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Doa v Nebilyer Trading Co Pty Ltd [1991] PGNC 18; N991 (22 July 1991)

Unreported National Court Decisions

N991

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1110 OF 1989
TEN DOA
V
NEBILYER TRADING COMPANY PTY LTD

Mount Hagen

Woods J
13 May 1991
15 May 1991
22 July 1991

MASTER & SERVANT - Claim against Employer by employee driver - defective machinery - plaintiff has complete control over manner of driving - Liability.

Counsel

J. Pakau for the Plaintiff

D. O’Connor for the Defendant

17 July 1991

WOODS J: The Plaintiff Ten Doa is claiming damages for injuries he received whilst employed as a driver by the Defendant Company which operated a coffee plantation near Mt. Hagen. Taintiff alleges that the the injuries were caused by the negligence of the Defendant in providing a dangerous system of work and defetive machinery namely the tractor which the Plaintiff was ng.

On the 11th of J of July 1985 the Plaintiff was driving a tractor back through the plantation to the Defendant’s coffee factory with a load of coffee cherries. As he drove dosteep slope lope the Plaintiff lost control of the tractor and it ran off the plantation road and overturned and either the tractor or the trailer ran over the Defendant’s arms causing tft arm to be almost completmpletely severed and as a result it had to be amputated and causing fractures to the right arm. The tiff alleges that the the brakes failed on the tractor which therefore implied negligence in the Defendant in the maintenance aeration of its machinery.

It is clearly established that employers owe a duty to tako take care for the general safety of their work people and all circumstances of their work. An emplmust visualise that that there is a real risk of injury to a worker if he the employer does not conduct his operation or manage his property or machinery with due care. Thus in the case e me herethere is a responssponsibility to ensure that the machinery or the tractor is properly maintained such that it cannot fail aereby cause injury and further that the method of operation of the tractor is inherently saly safe.

The Plaintiff’s evidence is that he was employed as a driver by the Defendant and his duties involved driving a plantation truck and a plantation tractor and he had been doing that for six years. He said hebrining a load ooad of cherries on a trailer attached to the tractor and coming down a small hill the brakes failed and he lost control and overturned down off the side of the road. He st wasld tractor which hich hich had been proving unreliable. Howeverconfirms that the tthe tractor had already been used to coland deliver two loads of coffee cherries that morning and that it was on the third load thad that the brakes failed. Two witnesor thintiff give give evideevidence of being on the trailer at the time and the Plaintiff calling out as they were going down the hilt the brakes had failed and they jumped off before the tractor and trailer overturned.

A view of the scene confirmed that the scene of the incident was a curve and fairly steep section of plantation road. But ofse with his years ofrs of his experience in driving on the plantation, the Plaintiff would have adequate knowledge of any danger in driving down that slope becae would have driven it many times.

A Witness for ther the Defendant Company Morobe Kiluwa gives evidence of also being a driver for the company and he says he had done the first two runs with that tractor that morning and then the Plaintiff did a run. He says he was on the trailer when the Plaintiff was driving the tractor and that when the driver was coming down the hill he tried to change gears going down and missed and he told him to put on the brakes but they failed and he then jumped off. The ss said he had had no d no problems with the brakes earlier that morning. He says he had been aer foer for many years.&#16 confirms that he had driven over that road many times. Morobe also that the Plae Plae Plaintiff was not employed as a driver b that time he was starting to drive.

There was no evno evidence of any examination of the tractor to ascertain whether there wy defect in the brakes.

The question here therefore is whether the Defendant had been negligent in the control and maintenance of the tractor. Aparm that, the system of m of work was completely under the control of the Plaintiff. He was drivie tractor ther therefore he had complete control over the method of driving. He says that he haked on t on the plantation number of years so therefore he must have known all the roads on the plantation and being eing a driver he must have known in particthe need for care on the hill where the accident took placeplace. Therefore he must have known from experience that it was necessary in a tractor with a fully laden trailer that the correct lower gear had to be engaged before descending the hill. Thre indriving of the trac tractor the only person who could ould be negligent is the Plaintiff, there can be no negligence on the Defe. However is there sufficient evidence or a probability on the evidence that the trac tractor was defective. If the tractor waective asve as a Plaintiff alleges then why did he drive it when there was no suggestion of any compulsion for him to drive it.& However the Plaintiff himself and two other witnesses confirmed that the tractor had alreaalready done two loads that morning so there was no defect obvious to anybody at the time that the Plaintiff started driving off for this third load. There is no eve of anyone yone seeing any brake fluid or such like leaking. Torobe an experienced driv driver notes that the mishap seemhave occurred when the Plaintiff too late tried to change gear and missed the gear by whichwhich time he was going too fast so at thage with a heavy load on a sn a steep slope it is questionable whether any brakes would work or would hold the vehicle.

Therefore the driving of the tractor was solely under the control of the Plaintiff and there was insufficient evidence to find on the balance of the probabilities that the brakes were faulty and that therefore there was negligence in the Defendant in the care and maintenance of the tractor.

I therefore find that any claim based on negligence in the Defendant must fail.

Lawyer for the Plaintiff: J. Pakau & Associates

Lawyer for the Defendant: O’Connor & Hasu