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Tingiruan v Rabaul Garage Ltd [1978] PNGLR 179 (26 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 179 - Takla Tingiruan v Rabaul Garage Ltd 

[1978] PNGLR 179

N143

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TAKLA TINGIRUAN

V

RABAUL GARAGE LTD

Rabaul

Wilson J

10 May 1978

12 May 1978

26 May 1978

WORKERS’ COMPENSATION - Persons entitled to compensation - “Worker” - Bailee of vehicle plying for hire - Whether taxi driver a worker - Extent of control - Regular nature of work - Relevant considerations.

The defendant company owned and serviced a number of taxis which it bailed to drivers, upon the basis, inter alia, that they were paid entirely by commission, that they reported twice daily, handed over their takings and had mileage checked, that they attained a daily target of gross earnings or became subject to dismissal. One T.T., who had been driving the defendant’s taxis on a regular daily basis for some two years, was killed in a motor vehicle accident and a claim for worker’s compensation was allowed in the District Court. On appeal therefrom:

(1)      In deciding whether a person is a “worker” within the meaning of the Workers’ Compensation Act 1958 not only is the extent of control important in establishing a master and servant relationship, but also the regular (as opposed to casual) nature of the work.

Principles in Doggett v. Waterloo Taxi-Cab Company Limited [1910] UKLawRpKQB 87; [1910] 2 K.B. 336 and Smith v. General Motor Cab Company Limited [1911] UKLawRpAC 15; [1911] A.C. 188 followed and applied.

(2)      In the circumstances, the extent of the control by the appellant company over the deceased by the requirement that he report twice a day, hand over his money and have his mileage checked and by the fixing of a daily target (coupled with the right to dismiss, inter alia, for failure to hand over enough money) and the regularity of employment, justified a finding that the deceased was a “worker” within the meaning of the Workers’ Compensation Act 1958, and the appeal should be dismissed.

Appeal

This was an appeal against an award of worker’s compensation made under the Workers’ Compensation Act 1958 by a District Court magistrate.

Counsel

G. D. Payne, for the appellant company.

M. Ridsdale, for the respondent (applicant).

Cur. adv. vult.

26 May 1978

WILSON J: This is an appeal against an order made by Mr. Theo Bredmeyer, Senior Magistrate sitting in the Rabaul District Court in which the learned magistrate awarded workers’ compensation to the respondent, the legal personal representative of one Anton Topulpulung (deceased), acting on behalf of the dependents of the said deceased. The appellant, Rabaul Garage Ltd., was ordered to pay workers’ compensation, it having been found by the District Court that the deceased was, on the date of the fatal accident as a result of which he died and which gave rise to the claim, viz. 7th December, 1974 a worker within the meaning of the Workers’ Compensation Act 1958.

This appeal raises for consideration the question of whether a taxi-driver operating in the way the deceased did and in the circumstances as existed here may be said to be a worker within the meaning of the Workers’ Compensation Act 1958. It was argued on behalf of the appellant that the relationship between the respondent and the deceased was that of bailor and bailee and that the deceased was not employed under a “contract of service” within the meaning of par. “n” of the definition in s. 5(1) of the Act. The respondent argued that the learned magistrate was right in finding that the relationship was one of employer and employee and that the deceased was employed under a “contract of service”.

The appellant did not seek to challenge any of the primary findings of fact made by the learned magistrate. What the appellant did challenge were the secondary findings or conclusions reached after applying the law to the primary facts.

It will be convenient to set out the primary facts as found by the learned magistrate (and as extracted by me from his reasons for decision).

1.       The deceased, Anton Topulpulung, was a taxi-driver for the appellant, Rabaul Garage Ltd.

2.       At 3 a.m. on 7th December, 1974 the deceased was killed in a head-on collision between the taxi he was driving and a truck on the Kokopo Road.

3.       The deceased was paid entirely by commission.

4.       The deceased received no holidays.

5.       The deceased was subject to instant dismissal.

6.       The deceased was not subject to direction as to routes; he could ply for fares anywhere.

7.       The deceased kept his taxi overnight.

8.       The taxi was owned and serviced by the appellant, Rabaul Garage Ltd.

9.       The deceased was required to report twice a day to the appellant. hand over his money and have his mileage checked.

10.     The drivers of the appellant company, including the deceased, were regular drivers; and they turned up every day.

11.     The deceased had been with the appellant company for two years; another driver, one Barber, had been with the appellant company for 20 years.

12.     Both the deceased and Barber drove their taxis every day of the week.

13.     The deceased was not a casual who arrived each day hoping to get a taxi.

14.     The appellant company deducted tax from the deceased’s commission every fortnight. (It is to be noted that the learned magistrate disregarded this finding for the purposes of reaching his decision).

15.     In 1973 and 1974 the appellant company paid a Christmas bonus to certain of its drivers for good or long service to the company.

16.     The appellant company had a workers’ compensation policy covering its drivers. (It is to be noted that the learned magistrate, quite rightly, disregarded this finding for the purposes of reaching his decision).

17.     The drivers, including the deceased, could be dismissed for misconduct such as for failing to hand over the money or enough money, drunkenness, bad driving or badly damaging a taxi.

18.     There was a target of K30 gross earnings a day for each driver — K10 during the day to be handed over at the afternoon check-in and K20 at night to be handed over at the morning check-in.

19.     The appellant company made each driver pay for damage caused by him and pay fines for any traffic breaches, including breaches relating to the roadworthiness of his taxi which could have been avoided, e.g. smooth tyres.

20.     The deceased was taking paying passengers to a liquor black-market at the time of his death.

The reasons for decision of the learned magistrate include a careful and complete account of the facts, his conclusions from the facts and a consideration of the relevant legal principles. His findings of fact, as I have said, have not been challenged. Having carefully considered the reasons for decision of the learned magistrate, the evidence that was before him, and the cases and authorities to which he referred and which were referred by counsel who argued this appeal before me, I am left in no doubt that the decision the learned magistrate reached was the right one, although I have not reached the same conclusion by the same route. His findings can be, and are, supported.

The learned magistrate was right in distinguishing the facts of the English cases of Doggett v. Waterloo Taxi-Cab Company Limited[cclxxxvii]¹ and Smith v. General Motor Cab Co. Limited[cclxxxviii]². However, I think he should have followed the principles contained in them and not, as he purported to do, declined to follow them.

The extent of the control by the appellant company over the deceased as evidenced by the requirement that he report twice a day, hand over his money and have his mileage checked and by the fixing of a target for daily earnings (coupled with the right in the appellant company to dismiss, inter alia, for failure to hand over enough money) was rightly emphasized by the learned magistrate in distinguishing Doggett’s case[cclxxxix]³. It is to be noted that Cozens-Hardy M.R. contemplated that a master and servant relationship might exist where the proprietor of a taxi exercised more control over his driver than existed in that case. The Master of the Rolls said (at p. 341):

“In the above observations I have dealt only with the facts of this particular case. There may be cases in which the proprietor of a taxi-cab exercises such an amount of control over the driver as to justify the conclusion that the relationship of master and servant exists.”

I agree with the first part of the learned magistrate’s reasons which led me to think that he thought that this is such a case. I think it was such a case.

In Smith v. General Motor Cab Co. Limited[ccxc]⁴ it was held that not only is the extent of control important in establishing a master and servant relationship but also the regular (as opposed to casual) nature of the work. There was not such a level of control in the decision at first instance from which the appeal in that case went first to the Court of Appeal and then to the House of Lords as could lead to the conclusion that a master and servant relationship existed. It was also casual work which the driver was doing, unlike the situation found and emphasized by the learned magistrate in this case. I think that whilst the same principle applies here, Smith’s case[ccxci]⁵ was properly distinguished on the facts by the learned magistrate.

I therefore conclude that the learned magistrate was right in distinguishing these cases on the fact, and he should have followed the common law principles contained therein. As I do not think the learned magistrate was wrong, I find it unnecessary to express any view as to the desirability or otherwise of the common law rules of England prior to Independence Day (as can be extracted from Doggett’s case[ccxcii]⁶ and Smith’s case[ccxciii]⁷) forming part of the underlying law of this country.

I make one or two final observations. The case of Silver Top Taxi Service Pty. Ltd. v. Batey[ccxciv]⁸ is of little assistance in this case, as the section under consideration there was different in its wording from the section here. Furthermore, it would appear that the existence of a special form of agreement between the proprietor and the driver in that case was regarded by the Full Court of the Supreme Court of South Australia as very material.

I think it was unnecessary for the learned magistrate to distinguish Brand v. Openshaw[ccxcv]⁹. What may be said of that case is that there was more control over the taxi driver by the proprietor in that case than in the present. Be that as it may, the same result is properly reached in each case.

I am satisfied that there was therefore ample evidence to support the conclusions reached by the learned magistrate and this appeal will be dismissed.

Appeal dismissed.

Solicitors for the appellant: Warner Shand, Wilson & Associates.

Solicitors for the respondent: M. Kapi, Public Solicitor.

[cclxxxvii][1910] 2 K.B. 336.

[cclxxxviii][1911] A.C. 188.

[cclxxxix][1910] 2 K.B. 336.

[ccxc][1911] A.C. 188.

[ccxci][1911] A.C. 188.

[ccxcii][1910] 2 K.B. 336.

[ccxciii][1911] A.C. 188.

[ccxciv][1939] S.A.S.R. 403.

[ccxcv][1930] WALawRp 19; (1930) 33 W.A.L.R. 1.