Pea Paul as next Friend to Paul Luyo in his capacity as the Employee of Sany Limited v Doni Li in his capacity as General Manager of Sany Limited and Others

• Jurisdiction: Papua New Guinea
• Judge: Dowa J
• Judgment Date: 09 April 2024
• Neutral Citation: N10719
• Citation: N10719, 2024-04-09
• Counsel: P Paul, Plaintiff in person,W Kume, for the Defendants
• Docket Number: WS NO. 897 OF 2018
• Hearing Date: 23 March 2022,07 April 2022,03 April 2024,09 April 2024
• Court: National Court

N10719

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 897 OF 2018

Between

Pea Paul as next Friend to Paul Luyo in his capacity as the Employee of Sany Limited

Plaintiff

v.

Doni Li in his capacity as General Manager of Sany Limited

First Defendant

and

Sany Limited

Second Defendant

Lae: Dowa J

2022: 23^rd March, 7^th April

2024: 3^rd & 9^th April

DAMAGES — negligence — breach of statutory duty to provide and maintain safe system of work at workplace — death of elderly man employed by defendants in beverage production factory-dependency claim by son of deceased on behalf of family members — need to plead details of dependants — whether dependency claim can be sustained — general damages for loss of support — plaintiff awarded total damages of K 30,200.00 — plus interest.

Cases Cited:

Mathias Goma v & 703 others v Protect Security & Communication Ltd (2013) SC1300

Samot v Yame (2020) N8256

Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694

Richard Denis Wallbank & other v The State (1994) PNGLR 78

Komba v Duwaba & Others (2006) N2979

Counsel:

P Paul, Plaintiff in person

W Kume, for the Defendants

Pea Paul: Plaintiff in Person

George Kaore Lawyers: Lawyers for the Defendants

JUDGMENT

9^th April 2024

1. Dowa J: This is a judgment on both issues of liability and damages.

Facts

2. The Plaintiff is the son of late Paul Luyo, deceased. an elderly man, who died on 29^th April 2018 at the Angau Memorial Hospital. The deceased aged about 49 years originally from Wabag in the Enga Province was a resident of Lae. He was, at the time of death, an employee of the second Defendant, Sany Limited, a company based in Lae. The defendant company was conducting business as the Lipo Fruit Juice manufacturer and other products. The deceased was employed as a general worker as production handman, cleaner and helper. He commenced employment from 18^th May 2015 until his death on 29^th April 2018. The deceased died from chronic lung and heart disease due to persistent exposure to contaminated air.

Plaintiff's Cause of Action

3. The Plaintiff alleges that the deceased's death was caused by the Defendants breach of duty of care to its employee in failing to provide a safe system of work at the workplace. It is pleaded that the deceased while working at the local production plant operated by the Defendants was exposed to dust chemical fumes and smoke. It is pleaded that the Defendants failed to provide a safe system of work, particularly that they:

a, failed to devise, institute, and maintain a safe system of work,

b. Failed to provide proper safety equipment and gear at work in the factory area.

c. Failed to provide adequate ventilation in the factory and the surrounding areas.

4. The Plaintiff pleads that because of the negligence, the deceased persistently inhaled dust, chemical fumes, toxic and unclean air which affected his lungs and heart over a long period of time leading to his eventual death. As a result of his death, the deceased family, the widow and five children have suffered loss, in that they lost the company of the deceased as husband and father and breadwinner for the family. The Plaintiff therefore institutes the current proceedings seeking damages under various heads of damages.

Defendants' Defence

5. The Defendants filed a Defence denying the claim. The Defendants plead in particular that: the deceased was employed for only six months, and at the time of his death, he was no longer an employee as he resigned prior to his death, that during his employment, he was engaged as a tape boy working outdoors where he had excess to fresh air, and that the factory was involved in producing liquid food, libo drinks and not chemical fumes or smoke was produced. The Defendants pleaded further that the deceased was an alcoholic and lived with or close to pig pens and may have contracted the disease elsewhere.

Issues

6. The issues for consideration are:

a) Whether the Defendants are liable for breach of duty of care in failing to provide and maintain a safe system of work at the workplace.

b) Whether the deceased died as a direct and foreseeable consequence of defendant's breach of duty of care.

c) If liability is established against the Defendants, is the Plaintiff entitled to any damages and if so, the amount of damages.

Trial

7. The trial was conducted by the tender of Affidavits by consent of parties except for the medical doctor's affidavit which was admitted after objection subject to weight being given on the contents. The parties then filed Written Submissions and made oral submissions as well.

Plaintiff's Evidence

8. The Plaintiff relies on the following Affidavits:

a) Affidavit of Pea Paul sworn and filed 24^th January 2019

b) Affidavit of Pea Paul sworn and filed 26^th February 2021

c) Affidavit of Pea Paul sworn and filed 22^nd November 2021

d) Affidavit of Dr. Lucas Komnapi sworn and filed 7^th February 2022

(Admitted into evidence, subject to weight)

9. This is the summary of the Plaintiff's evidence. Pea Paul is the biological son of late Paul Luyo, deceased. He instituted these proceedings for himself and on behalf of the family members of the late Paul Luyo. The deceased died on 29^th April 2018 at the Angau Memorial Hospital, Lae. Prior to his death, the deceased was employed by the second Defendant as a production hands-on man, cleaner and helper in the Libo Juice making factory based at the old Talair Compound, Kamkumung, Lae. The deceased was employed for a period of three years commencing 15^th May 2015 until his death.

10. The Plaintiff deposes that the deceased died of chronic lung and heart disease caused by persistent exposure to dust, chemical fumes especially by Citric Acid and smoke while working in the factory. This was confirmed by the medical/Mortem Report done by Dr. Lucas Komnapi of Angau Memorial Hospital.

11. After becoming aware that the deceased's death was directly caused by the working conditions, the family reported the death and the working conditions of the second Defendant's factory to the government authorities and other relevant industrial institutions. The Immigrations Office in Lae investigated and arrested four (4) members/foreign workers, all of Chinese origin, for breaching Migration laws. They were all convicted and fined by the District Court on 28^th October 2018.

12. At the Plaintiff's request, an inspection of the Defendant's factory was also conducted by Holms Kissing, of Integrated Training and Development Consultancy Ltd, to ascertain the safety, health and hygienic conditions of the beverage processing plant. The inspection concluded that the defendants were running the factory in serious breach of health and hygiene, safety, building, electrical and plumbing codes as required by the Food Sanitation Act 1991 and recommended its closure.

13. The Plaintiff deposes that at the direction of the Court by his Honour, Kandakasi, DCJ, to produce further Scientific Evidence, the Plaintiff arranged for the testing of the Citric Acid, the main chemical compound used by the Defendants in the beverage production. The samples were tested by the National Analytical & Testing Services Ltd at the PNG University of Technology. The report stated that the Citric Acid contains toxic chemicals that come in powder form and requires the handler to wear gloves and other protective equipment.

14. The Plaintiff deposes that a copy of the report was then sent to Dr, Lucas Komnapi for a further medical opinion based on his earlier diagnosis. Dr. Komnapi, a senior pathologist at the Angau Memorial Hospital, confirmed in his medical report dated 7^th October 2020 that the deceased's death was likely to be caused by the persistent exposure to and the inhaling of Citric Acid which contains toxic chemical powder which require the user to wear protective gear.

15. The Plaintiff concludes his evidence by stating that the deceased was not provided with safety or protective equipment while at work which was the direct cause of his death. As a result of the untimely death, the family has lost their father, suffered loss in income, and expenses for pursuing the case, the details of which are set out in the affidavits.

16. The Plaintiff seeks to rely on the Affidavit of Dr. Lucas Komnapi filed 2^nd February 2022. The affidavit is brief. Although it was objected to by counsel for the Defendant, it was admitted into evidence subject to weight being given. In the Affidavit, Dr. Komnapi deposes that he is the Senior Pathologist based at Angau Memorial Hospital and he confirms conducting the post mortem on the deceased and did an Autopsy Report. He deposes that according to his findings, the deceased died from Chronic Lung & Heart Disease caused by persistent exposure to dust, chemical fumes, and smoke.

Defendants' Evidence

17. The Defendants seek to rely on the following Affidavits:

a) Affidavit of Nehemiah Erah sworn and filed 28^th January 2020.

b) Affidavit of Warren Kume sworn and filed 18^th June 2019

c) Affidavit of Ben Kamson sworn and filed 28^th January 2020.

18. I will deal with Nehemiah Erah's Affidavit first. After going through the Court file, I noticed the Affidavit of Nehemiah Erah was not filed, and the affidavit is not physically available amongst the documents in the Court file. On 3^rd April 2024, the Court recalled the matter to deal with this issue. Only the Plaintiff turned up in Court whilst counsel for the Defendants failed to turn up even though he was advised by the Court staff. When the matter was raised with the Plaintiff, he was not sure of the existence of this Affidavit. Since the Defendant's counsel did not appear to address the Court, the Court then proceeded to determine the matter regardless.

19. The second Affidavit relied on by the Defendants is that of Ben Kamson. This is the summary of Ben Kamson's evidence. He is the Supervisor of the factory. He deposes the factory does not produce harmful gases or anything dangerous. It is...