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Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 (23 April 2007)

N3879

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 735 of 2003

BETWEEN

PURIL KUNJIL
Plaintiff

AND

PNG POWER LIMITED formerly
PNG ELECTRICITY COMMISSION
Defendant

Waigani: Kandakasi, J.
2007: 12th, 13th & 23rd April

EMPLOYMENT LAW – Oral contract of employment - Conflict in date of employment – Employer providing relevant parts of records of contract - Written record against oral testimony – No extrinsic evidence can be allowed to rebut the written record accept only to resolve ambiguities – Record speaks for itself – Employment Act Chp. 373.

EVIDENCE – Admission of objectionable evidence by consent – Effect of - Party consenting to such evidence at no liberty to contest the effect of the evidence once admitted - Open to Court to consider the evidence adduced – Whether such evidence should be accepted is dependant on weight.

EVIDENCE - Assessment of evidence – Conflict in plaintiff's own evidence – Failure to provide reasonable explanation for the conflict – Effect of the conflict – Conflict in date of employment – Written record against oral testimony – No extrinsic evidence can be allowed to rebut the written record accept only to resolve ambiguities – Record speaks for itself.

Papua New Guinea Cases cited:

Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (2003) N2498.
Mountain Fuel Freighters v. S T Trading Limited (2006) SC826.
Wellington Geroro v. Coffee Industry Corporation (1999) N1896.
The Bank of Papua New Guinea v Derick Sakatea Niso (2004) N2664.
Rot Moip v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485.

Counsels:

D. Gonol, for the Plaintiff.
P. Poriei, for the Defendant.

23rd April, 2007

1. KANDAKASI J: The plaintiff, Puril Kunjil is suing the defendant for damages allegedly arising from an undisputed electrocution incident, both under the Workers Compensation Act and in the alternative for negligence at common law. His claim is that, his electrocution came about as a result of the negligence of the defendant (formerly The PNG Electricity Commission) who failed to provide a safe system work and pleads a number of particulars of negligence. During the course of submissions, counsel for Puril abandoned correctly his client's claim under the Workers Compensation Act on his client conceding that he did not initiate his claim under that legislation within the prescribed time limits.

2. In response, the defendant denies the claim and pleads in alternatives that, Puril was not an employee at the relevant time of the electrocution, Puril's claim is statutory time barred because the electrocution occurred in 1987 and not 1998 and further, that Puril did not sustain the injuries as alleged.

Relevant Issues

3. This gives rise to a number of issues for the Court to determine. The issues raised are these:

(a) Did the electrocution occur in 1998 as alleged by Puril or did it occur in 1987 as alleged by the defendant and therefore statutory time barred?

(b) Was Puril an employee of the defendant in 1998 and so therefore he was injured in the course of his employment?

(c) Did Puril sustain his alleged injuries from the electrocution incident?

(d) Subject to a determination of the foregoing issues in Puril's favour, did the defendant provide an unsafe system of work? and

(e) If all of the foregoing issues are resolved in the Puril's favour what are his damages?

Evidence and Relevant Facts

4. Most of these issues can be resolved by reference to the relevant evidence and facts established by the evidence. I therefore, turn to a consideration of the facts, some of which are not in dispute.

There is no dispute that the defendant employed the plaintiff from 28th February 1979 to 19th July 1994 as casual labourer. After some time had passed, the defendant re-employed Puril again as labourer. On a date which is not the subject of a dispute between the parties, there was an electrocution of Puril.

5. What is in dispute is the date of Puril's re-employment with the defendant, the date of the electrocution and the injuries allegedly arising from that. As noted, Puril claims that he was re-employed in 1997 and he was electrocuted in 1998 whilst in the course of his employment. On the other hand, the defendant claims that, it re-employed Puril on 28th September 1999 well after the alleged date of the electrocution. Accordingly, the defendant claims that, Puril was not in its employ when Puril claims he was electrocuted. Instead, the defendant claims that, Puril was electrocuted in 1987 and his claim is therefore statutory time barred, given that, Puril issued his proceedings on 9th July 2003, well passed the 6 years statutory limitation under s.16(1)(a) of the Frauds and Limitations Act 1998.

6. In support of his claim, Puril called himself and three other witnesses. His testimony is this. During his period of employment from 28th February 1979 to 19th July 1994, he was a permanent general labourer employed by the defendant. In that position, he managed to acquire the skills of working as a linesman. After his termination on 19th July 1994, he says the defendant re-employed him in 1997. Almost a year after his re-employment, some time between May and November 1998, on a Sunday, he says he was part of a team of the defendant's workmen who were attending to a work at Mt. Kuta, here in the Mt. Hagen area.

7. Puril says his supervisor, Mr. Salenia Yauyautauna, asked him to climb to the top of a power pole the men were working on near a Paul Koim's residence. His task was to assist another workman a Mr. Marcus Mamakai, a welder, for the latter to weld an iron onto the top of the power pole. Although he was quite reluctant at first, just as Mr. Marcus Mamaki was because the power was still on, he did as instructed. Mr. Mamakai asked the supervisor to switch off the power, before he could do the welding but the supervisor did not agree. Despite that, the welding work commenced and proceeded. Puril says, he had no choice but to work under those conditions.

8. As Puril was holding the iron onto the top of the power pole with the assistance of other workmen, the service wire came off and landed on his shoulder and parts of his upper limb, for a short while. He says he got the biggest electric shock of his life and he lost a bit of consciousness but recovered soon thereafter. He says further that, if it were not for a belt he wore to support him whilst on the pole; he could have fallen off the pole and died. He goes onto say that, soon after the shock, the other workmen rescued him by pulling him down.

9. Immediately following the shock, Puril says he felt numbness in his body, especially in his hands. He thought that was a minor thing and did not seek any medical attention immediately or soon thereafter. Life proceeded normally after the incident. A few months later, he says he felt much numbness and pain. He says he felt his hands were getting heavy and hurting when he attempted to do work. That he says caused him to seek medical attention. He says he initially received general observation and rest from the shock. However, he does not say which medical establishment he attended for the treatment. Then as internal injuries and disabilities surfaced, he says he sought further treatment from various clinics and hospitals in the Western Highlands and Southern Highlands Provinces, again without naming the medical establishment and the dates when he attended those establishments. One of the doctors he attended to was a Dr Niure Badia of Mendi General Hospital, who did him a medial report, stating amongst others that, the plaintiff hands are useless as he cannot fold them and or grip anything, something Puril also demonstrated in Court. He left his employment due to the disabilities. Also as a result of the disabilities, he is not able to work in the garden and support his survival.

10. Equipped with the medical report, he went about trying to lodge a workers compensation claim, by filling out the appropriate workers compensation claim form. However, he did not progress his claim any further than that because, he came outside the time limits under the Workers Compensation Act.

11. Puril annexes an affidavit by him a statement by Mr. Salenia Yauyautauna on the incident which contradicts parts of Puril's own evidence. I will take that up later in the assessment and findings of facts. The rest of Puril's testimony goes into his alleged damages. I will get to that if I find the defendant is liable to Puril in damages. At this stage, I will concentrate only on liability.

12. The three other witnesses namely, a Marcus Mamakai, Dupai Timint and Eki Puni gave sworn affidavit and oral evidence. They generally supported Puril. Marcus Mamakai is a qualified and experienced welder. He claims in his affidavit that he was employed by the defendant for 20 years. However, under cross-examination, he said he commenced employment in 1987 and left his employment in 1997, so he exaggerated his period of employment with the defendant. Further, on that evidence, he would not have witnessed the incident. However, under re-examination, the witness said he was confused as to the date of the electrocution and when he left his employment with the defendant. Although he deposed in his affidavit that the electrocution occurred in 1998, under cross-examination, he said he was not too sure about the date. Clearly, this witness proved untrustworthy and therefore unreliable. Accordingly, I reject his testimony.

13. Dupai Timint's testimony is that, the defendant employed him also as general labourer in 1998. He corroborates Puril in relation to working on the power pole and the electrocution. However, he was not to sure on the date of the electrocution. He also states that Puril was electrocuted for a few minutes and states further that the plaintiffs suffered serious injuries. This is despite the undisputed fact that, no serious injuries were apparent at the time of the incident or soon thereafter. Based on this and other aspects of this witness' evidence, I find that, this witness was prepared to give a testimony favorable to Puril even if that was not true. Accordingly, I find him as an untruthful and therefore unreliable witness.

14. The final witness for Puril, Mr. Eki Puni was also a former employee of the defendant. He was employed as a linesman. He confirmed working with Puril on the power pole and Puril being electrocuted. However, he was not able to confirm the date when the electrocution occurred, although in his affidavit he said the incident occurred in 1998. Puril called this witness to confirm the date of the electrocution. He failed to do that in any clear terms.

15. The defendant called two witnesses, namely, a Mark Soi and a Douglas Joseph Tuam. They both deposed to an affidavit each, which were admitted into evidence as exhibit "D1" and "D2" respectively. Mr. Soi is the current manager, Human Resources, with the defendant, while Mr. Tuam is the Insurance Manager also with the defendant company. The first of these two witnesses, confirmed that, according to the records of employment kept by the defendant, Puril was re-employed on 13th September 1999 and terminated on 26th May 2000. The second witness testified that, the plaintiff's workers compensation did not go any further then Puril filling out the relevant claims forms due to Puril making his claim very late.

16. The second of the defendant's witness also testified that, following Puril's claim, he carried out investigations and those investigations reveal that, Puril did not wear at the time of electrocution, protective clothing provided by the defendant or any other protective gear. He also found that, on 1st May 2002, Puril wrote a letter to Dr Brandi of Togoba Health Centre in Mt. Hagen claiming that, the electrocution occurred on a Sunday in 1987. The copy of the letter is in evidence through this witness without any objection from Puril.

17. Further, the defendant's second witness testified that, he also came across a statement by Mr. Salenia Yauyautauna, who was the supervisor of the works which resulted in Puril's electrocution and annexes a copy of Mr. Yauyautauna's statement. That statement does not give the date when the electrocution occurred but is clear that, he gave his statement on 12th June 2002. In material respects, the statement states that, the electrocution was only for about 2 to 3 seconds and there was no injury or damage to the plaintiff. He further states that, if the electrocution of Puril lasted more than 2 minutes than that could have done some damage to his body including the brain.

Determination of the Issues

(i) When did the electrocution occur?

18. From the evidence now before the Court, I will have to find the relevant facts and answer the factual issues presented. The first issue concerns the date of the electrocution. Puril's claim and submission is that, the electrocution occurred on an unknown date in 1998. This issue has arisen because Puril in his letter dated 1st May 2002 to Dr. Brandi of the Togoba Health Centre stated that, his electrocution occurred on a Sunday in 1987. That letter is in evidence before the Court by way of annexure "D" to Mr. Tuam's affidavit. That affidavit with its annexures where admitted into evidence without any objection from Puril.

19. Nevertheless, in his submissions, Puril submits that his letter of 1st May 2002 has not been produced by its author being himself and in any case he is an illiterate and as such the Court should not place any weight on that letter. On the other hand, the defendant submits that the letter is in evidence and the Court must give it, its due weight and consideration. I am inclined to accept the defendant's submissions because the law on point is clear. In Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc,[1] I stated the principles of law in these terms in the context of the rules governing the admission of extrinsic evidence:

"It is apparent that this rule concerns the admissibility of evidence and the purpose for which extrinsic evidence can be admitted when there is a written record. Hence the issue of whether or not extrinsic evidence should be allowed has to be addressed before the evidence in question is admitted. Once the evidence is admitted, the issue no longer arises. Thus, the Court is entitled to consider the evidence before it and arrive at a decision whether or not to accept it. In the present case, the defence took no issue on the admissibility of the evidence on point."

20. The Supreme Court cited these principles and others with approval in Mountain Fuel Freighters v. S T Trading Limited.[2]

21. It follows therefore that, it was incumbent on the Puril's counsel to object to the admission into evidence Puril's letter dated 1st May 2002, when the defendant sought its admission. However, Puril decided not to object to the letter going into evidence. The letter is now in evidence for the defendant. The Court is duty bound to consider its contents and come to a decision on the matters in dispute between the parties.

22. Accordingly, I note that, Puril per his letter of 1st May 2002 claimed that the electrocution occurred in 1987. On that basis, he sought medical attention and received it. Proceeding on the same basis, the defendant has pleaded that Puril's claim is statutory time bar under s. 16(1)(a) of the Frauds and Limitations Act 1998. Puril has, however, changed his original position on the date of the incident and now argues for a finding that, his electrocution occurred in 1998. He so submits, without providing any reasonable explanation. None of the witnesses called by Puril clearly support Puril in his claim that, the electrocution occurred in 1998. The witnesses are instead uncertain and are unable to clearly support Puril's claim.

23. It is settled law that, where a written document conveys two different meanings, then the meaning that is not favorable to the party who drew the document at the first place is to be preferred. Technically, this is called the contra proferentem rule." This principle has been discussed and or applied in a large number of cases in our jurisdiction as in the case of Wellington Geroro v. Coffee Industry Corporation[3] and The Bank of Papua New Guinea v. Derick Sakatea Niso.[4]

24. In the present case, I appreciate that, Puril does not know how to read and write. Nevertheless, he demonstrated to me that he does know how to tell the years. The letter was written on his instructions for him. If there was a mistake in the date of the electrocution, the duty was on him to provide a reasonable explanation for it, but he did not. He called a number of witnesses purposely to confirm that, he was injured in 1998. Those witnesses failed to do that. In the circumstances, I find that Puril sustained his injuries in 1987. His claim is therefore statutory time bared under s. 16(1)(a) of the Frauds and Limitations Act 1998.

25. If in the unfortunate event that I was wrong in arriving at the above finding (which I believe not), than it is necessary to consider the other issues presented. The first of the remaining issues is, was Puril an employee of the defendant in 1998 and so therefore he was injured in the course of his employment? I turn to a consideration of that issue now.

(ii) Was the Puril in the employ of the defendant in 1998?

26. Without the support of any documentation such as a pay slip, or anything like that, Puril claims that, he was re-employed in 1997 and was therefore, in the employ of the defendant in 1998 when he got electrocuted. He went into evidence and called his other witnesses purposely to establish his claim that the defendant employed him in 1998. Even though on affidavit, Puril's witnesses state that the defendant employed Puril in 1998, they expressed confusion and uncertainty under cross-examination. I contrast this with the written record the defendant produced. That record shows the defendant re-employing Puril on 13th September 1999 and ending on 26th May 2000.

27. Section 15 of the Employment Act[5] provides that, where an employment contract is governed by an oral contract, such as the contract in the present case, the employer is required to keep a record of the terms and conditions of employment. That should ordinarily include the date of the commencement and termination of the contract. It also provides that, where there is a dispute as to the terms and conditions of such an employment contract and the employer is not able to provide a record of the terms and conditions of employment, whatever the employee says in relation to the dispute, shall be conclusive on the disputed terms.

28. Given the provisions of s. 15, it was incumbent, in my view, on the Puril's lawyers to inquire of the defendant, prior to the issuance of the proceedings, what were the terms and conditions of their client's employment, including each commencement and termination dates. There is no evidence of Puril's lawyers doing that here. Then after filing the proceedings, the duty was on Puril's lawyers, in my view, to go for a complete discovery of the defendants records of their employment. They did not do that. At the trial, the defendant produced parts of the relevant record. Puril called oral evidence purposely to rebut the written record. Also without the support of any evidence, Puril unsuccessfully made suggestions to the defendant's witnesses that, the defendant's records could not be accurate.

29. The law is clear, extrinsic evidence cannot be allowed to contradict written records. The written records should be and is usually allowed to speak for itself. In the Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc., which I cited above, I discussed the relevant principles in these terms:

It is settled law that, generally where parties have reduced their agreement in the case of an agreement into writing the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict what is stated in the document. The same goes for any other written record. An authority on point is the Supreme Court judgment in Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v. The Independent State of Papua New Guinea [1993] PNGLR 285. This case has been cited with approval in a large number of cases ....

However, this rule is general. Extrinsic evidence can be admitted to help resolve any ambiguity in a written document or record. Lord Davey in the Privy Council stated this principle in these terms:

'Extrinsic evidence is always admissible, not to contradict or vary the contract: but to apply it to the facts, which the parties had in their minds and were negotiating about.'"

30. Applying these principles to the case at hand, I note that, the oral evidence called by Puril was purposely to rebut the written record and not to resolve any ambiguity or elaborate on any term in the written record. Accordingly, that evidence should give way to the written record. The written record says clearly that, Puril was re-employed on 13th September 1999 and terminated on 26th May 2000. I therefore find that, Puril was not in the employ of the defendant in 1998 when he claims to have sustained his alleged injuries.

31. The answer I have just provided for the first and second issues would render unnecessary a consideration of the remaining issues. However, for completeness, I will address those issues, starting with the third issue. That issue concerns the plaintiff's alleged injuries. The question there is, did the plaintiff sustain his alleged injuries from the electrocution.

(iii) Did Puril sustain any injuries from the electrocution?

32. The evidence on Puril's alleged injuries from the electrocution comes from Puril himself and Mr. Tuam. In his evidence, Puril claims that he did not suffer any immediate serious injuries from the electrocution although he felt a bit of numbness in his hands. He then claims that as time went by, things worsened causing him to consult medical assistance and intervention. He first sought medical help in 2000. It is not clear what kind of treatment he received, where from and when exactly.

33. Through Puril's own affidavit, he annexes a medical report by a Dr. Niure Badia, of the Mendi General Hospital dated 29th April 2002. The defendant did not object to this report going into evidence. So it was admitted into evidence. Despite that, the defendant argues in its submissions for rejection or placing of no weight on the report. However, the same principles I considered and applied in respect of Puril's letter dated 1st May 2002 equally applies here. On the basis of those principles, I am of the view that, the medical report is part of Puril's uncontested evidence, which is open for the Courts consideration.

34. The medical report states that, Puril felt pains and needles subsequent to the electrocution without stating when did that start. It also states that despite medical treatment, details of which are not given, the pains and needles led to weakness and wasting resulting in diminished power to Puril's forearm, hands and fingers due to a possible destruction of the main nerve to the affected part of Puril's body. The report goes on to conclude that, this must have resulted from the electrocution. It then estimates a 90% loss of the efficient use of the Puril's right hand.

35. The medical report does not indicate the qualification and experience of the medical doctor who did the report and before that, attended to Puril, particularly in relation to electrocution cases. Also the report fails to indicate what kinds of injuries are common or usually occur due to electrocution, how long one has to be electrocuted for and whether it is possible for a victim of an electrocution not to show any serious injuries until two years later. This information is required, in my view, to show that the doctor who did the report knows what he is talking about, that the injuries could not have arisen from any other intervening causes and that his ultimate conclusion that Puril sustained his injuries from the electrocution is correct. Puril called neither the doctor who did the report, nor any other doctor, to provide the information required. The medical evidence was not subjected to the usual test under cross-examination.

36. Other evidences before the Court, in particular the statement from Mr. Yauyautauna states that, Puril's electrocution lasted between 2 to 3 seconds. This, statement states that, that was not sufficient to cause Puril any injury. It also states that, if Puril's electrocution lasted more than 2 minutes or so, he could have suffered some injury. Mr. Yauyautauna was the supervisor. He was therefore, an experienced man in the electricity industry and was in a better position to say whether the electrocution of Puril was sufficient to cause Puril the injuries he alleges or any others and the resultant disabilities. The statement is part of Puril's evidence as well as that of the defendants.

37. Obviously, Puril has adduced evidence contradicting his own case. Where that turns out to be the case, there can be no finding for the party calling the evidence. In the present case, Puril claims that, his electrocution was for more than 2 minutes. The statement of Mr. Yauyautauna contradicts him on that. Also that statement makes it clear that, if indeed Puril's electrocution lasted more than 2 minutes he could have suffered serious injuries, including injuries to his brain, but, that did not occur. Puril's own evidence does not speak of any such injuries until two years after the electrocution when wasting in his arms surfaced.

38. Further, the medical evidence adduced in support of Puril's claim is not contemporaneous to the date of the electrocution be it in 1987 or 1998. There is no evidence of any treatment of any sort from the date of the electrocution and up to the date when Puril saw the doctor who did him the report. In Rot Moip v. Motor Vehicles Insurance (PNG) Trust,[6] the Court dismissed the plaintiff's claim because amongst others, the plaintiff did not produce any contemporaneous medical evidence from a hospital or a doctor. In so doing, the Court noted that such evidence "must be elementary" or must "at least be the basic evidence."

39. Having regard to all of the above, I find that Puril has failed to establish his claim that, he sustained injuries from the electrocution. He has simply failed to demonstrate on the balance of probabilities any connection or nexus between the electrocution and his alleged injuries and the resultant disabilities. Accordingly, I find he did not sustain his alleged injuries and disabilities from the uncontested electrocution.

(iv) Did the defendant provide an unsafe system of work?

40. The findings in relation to the first three issues makes it unnecessary for us to consider the last two remaining issue. Quickly, however, without more, in relation to the second last issue, I find that, Puril even failed to establish his claim in negligence. This finding stems from the fact that, Puril failed to demonstrate what would be a safe system of work in the electricity industry and in particular the kind of situation in which he and his workmates were working under. He also failed to demonstrate how the defendant fell short of such a system of work. Further, the plaintiff failed to identify what was it that the defendant was required to do to provide a safe system of work but it did not. On the other hand, there is evidence from the defendant that shows that Puril failed to wear protective gear supplied to him by the defendant. That could have led to his electrocution. In the circumstances, the answer to the second last issue is simply that Puril failed to show that the defendant failed to provide a safe system of work.

Decision

41. The findings thus far made, inevitably lead to only one clear conclusion. That conclusion is that Puril has failed to establish his claim against the defendant on the required standard, balance of probabilities. Accordingly, I find that the defendant is not liable to Puril as claimed or at all. Consequently, I enter judgment for the defendant and order a dismissal of Puril's claim with costs. The costs shall be agreed if not taxed.
__________________________________________________________

P. M. Dowa Lawyers: Lawyers for the Plaintiff
In House Lawyers: Lawyers for the Defendants.

^[1] (2003) N2498.
^[2] (2006) SC826.
^[3] (1999) N1896.
^[4] (2004) N2664.
^[5] (Chp. 373).
^[6] [1993] PNGLR 485.