Official Administrator for Unrepresented Estates v Allardyce Lumber Company Ltd [1980] SBHC 9; [1980-1981] SILR 66 (25 August 1980)

[1980-1981] SILR 66

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 26 of 1980

OFFICIAL ADMINISTRATOR FOR UNREPRESENTED ESTATES

-v-

ALLARDYCE LUMBER COMPANY LIMITED

High Court of Solomon Islands
(Daly C J)
Civil Case No. 26 of 1980

25th August 1980

Damages on death - proper award for loss of expectation of life - award for loss of expected earnings - effect of section 27(1) (a) of the Workman’s Compensation Act 1977 on damages - meaning of “shall take into account” and “in respect of the same injury”- meaning of “common law” in Schedule 3 Paragraph 2(1) of the Constitution.

Facts:

One Sanga died whilst in the employ of the defendant. The death was due to the admitted negligence of the Defendant or its servants or agents. The Plaintiff sued on behalf of the estate claiming damages for loss of expectation of life of deceased and funeral expenses. At the trial a claim for loss of expected future earnings was added. A sum had been paid under the Workmen’s Compensation Act (Cap. 77) in respect of the death. The Defendant sought to have this amount deducted from any damages awarded but this was resisted by the Plaintiff.

Held:

1. The Law Reform (Miscellaneous Provision) Act 1934 of the UK applies in Solomon Islands.

2. Paragraph 2(1) of Schedule 3 of the Constitution in referring to the “common law” as part of the law of Solomon Islands enables the court to look at judgments in any common law country as well as those of the United Kingdom.

3. The approach adopted to quantification of damages for loss of expectation of life in Benham v. Gambling (1941) 1 All ER 7 should be followed. The conventional sum for Soi6mon Islands for loss of expectation of life should be $1500.00

4. A claim for loss of earnings during years lost by premature death can succeed in Solomon Islands. Pickett v. British Rail Engineering (1979) 1 All ER 774 followed.

5. The words “shall take into account” in section 27 (1) (a) of the Workmen’s Compensation Act required the court to deduct any amount of compensation paid under that Act from damages awarded. Hultquist v. Universal Engineering (1960) 2 All ER 266 followed. The compensation paid under the Act in this case fell within the terms of that section.

Cases referred to:

Flint -v- Lovell (1935) 1 KB 254
Rose v. Ford (1937) AC 826
Benham v. Gambling (1941) 1 All ER 7
Yorkshire Electricity Board -v- Naylor (1967) 2 All ER 1
Kandalla -v- British Airways Board (1980) 1 All ER 341
Pickett -v- British Rail Engineering Ltd (1979) 1 All ER 774
Maclean -v- Carmichael (1969-1970) PNGLR 333
Gillies -v- Harvester Douglas Pty Ltd (1963) QWN 31
Smith -v- Cupples (1962) QWN 47
Basirais -v- Harphul Singh (1962) 8 FLR 173
Singh -v- Tang Fong Omnibus Co. (1964) 3 All ER 925
Rokan Bayava -v- Minisang Wankiar and anor (1978) PNG National Court W.S. No. 614 of 1977
Kamla Wati -v- Mahipal & Anor 7 FLR 62
Tosika -v- Siho Civil Appeal Case No. 5/79
Shelton -v- Collins [1966] HCA 14; (1966) 115 CLR 94
Griffiths -v- Kerkmayer (1977) 51 ALR 387
Flowers -v- George Wimpey and Co. Ltd (1955) 3 All ER 165
Hultquist -v- Universal Engineering (1960) 2 All ER 266

Counsel for Plaintiff: T. Roberts
Counsel for Respondent: F. Waleilia

Daly CJ: On 16th January 1978 JASON MELAKE SANGA (‘the deceased’) died in an accident when he was struck by a truck owned and operated by the Defendant Company. There is no dispute that this unfortunate death of a 24 year old man was attributable to the negligence of the Defendant, its servants or agents and that at the time the deceased was in the employ of the Defendant.

On 1st May 1980 a writ of Summons was issued out of the Magistrate’s Court for the Central District by the Official Administrator of Unrepresented Estates on behalf of the estate of the deceased against the Defendant. The particulars of the claim were brief, perhaps even elliptical. They claimed -

(i) Damages for loss of expectation of life following death whilst in the course of employment with the defendant company;

(ii) Funeral expenses; and

(iii) Costs

There was and is not any dispute about liability and this was made clear to the learned magistrate on the two hearing dates in the Magistrate’s Court. On both occasions the matter was adjourned without hearing. On the second of these dates Mr Roberts’ for the Plaintiff applied, with the agreement of Mr. Waleilia for the Defendant, for the transfer of the case to the High Court as Mr Roberts was at that stage of the view that his total claim might exceed $2000 which was the limit of the jurisdiction of the Principal Magistrate hearing the case. In view of this application and the fact that the case involved points of general importance an order for transfer to the High Court was made on 21st July 1980 under section 41 of the Magistrates’ Courts Act.

At the hearing before me on the 19th August, 1980 Mr Roberts applied to amend to add a further claim to his writ for damages. This claim was for the loss of expected future earnings. There being no objection the amendment was allowed. The formal admissions made under O. 34 r.5 having once more made it clear that liability was admitted, argument was addressed to quantum of damages only. This argument revealed the following issues between the parties.

1. What is the proper award for loss of expectation of life in this case?

Paragraph 1 of Schedule 3 to the Constitution provides that “the Acts of the Parliament of the United Kingdom of general application and in force 1st January 1961 shall have effect as part of the law of Solomon Islands......”. The Law Reform (Miscellaneous Provision) Act 1934 is such an Act of general application and’ is therefore part of the Law of Solomon Islands. This Act provides, subject to important exceptions which do not affect the present case, that, on the death of any person, all causes of action vested in him shall survive for the benefit of his estate. In Flint v Lovell (1935) 1 KB 354 the English Court of Appeal recognized the validity of a claim for damages in respect of the prospective shortening of life due to a defendant’s negligence; in Rose v. Ford (1937) AC 826 this decision was approved by the House of Lords and held to extend to a case where the victim had died prior to the action and the claim was made on behalf of his estate. A right to damages for what is called “loss of expectation of life” in these circumstances has been recognized and acted upon in other jurisdictions as will be seen in the cases which I consider later in this judgment. It is neither disputed that such a claim can be brought in the courts of Solomon Islands nor that the claim is properly brought in the present case. The issue is what is the proper award in the Solomon Islands in relation to such a claim? I am told that, although there have been out of court settlements, this is the first time that a court has been called upon in Solomon Islands to consider this point. It is therefore a matter of some importance and I am indebted to the industry and learning of counsel on this and the other points raised in this case.

The approach adopted by the English Courts can be seen in the case of Benham v. Gambling (1941) 1 All ER 7. In that case the claim arose when a two and a half year old child died in a traffic accident. The judge at first instance, having given careful consideration to the life expectancy of the child and its prospects, awarded the sum of £1200 for loss of expectation of life. The majority of the Court of Appeal held that the award should stand but the House of Lords reduced the figure to £200. The Lord Chancellor, Viscount Simon, in his speech rejected the approach adopted by the trial judge, the Viscount Simon said at p. 12: Vol. 1 of 1941 All ER.:

“The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of measure of prospective happiness. Such a problem might seem more suitable for discussion in an essay on Aristotelian ethics than in the judgment of a court of law, but, in view of the earlier authorities, we must do our best to contribute to its solution. The judge observed that the earlier decisions quoted to him assumed “that human life is, on the whole, good.” I would rather say that, before damages are awarded in respect of the shortened life of a given individual under this head, it is necessary for the court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant’s negligence. If the character or habits of the individual were calculated to lead him to a future of unhappiness or despondency, that would be a circumstance justifying a smaller award. It is significant that, at any rate in one case of which we were informed, the jury refused to award any damages under this head at all. As LORD WRIGHT said in Rose v. Ford (2), special cases suggest themselves where the termination of a life of constant pain and suffering cannot be regarded as inflicting injury, or, at any rate, as inflicting the same injury as in more normal cases. I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness. The test is not subjective, and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects.

“The main reason, I think, why the appropriate figure of damages should reduced in the case of a very young child is that there is necessarily so much uncertainty about the child’s future that no confident estimate of prospective happiness can be made. When an individual has reached an age to have settled prospects, having passed the risks and uncertainties of childhood, and having in some degree attained to an established character and to firmer hopes, his or her future becomes more definite, and the extent to which good fortune may probably attend him at any rate becomes less incalculable. I would add that, in the case of a child, as in the case of an adult, I see no reason why the proper sum to be awarded should be greater because the social position or prospects of worldly possession are greater in one case than another. Lawyers and judges may here join hands with moralists and philosophers and declare that the degree of happiness to be attained by a human being does not depend on wealth or status.”

The learned Lord Chancellor added (at page 13 F):

“These considerations lead me to the conclusion that, in assessing damages under this head, whether in the case of a child or an adult a very moderate figure would be chosen”.

Thereafter £200 became a standard figure until the House of Lords came to consider the question once more in Yorkshire Electricity Board v. Naylor (1967) 2 All ER 1. In that case the House restored an award of £500 which had been increased by the Court of Appeal to £1000. Each speech stressed the need for a “very moderate figures” but acceptance was recorded of the learned trial judge’s efforts to make allowance for the fall in the value of money since the decision in Benham v. Gambling (ab. cit.). Perhaps the difficulties inherent in this aspect of the law are best expressed in the following passage from Lord Devlin’s speech (at page 11):

“The fact is that the whole of this branch of the law has been settled on what LORD WRIGHT in Rose v. Ford (62) called “the basis of convenience rather than of logic”. The law has endeavoured to avoid two results, both of which it considered would be undesirable. The one is that a wrongdoer should have to pay large sums for disabling and nothing at all for killing; the other is that the large sum appropriate to total disablement should come as a windfall to the beneficiaries of the victim’s estate. To arrive at a figure which avoids these two undesirable results is a matter for compromise and not for judicial determination. I cannot think that a judge derives much assistance either from the artificialities - inevitable when convenience is cloaked with logic - in LORD SIMON’s speech (63) or from the customary exhortations to use common sense. It would, I think, be a great improvement if this head of damage was abolished and replaced by a short Act of Parliament fixing a suitable sum which a wrongdoer whose act has caused death should pay into the estate of the deceased. While the law remains as it is, I think that it less likely to fall into disrespect if judges treat Benham v. Gambling (64) as an injunction to stick to a fixed standard than if they start revaluing happiness, each according to his own ideas. I would allow the appeal.”

Subsequently some further movement in the “fixed standard” has been experienced. In Kandalla v. British Airways Board (1980) 1 All ER 341 Griffiths J. assesses (p. 352 d damages for loss of expectation of life at £750. The same amount was awarded in the Court of Appeal in Pickett v. British Rail Engineering Ltd (1979) 1 All ER 774. Counsel for the Plaintiff has also referred to an unreported case in 1980 3 C.L. in which £1250 was awarded under this head but in view of the clear reports in the above cases, I accept that the ‘fixed standard’ in England was £750 in late 1979.

These are, of course, decisions made in England which is a country remote both geographically and economically from the Solomon Islands. However para. 2(1) of Schedule of the Constitution provides –

“Application of Laws

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.”

Insofar as these decisions deal with the principles upon which assessments of damages are made then they are decisions setting out “the principles of the common law”. Where decisions are those of the House of Lords they are decisions of the highest appellate court of the United Kingdom and must clearly be given great weight. It should however be observed that para. 2 (1) of Schedule 3 does not apply the common law of England as part of our law but refers generally to “common law”. It should also be noted that there is no date fixed for the receipt of the common law and therefore decisions of any date must be given consideration. Confusion appears to have arisen with respect to the date of 1st January 1961. This date, however, only appears in Paragraph 1 of Schedule 3 of the Constitution which relates to received statute law. This means, that this court must give appropriate weight to judgments of tribunals in any common law country of any date where such judgments are declaratory of the principles and rules of the common law. In my judgment then decisions of the English or United Kingdom courts are not binding upon this court any more than are the decisions of any other court of any other common law country. I do not, of course, refer here to decisions of the Court of Appeal for Solomon Islands or any court sitting as such or sitting as an appellant tribunal in relation to a decision of the Court of Appeal and I leave open the question of the effect of the other decisions of the Judicial Committee of the Privy Council during the period when that tribunal formed part of the judicial hierarchy of Solomon Islands.

I am supported in this conclusion by the views expressed in Roberts - Wray Commonwealth and Colonial Law pages 563 to 565. I accept that this conclusion does make it difficult to give meaning to paragraph 4(1) of Schedule 3 to the Constitution which provides: -

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

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

Although not binding upon me I intend to follow the decisions referred to earlier in this judgment on the principles of assessment of damages for loss of expectation of life. Subparagraphs (a) (b) and (c) of paragraph 2(1) of the Constitution do not effect my acceptance of those principles. In so doing I am taking a course adopted in other common law jurisdictions closer to home. In Papua New Guinea the decisions were followed in MacLean v. Carmichael (1969-1970) PNGLR 333; in Queensland in Gillies v. Harvester Douglas Pty. Ltd (1963) QWN 31 and Smith v. Cupples (1962) QWN 47 (elsewhere in Australia the claim for loss of expectation of life having been abolished by legislation); and in Fiji in Basiran v. Harphul Singh (1962) 8 FLR 173.

It then becomes necessary to consider what is the proper figure for such damages in Solomon Islands and in this case. As to assessment of actual quantum of damages it is obviously desirable for every jurisdiction to reach its own “conventional sums” as “the starting point of the voyage of assessment” as Lord Devlin has put it (Yorkshire Electricity Board v. Naylor (ab. cit.) at p. 11).

In the Privy Council case of Singh v. Toong Fong Omnibus Co. (1964) 3 All ER 925, the case in which an appeal was made against the amount of damages for personal injuries awarded by a Singapore Court, Lord Morris of Borth-y-Gest said (at page 927 F) that one consideration their Lordships had in mind was –

“that to the extent to which regard should be had to the range of awards in other cases which are comparable, such cases should as a rule be those determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist.”

In Solomon Islands we do not have as yet a range of awards in negligence cases, either those which result in death or those resulting in lesser personal injuries. We must therefore endeavour, so far as our limited resources of law reports permit us, to have regard to the determination of our neighbours in the Pacific, as well as those in other common law jurisdictions where less similar conditions obtain. As far as damages for loss of expectation of life are concerned ‘social economic and industrial’ matters do not play such a great part as they might in other cases as one is not attempting to quantify loss of pecuniary prospects but attempting the almost impossible task of putting a money value on prospective happiness. This as Viscount Simon pointed out (Benham v. Gambling, ab. cit. at p. 13 F) is “attempting to equate incommensurables”. Bearing in mind the principles above set out I must however make the attempt to equate incommensurables for Solomon Islands.

As I have already indicated in the very different social, economic and industrial circumstances of England the courts have reached a conventional figure of £750 which fits Lord Simon’s requirement of being very moderate. In Papua New Guinea, Frost J. in MacLean v. Carmichael (ab.cit.) considered the appropriate figure for that country in 1970. After taking into account a level of award in Queensland of £750 at that date and the very different circumstances which obtained in Papua New Guinea the learned judge reached a sum applicable to all persons in the Territory (as it then was) irrespective of race of $800. In Rokan Bayava v. Minisang Wankiar & anor (1978) (Unreported P.N.G. National Court. W.S No. 614 of (1977) Wilson J. followed Yorkshire Electricity Board v. Naylor (ab. cit.) in deciding that the fall in value of money since the MacLean case (ab. cit.) should lead to an increase in the conventional sum to K1500.

In Fiji, insofar as our rather incomplete reports have revealed to the researches of counsel, the courts seem to have earlier reached a figure close to the English conventional sum as in Kamla Wati v. Mahipal & Anor. 7 FLR 62 in 1957 the sum awarded was £300 and in Basiran v. Harphul Singh (ab. cit.) the figure was found to be £200 although in the latter case this sum was said to be generous in view of the heart condition of the deceased.

I may also get a scintilla of assistance from the custom of Solomon Islands. In Tosika v. Siho (1979) (Civil Appeal Case No. 5/79) a claim was in the first instance made in the Magistrates’ Court for compensation payable under customary law to a line-for the death of one of their ‘number The claim made was of the equivalent of $1400. The magistrate awarded $1000. However this award was set aside on appeal for reasons unrelated to the quantum.

It is agreed by both counsels that this present case is a case for the conventional sum; there being no exceptional features. I have given the amounts reached in other jurisdictions every consideration and gleaned such assistance as I can from the Tosika case. In my judgment the reasonable sum for loss of expectation of life in Solomon Islands in 1980 and hence in this case should be $1500. I therefore make an award of $1500 under head (i) of the claim on the writ of summons.

2. Is the Plaintiff entitled to damages for the loss of expected earnings of the deceased?

In the passage from Benham v. Gambling (ab. cit.) set out above Viscount Simon expressly excluded future pecuniary prospects from the calculation which he made. One claim which could be made, were loss of pecuniary prospects to be included, would be that, by reason of the premature death of the victim, he had lost the opportunity of accruing profits from his earnings in the years of his employment which he might otherwise have served. (Hence these claims are sometimes called claims ‘for lost years’). Such a claim is now made in this case.

In Oliver v. Ashman (1961) 3 All ER 323 the English Court of Appeal regarded the terms of Lord Simon’s speech as preventing them from upholding that a claim for loss of future earnings could be separate head of damages to that for loss of expectation of life.

This decision did not receive favour in another common law jurisdiction. In Skelton v. Collins [1966] HCA 14; (1966) 115 C.L.R. 94 the High Court of Australia refused to follow Oliver v. Ashman (ab. cit.) and concluded that a claim for loss of earnings during lost years was sustainable. The court added that the amount to be recovered should be the amount which would have been earned less an estimated sum to represent the victim’s probable living expenses in those years. This decision was followed by the same court in Griffiths v. Kerkmayer (1977) 51 ALR 387.

Were it necessary to do so I would be prepared to follow these cases rather than Oliver v. Ashman (ab. cit.) but as the House of Lords in Pickett v. British Rail Engineering (1979) 1 All ER 774 has now come to the conclusion that Oliver v. Ashman (ab.cit.) should be over ruled and that a claim as at present considered can be made, it is not necessary for me to do so. In that case the House were considering a claim by a plaintiff who having commenced the action in fact died before the trial. He was therefore referred to as a “living plaintiff” (see Lord Wilberforce at p. 780a).

The argument that the benefit of such a claim was restricted to a “living plaintiff” was subsequently rejected by Griffiths, J. in Kandalla v. British Airways Board (1980) 1 All ER 341 (at pages 349, 351) for reasons that seem to me entirely cogent.

On the basis of these authorities on the common law both in England and Australia I have no hesitation in concluding that a claim for loss of earnings during the years lost by the premature death of a victim can succeed in a court of Solomon Islands. I also follow the High Court of Australia (Skelton v. Collins, ab.cit.) in holding that any sum calculated as lost earnings must be reduced by the amount of an estimated sum to represent the victim’s probable living expenses in those years.

The plaintiff therefore also succeeds in his claim under head (ii) of the writ as amended. The amounts to be awarded have not as yet been quantified and, in view of the lateness of the amendment, I was not prepared to consider the details at the trial without the parties having an opportunity to agree the facts. I therefore order that damages under this head be assessed by the Principal Magistrate, Central unless earlier agreed.

3. What is the effect on the award of damages of section 27(1) (a) of the Workmen’s Compensation Act (Cap 77)?

Section 27 (1) (a) provides as follows:-

“27 - (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Ordinance shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Ordinance:

Provided that –

(a) if damages are awarded after compensation has been paid the amount of damages awarded in such proceedings shall take into account the compensation paid in respect of the same injury under this Ordinance.”

It is agreed that the sum of $1814.40 has been paid under the Workmen’s Compensation Act in respect of the death of JASON SANGA. Counsel for the plaintiff contends that despite the terms of section 27 (1) (a) that sum is not to be deducted from damages which may be awarded in these proceedings. He says, first, that the words “take into account” impart a discretion to the court whether or not to make a deduction. The same phrase appears in section 2 (1) of the United Kingdom Law Reform (Personal Injuries Act 1948 which requires that -

“In an action for personal injuries... there shall in assessing those damages be taken into account ....”

The section goes on to specify certain benefits that are to be taken into account. In Flowers v. George Wimpey & Co. Ltd. (1955) 3 All ER 165 it was submitted to Devlin. (as he then was) that these words “take into account” gave him a discretion as to the way to value those benefits and he was asked to exercise his discretion in, certain ways. The learned judge said (at p. 173 B)-

“In my judgment I have no discretion which would justify me in trying to evaluate matters of this sort ......” Counsel for the plaintiff relied on the decision of SLADE J., in Stott v. Sir William Arrol & Co. Ltd. (2). SLADE J., thought that the words “taken into account implied a discretion, and he stated that he did exercise his discretion. I think that he was using the term in a very limited sense. I dare say there may be a discretion in the sense that the court is not obliged to make exact calculations but can arrive at a round sum; I do not think that SLADE, J., can have meant that there was a discretion in the wider sense for which counsel for the plaintiff contends. Accordingly, I conclude that the argument of counsel for the defendants succeeds, and that there should be judgment in this case for £25 only.”

This view, that “shall take into account” meant that the same as “shall be deducted”, was reiterated by Sellers, L.J., in Hultquist v. Universal Engineering (1960) 2 All ER 266 at p. 271 H.

In Section 27 (1) (a) of the Solomon Islands Workmen’s Compensation Act the words “shall take into account”, in my judgment, require this court to deduct the amount of compensation awarded. On my construction of that section there is no discretion whether or not to do so and, as the sum of $1814.40 has been paid and no round figure is required there is no question of my exercising my discretion even to the limited amount suggested by Devlin J. in the passage above set out.

The second point which counsel for the plaintiff makes is that the words “in respect of the same injury” in the section 27(1)(a) contemplate a surviving plaintiff who has suffered personal injuries whereas in this case we have a plaintiff suing on behalf of an estate of a man who has died. However the section makes no reference to the identity of the plaintiff it merely says “nothing shall prevent proceedings being instituted against the employer” and “if damages are awarded ... the amount of damages awarded.... shall take into account...”. In view of this silence on the matter of plaintiff I do not consider that it can be said that the section excludes a particular plaintiff. In this case there are “proceedings... against the employer” sufficient to fall within the description of the Act.

The compensation to be taken into account must also be in respect of “the same injury” as that for which proceedings are instituted and damages are awarded. In my judgment “injury” contemplates the original event from which liability to compensate flows. It is not restricted to a particular type of consequence of that original injury. In this case, the injury would be the impact of the truck on the deceased. This construction follows from the terms of the Workmen’s Compensation Act. For example, section 6, which deals with compensation in fatal cases, commences with the words “Where death results from the injury...”. This must contemplate both instantaneous death and death which occurs sometime later as a result of the individual injuries which the deceased receives in the accident. In my judgment, therefore, the damages to be awarded in this case are in respect of the same injury for which compensation was paid. This view is supported by the reasoning of Devlin J with which I respectfully agree, at pages 170 and 171 in Flowers v. George Wimpey & Co. Ltd. (ab. cit.).

The final point made by learned counsel was that as compensation payable under the Act went to the dependents (see section 6) and as damages awarded by the court went to the estate, therefore the two could not be regarded as in pari materia. This is really a suggestion that I should exercise a discretion not to take the compensation into account, but, as I have already indicated, I have no such discretion. The legislature requires a court to deduct compensation paid from damages awarded in respect of the same injury; it makes no differentiation as to whom such compensation is paid. This court must faithfully observe that requirement.

In those circumstances I order that any total damages awarded under heads (i) and (ii) of the writ be reduced by the deduction of $1814.40 therefrom.

4. What should be awarded as Funeral Expenses and are they too subject to deduction?

I award an agreed sum of $400 to the plaintiff in respect of funeral expenses claimed under head (iii) of the writ. Counsel for the plaintiff submits that, were the amounts. under heads (i) and (ii) not sufficient to absorb the deduction of $1814.40, nevertheless no deduction should be made from the amount awarded under this head. This point must turn on whether or not this amount is “damages” within the meaning of section 27 (1) (a). No authority was cited for the proposition that it was not. Section 1 (2) (c) of the United Kingdom Law Reform (Miscellaneous Provision) Act 1934 provides expressly that in calculation of “damages recoverable for the benefit of the estate of (a deceased) person... a sum in respect of funeral expenses may be included ”At first sight, then, head (iii) would seem to be “damages” and subject to deduction. I have, however, heard no argument on this point and it may be that it is not necessary to consider it as damages under heads (i) and (ii) may come to a greater amount than the $1814.40 to be deducted therefrom. If they do not and it is sought to make deduction in addition to the £400 awarded under head (iii), I must hear argument on this point.

These being the issues between the parties and my judgment thereon, I make the following orders –

1. That the Defendant pay to the Plaintiff the sum of $1500 in respect of loss of expectation of life of the deceased.

2.That the Defendant pay to the Plaintiff a sum by way of loss of expected future earnings such sum to be assessed, if not agreed between the parties, by the Principal Magistrate, Central District.

3. That there be a deduction from the aggregate sum awarded under orders 1 and 2 of the sum of $1814.40 in accordance with section 27 (1) (a) of the Workmen’s Compensation Act (Cap. 77).

4. That the Defendant pay to the Plaintiff the sum of £400 by way of agreed funeral expenses and that the question of deduction from that amount of any sum as compensation paid under section 27(1) (a) of the Workmen’s Compensation Act be adjourned sine die with liberty to either party to apply for hearing of that question.