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Tonava v Electricity Commission of Papua New Guinea [1987] PGNC 65; [1987] PNGLR 81; N589 (12 May 1987)

N589

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JOSEPH TONAVA

V

ELECTRICITY COMMISSION OF PAPUA NEW GUINEA

Waigani
Kidu CJ
8 May 1987
12 May 1987

MASTER AND SERVANT - Injury in course of employment - Liability for damages - Common law claim and workers’ compensation claim alternative remedies - Workers’ Compensation Act (Ch No 179), s 84(4).

WORKERS’ COMPENSATION - Entitlement to compensation - Remedy alternative to common law claim - Workers’ Compensation Act (Ch No 179), s 84(4).

NEGLIGENCE - Causes of action - Injury to employee in course of employment - Cause of action alternative to workers’ compensation claim - Workers’ Compensation Act, (Ch No 179), s 84(4).

Held

On its proper construction the Workers’ Compensation Act (Ch No 179), s 84(4), precludes an employee who is injured in the course of his employment and receives an award of compensation under the Act, from bringing an action against the employer for damages in respect of the same injury. The purpose of the legislation is to ensure that the worker may pursue either, a claim under the Act or his common law remedy.

Motion

This was an application by a defendant/employer to strike out the plaintiffs statement of claim as disclosing no available cause of action.

Counsel

G Sheppard, for the applicant/defendant.
S Tedor, for the respondent/plaintiff.
Cur adv vult

12 May 1987

KIDU CJ: By notice of motion filed on 10 April 1987 the defendant moves for the striking out of the plaintiffs statement of claim. An order is also sought that the plaintiff pay the defendant’s costs of this application.

GROUNDS OF THE APPLICATION

The ground upon which this application is based is that "the statement of claim discloses no reasonable cause of action or other cause appropriate to the nature of the plaintiffs claim".

BACKGROUND

On 3 September 1983 the plaintiff suffered severe personal injuries when he fell from the top of an electrical power pole. He was then employed by the defendant as a labourer and the fall and injuries occurred during the course of his employment.

A claim under the Workers’ Compensation Act (Ch No 179) was filed and on 18 November 1984 the Workers’ Compensation Tribunal awarded K13,140.24 to the plaintiff and the defendant paid the amount to the plaintiff on 11 January 1985.

The award by the Tribunal reads, inter alia, as follows:

"2 ...

(c) That the amount is the final compensation payable for the TOTAL AND PERMANENT INCAPACITY sustained by JOSEPH TONAVA during the course of his employment on 3rd September, 1983."

Subsequent to the award the plaintiff, on 2 July 1986, took out a writ of summons in the National Court the subject of the present application.

The defendant (hereon the applicant) relies on s 84(4) of the Workers’ Compensation Act (Ch No 179) (hereon the Act). I set out below s 84 in full:

"84. Liability independently of Act.

(1) This Act, except as expressly provided in it, doesn’t affect any liability which exists independently of it.

(2) Where a worker or his dependents, as the case may be, has received or is entitled to receive, compensation under this Act or under the repealed Act, in respect of an injury, he shall not bring an action against the employer for damages in respect of the same injury unless he commences that action within three years from the day on which the injury occurred.

(3) Where a worker has recovered judgment against an employer independently of this Act for damages in respect of an injury, he shall not commence or continue any proceedings for or in relation to compensation under this Act in respect of the same injury.

(4) A worker shall not commence or continue any proceedings against his employer for damages independently of this Act in respect of any injury after he has obtained a final award against his employer, under which his employer is liable to pay compensation under this Act in respect of the same injury.

(5) Any sum received by a worker from an employer by way of damages in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of compensation under this Act in respect of the same injury.

(6) Any sum received by a worker from an employer by way of compensation under this Act or under a law of any other country in respect of an injury shall be deducted from the sum recoverable by the worker from the employer by way of damages in respect of the same injury." (My emphasis.)

A worker injured during the course of his or her employment has the right to claim compensation under the Act or sue his/her employer for damages independently of the Act. Section 84 preserves this right. It also ensures that an employer does not pay compensation under the Act as well as damages outside the Act for the same injury (or injuries).

SUBSECTION (2)

Mr Tedor for the respondent relied on this provision and submitted that it allows his client to sue for damages for the injury for which he has been finally awarded K13,140.24 under the Act. Reading the provision in isolation one gets that impression. But reading it in the context of the whole section a different impression is very clearly presented. I consider that subs (2) has one clearly defined purpose — to advise workers that if they wish to claim for damages for personal injury outside the Act their claims must be instituted within three years from the date of injury. To read the provision the way Mr Tedor suggested would render subss (3) and (4) meaningless and I do not consider that Parliament intended to do this.

SUBSECTION (4)

This provision does not conflict with subs (2). Its purpose is the protection of the employer from having to pay the worker twice for the same injury. If a worker obtains a final award for an injury under the Act he/she is prevented from seeking damages independently of the Act for the same injury. And it is categorically stated that a worker "... shall not commence or continue any proceedings against his employer".

The respondent here is therefore barred by statute from suing his former employer. I grant the orders sought by the applicant.

Statement of claim struck out

___________________

Lawyer for plaintiff: Sialis Tedor & Associates.
Lawyer for defendant: K Y Kara.