Poko v Manuel [2022] PGNC 399; N9972 (3 October 2022)

N9972

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 105 OF 2019

BETWEEN
WILLIAM POKO
Plaintiff

AND
JOY MANUEL AND BONNY MANUEL trading as LUPA GUEST HOUSE
Defendants

Waigani: Linge AJ
2022: 21^st September, 3^rd October

PERSONAL INJURIES – whether defendant owed plaintiff duty of care – whether plaintiff contributed to his injury – safety of employee at workplace.

PRACTICE AND PROCEDURE – vague pleadings – claims not fully particularized – plaintiff failed to lead primary evidence on facts in issue – no cause of action proved.

The plaintiff was allegedly employed by the defendants to work as a painter on its 2 x 2-bedroom building in Wabag, Enga Province. On the 14 of October 2014 when three (3) weeks into his employment the plaintiff while stepping off the ladder to paint the third-floor wall, slipped and fell to the ground level and injured his left thigh and hip. He was treated and hospitalized at the Wabag Hospital for up to 7 weeks during which time the defendants paid his fortnightly payments, medicine, and medical bills. The defendants made other payments to the plaintiff after his discharge from Wabag Hospital however, he claims it is not sufficient for the type of injury he had sustained and filed this proceeding for damages.

Held:

1 The facts pleaded in the Amended Statement of Claim is insufficiency to connect the defendants to the alleged breach of duty giving rise to negligence.

2 The plaintiff has not offered any primary evidence to prove a cause of action in negligence against the defendants.
3 In the end the plaintiff has not exercised the burden of proof on the balance of probability as required in civil proceeding.

Cases Cited:
Papua New Guinean Cases

Pomat v Consort Express Lines Ltd [2020] PGNC 109

Lubbering v Bougainville Copper Ltd [1977] PNGLR 183
Perex v Papua New Guinea Institute of Medical Research [2014] PGNC 85
Burns Philip (NG) Ltd v Maxine George (No. 20 (1983) SC259
Tuman v Motor Vehicle Insurance Ltd [2017] PGNC 375
Karawari Loge Pty Limited v Bernard Luck (1998) SC553
Colbert v PNG [1988 – 89] PNGLR 590
Tony David Raim v Simon Korua (2010) SC1062
Papua New Banking Corporation Limited v Jeff Tole (2002) SC694
National Provident Fund Board of Trustees v Jimmy Maladina & Ors (2003) N2486
Robert Brown –v- MVIT [1980] PNGLR 409
Kay Wally –v- MVIT (1992) N1029.

Overseas Cases

Donoghue v Stevenson [1932] UK HL100

Counsel:

Ms. Nicole Kamjua, for the Plaintiff
Mr. Justin Isaack, for the Defendants

JUDGMENT

3^rd October, 2022

1. LINGE AJ: This is a judgment of the Court on a trial on liability on the question whether the defendants are liable in negligence to the plaintiff for the workplace injury sustained in the course of his employment.

2. Both parties tendered their affidavits and are being represented by counsels who made submissions.
Facts

3. The plaintiff was employed by the defendants to work as a painter on its 2 x 2-bedroom building in Wabag, Enga Province. On the 14 of October 2014 when three (3) weeks into his employment the plaintiff while stepping off the ladder to paint the third-floor wall, slipped and fell to the ground level and injured his left thigh and hip.

4. He was treated and hospitalized at the Wabag Hospital for up to 7 weeks during which time the defendants paid his fortnightly payments, medicine, and medical bills. The defendants allegedly made other payments to the plaintiff after his discharge from Wabag Hospital

5. Following his discharge from Wabag Hospital the plaintiff was still in pain, so the defendants assisted him with airfares to Port Moresby on the 13 January 2015. He was diagnosed to have a fractured femur and was fortunate to be treated by visiting orthopedic experts from Singapore culminating in an insertion of a Proximal Femur Nail -Rotation (PFNA) into his fracture at the Port Moresby General Hospital in March 2015.

6. Plaintiff allegedly suffers from constant pain and on regular painkillers and thus issued this proceeding on the 14 February 2019.
Parties Evidence

For the Plaintiff

7. The plaintiff relies on the following affidavits:

(i) Affidavit in Support of William Poko filed 28 April 2022.

(ii) Affidavit in Support of Dr. Petrus Opum filed 28 April 2022.

For the Defendants

8. The defendants rely on the following affidavits for trial on both liability and assessment:

(i) Affidavit of Bonny Manuel filed on 22 August 2022.

(ii) Affidavit of Leni Maliso sworn on 22 August 2019 and filed on 19 August 2022.

(iii) Affidavit of Mugi Kipungi sworn on 22 August 2019 and filed on 19 August 2022.

(iv) Affidavit of Popono Poko sworn on 22 August 2019 and filed on 19 August 2022.

(v) Affidavit of Sepik Tenge filed on the 22 August 2019.

(vi) Affidavit of Simon Waigi filed on the 22 August 2019.

(vii) Affidavit of Eric James filed on the 22 August 2019.

(viii) Affidavit of Turakaur Elizah filed 22 August 2019.

(ix) Affidavit of Ene Karape filed 22 August 2019.

(x) Affidavit of Thomas Angaun filed 22 August 2019.

(xi) Affidavit of Jack Kopyo filed 22 August 2019.

(xii) Affidavit of Simon Jack filed 22 August 2021.

SUBMISSIONS

For The Plaintiff

9. Counsel contends that to establish liability, the plaintiff must prove that the defendants were negligent in not providing a safe working space for the plaintiff. She cites as settled law the requirements enumerated in Perex v Papua New Guinea Institute of Medical Research [2014] PGNC 85, wherein the Court held that to establish a cause of action in negligence the plaintiff must prove the following elements of tort:

(i) That the Defendant owed a duty of care to the Plaintiff.

(ii) The Defendant breached the duty by acting negligently not providing a safe system of work.

(iii) The breach of duty caused damage to the Plaintiff.

(iv) The type of injury incurred by the plaintiff was reasonably foreseeable.

(v) Contributory negligence was not relied on as defence.

(vi) The accident was not remotely connected to the defendant.

Duty of Care

10. Ms. Kamjua submits that there is an employer/ employee relationship between the defendants and the plaintiff and therefore the defendants owed a duty of care to the plaintiff who was engaged as painter on the defendants’ newly constructed building.

11. Counsel submits that the duty of care by the defendants to the plaintiff extends to providing a safe and proper system of work so as to prevent the risk of injury to him in the workplace environment where the likelihood of an injury is ever present. Counsel refers me to Pomat –v- Consort Express Lines Ltd [2020] PGNC 109 and Lubbering –v- Bougainville Copper Ltd [1977] PNGLR 183 which defined a system of work to “include such matters as the layout of the job, the sequence in which the work is to be carried out and the provision of special warnings and notices.”
12. Counsel further cites from the Lubbering’s case (supra) that:

“The employer’s duty to provide a safe system of work imposes a responsibility upon him to co-ordinate his employee’s activities in any given operation, the methods in which those operations are to be executed and the use of particular equipment and machines. It also requires the provision of proper equipment and safety devices, the arrangement of their use and the giving of adequate warnings and instructions in relation to the operations in which an employee is engaged.”

Breach of Duty

13. Counsel submits that the breach of duty of care arose when the defendants failed to provide a safe system of work for the plaintiff but instead allowed the plaintiff the use of an old wooden and slippery ladder to stand on and support himself to paint. By that the defendants are negligent in not providing a safe working place to the plaintiff as an employee.

14. She submits that the defendants breached its duty of care when it failed to provide a proper ladder, scaffold, or a safe system of work. The consequence of that breach of duty resulted in the plaintiff’s slip and fall from a height of approximately twelve (12) meters to the cement scab below sustaining serious permanent injuries for which plaintiff was treated and hospitalized at Wabag Hospital and following his discharge and on his own initiative went to Port Moresby General Hospital for further treatment.

15. At the Port Moresby General Hospital plaintiff was able to be attended to by a visiting Specialist Orthopedic Team from Singapore resulting in a Proximal Femur Nail Anti-rotation (PFNA) inserted in March 2015 to treat the femoral fracture. The PFNA will need to be removed only by the Singapore team if they do come back in the future.

16. Ms. Kamjua contends that the plaintiff was recently reviewed by Dr. Petrus Opum wherein he confirmed that the plaintiff suffers from pain and the PFNA has not yet been removed.

Foreseeability

17. Ms. Kamjua submits that the injury sustained by the plaintiff was foreseeable considering that the place of work was a construction site and that the defendants should have taken care in providing a safe system of work.

18. Counsel refers to the Supreme Court decision in Burns Philip (NG) Ltd v Maxine George (No. 20 (1983) SC259 wherein McDermott J stated the test of foreseeability in the following terms:

“It is a cardinal principle of tort liability that persons ought only to be held liable for the foreseeable consequences of their conduct and that the damage caused must be proximate to the breach of the duty of care. Foreseeability is matter of common sense and judicial discretion; it cannot be reduced to a formula. Ultimately, the resolution of whether or not a consequence of conduct is foreseeable, it a question of fact.”

19. Counsel submits therefore that the slip and fall by the plaintiff was a foreseeable result of the failure by defendants in not providing proper equipment for use by the plaintiff, in this case, a proper ladder and scaffold.

Contributory Negligence

20. Ms. Kamjua submits that there was no contributory negligence on the part of the plaintiff. There was no voluntary assumption of risk on the use of the ladder that caused the injuries. The ladder was the same one being used by all employees of the defendants at the construction site.

21. She also submits that contributory negligence was not pleaded in defence by the defendants and therefore, inappropriate for the defendants to lead evidence.

22. Counsel submits that as the injury was foreseeable the issue of whether or not the plaintiff contributed to his own injury is irrelevant. She refers to Tuman v Motor Vehicle Insurance Ltd [2017] PGNC 375 where the court was of the view that if the injuries were foreseeable, the issue of whether the plaintiff contributed to his own injuries was not necessary.

23. Ms. Kamjua submits that as breach of duty and foreseeability is proven on the balance of probabilities, the plaintiff is thus entitled to damages for the negligent actions of the defendants which led to the plaintiff sustaining permanent injuries.

For the Defendant

Duty of Care

24. Mr. Issack for the defendant acknowledges the plaintiff’s personal injuries claim allegedly sustained in the course of employment, and the alleged cause of action to have arisen from negligence and breach of duty of care allegedly due to the defendants’ failure to provide a safe and secured place of work to the plaintiff.

25. He submits that while there is a general duty of an employer in respect of his employees to provide a safe system of work: see Karawari Loge Pty Limited –v- Bernard Luck (1998) SC553 and Colbert –v- PNG [1988 – 89] PNGLR 590, there are important and relevant factors a party claiming negligence must establish. These elements are:

(i) There is a duty of care owed by one party to the aggrieved other;

(ii) There is a breach of the duty of care by the party to the aggrieved party; and

(iii) As a result of the breach of the duty of care, the aggrieved party suffers injury which must be compensated.

26. Mr. Issack submits that in order to prove these elements, a party must first sufficiently plead the material facts establishing the elements by particularizing them: Counsel refers to Tony David Raim v Simon Korua (2010) SC 1062; Order 8, rules 29 and 32 of the National Court Rules.

27. He submits that pleading the material facts lays the foundation of a cause of action and act as a means of informing the opposing party of what to expect at trial. This gives the opposing party the opportunity to identify the issues for trial and the kind of evidence to be led at trial.

28. Counsel refers me to the established principal in pleadings set out in numerous case law in this jurisdiction with particular reference to Papua New Guinea Banking Corporation Limited –v- Jeff Tole (2002) SC694 as followed in National Provident Fund Board of Trustees –v- Jimmy Maladina & Ors (2003) N2486.

29. He submits that the plaintiff has failed to comply with these procedural requirements. As a result, there is insufficient information to establish a connection between the plaintiff and the defendants in relation to the common law duty of care to provide a safe system of work and its breach.

30. In this case Counsel contends that apart from paragraph 11 of the Amended Writ of Summons which pleads negligence, no other material facts have been pleaded by the plaintiff to support the claim of negligence. Counsel highlighted the absence of material facts including whether plaintiff was permanent or temporarily employed, who set up the wooden ladder for the Plaintiff to use, period of employment and witness of the accident.

31. Mr. Issack thus submits that not all the material facts leading to the allegations of negligence are pleaded in the plaintiff’s statement of claim and therefore the entire proceedings should be dismissed for establishing no cause of action and or failure to provide sufficient material facts constituting a cause of action in negligence. Consequently, there is no breach of duty of care between the defendants and the plaintiff.

Contributory Negligence

32. Mr. Issack contends that the absence of the above material facts is a critical factor in the plaintiff’s case and submits that the plaintiff contributed to the negligence under the principle of contributory negligence and must bear apportionment of liability. Counsel refers me to Robert Brown –v- MVIT [1980] PNGLR 409 at 416, wherein Bredmeyer, AJ said:

“Contributory negligence is a man’s carelessness in looking after his own safety.”

33. He also refers to Order 8 Rule 15 of the National Court Rules which provides that: “A defendant who relies on contributory negligence shall plead the contributory negligence.”

34. Counsel also refers to the Wrongs (Miscellaneous Provisions) Act, Ch. No. 297 in which Section 40 provides for apportionment of liability in case of contributory negligence.

35. While acknowledging the Court’s power to decide whether the plaintiff has adequately pleaded the material facts to establish negligence, he submits that the plaintiff has contributed to the negligence. He raises the defence of contributory negligence for the Court’s consideration in the apportionment of liability.

36. Counsel contends that while the defendants have not specifically pleaded contributory negligence in their defence, he submits that the plaintiff’s credibility is in question as he is not admitting the truth and conceals most of the material facts.

37. Therefore, as to apportionment of liability, Counsel submits that the plaintiff contributed to the negligence and therefore liability can be apportioned on 50-50% negligence between the plaintiff and the defendants relying on the ruling in Kay Wally –v- MVIT (1992) N1029.

The Law

38. The law on personal injuries claim arising from cause of action in the tort of negligence is settled. It imposes a duty of care or obligation on a party or person to take reasonable care not to injure, harm or do acts that could foreseeably harm others. It follows that for a claim to be successful, a claimant must prove that a duty of care exists and a breach of that duty of care has occurred.

39. A duty of care is a legal obligation imposed on a person requiring him to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is up to the claimant to prove that there is a duty of care in law that the defendant has breached.

40. There is a plethora of case law dealing with duty of care in specific situations like in product liability cases as in Donoghue v Stevenson [1932] UK HL100. Relevantly here is the general duty of an employer to his employee to provide a safe system of work which is affirmed for example in Karawari Lodge Pty Limited –v- Bernard Luck (1998) SC553, see also Colbert –v- PNG [1988 – 89] PNGLR 590.

41. The plaintiff must establish liability by proving negligence. The elements or factors that must be proved are:

(i) There is a duty of care owed by one party to the aggrieved other.

(ii) There is a breach of the duty of care by one party to the aggrieved party.

(iii) As a result of the breach of the duty of care, the aggrieved party suffers injury or damage which is subject to compensation.

(iv) The type of injury incurred by the plaintiff was reasonably foreseeable.

42. In relevant circumstances of each case there are two (2) other factors that a claimant must prove and these are:

(v) If contributory negligence was raised or pleaded in defence.

(vi) The accident was not remotely connected to the defendant. See Perex v Papua New Guinea Institute of Medical Research (supra)

43. It is also a procedural requirement that the Court must look to the pleadings to ascertain whether the material facts establishing the elements are particularized. The Supreme Court in Tony David Raim v Simon Korua (2010) SC1062 reaffirmed this established principle when it held:

“in order to prove these elements, the general rule of pleadings is, a party must first sufficiently plead the material facts establishing the elements by particularizing them.”

44. The Supreme Court went further to state that “pleadings lay a foundation of a cause of action and act as a means of informing the opposing party of what to expect at trial. They give the opposing party the opportunity to identify the issues for trial and the kind of evidence to be led at trial”

45. In Papua New Guinea Banking Corporation Limited –v- Jeff Tole (2002) SC694 the Supreme Court emphasized the need for pleading of particulars in this way:

“The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed.”

46. Numerous cases have affirmed this trite learning including the National Provident Fund Board of Trustees –v- Jimmy Maladina & Ors (2003) N2486; Trust Ltd –v- John Etape [1994] PNGLR 596; and Motor Vehicles Insurance (PNG) Trust Ltd –v- James Pupune [1993] PNGL] 370.

47. The National Court Rules also provide for this in Order 8, rules 29 (1) and 32. provides:

“Rule 29 (1) A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him...

Rule 32 (1) In proceedings on a claim for damages in tort, a party pleading negligence (whether contributory or otherwise) or breach of statutory duty shall give particulars of the matter pleaded.

(2) The particulars required by Sub-rule (1) shall be a statement of the facts, but not of the evidence by which the facts are to be proved, on which the party relies as constituting the negligent act or omission or the breach of statutory duty alleged in the pleading.

(3) If the party relies on more that one negligent act or breach of statutory duty, the particulars required by Sub-rule (1) shall so far as practical, state separately each negligent act or omission or breach of statutory duty on which he relies.”

Consideration

48. The Amended Writ of Summons pleads that on the 14 October 2014, whilst stepping off the old wooden ladder to paint the third-floor wall, he slipped and fell down from the third floor and bounced two times on the concrete slab and injured his left thigh and hip. He also pleads that at the time he slipped and fell, the step of the wooden ladder was wet and was slippery and was not placed properly. Further as a result of the matters aforesaid he sustained severe injuries to his left thigh and hip and incurred loss and damage.

49. The plaintiff must prove the above facts in issue by evidence to succeed in his claim. The main facts in issue can only be ascertained by reference to the substantive law and the pleadings. The law requires that facts in issue must be proved by direct evidence before the plaintiff can then proceed to establish a duty of care and breach of that duty of care in the tort of negligence. Cross on Evidence 10^th Ed.at p.14 states, “Facts in issue have to be proved to the satisfaction of the judge or jury, as the case may be.”

50. In this case the pleading is not supported by evidence. The primary affidavit evidence of the plaintiff as tendered and notified to the Court, does not correlate to pleading in the cause of action. There is also no witness evidence to substantiate the facts in issue.

51. For example, there is no evidence to support the plaintiff’s claim that on the 14 October 2014 he fell from the 3^rd floor of a particular building owned by the defendants nor evidence that he fell from a slippery and wet wooden ladder.

52. There is no evidence to support the plaintiff’s claim that he was a painter and had worked with the defendant nor any other for 5 years prior to joining the defendants and worked for a period of 6 weeks when he succumbed to the injuries.

53. The probative value of the plaintiff’s primary evidence only relates to secondary facts that he was paid a “bel kol” money of K10,000.00 by the first defendant, his receipt of his fortnight pays and assistance whilst hospitalized at the Wabag Hospital. He also deposes that the second defendant paid for his airline tickets to Port Moresby.

Conclusion

54. I have considered the submission of the defendants on the insufficiency of material facts and information in the pleadings to connect the defendants. Based on the foregoing consideration I conclude that the plaintiff has not offered any primary evidence to prove his case.

55. The absence of primary evidence of the facts in issue or material evidence on the part of the plaintiff does not assist his case. A fact that is raised in the pleading must be proved as such in evidence so the Court can decide on it so it will become res judicata.

56. I conclude that this case does not rest on proving negligence nor on the issue of whether the plaintiff has sufficiently pleaded his cause of action but on whether the plaintiff has tendered relevant evidence at all to be able to prove his case.

57. In the end the plaintiff has not exercised the burden of proof on the balance of probability as required in civil proceeding and thus I will rule accordingly.

Order

58. Order of the Court:
    
1. The entire proceeding is dismissed.
2. Cost follows the cause and is awarded to the defendants.
3. Time is abridged to time of settlement.
   

Ordered Accordingly
__________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Lawama Lawyers: Lawyers for the Defendants