N2281

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA 3 OF 2000

BETWEEN

ANDREW LOPE
Appellant

v.

MARK SEETO
First Respondent

AND

PATRICK’S TRANSPORT PTY LTD
Second Respondent

WAIGANI: KANDAKASI, J.
2002: 15TH AUGUST 2002

Cases Cited:
Gabe v. Clunn [1995] PNGLR 153.
Constitutional Reference No. 1 of 1977 (Sch. 2.3) [1970] PNGLR 295.
The State v. Oa Seseka N921.
The State v. Dobi Ao (No. 2) N2247.

Counsels:
Mr. Mitige for the Appellant.
Mr. Wagambi for the Respondents.

This is an appeal from a decision of the Port Moresby District Court given in favour of the Respondents on the 1st day December, 1999. In the District Court the complainant claimed damages for unlawful termination and use of obscene language by the first respondent. The appellant was offered re-employment but he refused to accept the offer. The District Court dismissed the claim despite finding that the respondents admitted to using the alleged obscene language.

When this matter came before me for statutes conference on the 5th of this month, I had directed the parties to closely examine the issues for trial in the appeal prior to the matter returning to me. Pursuant to that direction the appellant has reconsidered its position and decided to abandon all of his grounds of appeal except for the appeal against the decision of the District Court dismissing the claim for damages for the use of obscene language. So the issue before me was whether the learned magistrate erred in dismissing that part of the action.

The relevant part of the appellant’s complaint before the District Court is in paragraph 6 of his Statement of Claim. That reads:

"when accusing him from being away from work or not working, the first defendant called the complainant a ‘stupid asshole, fuck off’ and said this words in very loud voice when there were plenty of customers at the shop doing their Christmas shopping."

Then in his prayer for relief the complainant claimed in item 3:

"An order that the second defendants pays to the complainant a sum of K10,000.00 being for injuries suffered as a result of the false allegations, offensive comments and remarks and unfair dismissal or being forced off work as a result of the shame, abuses, insult and offensive remarks made to the complainant by the first defendant on behalf of the second defendant."

The learned District Court magistrate found inter alia that:

"Other (sic) the evidence before the Court, there is no dispute that there was an incident on the 24th of December 1998 at about 3:15 p.m. which lead to the complainant leaving his employment with the defendants. It is admitted by the first defendant that out of frustration and pressure, he told the complainant to have using the commonly used words in "FO." 
…
"I find on the evidence that business managers have the reputation to be aggressive with the words they used. I find that with the complainant’s long association with the defendant, he was family (sic) with them."

The respondents have accepted this decision or findings. They have not raised any argument as to the correctness or otherwise of those findings. It follows therefore that the learned magistrate correctly found that the defendants admitted to using the offensive words that are complained of. However, the learned magistrate seemed to be saying in the last line of the above quotation that because of the appellant’s long association with the defendants those words were familiar. If that is not what the learned magistrate found then he is saying that either the complainant was part of the family or that the words complained of were part of the defendant’s family. Irrespective of what the later part of the learned magistrate’s reasoning could mean, there is one thing clear. The first respondent used offensive or abusive language against the appellant. Yet he dismissed the claim for damages for that. The Counsel for the respondents Mr. Wagambi conceded to the use of offensive language by his client. He also conceded to the magistrate correctly finding that to be the case in his judgement. Furthermore, he conceded to my suggestion that there should be a consequence for people who use such offensive language, by way of award of damages. In these circumstances, I found that the learned magistrate erred in dismissing the claim for damages for the use of abusive language. 

I then asked Counsel for the appellant as to what were his client’s damages. He submitted that his client was injured in his feelings in terms of embarrassment shame and ridicule which lead to his client staying away from work and refusing to be re-employed. Omitting the damages claim for unlawful dismissal, Mr. Mitige argued for damages in the range of K3,000.00 to K5,000.00. He referred to the case of Gabe v. Clunn [1995] PNGLR 153, where an award of K5,000.00 was made for the plaintiff in a case of defamation. He then submitted that a reasonable award of damages for the appellant should be somewhere in the vicinity of K3,000.00 to K5,000.00. 

When I asked how could that case be of assistance to his client’s case which was not an action, strictly speaking, for defamation. Although he conceded to his client’s action not being one for defamation, he submitted that his client’s case was similar to a defamation case. He therefore maintained his submission for damages in the range that he admitted.

Mr. Wagambi on the other hand after having conceded that the damages should follow the use of offensive language resulting in embarrassment and injury to ones feeling, however temporary that might be, a nominal award should be made. That should be the case where there is absence of a case being made out for damages over and above that. He then suggested a figure not exceeding K1,000.00. Mr. Mitige conceded to that amount as he was not able to substantiate a claim for damages over and above that amount. In this circumstances, I ordered that there be judgement for the appellant in the sum of K1,000.00.

In making that award, I stated that our country is built on the Christian principles by a deliberate act in our Constitution, which is noted in its preamble. One of the important principles all Christian Churches teach is to abstain from language that is abusive or that would otherwise amount to an injury of the other’s feeling or cause embarrassment. Christianity teaches brotherly love amongst all irrespective of who or what we are. Everyone of us are admonished to respect one another. Using abusive language to abuse another person, therefore, does not have any place in our society. It is common knowledge throughout the world and PNG is no exception, that bitter wars are fought as a result in most case over the use of abusive language, hence the wisdom of the teaching or the principle against the use of abusive language.

I tried to find if use of abusive language is a tort as the common law world knows it. Unfortunately, I was not able to find any except for the principles governing the law of defamation. Neither of the Counsel were able to assist us on this issue, and this did not help.

It is an established custom in PNG that compensation has to be paid for the use of such language. Indeed, evidence confirming that in the form of affidavits were before the District Court but where struck out on a technical grounds. Under our Constitution, the courts are under and obligation to develop the underline law as per the dictation of the provisions of Schedule 2.3. That duty comes into play when there is no relevant and applying law going by the hierarchy of the laws in our own country per s.9 of the Constitution. It is now accepted law that in order for a custom to be adopted as part of the underline law, it must have common or wider application in PNG. The Court is not restricted in the way in which it ought to be informed of any such custom. See: Constitutional Reference No. 1 of 1977 (Sch. 2.3) [1970] PNGLR 295; The State v. Oa Seseka N921; The State v. Dobi Ao (No.2) N2247.

In the case before me I have not hesitation in finding and accepting that it is a common practice or custom in most, if not all of the society in PNG that some form of compensation must be paid for the use of any obscene or abusive words. In some societies this is very serious. For example, in most of Enga it is a serious wrong for a person to call his father or mother in-law’s name, if he/she does that, he must pay by a substantial amount of money or large pig by way of making that wrong right. The notion of compensation in customary Papua New Guinea is a good way of restoring broken relations and maintaining peace and harmony in society. It is not repugnant to the general principles of humanity as long as it is not exorbitant and misappropriate to the loss of damage caused.

I was firmly of the view therefore, that, no employer, a husband, or a wife, or a father or a mother of a child, or children have any right whatsoever to use any abusive language against his or her employee, wife or husband, son or daughter, or father or mother for this is our Christian duty not to. If anyone engages in such conduct then the consequence of doing that should follow. Custom allows for that and by virtue of Schedule 2.2 of the Constitution as part of our underlying law. The civil consequence for engaging in such conduct is damages. The extent of such damages is dependent on the nature and extent of the damage or injury suffered as a result of such conduct. The person complaining of such conduct has the onus of proving the full extent of his or her damages. Unless there is proof of any serious damage being suffered, a nominal award should be made to demonstrate that such conduct is unacceptable in our societies. Hence, the judgement for K1,000.00 by consent in this case.
_________________________________________________________________________
Lawyers for the Appellant:		Powes Parkop Lawyers
Lawyers for the Respondents:		Blake Dawson Waldron