Placer (PNG) Ltd v Leivers [2007] PGSC 33; SC899 (31 October 2007)

SC899

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 97 OF 2004

BETWEEN

PLACER (PNG) LIMITED
Appellant

AND

ANTHONY HAROLD LEIVERS
Respondent

Waigani: Sevua, Gavara-Nanu & Gabi, JJ
2006: 24 April
2007: 31 October

WORKERS COMPENSATION – Injuries in the course of employment – Liability for damages – Common law claim and Workers Compensation claim are alternative remedies – Where injured worker does not claim under Workers Compensation Act – Not claim for compensation – Where injured worker instituted common law claim, claim is independent of the Act and an alternative remedy – Whether common law claim subject to time limit under s.84 (2).

WORKERS COMPENSATION – Cause of action – Injury sustained in the course of employment – Common law claim for damages – Cause of action – Alternative to workers compensation – Cause of action outside the Workers Compensation Act – Common law claim subject to limitation under s.84 (2) – Proceedings in National Court time barred.

Legislations

Workers Compensation Act Chapter 179

Held:

1. Where an injured worker does not claim workers compensation under the Workers Compensation Act 1978, but claims common law damages, that claim is independent of the Workers Compensation Act pursuant to s. 84, Part VIII Workers Compensation Act.

2. A common law claim for damages for injuries sustained in the course of employment is subject to the statutory time limit of 3 years stipulated by s.84 (2) Workers Compensation Act.

3. Where a proceeding commenced in the National Court was a common law claim for damages for injuries suffered in the course of employment, and the proceeding was commenced outside the statutory time limit of 3 years prescribed by s.84 (2), that claim is statute - barred.

4. Appeal is upheld.

Cases cited in judgment

Joseph Tonava v. Electricity Commission of Papua New Guinea [1987] PNGLR 81

Counsel

Ms. R. Thompson, for Appellant
Mr. A. MacDonald, for Respondent

31 October, 2007

1. BY THE COURT: The appellant filed this appeal against the decision of the National Court constituted by Justice Davani on 25 June 2004.

2. The factual background of this appeal are that the respondent herein was the plaintiff in WS 188 of 2004, wherein he claimed damages for injury he allegedly sustained on 3 March 1998 in the course of his employment with the appellant, then the defendant in the National Court proceedings.

3. The respondent alleged that on 3 March 1998, while training an underground rescue squad at Level 16 decline at Porgera Mine he slipped on a steep slope in the decline and suffered personal injury to his right knee. The respondent also alleged that he suffered the injury as a consequence of the appellant’s breach of its contract of employment or duty of care. Therefore, the respondent alleged that he suffered personal injury in the course of his employment with the appellant.

4. On 2 March 2004, the respondent instituted proceedings in the National Court by filing WS No 188 of 2004. On 21 April 2004, he filed another writ of summons with an amended statement of claim in pursuance of an order given on 16 April 2004.

5. On 25 June 2004, the appellant who was the defendant in the Court below, moved a motion seeking an order that the proceedings be dismissed on the ground that the action was statute-barred pursuant to s.84 (2) Workers Compensation Act, Chapter 179 (hereinafter the Act). The motion went before Justice Davani who dismissed that application with costs to the respondent. The appellant has appealed against that decision and this judgment is therefore in respect of that appeal.

6. The appellant filed its Application for Leave to Appeal on 9 July 2004, which was subsequently served on the respondent on 24 July 2004. On 3 August 2004, the respondent filed a Notice of Objection to Competency. On 26 April 2005, the Supreme Court (Kapi CJ, Injia DCJ, Cannings J) heard the objection to competency, then on 4 May 2005, dismissed the objection to competency and granted leave to the appellant to appeal. The Court further directed that the appellant’s Notice of Appeal filed on 9 July 2004, constitute the Notice of Appeal in this matter.

7. This Court has heard counsels’ oral submissions and considered their written submissions on this appeal as well. It appears that the arguments are centralized on the provisions of the Workers Compensation Act. The crux of the appellant’s submissions is that the claim by the respondent in WS 188 of 2004 was instituted outside the time limit stipulated by s.84 (2) of the Act therefore is statute-barred. The respondent was therefore barred from instituting the proceedings in the National Court.

8. The respondent contended that the Workers Compensation Act allows alternative claims including a common law action apart from a workers compensation claim under the Workers Compensation Act. We do not consider that to be the issue in this appeal.

9. The facts are not in dispute. This appeal is therefore confined to the statutory interpretation of certain provisions of the Workers Compensation Act. These are Sections 1, 31, 41, 42, 43, 45, 54 and 84. It is obvious that the appellant, at the hearing, relied on s.84 (2) of the Act. We consider that the main consideration in law in this appeal is in respect of the interpretation and/or application of s. 84 (2) of the Act and our discussion will be centred on that provision. It is clear from the transcript that the trial Judge said the issue was "whether s. 84 (2) was applicable in the circumstances". We agree that was the issue then and is the issue now.

10. The appellant has raised several grounds of appeal; however it is not necessary to set out each of them here because the central issue, as we have alluded to, is s.84 (2) of the Workers Compensation Act. The errors of law alleged by the appellant are related to the trial Judge’s decision in respect of that provision.

11. The appellant therefore seeks that the appeal be upheld; the decision of Davani, J., given on 25 June 2005 be quashed; the National Court proceedings in WS 188 of 2004 be dismissed, and the respondent/plaintiff pays the appellant’s/defendant’s costs of the appeal and the National Court proceedings.

12. From the respondent’s Amended Statement of Claim, he claimed "damages for economic loss for loss of income, pain and suffering, and loss of amenities of life". These are claims not founded under the Workers Compensation Act. Thus, we are of the opinion that the respondent’s claim was obviously a common law claim for damages, not a claim for compensation under the Workers Compensation Act. There is no provision of the Act which provide for the type of claim that the respondent had pleaded in his statement of claim. The Act only refers to workers compensation.

13. Since the central theme of arguments of both parties centred on s.84 (2) of the Act, we set out this provision in full:

84. Liability independently of Act

1. ..........
   

Where a worker or his dependents, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the day on which the injury occurred. (our emphasis)

14. It is worthy and instructive to note that s.84 of the Act comes under Part VIII which deals with Alternative Remedies, and sub-section (1) makes it plain that the Workers Compensation Act does not affect any liability which exists outside of the Act.

15. We consider that that means s.84 (2) does not deal with a compensation claim under the Act, but a claim for damages other than a claim for workers compensation, that is to say, a claim independent of the Act. We are of the view that because this Part of the Act provides for alternative remedies, common law damages is one alternative remedy which the Act does not affect.

16. However, while we consider that s.84 (2) relates to common law damages, which is an alternative remedy under Part VIII, there is a time limit in which a claim for damages must satisfy. That time limit is 3 years from the date of the injury.

17. It is an undisputed fact that the respondent said he sustained injury on 3 March 1998. We consider that a claim for damages in common law must be lodged within 3 years from the date of injury, which in this case, would have been 3 years from 3 March 1998. That statutory time limit expired on 3 March 2001. The respondent filed his writ on 2 March 2004, with another amended writ on 21 April 2004, some three years outside the time limit of 3 years.

18. Having reviewed the written submissions of both counsels, we consider that there appears to be a great deal of misconception on the part of the respondent. Mr. MacDonald has referred to, and made submissions in relation to Sections 41 (2), 42, 43 and 45 of the Act, however it is our view that those provisions relate to procedural law, which is outside the gist of this appeal. Whether the appellant followed the procedures under the Act or lodge a Notice of Injury is not the issue here. With respect to Mr. MacDonald, he has misconceived the crux of the appeal. That misconception is confirmed by a question which he posed at page 3 under paragraph 3 of his written submission.

19. Counsel said, "Assuming I am wrong regarding the above interpretation, and the Court finds that a worker can bring a common law claim and that the claim must be brought within 3 years. The question then arises within 3 years of what event?" (emphasis supplied). The answer is quite simple – "unless he commences that action within three years from the date on which the injury occurred" (our emphasis). The last two sentences of s.84 (2) answers that question. In our view, there can be no ambiguity at all in the construction and application of s.84 (2). Therefore the answer to the question posed by counsel lies in that provision. There is no doubt about that.

20. Whilst we agree that the claim for compensation under the Act is commenced by a notice of injury to be given by the employer in pursuance of s.42 (1) (b) & (c), this appeal and the proceedings in WS 188 of 2004, do not involve a claim for worker’s compensation under the Act. That much is obvious from the pleadings in the writ of summons at page 4 which the respondent (plaintiff) claims and which we have adverted to, but repeat it here to reiterate the nature of his claim.

"1. Damages for economic loss for income, pain and suffering and loss of amenities of life."

21. We have no doubt that what we have alluded to means and refers to a common law claim for damages. We say that damages for economic loss or damages for pain and suffering and loss of amenities of life are not statutory remedies found in the Workers Compensation Act. We therefore find that the respondent’s claim in the National Court in WS 188 of 2004 is one founded on common law and not statute, vis a viz, Workers Compensation Act.

22. Accordingly, we rule that the respondent’s claim in the National Court was not a claim for workers compensation under the Workers Compensation Act, but a common law claim. We are satisfied, and we find that the respondent’s claim instituted in the National Court was based on the common law claim for damages for injury sustained at the respondent’s work place in the course of his employment.

23. It therefore makes sense that this appeal be confined to the interpretation or construction of s.84 (2) of the Workers Compensation Act. We see no problem with the construction of this provision. In our view, the respondent is entitled to receive compensation for his injury under the Act, but he has not received any compensation. 24. We hold that the respondent is entitled to file a claim for damages outside the Act, that is, a common law claim which is independent of the Act, and is an alternative remedy. However, we find that such a claim must be lodged or made within 3 years from the date of injury, which date was 3 March 1998. In this case, his claim for damages against the appellant should have been instituted by or before 3 March 2001. Essentially that is our summation of our discussion on s.84 (2).

25. We are of the opinion that there are two methods of making a claim for injuries sustained in the course of an employment under the Workers Compensation Act. Where an injured employee is claiming compensation under the Workers Compensation Act, the claim is commenced by the employee giving the relevant notice pursuant to s.42 (1) (b) & (c). Where the injured employee decides to claim from the employer outside of the Act, he must do so in accordance with s. 84 (2) of the Act. His right is preserved under s.84 of the Act.

27. We refer to Joseph Tonava v. Electricity Commission of Papua New Guinea [1987] PNGLR 81, where the late former Chief Justice, Sir Buri Kidu said at 82-83:
    

"A worker injured during the course of his or her employment has the right to claim compensation under the Act or sue his/her employer for damages independently of the Act. Section 84 preserves this right. It also ensures that an employer does not pay compensation under the Act as well as damages outside the Act for the same injury (or injuries)."

27. Then at 83, the learned Chief Justice said:
    

"I consider that subs (2) has one clearly defined purpose – to advise workers that if they wish to claim for damages for personal injury outside the Act their claims must be instituted within three years from the date of injury." (our emphasis)

28. We agree with the late Chief Justice’s opinion and we hold that to be the proper statement of the law in this situation and we adopt that and apply those principles in this appeal. We are of the view that that is the law that must be applied and maintained in a situation like the one giving rise to this appeal.

29. Whilst the facts of the present case are completely different to those of that case, we consider that the principles established in that case are correct expression of the law and we approve and apply them in the present appeal. We reiterate from our reading of s.84 that an injured worker has two options. First, he has the right to pursue compensation under the Act. And secondly, he can sue the employer for damages for his injury, and that is an action outside the Act; ie. independent of the Act. But subsection (4) prohibits exercising both rights.

30. In applying these principles to this appeal, we are of the view that the respondent in this case had exercised his right to pursue a claim outside the Act. We are satisfied that the proceedings commenced by the respondent in WS 188 of 2004 were proceedings based on common law, therefore independent of the Act, and not a claim for compensation under the Act. We have already alluded to the reasons for that opinion.

31. However, we should emphasise that in the exercise of his right, the respondent had instituted the proceedings outside the statutory time limit of 3 years stipulated by s.84 (2). He is therefore barred from bringing his claim outside the three years time limit.

32. We accept the submissions of Ms. Thompson, counsel for the appellant. Upon a careful perusal of the transcript and the exchange between counsel and the trial Judge, we are of the view that the trial Judge fell into a serious error of law which vitiated her decision. We note that in the transcript, Davani, J did refer to s.84 (2), however she did not quite address the issue of the statutory time limit. With respect, her Honour misconceived the law in confusing s.42 (1) with s.84 (2) which deals with two separate types of claims. Her Honour seems to say that since a claim under s.42 (1) was not lodged, the appellant’s notice of motion was misconceived. We consider that was a fatal error of law which cannot stand in the way of doing justice to the parties in this appeal.

33. With respect, we disagree with Davani, J’s interpretation of the law in s.42 (1) and s.84 (2). In fact, we find no sound reasoning, as to why she dismissed the appellant’s notice of motion, without stating a genuine basis for such a dismissal. We note from the transcript at p.28 of the appeal book the following:

"Now the issue here is whether Section 84 (2) is applicable under the circumstances. The Court’s view is that it is not because the plaintiff in fact has that alternative of whether to apply for compensation under the Workers Compensation Act or to lodge a claim under the common law. That is his prerogative."

34. Whilst we agree with the last part of the above statement of the trial Judge, we consider that her Honour clearly misconceived the law. This is evident in her latter statement which she referred to s.42 (1) which deals with the employer giving notice of injury and she said; "Now if a claim for workers compensation was lodged in all probability, these documentations should be held by the employer as well because they are affected. But that has not been done. So on that basis, I find that this claim does not hold water and that it should be dismissed. I am sorry, the motion shall be dismissed." We ask, on the basis of what? What was the trial Judge’s reason for dismissing the motion here?

35. That record clearly reflects a glaring error by the trial Judge. The s.41 (2) notice has nothing to do with a s.84 (2) claim made independent of the Act. Section 42 (1) refers to, and is relevant to, a claim for workers compensation which is trigged off by the employer giving a notice of injury pursuant to s.41 (2) and s.42 (1) to the Registrar of Workers Compensation. The Registrar will then act in accordance with s.43. However, the trial Judge was not dealing with a claim for compensation under the Workers Compensation Act. The trial Judge was dealing with a common law action as we have already found.

36. It is our opinion that the action in WS 188 of 2004 commenced by the respondent was a claim independently of the Workers Compensation Act, or it was a claim outside of the Act. Whether it is a claim for damages for breach of contract or negligence, we consider that that it is a common law action. And by virtue of s.84 (2) of the Act, such a claim must be brought within 3 years from the date the injury was sustained. We find that the trial Judge misdirected her mind on the law, and as a result, she misconceived the meaning of s.84 (2). The trial Judge failed to address her mind to the statutory time limit of 3 years in s.84 (2) and therefore she fell into error.

37. Section 84 (2) has that well defined principle that the late former Chief Justice, Sir Buri Kidu was alluding to in Joseph Tonava (supra). In the present case, the trial Judge just failed to consider the time limit therein and she made a serious error in not upholding the appellant’s notice of motion. We are of the view that had Davani, J. correctly considered s.84 (2), the result of the appellant’s notice of motion would have been different. Her Honour would have upheld the application and dismissed the whole proceedings for being statutory-barred.

38. We adopt and apply the principles established in Joseph Tonava (supra) to the present case because we consider it the proper legal construction of s.84 (2). We reiterate that an injured worker has two choices as we have already alluded to. In the present case, the respondent’s claim in WS 188 of 2004, was a claim independent of the Workers Compensation Act therefore subject to the statutory limitation period of 3 years in s.84 (2). There can be no other interpretation than what we have held in this judgment, which is what the Court correctly held in Joseph Tonava (supra).

39. In conclusion, we reiterate our opinion that the trial Judge had fallen into error that her decision cannot stand. It is clear that she misapplied the law and she failed to properly distinguish the two alternative causes of action available under the Workers Compensation Act. She erred in law in dismissing the appellant’s application before her when it was evident that the proceedings, WS 188 of 2004, was brought outside the 3 years time limit stipulated by s.84 (2) Workers Compensation Act.

40. For these reasons we uphold the appeal and order that the respondent’s claim in WS 188 of 2004 be dismissed for being time barred. We order that costs follow the event in this appeal and we also order that costs of the National Court proceedings be borne by the respondent.

__________________________________________

Young & Williams: Lawyer for Appellant
Posman Kua Aisi: Lawyer for Respondent