Diamana v Attorney General [1994] SBHC 84; HCSI-CC 110 of 1994 (4 November 1994)

CC 110- 94 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 110 of 1994

ALLAN DIAMANA & OTHERS

-v-

ATTORNEY GENERAL

High Court of Solomon Islands
(Palmer J.)

Civil Case No. 110 of 1994

Hearing: 31 October 1994
Judgment: 4 November 1994

A. Radclyffe for Plaintiff
Attorney General for the Defendant

PALMER J: The three Plaintiffs were employees of the Solomon Islands Government, working as acting Principal Aviation Security officer, Chief Engineer, and Technical Officer (Navaid/Navcom), respectively, in the Ministry of Tourism and Aviation. Each Plaintiff received three separate letters of the 20th December, 1993, signed by the Under Secretary of the Public Service Division for the Secretary to the Prime Minister, dismissing them from service under Public Service Regulation 60(e), with effect from the 10th of December, 1993. The officers were also advised to vacate their government houses within 7 days of date of those letters of termination.

The Plaintiffs allege that no reasons for their dismissal were given by the Defendant on behalf of the Public Service Commission, and that the Commission also failed to comply with the provisions of the Public Service Regulations, and acted contrary to the principles of natural justice.

The Plaintiffs accordingly claim damages for wrongful dismissal, and exemplary damages for the oppressive and arbitrary action by government servants in dismissing the Plaintiffs without good cause and without following the prescribed procedures, and for breach of the rules of natural justice.

The provisions of the Public Service Commission Regulations which apply to the Plaintiffs case, are contained in Part VII of the Regulations headed ‘Discipline’. Those provisions set out in no uncertain terms the correct procedure that should be followed when dealing with cases of misconduct or allegations of such.

It is not in dispute that there has been a failure to comply with the procedural requirements of the Regulations. This has been readily conceded by the learned Solicitor-General.

I am satisfied there has been wrongful dismissal of the Plaintiffs in terms of the procedural requirements set out under the Public Service Commission Regulations, and accordingly damages are due. It is fairly obvious that a wrong has been committed against the Plaintiffs.

The next question is, what is the extent of the loss incurred as a result of that wrong, bearing in mind that the aim of compensatory damages is to put the person wronged in the same position as if nothing had happened, or in the same position he was in before the wrong was committed. It is not easy to try and put a dollar value on all the losses incurred.

However, in the case of these Plaintiffs, the nearest one can get, to assessing that loss, is in terms of the loss of pay and other benefits associated with being a full-time paid employee. It has been basically conceded that this has been fully compensated for by the payment of three months pay in lieu of notice. Should the Plaintiffs then be awarded exemplary damages?

The rationale for an award of exemplary damages is to punish the defendant for this conduct in inflicting the harm done to the Plaintiffs. In ‘McGregor on Damages,’ 14th Edition, at paragraph 309, the learned author stated that such damages “.......comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like.” In Jack Malaumou v. Attorney General, CC51/91, judgment delivered on the 29th of April 1991, the learned Chief Justice gave recognition to the categories propounded by lord Devlin in the celebrated case of Rookes v. Barnard, [1964] UKHL 1; (1964) 1 All E.R. 367, at 410, when he said that he would consider an award of exemplary damages appropriate where there was a ‘suggestion of malice or some deliberate attempt to circumvent the protective provision of the constitution’. The same approach in my view must also apply here.

It is not sufficient to allege merely that there has been a failure to comply with the procedural requirements of the Public Service Commission Regulations. I accept that that is indeed wrongful, and that compensatory damages should be paid. However, to prove or establish a claim for exemplary damages, it must also be necessarily established, that there was an element of malice or deliberate attempt involved to avoid complying with the requirements of the Regulations. With respect to the learned submissions of Mr. Radclyffe, there is no such suggestion or evidence of that sort alleged. All that has been submitted is that the actions of the Commission in failing to comply with the requirements of the regulation and asking the Plaintiffs to vacate their government quarters within 7 days was oppressive. I am not satisfied that is necessarily so. The defendant clearly had the power to do what it did. What was wrong was that it failed to comply with the requirements as set out in the Regulations. There is no suggestion that this was done deliberately or out of malice. As soon as the defect or error was pointed out, the Defendant sought to have the Plaintiffs re-instated as soon as possible.

If there is to be any further damages to be paid, then that would be more along the lines of aggravated damages for injury to feelings and dignity.

I am prepared to allow such damages in the sum of $150.00 each. I will also allow costs against the Defendant on a solicitor/client basis.

(A. R. Palmer)

JUDGE