Glen Hamilton Edwards v Ronald Emanuel Jordan, trading as Jordan Lighting, and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273

• Jurisdiction: Papua New Guinea
• Judge: Andrew J
• Judgment Date: 26 July 1978
• Court: National Court
• Citation: [1978] PNGLR 273
• Year: 1978
• Judgement Number: N156

Full Title: Glen Hamilton Edwards v Ronald Emanuel Jordan, trading as Jordan Lighting, and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273

National Court: Andrew J

Judgment Delivered: 26 July 1978

1 Negligence—safe system of work—duty of employer—duty to provide suitable equipment—res ipsa loquitur—not required to be pleaded—s15A Workers' Compensation Act—whether plaintiff statute barred—common law action to commence within 12 months of receipt of workers' compensation

2 Damages—leg injuries—quantum—pain and suffering past and future apportionment of damages

STATUTES—Retrospective operation—Substantive rights affected—Workers' compensation legislation—Provision requiring common law proceedings to be instituted within 12 months of first payment of compensation—Repeal of provision—Interpretation—Worker must be aware that workers' compensation payments made before provision applicable—Workers' Compensation Act 1958, s15A(2)

S15A(2) of the Workers' Compensation Act 1958 provided that where a worker received compensation under the Act, in respect of an accident "he shall not bring an action against the employee for damages in respect of the accident, unless . . . (b) he commences that action within twelve months after he receives that compensation or that first payment".

MASTER AND SERVANT—Liability of master for injury to servant—Common law liability—Safe system of work—Duty of employer to devise institute and maintain safe system of work—Relevant issues for determination.

MASTER AND SERVANT—Liability of master for injury to servant—Breach of statutory duty—Ladder Regulations—Strict liability for injury caused by breach—Ladder Regulations, reg12 and reg15.

EVIDENCE—Admissibility—Hearsay—Res gestae—Admissible as part of res gestae subject to possibility of concoction or fabrication.

DAMAGES—Personal injuries—Particular awards of general damages—Multiple injuries—Comminuted fractures of both heels—Fractures of pelvis and wrist—Permanent disabilities of feet and wrist—Restricted with activities involving climbing or sport—Probable future orthodesis—Male electrician aged 26 (34 at trial and retrained as technical trade teacher)—Award of K20,000 general damages, including K1,500 for future medical expenses and K1,500 for future loss of income.

The plaintiff, a qualified electrician and a married man aged 26 (34 at trial), was employed by the first defendant to do general contracting work in the electrical field. In the course of his employment the plaintiff was required to fit lights to wharf premises at Kieta, which premises were in the course of construction by, inter alia, the second defendant and of whose employees the plaintiff by arrangement sought on occasions labouring assistance. On one such occasion whilst attempting to examine light fittings on the roof girders by use of a ladder placed on a box and held in place by an employee of the second defendant, the ladder slipped by reason of the employee of the second defendant letting go and the plaintiff fell to the floor, suffering injuries.

The date of the accident was the 23rd February, 1970, and the writ of summons commencing the action against the second defendant was issued on 1st June, 1971 and the first defendant was joined as a party on 3rd February, 1975, it thus being alleged that the action was commenced outside the period of twelve months prescribed by s15a(2)(b) of the Workers' Compensation Act 1958. During the period of incapacity and commencing on 7th March, 1970, the first defendant paid into the bank account of the plaintiff ex gratia payments of reduced salary which included as from 28th February, 1970, payments of $23.10 per week workers' compensation of which, as payments of workers' compensation, the trial judge found the plaintiff was unaware.

S15A(2) was repealed by the Workers' Compensation (Increased Benefits) Act 1973 effective from 29 November 1973.

The plaintiff suffered multiple injuries including comminuted fractures of both heels, fractures of the pelvis and right wrist, with residual disabilities of the feet and wrist and the probability of permanent surgical fusion of the joints of the subtalar area of both feet. The plaintiff continued to suffer pain and discomfort particularly with prolonged standing or prolonged writing and was permanently restricted in relation to activities involving climbing ladders or playing sport such as tennis and squash. By the date of trial the plaintiff had retrained as a technical trade teacher and apart from any limitations he might have if thrown on the employment market was not suffering any continuing economic loss.

Held:

On the question of jurisdiction:

(1) Upon the expiration of the limitation period of twelve months in s15A(2) of the Workers' Compensation Act 1958 a worker who had received workers' compensation was barred from bringing a common law action, and the subsequent repeal of s15a(2) did not operate so as to revive a liability which had terminated.

Ciesla v Bougainville Copper Ltd [1975] PNGLR 185 followed.

(2) However, s15A(2) of the Workers' Compensation Act 1958 is to be construed in such a way that the worker must be aware that he has received workers' compensation payments before the section can be invoked against him.

(3) Accordingly, the plaintiff being unaware that he received workers' compensation in respect of the accident was not barred by reason of s15A of the Workers' Compensation Act 1958 from bringing his action for damages against the first defendant.

On the question of liability of the first defendant:

(4) A system of work includes 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.

Speed v Thomas Swift and Co Ltd [1943] KB 557 followed.

(5) The employer has a duty to devise, institute and maintain a safe system of work, and this duty is personal to himself and cannot be delegated.

English v Wilsons & Clyde Coal Co Ltd [1936] SC883 followed.

(6) An action based on an unsafe system of work must establish four separate issues of fact viz:

(i) That the defendant's operations involved a risk of injury which was reasonably foreseeable.

(ii) That there was a reasonably practicable means of obviating such risk.

(iii) That the plaintiff's injuries were caused by the risk in question.

(iv) That the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff's safety.

(7) On the facts there was an unsafe system of work which was a cause of the injuries suffered by the plaintiff.

(8) Further, the inadequacy of the equipment provided amounted to a failure to observe the provisions of Cll. 12 and 15 of the Ladder Regulations.

(9) The duty to observe the provisions of the Ladder Regulations is a strict one and once a breach has been established liability for injury caused as a result attaches to the first defendant.

O'Connor v SP Bray Ltd (1937) 56 CLR 464 and Australian Iron and Steel Ltd v Ryan (1957) 97 CLR 89 referred to.

(10) On the facts, negligence was established against the first defendant.

On the question of liability of the second defendant:

(11) The work of the employee of the second defendant, in assisting to hold the ladder being of such a temporary nature meant that he was, and remained, an employee of the second defendant and could not be said to have become an employee of the first defendant whilst holding the ladder.

Fogarty v Dowerin Road Board (1935) 53 CLR 510 referred to.

(12) A hearsay statement made by a bystander may be admitted as part of the res gestae, subject to a consideration of the possibility of concoction or fabrication.

Ratten v R [1972] AC 378 followed.

(13) Accordingly evidence of conversations heard by the plaintiff shortly after the accident as he lay injured on the ground, indicating that the employee of the second defendant had let go of the ladder to retrieve a fallen pair of pliers, was admissible not only as to the fact of their having been said but as to the truth of the facts they purported to describe.

(14) On the facts negligence was established against the second defendant.

(15) Liability between the first defendant and the second defendant should be apportioned equally.

On the question of damages:

(16) Damages for pain and suffering, loss of enjoyment of life etc. should be assessed at K17,000, future medical expenses at K1,500 and future loss of income at K1,500.

Trial.

This was an action for damages for personal injuries suffered by the plaintiff in the course of his employment with the first defendant.

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Andrew J: Glen Hamilton Edwards, the plaintiff in this action, seeks to recover damages from Ronald Emmanuel Jordan, trading as Jordan Lighting, and from Dowsett Engineering (New Guinea) Pty Ltd for...