Maximus International v Iputu [2008] SBCA 3; CA-CAC 13 of 2007 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal Case No. 13 of 2007 (On Appeal from High Court Civil Case No. 289 of 2001)
DATE OF HEARING:	Friday 11th July 2008
DATE OF JUDGMENT:	Friday 18th July 2008
THE COURT	Williams JA, Goldsbrough JA, Adams JA
PARTIES:	MAXIMUS INTERNATIONAL -V- AMBROSE MOTUI IPUTU, LESLEY TANO, CHARLES THEGNA AND HOPKIN PETER NOMI
ADVOCATES:
Appellant:	J. Sullivan QC & T. Kama
Respondents:	J. Apaniani
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1 - 7

JUDGMENT OF THE COURT

1. On 1 September 2004 the High Court handed down a judgment wherein the trial judge determined liability in respect of claims for conversion and trespass relating to logging operations that had taken place in Isabel Province, more specifically on land known as Banisokeo land also referred to as LR 690. There were two defendants in that action, the first defendant Maximus International Limited, now the present appellant, and the second defendant Reubenson Havi and Martin Matai (trading as Pogu Enterprises Company).
   
2. The Plaintiffs in that matter, now the respondents to this appeal hold the fixed term estate in that property (referred to hereinafter as LR 690). Within the judgment in their favour, which is not the subject of this appeal, various finding were made in relation to conversion and trespass. Those finding have never been the subject of any appeal.
   
3. Part of the judgment of 1 September 2004 referred the question of damages for trespass for assessment. That assessment took place before a judge of the High Court on 8 March 2007, an order was made on 9 March 2007 and reasons for the decision published on 20 April 2007. It is that assessment which is the subject matter of this appeal.
   
4. The orders made were in the following terms:-
   
   1. That judgment is given for the Plaintiffs against the First and Second Defendants ("the Defendants") jointly and severally in the sum of $4,220,000.00 as damages for trespass to LR 690.
      
   2. That judgment is further given in favour of the Plaintiffs against the Defendants jointly and severally in the sum of $72,159.76 as damages for the loss of the 51 logs felled and left in the bush in LR 690.
      
   3. That interest is awarded at 5% per annum on the damages awarded in orders 1 and 2 above commencing on the date of issue of the writ.
      
   4. That the First and Second Defendants jointly and severally pay the costs of the Plaintiffs of, and relating to this case, to be taxed on solicitor client basis if not agreed.
      
   5. That interest is awarded at 5% per annum on the costs awarded in order 4 above commencing on the date the assessment was first submitted to the Defendants after agreeing to, or taxation of, the costs.
      
5. A major ground of this appeal as brought relates to the question as to whether the findings of the original trial judge amount to the present appellants being joint or several tortfeasors, for the decision arrived at during the assessment suggests that the judge dealt with assessment on the basis that this was a joint tort.
   
6. It is clear from the reasons for judgment of the trial judge that these torts were not committed jointly, but as consecutive several torts. There was indeed no evidence to suggest otherwise. Within the judgment there are clear findings that the appellants trespassed the one after the other and converted trees to their own use at the time of their respective trespass. These findings are supported within the reports of the various Forestry Department officials who produced report to the court that were admitted into evidence. From those reports the trial judge based his finding that the present appellant trespassed from June to August 2001 and the second defendant (which is not an appellant in these proceedings) thereafter.
   
7. At the hearing of this appeal counsel for the Respondents conceded that the ground of appeal relating to joint or several tortfeasors should be successful given the findings of the trial judge. That concession, on our view, was well founded and properly made. That ground of appeal is upheld.
   
8. Consideration then needs to be given to the statement found in the assessment judgment at page three, paragraph three wherein the judge stated:-
   

"Where it is impossible to particularise the damage caused by individual trespassers but such damage is clearly the trespassers fault, the law expects the trespassers to be severally and jointly liable responsible for the damages caused."

It may well be that this misstatement of the law caused the assessment judge to fall into the error identified above. In our view, as demonstrated in Bank View Mill v Nelson Corp & Anor [1942] 2 All E.R. 477, where it is impossible to particularise damage caused by two or more tortfeasors not acting jointly, the law requires that damages be apportioned equally.

9. It therefore becomes necessary to examine the actual damage to determine whether in this instance it is possible to particularise the damage cause or whether the damages must be simply apportioned equally.
   
10. In his careful and considered judgment on the matter at trial, the Chief Justice made several findings in relation to the trespass with particular reference to the number of tress felled and the time during which each of these two trespassers remained on the land. He based those finding on the reports of Forestry Department officials, inter alia Messrs Horokou, Rinau, Mosese and Papua. Those reports variously identified trees felled, the area of each trespass and the total extent of the damage caused. Those findings and the material which supported them are not challenged in this appeal.
    
11. It is of particular importance that the findings of the trial judge be fully taken into account in the assessment process. Of those findings the most significant are:-
    

"From April/May 2001 to August 2001 any trespass committed must be attributed to Maximus. Any trespass committed thereafter to November 2001 is to be attributed to Pogu Enterprises." (page 8 of the trial judgment)

"There is no evidence to suggest or implicate anyone else who could possibly have removed those logs" (referring to the 36 tree stumps identified in the Rinau/June 2001 report

"The report not only estimated the area of trespass as being about 100 metres long and 60 metres wide but it made clear observations of attempts by the survey team of Maximus and landowners of LR691 of interfering with the original boundary. The report also noted two skidding tracks 174 metres and 64 metres long. The number of logs removed was 36 and volume estimated at 158.400 m³ using the average rate of 4.4 m³ for Isabel Province." (which report was accepted).

Other findings made relate to the trespass committed by Pogu and so are not referred to here.

12. Given those findings at trial, this is, in our view, not a case where it can be said that it is not possible to particularise the damage caused by each tortfeasor. It is clearly possible to particularise the area occupied in the trespass, the number of trees felled, and the extent of the skidding tracks. We agree that it is not possible with mathematically certainty to attribute any specific amount to the felling of specific tress, but, absent any evidence to suggest that the activity undertaken by each trespasser, each being that of trespass with a view to felling and extracting timber, was conducted in any way more or less damaging than the other, it is possible to determine the proportionate responsibility of each of the trespassers having regard to comparative figures. Whereas the appellants constructed 238 metres of roading (compared to 5.946 km), felled 36 trees (compared to 793), trespassed within an area of 0.6ha (compared to a total area trespassed of 422.5 ha), the second defendants in the original action were responsible for the remainder.
    
13. Evidence of the value of particular damage was also before and accepted by the trial judge, as was the total value of damage. None of this evidence was seriously challenged during trial and can therefore be used as a sound starting point for the assessment, as indeed the assessment judge quite properly did. From that evidence, assisted with reference to what was exhibit 9 within the trial, it is clear that some of the damage could only be attributed to the second defendant. Reference in the damage assessment report prepared by Mr. Horokou to the log yards constructed within those areas where trespass was found to have been solely by the second defendant can only be attributed to the second defendant ($950,000) and reference to watercourse crossing structure ($850,000), again solely within areas of trespass of the second defendant, must be similarly attributed. This leaves a balance of the total estimated damage, said to be $4,220,000, of $2,420,000 to be apportioned.
    
14. Again relying upon comparative figures, the area of trespass attributed to the appellant is 1.4% of the total. The number of trees felled by the appellant represents 4.34% of the total. The length of road constructed represents 4.002% of the total.
    
15. One further aspect of the order of the judge appealed remains to be considered and that is the order relating to the 51 trees felled which remained on the land. Those logs were not recorded in the first report undertaken in June 2001 and from that it is possible to sat that there were the result of the trespass of the second defendant and not of the present appellant. The order relating to payment of $72,159.76 representing the value of those wasted logs can only stand as against the second defendant and not as it is presently expressed as jointly and severally.
    
16. Environmental damage is itself difficult to assess. The certainty that may exist when other forms of damage are caused is lacking in this area. However this damage assessment was not seriously challenged in these proceedings and can form the basis of an award of damages. As submitted by the respondent, logging is not only about the constructing of roads and actual trees felled but the presence of bulldozers and the haling of trees from the place they fell to storage areas outside of the area in question. These are quantities which remain unknown or unstated. For that reason we do not feel that an arithmetical calculation based on the above percentages will adequately deal with this matter. But given the respective extent of the tort committed against the respondents to this appeal, we are of the view that it would be just to order that this appellant pay an amount of damages equal to 10% of the lower figure above, that is to say 10 % of $2,420,000.
    
17. The second defendant in the original proceedings and the subsequent assessment has not appealed against the orders made against them and therefore those orders as against them remain. Whatever action they may choose to take is a matter for them, but no doubt in the event that action is taken the views expressed herein will be taken into account. The orders of this court in relation to the present appellant are:
    

The appeal is allowed and orders 1 and 2 of 8 March 2007 are set aside.

Judgment is given in favour of the respondent against the appellant in the sum of $242,000 as damages for trespass.

Order 3 is varied to the extent that reference to order 2 is deleted and

Costs of this appeal will be paid by the respondent.

Williams JA
Vice President

Goldsbrough JA
Member

Adams JA
Member