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Edwards v Jordan, trading as Jordan Lighting, and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273 (26 July 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 273 - Glen Hamilton Edwards v Ronald Emanuel Jordan, trading as Jordan Lighting, and Dowsett Engineering (New Guinea) Pty Ltd 

[1978] PNGLR 273

N156

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EDWARDS

V

R. E. JORDAN TRADING AS JORDAN LIGHTING AND DOWSETT ENGINEERING (NEW GUINEA) PTY. LTD.

Waigani

Andrew J

26 July 1978

STATUTES - Retrospective operation - Substantive rights affected - Workers’ compensation legislation - Provision requiring common law proceedings to be instituted within 12 months of first payment of compensation - Repeal of provision - Interpretation - Worker must be aware that workers’ compensation payments made before provision applicable - Workers’ Compensation Act 1958, s. 15a(2)[cdlxxviii]¹.

MASTER AND SERVANT - Liability of master for injury to servant - Common law liability - Safe system of work - Duty of employer to devise institute and maintain safe system of work - Relevant issues for determination.

MASTER AND SERVANT - Liability of master for injury to servant - Breach of statutory duty - Ladder Regulations - Strict liability for injury caused by breach - Ladder Regulations, regs. 12 and 15.

EVIDENCE - Admissibility - Hearsay - Res gestae - Admissible as part of res gestae subject to possibility of concoction or fabrication.

DAMAGES - Personal injuries - Particular awards of general damages - Multiple injuries - Comminuted fractures of both heels - Fractures of pelvis and wrist - Permanent disabilities of feet and wrist - Restricted with activities involving climbing or sport - Probable future orthodesis - Male electrician aged 26 (34 at trial and retrained as technical trade teacher) - Award of K20,000 general damages, including K1,500 for future medical expenses and K1,500 for future loss of income.

The plaintiff, a qualified electrician and a married man aged 26 (34 at trial), was employed by the first defendant to do general contracting work in the electrical field. In the course of his employment the plaintiff was required to fit lights to wharf premises at Kieta, which premises were in the course of construction by, inter alia, the second defendant and of whose employees the plaintiff by arrangement sought on occasions labouring assistance. On one such occasion whilst attempting to examine light fittings on the roof girders by use of a ladder placed on a box and held in place by an employee of the second defendant, the ladder slipped by reason of the employee of the second defendant letting go and the plaintiff fell to the floor, suffering injuries.

The date of the accident was the 23rd February, 1970, and the writ of summons commencing the action against the second defendant was issued on 1st June, 1971 and the first defendant was joined as a party on 3rd February, 1975, it thus being alleged that the action was commenced outside the period of twelve months prescribed by s. 15a(2)(b)[cdlxxix]² of the Workers’ Compensation Act 1958. During the period of incapacity and commencing on 7th March, 1970, the first defendant paid into the bank account of the plaintiff ex gratia payments of reduced salary which included as from 28th February, 1970, payments of $23.10 per week workers’ compensation of which, as payments of workers’ compensation, the trial judge found the plaintiff was unaware.

Section 15a(2) was repealed by the Workers’ Compensation (Increased Benefits) Act 1973 effective from 29th November, 1973.

The plaintiff suffered multiple injuries including comminuted fractures of both heels, fractures of the pelvis and right wrist, with residual disabilities of the feet and wrist and the probability of permanent surgical fusion of the joints of the subtalar area of both feet. The plaintiff continued to suffer pain and discomfort particularly with prolonged standing or prolonged writing and was permanently restricted in relation to activities involving climbing ladders or playing sport such as tennis and squash. By the date of trial the plaintiff had retrained as a technical trade teacher and apart from any limitations he might have if thrown on the employment market was not suffering any continuing economic loss.

Held

On the question of jurisdiction:

(1)      Upon the expiration of the limitation period of twelve months in s. 15a(2) of the Workers’ Compensation Act 1958 a worker who had received workers’ compensation was barred from bringing a common law action, and the subsequent repeal of s. 15a(2) did not operate so as to revive a liability which had terminated.

Ciesla v. Bougainville Copper Ltd. [1975] P.N.G.L.R. 185 followed.

(2)      However, s. 15a(2) of the Workers’ Compensation Act 1958 is to be construed in such a way that the worker must be aware that he has received workers’ compensation payments before the section can be invoked against him.

(3)      Accordingly, the plaintiff being unaware that he received workers’ compensation in respect of the accident was not barred by reason of s. 15a of the Workers’ Compensation Act 1958 from bringing his action for damages against the first defendant.

On the question of liability of the first defendant:

(4)      A system of work includes such matters as the layout of the job, the sequence in which the work is to be carried out and the provision of special warnings and notices.

Speed v. Thomas Swift and Co. Ltd. [1943] K.B. 557 followed.

(5)      The employer has a duty to devise, institute and maintain a safe system of work, and this duty is personal to himself and cannot be delegated.

English v. Wilsons & Clyde Coal Co. Ltd. [1936] S.C. 883 followed.

(6)      An action based on an unsafe system of work must establish four separate issues of fact viz:

(i)       That the defendant’s operations involved a risk of injury which was reasonably foreseeable.

(ii)      That there was a reasonably practicable means of obviating such risk.

(iii)     That the plaintiff’s injuries were caused by the risk in question.

(iv)     That the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.

(7)      On the facts there was an unsafe system of work which was a cause of the injuries suffered by the plaintiff.

(8)      Further, the inadequacy of the equipment provided amounted to a failure to observe the provisions of Cll. 12 and 15 of the Ladder Regulations.

(9)      The duty to observe the provisions of the Ladder Regulations is a strict one and once a breach has been established liability for injury caused as a result attaches to the first defendant.

O’Connor v. S. P. Bray Ltd. [1937] HCA 18; (1937) 56 C.L.R. 464 and Australian Iron and Steel Ltd. v. Ryan [1957] HCA 25; (1957) 97 C.L.R. 89 referred to.

(10)    On the facts, negligence was established against the first defendant.

On the question of liability of the second defendant:

(11)    The work of the employee of the second defendant, in assisting to hold the ladder being of such a temporary nature meant that he was, and remained, an employee of the second defendant and could not be said to have become an employee of the first defendant whilst holding the ladder.

Fogarty v. Dowerin Road Board [1935] HCA 60; (1935) 53 C.L.R. 510 referred to.

(12)    A hearsay statement made by a bystander may be admitted as part of the res gestae, subject to a consideration of the possibility of concoction or fabrication.

Ratten v. The Queen [1971] UKPC 23; [1972] A.C. 378 followed.

(13)    Accordingly evidence of conversations heard by the plaintiff shortly after the accident as he lay injured on the ground, indicating that the employee of the second defendant had let go of the ladder to retrieve a fallen pair of pliers, was admissible not only as to the fact of their having been said but as to the truth of the facts they purported to describe.

(14)    On the facts negligence was established against the second defendant.

(15)    Liability between the first defendant and the second defendant should be apportioned equally.

On the question of damages:

(16)    Damages for pain and suffering, loss of enjoyment of life etc. should be assessed at K17,000, future medical expenses at K1,500 and future loss of income at K1,500.

Trial

This was an action for damages for personal injuries suffered by the plaintiff in the course of his employment with the first defendant.

Counsel

J S. Monahan and I. R. Molloy, for the plaintiff.

G. D. Payne, for the first defendant.

R. H. B. Wood, for the second defendant.

Cur. adv. vult.

26 July 1978

ANDREW J: Glen Hamilton Edwards, the plaintiff in this action, seeks to recover damages from Ronald Emmanuel Jordan, trading as Jordan Lighting, and from Dowsett Engineering (New Guinea) Pty. Ltd. for personal injuries sustained on 23rd February, 1970 in the course of his employment. The incorporation of the second defendant and the employment of the plaintiff as an electrician by the first defendant are admitted on the pleadings. It is also admitted that the plaintiff was employed to do electrical work on wharf facilities being built on a site at Kieta and that the second defendant was the principal contractor for the construction of this site. The first defendant was a sub-contractor of the second defendant with respect to electrical work and at all material times the second defendant was the occupier of the said site.

The following facts have been established to my satisfaction.

The plaintiff is a married man now aged 34. Following an apprenticeship with an electrical firm in Geelong, Australia, he obtained an “A” Grade Electrical Tradesman’s Certificate in January 1966. In March 1966 he came to Port Moresby and obtained employment with an electrical firm doing general electrical contracting work. In the same year he was transferred to Rabaul with the same employer. In mid 1968 he commenced employment with the first named defendant in Rabaul. He was engaged to do general contracting work always in the electrical field. His duties included the supervision of labourers and other workers especially in places such as Kavieng and Kimbe. The work was mainly a mixture of private and public sub-contract work. He would normally be accompanied on these jobs with one or two other tradesmen with some experience.

His employer tendered successfully for certain electrical work at the site of the wharf at Kieta. This work included general lighting on buildings and streets and security lighting. The main site contractors were the second defendant, Dowsett Engineering (New Guinea) Pty. Ltd. and the total work complex included the construction of two large warehouses, an office complex, a guard house, an open storage shed, stevedores’ messing quarters and an accommodation block. The chief foreman on the site for Dowsett Engineering was one Mr. Tom Saunter.

Prior to tendering for the electrical work the plaintiff’s employer, Mr. Jordan, had visited the site. After the plaintiff and Mr. Jordan had studied plans of the site he, Mr. Jordan, sent various equipment from Rabaul to Kieta. This included electrical equipment and two extension ladders and two pairs of steps. One ladder was capable of extension to some 22 feet and the other to 28 feet or 30 feet. The plaintiff was the foreman for Jordan Lighting on this job. He first visited the site with another tradesman whose name was Michael. At this time the basic structure of both warehouses had been erected but there was no roof or sides or doors. He arranged enough work for the man Michael, to last two or three weeks and then returned to Rabaul. Whilst in Rabaul he was advised that Michael had departed and so he returned to the site with another tradesman. I should add that of the two warehouses one was larger than the other. He then carried out further work and both men returned to Rabaul. He made several trips to the site thereafter and installed the electrical equipment to the two warehouses. At this stage the roofs of both warehouses had not been installed. The lighting in the roof areas was installed by using the ladders. This could be done with safety as the roof, not being affixed, the ladder could extend through the roof space and be tied at the top to the girder. The ladder would be supported by various persons whilst being mounted so that the tie could be put on the top. On each visit to the site the plaintiff had only one fellow Jordan Lighting employee with him.

On the day the plaintiff was injured the roofing in both warehouses was almost complete. The roofing was known as “Brownbuilt” and was a flush fitting type. Being of this type it was impossible to make a tie between the ladder and the girder. During the morning the plaintiff had been working at ground level checking various lighting installations in both warehouses. During the afternoon, whilst in the smaller warehouse, he noticed that about six or seven electrical fittings were faulty. He had with him the smaller of the two ladders. At the same time his fellow tradesman was doing similar work in the larger warehouse and he had the larger ladder.

Inside the smaller warehouse were bags of copra and other crates. Some of these prevented access to the light fittings by ladder but were able to be used as a platform. Three fittings remained on the roof girders which could only be checked by use of the ladder. On the first two the plaintiff was able to use the extension ladder from ground level. As I have indicated already, he was unable to tie the ladder at its top. There was only six inches of girder that could be used as a support for the top of the ladder. The ladder had no safety shoes or other safety apparatus. It was now approximately 4.30 p.m. Inside the warehouse were some labourers employed by Dowsett Engineering and they were affixing doors to the warehouse. The plaintiff had, earlier that afternoon, approached the Dowsett Engineering foreman, Mr. T. Saunter, and requested the assistance of one of Dowsett Engineering’s labourers to hold the ladder. He demonstrated to the labourer how he wanted the ladder held.

I should mention at this stage that when the plaintiff was required to do heavier work, for say one or two hours, it had been agreed that Dowsett’s would loan some of their site workmen to assist. This was only for work of a temporary nature and no charge was made. This was the situation when the plaintiff requested the assistance of a labourer to hold the ladder. During the course of the trial I ruled that this labourer was, at the time of the accident, an employee of Dowsett Engineering. I shall advert to this ruling later in this judgment.

The plaintiff then approached the third and last roof girder with the faulty light fitting. The ladder was not of sufficient length. He obtained one of the cargo boxes. It was approximately four feet square and two feet deep. It was a wooden framed box and it was fairly heavy. With the assistance of the labourer he dragged it to a spot underneath the girder. He tested it for strength by standing on it and bouncing on it. The ladder was then placed against the girder at the top. He gave the labourer instructions to hold the base of the ladder fast. Two or three rungs from the bottom he again tested the strength of the box by again bouncing on the ladder. He then proceeded to the top.

As he approached the top of the ladder a pair of pliers which he had in a pocket, slipped out and fell to the floor. He had no need of the pliers at this stage as the first job to be done was to test if the light tube was seated correctly and no tools would have been required for this. Then, if the tube was seated correctly and still not working, it would have to be brought to ground level as there was no ledge upon which to place it. He did not request the person holding the ladder to pick up the pliers. Upon reaching the top of the ladder his head was at the level of the roof. He steadied himself with one hand on the girder whilst proceeding to adjust the tube with the other. At this stage the ladder suddenly slipped from the girder and he fell to the ground. Whilst lying on the ground, injured and in a stunned condition, he heard a conversation between certain employees of Dowsett. I shall deal later with the contents and the admissibility of this conversation.

The plaintiff, in seeking to establish liability in both defendants, firstly appeared to rely upon breaches by the first defendant of its common law duty to him as one of its employees. He also relies upon certain breaches of statutory duty. Thus the pleadings allege breaches of ss. 4(a), 12(1), 12(2), 13(a) and (b) and 15 of the Industrial Safety, Health and Welfare Act 1961, as against both defendants. I was also advised that s. 29 of that Act was relied upon. During the course of the trial I gave leave to the plaintiff to amend his pleadings, by alleging breaches of the orders made under the Industrial Safely, Health and Welfare Act 1961. These orders are contained in Government Gazette No. 26 of 1967 and Part III thereof relates to ladders. As a matter of convenience I shall refer to these as the ladder regulations. The plaintiff alleges breaches of clauses 12, 13, 15 and 18 thereof. The doctrine res ipsa loquiter was also raised although not pleaded, However, it is not necessary that it should be pleaded before a plaintiff may rely on it. See Bennett v. Chemical Construction (G.B.) Ltd.[cdlxxx]³ and Phipson on Evidence 12th ed. par. 115. Both defendants deny that they were guilty of negligence, and both alleged that the plaintiff was barred from bringing his claim for damages for that he failed to commence his action within twelve months after the plaintiff first received workers’ compensation for the injuries alleged, and relied upon the provisions of s. 15a of the Workers’ Compensation Act. Both defendants also sought to amend their defences during the course of the trial to include contributory negligence, but I ruled against this in the exercise of my discretion.

The plaintiff, in his statement of claim, alleges in a number of paragraphs various acts and omissions as constituting breaches of duty owed to him and also relies upon the statutory breaches referred to. What in substance the plaintiff says is that the first defendant failed to provide a safe system of work and failed to provide suitable equipment for the carrying out of his employment, and that the second defendant supplied an incompetent labourer who failed to support the ladder and who carelessly and/or negligently stopped supporting the ladder. As I have already stated, the doctrine of res ipsa loquiter is also raised.

A number of the findings which I am now called upon to make depend upon the view I take of the plaintiff’s evidence and I therefore set this out. I was impressed with his evidence and I accept him entirely as a witness of the truth. I have observed closely his demeanour in the witness box. He gave his evidence fairly and without exaggeration. I am reinforced in the favourable opinion that I have gained of him by the evidence of Mr. Jordan that he was his best employee and by his conduct since the accident in largely overcoming his disabilities. Indeed it was conceded by counsel that he had done everything to mitigate his damages, and it was clear that in adversity, by hard work and study, he has managed to reach a position where there is now no continuing future loss of income.

Whether the plaintiff is barred from bringing the action by reason of s. 15a of the Workers’ Compensation Act 1958.

Both defendants have on the pleadings alleged that the plaintiff is barred from bringing his claim for damages for that he failed to commence his action within twelve months after he first received Workers’ Compensation payments, as provided by s. 15a of the Workers’ Compensation Act. Section 15a was introduced into that Act in 1959.

The section was in the following terms:

“15a (1)        Except as expressly provided in this Ordinance nothing in this Ordinance shall affect any liability which exists independently of this Ordinance.

(2)      Subject to this section, where a worker receives compensation under this Ordinance in respect of an accident, he shall not bring an action against the employer for damages in respect of that accident, unless:

(a)      he gives to the employer, within six months after he receives that compensation or the first payment of that compensation if more than one payment is made, written notice of his intention to bring that action; and

(b)      he commences that action within twelve months after he receives that compensation or that first payment.

(3)      Failure to give notice in accordance with the provisions of the last preceding subsection shall not be a bar to the maintenance of an action referred to in that subsection, if it is found in the action that the failure was occasioned by mistake, absence from the Territory or other reasonable cause.

...”

However, s. 15a was amended by the Workers’ Compensation (Increased Benefits) Act 1973 by the omission of ss. (2) and (3). The amending Act came into operation on 29th November, 1973.

Evidence has been adduced at the trial that the plaintiff received from the first defendant payments of $23.10 per week as workers’ compensation payments for the period 28th February, 1970 to 6th May, 1970. The first payment was made on 7th March, 1970.

The writ of summons commencing this action was issued as against the second defendant on 21st June, 1971. The first defendant did not become a party to the action until a writ of summons was served on 3rd February, 1975. Thus it is alleged that the action was commenced outside the period of twelve months prescribed by s. 15a(2) (b) of the Workers’ Compensation Act.

In the course of the trial it was quite apparent that the plaintiff was an employee of the first defendant and thus the question of whether the plaintiff was so barred by the section was not pursued by the second defendant.

All counsel agreed, in my view quite properly, that the law was correctly stated in Ciesla v. Bougainville Copper Ltd.[cdlxxxi]⁴ per Williams J that where the time limitation had passed before the action was commenced that the defendant then acquired an immunity from liability. The subsequent repeal of the statute creating the time limitation did not operate so as to revive a liability which had been terminated.

A considerable amount of evidence has been called on the trial as to whether the plaintiff did, in fact, receive payments of workers’ compensation and that, if he did, whether he was aware that any moneys received were such payments of workers’ compensation.

After the accident the plaintiff was transferred to Nonga Base Hospital. He remained there until 25th March, 1970 and he was absent from work for approximately eight weeks. On the week ending after the accident he received his full pay of $88.00 per week. From 28th February, 1970 to 17th April, 1970 he received $50.00 per week. From 17th April to 6th May, 1970 he received $70.00 per week. Thereafter he was on full pay.

The first defendant, Mr. Jordan, has deposed to visiting the plaintiff at Nonga Base Hospital. He had approached this insurance company following the accident and ascertained that the plaintiff was entitled to workers’ compensation payments in the sum of $23.10 per week during the period of incapacity. He advised the plaintiff that he was entitled to workers’ compensation and that his salary would be made up by him to $50.00 per week. He did not explain the procedure of payment. He did, however, explain that he would voluntarily supplement the workers’ compensation payments. The evidence of this was objected to by counsel for the plaintiff on the basis that the contents of this conversation were never put to the plaintiff in cross-examination. It had been put to the plaintiff that he had had a conversation with Mr. Jordan at the Nonga Base Hospital about workers’ compensation entitlements but he replied that he could not recall any such conversation. The objection to the admissibility of this evidence was on the basis that the contents of the alleged conversation had not been put to the plaintiff and that therefore evidence could not now be led of the conversation. See The State v. Ogadi Minjipa[cdlxxxii]⁵, Browne v. Dunn[cdlxxxiii]⁶ (reported in Cockle’s Cases and Statutes on Evidence, 11th ed. at p. 265) and The State v. Saka Varimo[cdlxxxiv]⁷. Similarly evidence of a like conversation between the plaintiff and Miss Fiona Jordan was led and objected to on the same basis. I admitted this evidence on the trial but ruled that the question of the weight which it could be given was one for my ultimate judgment.

On all of the evidence before me, I find that the plaintiff did, in fact, receive payments of workers’ compensation and that the first payment was on 7th March, 1970. I accept that Mr. Jordan and Miss Jordan had discussions with the plaintiff as to what his entitlements may have been. I note, however, that they both quite reasonably say that these conversations were a long time ago and that they cannot clearly recall them.

The plaintiff’s evidence is quite clear that he cannot recall these conversations. He had never had any occasion before to make a workers’ compensation claim and he knew little or nothing about the subject. He thought that workers’ compensation meant you received full pay when you were incapacitated. It was the fact that he had not received full pay that eventually caused him to consult a solicitor about his legal entitlements. His salary was paid directly into his bank account. Thus he did not personally receive any workers’ compensation payments. I have already indicated that I accept the plaintiff as a truthful witness and I find therefore that he was unaware that he had received workers’ compensation payments.

The plaintiff has thus satisfied me that the failure to give the notice required to be given by s. 15a(2) (a) was occasioned by mistake and other reasonable cause: s. 15a(3).

The first defendant submits, however, that the relief given by s. 15a(3) for failure to give notice was not intended to provide that any relief should be given for failure to commence the action within twelve months and that the unequivocal words of s. 15a(2) (b) cannot be compromised. The plaintiff, he submits, is seeking to get s. 15a(3) relief in respect of a s. 15a(2) (b) omission. I am satisfied that workers’ compensation payments were in effect received by the plaintiff and that the action for damages against the first defendant was commenced outside the period of twelve months.

The question remains, however, whether the plaintiff, who was unaware that he was receiving such payments, should be so penalised for such failure. As already indicated s. 15a was amended by the Workers’ Compensation (Increased Benefits) Act 1973 by the omission of sub-ss. (2) and (3). The amending Act came into operation on 29th November, 1973. Section 15a was introduced into the Act in 1959 and it is necessary for me to consider the intention of the legislature at that time. It seems to me that the purpose of the legislation was that there should be a time limitation on injured workers so that an employer who had paid compensation benefits should know within a reasonable time whether an action for damages was to be brought in respect of that injury.

In this case the plaintiff was in effect receiving ex gratia payments, for the employer was paying wages over and above the workers’ compensation entitlements in a lump sum into the plaintiff’s bank account. The employer would recover the compensation payments, that is $23.10 per week, at a later point of time from his insurers.

In my view s. 15a(2) envisages a situation where the worker is aware that he has received compensation payments for it then requires that he give notice once having received his compensation and following this the section requires that the plaintiff then commence his action within twelve months. In my view the wording of the section itself implies that the injured person be aware that he has received compensation before the section could be invoked against him. One could well imagine many situations where plaintiffs could be caught by the provisions of this section without any knowledge on their part of payments made in accordance with it. To suggest that a plaintiff who is ignorant of the requirements of the section because he was unacquainted with the fact that he had received compensation would, in my view, be contrary to the intention of the legislature and inappropriate to the circumstances of Papua New Guinea.

I thus find that the plaintiff is not barred, by reason of s. 15a of the Workers’ Compensation Act, from bringing his action for damages against the first defendant.

SAFE SYSTEM OF WORK AND ADEQUACY OF EQUIPMENT SUPPLIED

The expression “system of work” means the ordinary or usual method of carrying out the operation in which the employee is engaged. It includes or may include, according to the circumstances, such matters as the physical lay-out of the job — the setting of the stage, so to speak — the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions: Speed v. Thomas Swift and Co. Ltd.[cdlxxxv]⁸.

What constitutes a system of work will vary from case to case. Speaking generally, it includes the arrangement or the organisation of the operation or process, the sequence in which the various steps in the operation are carried out, the co-ordination of different parts of the operation, the methods of using particular equipment or machines or carrying out particular processes, the supply of suitable appliances and adequate manpower, and the provision of proper instructions, warnings and notices before, during or after the operation or process in question. The system of work is, therefore, the usual method of carrying out the operation in which the employee is engaged. It is the method of doing the work which, expressly or impliedly, the employer must be taken to have approved: English v. Wilsons & Clyde Coal Co. Ltd.[cdlxxxvi]⁹.

The duty of the employer is a single undivided duty to take reasonable care for the safety of his employees in all the circumstances of the case. To charge an employer with failure to provide a safe system of work does no more than allege that the breach of duty sued upon has occurred in relation to the lay-out or organisation of the work to be performed. An alternative formulation of the duty is that the employer is under a duty so as to carry on his operation as not to subject those employed by him to unnecessary risk. This phrase was originally employed by Lord Herschell in Smith v. Baker & Sons[cdlxxxvii]¹⁰ and has been many times approved and adopted. The phrase “unnecessary risk of injury” should be taken as synonymous with a risk of injury which could have been obviated by the exercise of reasonable care: Morris v. West Hartlepool Steam Navigation Co. Ltd.[cdlxxxviii]¹¹.

The duty of the employer to provide a safe system of work is a compendious way of saying that an employer may be held liable for breach of duty to an injured employee in respect of the system of work. There is no absolute obligation on employers to devise a system for their employees which will be free of risk. The only duty is to take reasonable steps to provide a system which is reasonably safe having regard to the dangers necessarily inherent in the operation: General Cleaning Contractors Ltd. v. Christmas[cdlxxxix]¹². A case based on an unsafe system of work must establish four separate issues of fact:

1.       That the defendant’s operations involved a risk of injury which was reasonably foreseeable.

2.       That there was a reasonably practicable means of obviating such risk.

3.       That the plaintiff’s injuries were caused by the risk in question.

4.       That the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.

In alleging that the first defendant failed to provide a safe system of work the plaintiff points to the failure to provide a safe place of work, safe equipment and competent fellow employees. Whilst the failure to provide safe equipment is alleged as a separate head of liability it is in my view clearly an ingredient of the allegation that the system of work was unsafe. He submits that the operation was in itself inherently dangerous. At the time of examining the plans and forwarding the equipment from Rabaul following the inspection of the site it must have been reasonably foreseeable that when the roof was attached the ladder would be unable to be tied at its top and would have only a small section of girder to rest on. Scaffolding ladders must have been something which should have been within the defendant’s contemplation. If he was unable to provide this then he should not have tendered for the job. Further he submits that such equipment was a reasonable alternative as it was potentially available. Clearly the ladders were inadequate for the job and were dangerous in the situation where the contract included the total electrical installations to be installed, such work extending over many weeks. Further no shoes or other safety device were supplied for the base of the ladder. In addition no assistants were provided to help support the ladder and there was only a casual arrangement whereby the employees of the second defendant could be borrowed.

In summary he submits that the unsafe system of work included:

1.       Requiring the plaintiff to work at considerable height, well knowing he might be required to do so when unable to properly secure the ladder at either the top or the bottom.

2.       Failing to provide or fix safety shoes to the ladder.

3.       Failing to provide scaffolding available for hire and acknowledged as being safer.

4.       Failing to ensure as best he could, that the plaintiff was supplied with competent workmen, fellow employees or otherwise, to assist him in the execution of dangerous work.

The defendant says that a safe system of work was devised, instituted and maintained. That he had provided all the equipment he could reasonably be expected to provide and that all measures to minimise accident and risk and to prevent injury to the plaintiff, had been taken. Further that the plaintiff was capable of meeting any additional problems caused by the completion of the roof with existing equipment. Finally, that the sole cause of the accident was the negligence of the labourer who was holding the ladder and he was an employee of the second defendant.

The plaintiff relies also upon breaches of statutory duty which have been earlier referred to. In the pleadings as they now stand he alleges breaches of clauses 12, 13, 15 and 18 of the Ladder Regulations.

Those regulations declare the construction of buildings and other civil engineering works to be a specially hazardous occupation. Clauses 12, 13, 15 and 18 are in the following terms:

“12(1) Any person who directly or by his agents or servants carries out any building work shall provide and maintain in place during working hours such ladders as are necessary to provide safe means of access to all floor levels and to all places where any person has to work until such time as temporary or permanent stairways are completed and are available as such safe means of access.

(2)      Ladders used for the purposes set out in Subclause (1) of this clause shall rise to a height of at least three feet six inches above the place of landing for persons using those ladders.

(3)      A ladder used as a place from which a person has to work shall rise to a height of at least three feet six inches above the highest rung to be reached by the feet of the person working on the ladder or if that is impracticable then to the greatest possible height.

13.     Ladders shall be so placed that:

(a)      each side rail or stile has a level and firm footing and the top rest for each rail or stile is level and reasonably rigid and of adequate strength to support the maximum applied load; and

(b)      the side rails or stiles are not supported by boxes, house bricks or other loose packing.

...

15.     Every ladder shall so far as practicable be securely fixed so that it cannot move either from the top or from its bottom points of rest, or if it cannot be so securely fixed it shall where practicable be securely fixed at the base, or if fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent the ladder slipping.

...

18(1)  A landing place at least twenty-seven inches in width and forty-eight inches in length shall be provided at the head and base of every ladder used for the purposes set forth in Clause 12 of this Order.

(2)      If any person is liable to fall a distance of more than six feet from a landing specified in Subclause (1) of this clause then that landing shall be fenced in a manner set forth in Clause 6 of this Order.

(3)      A ladder or run of ladders rising a vertical distance of twenty feet or over shall be provided with an intermediate landing place or places so that the vertical distance between any two successive landing places shall not exceed twenty feet.”

The defendant submits that these regulations do not impose any statutory duty upon an employer. However, in my view, there is no doubt that breaches of these regulations give rise to a private right of action: O’Connor v. S. P. Bray Ltd.[cdxc]¹³; Australian Iron and Steel Ltd. v. Ryan[cdxci]¹⁴. They are regulations which impose duties intended to safeguard the safety of persons engaged in building work and they are regulations which require specific precautions to be taken which if not observed may cause such persons to suffer injury. They confer civil remedies on persons injured by the breach thereof. The duty to observe these provisions is a strict one and once a breach has been established liability for injury caused as a result attaches to the defendant.

I am satisfied that negligence on the part of the defendant has been established. In my view the plaintiff was involved in a hazardous occupation and engaged in inherently dangerous work. The nature of the work at such a height involved a risk of injury which was, to my mind, reasonably foreseeable and the defendant’s system of work did not guard against this. There was a reasonably practicable means of obviating the risk by providing scaffolding ladders. In short, the equipment supplied was inadequate to the task especially as the ladder was unable to be tied at its top and as there was only six inches of girder upon which it could be rested. I consider that the tasks which the plaintiff was called upon to perform extended over several weeks and that in these circumstances the equipment was inadequate. I am satisfied that there was an unsafe system of work and that this was a cause of the injuries suffered. I am also satisfied that the inadequacy of the equipment provided amounts to a failure to observe the provisions of the Ladder Regulations for there has been a failure to provide “ladders as are necessary to provide safe means of access”. Clause 15 requires, where practical, a securing of the ladder at its top and bottom. No equipment was provided whereby the ladder could be secured at its base and the ladder could not be secured at the top. In my view this amounts to a breach of cl. 15. Nor, in my view, can the defendant claim that the plaintiff was capable of meeting additional problems caused by the completion of the roof. The defendant cannot argue that the plaintiff is not entitled to rely upon breaches of the regulations because he was the person charged with the responsibility on behalf of the defendant to ensure they were carried out, for the defendant must show that such duty is one cast by operation of law: Darling Island Stevedoring and Lighterage Co. Ltd. v. Long[cdxcii]¹⁵; Imperial Chemical Industries Ltd. v. Shatwell[cdxciii]¹⁶.

On all of the evidence before me I find that negligence has been established as against the first defendant.

LIABILITY OF THE SECOND DEFENDANT

The liability of the second defendant turns on the admissibility of evidence of conversations said to have been heard by the plaintiff shortly after the accident as he lay injured on the ground. During the course of the trial objection was taken to the admission in evidence of these conversations on the grounds that they were hearsay and that it was not clear if they were statements about what somebody had seen or whether they were merely an interpretation of a conversation being conducted near the plaintiff. I ruled that it was necessary to hear evidence of the contents of the conversations before I could properly rule on their admissibility. Both conversations related to the conduct of the labourer who had been holding the ladder. The question arose on the trial whether he could be said to be an employee of the first or the second defendant at the time he was engaged in holding the ladder. There was evidence from the plaintiff that this labourer was an employee of the second defendant and the plaintiff had approached Mr. Saunter, the foreman of the second defendant company, requesting the assistance of the labourer to hold the ladder. This was granted. I ruled that the work of the labourer, being of such a temporary nature, meant that he was and remained an employee of the second defendant and could not be said to have become an employee of the first defendant whilst holding the ladder. See Fogarty v. Dowerin Road Board[cdxciv]¹⁷ where the services of a worker had been “lent” by a foreman and even where his services were to be paid by the borrower he nevertheless remained an employee of his original employer. The “loan” of an employee’s services is a popular rather than a legal concept.

The plaintiff deposed to hearing the following conversation as he was lying injured on the ground. There was a group discussion between the labourer who had been holding the ladder and other employees of Dowsett’s who had been working nearby at the time affixing doors to the warehouse. The conversation involved the falling of the ladder and was in English and Pidgin-English. The labourers were remonstrating with the ladder holder for having let go the ladder. There were a number of people speaking but mainly a Dowsett carpenter who had a good command of English. He said to the plaintiff “The labourer left the ladder to retrieve the fallen pliers from the ground and upon him letting go it slipped”. Following this conversation and the heated conversation between these employees and the labourer who had been holding the ladder, he, the labourer, ran away and has not been located since. Within one or two minutes of these events Mr. Saunter, the foreman, arrived on the scene. The carpenter told Mr. Saunter that the labourer had let go the ladder to retrieve the pliers and the other employees told Mr. Saunter the same story. The plaintiff submits that this evidence is admissible as part of the res gestae.

The res gestae principle was restated by the Privy Council in 1971 in Ratten v. The Queen[cdxcv]¹⁸. Ratten’s case has been followed by the Full Court in Prosecutor’s Request No. 1 of 1974[cdxcvi]¹⁹ and in The State v. Willie Orki Briza[cdxcvii]²⁰ per Prentice Dep. C.J (as he then was). A study of Ratten’s case makes it clear that a “hearsay” statement made by a by-stander may be admissible subject to a consideration of the possibility of concoction or fabrication.

“A hearsay statement is made either by the victim of an attack or by a bystander, indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. A classical instance of this is the much debated case of Reg. v. Bedingfield (1879) 14 Cox C.C. 341, and there are other instances of its application in reported cases. These tend to apply different standards, and some of them carry less than conviction. The reason, why this is so, is that concentration tends to be focused upon the opaque or at least imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been victims of assault or accident. The first matter goes to weight. The person testifying to the words used is liable to cross-examination: the accused person (as he could not at the time when earlier reported cases were decided) can give his own account if different. There is no such difference in kind or substance between evidence of what was said and evidence of what was done (for example between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.”

In the present case the words used were in my view spontaneous. They were spoken before Mr. Saunter appeared at the scene within one to one and a half minutes of the accident. To my mind this discounts the possibility of concoction or fabrication. I regard the words used as admissible. In accordance with Ratten’s case the words used, though hearsay, are admissible not only as to the fact of their having been said but as to the truth of the facts they purport to describe. The possibility of concoction is further discounted by the fact that the labourer upon being charged by his fellow employees with having let go the ladder proceeded to run away. Further, the same description of what happened was then related to Mr. Saunter, a person in a position of authority and this to my mind gives added weight to its truth.

I am satisfied that this evidence establishes to the necessary standard of proof that the labourer let go the ladder and that for that reason I am satisfied that negligence has been established against the second defendant.

DAMAGES

The question now arises as to the amount of damages to which the plaintiff is entitled.

The following facts have been proved to my satisfaction.

Following the accident on 23rd February, 1970 the plaintiff was admitted to the Arawa Hospital. He was in a stunned condition and he was in a great deal of pain from both lower legs and feet, wrists and pelvic region. He was placed under general anaesthetic and X-rayed. Plaster was applied to both lower legs and right forearm and wrist. Within two days he was transferred by air to Nonga Base Hospital, Rabaul. He remained in considerable pain. A week later the plaster was removed from the feet due to the pain. They were black and swollen from feet to the calf area. There was continued wrist and pelvic pain. It was extremely painful to sit or lie on his back.

In all the plaintiff remained in hospital until about 26th March, 1970. He suffered five separate fractures, namely each heel bone, the pelvis and two in the right wrist. He was bed-ridden throughout the period in hospital apart from the last day when he was allowed into a wheel chair on a periodic basis. He was given a conditional discharge from hospital on the basis that he remained in bed for complete rest. Thereafter his symptoms improved from being painful at first to gradually improving. He returned to work on light duties about 19th April, 1970. This involved mostly supervisory work requiring little footwork. His pelvis remained tender and he felt about 90% mobility in his feet which were still painful. He had a limp which gradually improved. He was back on full employment by 17th May, 1970 but he had limited movement in his feet and wrist. He avoided ladder and step work and remaining on his feet for long periods of time. He remained in the employ of Jordan Electrical until October 1970 when he returned to Victoria. He felt he faced an uncertain future as he was limited in the amount of ladder work he could do and this was a requirement of nearly all electrical contract work. His first child was born in early 1971 and he then decided to remain in Australia. He obtained work with an electrical firm named Watts for a period of three months. No ladder work or time on feet was required. He then obtained employment with a firm named Colemax as a site foreman with supervisory duties on a contract job. He commuted from Geelong to Altona. This position lasted until November 1972 when the contract expired. Again there was no ladder work required. He still experienced pain and his wrist remained stiff. He then commenced work with the Ford Motor Company. The reason for taking this job was that it required no ladder work. The salary was approximately $1,000 per annum less than he would have been earning as an electrical contractor. However by doing night shift work he was able to make up this difference. Whilst working at Colemax and assessing his disability he decided that he would be better off undertaking further studies in his field thus enabling him to enter the teaching side. In 1972 he commenced a course at an Institute of Technology and obtained a Certificate in Industrial Electronics by the end of 1973. He commenced as a trade inspector in January 1974 at the Footscray Institute of Technology where he taught for three days of the week and attended Teachers’ College on the other days. By the end of 1975 he had completed all training and obtained a teacher position. He now teaches at Shepparton Technological College in Electrical Trade and Industrial Electronics.

Thus, due to his injuries the plaintiff changed the direction of his life and has coped well with his injuries. In my view he has done everything to mitigate his damages. He still has symptoms in both feet. His work requires him to be on his feet 50% of the time and at the end of a day he experiences pain in the feet and also in the wrist as he is required to demonstrate on a blackboard. He experiences pain in the feet in the morning until exercise tends to free them.

His nett salary is now $360 per fortnight or $180 per week. That approximates to about what a contract electrical worker could expect to earn or, in other words, what he would have been earning had he not changed his direction in life.

He does not claim a future loss of income apart from his limitation on the open market as an electrical contractor. However by undergoing the teacher training course he dropped in income but was aware that he would catch up when the course was completed. He believes that between 1974 and January 1978 there was a lessening gap from about $20 a week downwards. Thus in his final twelve months with the Ford Motor Company he earned approximately $10,200 gross. In 1974, his first year with the Education Department, he earned approximately $7,200 gross. Thereafter he earned $8,700 gross per year and then in 1977 he earned $10,500 gross per year. I have already indicated that I accept the plaintiff as a witness of truth and I therefore accept these figures. At the time of the accident his income was $88 nett per week.

Mr. Normenson’s medical report of 21st August, 1970 indicated that the plaintiff suffered bilateral fractures of the heel bones or os calci. These bones were comminuted, that is to say, fractured in several places, and were somewhat deformed. The lesion in the left lower limb was worse than the right, more deformity being present. In addition there was a slightly displaced colles fracture of the distal right forearm and a fracture of the scaphoid bone in the right wrist. Also a crack fracture of the right inferior pubic ramus (one of the pelvic bones in front of the right hip joint). Mr. Normenson went on to say that no permanent ill effects were expected from the injuries to the patient’s right upper limb and pelvis but that disability in both feet was inevitable, and “it is generally considered that, with fractures of this type in the heel bones, some deformity must be accepted ... It seems likely that the degree of stiffness of the feet will result in a permanent disability sufficient to restrict activities on ladders and scaffolding. This could make his continued employment as an electrician difficult or impossible.”

The medical reports of Mr. Hillier, of 24th May, 1978, of Mr. Reid of 3rd May, 1978 and Mr. Grant of 6th February, 1976 indicate that the plaintiff will gradually experience a worsening of symptoms in his feet. Thus Mr. Hillier states:

“However, I believe the os calces injuries are very significant, although at present Mr. Edwards is coping well. The altered bone structure represents significant alteration to joint surfaces in the small, complex joints of the subtalar area. Incongruity leads almost inevitably to degenerative osteo-arthritis and it must be anticipated that Mr. Edwards has 30 to 40 more years of weight-bearing on these joints to produce painful osteoarthritis. This would lead to increasing stiffness and discomfort which would probably require permanent surgical fusion of these joints (orthodesis). These procedures would involve six to eight weeks of plaster immobilization following surgery, and a further six to eight weeks of rehabilitation before being relatively mobile again. Consequently, I would assess the composite disability of these heel injuries at 35%.”

Mr. Reid states:

“Both heels are developing calcaneal spurs which, if they progress, will require their surgical removal. The osteo-arthritis of the subtalar joint is also likely to progress and also may require active surgical treatment. I feel that adequate provision should be made to Mr. Edwards for the possibility of such operations.”

Before the accident the plaintiff played squash and tennis and has not been able to play them since.

He has suffered injuries which have left him with permanent pain and restriction. He has been deprived of following the practise of his trade for which he is qualified. His symptoms will deteriorate in the future with very much increased symptoms in his later life, such increase being of a gradual nature. It appears that he will have to undergo surgery in at least three areas involving further pain and upset to life. His enjoyment of life and of its amenities has been interfered with.

In my opinion the effect of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[cdxcviii]²¹ is that an Australian expatriate is entitled in an assessment of damages to an amount which is fair and reasonable for the injuries received and the disabilities caused. It is to be proportionate to the situation of the plaintiff including his financial or economic situation, and the assessment is to be made without regard to the economic or financial conditions in Papua New Guinea either generally or in relation to any category of its citizens.

In all these circumstances I assess general damages at K17,000.

Mr. Reid’s report of 9th May, 1978 estimates the cost of future operations and hospitalization which may be required, at K5,000. Whilst I do not allow this amount, the plaintiff will be subjected to various surgical procedures at various times. I think a fair figure under this heading would be K1,500.

It is apparent from Mr. Reid’s report that the plaintiff will have to undergo two periods of surgery involving absence from work of from 12 to 16 weeks for each period. Taking into account his present salary I allow K1,500 under this heading.

A claim is also made for past loss of income. I have already indicated that between 1974 and 1978 the plaintiff suffered a loss of income. This loss was highest in 1974 and declined over the following years. Doing the best I can I would award the following amounts:

Included in the claim for loss of past income was an amount lost by way of bonus which would have been paid in the normal course. I allow the sum of K128.

During the period of incapacity he suffered a loss of income as follows. His nett salary was $81.40 at the time of the accident. For seven weeks his nett income was $47.35, a difference of $33.65. Thus the loss for seven weeks was $235.55. For four weeks thereafter before resuming on full income he received $65.65, a difference of $15.75 nett per week. Thus the total for four weeks was $63.00.

The total nett loss was $298.55. I award the kina equivalent of K240.00.

Out of pocket medical and like expenses have been agreed at an amount which I have adjusted from dollars of K128.00.

Thus the plaintiff is entitled to damages of K23,746.00 made up as follows:

APPORTIONMENT OF DAMAGES

In assessing the extent to which each tortfeasor caused the damages and to their relative culpability I adjudge that the defendants are responsible in equal proportions for the damages suffered by the plaintiff.

There will be a verdict for the plaintiff in the sum of K23,746.00. I order the defendants to pay the plaintiff’s costs of this action as agreed or taxed.

Orders accordingly.

Solicitors for the plaintiff: Craig Kirke & Wright.

Solicitors for the first defendant: Warner Shand, Wilson & Associates.

Solicitors for the second defendant: McCubbery Train Love & Thomas.

[cdlxxviii]Section 15a(2) of the Workers’ Compensation Act 1958 provided that where a worker received compensation under the Act, in respect of an accident “he shall not bring an action against the employee for damages in respect of the accident, unless ... (b) he commences that action within twelve months after he receives that compensation or that first payment”.

[cdlxxix]Infra p. 273 footnote.

[cdlxxx][1971] 3 All E.R. 822.

[cdlxxxi][1975] P.N.G.L.R. 185.

[cdlxxxii][1977] P.N.G.L.R. 293.

[cdlxxxiii](1893) 6 R. 67, H.L.

[cdlxxxiv][1978] P.N.G.L.R. 62.

[cdlxxxv][1943] 1 K.B. 557.

[cdlxxxvi] [1936] S.C. 883, On appeal [1938] A.C. 57.

[cdlxxxvii][1891] A.C. 325.

[cdlxxxviii][1956] A.C. 552.

[cdlxxxix][1953] A.C. 180.

[cdxc](1937) 56 C.L.R. 464.

[cdxci](1957) 97 C.L.R. 89.

[cdxcii](1957) 97 C.L.R. 36.

[cdxciii][1964] 2 All E.R. 999.

[cdxciv](1935) 53 C.L.R. 510.

[cdxcv][1972] A.C. 378.

[cdxcvi](Unreported) Judgment No. FC67 dated 4th October, 1974.

[cdxcvii](Unreported) Judgment No. N69 dated 19th November, 1976.

[cdxcviii][1975] P.N.G.L.R. 262.