Lulug v Michael [2020] PGNC 431; N8585 (20 October 2020)

N8585

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 115 OF 2019

BETWEEN:
BALIS LULUG
Plaintiff

AND:
MR MICHAEL, HR BASAMUK
First Defendant

AND:
MR MU, SUPERINTENDENT LIMESTONE DEPARTMENT
Second Defendant

AND:
MR JOHN ROSSER, HR MADANG TOWN
Third Defendant

AND
RAMU NICO MANAGEMENT (MCC) LTD
Fourth Defendant

Madang: Narokobi J
2020: 21^st July, 18^th September and 20^th October

WORKER’S COMPENSATION ACT, CHAPTER 179 – injuries during course of employment – whether requirements under the Act followed as a result of injuries sustained during the course of employment – failure to comply considered as a factor amounting to harsh treatment of the plaintiff in breach of plaintiff’s rights under s 41(1) of the Constitution.

HUMAN RIGHTS – Constitution, Section 41 (proscribed acts) – whether the manner in which the plaintiff was treated in an employer/employee relationship amounted to breach of Section 41.

The Plaintiff, a former employee of the Fourth Defendant was injured in a car accident while traveling to work. He alleges that he was not provided necessary support throughout the period of his ordeal. He was not paid whilst he was recovering from his injuries. The defendants also did not provide adequate assistance to obtain workers insurance for injuries sustained during the course of employment under the relevant provisions of the Workers Compensation Act, Ch 179. He says that these circumstances demonstrate a breach of s 41(1) of the Constitution by the defendants.

Held:

(1) The plaintiff was injured in the course of employment and the fourth defendant failed to comply with the provisions of the Workers Compensation Act Chapter 179.

(2) In circumstances where the fourth defendant did not provide adequate attention to the medical needs of the plaintiff, did not pay him during his period of being medically indisposed, and then not processing his claim under the Workers Compensation Act for more than two (2) years after he was injured, the Plaintiff has established a cause of action for breach of his rights under Section 41(1)(a) of the Constitution against the fourth defendant;

(3) The claim against the first, second and third defendants are dismissed;

(4) A trial on assessment of damages will ensue following the plaintiff establishing liability against the fourth defendant.

Cases Cited:

The following cases are cited in the judgment:
Covec (PNG) Ltd v Kama (2020) SC1912.
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Morobe Provincial Government v Kameku [2012] PGSC 2; SC1164
Pama v Gens (trading as Kanagio Security Services) (2020) N8358
Petrus v Telikom PNG Ltd (2008) N3373
Placer (PNG) Ltd v Leivers (2007) SC899.
Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329
Raim v Korua (2010) SC1062
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Simon v Koisen (2018) N7075

Statute Cited:
Constitution
Workers Compensation Act, Chapter 179

Counsel:
Ms. D. Ephraim, for the Plaintiff
Ms. E. Valakvi, for the Defendant

JUDGEMENT

20^th October, 2020

1. NAROKOBI J: A. INTRODUCTION: The plaintiff initially commenced this proceeding by way of a human rights application, lodging a form 124 of the Human Right Rules 2010 under Order 23(7)(1)(c) on 4 April 2019. He was subsequently ordered to prepare and file a statement of claim which he filed on 15 May 2019 and the defendants filed their defence on 24 July 2019. I note that the defence appears to have been filed out of time, but the plaintiff has not taken issue with it.
   
2. The plaintiff was employed by the fourth defendant as a heavy-duty equipment operator. On 23 November 2018, he was involved in a car accident that caused him serious injuries. The accident happened whist the Plaintiff was on his way to work in a company vehicle. Due to those injuries sustained, he was absent from work. He alleges that his employer has not assisted him with similar medical treatment to his colleague, put him off pay during the period he was medically indisposed and did not assist with to process his claim for workers insurance, and he therefore seeks redress from the court for breach of his rights under Section 41(1) of the Constitution.
   
3. Trial on liability was conducted on 21 July 2020 and submissions made on 18 September 2020. I now give my decision on the issue of liability after considering the evidence and hearing the counsel’s submissions on liability.
   

B PRELIMINARY ISSUE ON PLEADINGS

4. I reject the plaintiff’s contention that this is a common law claim under s84(2) of the Works Compensation Act Ch 179 after having read the pleadings and considering the Supreme Court decisions of Raim v Korua (2010) SC1062 and Placer (PNG) Ltd v Leivers (2007) SC899.
   
5. The claim is purely premised on breach of human rights and any determination of the issues in relation to this proceeding does not prevent the plaintiff from pursuing his rights under s 84(2) of the Workers Compensation Act if he wishes to take this avenue as an alternative to receiving compensation under s 41 of the same Act.
   
6. Obviously, it would have been desirable to have pleaded the two different causes of action together in the same proceedings to avoid multiplicity of proceedings, but I give the plaintiff the benefit of the doubt considering that this case was commenced in person until the final stages of directions hearing. This was when the office of the Public Solicitor began representing the plaintiff.
   
7. Ultimately, the critical factor about pleadings is that if they point the defendant to the essence of the plaintiff’s claim and provide evidence to support it, which evidence is not objected to, then it is fair to say that the defendant came prepared to meet the claim of the plaintiff. I find this to be the case here, after having satisfied myself that this is the correct position of the law from reading the Supreme Court decision in Covec (PNG) Ltd v Kama (2020) SC1912.
   

C ISSUES

8. The issue that I have to determine is firstly, whether the injuries suffered by the plaintiff was in the course of employment, and if so, what are the responsibilities of the employer in that regard in so far as it concerns the Workers Compensation Act and has the plaintiff’s employer (at the material time) complied with those requirements?
   
9. Secondly, I must determine whether the manner in which the plaintiff was treated by his employer and her servants and agents amounted to breach of his rights under each of the succeeding paragraphs of s 41(1) of the Constitution thereby establishing a cause of action for breach of his constitutional rights?
   

D THE LAW

10. The first law I consider relevant is the relevant provisions of the Workers Compensation Act, Ch 179, especially ss 41, 42, 50, 54, and 84.
    
11. The other relevant law is s 41 of the Constitution, which states:
    

“41. Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

12. I have to determine whether the plaintiff was treated in a manner that was contrary to any of the succeeding paragraphs of s 41(1) of the Constitution, that is s 41(1)(a), (b) or (c) and thereby establishing a cause of action.
    

E EVIDENCE

13. At the trial, the plaintiff relied on the following affidavits:
    

a) Affidavit of Balis Lulug filed on 15 May 2019 (Exhibit P1)

b) Affidavit of Reuben Lulug filed on 15 May 2019 (Exhibit P2)

14. In response, the defendant tendered on affidavit of Nicol Rosser filed on 6 September 2019. (Exhibit D1)
    

F FINDINGS OF FACTS

15. I must now make a determination of the facts based on the evidentiary material before me in relation to the issues raised in this proceeding.
    
16. Section 41(2) of the Constitution states that the burden of proving a breach of s 41(1) is on the person alleging it, and it is discharged on the balance of probabilities. That is the test, I apply in this case in determining the facts. This standard of proof is the same in a civil case, so I apply this standard to the evidence for purposes of addressing all issues before the court.
    
17. The plaintiff’s evidence is that he was traveling to work in a company vehicle when the accident happened. I note from the evidence tendered by the defendant that they do not dispute this fact. Under s 54(2) of the Workers Compensation Act, an injury shall be deemed to arise out of or in the course of the employment of a worker if it occurs while the worker – “is in the course of a daily or other periodic journey between his place of abode and his place of employment, whether such journey is to or from his place of employment;...”. I find that the plaintiff suffered work related injuries received during the course of employment.
    
18. I also find on the balance of probability that after the plaintiff was left at Modilon General Hospital by the employer he was not checked to see the outcome of his treatment and consider whether there was a need for further help. This is on the evidence of the plaintiff and corroborated by the evidence of Reuben Lulug. The defendants appear to concede this point by shifting the blame to the plaintiff for not informing them. With respect, the injury was a work-related injury and the defendants should have exercised a little more humanity and diligence. It was the responsibility of the employer to follow up. I also take into account in mitigation that as soon as the defendants were informed of the serious medical situation of the plaintiff, they acted responsibly by having the plaintiff attended to for a second independent medical diagnosis.
    
19. In terms of the plaintiff not being paid for the time he was indisposed and absent, I accept the plaintiff’s evidence. This is confirmed by the fact that the defendants did not provide any payslips to confirm that he was paid during this period. So, I find for the plaintiff accordingly on this question.
    
20. Since the injury was in the course of employment, it was incumbent upon the fourth defendant and her servants and or agents to prepare the necessary notice under s 42 of the Workers Compensation Act. I find that they have not done that and have caused stress and inconvenience to the plaintiff. They must do so expeditiously as the injury arose during the course of employment. In fact that is what John Rosser says in his affidavit as being the purpose of getting a medical report. But there is no evidence to show that, that process has been initiated.
    

G RESOLVING THE FIRST ISSUE

21. Section 1 of the Workers Compensation Act defines injury to say:
    

““injury” means any physical or mental injury and includes–

(a) a disease contracted by the worker in the course of his employment, whether at or away from his place of employment, and to which the employment was a contributory factor; and

(b) the aggravation, acceleration, exacerbation, deterioration or recurrence of any pre-existing injury or disease where the employment was a contributing factor to that aggravation, acceleration, exacerbation, deterioration or recurrence;”

22. The undisputed evidence is that the plaintiff was injured.
    
23. When I determined the facts, I found that the plaintiff was injured in the course of employment. This therefore attracts an employer’s legal obligations under the Workers Compensation Act.
    
24. Section 41(2)(a) of the Workers Compensation Act requires the employee to give notice to his or her employer of their injury either in writing or orally within12 months and before he or she resigns from their employment. This notice may be in writing or orally.
    
25. It appears that the defendant was aware of this as John Niccol Roser, the Deputy General Manager, Human Resources of the fourth defendant states at paragraph 22 of his affidavit:
    

“The Plaintiff received on-going treatment including for his non work-related hypertension and Dr Mackerral issued a Final Medical Report for Office of Workers Compensation dated 24 April 2019 that showed residual right knee pain that was likely permanent and awarded 5% permanent loss of right leg.”

26. Consequently, I find that the plaintiff complied with s 41 of the Workers Compensation Act.
    
27. There is no evidence that after notice of the plaintiff’s injury and also after having received the medical report on 24 April 2019, the fourth defendant has attended to the plaintiff’s workers compensation requirements to ensure the plaintiff is compensated. Section 42(2)(b) of the Workers Compensation Act requires the employer to provide notice of injury to the Registrar of Workers Compensation within seven (7) days of becoming aware of the injury. Failure to give notice is an offence (Workers Compensation Act, s 45).
    
28. The form of the notice is prescribed by the Workers Compensation Regulation s 12(2)(a), form 11.
    
29. My conclusion on the first issue is that the fourth defendant has failed to comply with the requirements of the Workers Compensation Act, especially as regards s 42(2)(b).
    

H RESOLVING THE SECOND ISSUE

30. This issue concerns s 41(1)(a),(b) and (c) of the Constitution. In my view the facts of the case warrant a consideration of whether the actions of the fourth defendant was harsh or oppressive, so I limit my consideration of this issue to this specific provision ie s 41(1)(a). I therefore dismiss the claims for breaches of the other rights pleaded by the plaintiff in his statement of claim.
    
31. In Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329 Prentice CJ, when speaking of s 41, said:
    

"I consider that, giving s 41 a fair and liberal meaning as the court is instructed to do by Schedule 1.5 (2) of the Constitution, it should be regarded as of general application. The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts, the test should be an objective one. I feel that the test should be to question whether the Minister and the Committee acted as reasonable men in the circumstances, having regard to the policy of the act on the one hand and the various provisions of the Constitution on the other."

32. Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853 cited with approval what Kidu CJ, Kapi DCJ (as he then was), and Kaputin J said in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 and summarized it this way at para 107:
    

“What appears clearly from these authorities is that, whether an act or conduct is harsh and oppressive is dependent on the relevant facts giving rise to a claim of harsh and oppressiveness. The person making the claim has the burden to establish his or her claim by appropriate evidence.”

33. A definition of s 41(1) of the Constitution was provided in Petrus v Telikom PNG Ltd [2008] PGNC 85; N3373 (30 May 2008) and endorsed by the Supreme Court in Morobe Provincial Government v Kameku [2012] PGSC 2; SC1164 (1 March 2012). In Petrus the court relevantly said:
    

“7. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts. Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1. harsh; or
2. oppressive; or
3. not warranted by the requirements of the particular circumstances;
4. disproportionate to the requirements of the particular circumstances;
5. not warranted by the requirements of the particular case; or
6. disproportionate to the requirements of the particular case; or
7. otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.”
   
34. I turn now to the facts of the case, bearing in mind my findings of facts on the balance of probability and see whether they show a breach of s 41(1) of the Constitution.
    
35. In my respectful view, the facts that I have found from the evidence led before the court shows that the actions of the fourth defendant in the manner the plaintiff was treated was harsh and oppressive. There is insufficient pleadings and evidence to find the other defendants responsible. I therefore dismiss the claim against the first, second and third defendants.
    
36. Firstly, the fact that the fourth defendant’s employees left the plaintiff unattended at Modilon General Hospital with only his family to help him and forcing him to meet his initial medical bills is harsh treatment. As I said above, the injury was a work-related and the defendants should have exercised a little bit more humanity and diligence in the way they attended to him.
    
37. Secondly, at the material time when the plaintiff was medically indisposed, he was put off the payroll. The fourth defendant knew or ought to have known that the plaintiff was suffering from an injury. He was recovering. There was no reason to treat him that way. It is unconscionable. The most suitable term for this conduct of the fourth defendant is simply that it was “harsh.”
    
38. Thirdly, based on my conclusion on the first issue, it is appropriate to consider the actions of the fourth defendant in relation to s 41 of the Constitution and not s 84 of the Workers Compensation Act, as this is not pleaded. That is to say, this current proceeding is not an alternative common law claim under s 84 of the Workers Compensation Act.
    
39. The fourth defendant is well versed or ought to have known in sufficient detail the requirements of the Workers Compensation Act. The uncontested evidence is that they have not attended to the plaintiff’s claim with the necessary diligence that is required to ensure that he is compensated for his injuries. These legislative measures have been put in place to protect worker’s rights. Over two years have passed since the occurrence of the injury. There is no evidence to show that the process for worker’s compensation has been engaged. After the third year, the common law the alternative remedy under s 84 will be lost. The plaintiff has resigned from the fourth defendant and moved on. In my view the fourth defendant and her employees have treated the plaintiff as of no consequence and this is harsh and oppressive.
    
40. All these instances in which the plaintiff was treated by the employees of the fourth defendant have been established as facts, and in my respectful view, amount to harsh and oppressive treatment. In this regard, I also find relevant the several National Court decisions to support my view - Pama v Gens (trading as Kanagio Security Services) (2020) N8358, Petrus v Telikom PNG Ltd (2008) N3373 and Simon v Koisen (2018) N7075, where the court found that the manner in which an employer treats his or her employee may amount to breach of s 41(1) of the Constitution. In Pama, I held amongst other findings, that failing to respond to correspondence of the Labour Department amounts to breach of s 41. In Petrus, the issue was not being paid the appropriate salaries. For Simon the concerned issue was the abrupt transfer notice to the plaintiff to move to another work location. This case falls within the range of the circumstances of these National Court decisions.
    
41. Consequently, my ultimate view is that the plaintiff has established a cause of action under s 41(1)(a) of the Constitution on the balance of probability against the fourth defendant.
    

I CONCLUSION, COSTS AND ORDERS

42. In light of my findings on the issues, I do not see any reason against me ordering costs in favour of the plaintiff. Following the rule of thumb that costs follow the event, I do so in favour of the plaintiff in the fixed sum of K10,000.
    
43. Costs for trial on assessment of damages will be considered separately, as although the plaintiff has established a cause of action, he is still to lead his evidence on assessment of damages with the defendants also having the right to rebut that evidence.
    
44. The orders I make are therefore as follows:
    
    1. The plaintiff has established a cause of action against the fourth defendant under s 41(1)(a) of the Constitution for breach of his rights;
    2. The claim against the other defendants are dismissed;
    3. This proceeding does not prevent the plaintiff from making further claim against the fourth defendant under the relevant provisions of the Workers Compensation Act, Chapter 179, especially under s 84, bearing in mind the statutory time limitations to do so;
    4. Regardless of the outcome of the trial on assessment of damages, the fourth defendant shall pay the plaintiff’s costs to date, in the fixed sum of K10,000.00;
    5. The matter shall return for mention on 26 October 2020 for directions for trial on assessment of damages.

________________________________________________________________
Leslie Mamu, Public Solicitor: Lawyers for the Plaintiff
In house Counsel: Lawyers for the Defendants