Keith Bernard v Andrew Marshall

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 February 2015
• Citation: (2015) N5850
• Court: National Court
• Year: 2015
• Judgement Number: N5850

Full : OS NO 767 of 2014; Keith Bernard v Andrew Marshall and Ken Rohen and Nosrida Limited (2015) N5850

National Court: Cannings J

Judgment Delivered: 10 February 2015

N5850

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

2014: 17 November, 8 December,

2015: 10 February

TORTS – trespass to person – trespass to property – claim by plaintiff of unlawful entry to his home by defendant – alleged assault of plaintiff and destruction of personal property.

LAW OF EMPLOYMENT – wrongful dismissal – oral contract – whether contract lawfully terminated for cause; Employment Act, Section 36 (grounds for termination of contract) – whether employee paid proper amount of salary in lieu of notice.

PRACTICE AND PROCEDURE – cross-claim to action for breach of contract of employment – claim for rent due in respect of employer-provided accommodation and for money unaccounted for by the plaintiff.

The third defendant employed the plaintiff from April 2007 to June 2014. On 22 June 2014 the plaintiff’s employment was terminated soon after a physical confrontation with the first defendant. The plaintiff was terminated without notice or money in lieu of notice. The plaintiff sued the defendants, claiming damages in respect of three causes of action: trespass to the person (he claims that the first defendant unlawfully assaulted him); trespass to property (he claims that the first defendant unlawfully entered his home and destroyed property); wrongful dismissal (he claims that his abrupt termination amounted to a breach of his contract of employment). The defendants filed a cross-claim, seeking damages in respect of occupation by the plaintiff, after the date of termination of employment, of his employer-provided accommodation. The defendants denied liability on the three causes of action and the plaintiff denied liability on the cross-claim.

Held:

(1) The claim for trespass to person was refused as the plaintiff failed to prove that he was the innocent party in the physical altercation between himself and the first defendant.

(2) The claim for trespass to property was refused as the plaintiff failed to prove that the first defendant entered his home without lawful excuse and damaged his property.

(3) The claim against the third defendant for wrongful dismissal was granted as the plaintiff proved that his oral contract of employment was not lawfully terminated for cause under Section 36(1) of the Employment Act and that he had a right to be paid salary in lieu of notice under Section 34 of the Employment Act; but he was not paid anything, and this amounted to breach of the contract of employment.

(4) The cross-claim was refused as the plaintiff remained in occupation of the property pursuant to a court order and it was reasonably to be inferred that his court-sanctioned occupation was rent-free.

(5) In summary the third defendant was liable in damages to the plaintiff for breach of the contract of employment.

Cases cited

The following cases are cited in the judgment:

Bal Bar v Maima Kora (2008) N3290

Christopher S Kondai v Lon Sike (2014) N5594

David Michael v Dennis Marus (2008) N3374

George Podas v Divine Word University (2013) N5443

Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440

John Murua v Ramu Nico Management (MCC) Ltd (2013) N5092

John Simi v Weni & Manidol Investment Ltd (2011) N4441

John Tindaka v David Kambu (2012) N4853

Manuel Gramgari v Steve Crawford (2013) N4950

Monica Angogi v Fred Yadiwilo (2014) N5605

Vere Kilao and Chemica Didiman Store, Kimbe v Bernard Tiau (2007) N5000

STATEMENT OF CLAIM & CROSS-CLAIM

This was a trial on the question of liability in respect of three causes of action in a statement of claim and two causes of action in a cross-claim.

Counsel

B B Wak, for the plaintiff

N Y Tenige, for the defendants

10th February, 2015

1. CANNINGS J: The third defendant, Nosrida Ltd, employed the plaintiff, Keith Bernard, from April 2007 to June 2014. On 22 June 2014 the plaintiff’s employment was terminated soon after he had a physical confrontation with the first defendant, Andrew Marshall, at the plaintiff’s employer-provided residence at Binnen Road, Madang. The plaintiff was terminated without notice or money in lieu of notice. The first defendant is Nosrida’s Madang branch manager and the second defendant, Ken Rohan, is the company’s general manager, based in Lae.

2. The plaintiff has commenced proceedings against the defendants. He claims damages in respect of three causes of action:

· trespass to the person (he claims that the first defendant unlawfully assaulted him);

· trespass to property (he claims that the first defendant unlawfully entered his home and destroyed property); and

· wrongful dismissal (he claims that his abrupt termination amounted to a breach of his contract of employment).

3. The defendants filed a cross-claim, seeking damages in respect of occupation by the plaintiff, after the date of termination of employment, of his employer-provided accommodation and for K8,000.00 cash not accounted for by the plaintiff.

4. The defendants deny liability on the three causes of action and the plaintiff denies liability on the cross-claim. A trial has been conducted on the issue of liability. These are the issues:

1 Are the defendants liable for trespass to the person?

2 Are the defendants liable for trespass to property?

3 Are the defendants liable for wrongful dismissal?

4 Is the plaintiff liable on the cross-claim?

1 ARE THE DEFENDANTS LIABLE FOR TRESPASS TO THE PERSON?

5. The plaintiff claims that he was with his family in his home on the evening of Sunday 22 June 2014 when the first defendant kicked open the door and came inside without invitation and searched for unauthorised persons who might be on the premises and assaulted him without lawful justification or excuse in front of his wife and children. He has given evidence in support of that version of events which is supported by evidence of his wife and a neighbour.

6. The evidence of the first defendant challenges that version of events. He testified that he went to the plaintiff’s residence to approach him with an allegation that he had been seen driving an unregistered vehicle of the third defendant earlier in the day and that he was observed to be under the influence of alcohol. The first defendant testified that the plaintiff became angry when confronted with the allegations and grabbed him by the throat, so he turned to leave, at which point the plaintiff punched him in the head several times. This version of events was supported by evidence from neighbours.

7. This is the plaintiff’s case and he bears the onus of proving on the balance of probabilities that his version of events is true and that it supports the elements of a cause of action in trespass to the person, which are that the first defendant violated his body and acted intentionally and unlawfully (David Michael v Dennis Marus (2008) N3374, John Tindaka v David Kambu (2012) N4853).

8. I am not persuaded that the plaintiff’s version of events is the correct one. He has not directly refuted the allegation that he took out the vehicle, knowing that it was unregistered, and that he was under the influence of alcohol. I find the first defendant’s version of events more believable. I find that in the physical altercation that occurred the plaintiff was not a passive victim. I find that the first defendant landed some blows on the plaintiff’s body in defending himself, so in that sense the first two elements of the tort are established: the first defendant violated the plaintiff’s body and he acted intentionally. However, I am not satisfied that the first defendant acted unlawfully. He was entitled to take reasonable steps to defend himself. A cause of action in trespass to the person has not been proven.

2 ARE THE DEFENDANTS LIABLE FOR TRESPASS TO PROPERTY?

9. I decide this issue in a similar way to the first. There are two competing versions of events and evidence in support of each version has been presented. The plaintiff bears the onus of proving that his version is the correct one and that it supports the elements of the tort of trespass to property: the first defendant entered his property, the first defendant acted intentionally, the first defendant acted without lawful authority, the plaintiff had a right to lawful possession of the property, and the plaintiff’s enjoyment of the property was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440, John Simi v Weni & Manidol Investment Ltd (2011) N4441, Manuel Gramgari v Steve Crawford (2013) N4950).

10. I am not...