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Madring v Santi Forestry (PNG) Ltd [2015] PGNC 33; N5908 (18 March 2015)

N5908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1140 OF 2012

BETWEEN

MICHAEL MADRING
Plaintiff

AND;

SANTI FORESTRY (PNG) LIMITED
Defendant

Madang: Cannings J
2014: 24 September, 13 December,
2015: 18 March

DAMAGES – wrongful dismissal – assessment of damages after default judgment – whether plaintiff entitled to general damages, damages for mental anxiety, unpaid wages, unpaid housing allowances, unpaid annual leave.

The plaintiff obtained default judgment against the defendant, his former employer. The plaintiff established a cause of action in breach of contract, arising from the defendant's failure to pay all contractual entitlements due to him upon his termination. At this trial on assessment of damages the plaintiff claimed five categories of damages: (a) general damages for unlawful termination (an unliquidated claim); (b) damages for mental anxiety, financial hardship and inconvenience (an unliquidated claim); (c) unpaid wages (K53,912.85); (d) unpaid housing allowances (K80,000.00); (e) unpaid annual leave (K4,569.23), being a total claim of K138,482.08.

Held:

(1) The plaintiff was awarded (a) general damages of one fortnight's salary of K1,311.92 + (b) K4,000.00 for mental anxiety etc = K5,311.92, which was the total award of damages as nothing was awarded for (c), (d) and (e).

(2) In addition, interest of K1,580.83 was awarded. The total judgment sum was K6,892.75. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Christopher Kondai v Lon Sike & PIMS (2014) N5721
Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605
Timothy Con v Jant Ltd (2014) N5721

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages.

Counsel;

B Tabai, for the plaintiff
T M Ilaisa, for the defendant

18 March, 2015

1. CANNINGS J: The plaintiff Michael Madring obtained default judgment against his former employer, Santi Forestry (PNG) Ltd, for wrongful dismissal. He was employed as a forester and logging operations manager from 12 December 2007 to the date of termination of employment, 27 June 2011. By the entry of default judgment he established a cause of action in breach of the contract of employment, arising from the defendant's failure to pay all contractual entitlements due to him upon his termination.

Claim

2. At this trial on assessment of damages the plaintiff claimed five categories of damages:

(a) general damages for unlawful termination (an unliquidated claim); (b) damages for mental anxiety, financial hardship and inconvenience (an unliquidated claim);

(c) unpaid wages (K53,912.85);

(d) unpaid housing allowances (K80,000.00);

(e) unpaid annual leave (K4,569.23), being a total claim of K138,482.08 plus the two unliquidated claims.

3. Mr Ilaisa for the defendant submitted that nothing should be awarded as this was a case of termination due to gross misconduct (it was alleged that the plaintiff stole two round logs that belonged to the defendant) and the defendant paid the plaintiff's final entitlements, totalling K4,867.70, which were accepted without complaint by the plaintiff on 30 June 2011.

5. I agree with Mr Tabai for the plaintiff that Mr Ilaisa's central proposition that nothing should be awarded should be rejected as it is an attempt to revisit the question of liability, which has already been determined by the default judgment.

Assessment

6. For (a) general damages, I award one fortnight's salary, being K1, 311.92, as liability was entered on the basis of the pleading that that amount was not paid in lieu of notice under Section 34(4)(c) of the Employment Act.

7. For (b) damages for mental anxiety, financial hardship and inconvenience, I have considered the circumstances in which the plaintiff's employment was terminated and compared the facts of his case with cases I decided last year in which the plaintiffs, former employees, were awarded a similar category of damages: Christopher Kondai v Lon Sike & PIMS (2014) N5721 = K3,000.00; Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605 = K4,000.00; Timothy Con v Jant Ltd (2014) N5721 = K5,000.00. I award K4,000.00.

8. I award nothing for each of categories (c), (d) and (e), as I am not satisfied on the evidence that the plaintiff had any contractual entitlement to additional wages or housing allowances and there is no basis therefore for a finding that he was not paid annual leave entitlements.

Summary of Damages Awarded

9. The plaintiff is awarded (a) general damages of K1,311.92 + (b) K4,000.00 for mental anxiety etc = K5,311.92, which is the total award of damages as nothing is awarded for (c), (d) and (e).

Interest

10. 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. Interest will be calculated in respect of the period from the date on which the cause of action accrued (27 June 2011) to the date of this judgment, a period of 3.72 years, 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 and A is the amount of interest. Thus K5,311.92 x 0.08 x 3.72 = K1,580.83.

Costs

11. 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 the defendant has succeeded in convincing the court that only 3.84% (K5,311.92 out of the liquidated claim of K138,482.08) had merit; at least 96.16% of the claim was without merit. The parties will bear their own costs.

Order

(1) The defendant shall pay to the plaintiff damages of K5, 311.92 plus interest of K1, 580.83, being a total judgment sum of K6, 892.75.

(2) The parties shall bear their own costs.

Judgment accordingly,
______________________________________________________________
Tabai Lawyers: Lawyers for the plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the defendant