N11240
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 370 OF 2019

BETWEEN
PRIVATE NICHOLAS WAREKA
Applicant

AND
LIEUTENANT COLONEL RICKY TAVAPERRY at that time 2nd INCHARGE OF ENGINEERING BATALLION OF Papua New Guinea Defence Force
First Respondent

AND
COLONEL TONY OAWA at the time of Director of OTHER RANKS MANAGEMENT of Papua New Guinea Defence Force
Second Respondent

AND
MAJOR GENERAL GILBERT TOROPO
Third Respondent

LAE	: DOWA J
18, 31 OCTOBER, 16 NOVEMBER, 1 DECEMBER 2022; 11 APRIL 2025

EMPLOYMENT LAW – Defence Force Soldier -discharge from the Force for serious disciplinary offence-application of the Code of Military Discipline- -appeal to commander of the Force refused-decision of the disciplinary force unreasonable - liability established against the Defendants-for remedies, reinstatement not viable- order for damages instead

DAMAGES – Plaintiff has onus to prove damages with credible evidence-entitled to damages for period up to date of non-compliance-damages awarded.

Cases cited
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State (1995) N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
 Samot v Yame (2020) N8266
Vanuga & Others v Dopsie (2022) SC2317

Counsel
W. Wareka On behalf of the plaintiff in person
S. Maliaki for the defendants

JUDGMENT

1.	DOWA J: This is a decision on assessment of damages. 

2.	The Plaintiff, a former soldier, sought judicial review of his discharge from the PNG Defence Force on 27th October 2014. On 14th October 2022 this Court ruled that the Defendants’ decision to discharge the Plaintiff from the Defence Force was unreasonable and quashed the same. Noting that reinstatement was detrimental to good administration, the Court ordered for damages to be assessed. The Court will refer to the written judgment for full context and reference. 

BACKGROUND FACTS

3.	The background facts are restated. The Plaintiff, Nicholas Wareka, was enlisted in the PNG Defence Force in August 2010.  In January 2011, he was posted to Bravo company PNGDF Engineering Battalion, Igam Barracks, Lae. Whilst serving the force, he completed a Diploma Course in Civil Engineering at Polytechnical Institute of PNG in 2013. In April 2014, he applied for and was accepted to do a Bachelor of Civil Engineering at PNG University of Technology. As he was not entitled for study leave, he applied for and was granted Annual Recreational Leave (ARL).  He used the leave period to study at the PNG University of Technology. 

4.	Although the Plaintiff requested for 120 days, during which time, he would have completed his studies for one Semester, he was approved only 90 days by the commanding officer, Lieutenant Colonel Giregire John. To complete his studies, the Plaintiff requested leave for his entitled 30 days leave credits, which was denied.  After discussing the matter with his immediate officer in charge, Major Osoba Linus, the Plaintiff proceeded to complete his studies with an understanding that he would be subjected to a disciplinary proceeding on resumption of duties.

5.	On 11th October 2014, the Plaintiff was told to sign a Discipline Charge, although he was not given a copy. He was advised by his Officer in Charge, Major Osoba Linus, that the disciplinary proceedings under the Code of Military Discipline (CMD) will be held on a later date.  However, the disciplinary proceedings did not take place.  Instead, on 27th October 2014, the Plaintiff was discharged from the Force.  The reasons given for the discharge was that the Plaintiff was absent without leave (AWOL) for two months.

6.	Aggrieved by the decision of the First Defendant, the Plaintiff applied for and was granted leave to seek review of the decision. As stated above, the Court eventually granted the substantive application for review and noting that reinstatement was not viable due to the detrimental effect it would have on the good administration of the Force, the Court awarded damages to be assessed instead as consequential reliefs claimed in the substantive Notice of Motion.

7.	 By the substantive Notice of Motion, the Plaintiff claimed, amongst others, the following consequential reliefs: 

“3. Third Defendant to pay the Plaintiff’s “back-pay” and other emoluments and entitlements lost by being unlawfully discharged from the date of discharge to the date of reinstatement.
4.Damages for mental distress and anxiety and public humiliation suffered by the Plaintiff/Applicant and his family after being discharged;”

8.	The parties were given time to address the Court on damages and allowed time to file their written submissions. This is now my ruling on the assessment of damages.

Issues

9.	The main issue is how much is the Plaintiff entitled to in damages.
 
The Law on Assessment of Damages 

10.	Whilst the issue of liability is settled, the Plaintiff is still required to prove his damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

11.	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	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.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

HOW MUCH IS THE PLAINTIFF ENTITLED

12.	The Plaintiff claims damages under the following categories:

a)	Unpaid Salary and wages (2014-2022)- K292,728.80
b)	General Damages for pain, suffering and distress, 
c)	Future loss of income
d)	Costs

SALARIES AND WAGES

13.	The Plaintiff claims K292,728.88. This is for the period between 11th October 2014, the date of termination, and 14th October 2022 being date of Judgment. That is for a period of eight (8) years.

14.	The Plaintiff was terminated 11th October 2014. The Plaintiff did not file the review proceedings until 28th May 2019, more than four and half years later. In my view the Plaintiff be compensated only for four years being out of the job and not for the full eight (8) years claimed by the Plaintiff. To allow for full eight years would be unreasonable as he was not serving the Force during the period.

15.	The Plaintiff’s claim of K292,72888 is based on pay slips for the relevant period which show a progressive wage increase for the job the Plaintiff was occupying from the time of termination. It starts with a base fortnightly salary of K700.12 on 6th August 2014 to K1,147.35 on 20th October 2022.The allowance for the relevant period is K170.00 in 2014 and K260.00 in 2022. The wages tax for the same period is K78.34 in 2014 and K195.64 in October 2022. The Plaintiff is using the latest rate as of 14th October 2022.

16.	For the purposes of the assessment, I will use the rate of pay applicable to the Plaintiff’s colleagues holding the same rank and position in 2019 in the Force, and this being the date when this proceeding was commenced. The fortnightly salary in 2019 was K941.38 with allowances of K260.00 and tax of K177.72. For the purposes of the assessment, the Plaintiff is not entitled to the allowance because he was not a serving member after the discharge. His net fortnightly wage after deduction for tax would be K763.66. His annual net salary would be K19,855.16, (K763.66 x 26 fortnights).

17.	I will allow lost wages for a period of four years only, the total amount will be K79,420.64 (K19,855.16 x 4 years). The Plaintiff shall be awarded the sum of K79, 420.64. 

General Damages
 
18.	The Plaintiff seeks damages for distress and frustration. It comes under the category of general damages for pain, suffering and loss of amenities.  In Kerr v Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme in providing a guide on assessment of general damages, held that:
“In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of the injury, and the general standards prevailing in the community. “

19.	In Livingstone v Rawyards Coal Co. (1908) 5App. Cas25(HL), Lord 	Blackburn said:

“where injury is to be compensated by damages, in settling the sum of money to be given for damages, you should as nearly as possible get at that sum of money which will put the injured party or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation” 

20.	The amount for damages for frustration and distress varies. In the present case, the Plaintiff has been seeking administrative relief for more than four years. The Defendants did not respond to his appeal within a reasonable time. The Plaintiff lost his job, a career he chose to serve his country. The Defendants imposed a severe penalty which the Court found to be unreasonable. He was dishonourably discharged, and he suffered humiliation. He lost his wages for the last eight years. The Court could not reinstate him to avoid disruption to the good administration of the Force. The Court has allowed only half of the wages lost. In the circumstances, the Plaintiff is entitled to a fair and reasonable compensation in terms of money.

21.	In my view, a reasonable sum for loss of his job as a PNG Defence Force soldier, frustration, distress and inconvenience would be K30,000.00.

22. 	The total damages to be awarded is K109,420.64.

Loss of Future income

23.	The Plaintiff seeks damages for loss of future income. There is no proper pleading and evidence for the claim. No award shall be made.

		Interest
24.	The Plaintiff is entitled to interest. The Defendant is a state entity. Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 provides that interest in claims against the State and State entities be charged at 2 %. I will award interest at 2% per annum. Interest at 2% on K109,420.64 from date of filing of writ (28 May 2019) to date of Judgment (11April 2025), for 2,143 days, is K10,500.19. Interest is calculated as follows:

•	K109,420.64x 2%    	= K 2,188.41 per annum
•	K 2,188.41÷ 365 days 	= K   5.99 per day
K 5.99 x 2,143 days	=K   12,848.66	 

25.    The total award for the Plaintiff shall be is K122,268.66

         Cost

26.	Cost is a matter of discretion. The Plaintiff has succeeded in his claim and thus, he is entitled to cost, to be taxed, if not agreed.

Orders

27.      The Court orders:

a)	Judgment is entered for the Plaintiff, in the sum K122,268.66 inclusive of interest.
b)	Post judgment interest shall accrue at the rate of 2% on the judgment sum after 30 days from date of order until settlement.
c)	The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
d)	Time be abridged. 

Nicholas Wareka:	The Plaintiff in person
Lawyer for the respondents: Solicitor General