Totio v Public Utilities Board - damages [2001] KIHC 50; Civil Case 33 of 1991 (1 June 2001)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 33 of 1991

Between:

KORU TOTIO
Plaintiff

And:

PUBLIC UTILITIES BOARD
Defendant

For the Plaintiff: Ms Emma Hibling
For the Defendant: Mr Kirata Komwenga

Date of Hearing: 31 May 2001

JUDGMENT ON DAMAGES

I gave judgment on liability on 27 April and, at their request, left the parties to try to agree damages. In my Reasons I raised the question of what should happen to the plaintiff now.

The parties have not been able completely to agree damages. I have figures from Ms Hibling with which Mr Komwenga does not take issue. Mr Komwenga does take issue with one head of damage claimed and also with the claim for interest at 5%.

Ms Hibling included a claim for leave for each year since 1991 but in discussion with counsel last Thursday, 31 May, I said I did not think leave should be included. The plaintiff has been on leave all the time! Ms Hibling agreed to make the calculation again omitting anything for leave.

Ms Hibling also included interest at 5%. Mr Komwenga argued against this but I can see no reason why the plaintiff should not have interest. He has been kept out of his money all this time while the defendant has had the use of it. The rate of 5% is reasonable. I allowed the claim for interest at 5%.

The other vexed question is what is to happen to the plaintiff's job?

The defendant refuses to reinstate him. There have been no disciplinary proceedings which would lead either to reinstatement or to dismissal. Ms Hibling submitted that I should assume disciplinary proceedings would come out in favour of the plaintiff: after 10 years it would be an abuse of process to go on with them: the plaintiff should be reinstated on full pay. Perhaps so but I just don't know: the result could go either way. That being so the plaintiff has failed to discharge the onus of proving on the balance of probabilities that the proceedings would fail. The plaintiff should receive only half pay.

The defendant twice essayed to dismiss the plaintiff. The first time the Public Service Commission overruled it: on the second the dismissal was confirmed. I have found that the defendant acted unlawfully. The best way to bring this action to a conclusion is to find that the plaintiff was wrongfully dismissed from 3 May 1991. This is what Mr Komwenga invited me to find and I do so.

In the meantime the plaintiff took other work and earned from it $4,852. Ms Hibling conceded that this should be deducted from damages.

The damages are:-

Half pay (3.5.91 to 27.04.01) $16,293.00

Half pay (28.04.01 to 30.05.01) 299.00

Interest at 5% 3,401.31

Total $19,993.31

Less income earned 4,852.00

Balance $15,141.31

There will be judgment for the plaintiff for $15,141.31.

Dated the day of June 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE