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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS. NO. 49 OF 1996
BETWEEN: DIA KOPIO
PLAINTIFF
AND: EMPLOYMENT AUTHORITY OF ENGA PROVINCIAL GOVERNMENT
FIRST DEFENDANT
AND: ENGA PROVINCIAL AND LOCAL LEVEL GOVERNMENTS
SECOND DEFENDANT
Mount Hagen
Hinchliffe J
12 May 1999
17 May 1999
CONTRACT OF EMPLOYMENT - Assessment of Damages - Mitigation of damages - Onus of proof on the defendants.
Counsel
Plaintiff in person.
No appearance defendants.
17 May 1999
HINCHLIFFE J: The plaintiff, in his Writ of Summons filed on the 8th January, 1996, claims as follows:
“1. & The plae plaintiff is an adult citizen of Papua New Guinea and the employee of the first and second defendants in this proceedings.
2. &##160; fdheenisfenis the athe authority which acts for and on behalbehalf of f of the sthe second defendant for purpose of employing and terminating employees fo on b of tcond defendant.
3. #1660   The The second defends this the Enga Provincial and Local Level Government established pursuant to the Organic Law on Provincial and Local Level Government.
4. &##160;; B60anem anementritntriting dated 26th 26th Sept September 1994, the Defendant agreed to employ the Plaintiff who agreed to serve them as Transport Officethe trovinGovernment for a term of three years frrs from 26om 26th Seth September 1994 to 26th September 1997 at a salary of K11,726.00 which is a classified position (No. EEA PTO - 002) to be based at Wabag.
5. ҈& I60;as was an expn express term and condition of the said employment;
(a) ; That the Plai tiff would ould be entitled to a (4) wpaid after completion of every one year.
>
(b)&#(b) hat the plaintiff would ould be entitled to id in(sic)otice of 3 mf 3 monthsonths.
.6. &ـ O6 the the 21st d1st day of July 1995, by letter of the 17th July 1r. GrTayloministrator ator and tand the Ache Acting Secretary wrongfully and in breach of the said agreement terminated the said employment and wrongfully dismissed the plaintiff therefrom and refused to employ him any longer.
7. ـ Bs reaf n of the matters aers aforesaid, the Plaintiff has lost other benefits including the use and enjoyment of Government
vehicle etc.. and he has sed lod dam/p> (i)
#1660   Loss Loss of salary fre sahe said 6th July 1995 to the 26th July 1997 (the end of the said term of employment).
K26,158.00 (ii) &##160;; Unpaid paid salaryalary due to client from 26thember to 17th July 199y 1995. (iii) % Gry fit 3 yr 3 years pars period 26th September 19926th mber 1997. K1,b>K1,758.0758.00 (iv) Leave entitlements for 3 ears (45 days) K1,804.00(v)&ـ  Lieu tice tice one months.nths. K902.00 TOTAL: K34,728.14 8. 𧍘he plaintiff wiff will give give credit therein for; (a) tiductioucofon of tax in r in respect of the said salary thintiff would otherwise have received in the employment of t of
the defendants subject to his obtaining other employment during the sariod. 9.; < The The plaintlaintiff’s claim against the defendant is founded on the relevant provisions of the W (Misneousisiont
(Ch. No. 30) and the Search and Arrest as well as the PlainPlaintiff&tiff’#8217;s Co;s Constitutional rights and or alternatively
on the liability of the Defendants at Common Law. AND THE PLAINTIFF CLAIMS: (i) K34,728.14 (1i)&##10; Interests prilcipasupur tont to the Judicial Proceedings (Interest on Debt DamaAct; /p> (iv)& <  Fu0; Further or o or otherother ther relief.” In his final submissions the abovemned figure of K34,728.14 has been reduced to K31,315.15. The plaintiff obtained a De a Default Judgment, on the 2nd August, 1996, with damages to be assessed. This is the assessment of damages.
The defendants did not appear on the hearing of the assessment of damages and did not previously, file a Notice of Intention to Defend
or a Defence. I think it would be safe to say that the defendants have taken little interest in these whole proceedings. The plaintiff, on the Order of the Court, has filed written submissions and in paragraph 7 of those submissions it reads as follows:- “7. The break up of plaintiff’s claim are from A to E under 5 sub headings (refer):- (a) ;ټ Under pder paid said salary K2511.15 (b) ـ Unpaid paid salary K2225.00 (c) & s ofssalarsalary K K2225.00 (e) #160; & Lienotice one one mon>K90n>K902b>TOTAL: K31315.15 Plus 8% interest K2505.38 Plus 10%s 10% Lega Legal cosl cost K3131.00 Total submn: K387&#/b>”8221; In his evidence in Court at Wabag on the 12th March, 1999 the plaintiff said that after he was dismissed from his employment he went
back to his Village and he stayed there until he went to Port Moresby, in what seems to be in June or July of 1998. He then became
a business man and street vendor which he is still involved in up until now. Therefore he stayed in his village for about three years
before going to Port Moresby to enter into business. From the time of his termination from employment up until the time his contract
of employment would have expired on the 26th September, 1997 there is no clear evidence to suggest that the plaintiff made any effort
to find paid employment, that is it seems, although it is not certain, that he made no effort to mitigate the damages lost through
his dismissal. It might be suggested, therefore, that the plaintiff is not entitled to all of the amount he is asking for, but only for that amount
lost before obtaining further paid employment. But here the situation is different because the defendants have not elected to defend
the matter or appear at the hearing of the assessment of damages, and it is trite law that the onus is upon the defendant to point
to a particular course of action which, had the plaintiff followed it, would have reduced the amount of harm suffered by the plaintiff.
The onus is on the defendant to prove that such a course was reasonable in the circumstances (Roper v. Johnson (1873) L.R. 8CP 167; Criss v. Alexander (No. 2.) (1928) S.R. (N.S.W.) 587 at 595-596 per Street C.J.; Metal Fabrications (Vic) Pty Ltd. v. Kelcey [1986] VicRp 52; [1986] V.R. 507. The normal measure of damages, and the only loss which it is incumbent on the dismissed employee to prove, is the salary or wages
which he might have earned for the period of proper notice of dismissal (Bakec v. Denkara Ashanti Mining Corp. Ltd. (1903) 20 T.L.R. 37), or over the remainder of the period of his employment (Beckham v. Drake [1849] EngR 843; (1849( 2 H.L.C. 579 at 606 - 607; [1849] EngR 843; 9 E.R. 1213 at 1223 Erle C.J). The dismissed employee “is bound to mitigate his damages by obtaining other suitable employment, if available” (Automatic Fire Sprinklers Pty Ltd. v. Watson [1946] HCA 25; (1946) 72 C.L.R. 435 at p452 per Lalham C.J.), but the onus lies on the defendant employer to show that the employee has failed to satisfy that obligation (Harding v. Harding (1928) 29S.R. (NSW) 96 at 106 per Comphell J; Bagnall v. National Tobacco Corp. of Australia Ltd. [1934] NSWStRp 30; (1934) 34 S.R. (N.S.W) 421 at 430 per Jordan C..J; Yetton v. Eastwoods Froy Ltd [1967] 1 W.L.R. 104 at 115 per Blain J). It is blatantly clear in this case that the defendants have not discharged the onus of proof regarding mitigation and therefore the
plaintiff is entitled to most of his claim. From his claim of K31,315.15 I deduct the sum of K902.00 because that is included under
the “Loss of Salary” heading. Therefore the sum should be K30413.15. I order as follows: Judgment for the plaintiff in the sum of K30413.15 plus interest at 8% from the issuing of the Writ until the date of Judgment. I further order that the defendants are to pay the plaintiff’s costs. If not agreed then they are to be taxed. Orders accordingly.
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