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Bernard v Marshall [2015] PGNC 225; N6030 (22 July 2015)

N6030

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 767 OF 2014

KEITH BERNARD
Plaintiff

V

ANDREW MARSHALL
First Defendant

KEN ROHEN
Second Defendant

NOSRIDA LIMITED
Third Defendant

Madang: Cannings J
2015: 8th, 22 th July

DAMAGES – breach of contract of employment – assessment of damages following trial on liability – failure by employer to terminate contract of employment in accordance with provisions – claim for damages of K23, 508.00.

The plaintiff established liability in breach of contract against the third defendant, his former employer, due to its failure to terminate the contract of employment in accordance with its provisions. It was an oral contract that could be terminated by either party giving four weeks' notice to the other party. The employer orally terminated the contract without notice during the course of an altercation between the plaintiff and his immediate boss, the first defendant, and there was insufficient evidence that it could be regarded as termination for cause. The plaintiff claimed three categories of damages: general damages, K11, 008.00; special damages, K7, 500.00; exemplary damages, K5, 000.00; a total of K23, 508.00.

Held:

(1) For general damages, K1, 008.00 was awarded for salary in lieu of notice plus K4, 000.00 for pain and suffering, a total of K5, 008.00.

(2) Nothing was awarded for special damages or exemplary damages. The total award of damages was K5, 008.00. The defendant failed to argue any reason for discounting that amount.

(3) In addition, interest of K432.69 was awarded. The total judgment sum was K5, 440.69. The parties were ordered to bear their own costs.

Cases cited:

The following cases are cited in the judgment:

Bal Bar v Maima Kora (2008) N3290
Bromley v Finance Pacific Ltd (2001) N2097
Bruno Denfop v Jant Ltd (2015) N5869
Christopher Kondai v Lon Sike & PIMS (2014) N5721
Dobiam Kope v Tourism PNG Ltd (2010) N4138
Keith Bernard v Andrew Marshall, Ken Rohan & Nosrida Ltd (2015) N5850
Koimo v The State [1995] PNGLR 535
Latham v Peni (1990) N1463
Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951
Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605
PNGBC v Jeff Tole (2002) SC694
Timothy Con v Jant Ltd (2014) N5721
Tomba v The State (1997) SC518

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for breach of contract.

Counsel

B B Wak, for the plaintiff
A Marshall, with leave, for the defendants

DAMAGE

22nd July, 2015

1. CANNINGS J: This has been a trial on assessment of damages. The plaintiff, Keith Bernard, established liability in breach of contract against his former employer, the third defendant, Nosrida Ltd, due to its failure to terminate his contract of employment in accordance with its provisions. It was an oral contract that could be terminated by either party giving four weeks' notice to the other party or four weeks' salary in lieu of notice. The employer orally terminated the contract without notice during the course of a verbal and physical altercation between the plaintiff and his immediate boss, the first defendant, Andrew Marshall, on Sunday 22 June 2014. There was insufficient evidence that it could be regarded as termination for cause. Further details of why the third defendant is liable are in the judgment on liability, Keith Bernard v Andrew Marshall, Ken Rohan & Nosrida Ltd (2015) N5850.

2. The plaintiff claims three categories of damages: general damages, K11, 008.00; special damages, K7, 500.00; exemplary damages, K5, 000.00; a total of K23, 508.00.

1 GENERAL DAMAGES

3. The plaintiff claims two components of general damages: (a) K1, 008.00 representing four weeks salary in lieu of notice, which the court has found he is entitled to, but which has not been paid to him, plus (b) K10, 000.00 for pain and suffering to compensate him for the trauma caused to him and his family due to the unlawful termination of his employment.

4. As to (a), I award the amount claimed, which is not contested. As to (b), I uphold the submission of Mr Wak that this is an appropriate component of general damages and that there is ample evidence of the plaintiff and his family being inconvenienced and suffering hardship as a direct consequence of the breach of contract that occurred. I have considered the circumstances in which the plaintiff's employment was terminated and the length of time – seven years – he was employed, and compared the facts of this case with other cases recently decided in which the plaintiffs, former employees, were awarded a similar component of general damages: Christopher Kondai v Lon Sike & PIMS (2014) N5721 = K3,000.00; Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605 = K4,000.00; Timothy Con v Jant Ltd (2014) N5721 = K5,000.00, Bruno Denfop v Jant Ltd (2015) N5869 = K8,000.00. I award K4, 000.00.

2 SPECIAL DAMAGES

4. The plaintiff claims three components of special damages: (a) K2, 000.00 for the cost of a hire car to move his property and family to his new place of residence at Nagada, plus (b) K500.00 for food and accommodation and other expenses connected with him following up the issue of his formal dismissal with the third defendant, plus (c) K5, 000.00 for repatriation expenses to his place of recruitment, Lae.

6. Special damages are intended to compensate the innocent party for some sort of loss or damage incurred that is not presumed by the law to have been incurred. It is a special sort of damage that must be expressly pleaded and proved (PNGBC v Jeff Tole (2002) SC694, Bal Bar v Maima Kora (2008) N3290, Dobiam Kope v Tourism PNG Ltd (2010) N4138).

I reject all these claims as none was pleaded in the statement of claim.

3 EXEMPLARY DAMAGES

7. The plaintiff claims K5, 000.00 exemplary damages due to the first defendant, Andrew Marshall, acting beyond his powers and terminating the plaintiff in unwarranted circumstances without proper regard for the life and dignity of the plaintiff and his family.

8. Exemplary damages is a special category of damages awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant for a particularly egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (Tomba v The State (1997) SC518, Latham v Peni (1990) N1463, Koimo v The State [1995] PNGLR 535, Bromley v Finance Pacific Ltd (2001) N2097).

9. Should the third defendant be punished because of the way in which Mr Marshall terminated the plaintiff's contract of employment? In determining this issue, I find that Mr Marshall did not act without authority in sacking the plaintiff. The breach of contract arose due to the third defendant's failure to give notice or pay salary in lieu of notice in accordance with the Employment Act. It must be borne in mind that at the trial on liability the court was presented with conflicting evidence as to what led to the altercation between the plaintiff and Mr Marshall and what actually happened. The plaintiff's evidence was that he was with his family in his home on the evening of Sunday 22 June 2014 when Mr Marshall kicked open the door and came inside without invitation and searched for unauthorised persons who might be on the premises and assaulted him without lawful excuse in front of his wife and children. Mr Marshall's evidence was that he went to the plaintiff's residence to approach him with an allegation that he had been seen driving an unregistered vehicle of the third defendant earlier in the day and that he was observed to be under the influence of alcohol. Mr Marshall testified that the plaintiff became angry when confronted with the allegations and grabbed him by the throat, so he turned to leave, at which point the plaintiff punched him in the head several times. I was not persuaded that the plaintiff's version of events was the correct one or that he was a passive victim or that Mr Marshall acted unlawfully.

10. In light of those findings, an award of exemplary damages is not warranted. Nothing is awarded.

SUMMARY

11. For general damages, K1, 008.00 is awarded for salary in lieu of notice plus K4, 000.00 for pain and suffering, a total of K5, 008.00. Nothing is awarded for special damages or exemplary damages. The total award of damages is K5, 008.00. The defendant failed to argue any reason for discounting that amount, so it remains as the total award of damages.

INTEREST

12. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date on which the cause of action accrued (22 June 2014) to the date of this judgment, a period of 1.08 years, by applying the formula D x I x N = A, where: D is the amount of damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus: K5, 008.00 x 0.08 x 1.08 = K432.69.

COSTS

13. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. In this case there is no clear winner. The plaintiff has on the one hand succeeded in obtaining an award of damages. On the other hand he succeeded in convincing the court that only 21.3% of his claim (K5, 008.00 out of K23, 508.00) had merit. The defendants succeeded in showing that the bulk of the claim was misconceived. In these circumstances the approach taken in Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951 is the most appropriate: the parties will bear their own costs.

ORDER

(1) The third defendant shall pay to the plaintiff damages of K5, 008.00 plus interest of K432.69, being a total judgment sum of K5, 440.69, within 30 days after the date of judgment.

(2) The parties will bear their own costs.

(3) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly

________________________________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiff
Gamoga & Co Lawyers: Lawyers for the Defendants