Cheung v Tanda [1983] SBHC 38; [1983] SILR 193 (6 September 1983)

[1983] SILR 193

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 52

CHEUNG

-v-

TANDA

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 52 of 1983

6th September, 1983

Tort - damages - fatal accident - assessment of damages under Fatal Accidents Acts - assessment of dependencies under Law Reform (Miscellaneous Provisions) Act 1934.

Facts

V. was killed in a motor accident. Liability was admitted by the Defendant. V. left a wife who subsequently gave birth to a child. He also supported his mother and other members of his family. V. spent periods in each year working at a plantation earning an average of $48 a month. When at the village he assisted in subsistence agriculture and production of cash crops. V. initiated a cocoa project. Claims were brought for damages on behalf of the estate of V. under the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of the dependants, the wife, child and mother under the Fatal Accidents Acts 1846 to 1959.

Held

1. As to the Fatal Accidents Claims -

(a) a claim for funeral expenses of $200 had not been made out as the only evidence was as to expenditure on a feast. As there was no evidence connecting this feast with disposal of the body it was not a "funeral expense".

(b) Following O.A.U.E.-v- Allardyce (1980/81) S.I.L.R. 66 a conventional sum for loss of expectation of life of $1500 should be awarded in Solomon Islands in a fatality case.

(c) Following Pickett v British Rail Engineering (1979)1 All E.R. 774 and Fitch v. Hyde Cates [1982] HCA 11; (1982) 39 A.L.R. 581 a claim for loss of future earning capacity was sustainable in Solomon Islands as part of the applicable common law (Vian Guatal v. PNG (1981) P.N.G.L.R. 230 not followed).

(d) As to the calculation, this involved a loss of future earnings over a calculated period of years (the multiplier) at a rate which assesses the amount the deceased would have earned less his probable living expenses to enable him to make those earnings (the multiplicand).

However the multiplier must be discounted to allow for immediate receipt of the earnings. In Solomon Islands the appropriate discount is 4%. On the facts the working life of V. was 35 years which gave a multiplier of 18.66 when discounted at 4%. Although not in paid employment consistently V. was a hard working man who would produce at home sufficient to give him the same earning potential as at the Plantation. This was $48 a month. From this must be deducted his own living expenses assessed at $16 giving a surplus income of $32 a week or $384 a year. This is the multiplicand. Future contingencies are cancelled out by probable increase of earnings. Total award under this head $7165.44 of which on distribution on intestacy the widow would receive the total plus the $1500 loss of expectation of life figure.

2. As to the claims for dependants –

(a) the court is restricted to consider the dependencies of the persons specified in the pleadings and as others were also dependent on V his total surplus, income was not the figure of the dependencies.

(b) The amount give to the dependants as support on a charitable basis should not be taken into account in assessment of dependencies (Rawlinson v. Babcock & Wilcox Ltd (1967) 1 W.L.R. 481 followed).

(c) Following the steps in Cookson v Knowles [1978] UKHL 3; (1978) 2 All E.R. 604 at p.612, the pre-trial dependency is assessed at $20 a month, making a total of $600 plus interest at half the short term rate or 4% p.a. This results in $660. For post trial dependency the multiplier is 8½ (15 years discounted at 4% minus the 2½ years pre-trial dependency). The result is $2244. Total dependency figure is therefore $2904. This is apportioned as 45% to the wife; 35% for the child; and 20% to the mother. The wife’s amount is extinguished by the award under the Fatal Accidents Acts claim.

Other Cases referred to:

Daniel -v- Jones (1961) 3 All E.R. 24
Fernance -v- Walker (1966) 84 W.N. (Pt 2) NSW 175
Gugi -v- Stol Computers Pty Ltd (1973) P.N.G.L.R 341
Clay -v- Pooler (1982) 3 All E.R. 570
Director of Nature Affairs -v- Green (1964) P.N.G.L.R 24
Benham -v- Gambling (1941) 1 All E.R. 7
Lim -v- Camden Health Authority [1979] UKHL 1; (1979) 2 All E.R. 910
Skelton -v- Collins [1966] HCA 14; (1965-66) 115 C.L.R. 94
Sharman -v- Evans (1976-77) 138 C.L.R. 363
Yorkshire Electricity Board -v- Naylor (1967) 2 All E.R. 1
Oliver -v- Ashman (1961) 3 All E.R. 323
Gammell -v- Wilson (1980) 2 All E.R. 557
Todoric -v- Waller [1981] HCA 72; (1981) 37 A.L.R. 481
Chesapeake & Ohio Railway Co. -v- Kelly [1916] USSC 166; (1916) 241 U.S. 485
Cookson -v- Knowles [1978] UKHL 3; (1978) 2 All E.R. 604
Benson -v- Biggs Wall & Co. Ltd (1982) 3 All E.R. 300
Harris -v- Empress Motors Ltd (1982) 3 All E.R. 306
Rawlinson -v- Babcock & Wilcox Ltd (1967) 1 W.L.R. 481

For Plaintiff: K. Brown and Andrew Radclyffe
For Defendant: I. Molloy and J Carrington

Daly CJ Benedict VOTU ("the deceased") died in a motor accident on the 25th January, 1981. The administrator of the estate of the deceased ("the plaintiff") in this action claims damages against the Defendant, who was the owner of the other vehicle in the accident, on behalf of the estate of the deceased and the dependants of the deceased. Liability is admitted on behalf of the Defendant and so the issues in this case arise, from the questions, how should the damages be quantified and to whom should they be paid? Before I turn to the law let me set out the facts relating to the deceased as I find them to be.

At his death, the deceased was aged 22 years. He was a man of Kokona Village, West Guadalcanal. He had been educated at St. Joseph’s School, Tenaru where he reached Standard 7. After leaving school the deceased embarked on a pattern of employment that put him on the border line between the traditional subsistence agriculture and the modern cash economy. For some months every year the deceased went to Variana Plantation where he earned wages and extra money from copra trading. The remaining part of the year he stayed in his village helping in the gardens and production of copra. The deceased also initiated a cocoa project for which a loan was obtained from the Development Bank of Solomon Islands. In all these activities the deceased showed a traditional, and impressive, regard for family obligations.

What was that family? Shortly before his death, on 28th September 1980, the deceased married Bernadetta BEA ("the widow") who is now 19 years old. The deceased also had a daughter Benadita MATESAUTA who he never saw as she was born to ‘the widow on 10th July 1981. Vincent TANDA is the head of the family. He is the elder brother of the deceased and single. The deceased’s mother was alive at the date of the death and is widow aged about 48 years. There are also three other brothers ranging between 17 and 12 years and two sisters aged 10 and 8 years. These, together with the widow and her daughter, now make up the family unit of which the deceased would have been part had he not died. The widow and daughter remain part of this family even after the death of the deceased and Mr TANDA has been arranging support for them. In addition to this immediate family, there is a real cousin of the deceased, LIBERO, his wife and four children who received financial assistance from the money which the deceased provided to his family. The evidence was that, were the deceased alive today he would still be giving money to help his family.

Let us look in detail at what the deceased did to discharge his family obligations. First, amongst the family (and for present purposes I include Libero and his family in this category) he was the only person who has ever ventured into wage earning. Why no one else has done so was not made clear to me as Variana Plantation where the deceased worked was only two hour’s walk away. What the deceased did in the years from 1978 to his death was to spend some months every year living and working at Variana Plantation. In 1978 he spent 3 months there from March to April and earned $36 each month. The deceased also earned approximately $40 in "copra trade" money. This "copra trade" was a practice by which an employee at the plantation could produce copra on the plantation in his spare time and sell it to the plantation thus earning, as it were, overtime. In 1978 he spent 3 months there from March to April and earned $36 each month. In 1979 the deceased worked six months earning $43 a month as he was in more arduous work and was also entitled to a bonus of $3 a month. In copra trade he made approximately $60 that year. In 1980 the deceased worked from January to May and then again from October to December, a total of 8 months at $39 a month (including bonus). The copra trade money in 1980 was $40. It will be noted that the deceased went back to work at Variana, which involved him being away during the week and visiting home only at weekends, shortly after his wedding in September. Of this course the elder brother said the deceased was expected to stay in the village after he was married "but as there was no money he (the deceased) had to work". Perhaps this is some indication of the crucial part the deceased played in this family. Thus over a period of three years the deceased established that he could earn an average of $48 per month at Variana Plantation. Whilst working at the plantation the deceased would give his wife and mother what each said was "$5 to $30" a month.

When one endeavours to quantify what the deceased was capable of earning when he was at home at the village one face far greater difficulties. The family not only produces vegetables for their own subsistence but also produces cash from their agricultural activities. Almost every week some vegetables from the gardens are sold in Honiara market by the mother and widow realizing $20 to $30 in cash. From this must be deducted the fares of $5 return to get to the market. I put a figure on this produce of $800 a year. Copra was also produced by the family although there are some inconsistencies in the evidence about the extent of this production. The elder brother said copra was made four times a year and $60 or $50 was realized each time; the wife that copra was sold almost every month; the mother varied between every month and every six months in cross examination and "few times a year" in re-examination. I find that, on the balance of probabilities, some $200 a year was realized in copra.

Then there is the cocoa project. This was initiated and developed by the deceased; indeed it was said by the elder brother to have failed after the death but that does not appear to be the truth. At the end of 1980 the deceased asked the elder brother to go with him to the Development Bank and negotiate a loan. $1500 was obtained and this was used, at least in part, to get the cocoa plantation cleared. The elder brother was very vague about how the balance of the money was used. But what is clear is that there have been some results this year as both the daughter and the mother said cocoa had been sold. On this aspect I find the mother more reliable and therefore accept that three bags of Cocoa have been sold this year realizing a total of $230. This is gross as I have no figures for repayment of the loan or interest to be deducted. It seems likely that all this amount of $230, on an accounting basis, would be offset by expenses.

As to the value of the vegetables from the garden consumed by the family, I have the most useful survey data produced by Mr Mua Wilson of the Statistics Office. He has in the last year supervised a survey of rural household and expenditure conducted in Wards 1, 2, 4 and 5 of Guadalcanal (Kokona Village is in Ward 2). I appreciate this survey was on a sample basis but it does, in my judgment, provide useful indications of the matters with which the survey was concerned. One of these was the cash value of the subsistence factor for the 46 households in the sample (Table 3). This indicated that an average household of between 6.35 and 6.49 persons consumed produce to the value of $66.86 every month or approximately $10 a person. The immediate family (assuming that the family of Libero did its own gardening) consists of nine persons so garden produce consumed must have a value in the region of $90 a month or $1080 a year. From its activities in 1983 the family is likely to produce agricultural products with a total value of $2080.

The change wrought on the economic position of the family by the unfortunate death of the deceased is, first, removal from it of the income from paid employment of the deceased at Variana Plantation which in 1978 was $148; in 1979 $318; and in 1980 was $352 (all figures gross). In terms of Mr Wilson’s data this would be to move the family from those with income from paid employment to those without such income. It is interesting to note that Table 1 shows that, not only did households with income from paid employment receive $482.84 a month from that source alone but that also the inclusion of such households in the total households (Column 1 of Table 1) results in an higher figure for income from sale of produce; that is $1573.32 a month as opposed to the income from sale of produce from households without paid employment income (Column 2) of $1246.77 a month. This would seem to indicate that families with income from paid employment also were more effective in getting income from the sale of produce.

This introduces what may be a second change in the economic position of the family as a result of the death. Counsel for the Defendant submitted that it is possible to conclude that, apart from the loss of earnings from Variana Plantation, there has been no change in the economic position of the family as the same amount of produce is sold and not less than the same amount of cash is produced from that sale. It would indeed be possible to reach such a conclusion if one dealt merely with the cash income of the family. However I find that the deceased was a young man capable 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. The evidence also indicates that the deceased maintained a rural standard of living in company with the rest of his family and showed no inclination to indulge in regular beer drinking, expensive eating or travel. 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 organized 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 view accords with what has been said in other courts. In Daniel v. Jones (1961) 3 All E.R. 24 it was argued before the English Court of Appeal that a widow had lost nothing in terms of pounds, shillings and pence by the death of her husband. The head note to that case expresses the answer to that argument crisply. It reads:-

"In the assessment of damages under the Fatal Accidents Act 1846 s. 2, the court necessarily undertakes mathematical calculations, and various methods of reaching a correct estimate maybe adopted. But such calculations do not provide a substitute for commonsense and an arithmetic calculation which shows that a well knit family lost nothing by the death of their father, who was the bread winner earning a high income and who himself lived frugally while providing generously for his family, must be rejected as repugnant to common sense."

It might be objected that the deceased in the present case did not earn a ‘high income’ in money terms throughout the year. However, in my judgment, the Court must also take into account the value of his other work even though it was not paid employment. As Walsh J.A. said in Fernance v. Walker (1966) 84 W.N. (Pt 2) NSW 175 at p. 179 (quoted with approval by Minogue C.J. in Gugi v. Stol Commuters Pty Ltd (1973) PNGLR 341 at 347):-

"the plaintiff is entitled to receive a verdict commensurate with the whole of the loss resulting from the death, which may include factors which are unrelated to earnings as an employee and may include factors not really related to the concept of support, if that is understood as referring to the provisions of the means of livelihood."

That courts have been able to put a value on activities despite the fact that they have not previously been expressed in money terms is shown in, for example, two cases. In Clay v. Pooler (1982) 3 All E.R. 570 the trial judge observed that the deceased was a good handyman and did work around the house. At pages 577 and 578 he said:-

"The values of the "DIY" services of the deceased were clearly very substantial and there is no doubt that it will require quite heavy expenditure per annum to replace them. I think a reasonable sum to award would be £200 per annum"

Closer to home, in Papua New Guinea Ollenrenshaw J. was, asked in The Director of Native Affairs v. Green (1964) PNGLR 24 to value the "pecuniary loss resulting from the death" of a wife to a husband in the village context. The wife had assisted the husband in the garden and in the family cocoa plot as well as performed domestic services. The learned judge valued these services at £300 having considered such matters as life expectancy and the weekly value of the services. In this case I too must value the work of the deceased when he was at home.

The question then is, how does one in this case quantify the total loss? I shall defer consideration of this difficult question until I have considered the law on the subject further and the particular claims that are made in this case.

As I have said there are two claims made; one on behalf of the estate of the deceased; one on behalf of the dependants, who are specified in the statement of claim as being the widow, the daughter and the mother. Although those two claims are interlocked to some extent, it is necessary to deal with them separately.

The estate claim is made possible by section 1 of the U.K. Law Reform (Miscellaneous Provisions) Act 1934 ("the Law Reform Act") which applies in Solomon Islands by virtue of paragraph 1 of Schedule 3 to the Constitution. The former provides, so far as is relevant:-

"1(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate ....

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:-

.........

(c) Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included."

There are three parts to the estate claim in this case. First, a claim of $200 for funeral expenses. This claim is brought under section 1(2) © of the Law Reform Act. As it is such a claim it must be established by the Plaintiff that he is entitled to recover the amount claimed within the terms of that section. A claim must then be for "funeral expenses" and must be "for the benefit of the estate" and be "a loss ... to (the) estate consequent on ... death."

The only evidence as to this claim is from the elder brother who said that a feast was held upon which $500 was expended. This "expenditure" was, he subsequently explained by way of food and pigs being contributed by relatives including the immediate family. Is this $500 a "funeral expense"? Giving those words their ordinary meaning it seems to me that there must be evidence connecting this feast directly with the disposal of the body of the deceased before it can be said to-be a "funeral expense". There was no such evidence and on this ground I disallow the claim for $200. I should add that even if there were such evidence I would still have to be satisfied that the funeral expenses were a "loss to the estate". If the evidence showed that the relatives were under obligation in custom to contribute personally to the feast, I express doubts as to whether I would be so satisfied.

The second part of the estate claim is for damages for loss of expectation of life. In Official Administrator for Unrepresented Estates v. Allardyce Lumber Company Limited (1980/81) S.I.L.R 66 this Court said:-

"In Flint v. Lovell (1935) 1 DB 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."

Subsequently, following Benham v. Gambling (1941) 1 All E.R. 7 the court decided upon a "conventional sum" and fixed it at $1500.

Counsel for the Defendant observes that in that case there was no dispute as to liability to pay for such a loss but merely a dispute as to quantum. He now seeks to persuade the Court that there should be no such head of damage claimable in the case of a death unless it can be established that the deceased did suffer from the knowledge that he could expect a shorter life as a result of the wrong of the Defendant. In the case of instantaneous death, counsel submits, no such knowledge can be established. Counsel accepts that in the United Kingdom the award of a conventional sum for loss of expectation of life, even in a case where the loss was never realized by the victim, is settled law. In Lim v. Camden Health Authority [1979] UKHL 1; (1979) 2 All E.R. 910 Lord Scarman delivering a speech with which the other members of House of Lords concurred said of the earlier cases (at p. 919):-

"First, they draw a clear distinction between damages for pain and suffering and damages for loss of amenities. The former depend on the plaintiff’s personal awareness of pain, her capacity for suffering. But the latter are awarded for the fact of deprivation, a substantial loss whether the plaintiff was aware of it or not."

The same as was said of damages for loss of amenities may be said of the present claim; it is, in fact, a claim that the deceased has been deprived of part of his life and should be compensated therefore It is therefore irrelevant whether or not he was aware of his loss. It would, perhaps, be better to call the claim one for loss of part of the life the deceased was entitled to expect or as Viscount Simon called it in Benham v. Gambling at page 12 "the loss of measure of prospective happiness" rather than to call it a "loss of expectation" which implies an actual loss in the mind of the deceased.
Counsel submitted that I should prefer to give expression, in my judgment to the concern felt in Australian Courts about the reasoning upon which such an award is based. In Skelton v Collins [1966] HCA 14; (1965-66) 115 C.L.R. 94 Windeyer J at page 131 confessed "misgivings about some of the reasoning that has been devoted by courts to this question" and attempted his own analysis. However at page 136 His Honour said:-

"For reasons which I have already given, I do not find the underlying assumptions of the judgment in Benham v. Gambling about the worth of life easy to make, even as mere assumptions. But putting that aside, I - for the sake of conformity with the views of most of my brethren, but not from conviction—agree that we can be guided in this case by what was said in that case. We can accept it as an ipse dixit of the law".

Indeed, with only one dissent the High Court of Australia were prepared in that case to follow the U.K. authorities on the question of an award for loss of expectation of life. Nor does Sharman v. Evans (1976-77) 138 C.L.R. 363 assist the Defendant’s argument as in that case, following again Benham v Gambling, the majority of the court assessed a conventional as payable under this head although the amounts differed.

Some hesitation has been expressed, too, in Papua New Guinea about such an award by Miles J in Vian Guatal v. P.N.G (1981) PNGLR 230 at page 251. But His Honour was constrained accept that the award was "commonplace" in Papua New Guinea and awarded K1, 500.

Reviewing the authorities on this aspect of the law of damages one may feel that the courts have found themselves in a position where expediency has taken the place of clarity of principle. But I have no hesitation in concluding that there is overwhelming common law authority, unshaken by the various doubts expressed, for including in the award of damage in a fatal accident case a conventional sum for loss of expectation of life. As the common law is part of the law of Solomon Islands (see paragraph 2(1) of Schedule 3 to the Constitution) then such an award is properly made in Solomon Islands.

What should be the "conventional sum" in this case? In O.A.U.E. v. Allardyce the court reached a figure of $1500. Counsel for the Plaintiff points out that this was an award made three years ago and asks that it be increased to allow for inflation since that time. In Yorkshire Electricity Board v. Naylor (1967) 2 All E.R. 1 the House of Lords held that in assessing such a sum the fall in the value of money was clearly relevant. The evidence is that there has been an increase of 33% in the Honiara Retrial Index. It is submitted therefore that the conventional sum should be increased by 33%. However Lord Upjohn said in Yorkshire Electricity Board v. Naylor (at page 13):-

"Over the years the conventional sum to be awarded for such head of damage rises no doubt, but by fits and by starts rather than by any estimation of the purchasing power of the pound, and in my view so it should be."

For my part, I do not consider that this conventional sum should be linked to the Honiara Retail Price Index even at the intervals suggested by counsel; for the present I am content to award the same figure of $1500.

I turn now to the most difficult part of the estate claim; that is the claim for loss of future earning capacity. In OAUE v. Allardyce this court said after briefly reviewing the authorities on the subject at page 76:-

"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 earning 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 earning must be reduced by the amount of an estimated sum to represent the victim’s probable living expenses in those years."

Counsel for the defendant concedes that, in the view of that statement of the law, he may have difficulty in persuading the court to hold that such a claim is not sustainable. However he draws the court’s attention to a subsequent authority which contains the approach which he submits is to be preferred to that adopted by this court in the passage above cited.

This is the Papua New Guinea case of Vian Guatal v. PNG (1981) PNGLR 230 (‘Guatal’s Case’). In that case the estate of a deceased person sought, amongst other claims, to claim damages for "economic loss during the lost years". The law to be applied to such subject was:-

"The common law as it existed in England immediately prior to Independence (15th September, 1975) ..... unless inconsistent with a constitutional law or with custom or unless inapplicable or inappropriate to the circumstances of the country from time to time" (at p. 240).

Miles J. then went on to consider the case of Oliver v. Ashman (1961) 3 All E.R. 323 in which he said that "the English Court of Appeal held that a living plaintiff was not entitled to damages for economic loss during the lost years". The learned judge accepted that this differed from the view reached by the High Court of Australia in Skelton v. Collins and that, subsequently, in Pickett v. British Rail Engineering (1979) 1 All E.R. 774 and Gammell v. Wilson (1980) 2 All E.R. 557 the English House of Lords overruled Oliver v. Ashman. At pages 250 and 251 the learned judge said:-

"As far as the present case is concerned, I would conclude that the decisions in Pickett’s case (64) and Gammell v. Wilson (supra) did not declare what the common law had been but brought about a change in what the English courts had previously accepted as the common law and which had received its most authoritative expression in Oliver v. Ashman (65).

In any event if the decisions in Pickett’s case (66) and Gammell v. Wilson (67) represent the common law as it was in England on 15th September, 1975, then for the reasons I have indicated above, that part of the common law is inapplicable and inappropriate to the circumstances of Papua New Guinea because, in the words of Lord Diplock, it leads to an outcome which is neither sensible nor just and for which there is no social, moral or logical justification."

The first part of this ratio decidendi which deals with the state of the common law as at 1975 is of no assistance in Solomon Islands Paragraph 1 (1) of Schedule 3 to our Constitution provides:-

"1(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."

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. 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 A.L.R. 581 at p. 590). Be that as it may, the common law has now been authoratively stated in both England and Australia in such a way as to require this Court to find that as at today a claim such as is here under consideration can properly be made in accordance with the received common law applicable in Solomon Islands.

It seems to me that the main thrust of the judgment in Guatal’s Case was that lost years claim would be inappropriate or inapplicable in the circumstances of Papua New Guinea. It would, of course, be possible for this Court to make a similar finding under paragraph 2(1) (b) of Schedule 3 to the Constitution. I leave aside the strictures of the Miles J. upon the logical basis for the award itself. As those strictures would equally apply to the operation of the rule throughout the world they cannot, in my judgment, support an argument which must relate to "circumstances of Solomon Islands". Other reasons are set out on pages 249 of the judgment. First the difficulty of assessing economic worth of a person’s life; second, that the claim might result in "windfall" cases and third that in Papua New Guinea a flat rate amount is payable by statute to the customary kinship group of a person killed in a motor accident. The two former reasons are, again, not related to the circumstances of Papua New Guinea but are general objections. The third clearly is a circumstance of Papua New Guinea. In Solomon Islands we have no such statute.

The learned judge then goes on to discuss the effect of insurance upon damages (and vice versa) and the undesirability of applying in Papua New Guinea the same approach to damages as in "industrialized countries with highly developed insurance systems". It maybe that the learned judge is right and that the same maybe said in Solomon Islands, but I express no view. However it seems to me that to reject a well established part of the common law on considerations of economics and policy is not an act lightly to be undertaken by a court of law. It maybe that the Constitution of Papua New Guinea gives the judiciary greater powers than are granted by our Constitution. In this Court I would want a case made out with the utmost clarity on substantial evidence before I could conclude on such general bases that a rule of the common law was "inapplicable to or inappropriate in the circumstances of Solomon Islands". I remain unrepentant in my view that policy, whether economic or otherwise and the best way to effect it are matters for the executive and legislature rather than the judiciary.

I hold therefore that a claim for loss of earning capacity in the lost years may be sustained in Solomon Islands.

One of the difficulties, as Miles J. rightly points out, is how to assess the amount to be awarded in relation to such a claim. In Sharman v. Evans Gibbs and Stephen JJ say at page 579:-

"As to "lost years", the plaintiff is to be compensated in respect of lost earning capacity during those years by which her life expectancy has been shortened, at least to the extent that they are years which she would otherwise have been earning income."

and later:

"It is well established in Australia that there should be taken into account in reduction for the lost earning capacity of "lost years" at least the amount that the plaintiff would have expended on his own maintenance during those lost years."

There are two aspects of these passages worthy of emphasis. The first is that the compensation is for loss of earning capacity. It is not compensation for actual financial loss or economic loss although the process of estimating the value of such loss must inevitably lead to a consideration of the victims actual earnings prior to death and his potential earnings. The second is that there is to be deducted the amount that the victim would spend on his own maintenance in the lost years rather than on maintenance of both himself and his dependants.

In a recent case in the High Court of Australia (Fitch v Hyde-Cates [1982] HCA 11; (1982) 39 A.L.R. 581) Mason J made these two matters abundantly clear when he said at p. 592:-

"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."

Counsel for the defendant sought to argue that, following one reading of what Taylor J. said in Skelton v. Collins, it is open to this court nevertheless to take the view that the expenditure by the deceased on maintenance for his dependants should also be deducted from his future probable earnings. But in view of the somewhat different reading of the words of Taylor J achieved by Gibbs and Stephen JJ in Sharman v. Evans it does not seem to me, with respect, to be arguable that there is any authority in the Australian cases for the proposition urged by counsel. As counsel accepted that the English cases are against him (see Pickett v. British Rail Engineering (1979) 1 All E.R. 774 and Gammell v. Wilson (1981) 1 All E.R. 593) I fear his was a forlorn hope. In those circumstances I reject the submission counsel made and follow the approach set out in the passage from the judgment of Mason J. in Fitch v. Hyde-Cates to which I have referred above.

I turn now to assessment of damages. A number of judges have expressed concern about the difficulties likely to arise on such assessment particularly where the victim is a young person (see e.g. Lord Diplock in Gammell v. Wilson at page 583 f) and Miles J in Guatal’s Case at page 249). I find the expression of principle by Lord Scarman in Gammell v. Wilson at page 593 most helpful when the law learned Lord said –

"Assessment of Damages

The correct approach in law to the assessment of damages in these cases presents, my Lords, no difficulty, though the assessment itself often will. The principles must be that the damages should be fair compensation for the loss suffered by the deceased in his life time. The appellants in Gammell’s case were disposed to argue, by analogy with damages for loss of expectation of life, that, in, the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a "conventional" award in a case of alleged loss of earnings of the lost years. The loss is pecuniary. As, such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation it is the balance of probabilities which matters. In the case of a young, child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimation being possible, no award, not even "conventional" award, should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime at the age of five, might have a claim: it would depend on the evidence. A teenage boy or girl, however, as in Gammell’s case may well be able to show either actual employment or real prospects, in either of which, situation there will be an assessable claim. In the case of a young man, already in employment (as was young Mr Furness), one would expect to find evidence on which a fair estimate of loss can be made.

A man, well-established in life, like Mr Pickett, will have no difficulty. But in all cases it is a matter of evidence and a reasonable estimate based on it.

The problem in these cases, which has troubled the judges since the decision in Pickett’s case, has been the calculation of the annual loss before applying the multiplier (i.e. the estimated number of lost working years accepted as reasonable in the case). My Lords, principle has been settled by the speeches in this in Pickett’s case. 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. Subtle mathematical calculations, based as they must be on events or contingencies of a life which, he will not live, are out of place; the judgment must make the best estimate based on the known facts and his’ prospects at time of death. The principle was stated by Lord Wilberforce in Pickett’s Case (1979) 1 All 774 at 781-782 (1980) AC 136 at 150-151:-

"The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in ‘lost years should be after deduction of an estimated sum to represent the victim’s probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependants and other, and this he would do out of his surplus. There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts.’"

I now apply those principles to the facts of this case. I find, as Lord Scarman expected, that in the case of this deceased, who was a young man, there is evidence upon which I can make a fair estimate of the loss. First of all the probable earnings. I have already set out the earnings in cash which the deceased proved himself capable of making at Variana Plantation. Of course this was for only part of the year and there is the possibility that he would, in future, have gone less often to the Plantation away from his family. However I find that the deceased was a hardworking and energetic young man who had shown, in his short working life, that he had considerable potential both to earn money and to organize ways whereby money might be .earned in his home environment. I consider that he would have worked at Variana Plantation until he was capable of achieving equivalent results in economic terms by working in the various agricultural activities available to him at home. Therefore I find that his earning at Variana are a useful starting point in considering his earning potential in the village. As I have earlier concluded, this earning potential has a cash value and that is what the estate has lost. In my judgment, 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 at the Plantation.

The figure for work at the Plantation was, as we have seen an average of $48 a month. There has been no evidence of any increases or likely increases. From this must be deducted the cost of the deceased’s "living to a standard which his job and career prospect at the time of death would suggest he was reasonably likely to achieve". We can see from Mr Wilson’s table 3 that produce consumed on average in the wards covered by his survey was to a value of $10.53 a month a person; in the case of an energetic man maybe more. In addition there is "white man’s food" as one witness called it: tea, tinned meat, fish and so on. Something must be added for clothing and general expenses. Again looking at Mr Wilson’s Survey Data one sees that in table 2 the overall monthly expenditure on purchases (store/market) and other expenditure when averaged out came to $6.57 a head. It should be observed that this figure is for all households whereas those who had no income from paid employment only averaged expenditure of $4.51 a head. The deceased lived, as I have said, a quiet rural life and his paid employment in no way removed him from that. He walked and from the Plantation; he drank beer only rarely; the family continues to hunt for pig; and purchases were made at village stores rather than in Honiara. It maybe then that one should equate this family more with those without income from paid employment. However the deceased was a young healthy and by way of a leader in the family. On the evidence and as confirmed by Mr Wilson’s figures I propose to employ a round, figure of $16 a month as cost of maintenance of the deceased. This figure would accord with the evidence of the wife and further that, when at the Plantation, the deceased would give them $5 to $30 a month on the basis that, after deduction of $16, the deceased would have in the region of $30 a month disposable surplus. I appreciate that these figures embody artificialities in that the deceased may have received varying DS at Variana Plantation each month and his living costs may have been reduced by produce brought from home, but I consider figure of 33% of total earnings spent on himself to be reasonable in the overall both at Variana and at home.

On the basis of $32 surplus income the figure for one year of earning capacity would be $384. This then is the multiplicand. The multiplier is the figure for the number of years over which the deceased had a reasonable expectation of earning such an amount. At the date of death the deceased was 22 years old. On the basis of the statistical tables in Exhibit B (Report on Census of Population 1970) the deceased would have a life expectancy of something like 40 years. This would make him 62 years at the date of death. This is beyond the age when most people in Solomon Islands continue to work and should, I consider, be reduced. I take a figure of 35 years as likely working life.

However this figure must be further discounted for the reasons set out in the case of Todoric v. Waller [1981] HCA 72; (1981) 37 A.L.R 481 (High Court of Australia). Those reasons are that if the full period of years over which the loss is suffered is taken as a multiplier and the full amount lost every year as the multiplicand, then the estate will receive a far greater benefit than is necessary to compensate it for the deceased’s loss. This greater benefit arises because the estate gets the sum in one lump amount now enabling it to earn interest on that sum over the future years whereas the victim would be in receipt of the earnings, as it were, by dribs and drabs only over that period. As the Supreme Court of the United States said in Chesapeake & Ohio Railway Co. v. Kelly [1916] USSC 166; (1916) 241 US 485 at 489:-

"It is self evident that a given sum of money in hand worth more than the like sum of money payable in the future."

To counteract that result it is necessary to apply a discount so that the interest earned is accounted for by the reduction of the capital sum immediately awarded. This is done by application of discount tables.

The question remains, what should be the rate of discount? In Todoric v. Waller the High Court of Australia discussed this question in detail. The majority of the Court considered the notional yield on "reasonably safe investments" (see p. 488) at the date when the award was made; disregarded inflation; took into account a notional tax; and came to the conclusion that in Australia in future there should be 3% rate of discount. In the United Kingdom the rate applied is 4% or 5% according to Lord Diplock in Cookson v. Knowles [1978] UKHL 3; (1978) 2 All E.R. 604 at 611. What am I to choose for Solomon Islands? I have had no evidence about the notional yield of investments or as to tax although the sum involved in this case would indicate an extremely low tax rate if any at all bearing in mind that paragraph 20 of the First Schedule to the Income Tax Act (Cap. 61) exempts interest on deposits with savings banks or fixed deposit accounts from income tax. The low yields available in the unsophisticated investment market of Solomon Islands and the lack of tax would probably cancel each other out. I appreciate that it may well be that damages are not invested at all but that,’ for the purposes of this exercise, is not relevant as the court is not concerned with what the estate or its beneficiary might do with the amount awarded.

Doing the best I can I have come to the conclusion that 4% is the appropriate discount rate for Solomon Islands. Applying this to the 35 years I get the figure of a multiplier of 18.66 years. The result is that for loss of future earning capacity the first figure is $7165.44. I say first figure as there should be a reduction for contingencies. However, on the other hand, in view of the favourable view I take of the future prospects of the deceased as a diligent man with ideas, I also would allow a sum to take account of the fact that his earning capacity might well increase. These two matters may be taken to cancel each other out and therefore the amount awarded in respect of this head is $7165.44.

The total awarded in respect of the estate claim is therefore $8665.44 including $1500 for loss of expectation of life.

It only remains in relation to the estate claims to decide who will take the benefit of this amount as that has a bearing on the dependencies. In the absence of evidence of custom applicable to distribution of a deceased’s property and without deciding whether or not custom is applicable in a case such as this, I am left with considering the U.K. statute of general application dealing with distribution on intestacy in force on 1st January, 1961 (see para 1 of Schedule 3 to the Constitution). This is the Administration of Estates Act 1925 as amended by the Intestates’ Estates Act, 1952. Under those acts the surviving spouse is entitled to £5000 must, by virtue of the Currency Act (Cap 57) section 6 be read as $10,000. It follows that the widow will be entitled the $8665.44 in due course.

I turn now to the claim made on behalf of the dependants. This claim is made under the U.K. Fatal Accidents Act 1846 to 1959. By section 1 of the Fatal Act 1846:-

"whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

In this case the claim is brought for the widow, daughter and mother of the deceased who are all within the classes defined in section 2 of that Act.

Section 3 of the 1846 Act also provides "that not more than one action shall lie for and in respect of the same subject matter of complaint". The learned editors of Clerk & Lindsell on Torts 14th Edition at page 424 state that "there is no room for consideration of a dependant not named in the proceedings". As the Act requires (section 4) that the plaintiff must deliver particulars of the persons on whose behalf the claim is brought and the nature of that claim, that statement would seem justified by the structure of the Act. In my judgment, I am, therefore, restricted in considering the dependency claims to considering only the dependencies of the persons specified in the Statement of Claim. These are the widow, the daughter and the mother.

I must therefore in accordance with section 2 of the 1846 Act "give such damages as (1) may think proportioned to the injury resulting from (the) death to the parties respectively for whom and for whose benefit (this) action shall be brought". I then must divide the amount so recovered amongst those parties "in such shares as (I) by (my) verdict shall find and direct".

In assessing the dependencies of the three claimants I intend to follow the steps suggested by Lord Diplock in Cookson v. Knowles [1978] UKHL 3; (1978) 2 All E.R. 604 at page 612. These are:-

1. To split the damages into two parts:

(a) the pecuniary loss which it is estimated the dependants have already sustained from the date of death up to the date of trial ("the pre-trial loss"), and

(b) the pecuniary loss which it is estimated that they will sustain from the trial onwards ("the future loss").

2. To award interest on the pre-trial loss for a period between death and the date of trial at half the short term interest rates current during that period.

3. In calculating the future loss, to use as multiplicand the figure to which it is estimated the annual dependency would have amounted at the date of trial.

4. To allow no interest on the future loss.

5. To make no other allowance for prospective inflation.

The first task then is to assess the joint dependency of the three persons concerned.

First I must find the figure for the dependency. It is clear that the dependency of the three claimants cannot be greater than the $32 a month which I have found to be the disposable income of the deceased. I see no reason for departing at this stage from the calculations I made in relation to the lost years. Indeed there is authority in the U.K. which supports the proposition that the deceased’s living expenses at least should be calculated on the same basis in relation to both lost years and dependency claims (see Benson v. Biggs Wall & Co. Ltd (1982) 3 All E.R. 300 and Harris v. Empress Motors Ltd (1982) 3 All E.R. 306). I find the reasoning in those cases cogent and follow them as to calculation of living expenses to be deducted from the estimated earnings of $48 a month.

But’ it does not follow that I arrive at the same final sum as resulted from the calculations for the lost years as, in calculating the amount under the Fatal Accident Acts, I must take into account the dependents’ future prospect. In the case of the widow I must consider the prospect of her remarriage (Rawlinson v. Babcock & Wilcox Ltd (1967) 1 W.L.R. 481); in the case of the child, the prospect of the need for support coming to an end; and in the case of the widow, her life expectancy. I must also, of course, take into account contingencies generally such as death and sickness of the deceased and the possibility of his ceasing to work. However I consider that he was a man who was likely to continue to support his dependants whether he below or over the normal age of retirement. The deceased was, in my judgment, the kind of man who would by his activities have accumulated in his life time enough wealth or obligation owed to enable him to continue to live throughout his natural life at least at the same level (including maintenance of his dependants) as he would have attained by the date of trial. This duration of dependency would, of course, only apply to the widow (if she does not remarry) as the mother, at present age of 48 could be expected to have predeceased her son and the daughter could be expected to marry in her teens and become a dependant of her husband or his family on that event. These matters are best dealt with on estimation of the multiplier.

It was suggested to me that I should taken into account the fact that the claimants have received and would receive support from the elder brother and other members of the family when they become old enough. That may well be so. But an argument that support by relatives of a dependant should be taken into account in a Fatal Accident Case was rejected by Chapman J. in Rawlinson v. Babcock & Wilcox Ltd (1967) 1 W.L.R. 481 for reasons which I find compelling. At pages 486 and 487 the learned judge said:-

"But the courts are always astute to guard against the fallacy that, having regard to the incidence of death duties, a family is better off without their breadwinner than it was while he was alive - see, for example, Daniels v. Jones - and also against the fallacy that purely arithmetical calculations are capable of providing the answer: see Kassam v. Kampala Aerated Water Co. Ltd. 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 would not have been made but for the death. The operative cause, however, for the payment of money in such a case is not the fact of death (which is operative in producing a payment under the terms of a policy of insurance or in bringing into effect the terms of a man’s will or the distribution consequent upon his intestacy), but the voluntary, spontaneous decision of a donor or donors activated by motives of compassion towards a person in distress."

I therefore do not accept this suggestion and exclude the support given since death and which may be given in future This decision also deals with the suggestion that I should give credit in my calculations for the fact that the widow has been as she said, receiving the deceased’s share of the proceeds from sale of produce. It has not been argued that this was given to her as a result of any obligation to do so and I must therefore regard this as part of the charitable support not to be included in my calculations.

But there is a factor in this case which bears on the amount of the multiplicand; there is evidence that the disposable surplus income of the deceased went to provide for far more people than are named as claimants. It was argued by counsel for the Plaintiff that I should simply regard all the money that went to the wife or mother, and hence all the surplus income as there were no savings, as being attributable to dependencies of those two persons and that of the daughter. But the evidence was clear. It revealed that 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 maybe, and I offer no concluded views, that some of those persons too might be able to claim a dependency. However in view of the structure of the Acts under which these claims are brought I am, as I have said, only entitled to assess the dependencies of the persons of whom particulars are given in the pleadings. I am conscious that this kind of precision may not accord with the more flexible situation which obtains in a Solomon Island family; but the claim is brought under U.K. legislation and a Solomon Island claimant who takes advantage of that legislation must take it warts and all. One wart maybe that the legislation does not easily encompass the idea of the Solomon Island family and extended family.

I deal first with assessment of the three dependencies, between death and trial. The period upon which submissions’ were based is 2½ years. There is in that period no reduction for contingencies but there must be a reduction for what I shall call other dependencies. Taking $32 a month as the starting point, I consider that, even in Solomon Islands, by far the greatest proportion of that amount would go to maintain a wife and child and mother. Allowing some reduction for the fact that the child was not born until 10 July 1981 I assess the amount that would go to the three claimants at $20 a month, over the whole period. This makes a figure for dependency between death and trial of $600.00. To this figure must be added interest at half the short term rate which I find to be 4% per annum having considered evidence, as it was agreed I should, given in Civil Case 38 of 1953. On my calculations this results in a total figure of $660 for pre-trial dependency.

For post trial dependency I must assess the dependencies between at date of trial. I consider the figure a month for the dependencies of the claimants would have risen to $22 allowing for increase in age of a younger brother enabling him to perform more work albeit at home, and increased maintenance going to the child. I must turn to the multiplier. I must take into account the contingencies to which I have referred earlier. The widow is now aged 19 years. She seems a quiet and pleasant young woman capable of hard work. She has one child. I should put her chances of marrying again as good. Even if she did so, the child, on the evidence, would remain with her father’s family and therefore there would be no new support for the child. The mother is aged 48 years and has a normal life expectancy of about 20 years. There is also the possibility of more children being born to the deceased and his wife but the maintenance of these would be set off against the decline in need to support the younger brothers and sisters. These and other contingencies I take into account in deciding upon the multiplier which I put initially at 15 years. Discounted at 4% this gives a multiplier of 11. From this, as was done in Cookson v. Knowles, must be deducted the 2½ pre-trial years giving a figure of 8½ as the final multiplier. The resulting figure for post trial dependency is $2244. The total dependency figure is then $2904.

I must now apportion that amount amongst the three claimants attempting in each case to estimate, as was said in Harris v. Empress Motors by McCowan J. (at page 312) the genuine dependency of each. Again I consider a larger proportion would go to the widow and child although there is a greater duty in Solomon Islands to support parents than elsewhere. I apportion the total figure as to 45% to the wife; 35% to the child and 20% to the mother. This gives the wife $1306.80 the child $1016.40 and the mother $580.80.

It is agreed that any damages awarded under the Law Reform Act which accrue to a dependent must be set off against any amount awarded as a result of the Fatal Accidents Acts claims. Thus the widow’s amount of $1306.80 is extinguished by the amount she will receive through the estate of the deceased. There will therefore be judgment on the claims for dependencies of $1016.40 for the child Benadita Matesauta and $580.80 for the mother, Rosalia Ngasa. I should add that the mathematics are my own work and I should be grateful if the parties would check them.

Thus the final awards will be as fo11ows:-

1. On the claim by the estate under the Law Reform (Mice11aneous Provisions) Act, 1934 $8665.44 made up of $1500 for loss of expectation of life and $7,165.44 for the lost years.

2. On the claims on behalf of the dependants under the Fatal Accidents Acts, 1846 to 1959 for the child Benadita $1016.40 and for the mother Rosalia $580.80 a further award to the wife being extinguished by the gain to her from the deceased’s estate consequent upon death of $8665.44.

3. Total award against the defendant on both heads is $10252.64.

I will hear the parties on costs.

Since drafting the judgments in this case and Civil Case No. 35/83 I have seen the report in the Times Newspaper (July 18th 1983) of the English Court of Appeal decision in Harris v. Empress Motors Ltd and Cole v. Crown Poultry Packers Ltd. In these cases the Court of Appeal discussed
the principles applying to the percentage to be deducted as expenditure on the deceased’s living expenses in the case of a lost years claim and concluded that it wou1d, in general, be greater than in the case of a percentage deducted in relation to a Fatal Accidents Act claim. It is difficult with the brief report made to follow the full reasoning of the court but the example used of deduction for expenses in relation to living accommodation does not apply in either of the cases before me. I do not consider that that report gives me any cause for revision of the calculations which

I have made.

(Note: An appeal was filed with the Court of Appeal by the, Defendant and argument heard on 6th December 1983. Judgment ‘has not as yet been’ delivered).