Emmanuel Haiyot v Natasha David

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 06 July 2018
• Citation: (2018) N7367
• Court: National Court
• Year: 2018
• Judgement Number: N7367

Full : WS No 795 of 2013; Emmanuel Haiyot v Natasha David and Frasier Pitpit as the Public Solicitor of PNG, and the Independent State of Papua New Guinea (2018) N7367

National Court: Polume-Kiele J

Judgment Delivered: 6 July 2018

N7367

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 795 OF 2013

BETWEEN:

EMMANUEL HAIYOT

Plaintiff

AND:

NATASHA DAVID

First Defendant

AND:

FRASIER PITPIT AS THE PUBLIC SOLICITOR OF PNG

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Polume-Kiele J

2017: 21 June, 28 July

2018: 6 July

PRACTICE AND PROCEDURE- Claim for professional negligence – lawyer and client relationship - breach of duty of care – Professional Conduct Rules

Cases cited

Martha Limitopa v. The State [1988-89] PNGLR 364)

PNG v Kofowei [1987] PNGLR 5

Smith Alvi v Andake Tepoka (2006) SC1151

Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042)

Frank A Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 352

Maku v Maliwolo (2012) SC1171

MVIT v Viel Kampu (1998) SC587

Eaton Pakui v The State (2006) N3001

Otto Benal Magiten vs Bilding Tabai & Lawrence Acanufa trading as Acanufa and Associate Lawyers (2010) N3916

Overseas Cases:

Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Counsel:

Mr C Nidue, for the plaintiff

Ms C Kuson, for the defendants

RULING ON LIABILITY

6 July, 2018

1. POLUME-KIELE J: Trial on liability was conducted on the 21st of June 2017 with submission being heard on the 28th of July 2017. This is my ruling on the issue of liability on a claim for professional negligence against the defendants.

Background

2. The plaintiff, was formerly employed as a casual worker by Dekenai Construction Ltd was injured on 06th April, 2008 where he sustained injuries to his right arm when operating a conveyor belt. He claims that whilst operating the conveyor belt, his right arm got caught in the rotating wheel of the conveyor belt. This resulted in his right arm being severely damaged which arm was subsequently amputated. The plaintiff says that he has now lost the full use of his right arm.

3. A claim for workers compensation was then lodged with the Workers Compensation Office by his former employer. However, the matter was not progressed as quickly as the plaintiff anticipated. So he sought assistance from the Office of the Public Solicitor to pursue this claim on his behalf.

4. However, the plaintiff now claims that the Public Solicitor (second defendant) and its lawyer (first defendant) failed in their duty to assist him and thus these proceedings claiming damages for professional negligence. The matter is in court because according to the plaintiff, two things were not done properly by the defendants:

(i) Firstly, although he says that he applied for “legal aid” on the 15th of November 2010 with the Office of the Public Solicitor in Wewak. In his bundle of documents lodged with the first and second defendants and the court file, the application for legal aid was to pursue a Workers Compensation claim with the Office of the Workers Compensation; a claim which his former employer has submitted for determination on his behalf but the claim had been delayed for some reasons?

(ii) Secondly, the first and second defendants failed in their duty to give him advice that under s 84 (2) of the Workers Compensation Act, he was at liberty to file a civil common law negligence against his former employer. So, by having failed to give proper legal advice, his right to pursue a civil common law negligence claim is now time barred. He now claims that the first and second defendants breached their duty of care under the Professional Conduct Rules and therefore are they are negligent in their duty for which he seeks damages against the first and second defendants and alternatively against the third defendants on the principle of vicarious liability.

Issues for determination

5. Here the plaintiff says that defendants owed him a duty of care and on that basis they had a duty to fairly represent his interest (see Martha Limitopa v. The State [1988-89] PNGLR 364). Seen from that angle, this court is of the view that to answer this issue, three factors are relevant for determination:

(i) Firstly, whether specific instructions were in fact given by the plaintiff to the Public Solicitor (second defendant) to pursue a civil common claim against his former employer (Dekenai Construction Ltd) for negligence; and

(ii) Secondly, depending on how the court determines issue (i) above, the next issue to consider is whether the first defendant owed a duty of care under the Professional Conduct Rules to the plaintiff?

(iii) Finally, given all of the above considerations, whether the plaintiff has proven on the balance of probabilities his damages for this court to make an award?

Plaintiff’s evidence

6. The plaintiff relied on a number of affidavits which had been tendered into evidence by consent of the parties. These were the affidavits of Dr Kawa sworn on the 6th of January 2014 and filed on the same day; affidavit of Mathew Kakota sworn on the 14th of June 2014 and filed on the 25th of July 2014; affidavit of John Urom also sworn on the 14th of June 2014 and filed on the 25th of July 2014; affidavit of Otto Davir sworn on the 23rd of March 2015 and filed on the 16th of June 2015, affidavit of Peter Hubert sworn on the 23rd of March 2015 and filed on the 16th of June 2015 and his own his affidavit sworn on the 27th of May 2015 and filed on the 16th of June 2015.

7. In his affidavit, the plaintiff deposed to the fact that his right arm was severed by the conveyor to the power screen of the crusher machine and its rotating wheel on which the conveyor belt moved. He also states that his former employer, “Dekenai” had submitted the bundle of documents marked and referred to as annexure “L” in his affidavit to the Office of Workers Compensation Claim Form, particularly Form 11 with a supporting letter dated 08th April, 2008 containing statement of Johnson Kari the supervisor, statement of Peter Hubert and the Plaintiff’s own statement for determination by Office of Workers’ Compensation. He also states that the Workers’ Compensation claim was eventually assessed and an offer of K22, 500.00 was arrived at but this was subsequently raised to K25, 000.00. This offer was however not accepted by the Plaintiff. The plaintiff says that this offer is in itself an admission of liability by the employer “Dekenai” was in fact negligent.

Defendant’s evidence

8. The first and second defendants on the other hand did not file any affidavits in relation to the claim. However, the State (third defendant) had filed a defence in which they raise issues with regard to the propriety of the proceedings. In their submissions, they say that the allegations here are raised against a private party not named in the proceedings. This private party is a company established under statute and therefore capable of being sued and suing under its own name and style. Further, the defendants deny that they were negligent in the discharge of their duties and say that the plaintiff has no cause of action against them. The application for legal aid was to pursue a workers compensation claim, which they say had been pursued and an initial offer of a sum of K22,500.00 made which was subsequently raised to a sum of K25,000.00. They say further that they cannot act beyond their instructions. Their retainer (if any) is confined to their specific instructions and that is to pursue a workers compensation claim. As such doing anything beyond their instructions would be illegal.

The law

9. The relevant law applicable to the duty of a lawyer is that of the Professional Conduct Rules. Section 3 of the Professional Conduct Rules states:

“S 3- It is the duty of a lawyer … to be competent in all his professional activities”.

10. Further, Section 8 of the Professional Conduct Rules assist to explains the duty of a lawyer to his or her client. It states:

(1) A lawyer shall treat a client fairly and in good faith, giving due regard to—

(a) the dependence by the client upon him and his special training and experience; and

(b) the high degree of trust which the client is entitled to place in him.

(2) A lawyer shall always be frank and open with his client and with all others so far as his client's interest may permit and shall at all times give his client a candid opinion on any professional matter in which he represents that client.

(3) A lawyer shall take such legal action consistent with his retainer as is necessary and reasonably available to protect and advance his client's interests.

(4) A lawyer shall at all times use his best endeavours to complete any work on behalf of his client as soon as is reasonably possible.

(5) If a lawyer receives instructions from a client and it is or becomes apparent to him that he cannot do the work within a reasonable time, he shall so inform his client.

(6) A lawyer shall not—

(a) take unnecessary steps...