HIGH COURT OF SOLOMON
ISLANDS
Civil Case No. 9 of 1991.
LONGA
v
<
SN TAIYO LIMITED
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High Court of Solomon Islands
Before: Daly C.J.
Civil Case No. 9 of 1981
Judgment delivered 18th
January 1982
Action foages for
personal injuries - test for deciding if relf relationship of employer, employee
exists - duty of employer
to provide safe system - measure of damages in
Solomon Islands-considerations to be applied in assessing damages - interest
on award.
Facts
The Plaintiff was injured
whilst fishing on a catcher. The Defendant pleaded guilty in the
magistrates cous court to two
offences under the employment law arising from the
incident. The Defendant also paid Workmen's Compensation to the Plaintiff.
The plaintiff had been engaged by a servant of the Defendant, he was paid by
the Defendant and he regarded the Defendant
as his employer. The catcher
boat was owned by a third party who employed the captain who had day to day
control of the
Plaintiff's work. Payments made in respect of the catcher
boat and its crew were recovered by the Defendant from the third
party.
The hook causing the injury had
been taken by a shark and flew out of the shark's mouth into the Plaintiff's
eye causing
virtual loss of sight in that eye. The Defendant denied
liability claiming in the alternative that it was not the employer
of the
plaintiff or if it was that there was no breach of duty as an employer. The
measure of damages was also in issue.
<
Held:
1. That, on the evidence,
bearing in mhe admissions made by the Dthe Defendant in the magistrates
court, the Plaintiff
was employed by the Defendant (Hollington v.
F. Hewthorn & Co. Ltd (1943) 2 All ER 35 considered. Cameron v
Nystrom
[1893] UKLawRpAC 11; (1893) AC 308 applied).
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2. The injury resulted from the
Defendant's failure as an e an employer to provide a safe system of work and
adequate
safety equipment.
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Damages should be assessed
having regard to be fair to the plaintiff as anvidual to be fair in n
the eyes of the
community and (a) the need to be fair to the plaintiff as an
individual (b) the need to be fair in the eyes of the community
and (c) the
need to be fair to plaintiffs generally.
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(c) What is the measure of
damages to be awarded to the Plaintiff?
As this is the first case in
the Court where damages for personal injuries have been claimelaimed and
disputed, I should
take this opportunity of describing the approach which I
propose to adopt in assessing damages. I have had the advantage of
submissions on the general principles of awards for damages and I am most
grateful to counsel for their assistance. In
particular I should express
gratitude to Mr. Glen, counsel for the Defendant, who has given the court
the benefit of
his experience in Papua New Guinea.
I should say at the outset that
I find that this is a difficult area in which to achieve cogent statements
of principle
that have practical utility. The difficulty springs not from
the need to reconcile the various different expressions of principles
that
have fallen from eminent judges but rather from the fact that courts are
faced with the impossible e task of assessing
in financial terms that which
is without price loss of life, or injuries to body or mind. In earlier days
the assessment
was left to the common sense of a jury who were really
invited to make an intuitive assessment after being directed by a judge
in
rolling phrases that have now become embedded in the law. But does it help
if I direct myself with what has been called
the platitude "that the purpose
of compensatory damages in the action for personal injuries is to put the
victim
in the same position as he would have been if he had not sustained
those injuries, so far as money can do this" (Diplock
L J in Fletcher v
Autocar & Transporters Ltd (1968) 1 All ER 726 at p. 736)? The learned
Lord Justice as he then was) went on to say "But money can never do this". I
respectfully
agree, as there is nothing that can be bought with the money
awarded that can ever take the place, as in this case, of an human
eye.
Where one is dealing with
quantifiable financial loss which flows from the injury then there is
usually no difficulty.
For this reason courts have made their assessment
under various heads in order to make clear as possible their basis of
assessment on each head. The heads adopted have been, for example:
(e out of pocket expenses.
(2) Economic loss in the past.
(3) Economic loss in the
future.
(4) Inability to enjoy the
usual ames of life.
(5) Pain and suffering general inconvenience
(6) Disfigurement.
This listn adaptation of
the heads used by the Papua New Guinea National Court (see for examplxample
Gaudi Kidu v Port Moresby Freezing Co.(1967 – 68) PNGLR 466. The heads
here set out make a larger number of divisions than is some time the case;
often the
divisions are between special (quantifiable pecuniary loss and
referred to as "pecuniary" that is heads (1) and (2)
in the list) and
general (assessment in financial terms of damages for injuries and losses
flowing from the tort which
are not directly quantifiable and described as
"non-pecuniary" that is heads (3), (4), (5) and (6) of the list).
To some
extent economic loss in the future (3) falls between the two categories of
special and general as although the
loss can be actuarially computed in some
cases, the resulting calculation remains a calculation founded on informed
guesses
as to the future. Thus future economic loss is more aptly placed
within the general damage category.
What must be apparent from
reading any list such as that to which I have referred is that there is
considerable over-lapping
between heads; (4)and (5) in the list for example,
are clearly so close as to be inseparable. Equally economic loss in the
future and inability to enjoy the usual amenities of life, one of which is
to work and provide for one’s family, are
also closely intertwined. For this
reason some courts have often preferred merely to assess under two heads of
general
and special damages or non-pecuniary and pecuniary. The dangers of
overlapping between heads of damages were canvassed in Fletcher v Autocar
& Transporters (1968) 1 All ER 726 (‘Fletchers case’).
Before one turns to the
difficulties of assessing non-pecuniary damages, let me return to the facts
of this case. A claim
is made for economic loss under head (3). The
Plaintiff was 20 years of age at the time of the accident. He earned an
average of $50 a month as a fisherman with the Defendant. After the accident
he did not wish to return to the Defendants employer
because he did not wish
to risk injury to the other eye. However, he was able to obtain other
employment. He obtained
temporary employment in a store and then worked on
trial in the bar of the Mendana Hotel earning $39 a month. He was dismissed
after three weeks for absenteeism. He later obtained work as a crewmember on
a ship at $25 a fortnight. The Plaintiff
held this work for eight months. He
now lives at home helping to operate cattle, a coconut plantation
and a store.
It will be observed that the
Plaintiff's employment as a crewr was paid at the same rate rate as that
with the Defendant.
There was no evidence that the Plaintiff had any greater
difficulty in obtaining employment after his eye injury than before.
Nor was
there any evidence that he stopped work as a seaman otherwise than by
choice. In all the circumstances I find
that it has not been established
that the Plaintiff has suffered any future economic loss as a result of his
injury.
Perhaps I should add that on the question of future economic loss in
Solomon Islands I would, if it had been necessary to do
so, have referred to
the interesting article "Compensation for Economic Loss: The Search for
Standards in Papua New Guinea" by Bruce L. Ottley and Josephine F.
Millot Melanesian Law Journal Volume 2 No. 2."
When one turns to the question
of the remaining non-iary elements of the damages the problem is
however mver much greater.
My task is to assess these damages at a proper amount
to be awarded in this jurisdiction. Here it would be particularly useful
to
have some firm basis of principle upon which to found one's assessment of
the measure of damages applicable to accidents
which occur in Solomon
Islands. Some judges have given up the attempt at finding a basis of
principle. Lord Morris of
Borth-y-Gest said in H. West & Son Ltd v
Shepherd [1963] UKHL 3; (1963) 2 ALL ER 625 (“West's case”) at p.631:
"All that judges and courts
can do is to award sums which mush must be regarded as giving reasonable
compensation.
In that process there must be the endeavour to secure some
uniformity in the general method of approach. By common consent
awards must
be reasonable and must be assessed with moderation. Furthermore, it is
eminently desirable that so far as
possible comparable injuries should be
compensated by comparable awards. When all this is said it still must be
that
amounts which are awarded are to a considerable extent conventional."
This empirical approach is
perfectly adequate where one has a body of cases showing what is reasonable,
moderate and conventional
in that jurisdiction. I do not have that advantage
and so I must continue to look for assistance which will enable me to gauge
these matters in Solomon Islands. The first and most obvious matter to be
taken into account is the need to be fair to
the Plaintiff as an individual.
The object of damages is, as we have seen, to endeavour to compensate him
with money
for his personal injuries. In order to assess his loss regard
must be had to the effect of that loss on the individual. The
loss of a left
hand by a carver may be a very different matter to loss of a left hand by a
lawyer.
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But if the lawyer was also a
guitarist in his spare time clearly that fact would have to be taken into
account. These
propositions are widely accepted and in their simple
formulation even trite (see. for example, Lord Devlin in West's case
at p. 638:
"Of course the extent of the
plaintiff's depends upon the standard dard of life to which he or she is
accustomed.")
However the logical consequence of that approach is to have
different scales of damages for the rich person, who has enjoyed
a high
standard of living and the poor person who has not which, as Lord Devlin
goes on to point out, the law does not
permit. (See also Diplock L.J. in
Fletcher's Case at p. 736). The difficulty lies in reconciling these two
approaches
in a country such as Solomon Islands where there are
vast divergences between wealth and living conditions in different sections
of the community: subsistence agriculture on the one hand to be contrasted
with wealthy international business on the
other.”
It was suggested to me in
argument that the way to be fair to the plaintiff was to assess his damages
on the basis that
the Plaintiff should have sufficient money to enable him
to apply it to obtain comfort or solace in respect of his losses
and injuries. Whilst there is some Australian authority in support
of such
an approach (see the cases cited at para 1207 in "Assessment of Damages for
Personal Injuries and Death"
by Harold Luntz referred to by counsel for the
Defendant) it is not one that has appealed to the courts of the United
Kingdom. Lord Pearce said in West’s case at p. 642:
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"First, it is arghat
such damages are given as compensation or consolansolation, and therefore, when
the respondent's
condition is so bad that they cannot, be used by her to
compensate or console, they should either be greatly reduced or should
not
be awarded at all. No authority is cited in favour of such a proposition,
nor can I see any principle of common law
that supports it. The argument
contains the assumption, which in my opinion is fallacious, that the court
is concerned
with what happens to the damages when they have been awarded.
The court has to perform the difficult and artificial task of
converting
into monetary damages the physical injury and deprivation and pain and to
give judgment for what it considers
to be a reasonable sum. It does not look
beyond the judgment to the spending of the damages. If it did so, many
difficult
problems would arise. Similar sums awarded for similar suffering
may produce wholly different results. To a poor man, who is
thereby enable
to achieve some cherished object such as the education of his family, the
sum awarded may prove to be
a more than adequate consolation. To a man who
already has more money than he wants, it t may be no consolation at all. But
these are matters with which the court is not concerned. Whether the sum
awarded is spent or how it is spent is entirely
a matter for the plaintiff
or the plaintiff's legal representatives. If the plaintiff's personal
ability to use or enjoy
the damages awarded for injury and rain and loss of
amenity were a condition precedent to their award, it would be impossible
for the executors of an injured person to obtain such damages. Yet they did
so in Rose v Ford (63) and Benham v Gambling
(61) and many other cases."
In my judgment the court would
be presented withmpossible task if it had to assess what was necessary
to provide
comfort or solace in the future. Would, for example, money to buy
a truck be enough or would an outboard also be required?
Would a person of
miserable disposition be entitled to more than a person who bore his
disabilities cheerfully and so
on? In this respect, then, I prefer to put
myself in company with Lord Pearce and decline to concern with how the money
is to be spent.
Thus o left the situation
of how one can reconcile on the one hand the need to be fair to t to the
plaintiff in giving
him adequate compensation and the desirability that the
law should treat both rich and poor alike.
Bute is in my judgment no
real conflict of one with the other if one regards the variousrious
considerations to which
I will refer as cumulative. My second consideration
would be a need to endeavour to make awards that are fair in the community
in which the court has jurisdiction. It is as part of this consideration
that one takes into account the desideratum
to which I refer to previously.
In West's case Lord Devlin said at page 638 after referring to the
direction given to the jury in earlier cases:
"What is meant by
compensation that if fair and ye full? I think it means this this. 'what
would a fair-minded man, not
a millionaire, but one with a sufficiency of
means to discharge all his moral obligations, feel called on to do for a
plaintiff whom by his careless act he had reduced to so pitiable a
condition? Let me assume for this purpose that there is
normal consciousness
and all the mental suffering that would go with it. It will not be a sum to
plumb the depths of
his contrition, but one that will enable him to say that
he had done whatever money can do. He has ex hypothesis already provided
for
all the expenses to which the plaintiff has been put and he has replaced all
the income which she has lost. 'What
more should he do so that he can hold
his head among his neighbours and say with their approval that he has done
the
fair thing?"
I should perhaps observe that
Lord Devlin was in the minority in that case case but this expression of the test
to be
applied seems to me, with respect, a useful approach.
requiring one to look at a case from a different angle, that of fairness as
seen by the defendant in a particular community.
"This Court must consider
the question for itself: and all the more so, it seems to me, if the
decision in England
was reached after reference only to English decisions,
not to the state of the law elsewhere, and seemingly to meet only economic
and social conditions prevailing in England. And too what is said is less
persuasive when law is as it were fluid and
when the conditions which it is
being developed to meet are not the same in England and Australia. The law
of damages.
especially damages for personal injuries, is of that kind. It is
a branch of the law in which further developments and fresh
refinements in
the application of principles are still going on: and the backgrounds
against which it operates are not
the .same in England and in Australia.
Various circumstances, locally known as existing in any community, such as
welfare
services, pensions, hospital aid, sick pay, rates of wages and so
forth, are taken into account directly or indirectly,
deliberately or unconsciously, by judges and juries when assessing damages
for personal injuries".
The interof the plaintiff
as seen against the background of a developing community have been. een.
discussed in a series
of interesting cases in Papua New Guinea:
Administration of Papua New Guinea v
Carroll
(1974) PNG LR 265 (Carroll s case); Dillingham Corporation of New
Guinea v Diaz (1975) PNG LR 262, (Diaz's case); and Kerr v
Motor Vehicles Insurance (PNG) Trust (1979) PNG LR 251 (Kerr's case).
I do not intend to consider those cases in full as they relate to the
measure of damages to be awarded to expatriates
who suffered injuries within
the jurisdiction a situation with which I am not at present concerned.
However there are
most useful statements of principle in those cases and a
review of the relevant United Kingdom and Australian authorities which
I
have read with great interest.
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In Carroll's cas
Supreme Court of Papua New Guinea was considering anng an award of $65,000 to an
expatriate who suffered severe injuries
in a road accident. The argument
addressed to the court was that in the light of the different economic
conditions in
Papua New Guinea, and in particular the low level of wages,
the standard of damages in that jurisdiction should be substantially
less
than that award elsewhere. The majority of the court held that argument to
be successful and Frost SP J (as he then
was) fixed the proportion between
Australian damages and those in Papua New Guinea
to be 4:3 or
5:4.
However this case has
subsequently suffered severe crim. In Diaz's case the majority
rejected the prhe practice of making a deduction from awards made elsewhere on
the basis is that the
award was to be made in Papua New Guinea and held that
the damages should be assessed "as fair compensation to accord
with (the
plaintiff's) needs". (see per Prentice Deputy C.J. at p. 278).' The learned
Deputy Chief Justice specifically
rejected any consideration flowing from
the general effect which damages might have in insurance premiums.
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Raine J. too relies upon the
oft expressed principle that "the tortfeasor must take the Plaintiff as he
finds him"
(at page 290) in coming to the conclusion that it is the future
conditions of the plaintiff which require emphasis rather than
the
conditions of the country in which the tort occurred.
In Kerr's case the
upreme Court of Justice reaffirmed that the tortfeasor must take the
plaintiff as he s he finds him although it
was accepted (see Raine Deputy CJ at
page 257) that "of course circumstances in this country must be taken into
account, but they are not decisive." I should emphasize that these cases are
concerned with expatriates who were, on the
evidence, due to return to
Australia. They also involved in the. case of Diaz and Kerr paraplegics for
whom treatment
was not available in Papua New Guinea. However it does seem
to me, with great respect, that to place too great an emphasis
on the future
place of residence of the plaintiff and the way in which he will live in
that place of residence is to
diminish, in reality, the consideration of
fairness to the community in which damages are being awarded and to supplant
it with ideas of fairness in another jurisdiction. There must also result,
again in reality, in compensating a person who
chooses to leave the
Jurisdiction to live in a more economically prosperous country out of
proportion to the person who
by choice or otherwise remains in the
jurisdiction. There must be a point in consideration of damages where a
court must
say to itself that a plaintiff must accept that by coming to a
country where the overall economy and development has not progressed
as far
as it has elsewhere he is running a number of risks one of which is that if
he suffers injuries from negligence
he may receive less in damages that
which he might receive n his own country with its greater wealth and
development.
I should add that this is not to say that there is to be any
automatic deduction from damages likely to be awarded elsewhere.
Clearly one
would then have the ludicrous situation of having to decide whose damages
were the starting point. what one
must do is to take into account what is
fair and reasonable within this jurisdiction as well as what is fair to the
plaintiff
in his individual circumstances.
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There is a further
ceration which must be put into the balance. This is fairnesirness between
plaintiffs generally within
the jurisdiction. It is worth repeating what
Lord Morris said in West's case at page 346: "it is eminently desirable that
so far as possible, comparable injuries should be compensated by comparable
awards". This consideration will of
course, overlap with fairness to the
community as, unless there is some form of standard, de defendants s will
not be
able to gauge proper sums to pay out and their advisers will be
unable to give them sensible advise. Thus, in England trial
by judge alone
in personal injury cases has been found preferable to trial by jury on the
basis that some degree of uniformity
in awards will result from the judge's
experience. (See, for example, Ward v. James (1966) 1 QB 273).
However the High Court of Australia as a different view to the courts of the
United Kingdom. In Arthur Robinson (Grafton) Pty Ltd v. Carter (1968)
122 CLR 64 Barwrick C.J. said:
"It is profitable, in my
opinion, in approaching the questioestion whether a verdict of a jury for
personal injuries is
unreasonably disproportionate to call to mind what the
verdict should represent. It ought to be a fair and reasonable compensation
for the injuries received. A fair compensation is, of course, less than the
removal of the disabilities which the injuries
to be compensated entail. It
is compensation to the particular claimant, bearing in mind what he was,
what he now is,
and how he is likely to meet his disabilities. In this
respect I agree with the views of the Supreme Court in Thurston v Todd
((1966) 84 WN (Pt 1) (NSW) 231.) which deny that there is any "conventional
sum" or conventional range upon
which or within which the award of damages
for particular classes of injuries should be confined. Comparisons with
amounts
awarded' in other cases ought not, in my opinion, be used to achieve
so called uniformity but merely used as an assistance
in judging what in the
community at or about the time the matter has to be decided is or
has been regarded as fair: though even for this purpose 'I doubt
that such comparisons have any great utility.
Doubtless, the exercise of judgment by each jury and by individual judges will not pnot produce uniformity.
This is not surprising
and, in my view, need not deployed. The facts and
circumstances of each case vary- indefinitely So often subtly.
The application of judgment to them, is in my opinion, preferable to any
attempt to apply
a rule or to draw a conclusion or discover a norm from
awards made in other circumstances."
Again I take the view, with
respect, that thisoach does not recognise the realities of the
situatiouation in which a judge
find himself when assessing damages, particularly
in Jurisdiction in which there is no prior experience of such assessment.
Recognizing immediately that there is great force in the observation that no
two cases can be identical, there must be
some kind of starting point or
there would be such inconsistencies between awards as to result in a
plaintiff feeling
a sense of injustice when he hears of other awards. I
cannot but say that I have found references to awards given in other
jurisdiction helpful in this case, although they must be seen against what
is considered to be fairness in the community
of the Solomon islands, and,
as we build up our own body or precedents in injury cases, courts will no
doubt find those
precedents of value if merely to give a starting point. L
therefore consider that in assessing non-pecuniary damages. I must
give
weight to each of the considerations to which I have referred. These are:
(1) the need to be fair to the
plaintifan individual;
/p>
(2) the need to be fair in the
eyes of the community; and
I now turn to the actual
assessment of non-pecuniary damages is case. This involves an
an
assessment of heads
(4) Inability to enjoy the usual amenities of life;
(5) Pain uffering and
general inconvenience;
<
(6) Disfigurement.
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Counsel for the Defendant
submitted that there was sfigurement to take into acto account but one had
only to look at the
Plaintiff in the witness box to observe that a virtually
sightless eye constituted disfigurement. However I accept that in
the
absence of any evidence from the Plaintiff that this disfigurement as such a
an adverse effect on his life it is
not a matter to which I give great
weight.
As to pain and suffering the
evidence was that after the incident on the 15th November 1979
the Plaintiff went and laid down on his bunk. He had eye drops put in his
eye and he felt "bad".
His eye was in pain but he remained on the ship and
working until 21st November 1979. Prior to that he had had a
bandage put on the eye at a mission hospital on 16th November, 1979. On 21st
November 1979 the Plaintiff went to Central Hospital. He was detained as an
inpatient for two weeks. The eye was infected
and this settled down over two
weeks. There is no evidence of greater pain and suffering than would
normally be attendant
on such circumstances.
The agreed medical report
before the court shows that as a result of the injury the iris of the right
eye was prolapsed
the lens dislocated and the posterior chamber was opaque.
When the infection had been settled the Plaintiff was virtually sightless
in
that eye and while able to appreciate light was unable to count fingers. The
prognosis of the Consultant Surgeon was
that the chance of regaining
effective sight after such an injury with infection was very small, less
than 10%, although
happily the surgeon observed that sympathetic opthalmitis
(inflammation and loss of sight in the remaining eye) was very uncommon
in
Melanesians. The proposition between the date of medical report (13th August
1980) and the date of trial has not changed
thus far bearing out the
prognosis of the surgeon.
There is no evidence as to the
Plaintiff's particular loss of amenities by virtue of his sporting or other
propensities
and I dealt with head on the basis t at there are no
aggravating features to the lass of amenities that would naturally occur
to
a 22 year old Solomon Islander who has virtually lost sight of an eye and
who has returned to his village and is assisting
in the business earlier
described.
In Official Administrator
for Unrented Estates v Allardyce Luce Lumber Company Ltd (1980) 1 SILR
66 following, the suggestion made by the Privy Council in Singh v Toong
Fong Omnibus Co. (1964)All ER 925 this court looked at awards
"determined.... in a neighbouring locality where similar social economic
and
industrial conditions exist". In that case the court examined awards for
loss of expectation of life by a deceased
plaintiff in Papua New Guinea and
Fiji. However that was a figure which all the cases made clear was
conventional figure
and. nothing more. In personal injuries however there
must be some consideration given to the reasonableness of the figure
awarded.
I have considered the cases in
Papua New Guinea, Australia and the United Kingdom to which I have been
referred. I do
not think that I can get much assistance from custom
compensation awarded in similar cases in Solomon Islands where the basis
of
compensation is often not an attempt t to compensate the victim but rather a
customary amount paid to restore the
peace between the lines of the victim
and the a wrongdoer.
In this ,case having given the evidence before careful consideration and taking into acco account all the e
relevant factors
I have come t o the conclusion , that the proper award for
non-pecuniary or general damages is $5000. As Workmen’s compensation
has
been paid it is necessary by virtue of section 27(1) of the Workmen’s
Compensation Act Cap 77) to take into account such amount as has been paid,
that $1,670. The sum therefore I find is owed by Defendant to the
plaintiff
is $3,330.
There is a claim for interest
in the statement of Claim. In exercise of my discretion under section 3 of
the Law Reform
(Miscellaneous Provisions) Act 1934, L order that the
judgment sum shall include a sum to represent interest at 5 percent per
annum from the date of issue of the writ that is the 7th February
1981 until today.
Jud for the Plaintiff
accordingly with costs.
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