Patai v Niugini Lumber Merchants Pty Ltd [1997] PGNC 96; N1602 (11 August 1997)

Unreported National Court Decisions

N1602

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS. NO. 1083 OF 1995
BETWEEN:
KEVIN PATAI - Plaintiff
And:
NIUGINI LUMBER MERCHANTS PTY LTD & OTHER - Defendant

Waigani

Sawong J
6 May 1997
11 August 1997

CONTRACT OF EMPLOYMENT - Damages - Assessment of Damages for Wrongful Dismissal

Counsel:

DK Yala for the Plaintiff

R Nonggor for the Defendants

11 August 1997

SAWONG J: This was a trialassessmentsment of damages, default judgement having been entered against the defendants. Both sides called one witness each.&#1he Plaintiff’s evidence was that he was employed by the first Defendant under a ContrContract of Employment. There is no as to whetherether the Plaintiff was in fact employed by the first Defendant through the Second Defendant. The only issueow mu the Plhe Plaintiff entitled for the wrongful and unlawful termination of his employmeloyment.

The Plaintiff says he was yed by the Defendants on or about 23 October 1993 under a Contract of Employment. Par; Parts ofterm and cond conditions of employment are contained in the document marked exhibit P1. It is ncessary to set out out the contents of that document becauey are not really relevant. The Plai says his teis ters terms and conditions were subsequently changed between him and the Defes. Twere agreed reed to betwebetween the parties.

This was in February 1994. The varied term conditionstions of employms agreed to between the parties was that he was to receive a salary of K500.00 per fortnightnight, housing allowance of K820.00 per m and the sum of K2,000.00 per month being project fee.

In his pleadings, he says that his amended terms and conditions of his employment contract were partly oral and partly in writing. So far as it was in writitg, it was alleged to be contained in a letter dated 27 February 1994 to the Plaintiff. This lewas never produced uced as evidence. And so I do not what it contains.

In his submissions, Mr Nonggor forr for the Defendants has raised several matters. First, he submits the Dents never employeployed the Plaintif60; He submittbmitted that there was no Contract ract of Employment between the parties and there was no breach. It followed, hmitted that,that, the Plaintiff did not suffer aner any damages.

In my judgements, this submission is moot. It is moot be the fact remt remains that there exist a judgement against the Defendants. In other words thetion of n of liability is not an issue, it having been determined already. Put it in another wa my jumy judgement, there hready been a judgement against the defendants, the effect of which, interalia, is that the the defendants were held liable to pay toplaintiff damages. The only iss one of assessssessmenssment of damages.

In so far as that issue is concerned, Mr Nonggor submitted in essence that the Plaintiff has not proved that he has suffered any loss. He submithat the Plaintiffntiff has not produced any evidence of the terms and conditions of his employment, for eg. pay slips etc. Thentiff has also not pro pro a crucial document, namely the letter of 27 February 1994,1994, which he says allegedly contained his terms and conditions of employ

In summary, Mr Nonggor submits that apart from the the oral evidence given by the Plaintiff, he has produced no corroborative documentary evidence to support his oral evidence.

The Witness for the defendant, Mr Singh gave evidence denying that Mr Patai had even been employed by the defendants. He gave idence disputing ting the evidence by the Plaintiff regarding his terms and conditions, and the remuneration he received. I con Singh’s evidenvidence to be less than credible.&#160my view, Mr Singh was selecselective in his evidence, he did not wish to nor told the truth about this matter.

I therefore givtle weight and credibility lity to his testimony. I consider thspite Mr Nong Nonggor’s criticism of the lack of corroborative documentary evidence supporting the Plaintiff’s oral evidence, the Plaintiff’ evidence in the main has not beenroyed or discredited in anyn any substantial manner. I consider the Plaintiff&#iff’s evidence of the terms and conditions of his employment were not destroyed. Consequently, on the balofce of probabilities, I consider that the Plaintiff has esshed or proved his loss.

Despite the lack of corroborative evidence I accept the Plaintiff’s evidence on the terms onditions of his employmentyment. In other words, I accept his evidence regarding loss of salary, and the loss of project fee. I also accept his evidence regarding the costs of repatriation fares for him and his family from Port Moresby to Kavieng.

Thus I find that the Plai Plaintiff is entitled to the following monies.

I add interest on this amount at 4% which is:

1.	Loss of Salary from 30 June 1995 to date of trial (6.5.97):	K24,000.00
	Interest at 4%:	K960.00
>	Subtotal:	K24,960.00
2.	op"> Loss of project fee 30 June to date of trial is:	K46,000.00

In so far as the claim, housing allowance, recr recreation leave, air travel is concern, I find that there is either no evidence or insufficient to grant those. Consequently, the for ther these are dismissed.

There is sufficient and credible evidence of costs of repatriation fees for the Plaintiff and his family. This is acated m in the suhe sum of K2,376.00.

In summary, I a, I award the following damages.

1.

Loss of Salary:

K24,000.00

2.

Loss of Project fee:

K46,000.00

3.

Interest:

K2,800.00

TOTAL:

K72,800.00

I give judgment for the total sum of K72,000.00. I direct that judgeme not not entered for four(14) days from today’8217;s date. The parties may during that time apply to the Court to vary the judgement to correct erof calculation or errors of a similar kind.

If the pthe parties are agreed that such an error has been made, it may be dealt wy the Chamber order. 160; Other the judgement sent shall take effect and may be entered at the end of that time.

Lawyers for the Plaintiff: Mamando Lawyers

Lawyers for the Defendants: Warner Shand