Unreported National Court Decisions
N991
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 1110 OF 1989
TEN DOA
V
NEBILYER TRADING COMPANY PTY LTD
Mount Hagen
Woods J
13 May 1991
15 May 1991
22 July 1991
MASTER & SERVANT - Claim against Employer by employee driver - defective machinery - plaintiff has complete control over manner of driving - Liability.
Counsel
J. Pakau for the Plaintiff
D. O’Connor for the Defendant
17 July 1991
WOODS J: The Plaintiff Ten Doa is claiming damages for injuries he received whilst employed as a driver by the Defendant Company which operated a coffee plantation near Mt. Hagen.  The Plaintiff alleges that the injuries were caused by the negligence of the Defendant in providing a dangerous system of work and defetive machinery namely the tractor which the Plaintiff was driving.
On the 11th of July 1985 the Plaintiff was driving a tractor back through the plantation to the Defendant’s coffee factory with a load of coffee cherries.  As he drove down a steep slope the Plaintiff lost control of the tractor and it ran off the plantation road and overturned and either the tractor or the trailer ran over the Defendant’s arms causing the left arm to be almost completely severed and as a result it had to be amputated and causing fractures to the right arm.  The Plaintiff alleges that the brakes failed on the tractor which therefore implied negligence in the Defendant in the maintenance and operation of its machinery.
It is clearly established that employers owe a duty to take care for the general safety of their work people and all circumstances of their work.  An employer must visualise that there is a real risk of injury to a worker if he the employer does not conduct his operation or manage his property or machinery with due care.  Thus in the case before me now there is a responsibility to ensure that the machinery or the tractor is properly maintained such that it cannot fail and thereby cause injury and further that the method of operation of the tractor is inherently safe.
The Plaintiff’s evidence is that he was employed as a driver by the Defendant and his duties involved driving a plantation truck and a plantation tractor and he had been doing that for six years.  He said he was brining a load of cherries on a trailer attached to the tractor and coming down a small hill the brakes failed and he lost control and overturned down off the side of the road.  He said it was an old tractor which had been proving unreliable.  However, he confirms that the tractor had already been used to collect and deliver two loads of coffee cherries that morning and that it was on the third load that the brakes failed.  Two witnesses for the plaintiff give evidence of being on the trailer at the time and the Plaintiff calling out as they were going down the hill that the brakes had failed and they jumped off before the tractor and trailer overturned.
A view of the scene confirmed that the scene of the incident was a curve and fairly steep section of plantation road.  But of course with his years of his experience in driving on the plantation, the Plaintiff would have adequate knowledge of any danger in driving down that slope because he would have driven it many times.
A Witness for the Defendant Company Morobe Kiluwa gives evidence of also being a driver for the company and he says he had done the first two runs with that tractor that morning and then the Plaintiff did a run.  He says he was on the trailer when the Plaintiff was driving the tractor and that when the driver was coming down the hill he tried to change gears going down and missed and he told him to put on the brakes but they failed and he then jumped off.  The witness said he had had no problems with the brakes earlier that morning.  He says he had been a driver for many years.  He confirms that he had driven over that road many times.  Morobe also says that the Plaintiff was not employed as a driver but at that time he was starting to drive.
There was no evidence of any examination of the tractor to ascertain whether there was any defect in the brakes.
The question here therefore is whether the Defendant had been negligent in the control and maintenance of the tractor.  Apart from that, the system of work was completely under the control of the Plaintiff.  He was driving the tractor therefore he had complete control over the method of driving.  He says that he had worked on the plantation for a number of years so therefore he must have known all the roads on the plantation and being a driver he must have known in particular the need for care on the hill where the accident took place.  Therefore he must have known from experience that it was necessary in a tractor with a fully laden trailer that the correct lower gear had to be engaged before descending the hill.  Therefore in the driving of the tractor the only person who could be negligent is the Plaintiff, there can be no negligence on the Defendant.  However is there sufficient evidence or a probability on the evidence that the tractor was defective.  If the tractor was defective as a Plaintiff alleges then why did he drive it when there was no suggestion of any compulsion for him to drive it.  However the Plaintiff himself and two other witnesses confirmed that the tractor had already done two loads that morning so there was no defect obvious to anybody at the time that the Plaintiff started driving off for this third load.  There is no evidence of anyone seeing any brake fluid or such like leaking.  Then Morobe an experienced driver notes that the mishap seems to have occurred when the Plaintiff too late tried to change gear and missed the gear by which time he was going too fast so at that stage with a heavy load on a steep slope it is questionable whether any brakes would work or would hold the vehicle.
Therefore the driving of the tractor was solely under the control of the Plaintiff and there was insufficient evidence to find on the balance of the probabilities that the brakes were faulty and that therefore there was negligence in the Defendant in the care and maintenance of the tractor.
I therefore find that any claim based on negligence in the Defendant must fail.
Lawyer for the Plaintiff: J. Pakau & Associates
Lawyer for the Defendant: O’Connor & Hasu