Jimmy Futolsi v Anna Turi

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 March 2018
• Citation: (2018) N7147
• Court: National Court
• Year: 2018
• Judgement Number: N7147

Full : WS No 1396 of 2014; Jimmy Futolsi v Anna Turi and Emmanuel Thomas and Frazer Pitpit, Public Solicitor and the Independent State of Papua New Guinea (2018) N7147

National Court: Cannings J

Judgment Delivered: 9 March 2018

N7147

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1396 OF 2014

JIMMY FUTOLSI

Plaintiff

V

ANNA TURI

First Defendant

EMMANUEL THOMAS

Second Defendant

FRAZER PITPIT, PUBLIC SOLICITOR

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Madang: Cannings J

2016: 10 October, 30 November,

2018: 9 March

NEGLIGENCE – lawyer/client relationship – lawyer’s duty to act in accordance with instructions – lawyer’s duty to be aware of statutory limitation periods – whether the State is vicariously liable for negligence of its employed lawyers.

PRACTICE AND PROCEDURE – vicarious liability of the State – Wrongs (Miscellaneous Provisions) Act – whether a claim of vicarious liability should be dismissed because of defective pleading.

PRACTICE AND PROCEDURE – mediation – power of Court at any stage of a proceeding, on its own motion, to order mediation for resolution of any part of proceedings – National Court Act, Section 7B, ADR Rules, Rule 5.

The plaintiff was a client of the Public Solicitor. He claimed that lawyers employed within the Office of Public Solicitor negligently failed to advise him of his legal rights when he (an infant at the time he became a client) and his father approached the Public Solicitor for legal aid, advice and assistance regarding an incident in a school classroom that led to him suffering permanent blindness in one eye. He claimed that two lawyers in the Office of Public Solicitor negligently failed to provide him with proper advice, including failing to advise him of the need to give notice to the State within the period prescribed by the Claims By and Against the State Act 1996 and the need to commence court proceedings within the six-year limitation period set by the Frauds and Limitations Act 1988; and failed to take any pro-active steps to protect his right of action. The plaintiff sued the first and second defendants, as individuals, and the person holding office as Public Solicitor at the time of filing the writ (third defendant) and the State (fourth defendant), which was claimed to be vicariously liable for the negligence of its employees, the first, second and third defendants. The defendants denied liability. A trial was conducted on the issue of liability.

Held:

(1) In a case of multiple defendants, in which one defendant is alleged to be vicariously liable for the conduct of others, the task of the Court is to first determine whether liability is established against the primary defendants and if liability is established, to then determine the question of vicarious liability.

(2) Here, the first, second and third defendants were primary defendants, so the first question was whether the plaintiff had established a cause of action in negligence against any of them.

(3) To establish a cause of action in negligence a plaintiff must prove the elements of the tort: (a) the defendant owed a duty of care to the plaintiff (b) the defendant breached that duty (acted negligently), (c) the breach of duty caused damage to the plaintiff, and (d) the type of damage was not too remote.

(4) As to the first, second and third defendants, elements (a), (c) and (d) were non-contentious, so the question was whether in each case the defendant had by act or omission been negligent.

(5) The plaintiff proved that the first defendant was negligent due to the failure to advise the plaintiff as to statutory time limitations.

(6) The plaintiff failed to prove that the second defendant was negligent as by the time that the second defendant was engaged the limitation period had lapsed.

(7) The plaintiff proved that the third defendant was negligent due to the evident failure to educate lawyers as to the need to adhere to statutory time limitations and to ensure that due diligence procedures were in place to prevent time limitations lapsing.

(8) The plaintiff failed to prove that the fourth defendant was vicariously liable due to inadequate pleading of the elements of vicarious liability.

(9) Liability in negligence was established against the first and third defendants and the proceedings against them shall continue. Liability was not established against the second defendant and the proceedings against him were dismissed. Liability was not established against the fourth defendant but the proceedings against it were not dismissed as it would be contrary to the interests of justice to do so and the defects in the statement of claim are capable of being remedied even at this advanced stage of the proceedings. All remaining parts of the proceedings including the liability of the fourth defendant and assessment of damages and costs were on the Court’s own motion referred to mediation.

Case cited

The following cases are cited in the judgment.

Magiten v Tabai (2008) N3470

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

Melinda Baduk v The State [1993] PNGLR 250

Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486

Takai Kapi v Maladinas Lawyers (2003) N2323

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel

G Pipike, for the Plaintiff

E Wurr, for the First, Second and Third Defendants

B B Wak, for the Fourth Defendant

9th March, 2018

1. CANNINGS J: The plaintiff, Jimmy Futolsi, was a client of the Public Solicitor. He claims that lawyers employed within the Office of Public Solicitor negligently failed to advise him of his legal rights when he (an infant at the time he became a client) and his father approached the Public Solicitor for legal aid, advice and assistance regarding an incident in a school classroom that led to him suffering permanent blindness in one eye.

2. He claims that two lawyers in the Office of Public Solicitor negligently failed to provide him with proper advice, including failing to advise him of the need to give notice to the State within the period prescribed by the Claims By and Against the State Act 1996 and the need to commence court proceedings within the six-year limitation period set by the Frauds and Limitations Act 1988; and failed to take any pro-active steps to protect his right of action.

3. The plaintiff sues Anna Turi (the first defendant) and Emmanuel Thomas (the second defendant), as individuals. He also sues Frazer Pitpit (now Justice Pitpit) who was the Public Solicitor at the time of filing the writ as the third defendant. He also sues the State (fourth defendant), which is claimed to be vicariously liable for the negligence of its employees, the first, second and third defendants. The defendants denied liability. A trial was conducted on the issue of liability.

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

· On 13 February 2004 the plaintiff was 12 years old. He was a student at Nitlon Primary School. There was an incident in the classroom. A fellow student poked him in the right eye with a pencil.

· The plaintiff was initially treated at Gaubin hospital on Karkar Island. The injury was too serious to be properly treated. His parents subsequently took him to Madang, Lae, Goroka and back to Madang seeking treatment.

· On 16 November 2005 Dr Demok, Ophthalmologist at Modilon General Hospital, diagnosed 100% visual loss in the right eye.

· In early 2006 the plaintiff’s father, Futolsi Warub, sought compensation from the Board of Nitlon Primary School. An informal agreement was made for the Board to pay K10,000.00 compensation. The sum of K5,000.00 was paid.

· In mid-2006 the plaintiff went with his parents to the Office of the Public Solicitor in Madang. The first defendant, Ms Turi, was then the Solicitor-in-Charge of the Madang office. She spoke to the plaintiff’s father and a decision was made to provide legal aid, advice and assistance to the plaintiff and his father. The plaintiff became then a client of the Public Solicitor.

· On 1 November 2006 Ms Turi wrote an official letter under the Public Solicitor’s letterhead to the Board Chairman of Nitlon Primary School, reminding the Chairman of the undertaking to pay a further K5,000.00 compensation to the plaintiff.

· From 2006 to 2011 the plaintiff continued with his schooling on Karkar Island albeit with some difficulty due to the disability from which he continued to suffer. In that period the plaintiff and his father remained clients of the Public Solicitor and his father went to the office regularly to check on the plaintiff’s matter. But no further action was taken by the first defendant or any other officer in the Office of Public Solicitor to progress the claim.

· In 2012 the plaintiff attended Tusbab Secondary School in Madang town.

· In mid-2013 the plaintiff’s father again approached the Office of Public Solicitor in Madang. He filled out a new application form for legal aid. He saw a new lawyer, Emmanuel Thomas (the second defendant), who took on the matter. Mr Thomas wrote a follow-up letter to the Board Chairman of Nitlon...