N11116
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 4 OF 2024

EZEKIEL AVOSA
Plaintiff

V

COMMANDING OFFICER, 
BOMANA CORRECTIONAL INSTITUTION
First Defendant

COMMISSIONER OF THE CORRECTIONAL SERVICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: CANNINGS J
9 AUGUST, 3, 18 DECEMBER 2024

TORTS – breach of statutory duty – negligence – prisoner injured in work party incident – whether statutory intention manifest in Correctional Service Act to create cause of action – whether safe system of work.

HUMAN RIGHTS – prisoner injured during work party incident – whether breach of human rights under Constitution ss 36 (freedom from inhuman treatment) or 37 (protection of the law).

The plaintiff was a prisoner who was injured in a work party incident at a prison when the rotating disc of an angle grinder broke and struck him in the eye. He claimed that he was not taken to hospital for treatment until two days after the incident and has suffered 100% loss of vision in the injured eye. He commenced proceedings against the commanding officer of the correctional institution, the Commissioner of the Correctional Service and the State, claiming damages for the torts of breach of statutory duty and negligence and for breaches of human rights under ss 36 and 37 of the Constitution. He claimed that the State was vicariously liable for the wrongful conduct of the first and second defendants. All defendants denied liability. 

Held:

(1)	All but one of the elements of the tort of breach of statutory duty were proven. It was not proven that the Parliament, when passing the Correctional Service Act, which imposed statutory obligations on the Commissioner of the Correctional Service to engage prisoners in work programs that entailed safe systems of work, intended to create a private right of action for breach of those statutory obligations. As it was necessary to prove all elements of the tort, the breach of statutory duty claim failed. 

(2)	The alleged breaches of human rights were also not proven. Section 36 gives all persons in the country protection against torture or treatment or punishment that is cruel or otherwise inhuman. To prove this right has been breached, it is necessary to show intentional conduct of a defendant, with the purpose of regarding a person as less than human. That requirement was not established.

(3)	The other human right allegedly breached was the right to the full protection of the law. However, there was no specific provision of the law that was allegedly breached by the defendants, so it was inapplicable.

(4)	All elements of a cause of action in negligence were proven in that: (a) the Commissioner and the commanding officer owed a duty of care to the plaintiff; (b) the defendant breached that duty by not ensuring that there was a safe system of work; (c) the breach of duty caused injury to the plaintiff; and (d) the type of injury incurred was not too remote. 

(5)	The commanding officer and the Commissioner were liable to the plaintiff in damages. As the tort of negligence was committed in the course of their employment, their employer, the State, was vicariously liable.

Cases cited

Application by Nimbituo [2015] 1 PNGLR 332
Bau v Bine [2016] 3 PNGLR 324
Goma v Protect Security & Communication Ltd [2013] 2 PNGLR 205
Kofowei v Siviri [1983] PNGLR 449
Konori v Jant Ltd (2015) N5868

Counsel

J P Gene for the plaintiff
A Kajoka for the defendants

1.	CANNINGS J:  The plaintiff Ezekiel Avosa was a prisoner detained at Bomana Correctional Institution on 14 February 2023. He was engaged in a work program that involved dismantling an old building within the prison boundaries. He had some prior work experience in metal fabrication and was given the job of cutting strips of roofing iron. When he was doing that job, the rotating disc of the angle grinder he was using to cut the iron broke and struck him in the left eye. He claimed that he was not taken to hospital for treatment until two days after the incident and has suffered 100% loss of vision in the injured eye. 

2.	He commenced proceedings against the commanding officer of the correctional institution and the Commissioner of the Correctional Service and the State, claiming damages for the torts of breach of statutory duty and negligence and for breaches of human rights under ss 36 and 37 of the Constitution. He claimed that the State was vicariously liable for the wrongful conduct of the first and second defendants. All defendants deny liability.

BREACH OF STATUTORY DUTY

3.	The elements of the tort of breach of statutory duty are that: (a) a statute imposed an obligation on the defendant; (b) the obligation was breached by the defendant; (c) the purpose of the statute was to protect a particular class of persons; (d) the plaintiff was a member of that class of persons; (e) the plaintiff suffered damage as a result of the breach; and (f) the Parliament intended to create a private right of action for breach of the statutory obligation (Goma v Protect Security & Communication Ltd [2013] 2 PNGLR 205). 

4.	As to (a), the Correctional Service Act imposes a statutory obligation on the Commissioner of the Correctional Service and his delegates the commanding officers of correctional institutions to care for the welfare of detainees and engage them in appropriate work in accordance with safe systems of work compliant with the Industrial Safety, Health and Welfare Act. As to (b) the plaintiff has proven that the statutory obligation was not discharged. There is sufficient evidence that the plaintiff was required to engage in a risky operation, that he was not qualified, that he was not adequately supervised and that he was provided with faulty equipment. One of the purposes of the Correctional Service Act is to promote the welfare of particular class of persons – detainees – and the plaintiff was a member of that class and he suffered an injury due to the breach of the statutory obligation by the commanding officer. Elements (c), (d) and (e) have been proven. 

5.	As to (f), however, I am not satisfied that the Parliament, when passing the Correctional Service Act, intended to create a private right of action for breach of those statutory obligations. As it is necessary to prove all elements of the tort, the breach of statutory duty claim fails. 

BREACH OF THE RIGHT TO FREEDOM FROM INHUMAN TREATMENT

6.	Mr Gene, for the plaintiff, submitted that the first and second defendants breached the plaintiff’s right to freedom from inhuman treatment under s 36 of the Constitution, which states: 

(1)	No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2)	The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.

7.	Section 36(1) confers on all persons in Papua New Guinea the right not to be submitted to three sorts of conduct:

•	torture (whether physical or mental);
•	treatment that is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person;
•	punishment that is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person (Konori v Jant Ltd (2015) N5868, Application by Nimbituo [2015] 1 PNGLR 332).

8.	In Kofowei v Siviri [1983] PNGLR 449 a number of human rights breaches were found to have been committed against persons detained in custody but a claim based on s 36(1) of the Constitution was rejected. It was held that for a person’s conduct to amount to torture or otherwise inhuman treatment of another person under s 36(1): 

•	the conduct must be committed without the consent of the recipient; and
•	the conduct must be done with the intent and effect of treating the recipient as less than human.

9.	I follow the Kofowei approach here. I consider that the plaintiff was involved in the work activity with his consent. It has not been proven that there was any intention on the part of the defendants or any correctional officer acting on their behalf to regard the plaintiff as less than human. What happened was unintentional, not deliberate. There is no breach of s 36 of the Constitution. 

BREACH OF THE RIGHT TO FULL PROTECTION OF THE LAW

10.	The other human right allegedly breached was the right under s 37(1) of the Constitution, which states: 

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

11.	However, there was no specific provision of the law that was allegedly breached by the defendants, so s 37(1) was not breached.

NEGLIGENCE 
 
12.	To establish a cause of action the plaintiff must prove the four elements of the tort of negligence: 

(a)	the defendants owed him a duty of care;
(b)	the defendants breached that duty, ie by act or omission were negligent;
(c)	the breach of duty caused him injury;
(d)	the type of injury was not too remote. 

13.	As to (a), the commanding officer and the Commissioner of the Correctional Service, and correctional officers at the correctional institution, owed a duty of care to all detainees, including the plaintiff, to take reasonable steps to operate the correctional institution in such a way as to preserve the health and welfare of the detainees (Bau v Bine [2016] 3 PNGLR 324). The first element of negligence is proven.

14.	As to (b), I draw upon the findings made regarding element (b) of the tort of breach of statutory duty. There is sufficient evidence that the plaintiff was required to engage in a risky operation, that he was not qualified, that he was not adequately supervised and that he was provided with faulty equipment. It is not necessary to prove that the first or second defendants intended to harm him. There is sufficient evidence to support the plaintiff’s claim of delay in getting him to hospital. The incident happened on 14 February 2023 but he was not taken to hospital until 16 February 2023. This was an unreasonable delay, given the obviously serious nature of the injury. I am satisfied that the first and second defendants were negligent. The second element of negligence is proven. 

15.	As to (c), it was the negligent failure to adequately supervise the plaintiff and the negligent provision of faulty equipment that caused the plaintiff to be injured in the eye. The third element of negligence has been proven.

16.	As to (d), an eye injury is a type of injury that was a reasonably foreseeable consequence of the negligent conduct of the first and second defendants. The extent of the injury, in particular whether it has been proven that the plaintiff lost 100% vision in his left eye, is not presently relevant. It will become relevant in the assessment of damages. It is the type of injury that is important. It was not too remote. The fourth element of negligence is proven.

17.	The plaintiff has proven all elements of the tort of negligence. A cause of action has been established against the first and second defendants. 

VICARIOUS LIABILITY

18.	The commanding officer and the Commissioner are liable to the plaintiff in damages. As the tort of negligence was committed in the course of their employment, their employer, the State, is vicariously liable.

CONCLUSION

19.	The plaintiff has succeeded in establishing liability against all defendants. There will be a trial on assessment of damages. 

ORDER 

1.	It is declared that the plaintiff has established a cause of action in negligence as pleaded in the statement of claim against the defendants, who are liable in damages; and there will be a trial on assessment of those damages.

2.	Claims for other causes of action pleaded in the statement of claim are dismissed.

Lawyer for the plaintiff:	 Public Solicitor
Lawyer for the defendants: Solicitor-General