Matthew v Ling [2024] PGNC 34; N10687 (15 March 2024)

N10687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 247 OF 2019

BETWEEN:
SONNY MATTHEW FOR AND ON BEHALF OF HIMSELF AND JAL
JERRY GANZ, MATTHEW AMBONG, ARNOLD ARUMBAI, THADDEUS
MARK, MICHAEL AURIP, GOMIA
KIMIN, GEORGE KAMBIN, LUKE
SAI AND EKI MUNAME
-Plaintiffs -

AND:
JEFFREY LING,
GENERAL MANAGER –
Madang Timbers Limited
-First Defendant-

AND:
FRANCIS KALIP
Human Resource Manager-
Madang Timbers
-Second Defendant-

AND:
MADANG TIMBERS LIMITED
-Third Defendant-

Madang: Narokobi J
2023: 25^th May
2024: 15^th March

HUMAN RIGHTS – Breach of s 41(1)(a),(b) and (c) of the Constitution – Appropriate Compensatory Damages Assessed – Relevant Considerations – Reasonable Compensatory Damages Ordered

DAMAGES – Unpaid Entitlements - Principles of Assessment of Damages Considered – Circumstances Where Precise Evidence Unavailable – Relevant Considerations– Reasonable Damages Ordered Against Wrongdoer in the Circumstances

The plaintiffs were long-time security guards of the third defendant and sued the defendants for breach of their human rights and other underlying law causes of action after their employment was terminated. Liability was decided in the plaintiffs’ favour with the following orders:

1. The plaintiffs have established a cause of action for the breach of their rights under s 41(1)(a), (b) and (c) of the Constitution.
2. Consequently, the plaintiffs have established a cause of action for failure by the third defendant to pay the plaintiffs’ lawful entitlements.
3. All other claims are dismissed.

The issue that arises for determination is, what is the appropriate damages that should be awarded to the plaintiffs after having established liability in their favour.

Held:

1. Breach of s 41(1)(a)(b) and (c) of the Constitution in an employer/employee situation has attracted compensatory damages under the Constitution in this jurisdiction, and the court adopts this approach in this case Petrus v Telikom PNG Ltd (2008) N3373, cited with approval in Morobe Provincial Government v Kameku (2012) SC1164.
   
2. Given that most of the plaintiffs had spent most of their working life with the third defendant, and there was an imbalance in power between the parties surrounding the breach of human rights, K10,000.00 was assessed as reasonable compensatory damages for breach of s41(1) of the Constitution.
   
3. The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343, cited with approval in Mel v Pakalia (2005) SC790).
   
4. The third defendant was found liable to pay the plaintiffs for unpaid entitlements, but since precise evidence was lacking, taking the approach in Jonathan Mangope Paraia v The State in the unique circumstances of this case, a sum of K10,000.00 for each plaintiff was awarded.
   

Cases Cited:

Buat v Kila (2021) N9329
Kolokol v Ambuarapi (2009) N3571
Matthew v Ling (2020) N8665
Mel v Pakalia (2005) SC790
Morobe Provincial Government v Kameku (2012) SC1164
Pama v Chris Gens (trading as Kanagio Security Services) (2020) N8516
Petrus v Telikom PNG Ltd (2008) N3373

Legislation:

Constitution
Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel:

Mr B Wak, for the Plaintiffs
Mr T Injia, for the Defendants

DECISION

15^th March 2024

1. NAROKOBI J: The plaintiffs were long-time security guards of the third defendant and sued the defendants for breach of their human rights and other underlying law causes of action after their employment was terminated.
   
2. I decided liability in favour of the plaintiffs. Several orders were made in my findings on the question of liability:
   
   4. The plaintiffs have established a cause of action for the breach of their rights under s 41(1)(a), (b) and (c) of the Constitution.
   5. Consequently, the plaintiffs have established a cause of action for failure by the third defendant to pay the plaintiffs’ lawful entitlements.
   6. All other claims are dismissed.
      
3. The issue that arises now is what is the appropriate damages that should be awarded to the plaintiffs after having established liability in their favour?
   
4. Based on my findings on liability, I consider two categories of damages – breach of s 41(1)(a), (b) and (c) of the Constitution and payment of any lawful entitlements owing to the plaintiffs.
   
5. Generally, the principles on assessment of damages, which I consider in this matter are stated in the case of Mel v Pakalia (2005) SC790. I quote these principles from that case:
   
   • The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
   • Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
   • The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
   • The same principles apply after default judgment is entered and the trial is on assessment of damages even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
   • If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
   • Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
   • The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
     
6. What is important from these principles is the necessity of credible evidence to prove the quantum of damages. In this case the following affidavits were tendered by the parties and admitted as evidence by the court:
   

No	Date	Description of document/item tendered	Exhibit No
	11.05.23	Affidavit of Sonny Mathew, sworn 13/03/20 and filed on 16/03/20	“P1”
	11.05.23	Affidavit in Support of Assessment of Damages by Sonny Mathew, sworn 09/09/21 and filed on 13/09/21	“P2”
	11.05.23	Affidavit in Support of Assessment of Damages by Sonny Mathew, sworn 31/05/21 and filed on 09/06/22	“P3”
	11.05.23	Affidavit of Peter Jai, sworn 13/03/20 and filed on 16/03/20	“P4”
	11.05.23	Affidavit in Support of Assessment of Damages by Peter Jai, sworn 09/06/21 and filed on 13/09/21	“P5”
	11.05.23	Affidavit in Support of Assessment of Damages by Peter Jai, sworn 06/06/22 and filed on 17/06/22	“P6”
	11.05.23	Affidavit of Elizabeth Munume, sworn 17/03/20 and filed on 18/03/20	“P7”
	11.05.23	Affidavit in Support of Assessment of Damages by Elizabeth Munume, sworn 09/09/21 and filed on 13/09/21	“P8”
	11.05.23	Affidavit in Support of Assessment of Damages by Elizabeth Munume, sworn 06/06/22 and filed on 17/06/22	“P9”
	11.05.23	Affidavit of Jerry Ganz, sworn 13/03/20 and filed on 16/03/20	“P10”
	11.05.23	Affidavit of Mathew Ambong, sworn 13/03/20 and filed on 16/03/20	“P11”
	11.05.23	Affidavit of Arnold Arumbai, sworn 13/03/20 and filed on 16/03/20	“P12”
	11.05.23	Affidavit of Thaddius Mark, sworn 13/03/20 and filed on 16/03/20	“P13”
	11.05.23	Affidavit of Gomia Kimin, sworn 13/03/20 and filed on 16/03/20	“P14”
	11.05.23	Affidavit of George Kambing, sworn 13/03/20 and filed on 16/03/20	“P15”
	11.05.23	Affidavit of Luke Sapi, sworn 13/03/20 and filed on 16/03/20	“P16”
	11.05.23	Affidavit in Support of Assessment of Damages of Mathew Ambong, sworn 09/09/21 and filed on 13/09/21	“P17”
	11.05.23	Affidavit in Support of Assessment of Damages of Gomia Kimin, sworn 09/09/21 and filed on 13/09/21	“P18”
	11.05.23	Affidavit in Support of Assessment of Damages of George Kambing, sworn 09/09/21 and filed on 13/09/21	“P19”
	11.05.23	Affidavit in Support of Assessment of Damages of George Kambing, sworn 09/09/21 and filed on 13/09/21	“P20”
	11.05.23	Affidavit in Support of Assessment of Damages of Thaddius Mark, sworn 09/09/21 and filed on 13/09/21	“P21”
	11.05.23	Affidavit in Support of Assessment of Damages of Luke Sapi, sworn 09/09/21 and filed on 13/09/21	“P22”
	11.05.23	Affidavit in Support of Assessment of Damages of Jerry Ganz, sworn 09/09/21 and filed on 13/09/21	“P23”
	11.05.23	Affidavit in Support of Assessment of Damages of Arnold Arumbai, sworn 31/05/22 and filed on 09/06/22	“P24”
	11.05.23	Affidavit in Support of Assessment of Damages of Jerry Ganz, sworn 06/06/22 and filed on 17/06/22	“P25”
	11.05.23	Affidavit in Support of Assessment of Damages of Mathew Ambon, sworn 06/06/22 and filed on 17/06/22	“P26”
	11.05.23	Affidavit in Support of Assessment of Damages of Gomia Kimin, sworn 06/06/22 and filed on 17/06/22	“P27”
	11.05.23	Affidavit in Support of Assessment of Damages of Thaddius Mark, sworn 06/06/22 and filed on 17/06/22	“P28”
	11.05.23	Affidavit in Support of Assessment of Damages of George Kambing, sworn 06/06/22 and filed on 17/06/22	“P29”
	11.05.23	Affidavit in Support of Assessment of Damages of Michael Aurip, sworn 06/06/22 and filed on 17/06/22	“P30”
	11.05.23	Affidavit of Jeffrey Ling, sworn 29/08/19 and filed on 04/10/19	“D1”

7. The plaintiffs tendered 30 affidavits and the defendants responded with one affidavit. Much of the evidence was tendered during the issue of liability. My findings on the facts are in that judgment - Matthew v Ling (2020) N8665. These facts relevant to assessment of damages are:
   
   27. The defendants actions to pay the plaintiffs a fixed salary of K450 per fortnight from when it commenced in 2014 to 2019 was to avoid paying the plaintiffs for actual hours worked as required under Par IV, Conditions of Employment of the Employment Act, Ch 373, especially s 52 and the Minimum Wages Board Determination No 1 of 2014 to pay K3.50 per hour as of 3 July 2016. It does not take into account the number of hours worked beyond a normal eight (8) hour working day from Monday to Friday and then at time and a half on a Saturday and double time on Sunday as well as double time on public holidays. As such it was harsh and oppressive in the circumstances.
       
   28. I find that only paying them for hours worked in 2019 was to avoid meeting the requirements as spelt out by the Labour Department in their brief to the defendants dated 16 July 2019.
       
   29. Such actions were not only harsh and oppressive but were not warranted by the circumstances of the case and not reasonably justifiable in a democratic society where people need to live on a decent wage.
       
   30. The defendants were wrong to negotiate with the plaintiffs if the basic requirements of the employment laws to be paid according to the Employment Act was not met in the first place. A need for negotiation would arise if the terms to be negotiated was above the minimum term. Such action was therefore not warranted by the requirements of a particular case.
       
   31. I am inclined to draw the inference that what the defendants did to the plaintiffs was in reprisal for taking their matter up with the Labour Department. If the defendants wished to terminate the plaintiffs, all it had to do was to pay the plaintiffs the minimum requirements under the relevant laws and then terminate them by giving the required notice period or paying them money in lieu of notice. Such action was therefore harsh and oppressive. The defendants have not led evidence to show that as of the date of filing the case against them by the plaintiffs, they have in fact engaged a private security firm to provide security for them. I can only conclude that the actions to terminate was in direct reprisal for taking up the matter with the Labour Department. It is true that the defendants have the right to terminate but the manner in which it was done was harsh and oppressive.
       
8. The critical evidentiary material introduced after the finding of liability related to a letter dated 17 May 2021 from the Labour Department. This letter was objected to by the defendants, and I upheld their objection on the basis that the author of the letter could not be made available by the plaintiffs for cross-examination. Since the plaintiffs’ termination they state that they suffered loss. To maintain their livelihood, some of their personal items were sold. Others stated their children could not go to school. One said he had to obtain a loan to sustain himself. They could not get a job elsewhere and have been waiting for the outcome of the case for some time.
   
9. On the other hand, the defendant relies on the same affidavit tendered during trial on liability. Essentially the deponent Jeffrey Ling states that their entitlements have been calculated and while some of the plaintiffs have come and signed and collected it, a few of them have not. Mr Ling further states that by a letter dated 27 March 2019, the Madang Provincial Labour office wrote to the defendants advising them of a complaint by their security guards that they were not paid overtime and that the fixed wage rate contained in their contract was illegal. Following the letter a meeting was held between the Labour office and the defendants’ representatives on 10 July 2019.
   
10. After the meeting between the Labour office and the defendants, it was considered that cash payment for 2019 unpaid entitlements be made to the plaintiffs and no retrospective payment be entertained as the security guards (plaintiffs) did not comply with the three months allowed to raise their grievance.
    
11. Following this meeting, a memorandum was prepared for the plaintiffs to sign and collect their payments for the unpaid 2019 entitlements. Sonny Mathew, Peter Jai, Jerry Ganz, Mathew Ambong, and Arnold Arombai have not collected their final entitlements yet. Thaddius Mark, Gomia Kimin, George Kambing, Eki Muname, Luke Sapi and Peter Jai have collected theirs.
    
12. In my view, the Labour Department had no authority to commit the plaintiffs to an arrangement whereby their legal entitlements would be forfeited. That is the claim prior to 2019 for the unpaid overtime wages. This fortifies my finding on liability that one of the causes of action would be for failure to pay the plaintiffs their lawful entitlements.
    
13. Breach of s 41(1) of the Constitution in an employer/employee situation has attracted compensatory damages under the Constitution in this jurisdiction, and the court adopts this approach in this case Petrus v Telikom PNG Ltd (2008) N3373, cited with approval in Morobe Provincial Government v Kameku (2012) SC1164.
    
14. Addressing now the question of quantum of damages for breach of s 41, under s 58(3) of the Constitution, my findings at paragraphs 27 to 31 in my decision on liability (Matthew v Ling (2020) N8665) is the common thread in the evidence of the plaintiffs that led me to conclude that the plaintiffs’ rights under s 41(1)(a),(b) and (c) of the Constitution were breached. Mr Wak relies on the case of Kolokol v Ambuarapi (2009) N3571 to argue that quite apart from compensatory damages for breach of human rights, a human rights victim is entitled to general damages. In a number of cases such as Buat v Kila (2021) N9329 I have taken this approach. Breach of s 41 of the Constitution in an employer/employee situation has attracted damages in the range of K2,000. In Pama v Chris Gens (trading as Kanagio Security Services) (2020) N8516 I awarded K2,000 for breach of s 41(1) of the Constitution and K2,000 general damages.
    
15. Due to the power imbalance between the employer and employee in this situation, and the lengthy service of the plaintiffs, warrants a higher award than Pama v Gens. In Petrus v Telikom PNG Ltd (2008) N3373, K5,000 was awarded in circumstances where the security guard were employed for more than four years. The plaintiffs in this case, have spent much of their working life with the defendants. I will therefore award K10,000 to each plaintiff for breach of their rights. I do not think that it is appropriate to award a specific sum for general damages as I have dismissed the claim for negligence. I also accept the defendants’ submissions that the plaintiffs had a duty to mitigate their losses. There is also evidence that most of them continue to occupy the defendants’ premises at no cost. The wife of one of the deceased plaintiffs, is now in the employ of the third defendant. Mitigation in this instance, meant that they were required to seek employment elsewhere to reduce their loss.
    
16. In relation to the claim for final entitlements, one of the crucial documents which the plaintiffs relied on to prove the loss of entitlement was a letter dated 17 May 2021from Hubert Laboi from the Madang office of the Department of Labour. I referred to this piece of evidence earlier in my judgement. The defendants objected to the tendering of that document because the plaintiff could not have the author of the letter available for cross examination, and the letter was attached to the affidavits of the plaintiffs. I upheld that objection. Without the author of the letter, the defendants are denied the opportunity to cross-examine the witness and the court cannot verify the claim. How then do I quantify the plaintiffs’ loss of entitlements, given the absence of verified claims?
    
17. In Jonathan Mangope Paraia v The State (1995) N1343, Injia J (as he then was)) held that the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the court must do the best it can. I take this approach in this case which I followed in Tai v Aka (2020) N8618.
    
18. From my general knowledge, the usual items that are factored into any final entitlements are the annual leave entitlements, the notice period, plus any unpaid overtime. The evidence is that the plaintiffs have not been paid these entitlements which I found on the question of liability. The predicament is that there is no exact sum from the evidence. From the final entitlements that the defendants have calculated, the figures range from K1,761.12 to K2,638.88. This was for the 2019 year alone (Jeffrey Ling’s affidavit). From the plaintiffs’ affidavits, one of them commenced employment as far back as 1999 and all of them were in employment for much of their life with the third defendant. I take these into account and award a nominal sum to each of the plaintiff of K10,000.00. Given their lack of evidence to verify the quantum although they have established a cause of action for unpaid entitlements, the amount I have assessed is reasonable.
    
19. Since some of the plaintiffs have received the 2019 overtime calculations, except Sonny Mathew, Peter Jai, Jerry Ganz, Mathew Ambong, and Arnold Arombai, they should be entitled to receive their payments too. As the defendants indicated, the sum for each of them would be:
    
    1. Sonny Mathew - K2,593.75,
       
    2. Peter Jai- K2,638.88;
       
    100. Jerry Ganz- K 1,761.12;
         
    4. Mathew Ambong- K2,638.88; and
       
    5. Arnold Arombai- K2,638.88.
       
20. In conclusion, from my assessment, each of the plaintiff will be entitled to the following amounts of damages:
    

1	Sonny Mathew	K22,593.75
2	Peter Jai	K22,638.88
3	Jerry Ganz	K21,761.12
4	Mathew Ambong	K22,638.88
5	Arnold Arumbai	K22,638.88
6	Thaddaeus Mark	K20,000.00
7	Michael Aurip	K20,000.00
8	Goima Kimin	K20,000.00
9	George Kambin	K20,000.00
10	Luke Sapi	K20,000.00
11	Eki Muname (deceased) substituted by his wife Elizabeth Muname	K20,000.00
TOTAL AMOUNT PAYABLE		K232,271.51

21. Interest on the judgement will be awarded at 8% pursuant to s 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the time of filing of the writ to the date of judgment.
    
22. I will order costs in favour of the plaintiffs but I do not in the circumstances consider it appropriate to award fixed sum of K10,000 to each of the plaintiffs as they suggested. I will instead order costs in favour of the plaintiff, to be taxed if not agreed.
    
23. The formal orders of the court are therefore as follows:
    
    1. The third defendant pay the plaintiffs a judgment sum of K232,271.51 to be paid to each plaintiff as follows:
       

1	Sonny Mathew	K22,593.75
2	Peter Jai	K22,638.88
3	Jerry Ganz	K21,761.12
4	Mathew Ambong	K22,638.88
5	Arnold Arumbai	K22,638.88
6	Thaddaeus Mark	K20,000.00
7	Michael Aurip	K20,000.00
8	Goima Kimin	K20,000.00
9	George Kambin	K20,000.00
10	Luke Sapi	K20,000.00
11	Eki Muname (deceased) substituted by his wife Elizabeth Muname	K20,000.00

2. Third defendant pays the plaintiffs’ interest on the judgement sum at 8% from the date of filing of the writ to the date of judgement.
3. Third defendants pay the plaintiffs’ costs to be taxed if not agreed.
4. Matter is considered determined, and the file is closed.
5. Time is abridged.
   

Judgment and orders accordingly.
________________________________________________________________
Bradley & Co Lawyers: Lawyers for the plaintiffs
Ashurst Lawyers: Lawyers for the Defendants