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Masirewa v Attorney-General [1997] FJHC 290; HBC484.1996S (20 June 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 484 OF 1996S

BETWEEN:

JONA MASIREWA
(Plaintiff)

AND:

ATTORNEY-GENERAL
(Defendant)

G.P. Lala for the Plaintiff
Col. T. Bukarau with N. Basawaiya for the Defendant

ASSESSMENT OF DAMAGES

The Plaintiff was an NCO serving 3 year term with the RFMF when he was wrongfully dismissed on 28 August 1988.

The measure of damages for wrongful dismissal is prima facie the amount that the Plaintiff would have earned had the employment continued according to the contract, subject to a deduction in respect of any amount accruing from any other employment which the Plaintiff in mitigating his loss either had obtained or reasonably could have obtained (see Beckham v Drake [1849] EngR 843; (1849) 2 HLC 579, 607-608).

It is accepted that the Plaintiff's contract was due to expire on 13 August 1990 and it was also agreed by counsel that after his discharge the Plaintiff was able to work for an average of ⅓ of each year at a rate of $50 per week net. The only remaining issues are first, whether the Plaintiff is also entitled to received an additional amount in respect of the period 13 August 1990 to 10 March 1994 which is the date on which he received Exhibit 2 which he told me was the first time that he received official notification in writing of his dismissal and secondly whether the Plaintiff is entitled to recover general damages.

Having heard the Plaintiff's evidence on the first issue it is clear to me that the Plaintiff was aware and accepted that his dismissal on the spot by Major Ratu Tikoca was immediately effective and indeed that is the Plaintiff's claim as pleaded in paragraph 3, 4 and 5 of the Statement of Claim. In my view Exhibit 2 does not alter the position and is no more than evidence of the inefficiency of the RFMF in handling the paper work associated with the Plaintiff's discharge.

As to general damages Mr. Lala was only able to offer the stigma of dismissal as a foundation for such as award. But the Plaintiff in his evidence did not refer to any stigma and while he did suggest that he had difficulty in obtaining alternative employment because of the wrongfulness of his dismissal close examination of his evidence did not reveal that any difficulties which he faced could in fact be attributed to the manner of his discharge. In any event, injury to reputation whether causing pecuniary or non pecuniary loss is not generally recoverable and in my view is not recoverable in this case (see Addis v Gramophone Company [1909] AC 488).

After discussion Mr. Lala agreed that the damages recoverable should be awarded net of income tax (see Attorney-General v. Naicegulevu FCA 22/89 - FCA Reps 90/66) but no calculation of the figures had been made. It is therefore agreed that this award would be limited to specifying the basis on which the calculations should be made.

I award:

(i) Loss of Wages (including lodging allowance) for the relevant period namely 28 August 1988 to 13 August 1990 = $13,320.00

Less Income Tax

Plus

(ii) Ration allowance for the relevant period = $1,406.64

Less: $5,000 (part payment already received by the Plaintiff)

Less: ($50 ×17.3) ×2 = $1730.00 (i.e. earnings actually received in alternative employment for this relevant period rounded up to 2 years).

Plus

(iii) Interest from the date of dismissal to the date of Judgment (14 March 1997) at the rate of 10%.

M. D. Scott
JUDGE

20 June 1997