Timothy Con v Jant Ltd

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 September 2014
• Citation: (2014) N5721
• Court: National Court
• Year: 2014
• Judgement Number: N5721

Full : WS NO 1019 OF 2013; Timothy Con v Jant Limited (2014) N5721

National Court: Cannings J

Judgment Delivered: 9 September 2014

N5721

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1019 OF 2013

TIMOTHY CON

Plaintiff

V

JANT LIMITED

Defendant

Madang: Cannings J

2014: 21 May, 20 June, 9 September

DAMAGES – breach of contract – assessment of damages following trial on liability – failure by employer to pay final entitlements upon retirement of employee – whether plaintiff entitled to general damages for hardship and distress – whether plaintiff entitled to damages not sought in statement of claim.

The plaintiff established liability in breach of contract against the defendant, his former employer, due to the defendant’s failure to pay, by an agreed date, all items it was obliged to pay or provide to him as final entitlements. At this trial on assessment of damages, the plaintiff claimed two categories of damages: (1) general damages (hardship and suffering) of K10,000.00 and (2) special damages of K32,503.00, being a total claim of K42,503.00.

Held:

(1) The claim for general damages was excessive. K5,000.00 was awarded.

(2) The part of the special damages claim (K13,303.00) that related to the amount due under the contract of employment was upheld, but the part that related to alleged unpaid duty allowances (K19,200.00) was refused as it was not pleaded in the statement of claim.

(3) The total award of damages was K18,303.00. In addition, interest of K3,572.75 was awarded. The total judgment sum was K21,875.75. The defendant was ordered to pay the plaintiff’s costs.

Cases cited

The following cases are cited in the judgment:

George Podas v Divine Word University (2011) N4395

Kondai v Siki and Port Moresby Institute of Matriculation Studies (2014) N5594

Mairi Hoi v Arthur Somare (2012) N4749

Pokowan Kandaso v MVIT (1992) N1074

Timothy Con v Jant Ltd (2014) N5503

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for breach of contract.

Counsel

J Morog, for the plaintiff

J J Lome, for the defendant

9th September, 2014

1. CANNINGS J: This has been a trial on assessment of damages. The plaintiff Timothy Con established liability in breach of contract against the defendant, his former employer, due to the defendant’s failure to pay, by an agreed date, all items it was obliged to pay or provide to him as final entitlements under his contract of employment.

2. The plaintiff was employed as the defendant’s chip-mill manager at Madang. He worked for the defendant for 37 years. As part of the downsizing of the defendant’s operations, he was encouraged in early 2012 to resign, which he did. To give effect to his resignation, he and the defendant entered into a memorandum of agreement, which had the effect of varying the most recent written contract of employment that the parties had entered into, in October 2011. The varied contract required the defendant to make certain payments and provide certain things (eg roofing iron and a chainsaw head) to the plaintiff by 30 March 2012. It made some of the payments but not all of them and did not provide the items it was required to provide. The defendant withheld those things until the plaintiff vacated the accommodation provided to him as part of his employment. The defendant’s conduct was held in the judgment on liability to amount to a breach of contract (Timothy Con v Jant Ltd (2014) N5503).

3. At this trial on assessment of damages, the plaintiff claimed two categories of damages: (1) general damages (hardship and suffering) of K10,000.00 and (2) special damages of K32,503.00, being a total claim of K42,503.00. Mr Lome for the defendant submitted that the plaintiff was only entitled to K13,303.00, the amount due under the memorandum of agreement.

1 GENERAL DAMAGES

4. The plaintiff claims K10,000.00 on account of pain, suffering and inconvenience caused by the conduct of the defendant. I agree that, in principle, this is a proper claim, for the reasons I set out in George Podas v Divine Word University (2011) N4395, which are consistent with those of Makail J in Mairi Hoi v Arthur Somare (2012) N4749.

5. In Kondai v Siki and Port Moresby Institute of Matriculation Studies (2014) N5594 K3,000.00, was awarded for this sort of claim. The plaintiff was a teacher who was employed by the defendants for two and a half years. As in the present case the defendants were liable for damages for a breach of contract. Comparing the facts of that case with those of the present case and bearing in mind in particular that the present plaintiff had worked for his employer for a considerably longer period than in Kondai, the plaintiff deserves more. I award K5,000.00.

2 SPECIAL DAMAGES

6. This claim has two components:

(a) the amounts still due under the memorandum of agreement, K13,303.00; and

(b) duty allowances still to be paid under the contract of employment dated 20 October 2011, K19,200.00,

being a total claim of special damages of K42,503.00.

7. Mr Lome for the defendant concedes that the plaintiff is entitled to (a) but argues that nothing should be awarded for (b). I agree. The plaintiff is clearly entitled to (a) but just as clearly has no entitlement under (b). As a general rule, a court can only award the types of damages that are sought in the statement of claim (Pokowan Kandaso v MVIT (1992) N1074). Here, damages for unpaid duty allowances were not sought in the statement of claim, indeed nothing at all was pleaded about unpaid duty allowances. Therefore nothing is awarded. The total award of special damages is K13,303.00.

SUMMARY OF DAMAGES AWARDED

General damages: K5,000.00

Special damages: K13,303.00

Total = K18,303.00

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