Cheung v Tanda [1983] SBCA 1; [1984] SILR 108 (8 December 1983)

SOLOMON ISLANDS COURT OF APPEAL

CHEUNG

-v-

TANDA

Solomon Islands Court of Appeal
(Kelly VP, Kapi and Jones JJA)
Civil Appeal 1 of 1983

8th December 1983

Damages for loss of expectation of life - whether recoverable - damages for loss of future earning capacity of deceased - whether recoverable - interpretation of Schedule 3 of the Constitution - what common law applies - date of application of common law.

Facts:

The respondent was personal representative of Benedict Votu who was killed in an accident. Liability was admitted by the appellant and in the High Court questions of quantum only were argued the appellants arguing in particular that no damages should be payable under the Law Reform (Miscellaneous Provisions) Act 1934 (UK) for loss of expectation of life and loss of future earning capacity (“lost years”) and that any claim was limited to claims by dependants under the Fatal Accidents Acts 1846-1959 (UK). The High Court (Daly CJ) awarded damages under the 1934 Act at $1500.00 for loss of expectation of life and $7164.44 for the lost years and $1597.20 in respect of dependency claims for a child and mother of the deceased, the widows dependency claim being extinguished by the damages she received from the estate. The defendants appealed.

Held:

1. The common law position was clear and by virtue of paragraph 2 of schedule 3 of the Constitution must apply in the Solomon Islands with the result that a claim for damages for-

(a) loss of expectation of life, and

(b) loss of future earning capacity had been properly awarded.

(Fitch -v- Hyde-Cates [1982] HCA 11; [1982] 39 ALR 581, Pickett -v- British Rail Engineering Ltd [1980] AC 136 and Gammell -v- Wilson [1982] AC 25 approved and followed and Oliver -v- Ashman [1962] 2 KB 210 not followed).

2. that the principles of common law and equity applicable to Solomon Islands by virtue of paragraphs 2(1) and 2(2) of Paragraph 3 of the Constitution were those pertaining in England (per Kapi JA).

3. that the decisions of the English courts on the principles of the Common Law and equity are binding on the courts of Solomon Islands as to the common law as at 7th July 1978 but the said principles applied by the courts of other common law countries are not so binding (per Kapi JA).

4. the principles and rules of common law and equity enunciated by English courts prior to 7th July 1978 shall have effect as part of the law of Solomon Islands but after that date would have no binding effect except where a competent English court such as the House of Lords has declared that a principle of law, had been wrongly decided by a lower court prior to independence. The development of the principles of common law and equity after independence is a matter for the Solomon Islands courts. (per Kapi JA).

5. It is not the province of the courts to determine what the law ought to be but to apply it as it is.

6. that Oliver -v- Ashman did not represent the correct state of the common law in England as at 7th July 1978 having been wrongly decided and that accordingly the correct state of the common law in England as at 7^th July 1978 was that put forward in the cases of Pickett and Gammell. (Vian Guatal -v- PNG [1981] PNGLR 230 not followed).

7. the claim for loss of future earning capacity (“the lost years”) was assessed by applying the relevant multiplier to the amount the deceased would have earned less his probable living expenses to enable him to earn future wages.

8. the discount rate of 4% adopted by the learned trial judge when calculating the appropriate multiplier could not on the evidence adduced be said to be wrong.

9. the amount given to dependants as support in custom on a charitable basis should not be taken into account when assessing dependencies.

10. the method of assessment of the dependency claims by the learned trial judge which had been based on the steps suggested in Cookson -v- Knowles [1978] UKHL 3; [1978] 2 All ER 604 was correct.

11. the approach to be taken by an appellate court to cases of this nature was that it should not interfere with the award unless the judge had acted upon a wrong principle of law, or had misapprehended the facts, or had for these or other reasons, made a wholly erroneous estimate of the damage suffered.

12. On the facts and evidence adduced it could not be said that the learned trial judge, had so erred and consequently the appeal failed.

The appeal was accordingly dismissed.

Cases referred to considered:

Benham -v- Gambling [1941] AC 157
Skelton -v- Collins [1965-66] CLR 115
Sharman -v- Evans [1977] HCA 8; [1976-77] 138 CLR 563
Rose -v- Ford [1937] AC 826
Oliver -v- Ashman [1962] 2 QB 210
Pickett v-v British Rail Engineering Ltd. [1980] AC 136
Gammell -v- Wilson [1982] AC 27
Fitch -v- Hyde-Cates [1982] HCA 11; [1982] 39 ALR 581
Vian Guatal -v- PNG [1981] PNGLR 230
Todorovic -v- Waller [1981] 56 ALR 59
Adsett -v- West [1983] 3 WLR 437
Adelaide Chemical and Fertilizer Co. Ltd -v- Carlyle [1940] HCA 44; [1940] 64 CLR 514
Rawlinson -v- Babcock and Wilcox Ltd [1967] 1 WLR 481
Cookson -v- Knowles [1978] UKHL 3; [1979] AC 556
Harris -v- Empress Motors Ltd [1983] 3 All ER 561
Cole -v- Crown Poultry Packers Ltd [1983] All ER 561
Official Administrator of Unrepresented Estates -v- Allardyce Lumber Co. Ltd [1980-1981] SILR 66
Flint -v- Lovell [1935] 1 KB 354
Yorkshire Electricity Board -v- Naylor [1967] 2 All ER 1
The State -v- Bisket Uranguae Pokia [1980] PNGLR 97
Wahgi Savings and Loan Society Ltd -v- Bank of South Pacific Ltd (unreported judgment SC185 1980 (PNG))
Donahue -v- Stevenson [l932] AC 562
Davies -v- Powell Duffryn Associated Colleries Ltd [1942] 1 All ER 657
Sukumia -v- Solomon Islands Plantation Ltd [1982] SILR 142
Baird -v- Roberts [1977] 2 NSWLR 389
Graham -v- Baker [1961] CLR 106
Mallett -v- McMonagle [1970] AC 166
Fletcher -v- Autocar Transporters Ltd [1968] 2 QB 322
Hassard -v- Bougainville Copper Ltd [1981] PNGLR 182
Koko Kilpele -v- Motor Vehicles Insurance (PNG) Trust and Others (unreported judgment N447 2 /12/83 PNG)
Lubbering -v- Bougainville Copper Ltd [1977] PNGLR 183
Taylor -v- O'Connor [1975] AC 115
Cullen -v- Trappell [1980] HCA 10; [1980] 54 ALJR 295
Kaka Kopun -v- PNG [1980] PNGLR 557
0’Hello -v- Kayel Shipping Co. Pty Ltd [1980] PNGLR 361
Pinzger -v- Bougainville Copper Ltd PNG (Unreported judgment N418 dated 6/5/1983 PNG)
Read -v- British Railways Co [1868] LR 3 QB 555
Williams -v- Mersey Docks and Harbour Board [1905] UKLawRpKQB 69; [1905] 1 KB 804
Murray -v- Schuter [1972] 1 L Rep. 16
Phillips -v- London and S.E. Railway Company [1879] 5 QB 78
Harris -v- Brights Asphalt Constractors Ltd [1953] 1 QB 617
White -v- London Transport Executive [1982] 1 QB 489

Mr I. Molloy for the appellant
Mr K. Brown for the respondent

Kelly VP: This is an appeal from a judgment of the High Court whereby damages were awarded in an action brought by the respondent as administrator of the estate of Benedict Votu deceased claiming damages under the Law Reform (Miscellaneous Provisions) Act 1934 (U.K.) on behalf of the estate of the deceased, damages under the Fatal Accidents Acts 1846-1959 (U.K.) on behalf of the dependants of the deceased and interest pursuant to the former statute. Both of the statutes referred to have effect as part of the law of Solomon Islands pursuant to para. 1 of Schedule 3 to the Constitution.

Liability was admitted and the learned trial judge gave a total award against the appellant of $10,252.64. This sum was made up, firstly, of $8,965.44 in respect of the estate claim, the components of this being $1,500.00 for loss of expectation of life and $7,165.44 for the “lost years”, that is, the loss of future earning capacity and. secondly, of $1,597.20 in respect of the dependency claim, the components of that being $1,016.40 for the child of the deceased who was born after his death and $580.80 for the deceased’s mother a further award to the widow being extinguished by the gain to her from the estate consequent on the death of $8,665.44. There is a minor mathematical error in the addition of these amounts to arrive at the total award, but it was not adverted to on the hearing of the appeal and may be ignored. The only sum for interest which was awarded was an amount of $60.00 included in the sum assessed for pre-trial dependency and the matter of interest did not arise on the appeal.

The primary submission on behalf of the appellant is that the learned trial judge was wrong in awarding any damages to the estate either for loss of expectation of life or for loss of future earning capacity. That an award of a conventional sum for loss of expectation of life may be made in fatal accident cases was decided by the House of Lords in Benham v. Gambling [1941] AC 157. The same view has been taken by the High Court of Australia in Skelton v. Collins [1966] HCA 14; [1965-1966] 115 CLR 94 in which Benham v. Gambling (supra) was applied and in Sharman v. Evans [1977] HCA 8; [1976-1977] 138 CLR 563. Both of the Australian cases concerned a living plaintiff, but the court accepted that damages could properly be awarded under this head. The House of Lords has decided that in such cases damages may also be awarded for loss of future earning capacity. Oliver v. Ashman [1962] 2 AB 210 in which a contrary view was taken by the Court of Appeal was overruled in Pickett v. British Rail Engineering Ltd [1980] AC 136 and in Gammell v. Wilson [1982] AC 27 the matter was again considered. Different considerations applied in Gammell's Case to those in Pickett’s Case, but the same conclusion was reached. In Skelton v. Collins (supra) the High Court of Australia had declined to follow Oliver v. Ashman (supra) and most recently in Fitch v. Hyde-Cates [1982] HCA 11; [1982] 39 ALR 581 that court examined and applied the subsequent House of Lords decisions on the matter.

Courts of the highest authority in both England and Australia have thus held that the common law is that damages may be awarded both for loss of expectation of life and for loss of future earning capacity. However, by the Administration of Justice Act 1982 (U.K.) the right to damages under both heads was abolished.

Paragraph 2 of Schedule 3 to the Constitution provides as follows:

“(1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.

(2) The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of the Parliament of the United Kingdom which does not have effect as part of the law of Solomon Islands.”

The effect of subpara. (2) is that regard is not to be had in Solomon Islands to the Administration of Justice Act 1982 (U.K.). I would have no doubt that “the principles and rules of the common law” which in accordance with subpara. (1) have effect as part of the law of Solomon Islands unless excluded under any of the succeeding provisions of that subparagraph include the law as expressed in the decisions of the House of Lords and of the High Court of Australia to which I have referred. It is unnecessary for the present purpose to embark upon a jurisprudential dissertation on the nature of the common law or an examination of the meaning of that term in subpara. (2). However appropriate this may have been prior to Pickett’s Case and Gammell’s Case, in the circumstances which now exist where there is no diversity of view between the courts of final appeal in England and in Australia as to what is the common law in these matters, to my mind the position is clear. The Court was referred to the decision of Miles J. in Vian Guatal v. PNG [1981] PNGLR 230 but the constitutional provision which applied in that case was in different terms from that which is applicable here and, with respect, I do not find that decision to be of assistance.

Counsel for the appellant did not advance any argument in support of the ground of appeal in which it was claimed that the learned trial judge was wrong in not finding that an estate claim for loss of future earning capacity was inapplicable to the circumstances of Solomon Islands under Schedule 3 of the Constitution. There is no material before the court which would enable it to say that the principles and rules of the common law here being considered are inapplicable or inappropriate in the circumstances of Solomon Islands and no basis appears for excluding them under any of the provisions of para. 2(1). It is for the legislature to determine whether these particular principles and rules of the common law should continue to be part of the law of Solomon Islands and, as I shall subsequently suggest, this is a matter to which consideration should be given. I am therefore of the opinion that damages for loss of expectation of life and also for loss of future earning capacity may be awarded in Solomon Islands.

I should add that para. 4(1) of Schedule 3 which reads “No court of Solomon Islands shall be bound by any decision of a foreign court given at or after 7th July 1978” has no application here as there is no question of this Court being bound by the decisions of the House of Lords or of the High Court of Australia to which I have referred. On the view which I have taken, what this court would be doing is to accept that the common law in this regard is as stated by those courts, which is an altogether different matter.

I would suggest that it is desirable that consideration be given to statutory amendment to abolish both these heads of damage as has now been done in England and in some Australian States. There was criticism of the law as it then stood by several of the Law Lords in Gammell v. Wilson (supra) and the legislation subsequently enacted in England implemented the recommendations of the Pearson Commission which had presented its report in 1978. That Commission had recommended the abolition of the right to damages for loss of expectation of life as anachronistic and of the right to damages for loss of earnings for the “lost years” on the ground of duplication of damages where there were Fatal Accident Act claims.

If, contrary to his submission, and as I have held, damages may properly be awarded for loss of expectation of life, counsel for the appellant does not challenge the conventional sum of $1,500.00 awarded by the learned trial judge under this head. He does, however, challenge for various reasons the sum awarded for loss of future earning capacity which he submits was in all the circumstances manifestly excessive. It thus becomes necessary to analyse the manner in which that sum was arrived at.

The deceased died in a motor accident on 25th January 1981. At the date of his death he was 22 years of age. Since 1978 he had worked for some months each year at Variana Plantation where he earned wages and extra money from copra trading. The learned judge found that it was established by the evidence that over a period of three years the deceased could earn an average of $48.00 per month at the plantation. For the remaining part of the year the deceased remained in his village helping in the gardens and in the production of copra. He also initiated a cocoa project for which a loan was obtained from the Development Bank of Solomon Islands. The learned judge found that the deceased was a hard working and energetic young man who had shown in his short working life that he had considerable potential both to earn money and to organise ways whereby money might be earned in his home environment. The learned judge concluded that by the date of trial the deceased would have been producing at home sufficient produce by his own work which would give him the same earning potential as working on the plantation and he therefore adopted a figure of $48.00 per month as the earning capacity for the deceased throughout the year.

The learned judge considered that a figure of 33 per cent of total earnings spent by the deceased on himself to be reasonable in the overall both at Variana and at home and he consequently employed a round figure of $16.00 per month as the cost of maintenance of the deceased. Consequently the learned judge found that the surplus income of the deceased for the purpose of the calculation which he was required to make was $32.00 per month or $384.00 per annum. Pausing there, I may say that in my view the figures adopted by the learned judge were those which on the evidence it was open to him to adopt. Some criticisms of them were made by counsel for the appellant but I do not consider that any basis exists for disturbing them. The manner in which the learned judge arrived at the annual loss is in accordance with that indicated as being the proper approach in Gammell v. Wilson, (supra) and in Fitch v. Hyde-Cates (supra). In the former case, Lord Scarman, at p. 78 said:

“The loss to the estate is what the deceased would have been likely to have available to save, spend, or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve.”

In the latter case Mason J., in a judgment with which the other members of the court agreed, said at p. 592:-

‘...there are solid grounds for thinking that the true measure of the deceased’s loss is not the amount which he would have had in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probable living expenses to enable him to earn future wages.”

A similar view was expressed in Pickett’s Case (supra) by Lord Wilberforce at pp. 150-151. Counsel for the appellant did not argue a ground of appeal which claimed that in assessing damages for loss of earning capacity the court was wrong in not deducting the deceased's cost of maintaining his dependants.

The learned judge then took a figure of 35 years as the likely working life of the deceased and on the evidence there can be no quarrel with the adoption of that figure. He then reduced the multiplier to 18.66 years after applying a discount rate of four per cent. The adoption of a rate of four per cent is challenged by the appellant as being too low and it was submitted that the rate should be of the order of five to six per cent.. The learned judge referred to Todorovic v. Waller [1981] HCA 72; [1981] 37 ALR 481 in which the High Court of Australia determined the appropriate rate for Australia at three per cent. This is, of course, not necessarily the appropriate rate for Solomon Islands and one would think that a number of relevant considerations would differ as between the two countries. The learned judge had no evidence to assist him on this matter and in the circumstances I do not think it could be said that he was wrong in selecting four per cent. However, I would not wish to be understood as holding that this is the discount rate which should necessarily be generally applied. The matter must be regarded as open for consideration if and when material can be placed before the court which might enable a pronouncement to be made for Solomon Islands such as was made for Australia in Todorovic v. Waller (supra).

Applying the multiplier at which he had thus arrived the learned judge calculated what he referred to as ‘the first figure” for loss of future earning capacity at $7,165.44. He then considered contingencies which might arise to reduce or increase this figure, and, having concluded that those contingencies may be taken to cancel each other out, the learned judge found that the amount to be awarded under this head was $7,165.44. No argument was addressed to the court on a ground of appeal that the learned judge erred in making no reduction for adverse contingencies. In my view no basis has been shown for this Court to interfere with the sum awarded for loss of future earning capacity and it should stand. For the reasons given by the learned judge the widow will in due course be entitled to the whole of the sum awarded in respect of the estate claim.

Counsel for the appellant sought to rely on the recent decision of McCullough J. in Adsett v. West [1983] 3 WLR 437 as the basis of a submission that there should be no amount for loss of any surplus resulting from the family enterprise in the “lost years”. The effect of this submission, as I understood it, was that what the deceased had earned from the family enterprises was largely a return on capital which had survived and that the surplus income which the deceased received from the family enterprises over and above his living expenses was extinguished when regard is had to the fact that those enterprises continue to provide a return to the estate. To my mind, the answer to this is twofold. Firstly, the damages awarded for loss of future earning capacity are not for loss to the estate consequent on the death, but for loss to a living person consequent on the wrongful act of the defendant (see Gammell v. Wilson (supra) at p. 69). Secondly, even assuming the view taken in Adsett v. West (supra) to be correct, a matter on which it is not necessary for me to express an opinion, it is clearly distinguishable as dealing with a factual situation entirely different from that which applies in the present case. In Adsett v. West the capital with which the court was concerned took the form of an interest in a family business which was itself income producing and in dealing with the loss of income for the “lost years” McCullough J. ignored the income which would have resulted from the capital which the deceased already owned at his death. However, what is here referred to as capital consists of assets in which the deceased had an interest but which produced income only by reason' of personal exertion expended on them by the deceased and other members of his family. I would consider that in this situation the income earned from the family enterprises should be taken into account in the manner in which the learned judge did.

The dependency claim is brought for the widow, daughter and mother of the deceased. The widow was aged 19 years at the date of trial, the child was a little over 12 months old and the mother was about 48 years of age. The learned judge referred to there being evidence that the disposable surplus income of the deceased went to provide for far more people than are named as claimants and he concluded that he was only entitled to assess the dependencies of the persons of whom particulars were given In the pleadings. I would consider that the learned judge was correct in so concluding (see Luntz, Assessment of Damages for Personal Injury and Death, 2nd ed., p. 422, para. 9.4.02; Adelaide Chemical and Fertilizer Co. Ltd v. Carlyle [1940] HCA 44; [1940] 64 CLR 514). The learned judge assessed the value of the dependencies for the period of 21 years between death and trial at $600.00 to which he added interest at half the short term rate which he found to be four per cent per annum and so arrived at a total figure of $660.00 for pre-trial dependency. The basis of this calculation was his assessment of $20.00 per month as the amount that would go to the three claimants over the whole period. This was an assessment which the learned judge could properly make on the evidence and in my opinion it could not be said that he was wrong in so doing.

One of the grounds of appeal in relation to the dependency claim was that the learned judge was wrong in not giving credit in that claim on behalf of the widow for the share of the deceased’s produce which she received and/or for the support she received from the deceased’s relatives. Both these matters were considered and, in my view, correctly disregarded by the learned judge in his calculations. There was no evidence that there was any obligation, for example, because of a duty imposed by custom, to allow the widow to receive the deceased’s share of the proceeds from the sale of produce nor was there any evidence of custom which obliged the deceased’s relatives to support the widow. The learned judge adopted the view of Chapman J. in Rawlinson v. Babcock & Wilcox Ltd. [1967] 1 WLR 48, at pp. 486-487, namely that contributions to the family of a deceased man which arise fundamentally from motives of charity and benevolence must be ignored, even though in one sense these contributions would not have been made but for the death. I would consider this to be the correct principle to be applied. In my view the principle adopted in Adsett v. West (supra) to which I have referred in dealing with the estate claim can have no application to the circumstances of the dependency claim.

For post-trial dependency the learned judge assessed the dependencies at the date of trial at $22.00 per month and again this was an assessment open to him on the evidence. After considering what would appear to be the appropriate contingencies, the learned judge decided upon a multiplier which he put initially at 15 years and to my mind this was reasonable on the material before him. The learned judge then discounted this at four per cent giving a multiplier of 11 and after deducting the 2 ^1/2 pre-trial years he adopted a final multiplier of 8 ^1/2, giving a resulting figure of post-trial dependency of ground of appeal that the learned judge made no sufficient $2,244.00 and a total dependency figure of $2,904.00. A ground of appeal that the learned judge made no sufficient reduction for adverse contingencies in assessing the dependency claim was not argued.

In assessing the dependencies the learned judge, correctly in my view, followed the steps suggested by Lord Diplock in Cookson v. Knowles [1978] UKHL 3; [1979] AC 556, at p. 573, and which are set out at length in his judgment. The learned judge used the same calculation in determining the dependency of the three claimants as he did in relation to the “lost years”. In a brief report of Harris v. Empress Motors Ltd.; Cole v. Crown Poultry Packers Ltd. in the Times Law Reports of 16th July 1983, O’Connor LJ. with the agreement of the other two members of the Court of Appeal is reported to have said that in general the proportion of the net earnings in the “lost years” which should be deducted for the purpose of the Law Reform Act claim would be greater than the percentage used for calculating the dependency under the Fatal Accidents Act. However that may be, I would consider that on the evidence in the present case it could not be said that in this instance the learned judge was in error in using the same calculation for both purposes.

Having arrived at the total dependency figure, the learned judge apportioned the amount amongst the claimants in the proportions of 45 per cent to the widow, 35 per cent to the child and 20 percent to the mother. No challenge is made to the apportionment to the mother, but it is submitted that the allowance of 35 per cent to the child was excessive and that it should have been of the order of 20 per cent. There was evidence that if the widow remarried the relatives of the deceased would care for the child. The learned judge considered the widow’s chances of marrying again to be good so that in my view it was reasonable to make a significant apportionment to the child rather than to give the major share to the widow as is frequently done on the basis that the responsibility for the upbringing and maintenance of the child would devolve on her throughout the period of the dependency. Judicial views on the matter of apportionment vary and whilst, had I been considering the matter at first instance, I may not necessarily have made the child’s share as high as 35 per cent, I am not prepared to say that the learned judge was wrong in adopting this figure and I would not interfere with the apportionment which he made.

It was accepted that the widow’s share under the dependency claim, was, extinguished by the amount she would receive through the estate of the deceased under the estate claim, so that judgment on the dependency claim was properly given for the child and the mother of the deceased only in the amounts calculated by the learned judge.

In the result there is in my opinion no basis for interfering with the award. Accordingly I would dismiss the appeal with costs to be taxed.

Kapi J.A: This is an appeal against a decision of the High Court pursuant to Part III of the Court of Appeal Act 1978.

The High Court was concerned with the assessment of damages under (a) the Law Reform (Miscellaneous Provisions) Act 1934 (U.K.) - I shall refer to this action as the estate claim, and (b) the Fatal Accidents Act 1846-1959 (U.K.) - I shall refer to this action as the dependency claim. These two Acts are applicable in the Solomon Islands under paragraph 1 of Schedule 3 to the Constitution.

The High Court made awards in damages under both the estate claim and the dependency claim.

The Estate Claim

The High Court in considering the estate claim made no award for funeral expenses under s. 1 of the Law Reform (Miscellaneous Provisions) Act 1934. However, awards were made under the following heads:

(a) the loss of expectation of life $1,500.00

(b) loss of future earning capacity
(lost years) $7,165.44

These two causes of action are based on the common law of England. The survival of these two actions is made possible by s.1 of the Law Reform (Miscellaneous Provisions) Act 1934. These two causes of action have been approved by the House of Lords and can be regarded as settled law in England. See Rose v. Ford [1937] AC 826, Benham v. Gambling [1941] 1 All ER 7, Pickett v. British Rail Engineering Ltd [1979] 1 All ER 774 and Gammell v. Wilson [1981] 1 All ER 578.

Counsel for the appellant submitted that the principles of common law as laid down by the House of Lords in these cases have been much criticised. He pointed out that even some of the law Lords in the House are not happy with the way this branch of the law has developed. See Lord Diplock, [1981] 1 All ER 578 at p. 581. The objections to the way this area developed are set out in a Papua New Guinea case of Vian Guatal v. PNG [1981] PNGLR 230. Counsel submitted therefore, that this court should reject the law as developed by the House of Lords and adopt the conclusion reached in Vian Guatal’s case. During the course of argument he relied on authorities from England, Australia and Papua New Guinea. He relied very heavily on the Papua New Guinea authority of Vian Guatal. In my view, these submissions raised the proper consideration of the content and the nature of the principles of common law and equity which have been adopted by the Constitution of Solomon Islands as part of the law of this country.

This is an independent nation and it has chosen to adopt certain laws to be part of its legal system under the Constitution. Therefore, in applying these laws, this court must apply them within the terms or the provisions of the Constitution. The submission by counsel for the appellant that this Court should adopt a decision of the National Court of Justice in Papua New Guinea ignores the provisions of the Constitution which sets out the law which this court is bound to apply. It is also apparent that the principles of common law in this area as declared by the English courts, differ before and after independence. See Oliver v. Ashman [1961] 3 All ER 323 - before independence - and Pickett v. British Rail Engineering Ltd [1979] 1 All ER 774 - a decision handed down after independence on 2^nd November, 1978. See also Gammell v. Wilson [1981] 1 All ER 578. Which of these authorities can be said to have been adopted by the Constitution as part of the law of this country?

The laws of the Solomon Islands are to be found in the Solomon Islands Independence Order 1978. The schedule to the Order is the Constitution of Solomon Islands. Paragraph 2(1) of Schedule 3 to the Constitution provides:

“2(1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with-customary law applying in respect of that matter.”

It is clear from this paragraph that the principles and rules. Of common law and equity shall have effect as part of the law of Solomon Islands.

What are the source’s of these Principles and rules?

The paragraph does not specifically state the sources of these principles. The High Court has expressed the view that the principles of common law and equity are to be derived from any common law country. See Official Administrator for Unrepresented Estates v. Allardyce Lumber Company Limited [1980-1981] SILR 66 at p. 72. The court came to this conclusion by reference to paragraph 2(1) of Schedule 3 only. If this provision is read in isolation, I would agree that the interpretation given by the court is open. However with respect, I would differ on this point. Paragraph 2(1) is to be construed with paragraph 2(2), which is in the following terms:

“(2) The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of the Parliament of the United Kingdom which does not have effect as part of the law of Solomon Islands.”

In my view, when the whole of paragraph 2 of Schedule 3 is read together, it is clear that the principles of common law and equity referred to under paragraph 2(1) are principles of common law and equity in England. If paragraph 2(1) intended the adoption of principles of common law and equity from any common law country, paragraph 2(2) would have made reference to Acts of other common law countries. Parliament in England can only affect the principles of common law and equity that are formulated in England. It cannot affect common law principles as are applied or developed in other common law countries. If paragraph 2(1) were to adopt principles of common law from any common law country, in my view the state of the law applicable in Solomon Islands would be uncertain. There is no guarantee that all common law countries would apply and develop the principles of common law and equity consistently. It has been illustrated in this area of the law that the courts in common law countries differ in their application and development of the principles. See Oliver v. Ashman [1961] 3 All ER 323, Skelton v. Collins [1966] HCA 14; [1965-66] 115 CLR 94 and Vian Guatal v. PNG [1981] PNGLR 230.

I have reached the conclusion that paragraph 2(1) of Schedule 3 to the Constitution adopts the principles and rules of common law and equity in England.

What is the binding effect of the principles and rules of common law and equity adopted under paragraph 2(1) of Sch. 3?

Again in Official Administration for Unrepresented Estates v. Allardyce Lumber Company Limited [1980-1981] SILR 66 at p. 72, the High Court stated that the decisions of the English or United Kingdom courts and of other common law countries are not binding on the courts of Solomon Islands. In my view, the High Court failed to give effect to the words of paragraph 2(1) of Schedule 3:-

“...the principles and rules of the common law and equity shall have effect as Part of the law of Solomon Islands ...” (my emphasis)

The principles and rules of common law and equity are part of the law of Solomon Islands. The courts here are bound to apply them. The task of this court is to ascertain those principles and apply them. That is the effect of paragraph 2(1) of Schedule 3. The only matters the court needs to consider in applying these principles are set out in paragraph 2(1)(a)-(c) of Schedule 3. The principles of common law and equity applied by the courts of other common law countries are not to be equated with the binding nature of the English decisions of these principles. I will return to the relevance of decisions at a later stage of my judgment from other common law countries at a later stage of my judgment.

Is there a cut-off point in the adoption of the principles of common law and equity in England under Schedule 3?

Again, In the case referred to above, the High Court was of the view that there is no fixed date for the reception of the principles of common law and equity. The Chief Justice followed this same view in this case when he stated:

“Thus this court applies the common law as it exists at this date and therefore must consider the declarations of that law as contained in the later cases to which Miles J. refers.”

Reading paragraph 2(1) of Schedule 3 in isolation, it would be possible to come to the conclusion that the principles and rules of common law and equity would be applied here as they are developed in England from time to time. If I were to accept this view on the basis of the conclusions I have reached up to this point, this court would be bound forever by courts in England. With respect, I do not think that this is the intention of the Constitution. A relevant provision on this point is paragraph 4(1) of Schedule 3 which is in the following terms:

“No court of Solomon Islands shall be bound by any decision of a foreign court given on or after 7th July 1978.”

Again, in the case referred to above, the High Court had regard to this provision. In that case the Chief Justice stated:

“I accept that this conclusion does make it difficult to give meaning to paragraph 4(1) of Schedule 3 to the Constitution ...

However, I prefer to regard this as a provision for the avoidance of doubt incorporated do an indication' of the independence of the court of an Independent state.”

I consider that the remarks of the Chief Justice are not altogether wrong. However, this provision says more than is indicated by the Chief Justice. The provision clearly makes a cut-off point on the binding effect of any decision of a foreign court. This provision applies to the English courts. This effectively means that any principle or rule of common law or equity enunciated by any foreign court (including the English courts) on or after 7th July 1978 would not be binding on the courts here. This provision would be contrary to the interpretation given to paragraph 2(1) of Schedule 3 that principles and rules of common law and equity shall apply from time to time. There is a well-known cannon of statutory interpretation that statutes must be construed as a whole. In reading paragraphs 2(1) and (4) of Schedule 3 together, I reach the following conclusion. The principles-and rules of common law and equity enunciated by courts in England before 7th July 1978 shall have effect as part of the law of Solomon Islands. After this point, decisions in England would not have any binding effect. The only exception to this general statement is where a competent court, such as the House of Lords, declares that a principle of law was wrongly decided by a lower court in England before independence. I will consider this matter later. The development of the principles and rules of common law and equity after independence will be a matter for the courts of this country, especially the High Court and the Court of Appeal.

In the light of conclusions on questions of law I have reached, I should indicate how the relevance of decisions from other common law countries such as Australia and Papua New Guinea. When the courts in this country are concerned with the application of the principles and rules of common law and equity formulated in England before independence, under paragraph 2(1) of Schedule 3, the decisions of other common law countries are not relevant. The courts hare will obtain the principles from the English decisions. Decisions from other common law countries will only be of assistance if they correctly apply the principles and rules of common law and equity in England at the relevant time. It the courts here are concerned with the application of principles formulated or developed after independence, the decisions from other common law countries may be referred to in the process of developing the law here. After this point in time, the English or United Kingdom decisions are not binding upon this court any more than are the decisions of any other court of any other common law country. In my view these issues are of fundamental significance in considering the submissions made on questions of law.

Loss of expectation life

This cause of action has been approved by a series of English decisions both before and after 7th July 1978.

See Flint v Lovell [1935] 1 KB 344; Rose v. Ford [1937] AC 826; Benham v. Gambling [1941] 1 All ER 7; Yorkshire Electricity Board v. Naylor [1967] 1 All ER 1; Pickett v. British Rail Engineering Limited [1971] 1 All ER 774. The question has reached the highest court in England, the House of Lords, and, the matter is settled law. The principle was adopted by the Constitution under paragraph 2(1) of Schedule 3 as at immediately before 7th July 1978 and is now part of the law of Solomon Islands. The High Court has previously applied the law in Official Administrator for Unrepresented Estates v. Allardyce Lumber Company Limited [1980-1981] SILR 66. Counsel for the appellant submitted that this principle is an anomaly in the law relating to the assessment of damages for personal injury or death and submitted that this court should reject the principle. In my view this submission is wrong in law as far as the application of the principles and rules of common law in Solomon Islands is concerned. This court is bound to apply the principles of common law under paragraph 2(1) of Schedule 3 as at before independence, as the starting point. Those principles are as set out in the cases referred to. I agree with counsel for the appellant that there are anomalies in the development of this area of the law. However, these are not matters that can be considered by the court under paragraph 2(1) (a)-(c) of Schedule 3 to the Constitution. What we are being called upon to do is to determine what the law should be. This is not the same as being asked to develop the principles of common law. I do not doubt the power of this court to develop the principles of common law after 7th July 1978 in a manner it considers proper. The court will do this in appropriate cases. What we are being called upon to do is to abrogate the settled principles of common law. Where the law is settled as at immediately before independence in England, it is the duty of this court to apply those principles under paragraph 2(1) of Schedule 3. Not to give effect to these principles would be contrary to the clear dictates of paragraph 2(1) of Schedule 3. The matters which have been urged upon us by counsel for the appellant are matters which should be urged upon the Parliament for legislation. I will return to the question of legislation in this area of the law when I consider the claim for loss of earning capacity. The learned Chief Justice correctly concluded that this cause of action can be sustained in the Solomon Islands. Counsel for the appellant made no submission that this principle is inapplicable or inappropriate in the circumstances of Solomon Islands, or contrary to any customary law under paragraph 2(1) (b) and (c) of Schedule 3 to the Constitution. There is no ground of appeal on the conventional award of $1,500.00 and I express no view on the matter. I would dismiss the ground of appeal on this point and confirm the award of $1,500.00.

The loss of earning capacity (lost years)

Counsel for the appellant submitted that we should follow the principle in the case of Oliver v. Ashman [1961] 3 All ER 323 and not follow Pickett v. British Rail Engineering Ltd [1979] 1 All ER 774 and Gammell v. Wilson [1981] 1 All ER 578. He submitted that this was the course adopted by the National Court of Justice in Papua New Guinea in the case of Vian Guatal v. PNG [1981] PNGLR 230. It is to be noted that the decision in Oliver v. Ashman is a decision in England before independence and Pickett v. British Rail Engineering Limited is a decision of the House of Lords in England after independence. It is necessary to decide which of these decisions is the applicable law in Solomon Islands under paragraph 2(1) of Schedule 3.

In my view, the reception of the principles of common law and equity in Solomon Islands is no different to the reception of the principles of common law and equity in Papua New Guinea The essential difference is in the different dates of reception: 15th September 1975 in Papua New Guinea, and 7th July 1978 in the Solomon Islands. I consider that the Papua New Guinea decisions on the reception of common law under their Constitution would be relevant. In The State v. Bisket Uranguae Pokia [1980] PNGLR 97 at pp. 99-100, in considering the reception of common law on a different point of law, I stated:

“The common law of England has been described as fluid and progressive. Lord Denning, Master of the Rolls in his recent book The Discipline of Law (1979) in the preface said the following:

‘My theme is that the principles of law laid down by the Judges in the 19th century - however suited to social conditions of that time - are not suited to the social necessities and social opinion of the 20th century. They should be moulded and shaped to meet the needs and opinion of today’.

Over the years the common law has developed in this sense a striking example of the progress of the common law in this sense is in the law of negligence. To give an example, before 1932 a plaintiff could not successfully sue a defendant for damages for negligent acts unless there was a contractual basis between the plaintiff and the defendant. However, the law was further developed in the famous case of Donoghue v Stevenson to extend to those outside the contract between the plaintiff and the defendant in the neighbourhood theory.

When the Constitution of the Independent State of Papua New Guinea adopted the common law as at immediately before Independence it froze the common law of England as at 15th September, 1975, and any further progress or development of the common law in the sense I have described above did not and does not become part of the underlying law of Papua New Guinea.

However, this does not mean that if a competent court in England after 15th September, 1975, as in Wong Kam-ming, declares that a certain principle of common law decided in 1941, as in the case of Hammond’s case, is wrong law, then the principle to be applied is in the latter case. The latter decision of a competent court in England after 15th September, 1975, will have a retrospective effect and all cases following the former principle would be regarded as wrongly decided. (Wong Kam-ming)

The principle decided in Wong Kam-ming is not a further development of the common law, as I have explained, but a declaration as to what the law should have been in 1941 in Hammond’s case.

It follows that the law that is to be applied under Schedule 2.2 of the Constitution is the correct principle which is now declared in Wong Kam-ming’s case.”

I followed the same reasoning in another case in the Supreme Court, Wahgi Savings and Loan Society Limited v. Bank of South Pacific Limited (Unreported) judgment No. SC185 dated 25^th November 1980. Mr Justice Miles in Vian Guatal v. PNG [1981] PNGLR 230 at p. 244 came to the same conclusion when he said:-

“If the House of Lords proceeds to declare the common law from time to time (apart from the rare occasion when it overrules its own previous decision), its decisions will, by virtue of Schedule 2.2 of the Constitution, be virtually binding on Papua New Guinea courts as to the content of the common law of England. If on the other hand the House of Lords is engaged purely on a law-making process and not a law-declaring process, its decisions since 1975 have little relevance to Schedule 2.2 ...”

I would adopt the same approach here under the Constitution of Solomon Islands. The difference here is that the cut-off point is 7th July 1978. In the Solomon Islands, if after 7th July 1978, the House of Lords declares that a lower court In England wrongly decided a principle of law before independence, the law that is applicable in the Solomon Islands under paragraph 2(1) of Schedule 3 is the House of Lords decision even though it is decided after independence. However, if the House of Lords, after independence, further develops the law as in the case of Donoghue v. Stevenson [1932] AC 562, the decisions after independence are not relevant. The law to be applied, in those circumstances is the decisions in England before independence.

Mr Justice Miles in Vian Guatall’s case, at p. 245, concluded that:-

“Over-all I think that Pickett’s case involves such a radical departure from the law as it was previously understood to be that it is to be regarded as new law. Oliver v. Ashman therefore represents the common law of England as it stood as at 15th September, 1975.”

In coming to this conclusion, in my view, his Honour fell into error on the question of the effect of Pickett’s decision on Oliver v. Ashman. I would prefer the view pressed by the Chief Justice in this case on p. 49 of the record where he stated:-

“I must say, with respect, that were it necessary to do so, I would prefer the analysis made by Taylor J. in Skelton v. Collins (at pages 115 to 121) of the decision in Oliver v. Ashman and his conclusion that that case was wrongly decided as inaccurately seeking to draw conclusions from the earlier cases, to the analysis of Miles J. in Guatal’s case. (See also Mason J. in Fitch v. Hyde-Cates [1982] HCA 11; [1982] 39 ALR 581 at P. 590).”

It is clear from Pickett’s case that Oliver v. Ashman [1961] 3 All ER 323 was wrongly decided. Lord Wilberforce in analysing the decision in Oliver v. Ashman, found that the judgment of Holroyd Pearce L.J, in Oliver v. Ashman was influenced by the case of Benham v. Gambling [1941] 1 All ER 7, in reaching the conclusion that there was no claim for loss of earning capacity. At pp. 779-80 Lord Wilberforce, after having analysed the decisions in Benham v. Gambling, said:-

“The conclusion must be (and to my mind it is clear) that Benham v. Gambling was no authority compelling the decision in Oliver v. Ashman. It was not dealing with, and Viscount Simon L.C. did not have in mind, a claim by a living person for earnings during the lost years. Once this is established, the two views stated by Holroyd Pearce L.JJ remain open, and on them the existing balance of authority was slightly the other way (see Phillips v. London and South West Railway Co ([1879] 5 Q D 78), Roach v. Yates [1937] 3 All ER 442, Pope v. D. Murphy & Son Ltd [1960] 2 All ER 873, Harris v. Bright’s Asphalt Contractors Ltd ([1953] 1 All ER 395), contra).”

See also Lord Salmon at p. 786, paragraphs (b) to (d). See Lord Edmund-Davies at p. 791, paragraphs (b) to (e); p. 792 paragraphs (b) to (d); see Lord Russell of Killowen p. 793 paragraph (i) to p. 794 paragraph (a). Lord Scarman at p. 796 said:-

“My noble and learned friends, Lord Wilberforce, Lord Salmon and Lord Edmund-Davies, have analysed the case law which lies behind this decision. I agree with them in thinking that the decision was based on a misconception of what this House had decided in Benham v. Gambling. The relevant line of authority is not that which culminated in Benham v. Gambling but that which had begun with Phillips v. London and South Western Railway Co. and culminated in Roach v. Yates. If, therefore, attention be directed only to the authorities, I think it may be said that Oliver v. Ashman was wrongly decided, and that the court in that case should have followed its own decision in Roach v. Yates.”

Having come to the conclusion, namely, that the House of Lords in Pickett’s case decided that Oliver v. Ashman was wrongly decided, the law applicable in Solomon Islands under paragraph 2(1) of Schedule 3 is the law as declared by the House of Lords in Pickett’s case and Gammell v. Wilson [1981] 1 All ER 578.

Mr Justice Miles, in Vian Guatal’s case, expressed the view that even if Pickett’s case and Gammell v. Wilsons case represented the common law in Papua New Guinea, these principles are inapplicable and inappropriate to the circumstances of Papua New Guinea. The learned trial judge dealt with these arguments in his judgment. During the argument on this appeal, counsel for the appellant was specifically asked by the court to make submissions in this regard. Counsel for the appellant indicated that he did not wish to argue these matters on appeal. The ground of appeal on this question was abandoned. I therefore express no views on these matters. This court is bound to apply the law as set out above in the English cases pursuant to the provisions of paragraph 2(1) of Schedule 3. Therefore, the submissions by counsel for the appellant to reject the principles of common law as stated in Pickett’s case and Gammell v. Wilson is erroneous in law and are therefore rejected

I agree with Lord Diplock that this area of the law has “reached a state for which I see no social, moral or logical justification”. He went on to say: “The first judicial step down the slippery slope that led into a morass from which I think that only Parliament can now extricate us...” In England this has now been done in the Administration of Justice Acts, 1982, s.4. The question was left to the Parliament for legislation. The same approach was taken by Gibb J. (as he then was) in another context:-

“In any case, if the law is settled, it is our duty to apply it, not to abrogate it. It is for the Parliament. whose members are the elected representatives of the people, to change an established rule if they consider it to be undesirable, and not for judges, unelected and unrepresentative, to determine not what is, but what ought to be, the law.” (1979) 54 ALJR 176 at p. 181.

In two Australian states, legislative action has been taken to abolish this cause of action. Queensland has amended its Act since 1972; see Common Law Practice Act Amendment Act 1972, s.3. New South Wales, in response to Fitch v. Hyde-Cates [1982] HCA 11; [1982] 56 A.L.J.R. 270, amended its Act as well. See Law Reform (Miscellaneous Provisions) Amendment Act 1982, s.2. I can only suggest that Parliament in Solomon Islands give consideration to the amendment of the Act here.

Quantum of Damages

The law is settled in common law as to the approach to be taken by an appellate court. The law is act out in the following passage from the judgment of Lord Wright in Davies v. Powell Duffryn Associated Collieries, Ltd [1942] 1 All ER 657 at pp. 664-5:-

“In effect, the court, before it interferes with an award of damages, should be satisfied that the judge has acted upon a wrong principle of law, or has misapprehended the facts, or has, for these or other reasons, made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

This principle has been applied in this jurisdiction, see Sukumia v. Solomon Islands Plantations Limited [1982] SILR 142.

I now apply these principles on this appeal. I find that the learned trial judge approached the assessment of damages on proper principles of law. He proceeded on the basis of law contained in the speeches of Lord Wilberforce in Pickett ‘s case [1979] 1 All ER 774 at pp. 781-2, and Lord Scarman in Gammell v. Wilson [1981] 1 All ER 578 at p. 593. Before I turn to the facts and the estimates on the figures, counsel for the appellant has raised a point of law on appeal which may affect the assessment by the learned trial judge.

He submitted that the learned trial judge fell into error in taking into account, as part of the loss, the income from the family agricultural projects. He submitted that the capital asset, the coconuts and the cocoa trees, remain intact and continue to provide income. As at 7th July 1978, there was no common law authority on this point. The only authority which is directly on point is a decision of a single judge of the Queen’s Bench Division in 1983. This is a new area of the law developed after the independence date, therefore it is not binding. The authority which counsel for the appellant relies on is the case of Adsett v. West [1983] 3 WLR 437. As far as is relevant, the deceased in that case had a sum of money invested which was earning income in terms of interest. The question was whether, in assessing the loss of earning capacity, the capital which was invested and which the deceased possessed at the time of his death, should be taken into account. McCullough J. decided the question on general principles. He concluded that although the deceased lost his earning capacity immediately before his death, his capital remain intact and, since the capital did not lose its capacity to earn income, such income was not to be taken into account in assessing the deceased’s loss of income. His Honour came to this conclusion after analysing the passages in Pickett’s case and other cases following it. The basis of His Honour’s conclusions can be said to be contained in a passage on p. 452:-

“As I read Lord Wilberforce’s remarks in the last of the passages that I cited, what he thought significant was the victim’s loss of opportunity to use his earnings. In his opinion ‘the basis, in principle, for recovery lies in the interest which he has in making provision for dependants and others.’

By dying, a man loses the opportunity to provide for his dependants and others out of future earnings from work, but he does not lose the opportunity to provide for them out of income earned by capital of which he dies possessed.”

It is important to emphasise that the basis of the claim lies in the loss of earning capacity. Income derived from investment is not income derived from earning capacity. As has been pointed out in the case referred to above, there was no loss of the income from the investment. There is no injustice in excluding this from the claim (Page 453) I do not consider that the facts of this case are on all fours with the facts of Adsett v. West. In this case, the income that was derived from the family agricultural project was directly connected with the earning capacity or the amount of work the deceased was prepared to put into it. The income derived from these projects can be said to be income arising directly out of his capacity to earn. Before the death of the deceased, he has lost the capacity to earn that income. This seems to me to come within the general principles laid down in Pickett’s case. I agree with the statement by the learned trial judge in this case:

“In my judgment the loss of such a man leaving aside his income from Variana Plantation, must undoubtedly be of detriment to the economic position of a family which depends on organised manual labour in production of agricultural produce for its food and income. If there is a loss then the Court must quantify it one way or another.”

This is consonant with what Mahoney J.A said in the Court of Appeal in New South Wales in the case of Baird v. Roberts [1977] 2 NSWLR 389 at p. 396, paragraph (g):-

“Essentially, that for which compensation is to be, given in this regard is the reduction of the plaintiff’s economic capacity. That there was each a reduction is clear. Therefore, that loss must be compensated for in a manner appropriate to the nature of the case ....”

The learned trial judge referred to authorities in his judgment supporting the view that the loss must be compensated for. Counsel for the appellant has not questioned this part of the judgment. That, of course, is not the end of the matter. In order to award damages, the loss of earning capacity must be productive of economic loss. This is settled law. In Graham v. Baker [1961] HCA 48; [1961] 106 CLR 340 at p. 347 the High Court of Australia said:

“To be more precise, however an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”

The learned trial judge dealt with this issue in this case, and he concluded:

“...the deceased was a young man capably of hard work and leadership; a man prepared to make sacrifices and produce ideas to improve the economic situation of his family. This is shown by his work at the plantation and particularly his return there shortly after his marriage. It is shown by his efforts in relation to the cocoa project. The family witnesses including the elder brother, all gave the distinct impression by their evidence that the deceased was the real leader and worker of the family.”

Whilst the evidence shows that the income earned from the projects did not decrease, the learned trial judge concluded that the deceased was deprived of the chance to exploit his earning capacity in producing more income from the family projects, however small it may have been. The learned trial judge did not fall into error in taking into account the loss of income from the family agricultural projects.

The rate of discount.

Counsel for the appellant submitted that the rate of four percent which was applied by the learned trial judge in this case is too low for the Solomon Islands. He submitted that such a figure would be appropriate for a country such as the United Kingdom or Australia. He submitted that the rate that should be applied here should be between five percent and six percent, as is the case in Papua New Guinea whose economic conditions are nearer to those of the Solomon Islands.

The learned trial judge in this case adopted the discounted interest approach in assessing the damages. This has not been questioned on appeal. In England, the discounted interest approach has only found favour in recent years. The English cases now appear to be adopting the discounted interest approach. See Mallett v. McMonagle [1970] AC 166; Fletcher v . Autocar and Transporters Ltd [1958] 2 Q.B 322; Cookson v. Knowles 119787 2 All ER 604. A discussion of the methods of calculating damages both in England and in Australia is contained in the judgment of Mr Justice Miles in Hugh James Hassard v. Bougainville Copper Limited [1981] PNGLR 182.

The question to be resolved by us is the rate of the discount rate. Counsel for the appellant has submitted that this court should adopt the discount rate now applicable in Papua New Guinea. I believe this submission was made on the assumption that the question of discount rate in Papua New Guinea is settled. However this is not the case. Different judges in Papua New Guinea have adopted different discount rates ranging from five percent (see Hassard v. Bougainville Copper Limited; Koko Kopele (Plaintiff) v. Motor Vehicles Insurance (PNG) Trust (First Defendant) and The Commissioner of Police Royal Papua New Guinea Constabulary (Second Defendant) and The Independent State of Papua New Guinea (Third Defendant) (Unreported) judgment No. N447 dated 2nd December, 1983) to eight percent (Lubbering v. Bougainville Copper Limited [1977] PNGLR 183). McDermott J. in Koko Kopele’s case, while adopting the five percent discount rate which was the same rate as arrived at by Mr Justice Miles in Hassard v. Bougainville Copper Limited, correctly stated the position in Papua New Guinea when he said:

“It should not be taken however that this matter is thereby conclusively determined in this jurisdiction.”

The question of the discount rate In Papua New Guinea has yet to be conclusively determined by the Supreme Court.

How is the discount rate fixed?

There are many considerations which must be taken into account - inflation (Fletcher v. Autocar and Transporters Ltd [1968] 2 QB 322 at p. 348; Mallett v. McMonagle [1970] AC 166; Cookson v. Knowles [1978] UKHL 3; [1978] 2 All ER 604) ; notional tax (Taylor v. O’Connor [1971] AC 115; Cullen v. Trappell [1980] HCA 10; [1980] 54 ALJR 295; Todorovic and Another v. Waller [1981] HCA 72; [1981] 56 ALJR 59). There would be other factors which way be relevant for Solomon Islands - such factors as world commodity prices, capital importing, levels, international borrowing rates, the devaluation of the dollar, and the like. (See the remarks of Mr Justice Miles in relation to Papua New Guinea on these matters in Hassard v. Bougainville Copper Limited [1981] PNGLR 182 at p. 188. All these matters were not fully put before the learned trial judge. Any view expressed by this court on the discount rate adopted by the learned trial judge will therefore not be conclusive of this issue in this jurisdiction. Following on from what I have stated, the task of this court is made difficult in assessing whether four percent is the correct discount rate for the Solomon Islands. I am inclined, in determining this question in this case, to have some regard to the discount rates which have been adopted by the courts in Papua New Guinea.

I of course bear in mind what I have stated before, that this question has not been conclusively determined in Papua New Guinea. However, I do this, in the circumstances, in order to come to a conclusion. I consider that the conditions in Papua New Guinea would be much closer to those in the Solomon Islands than countries such as England or Australia on this question. Different judges have chosen different discount rates. See Lubbering [1977] PNGLR 183 - eight percent; Kaka Kopun v. PNG [1980] PNGLR 557 - seven percent; O’Hello v. Kayel Shipping Co. Pty: Ltd. [1980] PNGLR 361 - six percent. More recently judges have chosen a five percent discount rate, see Hassard v. Bougainville Copper Limited [1981] PNGLR 182; Anton Johan Pinzger v. Bougainville Copper Limited (Unreported) judgment No. N418 dated 6th May, 1983; Koko Kopele (Plaintiff) v. Motor Vehicles Insurance (PNG) Trust (First Defendant) and the Commissioner of Police Royal Papua New Guinea Constabulary (Second Defendant) And The Independent State of Papua New Guinea (Third Defendant) (Unreported judgment) No. N447 dated 2nd December, 1983.

It is apparent from these cases that there has been a downward marking of the discount rate. In view of these discount rates, the four percent discount rate adopted by the learned trial judge in this case can be regarded as coming within the lower end of the scale. As far as I can see, at the present time, the rate should not be fixed any lower than four percent. I do not consider four percent is excessive in the circumstances of this case.

All that remains to be considered under the estate claim are the grounds of appeal against the findings of the learned trial judge on deductions made for future maintenance of the deceased and the calculation for the loss of future earning capacity. I have considered these grounds and agree with Kelly V.P. that the calculations made by the learned trial judge are reasonable and I would not disturb them.

Dependency claim

The grounds under this head of the claim were limited to a calculation for both the loss of support for the dependants and the apportionment, particularly for the child, of thirty-five percent. I do not find any error in the calculations reached by learned trial judge for the reasons given by Kelly V.P., and I would dismiss the grounds of appeal.

I would dismiss the appeal with costs to be taxed.

Jones JA: On 25th January 1981 Benedict Votu died in a road accident as a result of the negligence of the driver of a Toyota pick up truck. The owner of the truck, Michael Cheung admitted liability. Vincent Tanda as the administrator of the estate of the deceased claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and also under the Fatal Accidents Acts 1846 to 1959. Under the Law Reform (Miscellaneous Provisions) Act the High Court awarded $1500 for loss of expectation of life and $7155.44 for loss of earnings, and it declared that by virtue of the Administration of Estates Act 1925 the Intestates Estate Act 1952 and the Currency Act (Cap 57 Laws of Solomon Islands), the whole of these damages would go to deceased’s widow.

Under the Fatal Accidents Acts the High Court awarded $660 for pre-trial dependency and $2244 for post trial dependency divided between deceased’s wife, child and mother as to 45%, 35% and 20% respectively.

Mr Cheung has appealed both against the heads of damage and the awards made under these heads. His Counsel Mr Molloy has argued eight grounds of appeal. The first ground is that the learned Chief Justice was wrong in awarding any damages to the estate for loss of expectation of life. Mr Molloy argues that this head of damage is anomalous. He admits that it was entrenched in the common law of England and Australia but he submits that it is not established common law in the Solomon Islands and he urges the court either to award no damages under this head or to make an award following “general common law principles” and not a conventional sum as has been the practice since Benham v. Gambling [1941] AC 157.

That this head of damages is anomalous has long being recognized. In Gammell v. Wilson [1982] AC 27 Lord Diplock called the decision in Flint v. Lovell [1935] 1 K.B 354 where for the first time this head of damage was recognised,

“the first judicial step down the slippery slope that led into a morasse from which I think that only Parliament can now extricate us”.

In the same case Lord Russell of Killowen said,

“I do not favour a system which embodies a conventional (or any) figure being awarded for loss of expectation of life.”

Similar criticisms were made in the leading Australian case of Skelton v Collins [1966] HCA 14; [1965] 115 CLR 94 (per Windeyer J at p. 130) and Sharman v. Evans [1977] HCA 8; [1977] 138 CLR 563 at p. 584.

That it is anomalous was also recognised by legislation in New Zealand as far back as 1937. It has been abolished by legislation in all the States of Australia since 1972: (Luntz, Assessment of Damages for Personal Injury and Death, Second edition p. 395), and in England the Administration of Justice Act 1982 Part I, section 1 has now abolished this head of damages except as a factor in assessing pain and suffering. Those Acts of other legislative bodies do not of course apply in Solomon Islands. In respect of the common law, schedule 3 of the Constitution puts this beyond doubt by providing in section 2(2),

“The principles and rules of common law and equity shall so have effect notwithstanding any revision of them by any act of the Parliament of United Kingdom which does not have effect as part of the Law of Solomon Islands.”

(These acts, are limited by section 1 to acts “of general application and in force on January 1st 1961”).

And Schedule 3, Section 2(1) provides as follows:-

“Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands, from time to time; or

(c) their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.”

Subsection (a) does not apply. There are no relevant provisions in the Constitution or any Act of Parliament of Solomon Islands. As to subsection (1) (c), I know of no customary law with which this head of damages is inconsistent. None, has been suggested by Counsel and there was no evidence of any before the learned Chief Justice. This leaves subsection (1)(b), but again I am not aware of any circumstances peculiar to Solomon Islands which would render this head of damages inapplicable or inappropriate. I readily concede that it is in general inappropriate but I can find no ground in law for departing from the position taken in the leading cases I have cited (and a host of others). Anomalous as it may be, I must decline to rectify it by judicial legislation. It is a matter that can now be dealt with only by the National Parliament of Solomon Islands.

The principle, then, remains the common law of Solomon Islands. But could recognition be given to its inappropriateness by assessing damages at nil or nearly nil? Again, I think the common law is well established. This question was considered carefully in Benham v. Gambling (above) where it was decided that “a very moderate figure” should be awarded, because it was impossible to put a monetary value on prospective happiness viewed as an objective entity. Their Lordships decided on a figure of £200. This has been increased in the United Kingdom from time to time to keep pace with inflation until it is now £750.

In Vian Guatal v. The Independent State of Papua New Guinea [1981] PNGLR 230 Miles J accepted that the award was “commonplace” in Papua New Guinea and awarded K1,500. The learned Chief Justice considered these factors and awarded the same figure of $1,500 as he had awarded in a previous case of O.A.U.E. v. Allardyce Lumber Co. [1980-1981] SILR 66. This appears to me to be a reasonable ‘conventional’ figure. To reassess it at a lower (or any other) figure would come perilously close to trying to do what it is generally agreed is impossible, namely to set a monetary value on prospective happiness. I decline to do so.

The second ground of appeal is that the learned Chief Justice was wrong in awarding damages to the estate for loss of future earnings. Mr Molloy argues that the decision in Oliver v. Ashman [1962] 2 QB 210 is:

(a) the correct judicial interpretation of the common law; and

(b) in any case the common law applicable in Solomon Islands.

In Oliver v. Ashman the Court of Appeal held that the damages an injured party could recover for loss of future earnings were limited to the period of his post-injury life expectancy. This was overruled in Pickett v. British Railway Engineering Ltd [1979] 1 All ER, 774 in which the House of Lords stated the common law as providing damages for loss of earnings based upon the injured party’s pre-injury life expectancy. Mr Molloy submits that the learned Chief Justice was wrong to apply the common law as stated in Pickett (above) because that decision was based on the assumption that where a victim recovered damages in his life time his dependants could not subsequently bring an action under the Fatal Accidents Acts. There is, he says, no direct authority for this assumption.

This point was considered by Lord Diplock in Gammell v. Wilson (above) in explaining why the House of Lords had over-ruled the decision in Oliver v. Ashman. He said that as the result of that decision,

“There would be an anomaly that would offend one’s sense of justice if a living plaintiff after having obtained a judgment in his favour which took no account of what he would have earned in the lost years (i.e. the difference between his pre-injury and his post-injury life expectancy) died shortly afterwards from the Injury he had sustained. His cause of action would have merged with the judgment and although I know of no direct authority on the point, it has always been regarded as too clear to brook of argument that the merger of his cause of action carries with it the merger of any cause of action under the Fatal Accidents Acts however great and prolonged their dependency might have been expected to be.”

Lord Salmon expressed a similar opinion and said that this assumption was supported by “strong authority”. He cited Read v. British Railway Co [1868] LR 3 QB 555, Williams v. Mersey Docks and Harbour Board [1905] UKLawRpKQB 69; [1905] 1 KB 804 and Murray v. Schuter [1972] 1 Lloyds Rep 16. These opinions were obiter but I know of no instance in which this proposition has been seriously questioned by any of the learned Law Lords.

Mr Molloy asks us to follow the decision in Vian Guatal v. The Independent State of Papua New Guinea (above) in which Miles J. hold that Pickett (above) was not the common law of Papua New Guinea because it was not decided until 1979 whereas by virtue Schedule 2.2 of the Constitution the common law in Papua New Guinea was that which existed in England immediately prior to the date of Independence, 15th September 1975.

Miles, J, examined the “strong authorities” upon which Lord Salmon relied and was not impressed by them. His solution was to say that the common law of Papua New Guinea was the rule in Oliver v. Ashman (above) but that there was a right of action in the dependants under the Fatal Accidents Act for the lost years. Miles J. added that he would in any case have held that the decision in Pickett’s case was inapplicable and inappropriate to the circumstances of Papua New Guinea.

The position in Solomon Islands is not identical with that of Papua New Guinea. The application of the principles and rules of the common law are not limited by the Constitution to the common law of England at the date of Independence (7th July 1978). There is however, the general provision in section 4(1) of Schedule 3 of, the Constitution which reads:

“No court of Solomon Islands shall be bound by any decision of a foreign court given on or after 7th July 1978” .

The decision In Pickett was given in 1979. It is therefore not binding on courts of Solomon Islands. On the other hand the common law is.

Miles J. solved this dilemma by distinguishing between decisions declaratory, of the common law and those which constituted what has been called ‘judicial legislation’. He concluded that if “the House of Lords is engaged purely on a law making process and not a law declaring process” its decisions since 1975 had little relevance to the common law of Papua New Guinea, and he decided that in Pickett the House of Lords had been engaged on a lawmaking process.

With respect I do not think that this is a correct interpretation of the thinking of their Lordships. In Pickett the basis for the decision in Oliver v. Ashman was examined by Lord Wilberforce. He said that Holroyd Pearce LJ had considered that apart from the decision In Benham v. Gambling there was at the least a case for giving damages in respect of the lost years, but had concluded that Benham v. Gambling was a binding authority in favour of the view that the only damages an injured person could recover in respect of the lost earnings were those which he was capable of earning. In other words he could not recover loss of earnings for any period beyond which at the time of the hearing of the case, it was thought he would live. But Lord Wilberforce pointed out that in Benham v. Gambling there was no claim for loss of future earnings.

It was Lord Wilberforce’s opinion that on balance the cases which did deal with a claim by a living person for earnings during the lost years decided otherwise.

In the same case Lord Salmon said,

“One of the factors which however the common law does not in my view take into account for the purpose of reducing damages is that some of the earnings lost as a result of defendant’s negligence would have been earned in the lost years.”

He cited the bases of Phillips v. London and South Eastern Railway Company [1879] 5 QB 78. He said of this case:-

“I am not at all surprised that it never occurred to that distinguished court (Brett and Cotton LJJ) that the lost years should be ignored in assessing damages for loss of earning. Nor that it did not occur to Sergeant Ballentine who appeared for the defendants. In my opinion to ignore the lost years would be to ignore the long established principles of the common law in relation to the assessment of damages.”

He then considered the leading cases since Phillips, both for and against, and concluded that the only two cases against Harris v. Bright’s Asphalt Contractors Limited [1953] 1 QB 617 and Oliver v. Ashman, (above) were wrong and should be overruled.

Lord Scarman said that he agreed with Lord Wilberforce, Lord Salmon and Lord Edmund-Davies “in thinking that the decision (in Oliver v. Ashman) was based on a misconception of what this House had decided in Benham v. Gambling” , and was wrongly decided. Only Lord Russell, who did not dissent,
said that he considered the matter: “more suited for legislation than judicial decision by this House in the manner proposed.”

It is, I think, clear that their Lordships themselves (except perhaps for Lord Russell) did not think they were law making. They concluded that the decision in Oliver v. Ashman was wrong, and a misstatement of the common law. They then restated the common law as it had been before that decision.

It is open for me to say that I decline to follow the decision in Pickett because I am not bound by it. However, my own view is identical with that of my learned brother Kapi JA and I cannot express it better than he did in the unreported Papua New Guinea case of Wahgi Savings and Loans Society Ltd v. Bank of South Pacific Limited SC 185 25th November 1980, in a passage quoted by Miles J. In Vian Guatal (above):

“The common law principles decided by the lower courts in England may not be declaratory of the common law until they reach the highest court in England, the House of Lords. Any decisions by the lower courts regarding principles of common law must be viewed with this in mind. If after Independence 1975 the House of Lords or another competent court in England declares the decision of a lower court to be bad law or not correctly deciding the common law principles the courts here would follow the latter decision.”

Kapi JA did not say that the courts were bound to follow the latter decision but that in these circumstances it would be followed. I think that is the correct approach and it is the one which I favour.

The next three grounds of appeal attack the assessment of the award for loss of future earnings on the ground that (a) the sum deducted for future maintenance of the deceased was inadequate, (b) that the 4% discount rate which was applied was too low; and (c) that the total award was manifestly excessive.

In assessing the damages for loss of earning capacity the learned Chief Justice followed the approach of the High Court of Australia in Fitch v. Hyde-Cates [1982] HCA 11; [1982] 39 ALR 581 at 592 where Mason J said:-

“However, there are solid grounds for thinking that the true measure of the deceased’s loss is not the amount which he would have in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probable living expenses to enable him to earn future wages. As this court has said on many occasions in the past, the deceased is entitled to compensation for his loss of earning capacity, not loss of wages. This loss of earning capacity is reflected in a loss of earning capacity or perhaps a reduced earning capacity in the years of life that remain and a loss of earning capacity in the years of which the victim has been deprived. Once the relevant loss is identified as a loss of earning capacity there is a difficulty in saying that there should be deducted future, expenditure on the living expenses of the deceased’s dependants as well as future expenditure on his own living expenses which should be regarded as an essential condition of the exercise of his earning capacity.”

Mr Molloy has asked us to apply the approach in White v. London Transport Executive [1982] 1 QB 489 where the amount assessed as lost earnings was deemed to be what remained after deducting from the net earnings the cost of maintaining the deceased in his station of life, and he asks us to interpret this in the light of Harris v. Empress Motors Ltd (1983) The Times LR July 18th where the English Court of Appeal said that in general according to circumstances the proportion to be deducted would be greater under the Law Reform Act than under the Fatal Accidents Acts.

From the report in The Times it seems that the sole basis for that decision was that if the deceased was a bachelor the total cost of his housing would be deductible under the Law Reform (Miscellaneous Provisions) Act 1934 whether or not it was considered that he would later marry, whereas in a claim under the Fatal Accidents Acts only a proportion of this expense would be deducted.

Whether or not we would follow Harris in such circumstances does not arise in the present case, since the deceased was living with his wife in family accommodation on which no monetary value could be put. It might be as Mr Molloy contends, that this, together with the deceased’s food, is one of the benefits to be deducted from the $5 to $30 a month deceased gave to his mother. I have considered carefully whether, if Mr Molloy is correct, this is a good ground for a reassessment of these damages.

The ground upon which an appeal court will upset damages are those set out in the well known dictum of Lord Wright in Davis v. Powell Dyffryn Associated Collieries [1942] AC 601 at 617. These are:-

“only when the judge has acted on a wrong principle of law or has misapprehended the facts or has for other reasons made a wholly erroneous estimate of the damage... The scale must go down heavily against the figure attacked, if the appellate court is to interfere.”

Such, in my view, is not the case here.

The question of the discount rate to be applied, to balance the fact that damages are being awarded now whereas wages would have been earned over a period of years, has caused the courts difficulty for some years. It would be a financial genius who could forecast the trend of future interest rates and inflation. In Taylor v. O’Connor [1971] AC 115 the House of Lords considered that the discount should be at “interest rates appropriate to times of stable currency such as 4% to 5%.” Mr Molloy suggests that the rate in Solomon Islands should be 6% on the basis of the decision in Todorovic v. Waller [1981] HCA 72; [1981] 37 ALR 481. In Todorovic the High Court of Australia examined the matter carefully. It took into account the probable yield on a reasonably safe investment at the date of the award and the probable tax. It disregarded the possibility of inflation and concluded that in Australia a fair rate of discount was 3%.

I understand that a figure of 6% has been set in Papua New Guinea but as I do not know the reasons for this figure that knowledge is of little help. In assessing an appropriate figure for Solomon Islands, the learned Chief Justice considered the ratio decidendi in Todorovic, took into account the rate of 4% to 5% applied in the United Kingdom, and then said:-

“I have had no evidence about the notional yield of investment or as to tax, although the sums involved in this case would indicate an extremely low tax if any at all.... The low yields available in the unsophisticated investment market of Solomon Islands and the lack of tax would probably cancel each other out ... Doing the best I can I have come to the conclusion that is the appropriate discount rate for Solomon Islands.”

We have no more information than the learned Chief Justice and I am not in a position to say that 4% is wrong. I would add that neither am I in a position to express the opinion that it is right. All I can say is that pending information which would justify varying it, I feel bound to accept the Chief Justice’s assessment. It may be that at some future time the Court of Appeal will be put in. possession of facts and figures which will enable it to come to a definitive decision. Meanwhile it is my view that the discount of 4% must stand.

I must now consider the total sum awarded for loss of future earnings.

I have already said that I see no ground for varying the amount to be deducted for deceased’s personal expenditure and the 4% discount rate. Nor can I see any fault in the finding that the deceased would probably have worked another 35 years. He died at the age of 22, a man, it seems of some business acumen and working ability. Part of his earnings came from family agricultural enterprises in which he appears to have played a leading role, and part from wages earned at the Variana Plantation where it appears there was always a job open for him. He was in good health.

The learned Chief Justice applied the 4% discount rate to this 35 years and obtained a multiplier of 18.66 years. He multiplied the earning capacity of $384 by this number and reached a figure of $7,165.44. He then considered a reduction for contingencies but decided that it' would be cancelled out by the real possibility that the deceased’s earning capacity would improve over the years. I can find no fault in this reasoning and these calculations.

This leaves the question of the assessment of a net income of $384 per annum. Mr Molloy argues that this was based on a calculation of gross income of $48 per month for twelve months of the year. But, he submits, deceased received this income only when working for the Variana Plantation where he worked for only 8 months in two years. Mr Molloy submits that his earnings when not working at the Plantation would have been far less.

The learned Chief Justice considered that deceased probably decided when and when not to work on the Plantation according to the state of the crops at his home. He thought that when the work on the crops was as valuable as the work on the Plantation, then deceased worked at home. This may or may not be true. On the other hand it does not seem to me to be unreasonable, and there is no conclusive evidence that deceased’s work at home was less valuable than his work on the Plantation I would again apply the principles enunciated by Lord Wright, and say that the scale does not down sufficiently heavily against this assessment to merit interference.

The last three grounds of appeal are concerned with the claim of the dependants under the Fatal Accidents Acts 1846-1959.

The learned Chief Justice assessed the total value of deceased’s contribution to his dependants at $32 per month to be divided between nine dependants. He took the view that the greater part of this would have gone to the three claimants. He assessed this at $20 per month. This gave him a figure of $600 plus 4% interest making a total of $660 for claimants’ pre-trial dependency.

In assessing post-trial dependency the learned Chief Justice took into account a probable rise in dependency of $2 resulting from the increasing age of deceased’s younger brother enabling him to do a larger amount of productive work outside the house. He took into account that the young widow of 19 years of age had a good chance of marrying again. He also took into account the future position of the young child and the 48 year old mother and decided upon a multiplier of 15 years discounted at 4% to 11 years. From this he deducted 2 1/2 pre-trial years on the authority of Cookson v. Knowles [1987] 2 All ER 604 to reach a final multiplier of 8 1/2. The resulting figure for claimants’ post-trial dependency was thus $2244 and for total dependency $2904. These he apportioned among the three dependant/claimants at 45% to the wife, 35% to the child and 20% to the mother. The wife’s share was $1306.80. Of this the wife would receive nothing because she had already received a greater amount under the Law Reform (Miscellaneous Provisions) Act and was therefore no longer dependant upon this award. The child’s share was $1016.40 and the mother’s $580.80.

Appellant attacks these figures on three bases. First, that the learned Chief Justice was wrong in not giving credit on behalf of the wife for the share of the deceased’s produce which she received and/or for the support she received from the deceased’s relatives. Under this head Mr Molloy has argued, if I understand him correctly, that (a) the wife was now receiving the whole of the deceased’s share of the family reduce and other support from the deceased’s relatives and (b) that part of the money, the $32 which deceased contributed towards the living expenses of his dependants, came from family enterprises which had lost nothing by deceased’s death, therefore the loss to the dependants on this score was only half that calculated by the learned Chief Justice.

In respect of the first leg of this ground of appeal the learned Chief Justice adopted the reasoning of Jackman J in Rawlinson v. Babcock and Wilcox [1967] 1 WLR 481 at pages 436 and 487.

“but the courts are always astute to guard against the fallacy that having regard to the death duties a family is better off without their breadwinner than it is when he is alive... And also against the fallacy that purely arithmetical calculations are capable of giving the answer ... In particular contributions to the family of a deceased man which arise fundamentally from motives of charity and benevolence must be ignored even though in one sense these contributions could not have been made but for the death.”

The learned Chief Justice considered that any share and extra support that the widow is now receiving from the family are charitable or benevolent contributions which would be excluded from his calculations. It is my view that he was correct.

The matter of the family enterprises presents some difficulty. The evidence - which was not resolved - was partly that the most capital-consuming project, the cocoa project, had failed (PW 1 Vincent Tanda himself) and partly that it is still going (PW 2, deceased’s wife). Mr Molloy points out that these projects represent capital a share of which devolves on the wife. That may be so, but I think we are here up against the “fallacy that pure arithmetical calculations are capable of giving an answer”. It is clear that deceased’s death is a great loss to the enterprises, and it seems at least possible that without him they will go downhill. I cannot see my way to reducing this loss by 50% as Mr Molloy suggests or at all. The calculation is of necessity approximate and largely guess-work. I cannot see grounds of sufficient clarity and intensity to persuade me to substitute a different guess at a different approximation.

The second basis is that the dependants numbered fifteen in all and not the nine upon which Mr Molloy submits the share of the three claimants was calculated. He arrives at this figure of fifteen dependants by counting deceased’s mother, wife and child, four brothers and two sisters and Libero his cousin together with Libero’s wife and four children, The evidence of PW 3, deceased’s mother supports this contention. The learned Chief Justice in his judgment says:-

“This money was used and so intended by the deceased to be used in partial support of the younger brothers and sisters and Libero and his family (another six persons).”

It therefore might appear at a casual glance that the learned Chief Justice considered the dependants to be, the mother, the wife and the child plus another six persons, making a total of nine only. This is the reading we are urged by Mr Molloy to make. However, closer scrutiny reveals that there is at least the possibility that the phrase ‘another six persons’ refers only to Libero and his family and not to the younger brothers and sisters as well. I have come to the conclusion that this was in fact what was meant. I find it impossible to believe that so careful and meticulously considered a judgment contains the error claimed by Mr Molloy. I am strengthened in my opinion by the proportion of total dependency allotted to the mother, wife and child. Had there been a total only nine dependants I could have accepted a higher proportion. As it is, I believe the proportion allocated to the three immediate members of deceased’s family, to be realistic, taking into account the total or almost total dependency of the mother, wife and child, the complete independence (within the context of a mutually supportive family group) of the two older surviving brothers, Vincent and Sotera, the future independence of the younger brothers and the sisters as they approach maturity and the increasing dependency of the child as it grows into its teens.

This award is more open to question. Mr Molloy cites the proportions between mother and child obtaining in England. It is my view that these are irrelevant. The social system and family arrangements in England bear little relation to those in Solomon Islands. Vincent Tanda told the court that if the wife married again, the child would remain with his family. The reason for a lower apportionment in England is the expectation that the mother will expend a part of her share on the child, who will remain in her care. The evidence before us is that in Solomon Islands this would not be the case if the wife remarried.

In assessing the share of the child as high as 35% the learned Chief Justice took this into account. He was of the view that there was a likelihood of the young wife remarrying and he wished to ensure that a proper proportion of the award was spent on the child whatever the future held in store for the wife. This seems to me to be an eminently reasonable approach.

To sum up briefly my conclusions on the main points of law at issue, I am of the view that in a claim under the Law Reform (Miscellaneous Provisions) Act 1934 the common law of Solomon Islands provides for a conventional sum for loss of expectation of life, and also damages for lost earnings during the years the deceased would have lived but for the accident causing his death, these lost earnings to be calculated by deducting from net notional earnings for the ‘lost years’ the amount deceased would have spent on himself alone to maintain his standard of living. I find no fault in the assessments or calculations of the High Court such as would persuade me that they should be varied. I would dismiss this appeal.