Tony David Raim v Simon Korua (2010) SC1062

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanau, Davani & Makail, JJ
• Judgment Date: 02 July 2010
• Citation: (2010) SC1062
• Docket Number: SCA NO 153 OF 2009
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1062

Full Title: SCA NO 153 OF 2009; Tony David Raim v Simon Korua (2010) SC1062

Supreme Court: Gavara-Nanau, Davani & Makail, JJ

Judgment Delivered: 2 July 2010

SC1062

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 153 OF 2009

BETWEEN

TONY DAVID RAIM

Appellant

AND

SIMON KORUA

Respondent

Waigani: Gavara-Nanau, Davani & Makail, JJ

2010: 28th June & 2nd July

NEGLIGENCE - Personal injuries claims - Injuries sustained in the course of employment - Cause of action - Common law tort of negligence for breach of duty of care - Alleged failure of employer to provide safe and secured place of work for employees - Workers compensation claim - Alleged breach of statutory duty and failure to provide workers compensation for employees - Workers Compensation Act, Ch 179 - Section 84(1).

PRACTICE & PROCEDURE - Vague pleadings - Varying claims not fully particularised - Appellant cannot lead evidence on claim that is not particularised - National Court Rules - Order 8, rules 29 & 32.

Cases cited:

Karawari Lodge Pty Limited -v- Bernard Luck (1998) SC553

Colbert -v- PNG [1988-89] PNGLR 590

Joseph Tonava -v- Electricity Commission of Papua New Guinea [1987] PNGLR 81

Placer (PNG) Limited -v- Anthony Harold Lievers (2007) SC899

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

National Provident Fund Board of Trustees -v- Jimmy Maladina & Ors (2003) N2486

Motor Vehicles Insurance (PNG) Trust Ltd -v- John Etape [1994] PNGLR 596

Motor Vehicles Insurance (PNG) Trust Ltd -v- James Pupune [1993] PNGLR 370

Counsel:

Mr P Kak, for Appellant

No appearance, for Respondent

2nd July, 2010

JUDGMENT

1. BY THE COURT: This is an appeal from the decision of Hartshorn, J made on 12th October, 2009 where his Honour dismissed the proceeding in the National Court because the appellant failed to establish liability against the respondent, in that, the appellant failed to establish negligence against the respondent for injuries sustained in the course of employment with the respondent.

2. In the National Court, it was alleged that the appellant was employed by the respondent as manager of the respondent’s business called Sea Wara Freezer in Port Moresby and was located at a residential property at allotment 13, section 68, Gordons. The residential property was owned by one Pius Tikili. It was further alleged that, on 10th August, 2002, whilst he was working, an armed gang held him up, shot and wounded him. As a result, on 4th October, 2004, he commenced proceedings for damages for personal injuries against the respondent for breach of common law duty of care to provide a safe and secured system of work at the work place to the employees and this included failure to provide workers compensation under the provisions of the Workers Compensation Act, Ch 179. The respondent denied the claim as the appellant was not his employee.

3. Before we discuss the substance of the appeal, it should be stated here that, we granted leave to the appellant to proceed to argue the appeal in the absence of the respondent after we were satisfied based on his affidavit of service sworn and filed on 10th June, 2010, that sufficient notice had been given to the respondent by service of a notice of hearing on his lawyers on 09th June, 2010 at 2:45 pm at Defense Haus in down town Port Moresby. Despite that, neither the respondent nor his lawyers attended the hearing.

4. Turning to the substance of the appeal, the appellant relies on four grounds of appeal in the notice of appeal filed on 19th November, 2009. In relation to the first ground, his counsel Mr Kak argued inter-alia, that the learned judge in the National Court erred in law and fact when he failed to find that the appellant’s claim in the National Court was one of breach of common law duty of care to provide a safe and secured system of work at the work place. Mr Kak pointed us to paragraph 16 of the statement of claim and strenuously argued that paragraph 16 sets out the particulars of the duty of care or rather, the various duties owed by the respondent to the appellant which were allegedly breached by the respondent.

5. He strenuously urged us to find that the pleadings, and in particular, the allegation of fact at paragraph 16(1) of the statement of claim that, “The Plaintiff therefore claims that the Defendant owes a duty of care to his employees including the Plaintiff to ensure that: [t]heir safety was guaranteed” was sufficient and wide enough to encompass and establish a duty of care between the respondent and the appellant. That is to say, the respondent had a duty to have in place adequate security measures for the benefit and safety of his employees. He further argued that these various duties set out at paragraph 16 were breached as a consequence of the alleged failure by the respondent to provide adequate security measures and also to comply with the Workers Compensation Act, Ch 179. As a result, the appellant was wounded by the armed robbers and also missed out on compensation under the Workers Compensation Act, Ch 179.

6. As for the remaining grounds of appeal, Mr Kak argued that if the learned judge had found that there was a duty of care owed to the appellant by the respondent for provision of a safe and secured place of work including provision of insurance cover or compensation to the appellant under the Workers Compensation Act, Ch 179, there was sufficient evidence from the appellant to establish the duty of care and the breach in both instances and referred to the various affidavits filed by the appellant in the appeal book to support his submission. If his Honour had found so, he would not have summarily dismissed the proceeding. As he found otherwise, this was where his Honour fell into error.

7. From our perusal of his Honour’s decision at pp 132-133 and in particular, paragraphs 3 and 4 at p 132 of the appeal book, the first point to note is that while both counsel had submitted before his Honour that the issue was whether the appellant was employed by the respondent, his Honour considered that, that was not the issue. It was peripheral to the main issue of whether the appellant was entitled to the relief he was seeking before the Court. We mention this because the appellant has not challenged that aspect on appeal. That means, the issue before us for determination is whether the appellant has established a duty of care and its breach against the respondent.

8. On that issue, it is noted that his Honour acknowledged at paragraph 7 at p 132 of the appeal book, that there is a general duty of care imposed by the common law owed by an employer to its employees to provide a safe system of work. But he was not satisfied in this case that, the respondent as an employer owed a duty of care such as those set out at paragraph 16 of the statement of claim to the appellant. In other words, notwithstanding that there is a general duty of care owed by an employer to its employees to provide a safe system of work, that general duty of care does not include provision of compensation under the Workers Compensation Act, Ch 179. Further, if the appellant suffered loss as a consequence of non compliance with the Workers Compensation Act, Ch 179 he may have a claim against the respondent for breach of statutory duty, but that claim has not been made.

9. We agree with the views expressed by his Honour. There is a general duty of care of an employer in respect of his employees to provide a safe system of work: see Karawari Lodge Pty Limited -v- Bernard Luck (1998) SC553 and Colbert -v- PNG [1988-89] PNGLR 590. In this case, it is obvious to us that the appellant sued the respondent for damages for personal injuries sustained at work based in two causes of action. First, for negligence, that is, breach of duty of care for failure to provide a safe and secured place of work including failure to provide workers compensation under the Workers Compensation Act, Ch 179 and secondly, purportedly for breach of statutory duty for failure to provide workers compensation under the Workers Compensation Act, Ch 179. The claim based on purported breach of statutory duty under the Workers Compensation Act, Ch 179 may be found at paragraphs 14, 15, 16, 17 and 18 of the statement of claim and we set them out below:

“14. The Defendant knowingly and willfully failed and neglected to make or arrange for a just compensation to the Plaintiff because he received injuries while performing his duties as an employee of the Defendant.

15. Further, the Defendant failed to comply with the Workers Compensation Act, to insure his employees, (especially the Plaintiff) or have them covered from such risks or accident which may occur in the course of employment.

16. The Plaintiff therefore claims that the Defendant owes a duty of care to his employees including the Plaintiff to ensure that:

(1) Their safety is guaranteed;

(2) They are covered from any work related accidents;

(3) Appropriate insurance cover is taken out to protect them from any work related accidents or deaths;

(4) All medical expenses are paid for in the event that they are injured in the course of their employment;

(5) They are appropriately compensated for the injuries or disabilities sustained during their course of employment.”

(17) The Defendant had failed to discharge the above duty of care and is therefore liable to the...