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Molem v Taylor [2020] PGNC 4; N8172 (31 January 2020)

N8172

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO 757 OF 2017


DOMINIC MOLEM
Plaintiff


V


CHRISTINE JANE TAYLOR
First Defendant


INTERNATIONAL SOS (NIUGINI) LIMITED
Second Defendant


LIHIR GOLD LIMITED
Third Defendant


Madang: Cannings J
2019: 14th August, 15th October
2020: 31st January


NEGLIGENCE – whether doctor engaged by employer to make medical assessment of employees negligently diagnosed an employee as epileptic – whether negligent diagnosis led to loss of employment – vicarious liability –whether doctor’s employer liable.


CONTRACT – whether employer breached terms of contract with employee by failing to renew two-year contract on completion – whether employer obliged to conduct performance review.


LAW OF EMPLOYMENT –Employment Act, s 49 (maximum daily hours and rest periods) – whether employer breached s 49 by requiring employee to work 12-hour night shifts for excessive number of consecutive days – whether employer required employee to work without adequate statutory rest – whether an employer can be liable in damages for breach of s 49.


The plaintiff was employed by the third defendant as an electrician at a mine site. He had two episodes of unexplained altered levels of consciousness in the course of employment that led to concern about his fitness for work. The third defendant asked the second defendant, a medical services company operating a clinic at the mine, to provide an assessment of the plaintiff’s fitness for work. The first defendant, an employee of the second defendant, was chief medical officer at the mine and arranged CT and MRI scans for the plaintiff, which yielded no clear outcomes. She proceeded, however, by a process of exclusion, to diagnose the plaintiff with epilepsy. Ten months later, the plaintiff’s two-year contract of employment expired and the third defendant did not renew it. The plaintiff subsequently commenced proceedings against the defendants, pleading three causes of action:(1) the first defendant falsely and negligently diagnosed him with epilepsy, leading to loss of employment and was, together with her employer the second defendant,liable in damages for the tort of negligence; (2) the third defendant was liable in damages for breach of contract; and (3) the third defendant was liable in damages for breach of its statutory duty under s 49 of the Employment Act by requiring the plaintiff to work 12-hour night shifts for an excessive number of consecutive days. The defendants denied liability. A trial was conducted on the issue of liability.


Held:


(1) The first defendant owed the plaintiff a duty of care arising from the doctor-patient relationship. However there was insufficient evidence that the diagnosis of epilepsy was negligently given as although the plaintiff presented evidence of a contrary opinion, he could not on the evidence of one doctor who was not a specialist in neurology, discharge the burden of proving that the first defendant’s diagnosis was false or negligent. The tort of negligence was not proven and the case against the first defendant, and therefore also the second defendant, failed.

(2) No breach of contract was proven as the clause relied on by the plaintiff on which to base the case of breach of contract did not oblige the third defendant to renew the contract.

(3) Section 49 of the Employment Act imposes restrictions on the number of hours an employee can be required to work each day and imposes minimum rest periods for employees engaged in shift work. There was no evidence of breach of this provision. The tort of breach of statutory duty was unproven.

(4) The proceedings were entirely dismissed.

Cases cited


The following cases are cited in the judgment:


Asivo v Bank of South Pacific Ltd (2016) N6518
Goma v Protect Security & Communication Ltd (2013) SC1300
Kerowa v Harriman & PNG Power Ltd (2017) N6940
Motoi v Nationwide Microbank Ltd (2016) N6177
Raikos Holdings Ltd v G & S Ltd (2014) N5613
Singadan v Telfer & SGS PNG Ltd (2018) N7072
Steven v Ram KC (2016) N6577
Tirima v Angau Memorial Hospital Board (2005) N2779


TRIAL


This was a trial on liability for negligence, breach of contract and breach of the Employment Act.


Counsel


G Pipike, for the Plaintiff
G Garo, for the Second Defendant
W Mai, for the Third Defendant


31st Jauary, 2020


  1. CANNINGS J: This was a trial on liability for negligence, breach of contract and breach of the Employment Act. The plaintiff, Dominic Molem, was employed by the third defendant, Lihir Gold Ltd, a member of the Newcrest group of companies, as an electrician, specifically trained to work on high-voltage lines, at the Lihir gold mine, New Ireland Province. In December 2014-January 2015 he had two episodes of unexplained altered levels of consciousness in the course of employment that led to concern about his fitness for work. Lihir Gold asked the second defendant, International SOS (Niugini) Ltd, a medical services company operating a clinic at the mine, to provide an assessment of the plaintiff’s fitness for work.
  2. The first defendant, Christine Jane Taylor, an employee of International SOS, was chief medical officer at the mine and arranged CT and MRI scans for the plaintiff, which yielded no clear outcomes. She proceeded, however, by a process of exclusion, to diagnose the plaintiff with epilepsy and advised that he was not fit to continue his present work for ten years, though he could be assigned other tasks where he does not pose a risk to himself or others during an attack, subject to being placed on a regular shift pattern with regular rest periods.
  3. Ten months later, the plaintiff’s two-year contract of employment expired and Lihir Gold did not renew the contract. The plaintiff had worked for them for four years.

ISSUES


  1. The plaintiff subsequently commenced proceedings against the defendants, pleading three causes of action:
  2. All defendants denied liability. A trial was conducted on the issue of liability.
  3. IS DR TAYLOR LIABLE IN NEGLIGENCE FOR THE EPILEPSY DIAGNOSIS? IS INTERNATIONAL SOS VICARIOUSLY LIABLE?
  4. Negligence is a tort, the elements of which are, in the context of a claim by a patient against a doctor: (a) the doctor owed a duty of care to the patient; (b) the doctor breached that duty (acted negligently); (c) the breach of duty caused damage to the patient; and (d) the type of damage was not too remote.
  5. Dr Taylor owed the plaintiff a duty of care arising from the doctor-patient relationship. The critical issues are whether she negligently diagnosed the plaintiff as suffering from epilepsy and, if that is proven, whether the diagnosis resulted in the plaintiff losing his job.

Facts


  1. For the purposes of determining whether the plaintiff has proven that Dr Taylor’s diagnosis was negligent, I make the following findings of fact.
  2. The first incident leading to concern about the plaintiff’s fitness for work occurred in the early hours of 10 December 2014 when he was on duty, driving a motor vehicle. He either had a microsleep or lost consciousness and crashed the vehicle. He was examined at the Lihir Medical Centre and referred to Pacific International Hospital, Port Moresby where he underwent a CT (Computed Tomography) brain scan on 22 January 2015. Consultant radiologist, Dr Blanch, reported no abnormality.
  3. The second incident leading to concern about his fitness for work occurred on 30 January 2015 when at a work meeting at Lihir the plaintiff became agitated and incoherent, had a dizzy spell and almost collapsed. He was referred again to Pacific International Hospital, this time for an MRI (magnetic resonance imaging) scan on the brain, conducted by Dr Blanch. This report also detected no neurological abnormality.
  4. On the basis of that history plus numerous clinical examinations of the plaintiff since commencement of his employment with Lihir Gold in 2012 and her own examination of him, Dr Taylor prepared a fitness to work report for the plaintiff dated 16 April 2015, which relevantly stated:

Mr Molem is a 45 year old electrician who is trained to work on high-voltage lines.


He had two episodes of unexplained altered level of consciousness. The first episode on the 10th December 2014 was followed by a witnessed “complex partial seizure” (a specific form of seizure). The second episode was witnessed by his colleagues during a meeting on the 30th January 2015.


He has been fully investigated with all tests that are appropriate and available in PNG and no cause has been found. The diagnosis, by exclusion, is epilepsy.


Fitness to work assessment:


Applying these guidelines means that he will not be fit to return to his previous post until at least 10 years from now.


If he has a further episode this year, he should start on medication.


Given the frequency (two known episodes in four months) and the probability that both were triggered by fatigue/stress and the fact that all investigations were normal, it is unlikely that his condition will worsen.


He is excluded from driving or operating any type of machinery.


He is suitable for tasks where he does not pose a risk to himself, to others or equipment during an attack. Which particular post that is should be assessed by an HSE [Health, Safety & Environment] professional with working knowledge of the respective positions.


To minimise the risk of an attack, I recommend his shift pattern is regular, with adequate rest periods. If night duty is required, the day/night shift changes should be well planned in advance, with adequate rest periods before, during and after.


If you require more specialist information, please let us know and we’ll attempt to get Mr Molem seen by Dr Seevnarainwhen he visits the site.


  1. Subsequent to Dr Taylor’s assessment the plaintiff continued to work for Lihir Gold until February 2016. There was another incident on 21 July 2015 when he blacked out at the mess while waiting in line for his meal. It was a brief incident and he reported to the medical centre the next day for assistance.
  2. He was subject to no further fitness to work assessment prior to his being notified in February 2016, the month prior to expiry of his two-year contract of employment, that his contract would not be renewed.
  3. Later that month the plaintiff attended the medical consultation clinic at Modilon General Hospital for review. Dr Weston Yambut, SMO/Physician examined the plaintiff and in a report dated 13 May 2016, concluded:

The two separate episodes that have occurred [the 10 December 2014 motor vehicle incident and the 30 January 2015 meeting incident] were never preceded by any aura. As with epilepsy, aura is part of the seizure, especially partial seizures. Therefore, in my opinion I do not think he is an epileptic. As such, I would recommend that he has another review with a senior physician, preferably a neurologist.


  1. The plaintiff has since March 2016 found employment as an electrician with Harmony Gold at the Hidden Valley mine at Bulolo, Morobe Province, and in the three-year period since then has not experienced any further incidents of altered levels of consciousness and has not taken anti-epilepsy medication.

Was Dr Taylor negligent?


  1. Counsel for the plaintiff, Mr Pipike, submits on the basis of those facts that there was no good reason for Dr Taylor to have diagnosed the plaintiff in April 2015 as epileptic. The diagnosis, it is submitted, was incorrect and it was provided negligently. There was insufficient evidence on which she could reasonably and definitely conclude that the plaintiff was epileptic and label him as unfit for work in his normal occupation for ten years. The CT and MRI scans revealed nothing abnormal and as Dr Yambut emphasised, no aura accompanied either of the alleged seizures, which was indicative of there being some other causes of the sporadic incidents of concern. Mr Pipike submitted that Dr Taylor had jumped to the conclusion that the plaintiff was suffering epilepsy. She is presumed to have been aware of the significance of her assessment for the plaintiff’s work prospects. She should have explored alternative causes of the incidents, in particular fatigue brought upon by the plaintiff being required to work an excessive number of night shifts and inadequate rest. She should have been more guarded in drawing the conclusion that the plaintiff was epileptic. She should have insisted on further neurological assessment and/or examination by a specialist neurologist before stating her diagnosis in such definite terms.
  2. In assessing those submissions it must be borne in mind that this is the plaintiff’s case. He bears the burden of proof on all issues, according to the civil standard of ‘on the balance of probabilities’. He has to prove that Dr Taylor’s epilepsy diagnosis was incorrect and negligent. It is not up to Dr Taylor (who has not given evidence) or International SOS to prove that the diagnosis was correct and reasonable.
  3. The standard of care against which Dr Taylor’s diagnosis must be judged is that of an ordinary, competent medical practitioner exercising an ordinary degree of professional skill. A doctor is not guilty of negligence if he or she has acted in accordance with accepted medical practice. A doctor is not to be held negligent simply because something went wrong or even if it is proven that the diagnosis was incorrect (Tirima v Angau Memorial Hospital Board (2005) N2779).
  4. The plaintiff has provided very little evidence on which to challenge the diagnosis. Dr Yambut did not give oral evidence and was not subject to cross-examination and his opinion is with respect, rather vaguely expressed. He appears to have expressed it based on a version of clinical history given to him by the plaintiff rather than the preferred approach, which would have involved a thorough assessment of all of the plaintiff’s clinical notes. He makes no mention, in particular, of the third incident of 21 July 2015 when the plaintiff blacked out at the mess. Furthermore, Dr Yambut qualifies his opinion that he does “not think that he is an epileptic” by recommending that the plaintiff have another review with a senior physician, preferably a neurologist. Dr Yambut’s report is therefore of little probative value. As that was the only medical evidence presented by the plaintiff, I find that he has not proven that the epilepsy diagnosis was incorrect. It is not sufficient for him to give evidence that he has not had any incidents in the period from 2016 to 2019 and has not taken any anti-epilepsy medication. That does not prove that he does not have epilepsy or that he is not susceptible to its onset.
  5. I consider that the most telling criticism that can be made of Dr Taylor’s diagnosis is the degree of certitude entailed, at first glance, in the conclusion that “the diagnosis, by exclusion, is epilepsy”. I agree that Dr Taylor is presumed to have knowledge of the consequences of such a diagnosis and ought to have expressly qualified the diagnosis by stating that it was tentative or subject to further assessment. On the other hand, Dr Taylor did not purport to give her diagnosis finality. Nor did she suggest that the diagnosis, and therefore an opinion on the plaintiff’s fitness for work, could not be improved by further tests or specialist examination and assessment. Dr Taylor did in fact qualify her diagnosis in two respects, by:
  6. Ultimately I am not persuaded that the plaintiff has proven that the diagnosis of epilepsy was incorrect. More significantly, he has not proven that Dr Taylor’s diagnosis was arrived at or provided negligently. I consider that it was a diagnosis that was reasonably available to Dr Taylor given the data and information available to her at the time.
  7. The plaintiff has failed to establish the second element of the tort of negligence: that Dr Taylor was negligent. This means that the tort of negligence has not been proven. The plaintiff has not proven his case against Dr Taylor and the proceedings against her must be dismissed. The same goes for International SOS. As the case against Dr Taylor has failed, it bears no vicarious liability. The case against it must also be dismissed.
  8. IS LIHIR GOLD LIABLE IN BREACH OF CONTRACT FOR NOT RENEWING THE PLAINTIFF’S CONTRACT?
  9. The elements of a breach of contract action are, in the context of a claim by an employee against an employer: (a) there was an enforceable agreement between the parties providing the terms and conditions of employment; (b) the employer breached a term of the contract; (c) the breach of contract caused damage to the plaintiff that was not too remote (Motoi v Nationwide Microbank Ltd (2016) N6177, Asivo v Bank of South Pacific Ltd (2016) N6518).
  10. There was an enforceable written contract of employment between the plaintiff and Lihir Gold Ltd. The critical issues are whether Lihir Gold breached the contract by not renewing it, and, if that is proven, whether the breach caused damage to the plaintiff that was not too remote.
  11. The plaintiff argues that Lihir Gold breached a fundamental term, clause 4, entitled Duration, which stated:
  12. The plaintiff argues that because the contract was expressed to be “renewable” subject to satisfactory performance and a continued requirement for his position, Lihir Gold was obliged to renew the contract if both those conditions were satisfied. He argues that both conditions were satisfied. As to his satisfactory performance he has given evidence that he never received an adverse performance assessment; in fact no performance assessment was conducted prior to expiry of his contract, so his performance should be deemed to be satisfactory. As to the second condition, the plaintiff has given evidence that there was no restructure or reorganisation after his contract was not renewed, so there was a continuing requirement for his position. He also has given evidence that he was not notified, one month before the date of expiry of the contract, of Lihir Gold’s intention not to renew it.

Facts


  1. Lihir Gold has challenged only the evidence of the plaintiff that he was not notified of the decision not to renew the contract. I make the following findings of fact:

Was Lihir Gold obliged to renew the contract?


  1. In assessing the plaintiff’s argument that clause 4 imposed an obligation on Lihir Gold to renew the contract, I take into account two matters. First, as pointed out earlier, it is the plaintiff’s case and he bears the onus of proving all issues of fact and law. Secondly, the general principleof contractual interpretation must be applied. I explained it in these terms in Raikos Holdings Ltd v G & S Ltd (2014) N5613:

Written contracts are like a piece of legislation. They create a written law that sets out the rights and obligations of persons: the parties to the contract. Just as the court, when interpreting an Act of Parliament, will attempt to discern the intention of the body that made that law – the Parliament – when interpreting a contract the court will attempt to discern the intention of the body that made the contract – the parties to the contract – and give effect to that intention.


  1. So, what was the intention of the parties? To impose an obligation on the employer to renew the contract if the two ‘preconditions’ were met? Or to make renewal of the contract a matter of discretion for the employer and to simply point out the factors that are likely to be taken into account in the exercise of that discretion?
  2. I am not persuaded that the former interpretation is the correct one. The better view is that clause 4 did not make it mandatory for Lihir Gold to renew the contract even where the plaintiff’s performance was satisfactory and his position remained current. The contract was renewable at the discretion of the Lihir Gold and it could decide not to renew without giving reasons and without consequences. No breach of contract has been proven.
  3. IS LIHIR GOLD LIABLE UNDER THE EMPLOYMENT ACT FOR REQUIRING THE PLAINTIFF TO WORK NIGHT SHIFTS FOR EXCESSIVE PERIODS WITHOUT ADEQUATE REST?
  4. Section 49 (maximum daily hours and rest periods)of the Employment Act imposes restrictions on the number of hours an employee can be required to work each day and imposes minimum rest periods for employees. It states:

(1) Subject to Subsection (5) and to variation under a registered award, an employee shall not be required to work more than 12 hours in any one day.


(2) Subject to Section 50(1) and (2) and to variation under a registered award, an employee—


(a) who is required to work eight hours or more in any day shall be allowed one or more meal or rest periods totalling in the aggregate not less than 50 minutes; and

(b) shall not be required to work for more than five hours without a meal or rest period of not less than 30 minutes if he has been allowed a rest period of at least 10 minutes during that period; and

(c) shall not be required to work for more than five hours without a meal or rest period of not less than 40 minutes if he has not been allowed a rest period of at least 10 minutes during that period.


(3) Subject to Subsections (4) and (5) and to variation under a registered award, an employee—


(a) not engaged on shift work shall be allowed a rest period of at least 24 consecutive hours in every week counting from Monday to Sunday inclusive; and

(b) engaged on shift work shall be allowed rest periods which in each instance shall be of not less than 24 consecutive hours and shall total in the aggregate less than 96 hours in every period of 28 days.


(4) A rest period under Subsections (2) and (3) shall be in addition to any time off under Sections 50 and 52.


(5) An employee shall not be liable to stand-by duty during any rest period prescribed under this section or Sections 52(5) and 56.


  1. Mr Pipike’s submission focusses on s 49(3)(b), which provides that:

an employee ... engaged on shift work shall be allowed rest periods which in each instance shall be of not less than 24 consecutive hours and shall total in the aggregate less than 96 hours in every period of 28 days [sic].


  1. The plaintiff’s argument is that for each instance of shift work (which shall not, per s 49(1), exceed 12 hours per shift) the plaintiff was entitled to a rest period of 24 hours, provided it was less than 96 hours in every period of 28 days. He arguesthat there is clear evidence of breach of these requirements in 2014 when he was required to work 11 consecutive night shifts in July, five consecutive night shifts in August, six consecutive night shifts in September, 12 consecutive night shifts in October, 11 consecutive night shifts in November and 11 consecutive night shifts in December. Mr Pipike asserted that these consistent breaches of s 49(3)(b) rendered Lihir Gold liable in damages.

Facts


  1. Lihir Gold does not take issue with the evidence relied on by the plaintiff for this part of the case. I find as a fact that he did work consecutive night shifts in the periods referred to.

Has a cause of action regarding breach of the Employment Act been proven by the plaintiff?


No. For four reasons, I reject the plaintiff’s claim for damages.


  1. First, I do not accept the interpretation put upon s 49(3)(b)by the plaintiff. I can see that the provision is not clearly expressed, and I consider that the word “not” is missing, from where it should – if the provision is to make sense – appear, after the word “aggregate” and before the words “less than 96 hours”. However, the provision cannot reasonably be read as requiring an employee to work only one night shift of 12 hours before being entitled to a rest day. That is not what it says, and it is not a reasonable interpretation of it. What the provision in fact requires is that in each period of 28 days an employee shall have rest periods totalling in the aggregate at least 96 hours and each rest period shall be of not less than 24 consecutive hours.
  2. Secondly, there has been no actual breach of s 49(3)(b) by Lihir Gold.
  3. Thirdly, this part of the plaintiff’s case is poorly pleaded. The cause of action that should have been pleaded, and argued, is the tort of breach of statutory duty, the elements of which are, in the context of a claim by an employee against an employer: (a) a statute imposed an obligation on the employer; (b) the obligation was breached by the employer; (c) the purpose of the statute was to protect a particular class of persons; (d) the plaintiff employee was a member of that class of persons; (e) the employee suffered damage as a result of the breach; and (f) the Parliament intended to create a private right of action for breach of the statutory obligation (Goma v Protect Security & Communication Ltd (2013) SC1300).
  4. Fourthly, even if the plaintiff’s case is regarded as an attempt to prove liability against Lihir Gold for the tort of breach of statutory duty, he has failed to prove, at least, element (b).
  5. The plaintiff therefore has failed to prove any cause of action based on breach of the Employment Act.

CONCLUSION


  1. The plaintiff has failed to prove his case and the proceedings will be dismissed. As to costs, I take the same approach I have taken in a number of cases in which employees have taken their former employers to court for wrongful dismissal, and lost (eg Steven v Ram KC (2016) N6577, Kerowa v Harriman & PNG Power Ltd (2017) N6940, Singadan v Telfer & SGS PNG Ltd (2018) N7072). In the normal course of events if I applied the rule of thumb as to costs I would order the plaintiff to pay the defendants’ costs. However when making any order for costs the court must exercise its discretion according to the circumstances of the case and in the interests of justice. The plaintiff has raised some valid issues and I consider that his employer could have been more honest and open with him about the prospects of his future employment. The Court must strive to make access to justice easy and cheap and to keep its doors open to those persons who have genuine grievances and do not act for any improper motive. I will order the parties to bear their own costs.

ORDER


(1) The plaintiff has failed to establish any cause of action and the proceedings are entirely dismissed.

(2) The parties shall bear their own costs.

Judgment accordingly.
_______________________________________________________________
GP Lawyers: Lawyers for the Plaintiff
Dentons PNG Lawyers: Lawyers for the Second Defendant
Allens Lawyers: Lawyers for the Third Defendant


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