Maui v Attorney General [2024] SBHC 56; HCSI-CC 645 of 2015 (28 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maui v Attorney General
Citation:
Date of decision:	28 March 2024
Parties:	Chard-Richards Maui v Attorney General
Date of hearing:	12 March 2024 (Last Written Submission filed)
Court file number(s):	645 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia ; PJ
On appeal from:
Order:	(i) Award $400,559.39 in damages for lost salary and other entitlements under contract. (ii) Award $20,000.00 in nominal damages for trauma and stress resulting from unlawful termination. (iii) Award 5 % interest on the above quantum (i) and (ii). (iv) Cost against defendant on standard basis. I will assess cost in May 2024. Counsel should prepare. (v) Award herein is not subjected to tax.
Representation:	Mr Tovosia for the Claimant Ms Fakarii and Ms Rofeta for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Public Service Regulations 1998, Chitty on Contracts (26th Edition 1989, at Page 1771)
Cases cited:	Lomo v Attorney General [2009] SBHC 9, Kirite’e v Ome [2022] SBCA 31

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 645 of 2015

BETWEEN

CHARD-RICHARDES MAUI
Claimant

AND:

ATTORNEY GENERAL
(Representing the Permanent Secretary-Ministry of Public Service)
Defendant

Date of Hearing: 12 March 2024 (Last Written Submission filed)
Date of Judgment: 28 March 2024

Counsel: Mr Tovosia for the Claimant
Counsel: Ms Fakarii and Ms Rofeta for the Defendant

JUDGMENT ON AWARD OF DAMAGES FOR BREACH OF EMPLOYMENT CONTRACT

1. In the main judgment delivered on 2/11/2022, Court found that the defendant’s action to terminate the claimant in year 2011 was unlawful, as it breached a term of Mr Maui’s employment contract (right to fair hearing). Court found that Mr Maui’s termination was unlawful for lack of procedural fairness under the Public Service Regulations 1998. Court granted declaratory orders, that the Public Service Commission breached a term of Mr Maui’s employment contract (contract).
2. In a follow up judgment delivered on 21/04/2023, Court concluded that the defendant is liable to pay damages to Mr Maui for the unlawful termination of his contract. In paragraph 2 of that decision, Court relevantly stated: -

“ where an employer has terminated a servant in breach of the terms of the contract, the servant may consider the contract at an end and seek redress. He in seeking such redress may sue for wrongful termination based on the complete disregard of the terms of the contract of service as the termination amounts to repudiation by the master and the servant’s remedy is an action in damages”^[1]. (My underlining)

3. It is that damages that I will assess and award to Mr Maui in this last judgment, as per the main relief sought in the amended claim filed on 8/10/2016. In contract law the defaulting party (defendant herein) must pay compensatory damages to the innocent party (claimant in herein), as a remedy for breach of contract. Compensatory damages are designed or awarded to provide a fair compensation for a wrong done to the innocent party (claimant) caused by breach of the defaulting party (defendant). According to Chitty on Contracts (26^th Edition, 1989, at page 1771): damages for a breach of contract committed by the defendant are a compensation to the plaintiff for the damage, loss or injury he has suffered through that breach. Chitty furthermore said: he is as far as money can do it to be placed in the same position as if the contract had been performed. In most cases the measure of damages is the amount of money required to put the innocent party into the position it would have been in, had the breach of contract not been committed.
4. Compensatory damages are called general damages or actual damages. General damages are equivalent to unpaid salaries and entitlements, which is the actual loss that occurred as a result of the breach happening. This is what I will determine in this judgment, using the principle in Lomo case cited in paragraph 2 above.
5. At paragraph 5 of the judgment delivered on 21/04/2023, I said the measure of damages using persuasive authority is the “amount which the employee would have earned under the employment contract and the value of other benefits thereunder for the period from unlawful termination to the time when the employee could have lawfully been terminated” less the amount expected to be earned in other employments. In here the time is from year 2011 (unlawfully terminated) – 2015 (could have retired, lawfully terminated). And I will assess what Mr Maui would have earned under the contract for that period in salaries and other benefits/entitlements. Court did not consider deduction for the amount expected to be earned in other employments due to lack of evidence. I mean Mr Maui was not permanently employed in another position with higher salaries and other benefits since 2011.

Unpaid salaries

6. Claimant produced unsatisfactory evidence on unpaid salaries. Claimant produced calculations attached to his sworn statement filed on 5/5/2023. At exhibit CRM1 is a spread sheet calculation depicting unpaid salaries and other benefits or entitlements owing to the claimant from the time he was terminated in year 2011 to year 2015. The explanatory notes that followed the spread sheet calculations, at Explanatory Note 1 - I can see the fortnightly salaries owing to the claimant from years 2011 - 2015.
7. Claimant’s unpaid salary for years 2011-2015, at Explanatory Note 1 was $298,377.60. That is what claimant calculated based on his fortnightly salary. The problem however is, claimant did not disclose the source document (pay-slip) upon which he based his calculations. Court asked for it, gave time for its production, but there was no pay-slip produced.
8. Court will rely on the pay-slip the defendant produced and compare against claimant’s own calculations. Defendant through the sworn statement by Luke Cheka filed on 13/7/2023 at exhibit LC1, is a copy of pay-slip, showing claimant’s salary and other entitlements. Claimant’s fortnightly salary is $1,935.39, after tax. In one year, there are 26 fortnights. So, the total salary due to claimant inside one year is $50,320.14. This is for salary alone, not taking into account National Provident Fund (NPF), housing allowance and other benefits under the contract. You multiply that by 5 years, the total will be $251,600.70. I will accept this figure and not the claimant’s calculated figure of $298,377.60.

Other entitlements

9. Court will try and figure out what other entitlements besides salary claimant would have earned between years 2011-2015. First one was NPF contributions. According to claimant’s own calculations at Explanatory Note 2 - the total for 5 years the claimant would have earned was $48,159.15. There is again no source document. So, I will use the evidence by the defendant. Again, at exhibit LC1 - I can see NPF deductions at $158.08 and $105.38 (I understand this to mean employer’s contribution and employee’s contribution). The total is $263.46. You multiply that by 26 fortnights in a year and you will come to $6,849.96. You then multiply that by 5 years and the total is $34,249.80. I will accept this figure and not the $48,159.15 that the claimant calculated. I take judicial notice that NPF Board has been paying interests on member’s savings since year 2011-2015. So, I will add 5% interest to be paid on top of $34,249.80. That will come to $1,712.49. The total I will give for NPF is $34,249.80 + $1,712.49 = $35,962.29.
10. The second entitlement is housing allowance. The evidence from the defendant’s evidence put this entitlement at $172.28 per fortnight. In one year, there are 26 fortnights. So, you multiply that by 26 and you will have $4,479.28. Multiply that by 5 years and the answer is $22,396.40. I award $22,396.40 to the claimant for lost housing allowance entitlement.
11. The next entitlement claimant would have benefited from is repatriation allowance. It is put at $20,000.00 for the claimant’s regional zoning (see exhibit LC3 of sworn statement by Luke Cheka). I award $20,000.00.
12. The next entitlement is appearing as SIPEUF on the pay-slip. I understand that public officers are members of Solomon Islands Public Employees Union and have deductions from their salaries paid to the union’s fund (SIPEUF) appearing in exhibit LC1. The amount of $20.00 is paid every fortnight to SIPEU from which the claimant receives monetary benefits from Solomon Islands Public Employees Union Fund – monetary benefits like loan entitlement. I am taking judicial notice of this. I can see $20.00 being deducted fortnightly. So, one year has 26 fortnights. Multiply that by $20.00 = $520.00, you multiply that by 5 years = $2,600.00. I award $2,600.00.
13. The next entitlement is annual leave. This will cover travelling expenses and airfare. Airfare I noted that Renbel Province does not have regular shipping services. Claimant’s calculations have no supporting source documents – see Explanatory Note 3. Defendant did not disclose source documents in evidence for this head of entitlement. Despite the shortfall, Court will assess damages the best it can also taking judicial notice that these are normal entitlements that public employees enjoy working for the public service. Public employees enjoy time off work called annual leave and the government normally pays for travelling expenses and airfare. What I will do is accept the claimant’s calculations at reduced amounts to cater for lack of source documents and any shortfalls or errors. So: -
    • (i) Adult fares for 2 peoples for 5 years, claimant put it at $28,660.00. I will reduce it to $18,000.00.
    • (ii) Children airfares for 6 children for 5 years. Claimant put it at $64,485.00. I will reduce it to $44,000.00.
    • (iii) Travelling expenses for 5 years. Claimant put it at $12,500.00. I will reduce it to $6,000.00.
    • (iv) Grand total for annual leave entitlement is $68,000.00
14. The grand total I will award for other entitlements adding up all the figures for other entitlements above is $148,958.69. I will then add the unpaid salary of $215,600.70. The grand total I will award to claimant in unpaid salary and other entitlements is $400,559.39. The figure arrived at here was after tax (repeat paragraph 8 line 4). Hence there will be no further tax deductions on the award herein.

Other expected natural loss

15. Claimant is also claiming for pain and suffering, what claimant’s counsel referred to as “trauma and emotional stress” for being stigmatised. I accept that pain and suffering is a natural consequence that is felt inwardly by the claimant being a senior public servant and a senior church and community person, despite lack of professional and medical evidence. According to Chitty on Contract, at page 1775, where claimant cannot prove the actual loss, he is still entitled to nominal damages, normally a small sum of money awarded to appreciate the suffering claimant has experienced from the legal wrong. There is no doubt that naturally the claimant would feel degraded, humiliated and had lowered self-esteem because people will look down on him, for being sacked by the Public Service Commission – the biggest single employer in this country. The problem I have is counsel is not supplying me with the evidenced based quantum for this head of damages. And although Counsel submitted it should be $200,000.00, Counsel failed to supply a convincing basis in precedent decided locally. And it is one I cannot calculate with any certainty because it is not actual loss like lost salary and other entitlements that I can calculate precisely by reference to source documents like a pay-slip. I will reluctantly award nominal damages in the sum of $20,000.00 only, considering the various overseas persuasive case authorities Counsel Tovosia cited to me.

Attorney General’s submissions

16. The Attorney General (AG) disputes award of damages to the claimant saying – heads of damages were not clearly pleaded in the amended claim filed on 8/10/2016, there is no corroborated evidence to support the heads of damages claimed and that the heads of damages claimed were unreasonable and unfounded. Attorney General relied on the case of Kirite’e^[2]. However, I noted that Kirite’e is a case on damages arising out of a tort of negligence rather a breach of contract. Damages for the tort of negligence have different considerations, where there is a real need for proper pleadings to set out what heads of damages the claimant is pursuing.
17. For a tort of negligence, the heads of damages are not clear, they are all over the place and must be properly and clearly pleaded to put the other party on notice and to allow the other party to make its defence. In a breach of contract, however the claim for damages is quite clear because like I say in paragraph 4 above, it is compensatory damages equivalent to lost salaries and entitlements which is actual loss that occurred as a result of the breach happening. I also say in paragraph 5 above, the measure of damages is the amount of money and the value of other entitlements which Mr Maui would have earned under his contract for the period from 2011 – 2015. That is for the period from unlawful termination (2011) to the time Mr Maui could have his contract lawfully terminated due to retirement (2015).
18. Despite the absence of pleadings in the amended claim, these compensatory damages are clear, in reference to the contract that was breached, mostly taken from Mr Maui’s pay-slip that the defendant disclosed in evidence. The relief plead that damages for breach of contract will be assessed^[3]. As the AG correctly pointed out, damages are normally awarded by the breaching party (defaulting party – defendant herein) and should be fair and reasonable. This the AG says, is normally ascertainable because damages or compensation will naturally arise from the breach of contract itself or as may reasonably be supposed to have been contemplated by both parties at the time they made the contract. The AG also rightly referred to it as the expected loss or probable loss resulting from the breach. This is exactly the approach I took in the award of lost salary and entitlements for years 2011-2015. This is certainly clear to the defendant because it is a natural loss arising from breach of contract and is actual loss deducible from lost salaries and entitlements, needing no further pleadings, to make it clear, as in tort, where damages under various heads are not entirely clear and precise and needing to be properly pleaded.
19. Claimant also claimed that he could have stayed beyond the retiring age (55) and claimed for compensation in anticipation of a possible extension to his contract after retirement. I will not award such compensation because I am not sure if an extension will be made to his contract. What I will do instead is to use the whole of year 2011 to compute his salary and other benefits like I did above, despite the fact that he was terminated in May 2011. As an Accountant he could have stayed in office a few months after retirement for handover purposes. This is normal. Those few months I took them back to January 2011 as a full year for purpose of my calculation of damages made above where I say multiply by 5 years.

Conclusion and Orders

20. The final award of damages and orders of the Court are: -
    • (i) Award $400,559.39 in damages for lost salary and other entitlements under contract.
    • (ii) Award $20,000.00 in nominal damages for trauma and stress resulting from unlawful termination.
    • (iii) Award 5 % interest on the above quantum (i) and (ii).
    • (iv) Cost against defendant on standard basis. I will assess cost in May 2024. Counsel should prepare.
    • (v) Award herein is not subjected to tax.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Lomo v Attorney General [2009] SBHC 9; HCSI-CC 69 & 48 of 2008 (Consolidated) (23^rd April 2009).
^[2] Kirite’e v Ome [2022] SBCA 31; SICOA-CAC 7 of 2021 (28^th November 2022).
^[3] See relief number 3 of amended claim filed on 8/10/2016.