N5605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1124 OF 2010

MONICA ANGOGI
Plaintiff

V

FRED YADIWILO
First Defendant

CHEMICA LIMITED
Second Defendant

Madang: Cannings J
2013: 13 December,
2014: 4 April, 16 May

DAMAGES – breach of contract – wrongful dismissal – whether plaintiff entitled to damages in respect of wages lost in period from date of termination of contract to date of judgment – whether plaintiff entitled to damages in respect of distress and suffering – whether legal and other costs properly included in an award of damages.

The plaintiff obtained judgment by consent against her former employer, the second defendant. She established a cause of action in breach of contract, as the termination of her contract of employment was contrary to Section 36(1) of the Employment Act. She also sued the first defendant, a manager of the second defendant, but judgment was not entered against him. At this trial on assessment of damages the plaintiff claimed four categories of damages: (1) general damages in respect of wages lost in the period from date of termination of the contract of employment to the date of judgment, K18,600.00, (2) special damages for loss of employment, (K5,000.00), (3) general damages for pain and suffering (K5,000.00), and (4) costs of the proceedings, K23,163.40.

Held:

(1)	There was no justification, in law or practice, and no precedent existed, for calculating general damages according to wages lost in the period between the date of termination of the contract and the date of judgment. Nothing was awarded.

(2)	The claim for special damages was misconceived. Nothing was awarded.

(3)	The claim for humiliation, pain and suffering due to the circumstances in which the contract had been abruptly terminated was sound. K5,000.00 was awarded.

(4)	The claim for costs, made as part of a claim for damages, was misconceived. Nothing was awarded.

(5)	The total award of damages was K5,000.00. In addition, interest of K1,444.00 was awarded. The total judgment sum was K6,444.00. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Chemica Didiman Store v Bernard Tiau (2007) N5000
George Podas v Divine Word University (2011) N4395
Placer (PNG) Ltd v Alois Kawa (2008) SC919
Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages.

Counsel

D Wa'au, for the plaintiff
S Kesno, for the defendant

16th May, 2014 

1. CANNINGS J: The plaintiff Monica Angogi obtained judgment by consent against her former employer, the second defendant, Chemica Ltd. She established a cause of action in breach of contract, as the termination of her oral contract of employment was contrary to Section 36(1) of the Employment Act. She also sued the first defendant, Fred Yadiwilo, the manager of the retail store at Madang where she worked as a senior salesperson. However judgment was not entered against him.

2. At this trial on assessment of damages against the second defendant, the plaintiff claimed four categories of damages: (1) general damages in respect of wages lost in the period from date of termination of the contract of employment to the date of judgment, K17,922.50, (2) special damages for loss of employment, (K5,000.00), (3) general damages for pain and suffering (K5,000.00), and (4) costs of the proceedings, K23,163.40, a total claim of K51,085.90.

3. Mr Kesno for the second defendant submitted that most of the plaintiff's claim was unreasonable and without merit. The most that could properly awarded was K2,000.00, he argued.

1	GENERAL DAMAGES: LOST WAGES

4. There is no justification, in law or practice, and no precedent exists, for calculating, as a matter of course, general damages according to wages lost in the period between the date of termination of the contract and the date of judgment (Placer (PNG) Ltd v Alois Kawa (2008) SC919). Each contract must be interpreted to see whether any such calculation is warranted. In the majority of cases no such entitlement will be found to exist. Here, this was a simple, oral contract of employment and it created no such entitlement. Nothing is awarded.

2	SPECIAL DAMAGES: LOSS OF EMPLOYMENT

5. The plaintiff claims K5,000.00 as special damages but this part of the claim is misconceived. Special damages are awarded for particular expenses incurred by the plaintiff as a direct consequence of the civil wrong in respect of which liability has been determined. There is inadequate particularisation of this claim in the statement of claim. Nothing is awarded.

3 	GENERAL DAMAGES: PAIN AND SUFFERING

6. Mr Wa'au submitted that the plaintiff should be awarded K5,000.00 general damages. I agree that this is a proper claim, for the reasons I set out in Vitus Sukuramu v New Britain Palm Oil Limited (2007) N3124 and George Podas v Divine Word University (2011) N4395, which are consistent with those of Makail J in Mairi Hoi v Arthur Somare (2012) N4749. The amount claimed is reasonable. K5,000.00 is awarded.

4 	COSTS OF THE PROCEEDINGS

7. The plaintiff claims K23,163.40 in costs. This is another part of the plaintiff's case that is misconceived. It mixes up the question of legal costs (which can only be addressed at the end of the case) and the issue of expenses incurred by the plaintiff in prosecuting the case (which should have been addressed in the submissions on special damages). This is very confusing and not worthy of consideration. Nothing is awarded.

SUMMARY OF DAMAGES AWARDED

General damages for loss of wages: 0
Special damages: 0
Damages for pain and suffering: K5,000.00
Costs of the proceedings: 0

Total = K5,000.00.

INTEREST

8. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. I would normally fix the date of commencement of the period in respect of which interest is calculated as the date of accrual of the cause of action, which in this case would be the date of termination of employment, 11 August 2009. However, the plaintiff has not been diligent in prosecuting this case so I will fix the commencement date as the date of filing of the notice of intention to defend, 6 October 2010. The end of the relevant period is the date of judgment, 16 May 2014. The total period is therefore 3.61 years. Interest is calculated by applying the formula D x I x N = A, where:

•	D is the amount of damages assessed;
•	I is the rate of interest per annum;
•	N is the appropriate period in numbers of years;
•	A is the amount of interest.

Thus K5,000.00 x 0.08 x 3.61 = K1,444.00.

COSTS

9. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. In this case there is no clear winner. The plaintiff has on the one hand succeeded in obtaining an award of damages but on the other hand has succeeded in convincing the court that only 9.79% (K5,000.00 out of K51,085.90) of his claim had merit; 90.21% of the claim was without merit. The defendants have succeeded in showing that the bulk of the claim was misconceived. The parties will bear their own costs.

ORDER

(1)	The second defendant shall pay to the plaintiff damages of K5,000.00 plus interest of K1,444.00, being a total judgment sum of K6,444.00.

(2)	The parties shall bear their own costs.

Judgment accordingly.
_________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant