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Kilyali v Tumbiari [2023] PGNC 336; N10498 (5 October 2023)

N10498

PAPUA NEW GUINEA
[IN NATIONAL COURT OF JUSTICE]

WS NO. 42 OF 2023

BETWEEN:
JIM KILYALI
-Plaintiff-

AND
DANIEL TUMBIARI
- First Defendant-

AND
RONNY ANGU
-Second Defendant-

AND
RAPHAEL PANI
-Third Defendant-

AND
MARAGO DAGOBA
-Fourth Defendant-

Lae: Dowa J
2023: 11^th September & 5^th October

NEGLIGENCE – Breach of statutory duty under Teaching Service Act- whether the plaintiff proved on the balance of probabilities that the defendant's owed a statutory duty of care-whether duty breached-Damages- Plaintiff has burden to prove damages with credible evidence- -assessed and Judgment granted.

Cases Cited:
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302
Allen Anis v Dobon Taksey (2011) N4468
Woolcot -v- Nivani Ltd (2023) SC2335
Goma and Others -v- Protect Security & Communication Ltd (2013) SC1300
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State (1995) N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Warivama-v-Sapay (2013) N5319

Counsel:
B. Tomake, for the Plaintiff
No appearance by the Defendants

JUDGMENT

5^th October 2023

1. DOWA J: This is a judgement on both issues of liability and damages.
   

Background Facts

2. The Plaintiff is the head teacher of Habare SDA Primary School in Tari, Hela Province. The Defendants in their capacities as District Education Advisor, Director Education Service, Teachers Appointment Officer and Provincial Administrator of Hela Province and being members of the PEB unlawfully removed the Plaintiff as Headmaster of Habare Primary School. The Plaintiff appealed the decision to the Teaching Service Commission of Papua New Guinea. The Teaching Service of Commission of PNG, after considering the appeal, reinstated the Plaintiff to the position as Head Teacher for the academic year 2022-2023.
   
3. The Plaintiff is claiming against the Defendants expenses he incurred whilst pursuing his reinstatement and for general damages for unlawful removal of his position as Head Teacher.
   

The Proceedings

4. The Writ of Summons was filed 15^th February 2023. The Defendants were all served copies of the Writ of Summons. The Defendants did not file a Notice of Intention to Defend nor a Defense. The Plaintiff filed a Notice of Motion for default judgement. The Notice of Motion and Supporting Affidavits were served on the Defendants. The Defendants did not attend Court to defend the Motion for default judgment. On hearing the Plaintiff’s application for default judgment, the Court refused the application for default judgment but directed the Plaintiff to proceed with the trial on issues of both liability and quantum. The matter was fixed for trial on 11^th September 2023. Notice of Trial was served on the Defendants. Again, the Defendants made no appearance. The Court being satisfied with due service, allowed the Plaintiff to proceed with the trial in the absence of the Defendants. The Plaintiff tendered his affidavit evidence and presented submissions thereafter. The matter was then reserved for a decision which is now delivered.
   

Evidence

5. The Plaintiff relies on the following affidavits which were tendered into evidence:
   
   1. Affidavit in support of Jim Kalyali sworn 14^th and filed 17^th July 2023
      
   2. Supplementary Affidavit of Jim Kalyali sworn 17^th and filed 18^th August 2023.
      
6. This is the summary of the Plaintiff’s evidence. The Plaintiff is a senior primary school teacher and is the Head Teacher of Habare SDA Primary School in Tari, Hela Province. The First, Second and Third Defendants decided to remove him as Head Teacher and replaced him with another junior teacher in his place. The Plaintiff appealed the decision to the Teaching Service Commission of Papua New Guinea. On hearing his appeal, the TSC Appeals Committee set aside the decision of the Defendants and re-instated the Plaintiff as the Head Teacher of Habare SDA Primary School for the 2022-2023 academic year. The Plaintiff alleges the decision of the defendants was not merit based but was an attempt to accommodate a friend to the position he held and was malicious. As a result, and in pursuing his appeal he made three (3) return trips to Port Moresby via Mt. Hagen. These trips cost him more than K41, 851.74 in airfares, accommodation, road transport, mobile phone and meals. Apart from the financial loss, the Plaintiff says he has been through a lot of stress and have fallen ill, suffering from hypertension, and was treated at the Mt. Hagen General Hospital.
   

Issues

7. The issues for consideration are:
   
   1. Whether the Defendants are liable.
   2. If the Defendants are liable; how much is the Plaintiff entitled to in damages.
      

Are the Defendants liable

8. Mr. Tomake, counsel for the Plaintiff. submits that the Defendants breached a statutory duty of care imposed on them by the Teaching Service Act by appointing a junior officer to replace him in a position the Plaintiff won and was appointed on merit. Counsel submits that the actions of the Defendants were unlawful, and the wrongfulness of the decision was affirmed by the Teaching Service Commission-Appeals Committee when he was re-instated back to the position.
   

Consideration

9. The onus is on the Plaintiff to prove the allegations. The evidence presented by the Plaintiff shows he was appointed Head Teacher of Habare SDA Primary School in 2019. It is a substantive position number 73-562-1090340147-TS04 under the Teaching Service Act. The Plaintiff was to continue in this position for 2022-2023 academic year. He was the only suitable candidate to hold the position of TS04. However, the Defendants unlawfully orchestrated the appointment of one Simon Peter, who was a level 3 officer (TS03) to a level 4 (TS04) position as Head Teacher replacing the Plaintiff without good reasons.
   
10. The Teaching Service Appeals Committee deliberated on the issue and found the actions of the three defendants unlawful and directed the Provincial Education Board to reinstate the Plaintiff forthwith. The TSC Appeal Committee in rescinding the decision of the defendants stated that the defendants erroneously appointed a TS03 officer to a TS04 position. It is clear the defendants have abused their statutory powers under the Teaching Service Act 1988, in so doing neglected their statutory duty owed to the Plaintiff.
    
11. The Plaintiff’s cause of action is therefore based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468.
    
12. The basic elements of the tort of negligence to prove liability as set out in the case of Pakui v State by his Honour, Cannings J are:
    
    1. First that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;
    2. Secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor's conduct was negligent;
    3. Thirdly that the tortfeasor's negligent conduct caused injury to the claimants.
       4. Fourthly that the claimants' injuries were not too remotely connected to the tortfeasor's conduct; and
    4. Fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury
       
13. The law on the tort of breach of statutory duty is settled by the Supreme Court. Where a statute has imposed a duty on the Defendant and the obligation is breached and the purpose of the Statute is to protect a class of persons and the Plaintiff is a member of that class, and he suffers damage as a result of the breach, he is entitled to institute a private action for the breach of the statutory obligation. Refer: Woolcot -v- Nivani Ltd (2023) SC2335 and Goma and Others -v- Protect Security & Communication Ltd (2013) SC1300.
    
14. Turning to the present case, because of that abuse and neglect of duty, the Plaintiff was made to spend money seeking redress through the administrative process for his reinstatement as provided for under Section 13 and 59 of the Teaching Service Act. I find the Plaintiff has properly founded a case for breach of statutory duty of care owed to the Plaintiff by the Defendants. The Defendants have breached that statutory duty of care and abused their statutory powers. I am satisfied with the evidence provided and find the defendants are liable.
    

How much is Plaintiff entitled to in Damages?

Burden of Proof
15. Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

16. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

17. I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff. The Plaintiff claims the following heads of damages:

1. Reimbursement of expenses
2. General Damages

100. Special Damages

4. Interest
5. Cost
   

Reimbursement of Expenses/Special Damages (K41, 851.74)

18. The Plaintiff seeks judgment of K41, 851.74 being costs incurred in pursuing his appeal. The evidence shows the Plaintiff made three return trips between Tari-Mt. Hagen and Port Moresby starting 16^th January 2022. The second trip was made on 20^th March 2022 and the final return trip was made on 24^th April 2022. The amount claimed is for the following expenses.

1. K1500.00- for road transport between Tari and Mt. Hagen.
2. Airline tickets - Mt. Hagen-Pom-Mt Hagen

100. K5, 476. 74 - Accommodation

4. K12, 600.00 - for Taxi Hire
5. K800.00 - for flex cards
6. K8,000.00 - meals
   

Road Transport- K1,500
19. The Plaintiff claims K1,500.00 for the three trips at K500 each for road transport between Tari and Mt. Hagen. The Plaintiff did not provide details of how he incurred that amount. However, I accept that it costs money for him to travel from Tari to Mt. Hagen as it is a long distance to cover by road. In the absence of receipts, I will only allow K250 per trip which amounts to K750.00

K5, 476.74-Air Tickets

20. The Plaintiff claims K5,476.74 for airline tickets. He attached receipts for the three return trips from Mt. Hagen to Port Moresby which cost him K5, 476.74. I will allow the full claim of K5, 476.74.

Accommodation -K13, 475.00

21. The Plaintiff claims K13, 475.00 being for accommodation expenses incurred during the three trips. The evidence shows that the invoices and receipt for payments were issued by Comfort Inn. I will allow the invoices for the first two invoices in full which total K3,750.00. As for the third trip, I note that the invoices were issued for the period between June and July 2022. I note the decision for reinstatement was made in December 2021 and communicated to the Plaintiff in or around April 2022. The Plaintiff has not satisfactorily explained why he made the third trip. Was the trip necessary. Why did he stay so long after receipt of the decision. For these reasons, I am not satisfied that the Plaintiff is entitled to the full refund of the expenses. I will allow only 50% of the claim which amount to K4, 812.50. The total claim allowed for accommodation is K8, 662.50.

K12, 600-Taxi Hire Service

22. The Plaintiff claims K12,600.00 for the taxi hire service. The Plaintiff provided invoices for the taxi services. I will allow the invoices for the first two trips, which amounts to K2, 600.00. As for the third trip, there is no explanation from the Plaintiff why it was necessary for him to make the trip after April 2022. I will, therefore, allow 50% of the claim (K10,000.00) which amounts to K5,000. The total claim for taxi services will be K7, 600.00.

Flex cards-K800.00

23. The Plaintiff claims K800.00 for flex cards. There is no explanation why he should claim the costs. This claim is rejected.

Meals-K8,000.00

24. The Plaintiff claims K8,000 for the meals. Whilst it is understandable, the Plaintiff was away from home, it is not clear why the Plaintiff is entitled to an award for the meals. He has not provided any receipt for the meals. I will therefore allow only K1,000.00 under this head of damages.

25. The total amount allowed for reimbursement of expenses is K23, 489.24 which comprise of the following.

1. K750.00 - Road Transport -Tari to Mt. Hagen
2. K5,476.74 - Airline Tickets

100. K8,662.50 - Accommodation

4. K7, 600.00 - Taxi Service
5. K1,000.00 - Food

K23, 489.24

General Damages

26. The Plaintiff claims General Damages. General Damages is for pain and suffering. There is clear evidence that the Plaintiff was put under a lot of stress and frustration by the actions of the Defendants. He fell ill and sought medical treatment. There is evidence of a medical report provided by the Mt. Hagen General Hospital confirming his attendance and treatment. Counsel for the Plaintiff submits that K30,000.00 be awarded relying on award made in the case Warivama-v-Sapay (2013) N5319.

27. In my view, the present case was resolved much more quickly than the case referred to by counsel. In my view a sum of K10,000.00 will be sufficient compensation for frustration, distress and hardship and I will award same.

Exemplary Damages

28. Counsel for the Plaintiff submits, the Defendants’ actions were deliberative, using their positions and influence to unlawfully remove the Plaintiff from the position to be replaced by a less senior teacher who was related to one of the Defendants. He submits for an award up to K20,000.00. Except that the officer who was appointed held a less senior position to that of the Plaintiff, there is no evidence of the relationship with any of the Defendants. Nevertheless, I am of the view that this is an appropriate case to award exemplary damages, and I will allow K4,000.00.

Total Damages

29. The total sum to be awarded shall be K37,489.74 which comprise of:

K23, 489.74 - Special Damages

K10,000.00 - General Damages

K 4,000.00 - Exemplary Damages

K37, 489.74

30. The Plaintiff is claiming interest. I will allow interest at the rate of 8% on the amount assessed. Interest is to commence from date of writ of summons, (15/02/2023) to date of judgment (05/10/ 2023) for a period of 232 days. Interest is calculated as follows:

K 37,489.74 x 8/100 = K 2,999.18

K 2,999.18/365 days = K 8.22 per day

K 8.22 x 232 days = K 1,907.04

31. The total award inclusive of interest is = K 39,396.78

Costs

31. The Plaintiff is claiming cost. I will allow cost.

Orders

32. The Court orders that:

1. Judgment be entered for the Plaintiff in the sum of K 39,396.78 inclusive of interest.
   
2. The Defendants are jointly and severally liable to settle the judgment debt.
   
3. Post Judgment interest shall accrue at the rate of 8% until settlement.
   
4. The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
   
   5. Time be abridged.
      

______________________________________________________________
Jaku Lawyers: Lawyers for the Plaintiff
No appearance by the Defendants