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Dau v Hosea [2024] PGNC 420; N11083 (5 November 2024)

N11083


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1312 OF 2018


BETWEEN
FRANCIS MONDO DAU
- Plaintiff -


AND
WILLIAMSON HOSEA in his capacity as Provincial Administrator West New Britain Provincial Administration
- First Defendant–


WEST NEW BRITAIN PROVINCIAL ADMINISTRATION
- Second Defendant–


Kimbe: Collier J
2024: 5th November


DAMAGES – Assessment of damages – default judgment as to liability – where plaintiff unlawfully terminated – principles for assessment of damages – award of damages


Facts


The plaintiff was employed as a local government manager in West New Britain. He was served a “notice of punishment” by the second defendant without warning in respect of alleged fraudulent conduct of the plaintiff referable to the drawing of two cheques. The notice of punishment purported to terminate the plaintiff’s employment without further investigation.


After pursuing his claims with the defendants, the Public Service Commission and the Department of Personnel Management directed that the plaintiff be reinstated into his employment. The plaintiff was paid some back pay by the defendants. His salary was reinstated from November 2020 until his resignation in September 2024.


The plaintiff commenced proceedings in respect of the unlawful termination of his employment.


Default judgment was entered against the defendants by the National Court on 26 September 2020. The plaintiff claimed damages for unlawful termination of his employment, including loss of earnings and personal savings, special damages and general damages for pain and suffering.


Held:


Damages under all heads of damages awarded.


Cases Cited:


Wani v Deflin [2024] N10818
Kunong v Paradise Private Hospital Ltd [2022] N9698
Goi v First Investment Finance Ltd [2019] N7865
Naki v AGC (Pacific) Ltd [2006] N5015
Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367
Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128
The Independent State of Papua New Guinea v Hodson (1987) PNGLR 241
Brian Hodson v The Independent State of Papua New Guinea (1985) PNGLR 303


Legislation:


Judicial Proceedings (Interest on Debts and Damages) Act 2015


Counsel:


Mr N. Loloma, for the Plaintiff
Mr P. Paraka, for the Defendants


REASONS FOR JUDGMENT


5th November 2024


  1. COLLIER J: On 18 October 2018, the plaintiff filed a writ of summons seeking damages for unlawful termination of his employment on 20 June 2017 by the first and second defendants (together, the defendants) (writ of summons). Default judgments were entered against the defendants by Cannings J on 26 September 2020 following a failure to defend. The present task of the Court is to assess damages payable by the defendants referable to the unlawful termination of the plaintiff’s employment.


BACKGROUND


  1. In the writ of summons, the plaintiff claimed, in summary, that:
  2. Materially, in the writ of summons and statement of claim the plaintiff alleged:
12. The purported termination of the Plaintiff on the 20th June 2017 by the First Defendant was also unlawful and in breach of the Public Service (Management) Act in that it was done without seeing legal advice and deliberation by the Disciplinary Committee before serving on him a Notice of Punishment pursuant to Section 52 of the Public Service (Management) Act.

13. The purported termination of the Plaintiff on the 20th June 2017 by the First Defendant was also unlawful and in breach of the General Orders as follow:

(i) Failure on the part of the First and Second Defendant to issue a formal charge to the Plaintiff in accordance with Sections 15.31 of the General Orders.
(ii) The First and Second Defendants failed to suspend the Plaintiff pending investigation contrary to Sections 15.27 of the General Orders.
(iii) The First and Second Defendants failed to accord the Plaintiff the right to be heard and in particular to respond to the charge as required by Section 15.32 of the General Orders.

(iv) The use and reliance on the Notice of Punishment to charge and punish or terminate the employment of the Plaintiff was misconstrued and thus null and void.


  1. The plaintiff particularised his economic/employment losses as follows:
14. Loss of paid employment including employment terms and conditions entitlements calculated as follows:
(a) Salary at the rate of K 39,973.00 per annum and computed up to 12 months;
(b) Loss of employment and terms and conditions and other benefits calculated as follows-
(i) Heduru Moni K 704.21 per fortnight;
(ii) Police & Savings Loans K 50.00 per fortnight:
(iii) Coral Finance K 240.00 outstanding.
Total: K370.68

(c) Other costs Ticket HKN/POM/HKN K 1188.30;
Accommodation K 4,400.00;
Meals K 2.200.00;
Others K 1,500.00

Total: K 8,100.00


  1. The plaintiff claimed entitlement to:
  2. Default judgment was entered against the defendants in the following terms:
1. The application for default judgment made by notice of motion filed on 17th October 2019 is granted and default judgment shall be entered in accordance with the statement of claim on liability subject to a trial on assessment of damages and debt.

...


PLAINTIFF’S SUBMISSIONS


  1. In his submissions on the assessment of damages, the plaintiff submitted that damages be awarded in the sum of K557,388.96 plus interest to be assessed at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the time of the filing of the writ of summons.
  2. The plaintiff proposed the following calculation of damages:
a) Loss to personal savings in savings accounts (Paragraph 14(b) of Statement of Claim)
15. We submit that the Plaintiff be also awarded damages at K187,600.66 for the loss of his personal savings in the last 7 years (see paragraph 11 of Further Affidavit on Assessment of Damages). The Plaintiff’s calculation in relation to this head of damages is summarized as follows:-

i) Heduru Moni – K704.67 per fortnight
= K704.67 x 26 fortnights = K18,321.42
= K18,321.42 x 7 years
= K128,249.94
ii) Police Savings & Loan – K50.00 per fortnight
= K50.00 x 26 fortnights = K1,300.00
= K1,300.00 x 7 years
= K9,100.00
iii) POSF Voluntary – K150.00 per fortnight
= K50.00 x 26 fortnights = K18,321.42
= K3900.00 x 4 years
= K27,300.00
iv) POSF Employee Component – K91.95
= K91.95 x 26 fortnights = K390.70
= K2,390.70 x 4 years
= K9,562.80
v) POSF Employer Component – K128.73
= K128.73 x 26 fortnights = K3,346.98
= K3,346.98 x 4 years
= K13,387.92

Total Loss of personal savings

= K128,249.94 + K9,100.00 + K27,300.00 + K9,562.80 + K13,387.92
= K187,600.66

b) Other costs incurred (Paragraph 14(c) of Statement of Claim)

16. We submit that the Plaintiff be also awarded damages at K11,788.30 for the expenses incurred as a result of his wrongful dismissal (see paragraph 11 of Further Affidavit on Assessment of Damages).

17. We also submit that the Plaintiff be awarded General Damages for pain and suffering as a result of his wrongful dismissal for the last 7 years (see paragraphs 13, 14 & 15 of Further Affidavit on Assessment of Damages). It is our submission that the Plaintiff be awarded K350,000.00 general damages for pain and suffering he has endured in the last 7 years.

18. Altogether we are submitting for this Honorable Court to award the Plaintiff the total judgement or damages of K557,388.96. We ask that the interest be assessed at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the time of the filing of the Plaintiff’s Write of Summons. The Plaintiff’s calculation in relation to his total damages excluding interest is summarized as follows:-

G. CONCLUSION

19. It is our submission that the Plaintiff’s damages be awarded at K557.388.96 plus interest to be assessed at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the time of the filling of the Plaintiff’s Writ of Summons.

PLAINTIFF’S EVIDENCE


  1. In his written submissions, the plaintiff relied on the amended affidavit for damages and interest accrued filed on 4 March 2023 and further affidavit for assessment of damages filed 20 May 2024 (further affidavit). At the hearing on 5 November 2024 before me for the assessment of damages (the hearing), Counsel for the plaintiff sought only to rely on the further affidavit.
  2. Relevantly, in his further affidavit the plaintiff deposed, in summary:
  3. Critically, the further affidavit also stated:
[10] Although I was backdated my salaries following my dismissal and put back on pay, I was not backdated my savings on POSF Voluntary, POSF Employee Contribution and POSF Employer component for 4 years. I want the Defendant to compensate these my savings for the 4 years which were not paid for.
(emphasis added)

  1. At the hearing the plaintiff was called as a witness to clarify the above statement. Mr Dau clarified that he was back paid his salary (excluding savings) by the second defendant in “November 2020” for the period from the termination of his employment to the date of payment. Mr Dau gave evidence that this payment was in the amount of K30,000.00.
  2. This evidence was not contested by the defendants.
  3. Considering the plaintiff’s payslip annexed to his further affidavit evidences an annual base salary of K39,973, the K30,000 payment by the second defendant in November 2020 cannot be said to represent three years of back pay, regardless whether savings were included, as that amount is less than the plaintiff’s base salary for one year.
  4. At the hearing, Counsel for the plaintiff confirmed that from November 2020 until September 2024, Mr Dau was being paid his salary in full (including savings). In his oral evidence Mr Dau confirmed that that was the case. He also gave evidence that he ceased receiving his salary in September 2024 when he resigned from public service.
  5. The only loss of earnings incurred by the plaintiff was therefore his full salary (including savings) for the three years between his termination and November 2020, less the amount of K30,000 paid to the plaintiff by the second defendant.
  6. In oral evidence the plaintiff also gave evidence concerning his claim for expenses he incurred as a result of the wrongful dismissal. In particular, the plaintiff gave evidence that he had been required to travel on numerous occasions to Port Moresby to pursue his claims against the defendants including to meet with the Public Service Commission. He also gave evidence that in pursuing his claims he had stayed in Port Moresby for 3 months, first staying at guesthouses until he had run out of money, and then with relatives in Port Moresby.
  7. It is not in dispute that the defendants were directed to reinstate the plaintiff by the Public Service Commission and the Department of Personnel Management.

DEFENDANTS’ SUBMISSIONS


  1. The defendants filed their response submissions on the assessment of damages on 4 November 2024.
  2. The defendants’ submissions claimed that their human resources division had been unable to provide any files or records relevant to the plaintiff’s employment or termination. As a result, the defendant claimed they were unable to establish matters in the plaintiff’s submissions or file any affidavits.
  3. It followed that no evidence was filed, or given, by the defendants in respect of the assessment of damages.
  4. Despite liability being established by default judgment, the defendants made written submissions on whether the termination of the plaintiff’s employment was unlawful.
  5. The defendants, in summary, took issue with the following aspects of the plaintiff’s assessment of damages:
  6. In particular, the defendants submit that a claim for general damages in the form of pain and suffering could not be made out as the plaintiff was terminated lawfully.

CONSIDERATION


  1. At the hearing I observed to the defendants that, in circumstances where a default judgment had been entered against the defendants, issues of liability had been decided and were no longer in issue. As such, the defendants did not press their submissions as to whether the termination of the plaintiff’s employment was unlawful.
  2. The principles in relation to assessment of damages are well established.
  3. As explained by Cannings J in Naki v AGC (Pacific) Ltd [2006] N5015 at [12], the main principles that are applicable to an assessment of damages are:
In a civil action, the purpose of an award of damages is to put the innocent party in the same position, as far as possible, as they would have been in if the wrongdoer had not committed the wrongful act (the breach of contract). (Livingston v Raywards Coal Co [1880] 5 App Cases 25.)
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 AJ.)
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.)
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.)
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 [1998] PNGLR 247, 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 v Sergeant Poko (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 (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)

  1. As appears from his fortnightly payslip annexed to the further affidavit, the plaintiff’s annual base salary at material times was K39,973.00, including annual savings contributions in the amount of K23,359.10. This amount is uncontested. It follows from the evidence before the Court that the amount back paid to the plaintiff in November 2020 should have been in the amount of K189,996.30 (being (K39,973.00 + K23,359.10) x 3). Noting that K30,000.00 was paid to the plaintiff in November 2020, his loss of earnings following the unlawful termination of his employment amounted to K159,996.30 (being K189,996.30 – K30,000.00).
  2. No documentary evidence was supplied by the plaintiff concerning his additional expenses referable to pursuing his claim following the termination of his employment. However, it is not in dispute that the plaintiff contacted and liaised with the Public Service Commission and the Department of Personnel Management in Port Moresby in relation to his claims. The defendant conceded that the plaintiff “may be partially qualified under law to achieve special damages on travel and miscellaneous expenses”, and that it was for the Court to determine such amount.
  3. In his statement of claim, the plaintiff sought special damages in relation to travel expenses totalling K8,100.00 as follows:
(c) Other costs Ticket HKN/POM/HKN K 1188.30;
Accommodation K 4,400.00;
Meals K 2.200.00;
Others K 1,500.00

Total: K 8,100.00


  1. In the absence of further particularisation of claimed special damages, or evidence, I am satisfied that an amount of K8,100.00 should be awarded as special damages.
  2. Damages for distress, frustration, vexation, and injured feelings are part of general damages: Brian Hodson v The Independent State of Papua New Guinea (1985) PNGLR 303; The Independent State of Papua New Guinea v Hodson (1987) PNGLR 241; Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128; Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367, Goi v First Investment Finance Ltd [2019] N7865. It is under this head of damages that the plaintiff’s claim for damages for pain and suffering falls. Recently in Kunong v Paradise Private Hospital Ltd [2022] N9698 Shepherd J explained:
[50] The purpose of an award of general damages is to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful actions of a defendant. General damages are compensatory in that the Court endeavours by way of an award of money to put the plaintiff as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty...

(see also Wani v Deflin [2024] N10818 at [26])


  1. In Goi v First Investment Finance Ltd [2019] N7865, David J considered appropriate damages to award following a breach of a commercial loan chattel mortgage of a PMV bus where the bus was unlawfully repossessed and sold. In that case the plaintiff was a member of Parliament and an experienced businessman, who claimed that as a result of the conduct of the defendant “was virtually reduced to rags... He suffered severe anxiety, mental depression and humiliation especially when people knew who he was prior to 2013.” The plaintiff in Goi sought K60,000.00 in general damages. In analysing cases where such damages had been awarded David J noted that:
[86] In Joe Naguwean v The Independent State of Papua New Guinea, a nominal amount of K1,000.00 was awarded as damages for frustration, distress and/or disappointment following a breach of contract for employment.

[87] In Peter Na’al v Michael Debege (2000) N1958, an amount of K15,000.00 was awarded for distress, frustration and disappointment arising from a breach of contract of employment and terms of scholarship while on studies in Australia.

[88] In Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, the Court awarded K20,000.00 as damages for distress, frustration and hardship following the plaintiff’s unlawful termination of his employment contract.

[89] In Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485, damages of K50,000.00 was awarded for distress, frustration and inconvenience arising from a breach of a management agreement under which the plaintiff was to manage the defendant’s affairs, particularly regarding a timber and marketing agreement it had with another company.

[90] In Likui Trading Ltd v Joseph Selna (2011) N4530, the National Court awarded damages of K15,000.00 for hardship, inconvenience, anxiety and distress arising from a breach of a rental agreement.


  1. Justice David in Goi also noted:
[92] I agree with the defendant’s submission that the plaintiff was not left destitute as he was receiving income elsewhere from rental income, but on the other hand, I also agree with the plaintiff’s submission that he is entitled to damages for the stress, depression , anxiety and humiliation he suffered while following up on the repossession of the bus arising from the breach of the contract which coincided with the allegations made against him for misappropriation.

  1. His Honour awarded the plaintiff in Goi K10,000.00 for general damages.
  2. In the case before me, the plaintiff in its writ of summons and statement of claim seeks the amount of K100,000.00 for pain and suffering. In his written submissions he seeks K350,000.00.
  3. In the present circumstances, I accept that the plaintiff would have suffered humiliation and anxiety as a result of the conduct of the defendants, and their failure for three years to redress the unlawful termination of the plaintiff’s contract. I also note medical evidence annexed to the plaintiff’s further affidavit, being a medical report of Dr Sinau Vari dated 30 March 2023, in which Dr Vari states that the plaintiff suffers headaches and depression as a result of the termination of his employment.
  4. In my view, having regard to comparable awards, I am satisfied that an award of K10,000.00 under this head of damages is appropriate.

CONCLUSION


  1. In the circumstances I award the plaintiff the total amount of K178,096.30 in damages.
  2. The plaintiff also seeks interest on the amount of damages awarded. I award the plaintiff interest on the amount claimed, at 8% per annum, on the judgment amount under the Judicial Proceedings (Interest on Debts and Damages) Act 2015, awarded from 18 October 2018 when the writ of summons and statement of claim were filed, until payment of the total amount to the plaintiff.
  3. The costs of the plaintiff of and incidental to the proceedings are to be paid by the defendants, such costs to be taxed if not otherwise agreed.

42. The Court orders that:


  1. Judgment be entered against the defendants in the following amounts:
  2. The defendants pay interest at the rate of 8% on the total judgment sum of K178,096.30 from the date of filing of the writ of summons until final settlement pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
  3. The defendants pay the costs of the plaintiff on a party-party basis, to be taxed if not agreed.
____________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendant

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