Saun v Sully [2023] PGNC 448; N10600 (13 November 2023)

N10600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 812 OF 2019

GABRIEL SAUN
Plaintiff

AND:
MATHIAS SULLY as PRINCIPAL OF MADANG TEACHERS COLLEGE
First Defendant

AND:
DR SABASTIAN BAGRI as CHAIRMAN OF BOARD OF MANAGEMENT OF MADANG TEACHERS COLLEGE
Second Defendant

AND:
MADANG TEACHERS COLLEGE
Third Defendant

Madang: Narokobi J
2023: 21^st March
2023: 13^th November

NEGLIGENCE – Injuries Allegedly Sustained in Course of Employment – Meaning of “Course of Employment” Considered and Applied – Whether Injuries Were in the Course of Employment.
DEFAMATION – Element of Defamatory Imputation – Whether Element of Defamatory Imputation Pleaded and Supported by the Evidence.

Facts
The Plaintiff suffered serious injuries from criminals whilst driving his employer’s vehicle. He was held up and attacked, and the vehicle taken from him. He was later disciplined for drinking and unauthorised use of the vehicle. He sued the defendant for the injuries he suffered at the hands of the criminals and for defamation.

Held:

(1) The Plaintiff’s injuries did not arise in the course of employment. Negligence was as a result, not established.
(2) Defamatory imputation as an essential element of defamation was not properly pleaded, nor was there evidence to support the allegation.
(3) Claims for breach of human rights was also not established.
(4) All claims by the Plaintiff are dismissed and parties ordered to bear their own costs.

Cases Cited:
David Lambu -v- Paul Paken Torato (2008) SC593
Kanit (trading as Citi-Link Taxi Services) v National Airports Corporation Ltd (2021) SC2084

Statutes Cited:
Constitution
Defamation Act

Counsel:
Mr B Wak, for the Plaintiff
Mr T Ilaisa, for the Defendants

JUDGMENT

13^th November 2023

1. NAROKOBI J: The Plaintiff Gabriel Saun sues the Defendants – Mathias Sully as the Principal of Madang Teachers College, Dr Sebastian Bagri as Chairman of the Board of the Management of Madang Teachers College and the Madang Teachers College (First, Second and Third Defendants respectively) for defamation, negligence and breach of human rights. If he is successful, the Plaintiff further claims general damages for each of the cause of action pleaded.
   

Background

2. In his statement of claim the Plaintiff says that on 23 June 2018 at around 5pm, he was with other members of the Madang Teachers College, together with the headmaster of Gum Primary School of Madang, were in the course of duty, parked outside the Four Mile Market. They were using the school vehicle, a Toyota Hilux Ute twin cab, MAE 885. It was there that they were held up and taken to another location. The Plaintiff was assaulted when he refused to surrender the keys to the armed criminals. He suffered serious injuries. The damaged vehicle was recovered some time later. He says that the Defendants undertook to lodge his claim with the Workers Compensation but failed to do that. For this reason, he says they are negligent.
   
3. The other claim is for defamation. The Plaintiff was disciplined for the damage done to the vehicle and was terminated. A judicial review of the decision was sought, and he was successful and reinstated by the court. The Plaintiff alleges that in his charge he was falsely accused of being drunk on 23 June 2018; the Defendants falsely stated that it costed them K14,000 to fix the vehicle that was damaged; and that K6,000 was spent to recover the vehicle.
   
4. The Plaintiff was also asked to vacate his office at the College and says that this was uncalled for.
   
5. By reason of these actions of the Defendants, the Plaintiff in addition, as his third claim, says that his Constitutional rights under ss 36, 37 and 41 of the Constitution were breached.
   
6. All the claims of the Plaintiff are denied by the Defendants who say that he was not authorized to use the vehicle at the time and what they did was part of the disciplinary process because of the conduct of the Plaintiff.
   

Negligence

7. Looking at the claim for negligence first, I must decide from the evidence whether Plaintiff suffered injuries in the course of employment. If it was in the course of employment, then the Defendants had a duty to arrange for the Plaintiff’s workers compensation for the injuries he sustained. What does the term “course of employment” mean? In the case of Kanit (trading as Citi-Link Taxi Services) v National Airports Corporation Ltd (2021) SC2084, the Supreme Court made the following helpful observations on tests to employ to determine whether an employee’s conduct is in the course of employment:
   

8.In 1907 Sir John Salmond formulated the tests for determining whether an act occurs in the course of employment , which tests have laid the foundation for the development of this area of liability in common law jurisdictions ever since[1]. According to those tests a wrongful act is deemed to be done by an employee in the course of their employment if it is either (a) authorised by the employer; or (b) is a wrongful and unauthorised mode of doing some act authorised by the employer. Importantly, in respect of the latter Salmond explained that an employer would be liable “even for acts which he has not authorised, provide they are so connected with acts which he has authorised, that they may rightly be regarded as modes – although improper modes – of doing them: Guard Dog at [20].

8. From the evidence, I am looking out for two factors which will point me to whether the injuries were sustained in the course of employment – firstly whether the injuries were sustained doing an authorized act and secondly, even if it was not an authorized act, it was closely connected to authorized acts that it may rightly be said that it was in the course of employment.
   
9. The Plaintiff is employed as a lecturer, and not as a driver of Madang Teachers College. It is also not disputed that the incident happened on a Saturday. Further, the Plaintiff says it occurred while they stopped to buy betelnut along the way when they were doing work for the College. He suffered serious injuries at the hands of criminals and required hospitalization. The Plaintiff does not provide the approval process to use College assets but says that it is common knowledge that he often drives the College vehicles.
   
10. Serongke Sondo is the Deputy Principal – Academic at Madang Teachers College. He oversees all the school assets. He says that he only approved the use of the vehicle Toyota Hilux Ute twin cab, MAE 885 on Friday 22 June 2018 and not Saturday 23 June 2018. It is not disputed that the incident occurred on Saturday 23 June 2018. In his affidavit he produced copy of a text message from Bentley Simon that he wanted to use the office vehicle to harvest yam and to drop off some school materials. He also attached a copy of the complaint in the Police Occurrence Book that stated that the incident happened at 10 Mile (a place in Madang) and not Four Mile as the Plaintiff suggested.
    
11. The approving authority, Serongke Sondo denies giving approval. Two conflicting positions emerge – Plaintiff says approval was given and the Defendants say it was not. To overcome this, I would have expected corroborating evidence from the Plaintiff to be tendered. This would most likely come from Bentley Simon and the principal of Gum Primary School who the Plaintiff says were with him to deliver school materials. Taking all these factors into account, I am led to the view that the incident that occurred was not in the course of employment, because firstly, it was not approved by the employer. It was a private arrangement between the Plaintiff and Mr Bentley Simon.
    
12. Secondly, even if there was no approval, did the injuries occur because of actions that are so closely connected to the employment of the Plaintiff, that even if there was no approval, it would still be considered as in the course of employment. The Plaintiff is a lecturer at the College. He is not a driver. The incident occurred on a Saturday. In my view it was not closely related to his employment.
    
13. For these two reasons the claim for negligence is dismissed because the injuries were not sustained in the course of employment.
    

Defamation

14. As to the second claim, to prove the claim for defamation, I have had regard to what Cannings J said in David Lambu -v- Paul Paken Torato (2008) SC593. His Honour stated that the elements of defamation are:
    

As for defamation, the elements required to sustain a cause of action are that:

- the defendant made a defamatory imputation of the plaintiff;

- the defendant published it;

- the publication was unlawful (ie it was not protected, justified or excused by law).

15. What I have to be satisfied firstly is whether there was defamatory imputation of the Plaintiff? What does defamatory imputation mean? This is answered by s 2 of the Defamation Act:

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which—

(a) the reputation of that person is likely to be injured; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

16. Do the pleadings and the evidence make out the element of “defamatory imputation”? This question must be answered in the affirmative in order for me to consider the other elements of defamation.
    
17. The pleadings as relates to defamation is at paragraph 10 of the statement of claim:
    

10. The Plaintiff claims that the reports made by the Third Defendant to the National Education Board which the National Education Board which National Education Board recommended Teaching Service Commission to terminate the Plaintiff the Plaintiff from Teaching Service were false, untrue and defamatory in nature defaming the Plaintiff at all material times.

PARTICULARS OF DEFAMATORY STATEMENTS

(a) Falsely accusing that I was drunk on the 23^rd June, 2018 when the vehicle was stolen at Four (4) Mile market.
(b) Falsely say the vehicle stolen was put into workshop and the Third Defendant spent K14,000 as claimed.
(c) Falsely claiming that the Third Defendant paid K6,000 to recover the vehicle.

18. The defamatory imputation as I understand it, is that the allegations in the disciplinary charges were false. In my view it is necessary for the Plaintiff to plead as required by s 2 of the Defamation Act that the defamatory statements were:
    

(a) likely to injure his reputation; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him.

19. Having considered the pleadings, especially at paragraph 10 which I have quoted above, the Plaintiff has not clearly spelt out what the defamatory imputations are. Again, would the statements injure his reputation? Or be injured in his profession or trade? Maybe cause persons to induce, shun, ridicule, or despise him? This is not clear from the pleadings.
    
20. Even if the pleadings are lacking, the evidence led by the Plaintiff does not show how the Plaintiff’s reputation has been injured, how he is likely to be injured in his profession or likely for other persons to shun, avoid or ridicule him. There is no evidence that the Defendants knew that the statements were false and deliberately published them to harm the reputation of the Plaintiff. I am therefore left with the conclusion that the claim for defamation has not been made out.
    

Breach of Human Rights

21. Since the claim for breach of human rights hinges on the claims for negligence and defamation, and they have not been established, I also find that claims for breach of human rights should consequently be dismissed too.
    

Conclusion and Orders

22. From my findings, I will dismiss the claim, and in the exercise of my discretion order that parties will bear their own costs of the proceedings.

________________________________________________________________
Bradley & Company Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers and Attorneys: Lawyers for the Defendants