Raim v Korua [2010] PGSC 8; SC1062 (2 July 2010)

SC1062

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 153 OF 2009

BETWEEN

TONY DAVID RAIM
Appellant

AND

SIMON KORUA
Respondent

Waigani: Gavara-Nanau, Davani & Makail, JJ
2010: 28th June & 2nd July

NEGLIGENCE - Personal injuries claims - Injuries sustained in the course of employment - Cause of action - Common law tort of negligence for breach of duty of care - Alleged failure of employer to provide safe and secured place of work for employees - Workers compensation claim - Alleged breach of statutory duty and failure to provide workers compensation for employees - Workers Compensation Act, Ch 179 - Section 84(1).

PRACTICE & PROCEDURE - Vague pleadings - Varying claims not fully particularised - Appellant cannot lead evidence on claim that is not particularised - National Court Rules - Order 8, rules 29 & 32.

Cases cited:

Karawari Lodge Pty Limited -v- Bernard Luck (1998) SC553
Colbert -v- PNG [1988-89] PNGLR 590
Joseph Tonava -v- Electricity Commission of Papua New Guinea [1987] PNGLR 81
Placer (PNG) Limited -v- Anthony Harold Lievers (2007) SC899
Papua New Guinea Banking Corporation Limited -v- Jeff Tole (2002) SC694
National Provident Fund Board of Trustees -v- Jimmy Maladina & Ors (2003) N2486
Motor Vehicles Insurance (PNG) Trust Ltd -v- John Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust Ltd -v- James Pupune [1993] PNGLR 370

Counsel:

Mr P Kak, for Appellant
No appearance, for Respondent

2nd July, 2010

JUDGMENT

1. BY THE COURT: This is an appeal from the decision of Hartshorn, J made on 12th October, 2009 where his Honour dismissed the proceeding in the National Court because the appellant failed to establish liability against the respondent, in that, the appellant failed to establish negligence against the respondent for injuries sustained in the course of employment with the respondent.

2. In the National Court, it was alleged that the appellant was employed by the respondent as manager of the respondent’s business called Sea Wara Freezer in Port Moresby and was located at a residential property at allotment 13, section 68, Gordons. The residential property was owned by one Pius Tikili. It was further alleged that, on 10th August, 2002, whilst he was working, an armed gang held him up, shot and wounded him. As a result, on 4th October, 2004, he commenced proceedings for damages for personal injuries against the respondent for breach of common law duty of care to provide a safe and secured system of work at the work place to the employees and this included failure to provide workers compensation under the provisions of the Workers Compensation Act, Ch 179. The respondent denied the claim as the appellant was not his employee.

3. Before we discuss the substance of the appeal, it should be stated here that, we granted leave to the appellant to proceed to argue the appeal in the absence of the respondent after we were satisfied based on his affidavit of service sworn and filed on 10th June, 2010, that sufficient notice had been given to the respondent by service of a notice of hearing on his lawyers on 09th June, 2010 at 2:45 pm at Defense Haus in down town Port Moresby. Despite that, neither the respondent nor his lawyers attended the hearing.

4. Turning to the substance of the appeal, the appellant relies on four grounds of appeal in the notice of appeal filed on 19th November, 2009. In relation to the first ground, his counsel Mr Kak argued inter-alia, that the learned judge in the National Court erred in law and fact when he failed to find that the appellant’s claim in the National Court was one of breach of common law duty of care to provide a safe and secured system of work at the work place. Mr Kak pointed us to paragraph 16 of the statement of claim and strenuously argued that paragraph 16 sets out the particulars of the duty of care or rather, the various duties owed by the respondent to the appellant which were allegedly breached by the respondent.

5. He strenuously urged us to find that the pleadings, and in particular, the allegation of fact at paragraph 16(1) of the statement of claim that, "The Plaintiff therefore claims that the Defendant owes a duty of care to his employees including the Plaintiff to ensure that: [t]heir safety was guaranteed" was sufficient and wide enough to encompass and establish a duty of care between the respondent and the appellant. That is to say, the respondent had a duty to have in place adequate security measures for the benefit and safety of his employees. He further argued that these various duties set out at paragraph 16 were breached as a consequence of the alleged failure by the respondent to provide adequate security measures and also to comply with the Workers Compensation Act, Ch 179. As a result, the appellant was wounded by the armed robbers and also missed out on compensation under the Workers Compensation Act, Ch 179.

6. As for the remaining grounds of appeal, Mr Kak argued that if the learned judge had found that there was a duty of care owed to the appellant by the respondent for provision of a safe and secured place of work including provision of insurance cover or compensation to the appellant under the Workers Compensation Act, Ch 179, there was sufficient evidence from the appellant to establish the duty of care and the breach in both instances and referred to the various affidavits filed by the appellant in the appeal book to support his submission. If his Honour had found so, he would not have summarily dismissed the proceeding. As he found otherwise, this was where his Honour fell into error.

7. From our perusal of his Honour’s decision at pp 132-133 and in particular, paragraphs 3 and 4 at p 132 of the appeal book, the first point to note is that while both counsel had submitted before his Honour that the issue was whether the appellant was employed by the respondent, his Honour considered that, that was not the issue. It was peripheral to the main issue of whether the appellant was entitled to the relief he was seeking before the Court. We mention this because the appellant has not challenged that aspect on appeal. That means, the issue before us for determination is whether the appellant has established a duty of care and its breach against the respondent.

8. On that issue, it is noted that his Honour acknowledged at paragraph 7 at p 132 of the appeal book, that there is a general duty of care imposed by the common law owed by an employer to its employees to provide a safe system of work. But he was not satisfied in this case that, the respondent as an employer owed a duty of care such as those set out at paragraph 16 of the statement of claim to the appellant. In other words, notwithstanding that there is a general duty of care owed by an employer to its employees to provide a safe system of work, that general duty of care does not include provision of compensation under the Workers Compensation Act, Ch 179. Further, if the appellant suffered loss as a consequence of non compliance with the Workers Compensation Act, Ch 179 he may have a claim against the respondent for breach of statutory duty, but that claim has not been made.

9. We agree with the views expressed by his Honour. There is a general duty of care of an employer in respect of his employees to provide a safe system of work: see Karawari Lodge Pty Limited -v- Bernard Luck (1998) SC553 and Colbert -v- PNG [1988-89] PNGLR 590. In this case, it is obvious to us that the appellant sued the respondent for damages for personal injuries sustained at work based in two causes of action. First, for negligence, that is, breach of duty of care for failure to provide a safe and secured place of work including failure to provide workers compensation under the Workers Compensation Act, Ch 179 and secondly, purportedly for breach of statutory duty for failure to provide workers compensation under the Workers Compensation Act, Ch 179. The claim based on purported breach of statutory duty under the Workers Compensation Act, Ch 179 may be found at paragraphs 14, 15, 16, 17 and 18 of the statement of claim and we set them out below:

"14. The Defendant knowingly and willfully failed and neglected to make or arrange for a just compensation to the Plaintiff because he received injuries while performing his duties as an employee of the Defendant.

15. Further, the Defendant failed to comply with the Workers Compensation Act, to insure his employees, (especially the Plaintiff) or have them covered from such risks or accident which may occur in the course of employment.

16. The Plaintiff therefore claims that the Defendant owes a duty of care to his employees including the Plaintiff to ensure that:

(1) Their safety is guaranteed;

(2) They are covered from any work related accidents;

(3) Appropriate insurance cover is taken out to protect them from any work related accidents or deaths;

(4) All medical expenses are paid for in the event that they are injured in the course of their employment;

(5) They are appropriately compensated for the injuries or disabilities sustained during their course of employment."

(17) The Defendant had failed to discharge the above duty of care and is therefore liable to the Plaintiff as alleged.

(18) The Defendant was negligent in not caring for and providing for the welfare of his employees, including the Plaintiff, which particulars are pleaded above in paragraph 16."

10. The common law tort of negligence, which arises from the failure of the respondent to provide a safe and secure place of work and the breach of statutory duty which arises from the failure by the respondent to provide workers compensation under the Workers Compensation Act, Ch 179 are two distinct and separate causes of action. The former being a common law action and the latter an action provided by statute. Also, it is worth noting that, a common law negligence action for damages for personal injuries arising from course of employment is independent of the Workers Compensation Act, Ch 179: see section 84(1) of the Workers Compensation Act, Ch 179, and the cases of Joseph Tonava -v- Electricity Commission of Papua New Guinea [1987] PNGLR 81 and Placer (PNG) Limited -v- Anthony Harold Lievers (2007) SC899.

11. As they are two distinct and separate causes of action, the appellant must specifically plead or identify each in the statement of claim. From the pleadings set out above, it is apparent that the appellant alleged that, apart from the respondent owing a duty of care to provide a safe system of work at the place of work, that duty of care included provision of insurance cover or workers compensation for his employees including the appellant under the Workers Compensation Act, Ch 179.

12. First, in relation to the common law duty of care of employers to provide a safe system of work, we are neither agreeable nor persuaded by Mr Kak’s submissions that paragraph 16(1) is sufficient to establish a common law duty of care in so far as provision of a safe and secured work place is concerned. As far as we can see, the pleadings in the statement of claim in relation to particulars of the duty of care and its breach are not sufficiently and adequately pleaded, and particularised.

13. We hold this view because we are unable to determine from the statement at paragraph 16(1) above, the nature of the duty of care owed by the respondent to the appellant. Is the appellant saying that respondent had a duty to provide adequate security fencing around the property where the work place is located or is he saying that the respondent was required to provide adequate security guards to mane the work place?

14. Further, is he saying that the respondent was required to install security lights in and around the work place or is the respondent required to provide security guards to escort him around Port Moresby in the course of his employment? Furthermore, is it a combination of all of these matters relative to adequacy of security? In our view, the appellant has neither addressed these questions nor pleaded them in paragraph 16(1) above, or any where else in the statement of claim. The entire pleading in the statement of claim is vague and lacks particularity in relation to provision of adequate security. Indeed, the entire statement of claim is poorly drafted because we have had great difficulty identifying the nature of the duty of care.

15. Further still, it does not set out the particulars of the breach of the duty of care. For example, the appellant did not plead if the respondent failed to provide some or all of those security measures we have identified and set out above. In our view, these were important material facts relevant to establish a cause of action based on the common law tort of negligence that ought to have been pleaded. For it is trite, where a party alleges negligence against another, it must prove the following elements:

1. there is a duty of care owed by one party to the aggrieved other;

2. there is a breach of the duty of care by the party to the aggrieved party; and

3. as a result of the breach of the duty of care, the aggrieved party suffers injury which must be compensated.

16. 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 particularising them: see Order 8, rules 29 & 32 of the National Court Rules. It is also trite 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. There is abundance of case authorities on pleadings in this jurisdiction and we need not refer to all, suffice to refer to Papua New Guinea Banking Corporation Limited -v- Jeff Tole (2002) SC694 where the Supreme Court comprising of Amet, CJ (as he then was), Sheehan & Kandakasi, JJ 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."

17. Perhaps, a more succinct statement of these principles may be found in National Provident Fund Board of Trustees -v- Jimmy Maladina & Ors (2003) N2486, where Kandakasi, J said inter-alia, that "the object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine." see also Motor Vehicles Insurance (PNG) Trust Ltd -v- John Etape [1994] PNGLR 596 and Motor Vehicles Insurance (PNG) Trust Ltd -v- James Pupune [1993] PNGLR 370.

18. It is therefore clear from these authorities that a party must sufficiently plead the material facts giving rise to a cause of action to give the opposing party the opportunity to respond or defend the claim. In the present case we find that the appellant has failed to comply with these procedural requirements. As a result, there is insufficient information before us to establish a connection between the appellant and the respondent in relation to the common law duty of care to provide a safe system of work and its breach.

19. Further, we are not satisfied that the common law duty of care of employers to provide a safe system of work included provision of insurance cover or workers compensation under the Workers Compensation Act, Ch 179, because no convincing arguments and case authority have been put to us to find so. In our view, the appellant has not demonstrated to our satisfaction that his Honour erred when he failed to find that the respondent’s failure to provide insurance cover or workers compensation under the Workers Compensation Act, Ch 179 is a breach of the common law duty of care that may give rise to a cause of action in negligence against the respondent as an employer.

20. Furthermore, we are not satisfied that he has sufficiently pleaded a cause of action for breach of statutory duty under the Workers Compensation Act, Ch 179. He seemed to have pleaded that the respondent owed a duty of care to provide workers compensation under the Workers Compensation Act, Ch 179 and breached that duty. However, in our view, he has not pleaded the particulars of the statutory duty and the breach. In other words, he has not identified if it is mandatory under the Workers Compensation Act, Ch 179 for an employer to provide insurance cover or workers compensation to employees and if there is, whether there is a breach. These are, in our opinion, important material facts that must be set out properly in the statement of claim. As far as we can see, there are no pleadings to that effect in the statement of claim.

21. We believe, that is why his Honour was not satisfied that the appellant had established a claim for breach of statutory duty. This is clear from his Honour’s decision at paragraph 6 at p 132 of the appeal book where he said, "If it is alleged that Mr. Raim suffered loss as a consequence of a non-compliance with the Workers Compensation Act, he may have a claim against Mr. Korua in tort for breach of statutory duty but that has not been claimed in this instance."

22. For these reasons, we find no error in the decision of the learned judge when he held that the appellant did not establish that the respondent owed a duty of care to provide a safe and secured place of work for the appellant including provision of insurance cover or workers compensation or for breach of statutory duty under the Workers Compensation Act, Ch 179 in this case. We dismiss this ground of appeal.

23. As for the remaining grounds of appeal, we consider that they are consequential to the first ground of appeal because first, as we have pointed out above, there must be foundation in the pleadings before evidence may be led to establish the allegations of the duty of care and breach in the pleadings. Secondly, the appellant must establish that the respondent owed a duty of care and breached it before any loss can be claimed. As we have found that the pleadings in relation to the common law duty of care and breach in relation to provision of a safe and secured place of work were inadequate and vague, there was therefore, no basis for the appellant to lead evidence to establish these allegations.

24. Further, we find that as those duties of care set out in paragraph 16(2)-(5) of the statement of claim do not constitute a common law duty of care to provide insurance cover or workers compensation, there was also no basis for the appellant to lead evidence to establish these allegations. Finally, as there were no pleadings in relation to the claim of breach of statutory duty for provision of workers compensation under the Workers Compensation Act, Ch 179, there was also no basis for the appellant to lead evidence to prove the claim. In each instance, his Honour was correct in not considering the evidence. We find no error here. These grounds of appeal are misconceived and therefore, dismissed.

25. In the end, we dismiss the appeal with costs to the respondent.

_________________________________________
Paulus Dowa Lawyers: Lawyers for the Appellant
Ketan Lawyers: Lawyers for the Respondent