Yawai v Jant Ltd [2015] PGNC 15; N5866 (19 February 2015)

N5866

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 855 OF 2013

MICHAEL YAWAI
First Plaintiff

GORDON KORUS
Second Plaintiff

V

JANT LIMITED
Defendant

Madang: Cannings J
2014: 9 December,
2015: 19 February

DAMAGES – breach of contract of employment – assessment of damages following trial on liability – failure by employer to pay repatriation expenses upon termination of contract of employment – claim for repatriation expenses, special damages and general damages.

The plaintiffs established liability in breach of contract against the defendant, their former employer, due to the defendant's failure to pay repatriation expenses upon termination of their contracts of employment. At this trial on assessment of damages, the plaintiffs claimed three categories of damages: (1) repatriation expenses (K13,025.07 and K18,899.47); (2) special damages (K135,433.00 and K128,007.00); and (3) general damages (K10,000.00 each), being total claims of K158,458.07 and K156,906.47. The defendant argued that the claims for repatriation expenses and general damages were excessive, that nothing should be awarded for special damages and the total award of damages for each plaintiff should be discounted by 25% due to their failure to mitigate their losses.

Held:

(1) Repatriation expenses were awarded of K8,000.00 for the first plaintiff (repatriation to East Sepik Province) and K15,000.00 for the second plaintiff (repatriation to Autonomous Region of Bougainville).

(2) Nothing was awarded for special damages as the claim was neither pleaded nor proven.

(3) General damages (emotional pain and stress) were awarded of K5,000.00 for the first plaintiff (employed for 35 years) and K2,000.00 for the second plaintiff (employed for 10 years).

(4) The defendant failed to establish good reason for discounting the awards of damages.

(5) The total awards of damages were: K13,000.00 (first plaintiff) and K17,000.00 (second plaintiff). In addition, interest of K1,591.20 and K2,080.80 were awarded. The total judgment sums were K14,591.20 (first plaintiff) and K19,080.80 (second plaintiff).

(6) The parties were ordered to bear their own costs as the plaintiffs' claims were extravagantly excessive.

Cases cited

The following cases are cited in the judgment:

Coecon v National Fisheries Authority (2002) N2182
Dia Kopio v Employment Authority of Enga (1999) N1865
George Podas v Divine Word University (2011) N4395
Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951
Mairi Hoi v Arthur Somare (2012) N4749
Michael Yawai & Others v Jant Ltd (2014) N5729
PNGBC v Jeff Tole (2002) SC694
Thomas Cholai & Others v Jant Ltd (2014) N5506
Timothy Con v Jant Ltd (2014) N5503

ASSESSMENT OF DAMAGES

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

Counsel

G Pipike for the plaintiffs
B B Wak for the defendant

19th February, 2015

1. CANNINGS J: This has been a trial on assessment of damages. The plaintiffs, Michael Yawai and Gordon Korus, established liability in breach of contract against the defendant Jant Ltd, their former employer, due to the defendant's failure to pay them repatriation expenses upon termination of their employment. The Court found that it was a term of their contracts of employment, arising under Section 40(1) of the Employment Act Chapter No 373, that the defendant pay them repatriation expenses to their place of recruitment, and that the defendant breached the contract by not paying them anything (Michael Yawai & Others v Jant Ltd (2014) N5729).

2. The first plaintiff started work with the defendant in 1976 as a plant fitter in the chip-mill workshop. He was recruited from his home, Areng village, East Sepik Province. He retired in July 2011. The second plaintiff started work with the defendant in 2001 as a motor mechanic. He was recruited from his home in the Autonomous Region of Bougainville. He retired in July 2011. At this trial on assessment of damages, the plaintiffs claimed three categories of damages:

(1) repatriation expenses (K13,025.07 and K18,899.47);

(2) special damages (K135,433.00 and K128,007.00); and

(3) general damages (K10,000.00 each),

being total claims of K158,458.07 and K156,906.47.

3. The defendant argued that the claims for repatriation expenses and general damages were excessive, that nothing should be awarded for special damages and the total award of damages for each plaintiff should be discounted by 25% due to their failure to mitigate their losses.

1 REPATRIATION EXPENSES

4. The first plaintiff has presented evidence of the cost of repatriating himself and his family to Areng village, East Sepik Province. He seeks K5,262.00 (airfares) + K6,763.07 (shipping of personal effects) + K1,000.00 (truck hire) = K13,025.07. I agree with Mr Wak, for the defendant, that these amounts appear excessive. I note that the plaintiff includes in his list of dependants his 30-year-old son. Though in fact the son might be financially dependent on his father, he cannot as a matter of law be regarded as a dependant. I take into account the amounts I awarded to the four plaintiffs who were awarded damages in terms of repatriation expenses arising from the determination of liability in Thomas Cholai & Others v Jant Ltd (2014) N5506. Each of them had a similar number of dependants to the first plaintiff in this case. In an oral judgment of 27 September 2014, they were awarded sums of K12,000.00 (repatriation to Manus), K4,000.00 (Bagabag Island, Madang Province), K10,000.00 (Siassi Island, Morobe Province) and (K3,000.00 (Gogol area, Madang Province).

5. Having regard to the evidence and submissions from counsel and being guided by the amounts awarded in Cholai, I consider that a fair assessment in the case of the first plaintiff is K8,000.00. The second plaintiff is entitled to damages in terms of repatriation expenses for himself and his dependants to Malasang village, Buka Island, Autonomous Region of Bougainville. The costs involved in his case are greater than in the case of the first plaintiff. I award K15,000.00.

2 SPECIAL DAMAGES

6. Each plaintiff claims that because of the defendant's failure to pay repatriation expenses he has had to stay in Madang with his family and commence legal proceedings against the defendant and this has cost a lot of money which would not have had to be paid if he had been repatriated to his village. The first plaintiff is claiming K135,433.00 and the second plaintiff K128,007.00.

7. Special damages are intended to compensate a plaintiff for some sort of loss or damage incurred that is not presumed by law to have been incurred. It is a special sort of damage that must be expressly pleaded, particularised and proven (PNGBC v Jeff Tole (2002) SC694).

8. Here, the claims are itemised in the plaintiffs' affidavits, but these are very late claims and it would be unfair to the defendant to award anything as the statement of claim included only a vague claim for "special damages" without any particulars at all. I award nothing for special damages.

3 GENERAL DAMAGES

9. Each 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.

10. In Timothy Con v Jant Ltd (2014) N5503 the plaintiff established liability in breach of contract 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. Taking into account that he had worked for the defendant for 37 years, he was awarded general damages on account of pain, suffering and inconvenience of K5,000.00. Comparing the facts of that case with those of the present case and bearing in mind that the first plaintiff worked for the defendant for 35 years and the second plaintiff for ten years, I award the first plaintiff K5,000.00 and the second plaintiff K2,000.00.

4 SHOULD THE AWARDS OF DAMAGES BE DISCOUNTED DUE TO FAILURE TO MITIGATE LOSSES?

11. Mr Wak relies on the principle that the successful party has a duty to mitigate his losses and if he fails to comply with that duty the award of damages that would otherwise be made is reduced. Mr Wak submitted that neither plaintiff has made any attempt to find an alternative source of income and that their awards should be reduced by 25%. I consider that in the circumstances of the present cases it would be oppressive to take that approach. Besides that, it is the defendant that bears the onus of proof on this issue (Dia Kopio v Employment Authority of Enga (1999) N1865, Coecon v National Fisheries Authority (2002) N2182). I find that the defendant has failed to discharge the onus of proof. There is no discount due to the alleged failure to mitigate losses.

SUMMARY

12. The following table summarises the damages awarded.

Category of damages	First plaintiff (K)	Second plaintiff (K)
Repatriation expenses	8,000.00	15,000.00
Special damages	0	0
General damages	5,000.00	2,000.00
Total	13,000.00	17,000.00

INTEREST

13. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date of filing of the writ (7 August 2013) to the date of this judgment, a period of 1.53 years, by applying the formula D x I x N = A, where: D is the amount of damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest.

Thus:

• the first plaintiff is awarded K13,000.00 x 0.08 x 1.53 = K1,591.20;
• the second plaintiff is awarded K17,000.00 x 0.08 x 1.53 = K2,080.80.
  

COSTS

14. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. In this case there is no clear winner. The plaintiffs have on the one hand succeeded in obtaining awards of damages. On the other hand the first plaintiff succeeded in convincing the court that only 8.20% of his claim (K13,000.00 out of K158,458.07) had merit; and the second plaintiff's success rate was 10.83% (K17,000.00 out of K156,906.47). The defendant succeeded in showing that the bulk of each claim was misconceived. In these circumstances the approach taken in Leeway East Enterprise Ltd v Daniel Danaben (2013) N4951 is the most appropriate: the parties will bear their own costs.

ORDER

(1) The defendant shall pay to the first plaintiff damages of K13,000.00 plus interest of K1,591.20, being a total judgment sum of K14,591.20.

(2) The defendant shall pay to the second plaintiff damages of K17,000.00 plus interest of K2,080.80, being a total judgment sum of K19,080.80.

(3) The parties will bear their own costs.

Judgment accordingly.
______________________________________________________________
GP Lawyers: Lawyers for the Plaintiff
Kunai & Co Lawyers: Lawyers for the Defendant