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Colbert v The State [1988-89] PNGLR 590 (28 October 1987)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 590 - James Robert Colbert v The State�

[1988-89] PNGLR 590

N749

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

COLBERT

V

INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Cory J

7-11 September 1987

28 October 1987

EMPLOYMENT LAW - Employer�s liability for injury to employee - Common law duty of care - Scope of - Not to expose to unnecessary risks - Risk of intentional injury from third party - Where employee residing in premises supplied in connection with employment - Failure to provide adequate security measures - Employee stoned by intruder - Employer liable.

NEGLIGENCE - Duty of care - Particular relationships - Employer providing residence in connection with employment - Liability where inadequate security measures - Duty to prevent risk of intentional injury from third party - Teacher living on campus - Teacher stoned by intruder - Employer liable.

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Depressed fracture of skull - Brain damage - Intellectually handicapped - Unfit for employment - Memory loss - Epilepsy - Headaches - Speech defect - Male aged 36 (41 at trial) - Experienced technical trade teacher - Award of K70,000 general damages.

DAMAGES - Measure of - Personal injuries - Sickness benefits - Invalid pension - Payment under Australian law - To be disregarded - Social Security Act 1947 (Aust).

The plaintiff, an experienced technical teacher aged 36 (41 at trial) employed at Iduabada Technical College and residing in a college house on campus, was injured when struck on the head by a stone thrown by an intruder when he went to investigate a noise at a neighbour�s residence after dark. The plaintiff�s house was in a high-risk security area and despite requests to the college by residents remained unfenced and inadequately lighted.

The plaintiff suffered a depressed fracture of the skull requiring surgical reconstruction and resulting in frontal lobe brain damage rendering him so intellectually handicapped as to be totally and permanently incapable and unfit for remunerative occupation: he continued to suffer from memory loss, epilepsy, hallucinations, headaches, speech defects and periodic incontinence. The plaintiff was a qualified and experienced fitter, turner and welder who formerly enjoyed jogging, golf, swimming and fishing.

Held

On liability

(1)����� An employer�s duty to protect an employee from unnecessary risk of injury includes a duty to protect the employee from the risk of injury intentionally caused by a third party.

Houghton v Hackney Borough Council (1961) 3 KIR 615 at 618, followed.

Williams v Grimshaw (1967) 3 KIR 610, referred to.

(2)����� Where an employee resides in premises provided by his employer in connection with or in furtherance of his employment, the employer�s duty to protect the employee from injury includes a duty to make the accommodation provided reasonably safe so as not to expose the employee to the risk of injury.

Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472; Milligan v LJ Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160; Jury v Commissioner for Railways (NSW) [1935] HCA 29; (1935) 53 CLR 273 and McCormick v Ballarat and District Base Hospital Inc [1967] VicRp 53; [1967] VR 498, considered and applied.

(3)����� 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 measures or adopted means reasonably open to him in the circumstances, which would have protected the plaintiff.

Houghton v Hackney Borough Council (1961) 3 KIR 615 at 618 and Turner v South Australia (1982) 56 ALJR 839 at 840, adopted and applied.

(4)����� In the circumstances, the plaintiff was occupying the residence on the campus in connection with or in furtherance of his employment, and the defendant was in breach of its duty to the plaintiff in failing to provide adequate and readily available security measures to the residence.

On damages

(5)����� General damages for pain and suffering and loss of amenities should be assessed at K70,000.

(6)����� Payments or sickness benefits under the Social Security Act 1947 (Aust) which are refundable under that Act were to be disregarded in the assessment of damages.

(7)����� Payments of invalid pension benefits under the Social Security Act 1947 (Aust) were to be disregarded in the assessment of damages.

Redding v Lee; Evans v Muller [1983] HCA 16; (1982) 151 CLR 117, applied.

Cases Cited

Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472.

Charlton v The Forrest Printing Ink Co [1980] IRLR 331.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; 51 ALJR 792; 15 ALR 387.

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18; 30 ALJR 543.

Houghton v Hackney Borough Council (1961) 3 KIR 615.

Jury v Commissioner for Railways (NSW) [1935] HCA 29; (1935) 53 CLR 273; 9 ALJR 81.

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

Lubbering v Bougainville Copper Ltd [1977] PNGLR 183.

McCormick v Ballarat and District Base Hospital Inc [1967] VicRp 53; [1967] VR 498.

McGhee v National Coal Board [1972] UKHL 7; [1972] 3 All ER 1008; (1972) 13 KIR 471.

Milligan v LJ Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160; 2 NSWR 765.

National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569; 35 ALJR 4.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Redding v Lee; Evans v Muller [1983] HCA 16; (1982) 151 CLR 117; 57 ALJR 393; 47 ALR 241.

Turner v South Australia (1982) 56 ALJR 839; 42 ALR 669.

Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316; 38 ALJR 48.

Williams v Grimshaw (1967) 3 KIR 610; 112 SJ 14.

Statement of Claim

This was an action in which the plaintiff sought from his employer damages for personal injuries suffered when he was hit on the head by a stone thrown by an intruder on his employer�s premises.c [1967] VicRp 53; [1967] VR 498.

Counsel

I M Molloy and J P Wright, for the plaintiff.

M White and D Lambu, for the defendant.

Cur adv vult

28 October 1987

CORY J: The plaintiff claims damages arising from the negligence of the defendant in an incident on 10 June 1983 when he sustained serious head injuries. The plaintiff was first employed as a teacher in Papua New Guinea at Arawa Technical College at the beginning of 1979. At the beginning of 1983, he was transferred to the Iduabada Technical College, Port Moresby. The campus of the college comprised classrooms, workshops, playing fields, student dormitories and mess and about twenty houses for the accommodation of the teachers. Prior to the plaintiff�s transfer to Iduabada in 1983, there had been a number of break-ins and attempted break-ins of some of the teachers� houses in 1981 and 1982 and the lack of adequate security measures had given rise to increasing concern amongst the members of staff. At a December 1981 meeting of the Governing Council of the College, the Council had requested the staff association representative to conduct a survey regarding the need for additional security of houses on the college campus. This survey was presented to the Governing Council on 21 June 1982 and it contained a request for the erection of a security fence around the college perimeter, security lighting, security bars to the windows and dead-locks to the front and rear doors. The Principal of the College reported to the Governing Council on 1 July 1982 and at the request of staff the terms of reference of the survey were extended to include opinions on security fencing and lighting. Nine of the residences had requested that security fencing to the residences be erected if a boundary fence was not possible.

After the above survey had been conducted, towards the end of 1982, four new residences were constructed on the campus, one of which was to be eventually occupied by the plaintiff in 1983. These four houses were constructed in a line on the edge of the existing campus with the rear of the houses backing on to a steep hill covered with grass, scrub and some trees. Access to these four houses was by a short, newly constructed road going up an incline which could only be negotiated easily with a four-wheel-drive vehicle. The request by the teachers in the other 20 residences for additional security measures in 1982 had not resulted in any additional security measures being installed on the campus.

When the plaintiff, his wife and family were first transferred to Port Moresby in February 1983, they had been accommodated at the Davara Hotel, Port Moresby. On 22 April 1983, they moved into the house on the campus, the house allocated being the second house from the right-hand end of the row of four houses. There was no security fence around any of these four new houses, nor was there a boundary fence at the back of any of the houses where the houses backed onto the hill covered with grass and bush. There was a fluorescent-tube light on the front verandah, another underneath the house and it would seem that there was another small fluorescent tube at the rear of the house. All the houses were high set and the laundry underneath the house partly obscured the effect of any lighting from the fluorescent tube underneath the house. It would seem that the lighting, as far as the rear of the house was concerned, was only a weak illumination and that it did not extend beyond a few feet from the house structure and beyond that it was, as the plaintiff described it, �pitch black�. During the day time, people who were strangers to the campus were observed from time to time moving around in the area at the rear of these four houses. Likewise at night, people were heard moving about in this area and the barking of the plaintiff�s dog and dogs belonging to the other residents indicated the possibility that people were moving about from time to time in this dark area at the rear of the four houses. At a staff meeting in April 1983, security on campus was discussed as was the problem of an increase in the number of break and enters. It was reported that so far that year there had been five break and enters at the college and several attempted car thefts. Suggestions were made at the meeting for individual fences around each house, a perimeter fence around the college boundary and more lighting. The meeting resolved to put the suggestions to the Governing Council. The plaintiff himself wrote to the Governing Council offering to construct a perimeter fence himself, with the aid of the students and the workshop facilities, if the college would provide the cost of the materials. He had undertaken and completed a similar fencing project when he had been stationed at Arawa Technical College. The Principal of the College, as Executive Officer of the Governing Council, rejected the plaintiff�s suggestion because of lack of funds and also because of an unresolved land dispute between the traditional land owners.

When the plaintiff moved onto the campus in April 1983, his duties included supervision of the students� night studies and certain other extra-curricula activities such as supervision of sporting and students� social activities. Many of these activities were carried out outside the normal 33 hours of work between 8 am and 4 pm.

Prior to the incident of 10 June 1983, it was the practice of the plaintiff�s next-door neighbour, Mr MacArthur, to go out each Friday evening to the Aviat Club and on these occasions, as a security measure, he always arranged for some students to come to his house to watch the video. When this happened, the arrival of the students would cause the dogs nearby to bark and sometimes the students would tease the dogs, causing them to bark further.

On Friday evening, 10 June 1983, the plaintiff heard dogs barking outside and thought it was probably students coming over to MacArthur�s house. The barking seemed to settle down and then after a few minutes to start up again. The plaintiff heard his neighbour, Mr Wickham, call out to someone in a reprimanding voice and the plaintiff, believing that it was the students, told his wife that he would go out and help Wickham quieten the students down. The plaintiff went outside and walked across to the rear of MacArthur�s house; at this stage the plaintiff�s dog was snarling and growling, indicating the presence of someone in the vicinity; the plaintiff noticed that something was wrong; Wickham was at the back steps of MacArthur�s house about to walk up and the back door was opened. The plaintiff called out to Wickham and then a rain of stones began hitting the ground. The plaintiff saw a stone coming towards his face when it was only a short distance from him, he tried to avoid it but the stone struck him on the head and he fell unconscious to the ground. Wickham carried the plaintiff back up the steps of the plaintiff�s house and during this time a rain of stones continued to hit the ground and the steps. Inside the house, the plaintiff noticed that his skull had been fractured and that he was seriously injured. The plaintiff was taken to Port Moresby Hospital and admitted; he was transferred to Brisbane Hospital on the Sunday where he was operated on, on Monday, 13 June 1983. The plaintiff sustained permanent brain damage causing substantial residual disability which will be referred to in more detail under damages. The plaintiff returned to Port Moresby in October 1983 where he was able to carry out restricted duties of a supervisory nature until the end of the school year.

Following the plaintiff�s accident in June 1983, further requests were made to the Governing Council of the College for the installation of additional security measures, but nothing was done. In about February 1984, there was a break-in at Mr MacArthur�s house at night in which his video was taken out onto the back steps, but the intruders were interrupted by Mr MacArthur�s unexpected return, stones were again thrown and the people then ran off. Following this incident, the college provided spotlights which were affixed by the staff members to three of the four houses. These spotlights illuminated the hill at the rear of the four houses for a distance of about 50 metres and anyone moving in that area was observable. Following the installation of these spotlights, there were no further break-ins of any of the four residences. The next break-in in 1984 was at a residence of a Mr Leech. This house was past the four houses, in an area which was still dark and had not been illuminated. In this incident, Mr Leech had been struck with an iron bar and his wife dragged out into the yard. Shortly after this, there was a physical attack upon the warden of the college at his residence. Following this incident, a perimeter fence was erected around the college, the fence passing along the rear of the four houses and the grass and bush were cut back up to the fence.

During 1982 and 1983, there had been an increase in crime generally in the Port Moresby area, including break and enters and violence associated with such incidents. In some of these incidents the intruders when disturbed had thrown stones. The increase in security problems on the college campus was a reflection of the increase in crime generally in the community. I accept the evidence called by the plaintiff that a number of other organisations in Port Moresby adopted a number of security measures to deter break and enters. These were: Air Niugini, Post and Telecommunication Corporation, Burns Philp Ltd and Papua New Guinea Electricity Commission. These measures included 6ft security fences topped with three strands of barbed wire, spotlighting, alarm systems and patrols by security guards. In cases where a particular security problem developed, such as an attempted break-in or a break-in at an adjoining residence, these other organisations responded with specific measures to deal with the specific problem. I find it reasonable to infer that the adoption of these security measures made it less likely that break-ins would be attempted at those residences.

LIABILITY

The plaintiff in seeking to establish liability in the defendant relies upon breaches by it of its common law duty to him as one of its employees not to expose him to unnecessary risk of injury. This duty of care arises under the general law and the courts of Papua New Guinea have adopted the English common law cases in this area as part of the Underlying Law. For example, Lubbering v Bougainville Copper Ltd [1977] PNGLR 183 in the judgment of O�Meally AJ at 190.

Does the duty to protect an employee from unnecessary risk of injury include the duty to protect the employee from the risk of injury intentionally caused by a third party? The English cases support the proposition that the employer�s duty of care does extend to cover this risk. In the case of Houghton v Hackney Borough Council reported in (1961) 3 KIR 615, a decision of the Queen�s Bench Division, Diplock J stated (at 618):

�... it is an employer�s duty to take reasonable care to see that his employees are not exposed to unnecessary risks, even if it be the risk of injury by criminals.�

In that case, the plaintiff, a rent collector employed by the defendant council, had been held up and injured in a robbery while he was collecting rents in an office in a housing estate. Diplock J proceeded in his judgment to state that what the court was concerned with in that case was �what precautions they (the employer) might reasonably take to protect their employees from injury�. The dicta of Diplock J was applied in Williams v Grimshaw (1967) 3 KIR 610 in the judgment of Phillimore J at 612-613. Counsel for the plaintiff advises that it has also been applied in the Court of Appeal in Charlton v The Forrest Printing Ink Co [1980] IRLR 331 at 333, but I have not been able to obtain this report. The view expressed in the above English cases in relation to the duty of an employer to use reasonable care for the safety of his employee in those circumstances, is also supported by Australian authorities. Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472 is a case where an employee (the plaintiff) and his wife occupied living quarters provided by the employer. In the course of his employment, the wife died as a result of a bite from a savage rabid dog within the living quarters. Meares J (at 481), although obiter on the point, stated:

�The first count in the declaration alleges a master and servant relationship between the plaintiff and the defendant, a term of which was that the plaintiff and his wife should live in quarters provided by the defendant and that the plaintiff would pay the defendant for the use of such premises. These allegations, if proved, establish, in my view, a �relationship� between the plaintiff�s wife and the defendant arising from the plaintiff�s employment by it. Had the plaintiff been savaged by the dog within the premises I believe he would have had a cause of action, not as a result of a breach of any duty an owner or occupier owes in relation to the static condition of his premises or even to a current operation carried on therein, but as a result of the general duty of an employer to use reasonable care for the safety of his employee.�

The risk to which the employee and his wife were liable in an attack by a pack of savage dogs in that case, is somewhat similar to the risk of attack to which the plaintiff in the present case was liable, if he happened to interrupt a gang of rascals in an attempted break-in.

The duty of the employer to safeguard the employee from unnecessary risk of injury includes providing the employee with safe premises which in turn includes accommodation provided by the employer to the employee as part of his terms of employment. In Baar v Snowy Mountains Hydro-Electric Authority, Meares J (at 481) said:

�... then, again, Mr McHugh relies on the duty of care owed by a master to his servant, which includes a duty to take reasonable precautions in respect of the means of ingress to and egress from not only his place of work... but also to and from premises provided by an employer in which an employee is required to live [Milligan v LJ Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160].�

In Milligan v LJ Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160, the plaintiff was a real estate saleswoman employed by the defendant. The term of her contract of employment was that she would live in a demonstration house owned by a company associated with the defendant and situated in a housing estate. The plaintiff slipped while walking across boards on her way to work and suffered injury. The judgment of Sugerman JA (at 162-163) referred to the employer�s duty in those circumstances as follows:

�The common law imposes upon an employer a duty to take reasonable precautions against injury to his employee through an unnecessarily dangerous condition or character of his premises. In providing a place on his premises for his employee to inhabit in his character of employee, the employer incurs a duty to him of reasonable care for his safety; it is incumbent upon the employer to take all reasonable precautions in providing the place, including approaches and means of access. The relevant question is not whether the employee is obliged to live in the place provided, or has complete liberty of action outside ordinary hours of labour. It is whether, in providing the place, the employer is acting under the contract of service, and, in dwelling there, the employee is responding to the demands of the employment. A wide view has always been taken of the activities or matters to which the character of employee extends; whenever the employee is upon the employer�s premises in connection with or in furtherance of his employment he goes there in that character. See the judgment already referred to of Rich and Dixon JJ in Jury�s case [1935] HCA 29; (1935) 53 CLR 273 at 280-283.�

In Jury�s case (Jury v Commissioner for Railways (NSW)), the deceased was a fettler employed by the respondent, and with other fettlers was encamped in a camp established by the respondent at the side of the railway line and in the joint judgment of Rich J and Dixon J (at 280) the employer�s duty is stated as follows:

�It thus appears that the Commissioner accommodated the men with a camp as a condition of the employment. No doubt the men were not obliged to live in it and when living in it had complete liberty of action outside hours of labour. But it remains true that in camping the men on railway premises the Commissioner was acting under the contract of service, and in dwelling there the deceased was responding to the demands of the employment...

(at 281)... the common law does impose upon the employer a duty to take reasonable precautions against injury to his employees through an unnecessarily dangerous condition or character of his premises or plant...

(at 282) A wide view has always been taken of the activities or matters to which the character of employee extends. Whenever the employee is upon the employer�s premises in connection with or in furtherance of his employment he goes there in that character.

(at 283) The consequence in the present case is that in providing a camp on his premises for the deceased to inhabit in his character of employee the Commissioner incurred to the deceased a duty of reasonable care for his safety. It was incumbent upon him to take all reasonable precautions in providing a place for a camp including approaches and means of access.�

In passing, it might be noted that amongst the precautions which it was alleged that the Commissioner for Railways had failed to take in that case, was a count alleging an omission to light the track leading from the camp across the railway lines in a sufficient manner during hours of darkness.

The law as expounded in Jury�s case was applied in McCormick v Ballarat and District Base Hospital Inc [1967] VicRp 53; [1967] VR 498, in the judgment of McInerney J, at 502-503.

Applying these principles to the facts of the present case, I find that in the defendant providing accommodation to the plaintiff on the college campus and in the plaintiff occupying those premises he was then on those premises in connection with or in furtherance of his employment. He was required and, in fact, performed the extra-curricula activities mentioned earlier, outside normal hours and in doing so he was providing a benefit to the defendant. In the circumstances, the defendant owed a duty of care to the plaintiff not to expose him to unnecessary risk of injury and as part of that duty, to make his accommodation on campus reasonably safe so as not to expose the plaintiff to risk of injury from criminals. As was stated by Meares J in Baar v Snowy Mountains Hydro-Electric Authority (at 481):

�... it does seem that a duty is relatively readily found to exist if there be a relationship between the parties and arising from it there is some benefit to the defendant, whether such benefit be financial or otherwise.�

BREACH OF DUTY

The test as to whether a defendant employer has failed to protect his employee from unnecessary risk of injury is stated by Diplock J in Houghton v Hackney Borough Council (1961) 3 KIR 615 at 618, as follows:

�The test must be: has the employer taken reasonable care, paying proper attention to the risk and paying reasonable attention to the other circumstances?�

In Turner v South Australia (1982) 56 ALJR 839, the High Court in Australia adopted the following test as stated by Gibbs CJ at 840:

�The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25. The employer is not an insurer of his employees against danger. �For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.�: Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319... Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.�

On the facts in the present case, the plaintiff�s house was in a high-risk security area. The house backed onto a hill which was covered with grass, scrub and some bush which was unlit and which was unfenced. In 1982 and 1983, there had been break-ins and attempted break-ins on campus and the security problems were increasing, as was the crime situation in Port Moresby generally. In these circumstances, I find that it was reasonably foreseeable, in all the circumstances, that at some stage the plaintiff was likely to sustain injury in confrontation with some intruders who came onto campus with criminal intent. In view of the security measures adopted by other employers, I find that there was a security measure readily available to the defendant, in the form of either floodlighting at the rear of the premises and/or individual fencing of the premises which would have substantially reduced the risk of injury, if not eliminated it completely. That this is the case is supported by the fact that after floodlights were fitted to the rear of three of the four houses, lighting up the hill side at the rear of the four houses to a distance of about 50 metres, there have been no further acts of violence to any of the residents of these four houses up to the present time. There has, however, been a break-in accompanied by violence at a house slightly beyond these four houses, Mr Leech�s house, the house in question being in a dark area which was not floodlit. I find that the floodlighting of the hill side at the rear of the plaintiff�s premises in itself would have been sufficient to reduce substantially the risk of injury from intruders and that if that precaution had been adopted, the injury would probably have been averted. The cost of installing floodlighting on the premises was assessed at about K100 each; this was a small amount of expenditure. Likewise the erection of individual security fences around the plaintiff�s residence could have been carried out at a cost within reasonable limits. The defendant was in breach of its duty in failing to adopt these measures. I find that the defendant in failing to adopt these security measures substantially increased the risk of injury to the plaintiff and that it thereby materially contributed to the injury which the plaintiff in fact suffered: McGhee v National Coal Board [1972] UKHL 7; [1972] 3 All ER 1008.

LIABILITY OF THE STATE

The defendant has submitted that it is not liable on the grounds that the decision to supply fencing and other security measures was a decision involving the allocation of government funds and that as this was a decision at the �planning� level of government, such a decision would not give rise to liability in negligence. The defence also submitted that as it is a public body, it has a discretionary power to perform certain acts and as such it is not liable in negligence if it fails to perform or delays in performing that act. I reject the first submission, the negligent action of the defendant falls within the �operational� area and not the �planning or policy� area of the defendant: see Hogg, Liability of the Crown, 1st ed (1971) at 85-87. I likewise reject the second of the defendant�s submissions. The plaintiff seeks to make the State liable for breach of its duty as an employer, not for its action in exercising or not exercising a discretionary function.

The State is liable in contract and in tort: by virtue of the Constitution, s 247(2) and s 2 of the Claims By and Against the State Act (Ch No 30) which provides as follows:

�2.����� A person making a claim against the State in contract or in tort may bring the suit against the State, in respect of the claim, in any court in which a suit may be brought as between other persons.�

Section 5 is as follows:

�5.����� Rights of Parties

In a suit to which the State is a party:

(a)����� the rights of parties, as nearly as possible, are the same; and

(b)����� judgment may be given and costs awarded,

as in a suit between other persons.�

The State�s liability in tort is also set out in the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 1 of which provides as follows:

�1.����� General Liability of the State in Tort

(1)����� Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity it would be subject:

(a)����� in respect of torts committed by its servants and agents; and

(b)����� in respect of any breach of the duties that a person owes to its servants or agents under the underlying law by reason of being their employer; and

(c)����� in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.�

CONTRIBUTORY NEGLIGENCE

I find that the plaintiff is not liable for contributory negligence. The plaintiff, in going outside the house in the circumstances in which he did, was not aware at that time that there was any danger and he did not, in those circumstances, fail to take reasonable care for his own safety.

DAMAGES

Pain and suffering and loss of amenities of life

In assessing damages under this head, I apply the principles adopted in Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 as set out in the judgment of Andrew J, at 269, namely, the assessment needs to take into account that the plaintiff in this case was an Australian working in Papua New Guinea who intended and did return to Australia, together with the economic standards prevailing in Papua New Guinea.

The plaintiff was 36 years of age at the time he was injured. After he had obtained his Intermediate Certificate in New South Wales, he had completed an apprenticeship as a fitter and turner with the New South Wales Railways. He had then worked at his trade for two to three years in Australia before proceeding overseas. He worked as a fitter and turner on the North Sea Oil Rigs in the United Kingdom and later worked in South Africa. He worked for some years in a mining company in Zambia, his work there included training nationals of Zambia. After some years he returned to Australia and worked first of all in Western Australia and then in Sydney at Huttons, training immigrant workers in the use of machinery. While in this position he obtained a certificate in refrigeration and plant operation. In 1975, he had married and while he had been working at Huttons, his wife had been employed as a secretary to a managing director of a large multinational company in Sydney. In 1979, he took up an appointment as a steel fabrication and welding teacher at Arawa Technical College as an education officer level 2 and his wife took up the position at the same college as a teacher of secretarial studies at education officer level 1. Within the year the plaintiff was promoted to education officer level 4. In 1981, he had been offered the position of Deputy Principal at the Arawa Technical College but he had declined as he wished to remain in the field of teaching. While at Arawa he took an external studies course in agriculture and obtained his certificate from Sydney Technical College. At the beginning of 1983, he was transferred to the Port Moresby Technical College to teach welding to refrigeration students. At this time he and his wife had two children and his wife was pregnant with the third child.

On the Friday evening, 10 June 1983, the plaintiff had been struck on the head by a rock and knocked unconscious in the circumstances described earlier. After he had been carried inside, he recovered consciousness and then realised that he had been seriously injured. On feeling his head, he found that there was a hole in the bone structure of his skull about three centimetres in diameter. He was taken to Port Moresby Hospital and his condition and treatment from that point is set out in the report of Dr C B Campbell of the Royal Brisbane Hospital dated 21 October 1983 which in summary is as follows:

�Four hours after injury he suffered a grandmal convulsion, but recovered to normal consciousness. X-rays in Port Moresby showed a depressed skull fracture. On admission to the Royal Brisbane Hospital on 12 June 1983 he was observed to be drowsy. Examination revealed a three centimetre diameter depressed fracture in the left frontal region. On 13 June 1983, an operation was performed and the fracture complex was exposed. There was brain herniating through the fractured site. Underlying the fracture there was a dural laceration and a cortical laceration. There was some superficial intra-cerebral haematoma. Surrounding the necrotic brain was excised. The dura was closed and the bone fragments replaced. He was in hospital about three weeks and was then discharged and was reviewed at neuro-surgical outpatients on 15 July 1983. At that time he was suffering occasional headaches and there had been some interference with his memory. He was having mild difficulties with spelling and speech fluency.� [The report concludes in stating that the plaintiff had suffered] �a severe head injury involving a dural and a cortical laceration with an intracerebral haematoma.�

The plaintiff returned to Papua New Guinea in October 1983, though there had been little improvement in his condition, after he had been last seen at the outpatients at the Royal Brisbane Hospital. The plaintiff resumed his position at the Port Moresby Technical College but was placed on restricted duties involving supervision and revision. He was able to carry out this work during November till he reached the six-weeks school holiday period over Christmas. He returned to Brisbane and continued attending the neurological outpatients at the Royal Brisbane Hospital in December 1983 and January 1984. Upon his return to Port Moresby Technical College at the end of January 1984, he found that he was unable to carry out his duties. At times he suffered from convulsions and also hallucinations, his speech defect affected his teaching ability. He suffered from headaches. He consulted Dr Damena a couple of times and when he found that his condition seemed to be getting worse, he resigned in March 1984 and returned to Brisbane. The plaintiff�s condition at this stage is set out in the report dated 21 February 1985 of Dr John Bradfield, a neuro-physician, who examined him on 31 May 1984. This report in summary is as follows:

� �He had poor memory � often misplaced things around the house � had poor concentration � had forgotten his accompanying children when shopping. Complained of headaches � described as bi-frontal moderately severe constant pains. He had developed a speech impediment. Since the injury he had developed epilepsy which was moderately controlled on anti-convulsant medication.� The doctor considered that his memory and speech disturbance were consistent with organic pathology. His medication was changed and when he was last seen on 18 September 1984 he had no further convulsions but still complained of poor memory in that he was leaving taps on, misplacing things around the house and would get lost in his environment, his memory was poor for recent events. On 18 September 1984, it was some 15 months after his initial injury and in view of his poor memory and neurological complaints, I did not consider he would ever be fit enough again to teach in a technical college.�

At this stage the plaintiff and his family went to live on a property some distance from Muswellbrook in New South Wales and it would seem that from the time he was last seen by Dr Bradfield on 18 September 1984 up until the trial of this action in September 1987 his condition remained stationary. He continued to suffer from headaches, these headaches seemed in particular to be precipitated by any exertion such as mowing the lawn or driving in a car for any distance. Exertion also made him bad tempered and irritable. During this period he suffered from incontinence and vertigo, falling over a number of times. He got depressed and felt a loss of self-esteem. He was unable to play freely with his children because of fear that he might bump his forehead. His wife had to watch over his activities continually and organise his clothing and meals. The plaintiff at times had left bath taps on, causing the bath to overflow, and left the gas turned on. Prior to his injury, he used to be a regular jogger and engaged in golf, swimming and fishing. He was unable to do these activities now. His wife attended to all business and financial matters.

Mr Peter Briggs, a clinical psychologist, examined the plaintiff on 16 April 1987 and prepared a report dated 23 April 1987. This examination showed that:

�Mr Colbert�s intellectual functions were equivalent to those of a mildly intellectually handicapped person. His verbal IQ score was 71 (the average is 100) this placed him in the lowest four per cent of the population for his age.�

The report states that:

�These results reveal that Mr Colbert is intellectually functioning at a very low level and certainly would not be capable of employment.�

The report continues that there are a number of components which showed that the plaintiff�s intellectual functioning appeared deficient:

�(a)��� Memory impairment. His memory functioning was certainly in the intellectually handicapped range and in my assessment he would be functioning in the lowest one per cent of the population for his age... in my opinion he could not even perform basic sheltered workshop level activities without considerable assistance.

(b)����� Problem solving. Mr Colbert has difficulty in making sense of information.

(c)����� Concentration � impaired.

(d)����� Employment. �He has lost all chance of being employed on the open market... it is further my opinion that Mr Colbert�s intellectual functioning will not improve and so his employment prospects will continue to remain non existent.� �

The report then continues to look at the plaintiff�s emotional problems:

�Depression

Mr Colbert has experienced severe bouts of depression since the head injury... I predict that he will continue to have bouts of depression for many years.

Anger

Since the head injury he has had a number of serious angry outbursts bordering on rage.

Headaches

Mr Colbert reports experiencing extreme headaches on virtually a daily basis. They appear to intensify and respond to stress, concentration, or excessive exertion.

Speech

In interview he had word-finding difficulties and at time stammered. The speech problem causes Mr Colbert considerable embarrassment and contributes to him wanting to avoid most people.

Socialisation

Before the accident he was sociable and pleasant. Since the injury he rarely socialises. He has lost his social confidence and he prefers to stay at home.

Loss of independence

Since the injury he has become very dependent on his wife. He is now virtually unable to go out without his wife.

Conclusion

In my opinion Mr Colbert will not be able to obtain employment in the future. He has suffered considerably, psychologically and emotionally. His life has been irrevocably impaired by the head injury.�

This assessment by the clinical psychologist, Peter Briggs, in April 1987 repeated the findings in the assessments which had already been made by Michael De Groot, a psychiatrist who had examined the plaintiff on 7 July 1986. His report is dated 8 July 1986. A comparison of the report shows that there had been no improvement in the plaintiff�s condition in the interim.

The final assessment and most recent report is that of Dr Burton Bradley, psychiatrist, who examined the plaintiff on 30 June 1987 and prepared a report dated 12 July 1987 and who gave evidence at the hearing. His report included a repetition of the earlier assessments, including the following:

�(1)��� Gross memory disturbance... at times he gets lost and cannot find his way home. Invariably overflows the bath if not supervised.

(2)����� Incapable of carrying out sequential activity.

(3)����� His wife has to be with him all the time to assist him with the most simple tasks such as getting dressed.

(4)����� Has attacks of rage for no apparent reason.

(5)����� His intellect is impaired.

(6)����� He has periodic both faecal and urinary incontinence.

(7)����� There has been a marked personality change. Formerly a very active and creative man he has now been reduced to a state of nothing � a result of the frontal lobe brain injury.

(8)����� He has fallen over on a number of occasions.

(9)����� Recurring nightmares.

(10)��� He suffers from fatigue and dizziness.

Summary

The above symptoms are the result of the loss of frontal lobe brain functions, the result of the rock that was thrown at him. He is totally and permanently incapable and unfit for remunerative occupation.�

These observations and assessments in the medical reports are supported by the evidence of the plaintiff and his wife. In the light of the serious and permanent disability which the plaintiff has sustained and the continuing pain and suffering which he is experiencing now and will incur into the future, I consider that a fair award for past and future suffering and loss of amenities and enjoyment of life is K70,000.

ECONOMIC LOSS

But for the injury, I consider that the plaintiff would have continued as a teacher at the Port Moresby Technical College for a further three (3) years and that in 1987, on the basis of his experience and qualifications, he would have been able to obtain a position as a teacher at the Muswellbrook Technical College. I accept the figures submitted for his anticipated salary and loss of earnings in both Papua New Guinea and in New South Wales. When he returned to Australia for a time he was in receipt of sickness benefits under the Social Security Act 1947 (Aust) and later an invalid pension. I disregard the payments received by the plaintiff for sickness benefits, as the Australian Act makes provision for these to be refundable to the Commonwealth of Australia. In relation to the invalid pension payments, there is no provision requiring reimbursement of monies received as invalid pension; however, it is obvious from a consideration of s 28(2) of the Social Security Act 1947 (Aust), which applies both an income and an asset test in determining whether a person is entitled to an invalid pension, that the effect of the award which the Court proposes to make, will be that the plaintiff�s invalid pension entitlements will be cancelled from the date he receives his award for damages. The residual question then is whether the invalid pension which he has received up to the date of his award should be disregarded or not. This question was considered in Redding v Lee; Evans v Muller [1983] HCA 16; (1983) 151 CLR 117 in which the Social Security Act 1947 (Aust) was considered and it was therein decided that in the assessment of damages to be awarded in an action for personal injuries caused by negligence, payments, actual and prospective, of an invalid pension granted for permanent incapacity to the invalid plaintiff should be disregarded, following an earlier decision of the High Court in National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 where Dixon CJ (at 573), said:

�Yet they [invalid pensions] have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him.�

Since Redding v Lee there have been no amendments to the Social Security Act which would change the effect of that decision. In the circumstances, I disregard the invalid pension payments received by the plaintiff.

If the plaintiff had remained as a teacher at the Port Moresby Technical College, he would also have continued to enjoy the benefit of a three-bedroom residence and I accept the evidence given by the real estate valuer as to a fair rental value for that residence. In the circumstances, I allow the following amounts for past loss of income:

FUTURE LOSS OF EARNING CAPACITY

On the basis of the plaintiff�s qualifications and experience, I consider that, in Australia from October 1987, it was likely that he would have earned either as a teacher or a fitter and turner, a wage equivalent to K240 a week net. Applying Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 at 170, using 3 per cent discount tables and discounting the capital sum there arrived at to allow for uncertainties of life, that the plaintiff may get sick or die prematurely, at the rate allowed in Pinzger of 14 per cent, gives the following calculations:

FUTURE EXPENSES

These claims cover visits to a general pracitioner and for CAT scan and expenses for medication not provided free to the plaintiff. I consider these are reasonable, allowable and calculated as follows:

NURSING AND DOMESTIC SERVICES

Under the principle in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, damages are recoverable for the commercial value of nursing or domestic services provided gratuitously by a relative or friend. It would seem reasonable to provide in this case for this expense; the plaintiff�s wife carries out various domestic and nursing services for him and will continue to do so in the future.

Allowing K65 per week for services provided over the past 4 years and for, say, the next 26 years.

INTEREST

On the basis of Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, interest is allowable on past losses from the date of the accident till the date of the trial at half the rate of 8 per cent, where the loss is spread over four years, calculated as follows:

Judgment for the plaintiff for K448,711.

ORDER

(1)����� Defendant to pay plaintiff 8 per cent interest on the judgment on balance outstanding from time to time until payment in full, with liberty to the plaintiff to apply to vary the rate of interest if there is delay by the defendant in paying all or part of the judgment.

(2)����� Defendant to pay the plaintiff�s costs, and I certify for costs of overseas counsel.

(3)����� Twenty-eight (28) days general liberty to apply.

Orders accordingly

Lawyers for the plaintiff. Beresford Love Francis & Co.

Lawyer for the defendant: State Solicitor.