Dominic Molem v Christine Jane Taylor and International SOS (Niugini) Limited and Lihir Gold Limited (2020) N8172

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 31 January 2020
• Citation: (2020) N8172
• Judgment Number: N8172
• Year: 2020
• Docket Number: WS No 757 of 2017

Full Title: WS No 757 of 2017; Dominic Molem v Christine Jane Taylor and International SOS (Niugini) Limited and Lihir Gold Limited (2020) N8172

National Court: Cannings J

Judgment Delivered: 31 January 2020

N8172

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 757 OF 2017

DOMINIC MOLEM

Plaintiff

V

CHRISTINE JANE TAYLOR

First Defendant

INTERNATIONAL SOS (NIUGINI) LIMITED

Second Defendant

LIHIR GOLD LIMITED

Third Defendant

Madang: Cannings J

2019: 14th August, 15th October

2020: 31st January

NEGLIGENCE – whether doctor engaged by employer to make medical assessment of employees negligently diagnosed an employee as epileptic – whether negligent diagnosis led to loss of employment – vicarious liability –whether doctor’s employer liable.

CONTRACT – whether employer breached terms of contract with employee by failing to renew two-year contract on completion – whether employer obliged to conduct performance review.

LAW OF EMPLOYMENT –Employment Act, s 49 (maximum daily hours and rest periods) – whether employer breached s 49 by requiring employee to work 12-hour night shifts for excessive number of consecutive days – whether employer required employee to work without adequate statutory rest – whether an employer can be liable in damages for breach of s 49.

The plaintiff was employed by the third defendant as an electrician at a mine site. He had two episodes of unexplained altered levels of consciousness in the course of employment that led to concern about his fitness for work. The third defendant asked the second defendant, a medical services company operating a clinic at the mine, to provide an assessment of the plaintiff’s fitness for work. The first defendant, an employee of the second defendant, was chief medical officer at the mine and arranged CT and MRI scans for the plaintiff, which yielded no clear outcomes. She proceeded, however, by a process of exclusion, to diagnose the plaintiff with epilepsy. Ten months later, the plaintiff’s two-year contract of employment expired and the third defendant did not renew it. The plaintiff subsequently commenced proceedings against the defendants, pleading three causes of action:(1) the first defendant falsely and negligently diagnosed him with epilepsy, leading to loss of employment and was, together with her employer the second defendant,liable in damages for the tort of negligence; (2) the third defendant was liable in damages for breach of contract; and (3) the third defendant was liable in damages for breach of its statutory duty under s 49 of the Employment Act by requiring the plaintiff to work 12-hour night shifts for an excessive number of consecutive days. The defendants denied liability. A trial was conducted on the issue of liability.

Held:

(1) The first defendant owed the plaintiff a duty of care arising from the doctor-patient relationship. However there was insufficient evidence that the diagnosis of epilepsy was negligently given as although the plaintiff presented evidence of a contrary opinion, he could not on the evidence of one doctor who was not a specialist in neurology, discharge the burden of proving that the first defendant’s diagnosis was false or negligent. The tort of negligence was not proven and the case against the first defendant, and therefore also the second defendant, failed.

(2) No breach of contract was proven as the clause relied on by the plaintiff on which to base the case of breach of contract did not oblige the third defendant to renew the contract.

(3) Section 49 of the Employment Act imposes restrictions on the number of hours an employee can be required to work each day and imposes minimum rest periods for employees engaged in shift work. There was no evidence of breach of this provision. The tort of breach of statutory duty was unproven.

(4) The proceedings were entirely dismissed.

Cases cited

The following cases are cited in the judgment:

Asivo v Bank of South Pacific Ltd (2016) N6518

Goma v Protect Security & Communication Ltd (2013) SC1300

Kerowa v Harriman & PNG Power Ltd (2017) N6940

Motoi v Nationwide Microbank Ltd (2016) N6177

Raikos Holdings Ltd v G & S Ltd (2014) N5613

Singadan v Telfer & SGS PNG Ltd (2018) N7072

Steven v Ram KC (2016) N6577

Tirima v Angau Memorial Hospital Board (2005) N2779

TRIAL

This was a trial on liability for negligence, breach of contract and breach of the Employment Act.

Counsel

G Pipike, for the Plaintiff

G Garo, for the Second Defendant

W Mai, for the Third Defendant

31st Jauary, 2020

1. CANNINGS J: This was a trial on liability for negligence, breach of contract and breach of the Employment Act. The plaintiff, Dominic Molem, was employed by the third defendant, Lihir Gold Ltd, a member of the Newcrest group of companies, as an electrician, specifically trained to work on high-voltage lines, at the Lihir gold mine, New Ireland Province. In December 2014-January 2015 he had two episodes of unexplained altered levels of consciousness in the course of employment that led to concern about his fitness for work. Lihir Gold asked the second defendant, International SOS (Niugini) Ltd, a medical services company operating a clinic at the mine, to provide an assessment of the plaintiff’s fitness for work.

2. The first defendant, Christine Jane Taylor, an employee of International SOS, was chief medical officer at the mine and arranged CT and MRI scans for the plaintiff, which yielded no clear outcomes. She proceeded, however, by a process of exclusion, to diagnose the plaintiff with epilepsy and advised that he was not fit to continue his present work for ten years, though he could be assigned other tasks where he does not pose a risk to himself or others during an attack, subject to being placed on a regular shift pattern with regular rest periods.

3. Ten months later, the plaintiff’s two-year contract of employment expired and Lihir Gold did not renew the contract. The plaintiff had worked for them for four years.

ISSUES

4. The plaintiff subsequently commenced proceedings against the defendants, pleading three causes of action:

(1) the first defendant falsely and negligently diagnosed him with epilepsy, leading to loss of employment and was, together with her employer the second defendant (which was vicariously liable), liable in damages for the tort of negligence;

(2) the third defendant was liable in damages for breach of contract as the contract stated that it was renewable subject to satisfactory performance and a continued requirement for his position, and both those conditions were satisfied, so there was an obligation to renew the contract, which was breached; and

(3) the third defendant was liable in damages for breach of its statutory duty under s 49 of the EmploymentAct by requiring the plaintiff to work 12-hour night shifts for an excessive number of consecutive days.

5. All defendants denied liability. A trial was conducted on the issue of liability.

1 IS DR TAYLOR LIABLE IN NEGLIGENCE FOR THE EPILEPSY DIAGNOSIS? IS INTERNATIONAL SOS VICARIOUSLY LIABLE?

6. Negligence is a tort, the elements of which are, in the context of a claim by a patient against a doctor: (a) the doctor owed a duty of care to the patient; (b) the doctor breached that duty (acted negligently); (c) the breach of duty caused damage to the patient; and (d) the type of damage was not too remote.

7. Dr Taylor owed the plaintiff a duty of care arising from the doctor-patient relationship. The critical issues are whether she negligently diagnosed the plaintiff as suffering from epilepsy and, if that is proven, whether the diagnosis resulted in the plaintiff losing his job.

Facts

8. For the purposes of determining whether the plaintiff has proven that Dr Taylor’s diagnosis was negligent, I make the following findings of fact.

9. The first incident leading to concern about the plaintiff’s fitness for work occurred in the early hours of 10 December 2014 when he was on duty, driving a motor vehicle. He either had a microsleep or lost consciousness and crashed the vehicle. He was examined at the Lihir Medical Centre and referred to Pacific International Hospital, Port Moresby where he underwent a CT (Computed Tomography) brain scan on 22 January 2015. Consultant radiologist, Dr Blanch, reported no abnormality.

10. The second incident leading to concern about his fitness for work occurred on 30 January 2015 when at a work meeting at Lihir the plaintiff became agitated and incoherent, had a dizzy spell and almost collapsed. He was referred again to Pacific International Hospital, this time for an MRI (magnetic resonance imaging) scan on the brain, conducted by Dr Blanch. This report also detected no neurological abnormality.

11. On the basis of that history plus numerous clinical examinations of the plaintiff since commencement of his employment with Lihir Gold in 2012 and her own examination of him, Dr Taylor prepared a fitness to work report for the plaintiff dated 16 April 2015, which relevantly stated:

Mr Molem is a 45 year old electrician who is trained to work on high-voltage lines.

He had two episodes of unexplained...