N10589

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 437 OF 2023

BETWEEN:
PAKIS AVIS (injured former employee)
-Plaintiff-

AND
CHIEF EXECUTIVE OFFICER Mainland Holdings Limited
-Defendant-

Lae: Dowa J
2023: 17th & 24th November

PRACTICE AND PROCEDURE- application for dismissal of proceedings for being statute barred under section 16 of the Frauds and Limitation Act-proceedings for statutory breach of duty be prosecuted within 6 years and section 84(2) of the Workers Compensation Act -proceedings issued independent of the Workers Compensation Act be prosecuted within three years-proceedings are frivolous and untenable - Order 12 Rule 40 of the National Court Rules- proceedings dismissed.

Cases Cited.
Placer (PNG) Ltd v Leivers (2007) SC899
Mt Hagen Urban LLG v Sek No.15 [2009] SC1007
Philip Takori v Simon Vagari (2008) SC905
Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC906 
Kerry Lerro v Philip Stagg (2006) N3050

Counsel:
M Avis, brother & spokesperson for the Plaintiff
J Langah, for the Defendant

RULING

 24th November 2023
            
1.	DOWA J.  By Notice of Motion the Defendant seeks dismissal of the proceedings for being statute barred under section 16 of Frauds & Limitation Act and section 84 (2) of the Workers Compensation Act.

Background Facts

2.	The Plaintiff is a former employee of the Defendant, Mainland Holdings Ltd.  In the course of his employment, he was injured in the workplace on 16th December 2015.  He was entitled to workers compensation, but no compensation has been paid since.  The Plaintiff institutes the current proceedings alleging, the Defendant failed to lodge his claim for compensation.

Defence

2.	The Defendant filed a Defence, denying the claim.  The Defendant pleads that:

a)	The Plaintiff was injured in the workplace on 16th December 2015 and was released from employment on 23rd December 2016, after paying for salaries for more than 12 months.
b)	The Defendant lodged a workers compensation claim and it was up to the Plaintiff to chase up the claim with the office of Workers Compensation.  

c)	The claim is statute barred.

Defendants Application 

4. 	The Defendant seeks to dismiss the proceedings on the basis that the proceedings are statute barred under Section 16 of the Frauds and Limitation Act and Section 84(2) of the Workers Compensation Act.

        Issues
1.	The issue for consideration is whether the proceedings are statute barred under Section 16 of the Frauds & Limitation Act and Section 84(2) of the Workers Compensation Act.

Law

6. 	The application for dismissal is made pursuant to Order 10 Rule 9A (15) and Order 12 Rule 1 of the National Court Rules.  The reasons as set out above is the claim is statute barred under section 16 of the Frauds & Limitation Act, and section 84(2) of the Workers Compensation Act.

7.	Section 16 (1) of the Frauds and Limitation Act is relevant, and it reads:
         
     “16 LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.
(1) Subject to Sections 17 and 18, an action–
(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”
8.     Section 84 (2) of the Workers Compensation Act reads as follows:

 “84. LIABILITY INDEPENDENTLY OF ACT.
……
(2) 	Where a worker or his dependants, 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….”
9. 	The Plaintiff pleads that the Defendant failed to lodge a compensation claim with the office of Workers Compensation. According to the Plaintiff, he made countless enquiries with the Office of Workers Compensation over the last eight (8) years but have not received any favorable response.  He blames the Defendant as Employer for failing to secure the compensation claim.

10.   It seems he is pleading a statutory breach of duty on the part of the Defendant, under the Workers Compensation Act and the Workers Compensation Regulations 1983.

11.  	Section 8 of the Workers Compensation Regulations provides for the lodgment of the application for compensation by the injured worker on the Registrar of Workers Compensation who shall then advise the Employer of such notice.  Section 42 of the Workers Compensation Act and section 13 of the Regulations place an obligation on the Employer to give immediate notice of injury (to worker) to the Registrar of Workers Compensation. 

12.	The Defendant filed evidence which shows that the Application for Compensation and Notice by Employer of Injury to Worker were both lodged with the Registrar of Workers Compensation on 1st March 2017.

13.	In determining the main issue, the Court asks the related questions:  what is the Plaintiff’s cause of action against the Defendant and when did it arise. It appears generally, the Plaintiff is blaming the Defendant for failing to ensure that the Plaintiff was paid the workers compensation claim. It seems that the Plaintiff has brought an action against the Defendant independent of a claim under the Workers Compensation Act.

14.	Under section 84 (2) of the Workers Compensation Act, if the worker decides to lodge a claim against the Employer independently from the claim under the Workers Compensation Act, he must lodge same within three (3) years from the date of injury.
 
15.  The Supreme Court stated the law in Placer (PNG) Ltd v Leivers (2007) SC899 where it held:

“25. We are of the opinion that there are two methods of making a claim for injuries sustained in the course of an employment under the Workers Compensation Act. Where an injured employee is claiming compensation under the  Workers Compensation Act , the claim is commenced by the employee giving the relevant notice pursuant to s.42 (1) (b) & (c). Where the injured employee decides to claim from the employer outside of the Act, he must do so in accordance with s. 84 (2) of the Act. His right is preserved under s.84 of the Act.
27.	We refer to Joseph Tonava v. Electricity Commission of Papua New Guinea [1987] PNGLR 81, where the late former Chief Justice, Sir Buri Kidu said at 82-83:

"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)."

27.	Then at 83, the learned Chief Justice said:
"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." 
28. 	We agree with the late Chief Justice’s opinion and we hold that to be the proper statement of the law in this situation and we adopt that and apply those principles in this appeal. We are of the view that that is the law that must be applied and maintained in a situation like the one giving rise to this appeal.”

16. 	In the present case, the injury took place on 16th December 2015.  By 16th December 2018, the three-year period lapsed.  I find the Plaintiff claim has become statute barred under section 84(2) of the Workers Compensation Act. 

17. 	The Defendant’s second argument is that the proceedings are also statute barred under section 16 of the Frauds and Limitation Act. Section 16 of the Act provides that a party who intends to file proceedings for breach of a simple contract or a claim in tort he must institute proceedings within six (6) years from the date of the cause of action.  In the present case, the Plaintiff has not clearly particularized his claim, but it seems to be pleading a breach of statutory duty for failing to secure his compensation claim.  The Plaintiff has not pleaded the date of cause of action. However, the date of injury is undisputed, which took place on 16th December 2015. The evidence shows the Plaintiff’s claim for compensation was lodged by the Defendant on behalf of the Plaintiff on 1st March 2017.  The Plaintiff ‘s agents were to chase up the claim thereon.

18. 	It seems the Defendant has performed its statutory functions at least by 1st March 2017. Even if there is a breach of duty, the claim would become statute barred under section 16 of the Frauds and Limitation Act, because the six (6) year period lapsed on 16th December 2021. If the cause of action were to be computed from 1st March 2017, the six-year period ended on 1st March 2023, and the current proceedings having been filed on 1st September 2023, have also become statute barred.

19.  This is an unfortunate situation for the Plaintiff who has received serious injury in the course of employment but has yet to be compensated under the Workers Compensation Act. That said, the Court, however, cannot allow the proceeding to remain as it is frivolous and vexatious in nature and should be dismissed pursuant to Order 12 Rule 40 of the National Court Rules. 
	
20.    The law on applications under Order 12 Rule 40 of the National Court Rules is settled and decided in many cases such as Mt Hagen Urban LLG v Sek No.15, Philip Takori v Simon Vagari (2008) SC 905, Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC 906 and Kerry Lerro v Philip Stagg (2006) N 3050.  The principles emanated from the above cases are:

a)	A claim may be disclosing no reasonable cause of action if the facts pleaded does not clearly show all necessary facts and legal elements to establish a claim known to law.

b)	A claim maybe frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.

c)	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case. 

d)	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even it proceeds to trial.

21.	Turning to the present case, clearly, the Plaintiff’s proceeding is frivolous and untenable and is bound to fail if it proceeds to trial as it is statute barred under section 84(2) of the Workers Compensation Act as well as section 16 of the Frauds and Limitation Act. 

22.	For the forgoing reasons, the Court upholds the Defendant’s application and shall dismiss the proceedings.

Orders

23.     The Court orders that:

1.	The Defendant’s application is granted.
2.	The Plaintiff’s proceeding is dismissed.
3.	Time be abridged.

Marksen Avis:  Brother and spokesperson appearing for the Plaintiff		
Albright Lawyers:   Lawyers for the Defendant