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Na-Al v Debege [2000] PGNC 6; N1958 (19 April 2000)

Unreported National Court Decisions

N1958

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 818 OF 1998
BETWEEN: PETER NA-AL
PLAINTIFF
AND: MICHAEL DEBEGE
FIRST DEFENDANT
AND: FLY RIVER PROVINCIAL GOVERNMENT
SECOND DEFENDANT

Waigani

Kapi DCJ
11 April 2000
19 April 2000
12 May 2000

DAMAGES - distress, frustration and disappointment - breach of condition of scholarship - financial hardship - family breakdown - financial commitments.

Counsel

Tim Davidi for the Plaintiff

No appearance for the Defendant

12 May 2000

KAPI DCJ: The plaintiff commenced employment with the second defendant in August 1991. He was awarded a scholarship to study in Deakin University, Melbourne Australia. It was a condition of the scholarship that the second defendant would pay the plaintiff’s salary and other entitlements in the contract of employment for three years while he was on studies.

He took up studies on the basis of the agreement with the second defendant during the academic year in 1994. The plaintiff was paid his salary until 28^th June 1994 when the second defendant stopped paying his salary without any reason. The plaintiff was unable to meet his financial commitments and withdrew from the course and took up a course with TAFE also in Australia.

The plaintiff sued the defendants for damages arising out of breach of contract of employment and the breach of the conditions of the scholarship.

The plaintiff obtained a default judgment against the defendants and the matter has come before me for assessment of damages.

The plaintiff claims damages under the following heads:

1. unpaid .; eavetletints

3.&#13. ـ r6patriation costs

4.ـ҈&&#160ight

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6. ـ i60; interest.

S as fial ls cond (items 1 to 4), the plaintiaintiff plff pleadedeaded the the loss for the three years duration of the scholarship. These are entitts ar out nditions of employment. I am satisfied with with the ethe evidenvidence and the calculations by the plaintiff and assess these claims at K37, 931.15.

Counsel for the plaintiff submits that claim for salary should be calculated up to the time of the judgment. I have allowed for the salary and other entitlements for the three years as that was a condition of the scholarship to study in Australia. However, the employer was entitled to terminate the employment on notice. No evidence was led on the terms of termination of the contract of employment. In absence of agreement, the situation would be governed by the Employment Act (Cap. 373). The plaintiff would be entitled to one month salary in lieu of notice (s 34 (4) of the Employment Act. The plaintiff will be entitled to one month salary.

DAMAGES FOR DISTRESS AND FRUSTRATION.

The law is now settled that distress and frustration that arises out of a breach of contract is a head of damage that may be claimed (Hodson v The State [1985] PNGLR 303).

The issue I have to determine is the amount of damages for this head of claim in the circumstances of the present case. Counsel for the plaintiff referred to Hodson case (supra) which awarded K6000.00, Harding v Teperoi Timbers [1988] PNGLR 303 the Court awarded K1000.00 and Divid Lintz v Post Telecommunication Corporation (1988) N712 the Court awarded K2000.00.

I agree with counsel for the plaintiff that the facts in the present case warrant a greater award of damages. I take into account the following facts in considering the quantum of damages. As a result of the breach of contract, the plaintiff suffered distress and hardship. As a direct consequence of the failure to pay the salaries, the plaintiff had accumulated financial obligations.

I accept that his medical condition was a consequence of all the hardship and distress caused by the failure to pay the salary. The medical bills only added to the distress.

The plaintiff also incurred other financial expenses and this also added to the hardship and distress.

It is also evident that the plaintiff’s family failed to join him in Australia as a result of financial difficulties. I also accept that as a result, the family was separated and now the wife has remarried and he has been separated from his children.

I bear in mind that all this happened in Australia away from relatives and friends in Papua New Guinea. He did not have the benefit of direct contact and assistance one would expect from friends and wantoks in Papua New Guinea.

The anguish of the loss of the family continues in Papua New Guinea. He explained that he has been alienated from his children and he has to meet financial obligations in accordance with the custom before he can have access to the children.

Having regard to all the circumstances of this case, I would assess this head of claim for K15,000.00.

I award total damages as follows:

Loss of salary and entitlements for 3 years -- 37,931.15

One monthry in lien lieu of notice -- 916.00 &#<60; magDa forsdistrdistress and suffering -- 15,000.00

Total -- 5.15

I allow interest at 8% from the date of the the issue of writ to final payment.

Defendants to pay the plaintiff costs.

Lawyers for the Plaintiff: Pato Lawyers

No Representation by the Defendants