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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 113 OF 2021
MARSHA WOOLCOTT
First Appellant
RHYS WOOLCOTT BY HIS NEXT FRIEND MARSHA WOOLCOTT
Second Appellant
JAIDEN WOOLCOTT BY HIS NEXT FRIEND MARSHA WOOLCOTT
Third Appellant
LEWANA WOOLCOTT BY HER NEXT FRIEND MARSHA WOOLCOTT
Fourth Appellant
V
NIVANI LIMITED
Respondent
Waigani: Cannings J, Polume-Kiele J, Dowa J
2022: 12th December,
2023: 4th January
WRONGFUL DEATH – claim by appellants in respect of death of their husband and father in workplace accident on respondent’s barge.
TORTS – negligence – whether the respondent owed a duty of care to an independent contractor engaged by respondent to work on barge – whether respondent had duty of care to provide safe system of work – whether respondent negligently failed to provide safe system of work – whether National Court erred by finding that the respondent was not negligent.
TORTS – breach of statutory duty – whether the Industrial Safety, Health and Welfare Act imposed statutory duty on the respondent, as employer, to provide safe system of work for benefit of persons who are not employees of respondent – whether statutory duty was breached – whether breach of statutory duty caused death of deceased.
SUPREME COURT – power of Court, on hearing an appeal, to give such judgment as ought to have been given in the first instance – Supreme Court Act, s 16.
The appellants are the widow and children of a man who died while working on the respondent shipping company’s barge, while it was moored. The deceased and five other men were trapped at the base of a five-metre ladder below the hatch in a tank on the barge and were asphyxiated due to lack of oxygen or presence of toxic fumes in the tank; only one of them survived. The appellants brought a wrongful death dependency claim against the respondent in the National Court, arguing that the deceased was the employee of the respondent and pleading the torts of negligence and breach of statutory duty as primary causes of action. A trial was conducted and their claim was wholly dismissed. The trial judge ruled that the deceased was not an employee of the respondent, but an independent contractor; and that although the respondent owed him a duty of care it did not breach its duty as it did not fail to provide a safe system of work. Rather it was the deceased who failed to exercise due care and attention who was responsible for his own death, therefore negligence was not established. As to breach of statutory duty, the trial judge held that the appellants ought to have pleaded negligence or breach of statutory duty but not both, but considered the breach of statutory duty claim on its merits. His Honour ruled that the first element of the tort was established in that the Industrial Safety, Health and Welfare Act imposed a duty on the respondent to provide a safe system of work on the barge for the benefit of not only its employees but all persons (including the deceased) working on the barge with its knowledge and authority. His Honour held, however, that there were no breaches of statutory duty proven and therefore dismissed the claim, and the entire proceedings. The appellants argued on appeal that the trial judge erred in law and fact by finding that the deceased was not an employee of the respondent, that the respondent was not negligent and that the respondent did not breach its statutory duty under legislation including the Industrial Safety, Health and Welfare Act to provide a safe system of work and that the respondent was not liable under the Wrongs (Miscellaneous Provisions) Act for the death of the deceased.
Held:
(1) The deceased was employed by a company in which he was a shareholder, which was engaged by the respondent as a consultant pursuant to a management agreement between that company and the respondent. The trial judge did not err in concluding that the deceased was not an employee of the respondent.
(2) The trial judge correctly ruled that the respondent owed a duty, as owner and operator of the barge, to take reasonable care in regard to persons such as the deceased who were working on it with its knowledge and authority, and was obliged to provide a safe system of work. There was strong evidence that it failed to discharge that duty in that there were no oxygen tanks or other safety or rescue equipment on the barge, no standard operating procedures for confined space entries, no control measures in place to identify and reduce risks associated with polluted or toxic air in the tanks on the barge, no information, instructions or training provided for persons working on the barge, no regular inspections conducted to identify the presence of polluted or toxic air and no signage warning of dangers of entering confined spaces such as the tanks that might contain polluted or toxic air. The trial judge erred in fact and law by failing to give sufficient weight to that evidence and preferring the respondent’s evidence that the obligation to provide safety measures lay with the deceased’s employer and with the deceased himself. The deceased’s obligation to take reasonable care regarding his own health and safety did not neutralise the respondent’s duty to do likewise. Though the trial judge concluded that the deceased did not avail himself of the safety processes and procedures available, no defence of contributory negligence was pleaded and it was not a reasonable conclusion to draw from the evidence that the respondent provided a safe system of work. The finding that the respondent was not negligent was made in error.
(3) The trial judge erred by stating that the appellants ought to have elected to bring a claim in negligence or breach of statutory duty but not both. There was no obligation to make such an election.
(4) The trial judge correctly ruled that there are statutory duties imposed on the respondent, as an owner and operator of ships and vessels, to provide a safe system of work and that those duties were owed to all persons working on the barge including the deceased. There was strong evidence that it breached those duties, in particular the duty under s 40 (work in confined spaces) of the Industrial Safety, Health and Welfare Act to take specific steps to minimise risk of exposure to hazardous fumes etc in confined spaces and to provide readily accessible breathing and reviving apparatus. The trial judge did not properly assess the alleged statutory breaches and incorrectly relied on his finding during determination of the negligence claim that the respondent was not negligent, to presume that there was no breach of statutory duty. His Honour failed to observe the distinction between the two separate causes of action of negligence and breach of statutory duty and erred in law by summarily dismissing the breach of statutory duty claim.
(5) The primary grounds of appeal being upheld, the appeal was allowed, and the decision of the National Court was quashed.
(6) There was sufficient evidence before the Supreme Court on which it could determine the claims in negligence and breach of statutory duty and, pursuant to s 16(c) of the Supreme Court Act, give the judgment that ought to have been given in the first instance. As to negligence: the respondent owed a duty of care to the deceased, it breached that duty and the breach of duty caused the death of the deceased, being a type of injury that was reasonably foreseeable. Therefore, liability in negligence was established. As to breach of statutory duty: various legislation imposed duties on the respondent to provide a safe system of work, those duties were breached, in particular, the Industrial Safety, Health and Welfare Act, the purpose of which was to protect a particular class of persons, the deceased was a member of that class, the deceased died as a result of the breach of duty and it was reasonably to be inferred that the Parliament intended to create a private right of action for breach of that duty. Therefore, liability in breach of statutory duty was established. The respondent bore liability for negligence and breach of statutory duty notwithstanding the wrongful death of the deceased, which liability inured for the benefit of the appellants (as wife and children of the deceased) pursuant to ss 25 and 26 of the Wrongs (Miscellaneous Provisions) Act.
(7) The case was remitted to the National Court for an assessment of damages.
Cases Cited
The following cases are cited in the judgment:
Papua New Guinean Cases
Edwards v Jordan Lighting [1978] PNGLR 273
Howard v Bougainville Copper Ltd [1976] PNGLR 298
Lubbering v Bougainville Copper Ltd [1977] PNGLR 183
Mathias Goma & 703 Others v Protect Security & Communication Ltd (2013) SC1300
Motor Vehicles Insurance Ltd v Nominees Niugini Ltd [2015] 1 PNGLR 510
Pomat v Consort Express Lines Ltd (2020) N8300
Roth v Ok Tedi Mining Ltd (1998) N1788
Woolcott v Nivani Ltd WS 1173 of 2017, David J, 2 August 2021, unreported
Overseas Cases
Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21
Stevens v Brodribb Sawmilling Co Ltd (1985-86) 160 CLR 16
Thompson v Cremin (1956) 1 WLR 103
Counsel
I M Molloy & A U Konena, for the Appellants
S M Kiene, for the Respondent
4th January, 2023
1. BY THE COURT: The appellants, Marsha Woolcott and her children Rhys, Jaiden and Lewana Woolcott, are the widow and children of the late Stephen Woolcott, who died on 26 November 2014 while working on a barge owned and operated by the respondent, Nivani Ltd, while it was moored at Karavia between Kokopo and Rabaul, East New Britain Province. The deceased and five other men were trapped at the base of a five-metre ladder below the hatch in a tank on the barge and were asphyxiated due to lack of oxygen or presence of toxic fumes in the tank; only one of them survived.
2. The appellants brought a wrongful death claim against the respondent in the National Court, arguing that the deceased was the employee of the respondent and pleading the torts of negligence and breach of statutory duty as primary causes of action. A trial was conducted and their claim was wholly dismissed (Woolcott v Nivani Ltd WS 1173 of 2017, David J, 2 August 2021, unreported). They appeal against the dismissal of their claim.
NATIONAL COURT DECISION
3. The trial judge ruled that the deceased was not an employee of the respondent, but an independent contractor; and that although the respondent owed him a duty of care it did not breach its duty as it did not fail to provide a safe system of work. Rather it was the deceased who failed to exercise due care and attention who was responsible for his own death, therefore negligence was not established against the respondent.
4. As to breach of statutory duty, the trial judge remarked that the appellants ought to have pleaded negligence or breach of statutory duty but not both, but considered the breach of statutory duty claim on its merits. His Honour ruled that the first element of the tort was established in that the Industrial Safety, Health and Welfare Act imposed a duty on the respondent to provide a safe system of work for the benefit of not only its employees but all persons (including the deceased) working on the barge with its knowledge and authority. His Honour held, however, that there were no breaches of statutory duty proven against the respondent and therefore dismissed the claim, and the entire proceedings.
GROUNDS OF APPEAL
5. The appellants’ consolidated notice of appeal contains numerous grounds, which were placed into four categories at the hearing of the appeal. It is argued that the trial judge erred in fact and law by finding that:
GROUND 1: FINDING THAT THE DECEASED WAS NOT AN EMPLOYEE OF THE RESPONDENT
6. The question arose at the trial whether the deceased was an employee of the respondent because the respondent had entered into a written management agreement with a company, Dee-Wy Ltd, in which the deceased and his wife, Marsha Woolcott, were shareholders. Under that agreement, Dee-Wy Ltd provided the deceased’s services to the respondent, first as Boat Building Division Manager and later, and at the time of his death, as Shipping Manager. The appellants argued that the deceased was an employee of the respondent, while the respondent maintained that he was an independent contractor, employed by Dee-Wy Ltd.
7. The trial judge adopted a multi-factor approach emanating from a series of decisions of the High Court of Australia, including Stevens v Brodribb Sawmilling Co Ltd (1985-86) 160 CLR 16 and Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21, which required an examination of the totality of the relationship between the respondent and the deceased. His Honour took account of the following considerations:
8. His Honour concluded that the totality of the relationship between the respondent and the deceased was one of principal (the respondent) and independent contractor (the deceased), and that accordingly the deceased was not an employee of the respondent.
9. We are not persuaded that the trial judge made any error of fact or law in drawing that conclusion.
GROUND 2: FINDING THAT THE RESPONDENT WAS NOT NEGLIGENT
10. The trial judge ruled that the respondent owed a “non-delegable” duty, as owner and operator of the barge, to take reasonable care in regard to persons such as the deceased who were working on it with its knowledge and authority, and was obliged to provide a safe system of work. That duty arose irrespective of whether the deceased was an employee of the respondent or an independent contractor (Thompson v Cremin (1956) 1 WLR 103, Stevens v Brodribb Sawmilling Co Ltd (1985-86) 160 CLR 16). Neither the appellants nor the respondent have challenged that ruling and we endorse it as correct.
11. The more contentious ruling his Honour made was that it was not proven that the respondent failed to provide a safe system of work, as it was the deceased himself and his employer, Dee-Wy Ltd, who failed to take reasonable care. His Honour stated at paragraphs 134, 138 and 163 of the judgment:
134 I accept [respondent director] David John Stein’s evidence that the obligation to arrange for the appropriate safety equipment lay with Dee-Wy and the deceased if they effected the opening of the starboard No 2 hatch or as soon as they discovered that it had already been opened by others. ...
138 It is plain and clear that the deceased did not avail himself of the safety processes and procedures available to enter the hatch of starboard No 2 compartment of the barge. ...
163 The onus is always on a person who alleges to prove what he alleges and not on a person who denies the allegation. The plaintiffs have failed to establish that the failure, if any, by Nivani to eliminate the risk of injury showed want of reasonable care for the deceased’s safety: Edwards v Jordan Lighting [1978] PNGLR 273 at 284. In the circumstances I find that the plaintiffs have failed to prove on the balance of probabilities that Nivani breached its non-delegable duty.
12. We respectfully consider that by focussing on the acts and omissions of the deceased (despite the defence of contributory negligence not being pleaded) and his employer, Dee-Wy Ltd, the trial judge led himself into error. Even if it is found that an employee (or as in this case, an independent contractor) has failed to exercise reasonable care, that does not neutralise the employer’s (the respondent’s) duty to provide a safe system of work. Nor does it force the conclusion that the respondent provided a safe system of work. An employer cannot (except in special situations that do not apply here) escape liability for failure to provide a safe system of work by saying that it was the employee’s (or independent contractor’s) obligation to do so (Lubbering v Bougainville Copper Ltd [1977] PNGLR 183).
13. Having formed the opinion that the deceased failed to avail himself of the safety processes and procedures available to enter the hatch of starboard tank No 2, his Honour jumped to the conclusion that it was not proven that the respondent had failed to provide a safe system of work. His Honour ought not to have allowed his determination of the question of whether the respondent had failed to provide a safe system of work to be foreclosed by his determination that the deceased was negligent. There should have been a more intensive inquiry into why and how the deceased, according to the finding made, was able to enter the tank, so that the question of whether the respondent provided a safe system of work could be squarely addressed.
14. By focusing on the deceased’s conduct and concluding, without sufficient inquiry, that it was not proven that the respondent failed to provide a safe system of work, the learned trial judge has in our view erred in law.
15. We appreciate that his Honour did, at the beginning of his determination of the negligence issue (which was very detailed and extended from paragraphs 70 to 164 of the judgment), carefully set out the nature and extent of the respondent’s duty to provide a safe system of work, by citing dicta of Andrew J in Edwards v Jordan Lighting [1978] PNGLR 273:
The duty of the employer is a single undivided duty to take reasonable care for the safety of his employees in all the circumstances of the case. To charge an employer with failure to provide a safe system of work does no more than allege that the breach of duty sued upon has occurred in relation to the layout or organisation of the work to be performed. An alternative formulation of the duty is that the employer is under a duty so as to carry on his operation as not to subject those employed by him to unnecessary risk.
16. We agree with the trial judge that that is a correct and pertinent statement of the duty of the respondent: to take reasonable care for the safety of its employees, and in the circumstances of this case, the deceased, to whom the duty of care was also owed, despite him being an independent contractor rather than an employee in the strict sense.
17. That it was the duty of the respondent to devise a system of work that was reasonably safe having regard to the risks involved in the operation in which the deceased was engaged (which was, the evidence revealed, to prepare the barge for its towage to Port Moresby where it was to be put on the slipway for regular maintenance) is made clear from another passage from Andrew J’s judgment in Edwards v Jordan Lighting:
The duty of the employer to provide a safe system of work is a compendious way of saying that an employer may be held liable for breach of duty to an injured employee in respect of the system of work. There is no absolute obligation on employers to provide a system of employees which will be free of risk. The only duty is to take reasonable steps to provide a system which is reasonably safe having regard to the dangers necessarily inherent in the operation.
18. There was strong evidence that the respondent failed to devise a system of work that was reasonably safe in all of the circumstances of this case. There were:
19. There was evidence that the respondent was aware that it was likely that in preparing the barge for its journey to Port Moresby the deceased would have to enter some of the 14 tanks on the barge. It followed that there had to be some system in place to manage the potentially life-threatening risks associated with entry into such confined, unventilated spaces. The trial judge erred in fact in placing weight on the respondent’s vague and general evidence that such a system was in place.
20. We consider that it was not a reasonable conclusion to draw from the evidence that the respondent provided a safe system of work. The finding that the respondent was not negligent was made in error. We uphold the second category of grounds of appeal.
GROUND 3: FINDING THAT THE RESPONDENT DID NOT BREACH ITS STATUTORY DUTY TO PROVIDE A SAFE SYSTEM OF WORK
21. Before addressing the merits of this part of the appeal, we comment on a statement made by the trial judge at paragraph 176 of his judgment, which has drawn criticism from the appellants. His Honour remarked, after dismissing the claim for breach of statutory duty:
176 I also concur with Ms Kiene’s [counsel for the respondent] submission relying on the dictum in Pomat v Consort Express Lines (2020) N8300 which I endorse, that this is a case where the plaintiffs ought to have made an election as to whether or not to make a claim in negligence for breach of statutory duty in addition to the claim in negligence as this could lead to unjust enrichment if both were successful.
22. We agree with the appellants that that was not a correct statement of law. It was not necessary for them to elect to plead either negligence or breach of statutory duty. It is conventional and acceptable in a wrongful death or work injury claim to plead both causes of action (see for example Howard v Bougainville Copper Ltd [1976] PNGLR 298, Lubbering v Bougainville Copper Ltd [1977] PNGLR 183, Edwards v Jordan Lighting [1978] PNGLR 273, Roth v Ok Tedi Mining Ltd (1998) N1788). In the case cited by the trial judge, Pomat v Consort Express Lines Ltd (2020) N8300, the two causes of action were pleaded and both were proven but there was only one award of damages, so the risk of unjust enrichment is easily avoided.
23. The trial judge made the statement in passing, after he had determined and dismissed the breach of statutory duty claim on its merits. Though it was an incorrect statement, it had no bearing on the outcome of the case and it is unnecessary for us to say anything more about it.
24. More significant is how his Honour determined the merits of the breach of statutory duty claim. We find that, just as with the tort of negligence, his Honour succinctly and correctly set out the elements of the tort of breach of statutory duty. His Honour relied on the Supreme Court judgments of Injia CJ and Cannings J in Mathias Goma & 703 Others v Protect Security & Communication Ltd (2013) SC1300 in explaining that the elements of the tort (the matters to be proven by a plaintiff to establish liability against a defendant) are:
(a) a statute imposed an obligation on the defendant;
(b) the obligation was breached by the defendant;
(c) the purpose of the statute was to protect a particular class of persons;
(d) the plaintiff was a member of that class of persons;
(e) the plaintiff suffered damage as a result of the breach; and
(f) the Parliament intended to create a private right of action for breach of the statutory obligation.
25. His Honour found that the first element was satisfied:
174 As to the first element, I am satisfied that there are statutory duties imposed on an employer, Nivani, as an owner of maritime vessels used in trading activities, and as an employer of maritime workers and professionals, has clear duties and responsibilities set out in statues considered here.
26. His Honour accepted the appellants’ submission that the following provisions of the Industrial Safety, Health and Welfare Act imposed specific duties on the respondent regarding the safety of its work places and that the duties were owed (just as under the tort of negligence) to not only its employees but also to other persons including independent contractors such as the deceased, working on its vessels:
s 32 (means of access);
s 35 (dangerous work);
s 38 (ventilation, etc, in certain kinds of work);
s 39 (protection from dust, fluff, fumes, etc);
s 40 (work in confined spaces).
27. However, his Honour found that the second element was not satisfied. He fell back on his ruling in the negligence claim that it was not proven that the respondent was negligent and summarily dismissed the breach of statutory duty claim:
175 As to the second element, I adopt my reasons given in my observations concerning the issue of negligence and find that the obligations or duties were not breached by Nivani. Given this, it is not necessary to address the other elements.
28. That was, with respect, the wrong approach to take. The second element required a careful and systematic examination of the nature and extent of the duties imposed by the provisions pleaded by the appellants and an assessment of whether the appellants had proven a breach of the duties. That sort of examination and assessment was not made in the course of determining the negligence claim, and it needed to be undertaken when determining the breach of statutory duty, but it was not.
29. A key provision of the Industrial Safety, Health and Welfare Act is s 40 (work in confined spaces). It applied in this case, given that the deceased died after entering the confined space of the starboard No 2 tank on the barge. Section 40 states:
(1) Where work is to be done inside a chamber, tank, vat, pit, pipe, sewer, underground culvert, flue or similar confined space in which dangerous fumes, gas, dust or vapour are or is likely to be present, to enter or to be generated in the course of the work to such an extent as to involve a risk of a person being overcome—
(a) the space shall, unless there is other adequate means of egress, be provided with a manhole that—
(i) is rectangular, oval or circular in shape; and
(ii) is not less than 450 mm long and 400 mm wide, or in the case of tank wagons and other mobile plant not less than 400 mm long and 350 mm wide; and
(b) the employer shall cause the following requirements to be complied with:
(i) all practicable steps shall be taken—
(A) to remove any fumes, gas, dust or vapour that are present; and
(B) to prevent ingress of fumes, gas, dust or vapour, and, unless it has been ascertained by a suitable test that the space is free from dangerous fumes, any person entering or working in the space shall wear a belt to which there is securely attached a rope the free end of which is held by a person outside; and
(ii) in case of emergency or where it is impracticable to comply with the requirements of Subparagraph (i), any person entering or working in the confined space shall wear a breathing apparatus of a type approved by the Departmental Head; and
(iii) effective provision shall be made—
(A) to collect as near as practicable to the point of origin, and remove to the outer air, any fumes, gas, dust or vapour generated during the course of the work; and
(B) to ventilate the confined space; and
(iv) breathing apparatus and reviving apparatus of a type approved by the Departmental Head and suitable belts and ropes shall be provided and maintained in a good order and condition and so as to be readily accessible; and
(v) a sufficient number of persons employed in and about the confined space shall be persons trained and practised, to the satisfaction of an Industrial Safety Officer, in the use of apparatus referred to in Subparagraph (iv) and in the method of restoring respiration.
(2) A person shall not be permitted to work in a boiler furnace or boiler-flue or a confined space referred to in Subsection (1) in which excessive heat is present until it has been sufficiently cooled by ventilation or otherwise to make work safe for the persons employed in it.
30. As work was to be done inside a tank in which dangerous fumes were likely to be present, to such an extent as to involve a risk of a person being overcome, specific statutory obligations were imposed on the respondent to ensure that:
31. There was strong evidence that all or most of those cumulative statutory obligations were breached by the respondent. However, the trial judge did not properly assess evidence of breach of any of those obligations. He incorrectly relied on his finding during determination of the negligence claim that the respondent was not negligent, to presume that there was no breach of statutory duty.
32. His Honour failed to observe the distinction between the two separate causes of action of negligence and breach of statutory duty and erred in law by summarily dismissing the breach of statutory duty claim. We uphold the third category of grounds of appeal.
EFFECT OF UPHOLDING GROUNDS 2 AND 3
33. As we have upheld two categories of grounds of appeal, we now address the consequences in terms of s 16 (decision etc on appeal) of the Supreme Court Act, which sets out a number of available options or remedies. Section 16 states:
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may—
(a) adjourn the hearing from time to time; or
(b) affirm, reverse or modify the judgment; or
(c) give such judgment as ought to have been given in the first instance; or
(d) remit the case in whole or in part for further hearing; or
(e) order a new trial.
34. We will allow the appeal and quash the decision of the National Court. These remedies are not expressly provided for by s 16 but they are proper and acceptable orders to make under s 16(b) when appellants persuade the Supreme Court that the National Court has materially erred in law and/or fact (Motor Vehicles Insurance Ltd v Nominees Niugini Ltd [2015] 1 PNGLR 510).
35. We could order a new trial under s 16(e), however we consider that that is unnecessary. There is sufficient material before us, given that this appeal has been perforce of s 6 of the Supreme Court Act a rehearing on the evidence given in the National Court and we have all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court, to invoke the power in s 16(c) to “give such judgment as ought to have been given in the first instance”.
36. As to negligence: the respondent owed a duty of care to the deceased, it breached that duty and the breach of duty caused the death of the deceased, being a type of injury that was reasonably foreseeable. Therefore, liability in negligence is established.
37. As to breach of statutory duty: various legislation imposed duties on the respondent to provide a safe system of work, those duties were breached, in particular, the Industrial Safety, Health and Welfare Act, the purpose of which was to protect a particular class of persons, the deceased was a member of that class, the deceased died as a result of the breach of duty and it was reasonably to be inferred that the Parliament intended to create a private right of action for breach of that duty. Therefore liability in breach of statutory duty is established.
38. The respondent bears liability in damages for negligence and breach of statutory duty notwithstanding the wrongful death of the deceased, which liability inures for the benefit of the appellants (as wife and children of the deceased) pursuant to ss 25 and 26 of the Wrongs (Miscellaneous Provisions) Act.
39. As to assessment of damages and interest, we do not have sufficient material on which to properly determine that issue. We invoke s 16(d) to remit that part of the case to the National Court. Costs will follow the event.
ORDER
(1) The appeal is allowed.
(2) The order of the National Court in WS 1173 of 2017 of 2 August 2021 is quashed.
(3) The proceedings WS 1173 of 2017 are reinstated and judgment on liability is entered against the respondent for the appellants in negligence and breach of statutory duty as pleaded in the statement of claim and the case is remitted to the National Court for assessment of damages and interest.
(4) The respondent shall pay the appellants’ costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
_______________________________________________________________
O’Briens Lawyers: Lawyers for the Appellants
Cornerstone Legal Services: Lawyers for the Respondent
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