Keith Bernard v Andrew Marshall

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 July 2015
• Citation: (2015) N6030
• Court: National Court
• Year: 2015
• Judgement Number: N6030

Full : OS No767 of 2014; Keith Bernard v Andrew Marshall and Ken Rohen and Nosrida Limited (2015) N6030

National Court: Cannings J

Judgment Delivered: 22 July 2015

N6030

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 767 OF 2014

KEITH BERNARD

Plaintiff

V

ANDREW MARSHALL

First Defendant

KEN ROHEN

Second Defendant

NOSRIDA LIMITED

Third Defendant

Madang: Cannings J

2015: 8th, 22 th July

DAMAGES – breach of contract of employment – assessment of damages following trial on liability – failure by employer to terminate contract of employment in accordance with provisions – claim for damages of K23, 508.00.

The plaintiff established liability in breach of contract against the third defendant, his former employer, due to its failure to terminate the contract of employment in accordance with its provisions. It was an oral contract that could be terminated by either party giving four weeks’ notice to the other party. The employer orally terminated the contract without notice during the course of an altercation between the plaintiff and his immediate boss, the first defendant, and there was insufficient evidence that it could be regarded as termination for cause. The plaintiff claimed three categories of damages: general damages, K11, 008.00; special damages, K7, 500.00; exemplary damages, K5, 000.00; a total of K23, 508.00.

Held:

(1) For general damages, K1, 008.00 was awarded for salary in lieu of notice plus K4, 000.00 for pain and suffering, a total of K5, 008.00.

(2) Nothing was awarded for special damages or exemplary damages. The total award of damages was K5, 008.00. The defendant failed to argue any reason for discounting that amount.

(3) In addition, interest of K432.69 was awarded. The total judgment sum was K5, 440.69. The parties were ordered to bear their own costs.

Cases cited:

The following cases are cited in the judgment:

Bal Bar v Maima Kora (2008) N3290

Bromley v Finance Pacific Ltd (2001) N2097

Bruno Denfop v Jant Ltd (2015) N5869

Christopher Kondai v Lon Sike & PIMS (2014) N5721

Dobiam Kope v Tourism PNG Ltd (2010) N4138

Keith Bernard v Andrew Marshall, Ken Rohan & Nosrida Ltd (2015) N5850

Koimo v The State [1995] PNGLR 535

Latham v Peni (1990) N1463

Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951

Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605

PNGBC v Jeff Tole (2002) SC694

Timothy Con v Jant Ltd (2014) N5721

Tomba v The State (1997) SC518

ASSESSMENT OF DAMAGES

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

Counsel

B B Wak, for the plaintiff

A Marshall, with leave, for the defendants

DAMAGE

22nd July, 2015

1. CANNINGS J: This has been a trial on assessment of damages. The plaintiff, Keith Bernard, established liability in breach of contract against his former employer, the third defendant, Nosrida Ltd, due to its failure to terminate his contract of employment in accordance with its provisions. It was an oral contract that could be terminated by either party giving four weeks’ notice to the other party or four weeks’ salary in lieu of notice. The employer orally terminated the contract without notice during the course of a verbal and physical altercation between the plaintiff and his immediate boss, the first defendant, Andrew Marshall, on Sunday 22 June 2014. There was insufficient evidence that it could be regarded as termination for cause. Further details of why the third defendant is liable are in the judgment on liability, Keith Bernard v Andrew Marshall, Ken Rohan & Nosrida Ltd (2015) N5850.

2. The plaintiff claims three categories of damages: general damages, K11, 008.00; special damages, K7, 500.00; exemplary damages, K5, 000.00; a total of K23, 508.00.

1 GENERAL DAMAGES

3. The plaintiff claims two components of general damages: (a) K1, 008.00 representing four weeks salary in lieu of notice, which the court has found he is entitled to, but which has not been paid to him, plus (b) K10, 000.00 for pain and suffering to compensate him for the trauma caused to him and his family due to the unlawful termination of his employment.

4. As to (a), I award the amount claimed, which is not contested. As to (b), I uphold the submission of Mr Wak that this is an appropriate component of general damages and that there is ample evidence of the plaintiff and his family being inconvenienced and suffering hardship as a direct consequence of the breach of contract that occurred. I have considered the circumstances in which the plaintiff’s employment was terminated and the length of time – seven years – he was employed, and compared the facts of this case with other cases recently decided in which the plaintiffs, former employees, were awarded a similar component of general 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, Bruno Denfop v Jant Ltd (2015) N5869 = K8,000.00. I award K4, 000.00.

2 SPECIAL DAMAGES

4. The plaintiff claims three components of special damages: (a) K2, 000.00 for the cost of a hire car to move his property and family to his new place of residence at Nagada, plus (b) K500.00 for food and accommodation and other expenses connected with him following up the issue of his formal dismissal with the third defendant, plus (c) K5, 000.00 for repatriation expenses to his place of recruitment, Lae.

6. Special damages are intended to compensate the innocent party for some sort of loss or damage incurred that is not presumed by the law to have been incurred. It is a special sort of damage that must be expressly pleaded and proved (PNGBC v Jeff Tole (2002) SC694, Bal Bar v Maima Kora (2008) N3290, Dobiam Kope v Tourism PNG Ltd (2010) N4138).

I reject all these claims as none was pleaded in the statement of claim.

3 EXEMPLARY DAMAGES

7. The plaintiff claims K5, 000.00 exemplary damages due to the first defendant, Andrew Marshall, acting beyond his powers and terminating the plaintiff in unwarranted circumstances without proper regard for the life and dignity of the plaintiff and his family.

8. Exemplary damages is a special category of damages awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant for a particularly egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (Tomba v The State (1997) SC518, Latham v Peni (1990) N1463, Koimo v The State [1995] PNGLR 535, Bromley v Finance Pacific Ltd (2001) N2097).

9. Should the third defendant be punished because of the way in which Mr Marshall terminated the plaintiff’s contract of employment? In determining this issue, I find that Mr Marshall did not act without authority in sacking the plaintiff. The breach of contract arose due to the third defendant’s failure to give notice or pay salary in lieu of notice in accordance with the Employment Act. It must be borne in mind that at the trial on liability the court was presented with conflicting evidence as to what led to the altercation between the plaintiff and Mr Marshall and what actually happened. The plaintiff’s evidence was that he was with his family in his home on the evening of Sunday 22 June 2014 when Mr Marshall kicked open the door and...