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Katea v Kaupule [2007] TVHC 1; Civil Case 2 of 2006 (26 October 2007)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI.
Civil Jurisdiction

Case no. 2/06

Between:

Seta Katea
Plaintiff

And:

Niutao Kaupule
First Defendant

And:

Vaguna Satupa
Second Defendant

BEFORE THE CHIEF JUSTICE

J Grover for plaintiff
S Talu for defendants

Hearing: 20 October 2007
Judgment: 26 October 2007

Judgment on Quantum

The plaintiff brought an action for unlawful dismissal, tortious assault and contravention of her rights under the Constitution. Following a trial, judgment was given to the plaintiff against both defendants for unfair dismissal and assault.

At that stage, the Court had not heard sufficient evidence to assess damages and it was adjourned for a further hearing. The claim is for special, general and punitive damages.

The facts found by the Court were briefly that the plaintiff worked as a clerk/typist for the first defendant and her immediate superior was the second defendant, who held the position of Kaupule secretary. She was a native of Funafuti but was married to a man from Niutao. She was appointed in July 1999 and later the same year was sent to Funafuti for three months typing and computer training. On her return, the Court accepted that she had every reason to consider that, in terms of employment, her future was secure. However, in 2001, the second defendant started to make sexual advances to her. These advances became very frequent and included touching her breasts while she was typing and sitting on her desk and putting his feet on her thighs. These physical actions were accompanied by constant requests for sexual intercourse and suggestions of clandestine meetings for that purpose. These were even repeated when she was at home on Sunday. She feared he might rape her.

In the judgment on liability the Court found:

"As this conduct continued, her whole life was affected. She felt threatened and frightened by his unwanted advances. Even her nights were passed in dread of returning to work the next day for fear of what he would do. At the time her husband was working on Funafuti. She did not think she could report it to the Kaupule or the police. She did not believe they would help her. All she could do was to try and keep her job and avoid his advances. However, as time passed he added the threat that, if she continued to refuse him, he could and would dismiss her."

In January 2003 after she had taken one or two days leave to attend to her sick daughter, the second defendant gave her a letter from the Kaupule, signed by him as Secretary, saying she had been dismissed for lack of competence. It gave her two days to complete any outstanding work. She had been given neither warning nor opportunity to be heard. She appealed to the Falekaupule pointing out, in a letter, that sexual harassment was the real reason for her dismissal but they refused even to read it because it did not match the reasons the Kaupule had given for her dismissal.

The plaintiff was unable to find any alternative employment on Niutao and went to Funafuti where, apart from a short period of work in a store, she remained unemployed until mid 2004 when she obtained a similar position to that in Niutao with the Funafuti Kaupule. She still holds that position.

No evidence has been lead of special damages.

Her conditions of employment with the first defendant provided for three months notice of termination. It would appear from her evidence on the adjourned hearing that the Kaupule did pay her after her dismissal. Her evidence suggested that it did not continue for the full period but was unclear whether that was because it had not continued or because she failed to collect it. I do not consider that I can award any sum for that period and counsel for the plaintiff does not pursue it.

At the adjourned hearing, the plaintiff’s evidence was imprecise and it was not possible to find any exact figures. For the two months she worked in the store, she stated she was paid a little less than her previous pay but how much that was and how much was deducted for tax and TPF contributions and how much to repay personal loans was far from clear. Once she started with the Funafuti Kaupule, she explained she was receiving the same salary as she had previously received in Niutao.

Counsel for the plaintiff seeks payment to compensate her loss of earnings between the two events. This is not, she points out, a case where the dismissal simply failed to follow normal procedures so that damages would properly be limited to the period of notice. This was dismissal in breach of the terms of her employment, for totally false reasons and was done to punish her for her refusal to succumb to her superior’s improper harassment over a very long period of time. The first defendant simply accepted the reasons given by the second defendant without enquiring or giving her an opportunity to explain. When she appealed, the Falekaupule dealt with the whole issue in a manner little short of cavalier.

Counsel points out that the evidence accepted by the Court suggests she had a firm and reasonable expectation that she would continue in that employment. Salaried work in Niutao is not easy to come by and it is to be expected that, in normal circumstances, she would have ensured she retained her position.

Damages are to try to place the defendant in the position she would have been had it not been for the events the subject of the claim. The evidence is that she was out of work from the time she finished at the store until she started with the Funafuti Kaupule. If five months is deducted for the period of notice and the two months at the store there is left a period of twelve months. There is also evidence that she stopped her work with the store because she was four months pregnant but the actual dates are impossible to establish with any degree of accuracy. I shall order general damages for half of that time for unfair dismissal.

Her evidence was that she was paid "more than $200" per fortnight which was "more than $100" nett. No documents were produced to confirm her pay with the Niutao Kaupule or, even though she stated she is paid the same in Funafuti, with her present employer. This is unsatisfactory but I note the figures were not challenged by counsel for the defence and so I shall award six-months pay at $100 per fortnight, a total of $1,300.00 (13x100).

Damages for the assaults are more difficult to quantify. I am advised that there are no previous awards for such an action in Tuvalu.

As has been stated, the aim of damages is to place the successful plaintiff in the position as near as possible that she would have been had the tort not been committed. In this case, there was no physical injury resulting from the assaults but cases of trespass to the person are actionable without proof of actual damage. This is because the damages will not only be calculated for any actual physical injury but also for less tangible consequences such as mental shock and suffering, the indignity, humiliation or feelings of shame or disgrace even where they do not lead to any diagnosable physical injury or condition.

These are all matters to be taken into account by the Court in assessing general damages. In addition the Court may consider aggravated damages. Nothing was claimed under that head but there was a claim for punitive or exemplary damages. Counsel suggests they would be due under the first of the categories enumerated in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; [1964] 1All ER 367; namely for oppressive, arbitrary or unconstitutional acts by servants of the government. The aim of exemplary damages is to punish the offender in order to deter him and others from similar conduct in future.

I do not intend to award exemplary damages for two reasons. First, I shall, instead, take the conduct of the second defendant into account by an award of aggravated damages and, second, because, as exemplary damages are intended to punish the offender, the court should not award them without some evidence of the defendant’s means, which I do not have. I do not consider a further delay in this case is desirable or necessary.

I accept the evidence of the plaintiff that for a period well in excess of a year the conduct of the second defendant effectively ruined her life. His persistence resulted in the unpleasantness increasing as the time passed. His conduct was made worse by the actual physical contacts and by the abuse of the position he held in the workplace. He knew and took advantage of the fact her husband was not on the island and the addition of threats to his previous suggestive behavior was a very serious escalation of the harm.

Finally, his use of false allegations against her to ensure her dismissal was followed by a total failure by the Kaupule to investigate the allegation. Whilst this subsequent conduct by the Kaupule supported her feeling that it would have been pointless to report the conduct of the second defendant, I consider she should have tried to do so and her failure to make any attempt to report it must reduce the final award. Her assumption that it would be pointless added, I have no doubt, to her overall feelings of helplessness and might possibly have been avoided.

In a community as small as Niutao, her dismissal was public knowledge and her inability to explain her side of the whole issue added substantially to her feelings of shame and humiliation almost amounting to public disgrace.

I regard this as a very serious case of sexual harassment in the workplace. However, I also note that despite his persistence and the time over which this continued, the second defendant never resorted to physical force beyond the sexual touching to which I have referred. I also note that, although he did not attend the trial to give evidence, he still persisted in defending it. The Court has already found that the first defendant is vicariously liable for these acts.

No figure of general damages has been suggested by counsel and the Court must evaluate the matters referred to and try and reach a figure which properly reflects the seriousness of the tort as measured against the level of incomes and resources in Tuvalu.

I consider that an award of general damages of $5,000 is appropriate in this case but, for the reasons have set out, I shall increase this by an award of 75% of that sum as aggravated damages, namely $3750.00.

I order interest at 5% per annum on the total sum of damages from the date the writ was filed until the date of payment.

The plaintiff also seeks an order for costs to cover the court fee of $9.00 and total disbursements of $93.00. I so order.

Order:

The defendants are jointly and severally liable for total damages of $10,050.00 with interest at 5% per annum from the date of filing of the writ (23 September 2005) to the date of payment.
The plaintiff shall have her costs of $102.00.

Dated: 26th day of October 2007

Chief Justice