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Mark v Pacific Corporate Security Ltd [2024] PGNC 377; N11049 (22 October 2024)

N11049

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO 215 OF 2023


NARON MARK
Plaintiff


V


PACIFIC CORPORATE SECURITY LIMITED
Defendant


Madang: Narokobi J
2024: 15th and 22nd October


DAMAGES – Assessment of Damages in a contract of employment – Whether the Plaintiff has proven entitlement to various categories of damages claimed on the balance of probability.


The Plaintiff previously worked as a security guard in the employment of the Defendant, who is a security firm. He was employed with the Defendant from 9 January 2017 to 11 May 2021. After obtaining default judgment on liability, he returns to court to press his claim for damages.


Held:


(1) Except for a reasonable sum for accrued annual leave and underpayment of wages, the Plaintiff has not proven the balance of his claim, on the balance of probability.

Cases Cited
Mapua v McNamara (2024) N11035
Mel v Pakalia (2005) SC790
Paraia v The State (1995) N1343


Counsel
Ms C Kinwai, for the Plaintiff
No appearance for the Defendant

JUDGMENT


22nd October 2024


  1. NAROKOBI J: The Plaintiff previously worked as a security guard in the employment of the Defendant, who is a security firm. He was employed with the Defendant from 9 January 2017 to 11 May 2021. After obtaining default judgment on liability, he now returns to court to press his claim for damages.
  2. The Plaintiff makes the following claims against the Defendant through a writ of summons filed on 12 May 2023:
  3. On 24 November 2023 the Plaintiff obtained default judgment against the Defendant with damages to be assessed.
  4. Trial on assessment of damages was completed on 12 July 2024.
  5. The Plaintiff relied on his own affidavit filed on 10 January 2024, and a further one filed on 17 January 2024.
  6. The issue I must determine is the extent of damages the Plaintiff is entitled to.
  7. The case authorities such as Mel v Pakalia (2005) SC790 requires the plaintiff to prove his claim by evidence.
  8. The submission of the Plaintiff makes the following claims:
  9. The only evidence I have sustaining the claim is the letter from the Labour Department for accrued annual leave and long service leave produced through the evidence of the Plaintiff. I have stated previously in Mapua v McNamara (2024) N11035 that long service leave is not a proper claim unless a specific written contract provides for it. I maintain that position and dismiss this claim.
  10. Except for accrued annual leave, and underpaid wages, the Plaintiff has not helped me work out what amounts of damages he should be entitled to, other than stating that he is entitled to various heads of damages. In my view the pleadings, evidence and the submissions do not reach the threshold of proof on the balance of probability as to what the Plaintiff is entitled to. Take the example of the claim of K36,064.00 for underpayment of wages. He says that he was paid below the minimum wage of K3.50 an hour as required by the 2014 Minimum Wages Determination. This is a valid claim as I have dealt with similar cases here in Madang. But how did the Plaintiff arrive at this amount? There are no calculations in the submissions before me.
  11. I will take the court’s approach in Paraia v The State (1995) N1343 and award a global sum for the various heads of damages claimed that he can sustain as he has established liability. Paraia v The State stands for the proposition that if the Plaintiff has proven the Defendant’s wrongdoing, and the evidence is lacking, the court will do the best it can to arrive at a reasonable amount, of damages. I consider K1,500.00 a reasonable sum, considering the shortfalls of the Plaintiffs case and his right to be compensated as he has established liability in his favour. I will award K1,500.00 for each of the following causes of action:
  12. The other claims are refused. The Plaintiff has not adequately assisted me to arrive at damages for non-remittance of compulsory contributions to Nasfund, breach of human rights for non-payment of accrued annual leave, breach of human rights in underpayment of wages, breach of human rights for non-remittance of compulsory contributions to Nasfund and general damages for stress, and anxiety. It is the Plaintiff’s case, and he has no amounts claimed for these categories of damages and no submissions made citing comparable cases. The Plaintiff bears the onus of proving his case. He may in fact be entitled to the damages he pleads, but he has not proven it.
  13. From the discussions above, the Plaintiff is therefore entitled to a judgment sum of K3,000.00.
  14. I will also award interest at 8% per annum on the judgement sum of K3,000.00 from the date the proceedings were filed to the date of judgment. The calculations for the interest component are as follows:
  15. The total judgment sum, payable by the Defendant to the Plaintiff inclusive of the 8% interest is K3,340.00.
  16. Costs will also be awarded in the fixed sum of K1,000.00.
  17. The final orders of the court are as follows:
    1. The Defendant pays the Plaintiff a judgment sum, of K3,340.00 which includes 8% interest.
    2. The Defendant pays the Plaintiff costs in the fixed sum of K1,000.00.
    3. The matter is considered determined, and the file is closed.
    4. Time is abridged.

Judgement and orders accordingly.
________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff

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