N5614

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 469 0F 2011

PAUL PEREX
Plaintiff

V

PAPUA NEW GUINEA INSTITUTE OF MEDICAL RESEARCH
Defendant

Madang: Cannings J
2014: 12 February, 25 April, 13 June

TORTS – negligence – plaintiff's claim that he contracted tuberculosis (TB) due to unsafe work environment created by employer – elements of the tort of negligence – whether the defendant was negligent – whether negligent failure to provide safe work environment caused plaintiff injury.

The defendant, a medical research institute, employed the plaintiff as a driver. His duties included transporting TB patients between their homes and a hospital. He contracted TB during the period of employment. He sued the defendant, claiming damages for negligence, arguing that the defendant had failed to provide him with a safe work environment and that because of its failure to provide him with protective clothing and take other measures to minimise the risk of infection, he was unnecessarily exposed to a high risk of infection and as a consequence contracted the disease. The defendant denied liability, claiming that it did in fact provide the plaintiff with a safe work environment and that there was no proven connection between the work that the plaintiff was doing and falling ill. A trial was conducted on the issue of liability.

Held:

(1)	To establish a cause of action in negligence the 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 (ie acted negligently); (c) the breach of duty caused damage to the plaintiff; (d) the type of damage was not too remote; and (e) rebuttal of the defence, if raised, of contributory negligence or voluntary assumption of risk.
 
(2)	Here it was undisputed that (a) the defendant, as employer, owed a duty of care to the plaintiff and (d) the type of injury incurred by the plaintiff was reasonably foreseeable (ie not too remote); and (e) neither contributory negligence nor voluntary assumption of risk were relied on as defences. The issues in contention were (b) whether the defendant was negligent and, if it was negligent, (c) whether its negligent acts or omissions caused the injury (the TB infection) suffered by the plaintiff.

(3)	The plaintiff gave evidence that in addition to transporting TB patients he was required to collect sputum (in cups) from patients and pack the cups into boxes and transport them to the hospital, and that the defendant did not provide him with any protective gear such as gloves and masks. The effect of this evidence was to impose on the defendant, which was best placed to rebut these factual allegations, an evidentiary burden of proving that the allegations were false. It failed to discharge that burden, its evidence that it provided the plaintiff with protective gear and continually reminded him to use it, being vague and unconvincing. The plaintiff therefore proved the second element of the tort: (b) the defendant breached its duty of care and was negligent.

(4)	As the plaintiff contracted the illness during the period of his employment and there was no evidence that he was ill before he commenced employment or that he necessarily became TB positive through some other cause, it was reasonable to draw the inference that the defendant's negligence had exposed him to a high risk of infection. The plaintiff proved on the balance of probabilities: (c) the defendant's negligence in fact caused him to contract the disease.

(5)	All elements of the tort of negligence were proven and it was ordered that the defendant is liable in negligence.

Cases cited

Edwards v Jordan Lighting [1978] PNGLR 273
James Robert Colbert v The State [1988-89] PNGLR 590
Karawari Lodge Pty Ltd v Bernard Luck [1999] PNGLR 65
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
Noki v Barclay Bros [1991] PNGLR 260
Raim v Korua (2010) SC1062
Ten Doa v Nebilyer Trading Co Pty Ltd (1991) N991
Walter Roth v Ok Tedi Mining Ltd (1998) N1788

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel

D F Wa'au, for the plaintiff
D A Umba, for the defendant 

13th June, 2014

1. CANNINGS J: This is the judgment of the Court on the question of whether the defendant, the Papua New Guinea Medical Research Institute, is liable in negligence to its former employee, the plaintiff, Paul Perex.

2. Mr Perex was employed by the Institute as a driver at its Madang facility from June 2009 to October 2010. His duties included transporting tuberculosis (TB) patients between their homes and Modilon General Hospital. In September 2010 he contracted TB. He was put on treatment and was not free of the disease until 2011. He has sued the Institute, claiming damages for negligence. He argues that the Institute failed to provide him with a safe work environment and that because of its failure to provide him with protective clothing and take other measures to minimise the risk of infection, he was unnecessarily exposed to a high risk of infection and as a consequence contracted TB, which is a highly infectious airborne disease.

3. The Institute denies liability, claiming that it did in fact provide the plaintiff with a safe work environment and that there is no proven connection between the work that the plaintiff was doing and his falling ill. A trial has been conducted on the issue of liability.

ISSUES

4. To establish a cause of action in negligence the plaintiff must prove the elements of the tort of negligence, ie:

(a)	the defendant owed a duty of care to the plaintiff;
(b)	the defendant breached that duty (ie acted negligently);
(c)	the breach of duty caused damage to the plaintiff;
(d)	the type of damage was not too remote; and
(e)	rebuttal of the defence, if raised, of contributory negligence or voluntary assumption of risk.

See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105 and Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779.

5. Here it is undisputed that:

(a)	the Institute, as employer, owed a duty of care to the plaintiff; and
(d)	the type of injury incurred by the plaintiff was not too remote (ie reasonably foreseeable); and
(e)	neither contributory negligence nor voluntary assumption of risk were relied on as defences.

6. The issues in contention are:

(b)	whether the defendant was negligent and, if it was,
(c)	whether its negligent acts or omissions caused the injury (the TB infection) suffered by the plaintiff.

WAS THE DEFENDANT NEGLIGENT?

7. It is part of the common law of negligence that an employer owes a duty of care to its employee and that the standard of care required is that the employer must take all reasonable steps to provide a safe system of work (Karawari Lodge Pty Ltd v Bernard Luck [1999] PNGLR 65, Raim v Korua (2010) SC1062, Edwards v Jordan Lighting [1978] PNGLR 273, James Robert Colbert v The State [1988-89] PNGLR 590, Noki v Barclay Bros [1991] PNGLR 260, Ten Doa v Nebilyer Trading Co Pty Ltd (1991) N991, Walter Roth v Ok Tedi Mining Ltd (1998) N1788).

8. The plaintiff's case is that the Institute did not provide him with a safe system of work. He gave evidence that in addition to transporting TB patients he was required to collect sputum (in cups) from patients and pack the cups into boxes and transport them to the hospital, and that the defendant did not provide him with any protective gear such as gloves and masks. The effect of this evidence was to impose on the defendant, which was best placed to rebut these factual allegations, an evidentiary burden of proving that the allegations were false.

9. The only direct response to the plaintiff's evidence was in the evidence of Dr Paul Harino, TB Study Clinician at the Institute's Madang facility, who deposed that:

At the time of his [the plaintiff's] employment he was supposed to drive staff to and from their work stations and transport samples packed in carriage containers to the labs. The project car was equipped with personal protective gear such as gloves, face masks and other first aid items. All employees (including Mr Perex) were continuously reminded to use these personal protective gears.

At the time of his employment Mr Perex resided at Finch Road, one of the settlements where TB was very high. We have several cases from this area, some were actually Mr Perex's family members and others lived very close to him. He usually distributed sputum cups and collected samples from this settlement voluntarily because he resides with them.

10. The Institute's counsel Mr Umba submitted that the Court should find as a fact that the plaintiff was provided with personal protective gear and that he was continually reminded of the importance of using it. I reject that submission. The Institute's evidence is vague and unconvincing. If in fact the project car was fitted with personal protective gear, where are the details? What was the specific description of the items? How and when was the plaintiff reminded to use the gear? Was he given written instructions? Did the Institute have an occupational health and safety plan in place to ensure that all its staff who came into contact with TB patients or samples were aware of the risks of infection and what had to be done to minimise such risks? The vagueness of the evidence of the Institute means that it has not discharged the evidentiary burden of proof.

11. I find that the plaintiff has proven that:

•	he was not provided with appropriate personal protection;
•	the Institute failed to provide him with a safe work environment; and
•	because of the Institute's failure to provide him with protective clothing and take other measures to minimise the risk of infection, he was unnecessarily exposed to a high risk of infection;
•	the Institute did not comply with the standard of care that would have been exercised by a reasonable employer;
•	the Institute breached its duty of care to the plaintiff; and
•	the second element of the tort of negligence – (b) that the defendant was negligent – has been proven.

DID THE DEFENDANT'S NEGLIGENCE CAUSE THE PLAINTIFF'S ILLNESS?

12. Mr Umba submitted that the plaintiff failed to prove that he contracted TB due to the nature of his work. Mr Umba relied on the evidence of Dr Kilagi Vanuga of Goroka Base Hospital who commented on a medical report of Dr Martin Daimen of Hope Specialist Health Care Ltd of Madang who had reviewed the plaintiff's TB status and treatment in September 2013. Dr Vanuga stated:

According to the natural history of TB, anyone can acquire the TB bacteria as it is airborne and [a person] may live with it for many months, and even years before it is reactivated to make that person sick. Madang like many provinces in the country has high incidences of TB. Anyone in Madang can acquire TB anywhere in the community.

The only way for one to definitively find the source of the infection is to match the genotypes in the patients.

13. The Institute's argument is therefore that the plaintiff could have been infected in any of a number of different ways. He did not necessarily contract the disease because of his work. I agree, up to a point, with those propositions. The plaintiff has not proven conclusively that he contracted TB from his exposure, during the course of his employment, to TB patients or sputum. However, to succeed in his claim he is not obliged to satisfy a conclusive burden of proof. He is obliged to prove on the balance of probabilities that the negligent failure of the Institute to provide a safe work environment caused him to contract TB.

14. I am persuaded by the submissions of Mr Wa'au for the plaintiff that that obligation has been discharged. The plaintiff contracted the illness during the period of his employment. There was no evidence that he was ill before he commenced employment or that he necessarily became TB positive through some other cause. It is therefore reasonable to draw the inference that the defendant's negligent failure to provide a safe work environment exposed the plaintiff to a high and unsatisfactory risk of infection and that this led to him being infected.

15. The third element of the tort of negligence – (c) the defendant's negligence in fact caused the plaintiff to contract the disease – has been proven.

CONCLUSION

16. All elements of the tort of negligence have been established. It will be declared that the plaintiff has established liability against the defendant. As to costs, the general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1)	The plaintiff has established a cause of action in negligence.

(2)	The plaintiff is accordingly entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(3)	Costs of the proceedings shall be paid by the defendant to the plaintiff on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

____________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Umba Lawyers: Lawyers for the Defendant