788 (27 November 1998)