Tau Gumu v Papua New Guinea Banking Corporation Limited (2002) N2251

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 26 April 2002
• Court: National Court
• Citation: (2002) N2251
• Year: 2002
• Judgement Number: N2251

Full Title: Tau Gumu v Papua New Guinea Banking Corporation Limited (2002) N2251

National Court: Gavara-Nanu J

Judgment Delivered: 26 April 2002

N2251

PAPUA NEW GUINEA

[In the National Court of Justice]

BETWEEN:

TAU GUMU

- Plaintiff -

AND:

PAPUA NEW GUINEA BANKING

CORPORATION LIMITED

- Defendant -

WAIGANI: GAVARA – NANU, J

2002: 19th & 26th April

PRACTICE & PROCEDURE – Application by way of notice of motion to strike out defence -Material evidence in an affidavit sworn by a defence witness effectively rendering the defence frivolous and vexatious – To allow such defence to proceed to trial would amount to abuse of process by the defendant.

PRACTICE & PROCEDURE – The Court has inherent power to strike out a defence which is frivolous and vexatious.

PRACTICE & PROCEDURE – Requirements under Order 12 r 37(1)(c) of the National Court Rules – Employee claiming damages against the employer for the employer’s failure to notify the Registrar of the Workers’ Compensation Tribunal of the plaintiff’s injury as required by s.42(1) of the Workers’ Compensation Act,1978 - Such claim being based on the employer’s failure to comply with a statutory duty is not prohibited by Order 12 r 37(1)(c).

PRACTICE & PROCEDURE – Criteria under Order 12 r 38(1) of the National Court Rules - Plaintiff deposing in his affidavit that in his belief, the defendant has ‘no valid defence’ - Second criteria in Order 12 r 38(1)(b), satisfied.

WORKER’S COMPENSATION ACT, 1978 – Duty of the employer to give notice of the employee’s injury under s. 42 (1) of the Act – Employee is deemed to have given notice to his employer of his injury as required under s. 41 (1) and (5) of the Act, where the employer is fully made aware of such injury by the employee and where the employer already has records of the personal particulars of the employee.

Cases cited :

PNG Forest Products –v- The State [1992] PNGLR 85

Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112

Hornibrook Constructions Pty Ltd -v- Kawas Express Corporation Pty Ltd [1986]

PNGLR 310

Akipa & Others –v- Lows & Others [1990] PNGLR 502

Eton Pakui –v- The State [1995] PNGLR 321

Other cases cited :

Waters -v- Sunday Pictorial Newspaper Ltd [1961] 1 WLR 967

Davey -v- Bentinck [1893] 1 QB

Wenlock -v- Moloney [1965] 1 WLR 1238

Counsel :

Baniyamai for the plaintiff

Solomon for the defendant

DECISION

GAVARA-NANU J : The plaintiff by notice of motion applies for the defendant’s defence to be struck out and summary judgement be entered for him for assessment of damages.

The plaintiff’s ground for the application is that, the defendant’s main defence which was based on time bar, was dismissed by Kandakasi J. on 7th December, 2001; and the remaining part of the defence is a general denial which is prohibited by Order 8 r 28 of the National Court Rules, therefore it should also be struck out.

The plaintiff issued these proceedings on 23rd October, 2000. The claim for damages arose out of the defendant’s failure to comply with its statutory duty under s. 42 (1) of the Workers’ Compensation Act, 1978, to notify the Registrar of the Workers’ Compensation Tribunal of the plaintiff’s injury in time so that the plaintiff could claim compensation for the injury , which he allegedly suffered while working for the defendant in 1979.

Factual Background

The brief factual background to the plaintiff’s claim is this - The plaintiff started working with the defendant in 1975. In 1978, he started experiencing pains in his right knee. He was getting medical treatments for the pain. In 1979, while trying to remove coin boxes from one section of the bank to the vault, during work, the plaintiff fell and landed on the right knee. The fall was witnessed by other staff. The fall aggravated the condition in his knee and on the next day, he told his superiors and took time off from work to seek medical treatment.

From 1979 to 1992, the plaintiff regularly sought medical attention . He also took time off from work on regular basis with the approval of the defendant due to the worsening condition in his right knee. The condition in the knee got worse in the 90’s and on 12th October, 1993, his right leg was amputated from above the knee. In 1994, he was sent to Brisbane by the defendant for an artificial leg to be fitted on his right leg. The defendant met the expenses for the trip including accommodation in Brisbane and the cost of the artificial limb.

The plaintiff, thinking that the defendant having known all about his illness and the amputation of his leg, had notified the Registrar of the Workers’ Compensation Tribunal as required by s. 42(1) of the Workers’ Compensation Act, 1978, did not lodge his claim for compensation. He only became aware of the defendant’s failure to notify the Registrar of the Workers’ Compensation Tribunal of his injury in 1998.

The law

Section 42 (1) of the Workers’ Compensation Act, 1978, is in these terms :-

42. Employer to give notice of injury, etc., to Registrar.

(1) Where an injury to a worker results:-

(a) in the death of the worker within one day after the occurrence of

the injury; or

(b) in the total or partial incapacity of the worker for a period

exceeding one day, whether or not the injury gives rise to any

claim for compensation, the employer must—

(c) not later than seven days after the occurrence of the injury; or

d (d) where the employer had no immediate knowledge of the injury, not

e later than seven days after the occurrence of the injury first came

f to his notice, forward to the Registrar a notice in the prescribed

g form. (my underlining).

h

The material aspects of the circumstances giving rise to the plaintiff’s claim have been pleaded in the Statement of Claim.

Paragraph 2 of the defendant’s defence denies paragraphs 4 to 17 of the Statement of Claim. The plaintiff says this is a general denial which is prohibited by Order 8 r 28 of the National Court Rules, thus should be struck out.

The defendant admits paragraphs 1 to 3 of the Statement of Claim. These paragraphs relate to the capacities of the plaintiff and the defendant to sue and be sued and that the plaintiff was an employee of the defendant at all material times.

The plaintiff’s Statement of Claim is in 17 paragraphs.

Paragraphs 4 to 17 of the Statement of Claim give account of how the plaintiff sustained his injury, how the defendant was made aware of the injury and how the defendant assisted the plaintiff to seek medical assistance, the failure by the defendant to inform the Workers’ Compensation Tribunal Registrar about the plaintiff’s injury and how the Workers’ Compensation Tribunal Registrar rejected the plaintiff’s claim for compensation due to the late lodgment of his claim and the damages the plaintiff suffered as the consequence. These claims were denied by the defendant in paragraph 2 of its defence.

Paragraph 2 of the defence is in these terms :-

“ 2. The Defendant does not know and cannot admit to the allegations

contained in paragraphs 4 to 17 of the Statement of Claim.” (my

underlining).

Paragraphs 3 to 7 of the defence raised time bars under s. 41 (2) and (5) of the Workers Compensation Act, 1978, and s. 16 of Frauds and Limitations Act, 1988.

Section 41 of the Workers’ Compensation Act , 1978, is in Division 4 , under the heading – ‘ Notice of Injuries and Claims’ .

Section 41 (2) and (5) are in these terms :-

41. Time for taking proceedings.

(1)

(2) Subject to Section 68, proceedings for the recovery under this Act of compensation are not maintainable unless :-

(a) notice of the injury has been given as soon as practicable after the injury occurs and before the worker has voluntarily left the employment in which he was injured; and

(a) the claim for compensation with respect to the injury has been made within 12 months after the occurrence of the injury, or in the case of death within 12 months after the date of death.

(3)

(4)

(5) The notice referred to in Subsection (2):-

(a) may be given in writing or orally to the employer or any one of the

employers or to any foreman or other official under whose

supervision the worker is employed or to any person designated by

the employer for the purpose; and

b (b) shall specify the name and address of the person injured; and

c

(c) shall state in ordinary language the cause of the injury and the date

on which the injury occurred.

(6)

(7)

Section 16 (1) of the Frauds and Limitations Act,1988, is relevant and is in these terms :-

16. Limitation of actions in contract, tort, etc.

(1) Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognizance; or

b (c) to enforce an award, where the submission is not by an

instrument under seal; or

b (d) to recover any sum recoverable by virtue of any enactment, other

c than a penalty or forfeiture or sum by way of penalty or forfeiture,

d shall not be brought...