SC2761
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 140 OF 2022 (IECMS)

MICHAEL DAN 
Appellant

AND:
GUARD DOG SECURITY SERVICE LIMITED
Respondent

WAIGANI: DAVID J, NAROKOBI J, PURDON-SULLY J
28 APRIL, 1 AUGUST 2025

SUPREME COURT –APPEAL- WORKERS COMPENSATION – Injuries sustained in the course of employment – Liability for damages – Common law claim and Workers Compensation claim are alternative remedies – Where injured worker made a claim for compensation under the Workers Compensation Act – Where the injured worker later sought payment of the award under the Act and general and special damages in support of the pursuit of payment of the award – Whether the claim was statute barred under the time limit in s 84(2) of the Act 

WORKERS COMPENSATION – Cause of action – Injury sustained in the course of employment – Injured worker makes an election under the Workers Compensation Act – Injured worker cannot seek remedies independent of the Act  - a Common law claim is subject to limitation under s.84 (2) – Proceedings in National Court time barred – Appeal dismissed.

Cases cited
AI City Guards Ltd v Alu [2024] PGSC 111; SC2650 
Placer (PNG) Limited vs Anthony Harold Leviers [2005] PNGSC 43
Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] PGSC 67; SC1549
Public Curator of Papua New Guinea v Kara [2014] PGSC 58; SC1420

Counsel
Mr. J Gene, for appellant
Ms M Maburau, for respondent

1.	BY THE COURT:   This is an appeal from a decision of the National Court on 11 August 2022 in proceedings WS 511 of 2021 dismissing the appellant’s application for payment of a compensation award (the award) under the Workers Compensation Act 1978 (the Act) and other damages arising from his pursuit of the award.

2.	The appeal is against the following orders of the primary Judge:

a.	These proceedings be dismissed for being time barred.
b.	Each party bear their own costs.

3.	By Supplementary Notice of Appeal filed 1 October 2024, the appellant seeks that:

a.	The appeal be upheld

b.	The Supreme Court, pursuant to sections 6(2) and 16(c) of the Supreme Court Act, this Court make and order as to the reliefs sought in the Writ of Summons endorsed with a Statement of Claim filed 11 November 2021:
i.	Damages for undue hardship, stress, frustration, suffering, pain etc; and 
ii.	Special damages; and
iii.	Exemplary damages; and
iv.	Interest on the whole of the judgment from the date of the cause of action 2019 to the date of judgement.
v.	Costs on an indemnity basis.

c.	The Supreme Court, pursuant to sections 6(2), 16(c) of the Supreme Court Act 1975 and Order 12 Rule 6(b) of the Supreme Court (miscellaneous Amendment) Rules 2022, an order for costs in relation to the National Court proceeding WS No 511 of 2021: Michael Dan v Guard Dog Security Limited be taxed according to Order 12 of the Supreme Court (miscellaneous Amendment) Rules 2022.

4.	The grounds of appeal are as follows:

a.	The primary Judge erred in the exercise of her discretion in mixed fact and law when she failed to give considerable weight to the appellant’s submissions to have the matter proceed to trial and dismissed the proceedings.
b.	The primary Judge erred in the exercise of her discretion in law and fact in dismissing the proceedings for being time barred when there were clear occurrences demonstrating that the cause of action survived.

5.	The respondent seeks the dismissal of the appeal.

6.	For the reasons we now give, the appeal is dismissed with each party to bear their own costs.

BACKGROUND 

7.	The appellant, a former employee of the respondent, was employed as a security guard by the respondent in Mt Hagen. 

8.	On about 27 August 2013, in the course of his duties and while in pursuit of armed criminals, the appellant fell into a drain, suffering injuries for which he received treatment in hospital. He made a claim for worker’s compensation to the Office of Workers Compensation (OWC) through the respondent’s Mt Hagen Office. In what would thereafter involve a series of unfortunate errors, process failures and delay, the documents were sent to respondent’s head office in Lae but never arrived.  A new application for worker compensation was eventually lodged and reprocessed by the OWC in Mt Hagen on 29 July 2016, by which time the appellant had left the employ of the respondent.

9.	On 19 November 2018, the Worker’s Compensation Tribunal (the Tribunal) in Port Moresby assessed the appellant’s claim at K4,374 payable by the respondent to the OWC, the Trustee of the Workers Compensation Fund.

10.	The notice of the award was delivered to the respondent in January 2019,

11.	On 13 June 2019 a cheque in that amount payable to the OWC was raised by the respondent. The delay in doing so, given the notice to the respondent six (6) months earlier, is unexplained on the evidence. However, it is a reasonable inference on the evidence that the respondent was prompted by a demand for payment in letter to it dated 7 May 2019 from the Office of Public Solicitor together with a further K45,000 purportedly incurred by the appellant in pursuing his claim.

12.	By letter also dated 13 June 2019 the respondent forwarded the cheque in payment of the award to the OWC.

13.	On or about 14 June 2019 the respondent also replied to the Office of Public Solicitor that it would make the payment, attaching a copy of a cheque dated 13 June 2019 to the OWC to disburse to the appellant.  

14.	It is unchallenged that the relevant officer at the OWC failed to bank the cheque which eventually went stale.

15.	Against this background, and notwithstanding the appellant’s ongoing follow up with the OWC, still unpaid, on 11 November 2021 the appellant issued proceeding in the National Court (WS No. 511 of 2021) (the National Court proceedings).  

16.	On 25 June 2022, the respondent’s lawyer emailed the OWC seeking confirmation that the award had been paid.

17.	The respondent on becoming aware of the non-payment of the award to the appellant sought to rectify the matter by making payment by electronic funds transfer to the OWC on 9 August 2022.  There was a further delay in doing so associated with the failure of the OWC to provide the respondent with their account details to enable the transfer.

18.	By Notice of Motion filed on 12 July 2022, heard by the primary Judge on 11 August 2022, the respondent sought dismissal of the National Court proceedings pursuant to Order 12 rule 40(1)(b) and (c) of the National Court Rules for being frivolous and vexatious and an abuse of the process of the court.

19.	Alternatively, it sought that the proceedings be dismissed for being statute barred pursuant to s 84(2) of the Act and s 16 of the Frauds and Limitations Act 1988.

20.	It is convenient to set out those provisions at this juncture.

21.	Section 84 of the Act which appears in Part VIII titled Alternative Remedies provides:

22.	LIABILITY INDEPENDENTLY OF ACT.

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

(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.

(3)	Where a worker has recovered judgement 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.
[Underlining added]

23.	Section 16 of the Frauds and Limitations Act 1988 provides:

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.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
(3) Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of 12 years commencing on the date when the cause of action accrued.

(4) Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.

(5) An action shall not be brought upon any judgment after the expiration of 12 years commencing on the date when the judgement became enforceable.

(6) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.

(7) Subject to Subsection (8), an action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years commencing on the date when the cause of action accrued.

(8) For the purpose of Subsection (7) the word “penalty” does not include a fine to which any person is liable on conviction of a criminal offence.
	[Underlining added]

24.	By order of the National Court in those proceedings dated 11 August 2022 and entered on 16 December 2022 the National Court proceedings were dismissed for being time barred with each party to pay their own costs.  

25.	It is that order which gives rise to this appeal.

THE PRIMARY JUDGE’S DECISION 

26.	A transcript of the proceedings before the primary Judge appears at pages 47 to 56 of the Appeal Book.

27.	After outlining the history by reference to the sworn evidence before the primary Judge, including the evidence of the relevant officer of the OWC who accepted responsibility for failure to bank the cheque he had received in 2019, it was the submission on behalf of the respondent that the respondent had complied with the decision of the Tribunal by payment of the award; that the delay in disbursing the payment lay with the OWC, not the respondent, and that the respondent was time barred by reason of the cause of action having arisen in 2013.  

28.	Further by virtue of 84(4) of the Act, the appellant was statute barred from commencing or continuing 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.”

29.	For this reason, it was submitted that the action was an abuse of process and frivolous and vexatious.

30.	In response to a question posed by the primary Judge as to whether it was accepted that the cause of action occurred on 27 August 2013 it was submitted on behalf of the appellant that the cause of action arose in 2019 when the respondent committed to raise the cheque in payment of the award.

31.	We set out the full exchange between the primary Judge and Counsel for the appellant (the plaintiff in the National Court proceedings) together with Counsel for the respondent’s reply:

Mr Oresi:  Your honour, in my client’s affidavit – sorry, if I can go back.  According to the defendant’s evidence, the notice of award was delivered to the defendant in January 2019 of which a bank cheque was raised and delivered to Mr Stanley Kagup of the office of the Workers’ Compensation in Lae.  Basically, the defendants are now blaming the office of the Workers’ Compensation for this oversight.  The Plaintiff in his evidence states that the defendant investigator in Mt Hagen sent his injury notice and related documents to the defendant’s head office in Lae to progress his Workers’ Compensation claim.  And the plaintiff had been following up on the claim for years.  In his evidence from November 2018 to May 2019 the plaintiff followed up on the Workers’ Compensation Tribunal orders.  On numerous occasions went to Workers’ Compensation office in Port Moresby but noted that the defendant did not pay the K4375 as ordered by the tribunal. 

On or around 7 May 2019, the plaintiff with the assistance of the Public Solicitor’s office here in Port Moresby made a formal request to the defendant to pay the K4375 as ordered by the tribunal.  Eventually, the defendant’s lawyer responded stating they will comply with the tribunal’s order and settle the claim.  This was in 2019, your Honour.  Eventually, the defendant’s lawyer – sorry, pardon me.  From 17 June 2019 to the date in which this claim was initiated, the plaintiff has been visiting the Workers’ Compensation office in Port Moresby, NCD, to receive his compensation but had been advised that the defendant did not make any cheque payment to the Workers’ Compensation office.  Even before this writ was filed, we also served a letter of demand dated 9 August 2021 at the defendant’s office here in Port Moresby but did not receive any response to-date.  It was only after we filed this proceeding that we received responses from both the defendant’s lawyer and the office of the Workers’ Compensation.  

In Mr Stanely Kagup’s affidavit we note that he admits to the fact that the cheque was made to his office, but he failed to bank the cheque for approximately three years.  In light of the change in circumstances, perhaps we may amend the statement of claim to include the office of the Workers’ Compensation as a party to this proceeding.  But as it is, your Honour, our position is that both of them are at fault and if the defendants did respond to our letter of demand and if the office of the Workers’ Compensation did not mislead my client, then we would not have come this far.

Her Honour:	 Yes

Mr Oresi: Thank you, your Honour.  Firstly, we submit that most of the issues that were raised can be carefully considered at a proper hearing.  And we refer to the case of Fuawe v Warren [2019] N7677 in which his Honour Justice Anis in a way supports the plaintiff’s submission in this regard.  And finally, your Honour, we submit that based on those reasons, the application be dismissed and costs of the application be borne by the defendants.  Thank you, your Honour.

Her Honour:  Yes.  Ms Maburau, your reply?

Ms Maburau: Thank you.  To respond to my learned friend, your Honour, in order for the court to appreciate these proceedings, it is a proceeding that is based on a workplace injury and the employer is bound by the Workers’ Compensation Act.  Under the Workers’ Compensation Act, your Honour, the duty of the employer is to assist in compiling documents and to pay for medical reports for injured person, your Honour.  And the employer has discharged those duties, but it was made more difficult – sorry, on top of that, the employer is supposed to also pay an allowance to the injured employee.  In this case, the plaintiff left work, so the employer is not bound to pay him any allowance if he is not working for the employer anymore.  And it was difficult for the employer to assist him to file his documents, to lodge his documents with office of Workers’ Compensation.  So, we submit, your Honour, that under the Workers’ Compensation Act the employer has discharged all its duties and as to the matter of the payment of the tribunal award, the employer has also discharge that duty.  It has made the payment and the delay and the fault lies with the office of Workers’ Compensation.  Office of Workers’ Compensation is tasked to disburse the amount to the claimant.  It is not the duty of the defendant, your Honour.

Her Honour:   So the payment was made – or the cheque was drawn up and delivered in 2019?

Ms Maburau: In 2019, your Honour.

Her Honour:  But the office of the Workers’ Compensation sat on the matter until quite recently -----

Ms Maburau: The summons was served, your Honour.

Her Honour:  - - - - a new payment was raised and transmitted to the plaintiff.

Ms Maburau: Yes, your Honour.

Her Honour:  Yes.  All right, anything else?

Ms Maburau: Therefore, we submit, your Honour, that this proceeding is time barred under the Workers’ Compensation Act and is frivolous and vexatious and therefore should be dismissed.  Thank you, your Honour.

32.	The primary Judge then delivered her decision which appears at page 55 and 56 of the Appeal Book as follows:

Her Honour:  Thank you.  I will come to a decision in this matter.  Before this court is a notice of motion seeking a dismissal of these proceedings.  The application seeks a dismissal in reliance on the relevant provisions of the Workers’ Compensation Act where it gives a time period of three years on the date of the incident to lodge a claim under the Workers’ Comp.  Under section 16 of the Frauds and Limitations Act, there is a period of six years to bring proceedings to court if the plaintiff was to commence proceedings under the common law.

The cause of action in this case and this isa pertinent issue.  When did the cause of action arise?  To my mind, going through the statement of claim, the incident that the plaintiff is complaining about occurred on 27 August 2013.  That to my mind give the starting point of when the cause of action arose.  In the statement of claim, there is concession, the pleadings – or the plaintiff concedes in his pleadings that he has been following up for the said payment from the office of the Workers’ Compensation for seven years.  That can be seen at paragraph 28 of the statement of claim.  The pleadings, the plaintiff, there is a concession that the matter has exceeded six years.

The facts deposed to or the evidence deposed to in Ms Maburaru’s affidavit and the affidavit of one Stanley Kagup from the office of the Workers’ Compensation, the defendant did pay the sum the tribunal has arrived at in the sum of K4375, that payment was made to the office of the Workers’ Compensation and it so appears to be that the office of Workers’ Compensation sat on this payment, totally forgot about the cheque, the cheque has gone stale.  And it is from evidence that Ms Maburau says a new payment has been transmitted to the plaintiff’s bank account, given that it is – the concern for this court is whether this matter should be in court and whether it has been filed within time.  That is the pertinent question.  I find the cause of action happened in 2013 as pleaded in the statement of claim.  It has exceeded six years, and it has exceeded three years as well under the Workers’ Compensation Act and therefore I will dismiss these proceedings and order each party to bear its own costs.

The orders of the court are: (1) These proceedings are dismissed for being time barred.  (2)  Each party shall bear their own costs.

THE ARGUMENTS ON APPEAL

33.	The arguments on appeal differed little from the thrust of the arguments before the primary Judge and can be summarised as follows.

34.	With respect to the first ground of appeal, it is submitted on behalf of the appellant that the primary Judge erred in failing to give weight to the appellant’s submissions to allow the matter to proceed to trial and in dismissing the proceedings as time barred, when there were clear occurrences demonstrating that the cause of action survived, having accrued on 13 June 2019 when the award was eventually paid and not on 27 August 2013 as found by the primary Judge.
  
35.	With respect to the second ground of appeal it is submitted that if this Court finds that the primary Judge erred then pursuant to ss 6 (2) and 16 (c) of the Supreme Court Act this court should my declaration order that the appellant is entitled to the following damages:

a.	Damages for stress and hardship in the sum of K110,000; and 
b.	Unpaid final entitlements in the sum of K10,000; and
c.	Special damages in the sum of K21,150; and
d.	Exemplary damages int he sum of K200,000; and
e.	Interest on the whole of the judgment at 8% computed from the date of injury namely 27 August 2013 to the date of order by this Court; and
f.	Costs of the National Court proceedings to be taxed pursuant to Order 12 of the Supreme Court Rules and costs of the appeal on an indemnity basis.

36.	It is submitted on behalf of the respondent that the respondent complied with its statutory obligations to settle the award.  It is not open to the appellant to claim for debt recovery and damages and expenses arising from the respondent’s asserted failure when the respondent complied with its statutory obligation to settle the award.  Further by virtue of the provisions of s 84(2) of the Act any action independent of the Act, usually a common law claim, must be brought three (3) years from the date when injury was sustained on 27 August 2013.   As, however, the appellant lodged a claim under the Act he cannot pursue a claim independent of the Act, the appellant seeking in effect a common law claim for additional relief arising out of his injuries when an award for compensation under the Act had been determined.  Thus, it is submitted, the primary Judge did not err in her discretion when she found that the cause of action occurred in 2013 and that the claim was time barred both under the Act and the Fraud and Limitations Act and dismissed the proceedings entirely.

37.	Finally, it is submitted on behalf of the respondent that if the appeal is upheld the matter should be remitted to the National Court for rehearing the respondent prejudiced if the Supreme Court was to grant the orders sought by the appellant pursuant to ss 6 (2) and 16 (c) of the Supreme Court Act by reason of the lack of pleading on the particulars of the relief sought, the respondent having no control over the delay on the part of the OWC.

38.	If the appeal is dismissed the respondent seeks its costs on a party/party basis.

CONSIDERATION

39.	The factors we are required to consider when determining an appeal are settled (AI City Guards Ltd v Alu [2024] PGSC 111; SC2650 at [19]). To uphold an appeal the Court must be satisfied that the court below:

a.	Acted upon a wrong principle; or
b.	Gave weight to extraneous or irrelevant maters; or
c.	Failed to take into account relevant considerations; or 
d.	Made a mistake as to the facts,
e.	And even there is no identifiable error, the appellant court can infer such an error if the resulting judgment is “unreasonable or unjust”.
40.	We turn to the first ground of appeal, namely whether the primary Judge erred in the exercise of her discretion in dismissing the proceedings for being time barred.

41.	The nub of the appellant’s argument is that the respondent had a legal duty to act and as long as that duty was undischarged, time did not run, the cause of action only accruing when payment of the award was made on 13 June 2019, the appellant’s cause of action accruing on the date the payment was made to the appellant. It is contended that the whole point of the National Court proceedings was to seek damages occasioned by reason of the pursuit of the compensation claim.

42.	There are two problems with this argument.

43.	 Firstly, the respondent discharged its duty following the handing down of the award by giving effect to decision of the Tribunal. It was notified of the award in January 2019. It then paid the amount of the award directly to the OWC as it was required to do and did so on 13 June 2019.    It was the OWC who then failed to discharge its statutory duty to disperse the funds to the appellant.  The respondent could do no more than it did. 
 
44.	Secondly, at the date the appellant sustained his injuries, he had the option to either seek compensation for his injuries under the Act or make a claim for damages at common law or such other common law remedy for the injuries sustained by him independent of the scheme of the Act.  He chose the former course.

45.	In so doing, he was bound by that choice and its consequences.  Having made a voluntary election that brought him under the scheme of the Act he was required to submit to the procedures under the Act including making a formal application, awaiting the handing down of an award by the Tribunal and payment of the award by the respondent as ordered through the mechanism of the OWC.  

46.	Section 84 of the Act comes under Part VIII which deals with Alternative Remedies. Sub-section (1) makes it plain that the Act does not affect any liability which exists outside of the Act (Placer (PNG) Limited vs Anthony Harold Leviers [2005] PNGSC 43 the Supreme Court (Kapi C.J., Injia D.C.J., Cannings J) at [14]).

47.	If the appellant had chosen to bring a claim other than a claim for workers compensation, either in common law damages arising from his injuries or some other alternative remedy, that is to pursue a claim independent of the Act, then by virtue of the provisions of s 84(2) of the Act he had three (3) years from the date when his injury was sustained to do so (Placer (PNG) Limited vs Anthony Harold Leviers [2005] PNGSC 43 (supra) at [16]). 

48.	It is an undisputed fact that the appellant sustained injury on 27 August 2013. That meant any claim for damages in common law had to be brought within 3 years from the date of injury, which in this case, would have been 3 years from 27 August 2013.  The statutory time limit for such a claim expired on 27 August 2016.

49.	However, once the appellant had lodged an application for an award of compensation under the Act, he was not entitled to damages in respect of his injuries independent of the Act and after he had obtained his award (s 84(4)).  This included damages for loss of pain and suffering and loss of amenities of life as pleaded at [31] of his Statement of Claim, albeit damages packaged and presented at [30] of the Statement of Claim, and in submissions, as claims “in support of the pursuit of his compensation award”.  Having made the election he did, he was only entitled to the award made by the Tribunal, not the other damages claimed, including damages for economic hardship, stress, frustration and pain, claims not found under the Act. 
 
50.	We are of the opinion that the appellant’s claim, as pleaded in his Statement of Claim at [30] and [31] in the National Couret proceedings, was clearly a common law claim for damages, not a claim for compensation under the Act. The Act only refers to workers compensation (Placer (PNG) Limited vs Anthony Harold Leviers (supra) at [12]).

51.	If the employer had failed to pay the award of compensation made under the Act, and if the award was then entered as a judgment debt to be enforced, then the appellant had a right to commence recovery action against the respondent, together with interest and costs.  He would have six (6) years to do so, the time however running from the date on which the cause of action accrued by virtue of the provisions of s16 of the Fraud and Limitations Act 1988, that is, the date he was injured.

52.	In written and oral submissions, learned Counsel for the appellant referred us to two authorities in support of the appellant’s case, namely Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] PGSC 67’ SC1549 and Public Curator of Papua New Guinea v Kara [2014] PGSC 58; SC1420, and in particular, the following passages in determining the time from which the cause of action should run.

53.	In Habolo Building & Maintenance Ltd v Hela Provincial Government the Court (Cannings J, Kassman J, Poole J) said at [3]:

(3) “The occurrence” might be a single occurrence or a series of occurrences, depending on the nature of the cause of action and the facts pleaded in the originating process by which legal proceedings are commenced.

54.	In Public Curator of Papua New Guinea v Kara, the Court (David J, Yagi J & Murray J) said at [86]:

86. 	Two clear principles emerge from these two cases. Firstly, where there is a legal duty to do an act and so long as that duty remained undischarged, time does not run. The second principle is that in cases where there is a successive or ongoing breach, each successive breach constitutes a fresh or new cause of action.

55.	We repeat and rely upon our earlier conclusion, namely, that the respondent had met its legal duty to pay the award on 13 July 2019.  

56.	Further, and relevantly, the authorities relied upon by the appellant involved a different cause of action to the one before us. 
 
57.	In the Public Curator of Papua New Guinea v Kara the cause of action was a claim for damages for maladministration and mismanagement alleging negligence and breach of statutory duty. The appeal before the Court was against two interlocutory judgments of the National Court where that Court had dismissed applications moved by the first appellant seeking, amongst others, orders to dismiss the proceedings on the basis that the respondent inter alia failed to comply with s 5 of the Claims By and Against the State Act by not giving any notice or proper notice of intention to make a claim against the defendants within the statutory time limitation period.  

58.	An issue for determination was whether the claim by the respondent was time barred under Section 16(1) of the Frauds Act.  In determining when the cause of action accrued and that the respondent’s case was not statute barred, the Court concluded that it was clear from the pleadings that what was being alleged was that the damages in respect to the injury sustained by the respondent to the appeal was continuing and hence the right or cause of action was continuing. In effect the respondent was pleading that the damages arising from the negligent acts or omissions continued to run until such time as the first appellant took action or steps to discharge his fiduciary duty as the trustee, administrator or executor of the estate.  That is not the case on the facts before us, the appellant having made an election under the Act to engage in a statutory scheme of compensation arising from workplace injury and the respondent having paid the compensation award which, through no fault by it, was then not dispersed to the appellant by the OWC.

59.	In Habolo & Maintenance Ltd v Hela Provincial Government the cause of action was in trespass, constituted by unlawful entry by the provincial government onto the appellant’s land and erection of a building on it. The primary Judge, in upholding the respondents’ motion for dismissal of the proceedings, ruled that “the occurrence” arose in March 2012, the appellant, obliged to give notice pursuant to Section 5(1) of the Claims By and Against the State Act within six months which it failed to do.  The Supreme Court however, in upholding the appeal, found that having regard to the cause of action and the facts pleaded in the Statement of Claim, a series of occurrences, commencing in 2012 and continuing until May 2015 had occurred, the appellant, by giving notice on 17 November 2015, had given notice within the six-month period after “the occurrence” out of which the claim arose.  Again the case is distinguishable on the facts before us. The cause of action on the facts before us, which was the payment of a compensation award under the Act, did not give rise to a series of occurrences. The award was handed down by the Tribunal.  It was paid by the respondent albeit not transmitted by the OWC.   When that came to the attention of the respondent during the National Court proceedings, the respondent again made payment to the OWC.

60.	In the present case, it is an undisputed fact that the appellant had made a claim for compensation under the Act consequent on the appellant having suffered workplace injuries, the primary Judge making reference to that in her reasons.  The appellant in his Statement of Claim pleaded inter alia the injuries suffered by him, the submission by him of a claim for worker’s compensation under the Act, the processing of the claim by OWC, the handing down of a compensation award by the Tribunal and his various attempts through the OWC to secure payment.

61.	 While the appellant may have had a claim at common law in negligence against the OWC for its failure to disperse the award on a timely basis, he had no claim against the respondent.

62.	While the findings of the primary Judge may have been expressed in a more fulsome way it is important to acknowledge that her reasons were delivered ex tempore at the conclusion of the hearing, and she did not have the benefit of the more fulsome submissions made before us.  What is clear from her reasoning however, is that the primary Judge correctly found that the award payment had been made by the respondent, that it was the OWC who then sat on the cheque until it went stale and that the respondent then repaid the compensation award when that circumstance came to light.

63.	She was also alert to the time limitations, posing the question whether the application was properly before the Court and whether it had been filed in time.  She correctly found the cause of action occurred in 2013 as pleaded in the Statement of Claim.  The cause of action having thus accrued at that time meant that the claim was statute barred, whether categorised as an action independent of the Act which required it to be brought within 3 years of the date of injury or whether a claim for or in support of the payment of the award which required it to be filed within 6 years of the date of injury. On either scenario, the appellant was time barred. 
  
64.	We can thus discern no error in the ruling of the primary Judge based on the legal principles we are required to apply as earlier identified.

65.	In consequence the appeal is dismissed.  Having so concluded there is no need to consider the second ground of appeal.

66.	In our discretion we have concluded that each party should bear their own costs.

Lawyer for the appellant: The Public Solicitor
Lawyer for the respondent: Guard Dog Security Services Ltd In-house Counsel