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Skup v State [1997] PGNC 168; N1564 (27 May 1997)

1564

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 725 of 1992

JOHN SKUP

and

DEPARTMENT OF CORRECTIONAL SERVICES

and

THE STATE

WAIGANI: SALIKA, J
27 May, 1997

Employment Law - States Liability for injury to employee - Common Law duty of care - Not to expose to unnecessary risks - risk of intentional injury from third party - where employee residing in a potentially high risk area - failure to adequately arm employees - employee shot by rebel militants.

Negligence - Duty of care - Employers failure to adequately arm its employees - duty to prevent risk of intentional injury from third party - Employer liable.

Damages - s.84 of the Workers compensation Act - An employee may sue his employer for damages independently of the Workers Compensation Act - Employer not to pay compensation under the Act and outside the Act for same injuries.

Damages - K20,000 ex gratia payment for same injuries - Another K20,000 payment under insurance cover for same injuries - payment of K40,000 amounts to recept and not release of employer from obligation to pay.

Damages - Award of K55,000 in general damages - K40,000.00 paid - K15,000.00 to be paid.

Mr A. Corren for the Plaintiff
Mr M. Titus for the Defendants

Cases Cited:
Colbert v The Independent State of Papua New Guinea (1988-89) PNGLR 590.
Nook V Fraser and Barclay Brothers (1991) PNGLR 260
Tonava v Electricity Commission of Papua New Guinea (1987) PNGLR 81
Bowees v Foster 27 LJ Ex 266

The plaintiff in this matter alleges that he was sent to Bougainville in the North Solomons Province as a member of the Government Force to crush the rebellion activities of the Bougainville Revolutionary Army on the Island in January 1990. The Plaintiff further alleges that while he was serving on the island he was shot at by members of the Bougainville Revolutionary Army and as a result he sustained shotgun pellet injuries and permanent disabilities to his left eye. He claims that he sustained those injuries in the course of performing his duties as required by the defendants.

The lawyers for the defendants made submissions that the first named defendant is not a legal entity and therefore cannot be sued pursuant to the Claims by and Against the State Act Chapter 30. I am in agreement with that submission I therefore take the name of the first defendant out as a defendant. The remaining defendant is the State who is the employer of the plaintiff.

The defendant admits that the plaintiff sustained personal injuries whilst at the Kuveria jail but denies that the injuries were sustained as a result of any breach of duty of care it owed to the plaintiff. The defendants further argues that the defendant can be compensated for his injuries only under the provision of the Workers Compensation Act Chapter 179.

The plaintiff's cause of action lies on the basis that the State as his employer has breached its duty of care and exposed him to unnecessary risk of injury in that he was located in an unsafe and dangerous place of work. The plaintiff argues that his claim is for negligence by the defendant. Such claim is based on common law.

The plaintiff gave evidence that he was employed as a carpenter attached to the Building Section of the Correctional Institution Service based at Barawagi in the Simbu Province. He was deployed to the Kuveria Jail in the North Solomons Province to carry out maintenance work at the jail pursuant to s.7(1) (b) of the Correctional Institutions Services Act. On the night of the 16th January 1990 and the early morning of 17 January 1990 at about 12.40 am Bougainville Revolutionary Army militants attacked the Kuveria Jail. At that time the plaintiff was asleep in his bunker at the jail compound. All the other day shift members were also fast asleep. At the time of the attack the militants started firing shorts into the building where the plaintiff and others were sleeping. At the sound of gun fire the plaintiff got out of his sleep and tried to run outside to escape into the darkness. In the process of coming out of the house he was shot in the right eye and chest area. He managed to crawl away to safety in the cover of darkness. Later in the morning he was put into a helicopter and taken away for treatment. Medical evidence is that the plaintiff is totally blind in his right eye and that he will need further treatment to avoid future problem with the eye.

As indicated earlier the State does not dispute those injuries. The States only contention is that it was not negligent in its duty to provide a safe environment for its servants and agents to work in. The plaintiff relies on the cases of Colbert v The Independent State of Papua New Guinea (1988-89) PNGLR 590 and Timson Nook v Fraser and Barclay Brothers (1991) PNGLR 260. In the Colbert case Cory J held that the "test to be applied in determining whether the employer has failed in his duty to protect his employee from unnecessary risk of injury is whether the employer (paying proper attention to the risk and paying reasonable attention to the other circumstances) has taken reasonable care, reasonable measure or adopted means reasonably open to him in the circumstances which would have protected the plaintiff".

Evidence is that "hard core" militant rebels were serving prison terms at Kuveria jail and it became a potential target of attack by the rebels to free its imprisoned members. Furthermore, the whole of the island of Bougainville at that time became a war zone and was affected by the armed conflict. The Jail Commander at the time Superintendent Wavik gave evidence that his call to better arm the warders fell on "deaf ears". He gave evidence that the warders were not issued with any protective clothing and protective head gear. He said that at the material time there was no perimeter fence, lights or guards. Each warder had to fend for himself at that time. The next question is even if there was a perimeter fence or there were lights and the plaintiff was wearing protective gear and was armed would it have deterred the militants rebels from attacking the jail? This is a difficult question to answer. However in so far as lighting was concerned had there been lights the plaintiff might have been in a better position to at least see the attackers. On the other hand the plaintiffs evidence is that he sought the safety of the darkness to hide and that is the reason he may be at least alive today. If there was lighting he would have been a better target for the attackers. Perhaps there might have been resistance had he been armed. Applying the test in the Colberts case has the defendant taken reasonable care, reasonable measures or adopted means reasonably open to it in the circumstances which would have protected the plaintiff from being injured?

It is my view that even if the State had erected a perimeter fence, installed lights, issued protective gear and armed the warders it would not have made much difference as the rebel militants would still have attacked. There were about 300 rebels militants who attacked the jail according to Inspector Peter Inabari's affidavit evidence. I am however of the view that had the warders been armed there might have been some resistance in the form of return fire and the plaintiff in that situation might not have been forced out to run for cover. In that regard I find that the defendant was negligent in not adequately arming the plaintiff and the other warders to counter the likely insurgence of the rebel militants in the event of an invasion by them. The State is thus liable for such failure.

The State counsel argues that the plaintiff in this case can only be compensated for his injuries under the Workers compensation Act and not under common law. I do not subscribe to that argument because pursuant to s.84 of the Workers compensation Act a plaintiff in my view can sue his employer for damages independently of the Act. S. 84 of the Act also ensures that the employer does not pay compensation under the Act as well as damages outside the Act for the same injury or injuries (Tonava v Electricity Commission of Papua New Guinea (1987) PNGLR 81).

This matter has been further complicated by the payment of K20,000 "being payment for injury to left arm and right eye at Bougainville". This payment is also regarded as an "ex gratia" payment for injuries he sustained during the Bougainville operations. A further K20,000 has also been paid as an insurance payout by the Police and Correctional Services Superannuation Fund for the same injuries. Furthermore the plaintiff has an award claim on foot before the Workers Compensation Tribunal. The defendant argues that the plaintiff is now barred from proceeding with this claim because of the currency of the award claim as well as receiving K40,000 payout for insurance and for ex gratia. The plaintiff however argues that the K20,000 he received from the State only amounts to receipt of the money but that it does not release the defendant from its obligation to pay for the damages. The plaintiff relies on the case of Bowees v Foster 27 LJ Ex 266 where Martin B said:

"The distinction between a receipt and a release is: the release extinguishes the claim, and, when given, in itself anihilates the debt; but a receipt is only evidence of payment, and if proof be that no payment was made, it cannot operate as evidence of payment against such proof".

The plaintiff thus argues that he did not extinguish his right of action to claim for damages for negligence against the State because he did not sign a deed of release upon the payment of the K40,000 to him. I am in agreement with he plaintiffs contention that he still has the right of actin to claim damages for negligence. First of all the K40,000 that he received is not a final award made by the Workers Compensation Tribunal and secondly he has not by any deed of release extinguished his claim. I therefore find that the plaintiff is entitled to maintain this action under the common law.

In this matter I find the State liable for negligence for failing to protect its employees from unnecessary risk of injury by not adequately arming them so as to protect themselves from any attack from the Bougainville Revolutionary Army rebels.

The next question to determine now is how much damages the plaintiff should be awarded. The plaintiff in this case has suffered 100% loss of sight to his right eye, 25% loss of efficient use of his left arm and 10% disfigurement. He was hospitalised both in Papua New Guinea and Australia for a period of about 8 months. I also take into account the fact that there are some shotgun pellets still lodged in the plaintiffs body and has left a lot of scars on his body which could develop into cancer later in life. While the plaintiff also claims sexual impotency there is no medical evidence to support his claim and so I do not consider that aspect when awarding damages.

Counsel have referred me to comparable eye case where courts have awarded damages for eye loss. The highest award in an eye injury case that has been reported is the case of Seke Opa and the Independent State of Papua New Guinea (1987) PNGLR 469. However in that case the plaintiff suffered a lot more injuries than in this case. In that case the plaintiff was thrown from the back of a truck. His injuries included a severe head injury, an eye injury resulting in total blindness of the right eye, disfiguring and paralysed eyelid, an injured arm resulting in total paralysis, a leg injury resulting in partial paralysis and loss of ability to eat properly caused by decreased muscle power. The plaintiff in that case was awarded K60,000 for pain and suffering and loss of amenities. The injuries in the above cited case in my view are for more serious than the injuries sustained by the plaintiff in this case. In my view therefore an award of K55,000 would be a fair amount. For pain, suffering and loss of amenities. I am also mindful of the fact that K40,000 has been received by the plaintiff for the same injuries from the State and the Police and Correctional Institution Services Superannuation Fund. I would therefore deduct that payment and balance to be paid is K15,000.00 together with interest at 8% per annum from the date of filing of the Writ to the date of trial. I also award costs to the plaintiff to be taxed.

Lawyer for plaintiff: Corren Lawyers
Lawyer for defendant: Solicitor General